CIV/APN/471/2007
IN THE HIGH COURT OF LESOTHO
In the Matter Between:-
'MANTHABELENG MAKAKA APPLICANT
and
MAKOETLA MAKAKA 1st RESPONDENT
'MALEPEKOLA MAKAKA 2nd RESPONDENT
MKM MORTUARY 3rd RESPONDENT
OC MASERU CHARGE OFFICE 4th RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 16th October 2007
By way of urgent application applicant herein approached this Court and obtained an interim order in the following terms:-
That a Rule nisi issue returnable on the date and time to be determined by this
Honourable Court railing upon 1st and 2nd respondent to show cause if any, why:-
The Rules of this Honourbale Court pertaining to service and form shall not be dispensed with on account of urgency hereof.
1st and 2nd respondents and all members of their families living in Applicant's house at Lithabaneng shall not be ordered to restore to applicant her previous undisturbed
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enjoyment of her house pending the finalization of this matter.
3rd respondent shall not be directed to withhold release of deceased's body pending finalization of this matter.
Applicant shall not be declared as being responsible for the burial of the deceased Lepekola Makaka's body.
Costs of suit.
Further and/or alternative relief.
1st and 2nd respondents have opposed this application. Facts which brought about this application are that sometime in July 2006 applicant and the deceased eloped to 1st respondent's home and that since then until the deceased's demise on the 27th August 2007, the two lived as husband and wife. At the time of the elopement, the deceased was widowed having been married to the late 'Mamaqalike Makaka from which union a son Qalike was born. During applicant and deceased's life together, no bohali was ever paid. All these are common cause.
Facts which are disputed by 1st and 2nd respondents are that after the elopement, applicant was received as the wife of the deceased whereby a sheep was slaughtered symbolizing the customary 'koae' and that applicant was given the name of 'Manthabeleng by the family. It is also disputed that that the letter annexure MM was an agreement of the marriage by the two families. Instead it is 1st respondent's version that he signed the document in a state of confusion resulting from the shock at the untimely death of the deceased. Further that at the time he signed the letter, it already bore other signatures whose signatories were not present although he took it to the chief of Lithabaneng for attestation.
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It is also applicant's case that while bohali was never paid she and deceased agreed to marry and lived together with the approval of the two families and that the question of bohali was discussed between the two families although the actual amount was never agreed to and/or paid either in part or in full. The 1st respondent does not refute that the issue of bohali was discussed. He however adds that the reason for the delay was because applicant's father had informed the messenger that his daughter, applicant herein already had two 'adulterine children.'
In their submissions both Counsel are agreed that it is trite that for a customary marriage to be declared as valid, it has to satisfy three main requirements namely, that there was agreement between the parties, there was agreement between the parents, there was payment of bohali either in part or in full. Indeed these requirements are laid down under Section 34 Part II of the Laws of Lerotholi.
However Mrs K. Thabane pointed out on behalf of the applicant that two of these requirements were met safe for the payment of bohali. She argued that this notwithstanding, applicant was for all intents and purposes accepted and held out as the wife of the deceased by the 1st respondent and the entire family, She added that this is evinced by their acceptance of applicant after she and the deceased had eloped to 1st respondent's house where the traditional rituals were carried out including the slaughtering of a sheep, giving applicant a name and sending a message to her father to know that she was at 1st respondent's house under those circumstances as it is alleged in applicant's founding affidavit.
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Counsel for applicant further added that the fact that no amount of bohali was agreed and/or paid was the result of the deceased having untimely fallen ill and eventually passing away so that negotiations had to be halted. Further that the fact that applicant's father had gone to 1st respondent to discuss the bohali but was referred to the deceased was proof that applicant had been accepted and held out as the wife of the deceased.
In addition that even 1st respondent's conduct during the deceased's lifetime strengthened applicant's case in that after she and the deceased had quarreled she had ngalaed to his house and he in turn had called the two families to resolve the dispute between the two. Further that annexure "MM" was proof that 1st respondent believed that applicant was their daughter in law.
Mrs Thabane made the submission that the surrounding facts show that there was a mutual understanding between the two families that their children were married and that bohali was going to be paid but that this did not happen due to unforeseen circumstances. Counsel further urged this Court to be wary not to perpetuate the abuse of women who are for all intents and purposes but are rejected at a later stage simply on account of non-payment of bohali.
In response, it was Mr. Nathalie's contention that the only issue for determination by this Court is whether applicant and the deceased
were lawfully married by custom. He added that two of the requirements of a valid customary marriage have not been met in casu,
for the reason that there was never an agreement on bohali or payment thereof. He added that these two requirements
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are so important that even during hard times token payments used to be made in the form of stones to symbolize payment.
Counsel for 1st respondent made the submission that payment of bohali is a crucial requirement for a customary union and that all the other rituals referred to by applicant are peripheral and not legal requirements. With regard to annexure "MM" Mr. Nathalie pointed out that 1st respondent denies in his answering affidavit to have ever sent for it contrary to applicant's averments in her founding affidavit.
He submitted that even assuming (without conceding) that the annexure was properly executed, it does not conform with the requirements of a lawful customary union as envisaged under Section 34 of the Laws of Lerotholi for the reason that it does not state the amount of bohali agreed upon or what portion if any of the said bohali was paid. Further that assuming the correctness of 1st respondent's version that the annexure was executed on the 31st August 2007 after the deceased had already passed away, then so Mr. Nathane submitted, it amounts to the now obsolete and impugned practice of "ho nyalla lebitla" which does not amount to a lawful marriage at all.
It was 1st respondent's further case that since it is undisputed herein that the deceased left an heir though still a minor, he through his lawful guardian should have the final say in the issue of the burial of the deceased per decided cases. Mr. Nathane made the submission that even assuming that applicant is the deceased's widow, not only is she not the heiress but she is the only person who wants to act contrary to the wishes of the entire Makaka family including the minor heir.
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Counsel for 1st respondent added that the prayers sought against 1st and 2nd respondents in the notice of motion were misconceived and not supportable in law for they are based on the actions which in applicant's own words were committed by other members of the Makaka family and not the two respondents.
Lastly, it was submitted on behalf of respondents that there is no urgency in this matter for the reason that applicant is the one who is frustrating the process of the burial by withholding funds which could enable the deceased to be buried yet in her own words the dispute with regard to the venue of the burial started as far back as the 27th August 2007.
I now proceed to deal with the issue whether or not applicant herein was validly married to the deceased. I have already shown that it is common cause that at the time of the deceased's death the families had not agreed on the amount of bohali and that it was never paid either in whole or in part. However, it is my opinion that this matter is not as simple as that when considering all its surrounding circumstances. Although Mr. Nathane made the submission that the other rituals that were carried out are peripheral and unimportant, I am of the view that on the basis of how a lot of marriages are entered into these days, that is not necessarily true and that every case has to be treated according to its own merits.
In his very illuminating work; Contemporary Family Law of Lesotho 1992 Edition, in discussing the current problems that are attached to the requirement of bohali especially insofar as
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contemporary women are concerned, the learned W.C.M. Maqutu J. has this to say at p 110;
".. .All along the parents of their men have been promising to go and negotiate a marriage when they have the means. Then all of a sudden the men die in the mines or die in the army. If there is a great deal of money which is being paid as compensation for the death of the deceased, the parents of the men sometimes say the women are not married and want to lay their hands on the money. There have been cases where the parents of the man at first recognize the women as wives of the deceased, but when the women refuse to share compensation money with them, then they allege there were never any marriages between their sons and the women."
It is my view that such is the position in the present matter for the reasons that follow immediately. From the pleadings, it is unquestionable that for all intents and purposes, 1st respondent and the Makaka family regarded her as the wife of the deceased. Although 1st respondent denies contents of paragraph 10 of applicant's founding affidavit insofar as having send Mohlakoana to applicant's father to inform him that his daughter was at their house and that the had slaughtered a sheep subsequent to his accepting this, he does not deny the averments contained in paragraph 11 to wit;
"I lived in harmony in the family accepted by all as Lepekola's wife up until the time of death when after informing 1st Respondent
that Lepekola was very ill 1st Respondent came to our house on a visit. This was on the 26th August 2007”
1st respondent reacted as follows to these averments;
"Save to state that in law the Applicant was never the deceased's wife, I admit the rest of the contents thereof. "
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It is my further view that 1st respondent is only challenging the legality of the marriage and that most of the disputed facts do not negate the fact that as she averred, applicant was for all intents and purposes accepted and held out by 1st respondent and the family as the wife of the deceased Lepekola. Thus, the dispute if more on the position of the law than it really is on the facts.
This brings me to the issue of Annexure "MMl". This a letter dated the 27th July 2006. Unfortunately this document has not been translated for the benefit of the Court, but since Counsel for respondents did not take this issue up I will waste no time deliberating on it save to state that counsel is expected to translate documents which are not wrtieen in English for the benefit of the Court.
The letter is headed; Litumellano tsa Lenyalo simply translated as 'Marriage Agreement'. In brief summary, the contents therein
constitute an agreement between applicant's father and 1st respondent that the deceased and applicant should marry. The document bears three signatures from the side of applicant's family and three from the side of 1st respondent's family. It makes no mention of bohali or negotiations thereof.
This document is challenged by 1st respondent at paragraphs 8 and 9 of his answering affidavit as follows:-
"It is apposite to mention at this juncture that on the 31st August 2007, the Applicant's father arrived at the deceased's home and found me with some members of the MAKAKA family and made me sign annexure "MM" which was already written. Since I was still in a state of shock because of my younger brother's untimely death, I did not even notice then that the said annexure had apparently been written on the 27th July 2006.
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Furthermore, I wish to bring to the attention of this Honourable Court the fact that when annexure "MM" was brought to me for signature, some of the signatories thereto, namely LYDIA MAPHOTHOANE, TSOOANA MAPOTHOANE AND MOTHETHI MAKAKA were not even
present I then personally took the said annexure "MM" to the deceased's chief on the same day that I signed same, namely the 31st August."
The document bears the stamp of the chief which although faint, is dated August 2007. Two things surprise me with regard to 1st respondent's averments insofar as this annexure is concerned to wit, while he avers that he signed the document whilst still in shock as a result of his younger brother's death, he does not explain how Mothethi Makaka's signature whom he avers was absent, came to be on the document. Nor does he explain to this Court how Mamakaka Makaka came to sign it yet he alleges he was only made to sign on that day.
Secondly, I do not understand how or why under such circumstances, and when 1st respondent and the Makaka family never accepted applicant as their daughter in law, he nonetheless went ahead and took it to the chief of the deceased. He does not even explain his reasons for so doing. Within this scenario, it is my opinion that the document was indeed prepared and signed on the 27th July 2006 evincing the intention of the two families that their children should marry and that all that applicant's father did, was to bring it to 1st respondent after the death of the deceased.
I also find that though its authenticity is disputed, this does not constitute a genuine dispute of fact in light of the fact that 1st respondent does not deny that applicant and the deceased lived as husband and wife and that before he fell ill, there were talks
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regarding bohali. I therefore do not think that against this backdrop I should adopt the position that has been stated in the celebrated case of Plascon-Evans Paints Ltd v Van Riebeeck (Pty) Ltd 1984 (3) SA 623 (A) at 634-35.
In addition, this my opinion, is buttressed by 1st respondent's own response to some of the averments made by applicant's father in his supporting affidavit. The latter averred as follows especially at paragraph 6, 7 and 8 respectively:-
"In January 2007, I took the step of going to Ha Ramapepe to the house of Makoetla Makaka. There I expressed my amazement at this quietness in respect of completing the marriage agreement he initiated in July the previous year between his brother and my daughter. He agreed that bohali shall be paid and revealed that Lepekola has promised to facilitate such payment during April of the same year. He promised that he would, together with some other members of his family visit my home in April for payment of bohali
During the 1st week of May 2007 I received a message from Makoetla Makaka that my son in law Lepekola had taken ill and could not
fulfill his promise of paying bohali as a result.
In august I received another message from Makoetla delivered personally to me that my son in law was now seriously ill and was
hospitalized in Maseru."
1st respondent answered the above averments as follows:-
"Ad paragraphs 6, 7 and 8
Save to say that I told the Applicant's father that the deceased would be responsible for everything, I nonetheless do admit having
informed the Applicant's father as aforesaid. I have nonetheless been advised by my Counsel of record herein and verily believe same to be true that the Applicant's father indeed confirms that neither was there any agreement as to the amount of bohali to be paid and indeed nothing was paid until the
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deceased passed away. I nonetheless deny that the deceased was his son-in-law. “
It is clear from the above facts that there was always a mutual understanding between the two families that their children are married with the only remaining aspect being negotiations on bohali and payment thereof. The same averments further reveal that the issue of bohali was simply overtaken by events in that the deceased took ill around the time the negotiations were supposed to have taken place and sadly, he died before this could happen.
At this juncture I wish to yet again echo the sentiments expressed by the learned Maqutu J (Supra) that in this era of marriages by elopement inter alia, which usually precedes the fulfillment of the three requirements of a valid customary marriage, it would not be prudent for the Courts to punish the parents of the girl, and the girls to be punished for the failure of the groom's family to go ahead with the bohali negotiations as soon as possible despite their having accepted her as their daughter in law.
It is indeed sad that as the learned Judge states, usually the union will have lasted for a very long time, with consequences including
children being born thereof, the girl losing her innocence and the chance of ever getting married again, investing in the marriage in whatever manner, carrying out all the wifely duties including nursing the husband during times of illness such as happened in casu, etc. Yet despite all these, after the son has passed away, the parents of the man come up and want to challenge the validity of the marriage on the basis of non-payment of bohali when they are the ones who bear the responsibility to negotiate and pay same. I
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also do not think that the Courts should sanction such an unfair practice.
This the Judge aptly captures as follows at p 110 (supra).-
"If the girl's parents after waiting five years find that the daughter during that time has give birth to children, and still all they have is a promise from the man's parents that they are coming to negotiate a marriage, should they be seen as indifferent? If their daughter and this young man are living peacefully and are building a family, they are entitled to wish them well and hope that a marriage will eventually be negotiated. Should the girl's parents take her away and be saddled with the maintenance for the children? If the girl's parents believe it is indecent to go begging for or even suing for cattle as if all they are interested in is cattle not their daughter's welfare and happiness, can they be seen as irresponsible?"
He further adds:-
"If then women are not being sold, then failure to agree on the amount of bohali should not be deemed to have been an impediment to marriage.”
Indeed, it is no longer always possible and/or practical for the requirements of a Sesotho marriage as provided for under Section 34 of the Laws of Lerotholi to be complied with before a woman can acquire the status of a wife. Further, even the wording of the section belies the popular belief that the satisfaction of the provisions thereof is conclusive proof of a valid customary union to the exclusion of everything else. To illustrate this point further, I wish to incorporate the words of his Lordship, the learned Cotran C.J. (as he then was) in the case of Ramaisa v Mphulenyane 1977 LLR 138 where he had this to say:-
"S.34 of the Laws of Lerotholi is not a comprehensive statement of all the Sotho customary law of marriage. As regard the consideration of when a customary marriage is completed the words "deemed to be completed" appearing
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in that section mean only prima facie completed. The words "agreement"- as to the amount of bohali, and payment thereof, should not be read in the abstract nor in isolation of other terms express or implied, as
to the true intention of the parties and their parents at the time, this latter to be ascertained after examination of all the evidence and the surrounding circumstances. Where the parties live with each other as husband and wife, wherever this takes place and however briefly, the prima facie evidence of the marriage conclusive (sic) evidence of such completion and is effective retrospectively form the date of the agreement" (emphasis mine)
I have already stated that I accept the applicant's version as confirmed by 1st respondent that she was accepted as the wife of the deceased and that the two families had agreed on the marriage as further illustrated by annexure "MM" which I also accept for reasons already shown above. In my opinion, these are examples of the other terms that are referred to by the learned Chief Justice as quoted above and ought to be taken into consideration over and above the requirements of Section 34 of the Laws of Lerotholi which at any rate has been found inconclusive. See also the comments of the Court in the case of Tseli Moeti v Tanki Lefalatsa & Another LLR 1991-2001 p511 at p 513 G and p 514 D-H.
I however hasten to add that I should not in any manner be understood to be saying that this approach is cast in stone. This is because, more often than not, there are cases where a marriage will be successfully challenged depending on its own particular circumstances including but not limited to, where a husband leaves his legal wife and children to live in adultery with another woman, to the disadvantage of his family, only for that other
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woman to come to Court and claim to be the legal wife when in reality she is not, etc.
This brings to the issue of who has the right to bury the deceased. In this regard, Mr. Nathane made the submission that it is the heir who enjoys such right and that in this case it is the minor child of the deceased whom he begot with his first wife who predeceased him. In turn, Mrs Thabane made the counter-submission that since the heir is still a minor it is applicant who has such right as his legal guardian. My perusal of some of the decided cases in this regard found that however helpful they maybe due to the fact that the Lesotho's dual legal system is in itself fraught with conflicts and grey areas the correct position is not very clear.
For instance, in some of the cases, the Courts have held that the heir's wishes have to take precedence over those of the widow and that the latter cannot have the right to bury the deceased where she pleases. This is in the case where the applicable system is the customary law. Thus in the case of Apaphia Mabona v Khiba Mabona 1985-90 LLR 80 quoted to this Court, his Lordship Molai J held that:-
"The widow's wishes prevail where she is the heiress and not where the deceased has died leaving an heir. It is trite law that in Lesotho the eldest son of a deceased person is his heir.”
However, according to his Lordship Maqutu J in the case of M. Mafereka v T. Mafereka & 2 Others 1991-1996 445 quoted to this Court, it is preferable that burial is done in consultation of everyone concerned.
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Further, it should also be noted that in Mabona's case (supra), the
dispute over who had the right and/or duty to bury was between the widow and the heir. In casu, the dispute is between the widow and the brother of the deceased, 1st respondent and his sister-in-law who is the wife of another brother of the deceased. The dispute is with regard to the place where the deceased allegedly expressed he wished to be buried. It is therefore my view that this case is distinguishable from the Mabona case in that the dispute is not about the duty to bury but the place of burial. Aside from this issue, the family had all along been working in consultation and in accordance with the Sesotho custom as has been stated to be the preferred way by Maqutu J in the Mafereka case (supra).
As far as this issue of the place of burial is concerned applicant at paragraphs 12.2, 12.3, and 12.5 of her founding affidavit
respectively, makes the following assertions:-
"During preparatory talks 1st respondent's view supported (sic) by his wife and by 2nd respondent was that the deceased Lepekola be buried at their home of origin ha Ramapepe in the Leribe district.
I held a differing view that deceased be buried in Maseru since he and I have a house at Lithabaneng and further that it is deceased
expressed wish that he be buried at Lithabaneng.
As the disagreement brewed 1st Respondent drew in the minor child Maqalike and suggested that it was he who had the final say over the matter and not me. According to 1st Respondent the young child had informed the family that his late father Lepekola had indicated that he wished to be buried at Ha Ramapepe. This is a fabrication of the real truth. Deceased could never have expressed two differing wishes to his son and to me his wife over the same issue. “
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In turn, 1st respondent reacted as follows to these averments in his answering affidavit especially at paragraphs 14 (b) and 15 (b) thereof:-
"Furthermore, save to say that it has always been the intention of the MAKAKA family to bury the deceased at Ha Ramapepe, I deny that the deceased ever expressed the wish to the Applicant or anybody for that matter, that he should be buried at Lithabaneng. In fact, even before the deceased cohabited with the Applicant herein, we were very close as brothers and he never expressed such wish to me.
I also wish to inform this Honourable Court that when the deceased' son told us about the wishes expressed by the deceased, the Applicant was present and brushed aside this by saying that the deceased must have been joking. This is not something I am fabricating as the applicant would have this Honourable Court believe."
In reply to these averments, applicant states as follows:-
"1st Respondent is not in a position to deny utterances made by deceased to me or anyone for that matter. Deceased started off by living in rented flats at Lithabaneng. At that time he could not have expressed any wish as to his burial. I reiterate that deceased did express a wish to be buried at Lithabaneng to me, and 1st Respondent was not present when this happened. I am not in a position to know utterances ever made to anyone including 1st Respondent by the deceased. However 1st Respondent does not allege that deceased made an express with to him to be buried at Ha-Ramapepe. "
Indeed, aside from telling this Court that they as the Makaka family always had the intention to bury the deceased at ha Ramapepe and that deceased never expressed to him the wish to be buried at Lithabaneng, 1st respondent does not categorically state that the deceased ever expressed his wish to be buried at ha Ramapepe to him. His is therefore a bare denial.
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He goes further to deny utterances that were allegedly made to applicant in his absence without giving the basis for this, yet he acknowledges that since their union till the time of his death, deceased lived with applicant as husband and wife save of course to challenge the legality of the union before this Court. He does however add that that the minor son of the deceased Maqalike, stated that his father did express his wishes to him to be buried at Ha Ramapepe.
Under these circumstances, I have no reason not to accept applicant's version as the correct one as well as because of the fact that up until the time of his death, deceased lived with her with the latter nursing him to the end as part of his wifely duties. In addition, I find it hard to believe that the deceased would have expressed his wish with regard to where he intended to be buried to such a young child despite the fact that he is his heir. Further, it is not denied that deceased had since built himself a house at Lithabaneng and it is hardly surprising that he would wish to be buried thereat. At any rate, I have said that 1st respondent is not saying that the deceased told him specifically that he wishes to be buried at ha Ramapepe.
Furthermore, while I am cognizant of the fact that applicant's assertions are disputed, I am of the view that when taken in conjunction with all the surrounding circumstances of this case, the dispute is not of so material a nature that it cannot be resolved on affidavit. This is more so in light of the fact that I have already found that applicant is the lawful wife of the deceased for reasons already stated above. She is as such the legal guardian of the minor child Maqalike. I accordingly find that applicant has made
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out her case insofar as it relates to the deceased's wish regarding the place where he should be buried.
I now turn to deal with the issue regarding applicant's prayer (c) in the notice of motion to wit; that 1st and 2nd respondents be ordered to vacate applicant's house at Lithabaneng and leave for their own places of residence pending finalization of this matter.
In this regard Mr. Nathane argued that applicant erroneously sought this prayer against the 1st and 2nd respondents for the reason that nowhere does she state in her papers that they personally ever insulted her. He made the submission that this prayer is misconceived
and not supportable in law. Mrs Thabane's reply was to the effect that 1st respondent as the head of the family was present when the incident occurred resulting in applicant having to flee as a result of the hostility of the family. She added that it was never
applicant's averments that she was chased out by anyone but that she fled as a result of the hostility and insults from some members of the family.
To this end, applicant averred in parts as follows in her founding affidavit i.e. at paragraphs of 12.4 and 13 respectively:-
"The disagreement led to an impasse resulting in souring of relations between 1st Respondent and myself. Other members of the Makaka family then started hurling insults at me which included calling me "letekatse' threatening me with expulsion from our house. Consequently I had to flee from my home and seek refuge from a neighbour's house because fearing (sic) for my life.
Having fled from my own house, I live in a neighbour's house and my husband's corpse remains unburied and is likely to remain so
indefinitely if the Honourable Court does not intervene. I suffer prejudice of being denied the
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freedom of living in my house which I done (sic) since 2006."
Indeed it is not applicant's case that 1st respondent and 2nd respondent uttered the insults and threatened to expel her. However, it is not denied that at this time, applicant and the entire family were at loggerheads and that this took place in her and deceased's house necessitating that she flees obviously leaving all of them including 1st and 2nd respondent thereat. All that she is praying for is that they be ordered to leave and restore to applicant her previous undisturbed enjoyment of her house.
Although there is no unequivocal statement that these two respondents did the alleged acts, it is my opinion that the whole family was acting in concert and the fact that they, especially 1st respondent, never intervened but remained thereat is proof that they aligned themselves with the sentiments of the other members of the Makaka family. At any rate, they are not disputing that at the time this application was instituted they were staying there. As such, I find that this prayer has been properly sought against them, more so when 1st respondent is undisputedly the head of the family.
Lastly on the issue of urgency, it was argued on behalf of respondents that applicant is the cause of the delay of the burial of the deceased for the reason that in her own words she stated that the disagreement regarding the place of the burial emerged as far back as the 27th August 2007.
Per averments in her founding affidavit, applicant stated that since the passing away of the deceased, she and 1st respondent had been jointly making preparations for his burial until the deadlock
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regarding the place of burial that led to her eventually fleeing the house. Further, that it was while she was still at the neighbour's house that she learned that the family had decided that they were going to bury the deceased on the 22nd September 2007. She approached this Court on the 19th September 2007 whereby she was granted a temporary interdict on the 20th September 2007.
In my opinion, the urgency was brought about by the fact that a decision to bury the deceased was made without the involvement of applicant and not because the deceased passed away on the 27th August 2007 from when applicant and 1st respondent started amicable preparations to bury the deceased's body until the unfortunate impasse regarding the venue of the burial. In my opinion, the one sided decision regarding the burial brought about the urgency albeit with the rider that I notice that applicant does not state when she came to know of this decision.
On the basis of the above findings, I am not going to waste any further time on the issue of whether or not applicant and the deceased jointly built the house at Lithabaneng for it has become immaterial in light of the fact that I have already found that she was lawfully married despite there being no agreement and/or
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payment of bohali. As such, the house belongs to her as the deceased's widow.
For these reasons, I find in favour of the applicant and accordingly grant the application as prayed for and confirm the rule nisi with costs.
N. MAJARA
JUDGE
For applicant : Mrs. K. Thabane
For 1st and 2nd respondents: Mr. H. Nathane
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