CIV/APN/453/2006
IN THE HIGH COURT OF LESOTHO
In the matter between
HLEOHENG COMMUNITY COUNCIL Applicant
And
'MAMPOLOKO PHONYOKOANE 1st Respondent
NYEOE PHONYOKOANE 2nd Respondent
PHONYOKOANE PHONYOKOANE 3rd Respondent
MOTLALEPULA PHONYOKOANE 4th Respondent
Ruling on Points in Limine
Delivered by the Hon, Mrs Justice A. M. Hlajoane on 30th April, 2007.
This is an Application for the exhumation of the remains of the body of one Tlala Phonyokoane who had been buried in a residential site contrary to Public Health Order 12 of 1970. The deceased was buried on or around 29th September, 2006 and the Application filed on 26th October, 2006.
Second Respondent in his opposing affidavit has raised some points in limine. The first one is that the matter is not urgent. The burial was on the 29th September, 2006 and the Application only moved ex parte on the 30th October, 2006 and Rule only granted on 13th November, 2006.
Relying on Rule 8(8) of the High Court Rules, the Respondent is saying that, in terms of the above Rule Applicant needed only to give 7 days notice of the Application. That if the Application had been launched then it would have been heard well before the 23rd October, 2006.
In support of his argument he had cited the case of Khaketla v Malahleha and Others 1990-94 LAC 275. In that case the Court of Appeal in dealing with urgent Applications without notice to the other party held that, "the application should not have been granted on an urgent basis because at the time it was made, there was no longer any urgency involved in the matter since the respondents had waited for sometime prior to the launch of the application."
In casu, we learn from Applicant's founding affidavit that they learned well before the burial that a grave had already been duck in the residential area, but waited till after the burial. They waited for more than three weeks even thereafter. Applicant is only crying out urgency when in fact he did not himself treat the matter as urgent. Applicant
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served the papers on the Respondents before the Application was moved, and this could have been a sign that he too realized that in fact there was no urgency.
Absence of a Permit
The Respondents here are saying that the Applicant has approached Court for exhumation in the absence of a permit from the Ministry of Health. It is a condition precedent under the Public Health Order 12 of 1970 Section 74 that a permit has to be obtained first before any remains could be exhumed. Which means therefore that an Applicant before applying for such exhumation has to obtain a permit and show it to Court. The whole purpose of first obtaining a permit is to make sure that it would not be a health hazard to exhume a body.
Obtaining a permit is not in itself a passport to the granting of an order for exhumation. The Court would still in its exercise of a judicial discretion decide on whether or not it is necessary to grant the exhumation. The Court can never be influenced by a permit from the Ministry of Health. The Court may grant an order for exhumation but if the permit show that exhuming the body is going to be a health hazard no one will be held in contempt. This goes to show that the court can never be influenced by anything or anybody, all being normal.
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Signature on the Notice of Motion
It would seem that there has been some communication break down here on the part of the Applicant. Respondents are not challenging the address at which service will be done. What they are challenging is the signature of the person or body that signed the notice of motion. District Council Leribe has signed yet he is not a party to the proceedings, but Hleoheng community Council.
If it was the person who deposed to the founding affidavit as Secretary of Applicant, that must have been shown on the papers. The papers show that District Council Leribe signed C/O District Council Maseru. This is not permissible.
Power to Designate Cemeteries
Respondents are saying that Applicant has no power to designate burial grounds but Minister. Applicant on the other hand is saying that the Minister only has power to designate proper places to be allocated as burial places. That the Minister will only provide guidelines to authorities with power to allocate burial grounds. According to the Applicant the Minister does not allocate burial grounds.
Counsel for Respondents submitted that in fact the power to designate burial grounds is vested in the Minister. He differs from the view taken
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by the Applicant. That as defined by the Public Health Order 12 of 1970, the Minister designates cemetery by issuing a gazette.
Section 72 of Public Health Order 12 of 1970 empowers the Minister to select and declare within Lesotho and to notify in the gazette proper places as cemeteries. Section 73 of that Order also deemed authorized such cemeteries that were already existing at the time of coming into effect of Order 12 of 1970.
Again Section 5 (1) of Local Government Act 6 of 1997 stipulates that a Local Authority under the Act is charged with regulation, control and administration of such matters which among others include burial grounds. But Subsection (2) of section 5 say that it is the Community Council which shall perform those subject and functions as specified in the second schedule. The second schedule under 7 say Burial grounds without specifying what of the burial grounds. I am saying that because under the same schedule under 2 it has specifically said land/site allocation. Under Water Supply in villages has shown maintenance. But under Burial grounds has not said allocation, but is just silent, silent because such allocation is the responsibility of Minister of Health. The Local Authority can do the administrative part by identifying the area, but authorization to come from the Minister.
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The decision of this Court on the points in limine raised is that, the matter was not urgent and because there is no permit in terms of Public Health Order 12 of 1970 section 74 Respondents have been successful on those points in limine raised. Again the wrong person has signed the Notice of Motion who is not a party to the Proceedings, thus rendering the Notice of Motion a nullity.
On the question of who has power to designate cemeteries, the law is very clear, it is the Minister. A Community Council can identify the place at village and district level but the ultimate authorization has to be done by the Minister and published in a gazette.
For the reasons stated above the rule is discharged with costs.
M. HLA JOANE
JUDGE
For Applicant: Mr Ntoko
For Respondents: Mr Teele
