IN THE HIGH COURT OF LESOTHO

 

 

CIV/APN/11/2011

 

In the matter between:-                                                 

 

 

MAHOELETSE  MATELA                                              APPLICANT

 

AND

 

‘MAPOTLAKO MATELA                                                          1^ST RESPONDENT

LESOTHO FUNERAL SERVICES                                  2^ND RESPONDENT

TEBA LTD – BUTHA-BUTHE                                        3^RD RESPONDENT

 

 

JUDGMENT

 

 

Delivered by the Honourable Madam Justice M. Mahase

On the 28^TH JANUARY, 2011

 

Civil Procedure – Burial rights – Urgent application – Interdict – Essential elements – Dispute of fact – Locus standi in judicio

 

 

This is an application in which the applicant has approached this court on urgent basis.  He is asking this court to grant him the following orders:

 

1.   (a) That rules pertaining to modes and service of process shall be dispersed with on account of urgency hereof; 

 

(b) The first respondent shall not be restrained from interfering with the burial or the making of necessary preparations for the proper burial of the deceased, Phillip Lehlohonolo Matela in any manner whatsoever unless by due process of the law;

 

(c) The second respondent shall not be interdicted from unlawfully releasing the body of the deceased to the first respondent;

 

(d) Applicant shall not be declared to have burial rights to bury the deceased;

 

(e) First respondent shall not be interdicted from taking the body of the deceased pending finalization of this matter;

 

(f) An Order interdicting first respondent from holding herself out as the wife to Phillip Lehlohonolo Matela;

 

(g) First respondent shall not pay costs in the event of opposition;

 

(h) Further and or alternative relief.

 

2.   That prayers 1 (a), (b) and (c) operate with immediate effect as Interim Court Orders.

 

Reasons for having approached the Court in this way are spelt out on the certificate of urgency.  The application is opposed by the first respondent.  Respondents numbers 2 and 3 have not filed any notice of intention to oppose this application.  Facts which precipitated into the launching of this application are set out clearly in paragraph 4 of the applicant’s founding affidavit.

 

In a nutshell, applicant alleges that the first respondent is not lawfully married to the deceased herein and that as such, she (applicant) has no rights to bury the deceased.  He alleges that, in fact, the deceased’s mother one Mateboho Ramonate (born Relebakae Matela) gave birth to the deceased after she had returned from her marriage at the Ramonate family.  That means that applicant is the deceased’s maternal cousin.  Applicant is silent as to the period when this occurred, nor does he say how he had knowledge of same.

 

He only contents himself with saying that the above explains why the deceased has assumed his mother’s surname.  It is his allegation, which is unsupported that ever since when the deceased’s mother returned to her maiden home, she has been his sole responsibility.

 

That explains why he says that because of that, and due to the old age as well as a deaf-eared handicap of deceased’s mother, he (applicant) is the right and fit person in the Matela family structure to bury the deceased herein.

Applicant alleges further in paragraph 4.5 that sometime in 1989 the deceased eloped with the first respondent.  Following that elopement, the two families of the deceased and first respondent than entered into an agreement to the effect that the bohali be paid and that it shall be constituted by twenty head of cattle and that payment of same was “good-naturally” postponed to a future unnamed date; but with a rider that the marriage shall be complete upon final payment of the said bohali.

 

Applicant has not stated whether or not that was a written agreement.  He has neither annexed any documentary proof of such an agreement, nor has he been supported in this regard by anybody.

 

It is his further allegation that two children; namely Potlako and Ts’eliso Matela were born of the marriage union between deceased and the first respondent.  He has not disclosed the ages of these children to Court.  Applicant’s further alleges that even though such children were born of the deceased and the first respondent, there was still a lacuna as to the completion of the marriage agreement.

 

He says further that ultimately only six head of cattle were paid to the guardians of the first respondent following the meltdown of the marriage relationship between the deceased and first respondent.  Applicant has not filed any affidavit in support of this allegation, nor has he annexed to his papers any documentary proof of that agreement for payment of six herd of cattle he refers to.

 

He also has not indicated in any way as to what or which agreement was made with regard to the children born of the deceased and the first respondent.  It is his further allegation that following that deal to compensate first respondent’s guardians; first respondent then deserted the Matela family to date and went to stay in the R.S.A in the Natal province where she got married to an unnamed Zulu man.

 

All of the above are bare, unsupported allegations.  Applicant has also not been supported in his allegation by any of the people, or witnesses who might have witnessed or who were present when the six head of cattle were paid as compensation for the elopement he refers to in his papers.  In particular applicant makes mention of the name of one Simon as being the person at whose home the said compensation was made but he (Simon) has not filed any supporting affidavit in this regard.

 

It is worth noting that the applicant has not disclosed to this Court what became of the first respondent’s sons, Potlako and Ts’eliso Matela when their mother (1^st respondent) allegedly deserted the Matela family in 1999.  Neither has applicant disclosed to Court what the status of the said children in the Matela family is.

 

It is not the applicant’s case nor averment that the said two boys born of the union of the first respondent and the deceased are not the biological children of the deceased and the first respondent and as such they too have no right to bury their own father.

 

In the view of this Court, these two children, Potlako and Ts’eliso are the one’s, if they are of age, more entitled to take over the responsibility and the right to bury their own father than the applicant.

 

The applicant alleges that the first respondent took away with her, her two sons and that to all intents and purposes she is regarded as answerable to her maiden family of Malapane.  This is also a bare unsubstantiated allegation.  In fact, applicant is blowing not and cold on this issue.  He says first respondent took away her children to Malapane family in 1999, but now he refers to them as the matchers.

 

This is moreso regard being had to the fact that in his papers, the applicant has cited the first respondent and has also referred to the two above named children of the first respondent and the deceased as the Matela’s.  This allegation is untenable to say the least.  If indeed the applicant’s story is to be believed, why has he decided to refer to first respondent and her children as being the Matela’s? If indeed first respondent has since been lawfully married to another man, why then does applicant not indicate or use the surname of that Zulu man when he refers to the first respondent?  It is not alleged by the applicant that the first respondent, though now legally married to another man, has nonetheless decided to keep to or to retain the surname of Matela.  The first respondent has denied that she was not legally married to the applicant’s cousin; the deceased in this application.  She has equally denied that there was a lacuna as to the completion of her marriage to the deceased in question.

 

This now brings me to the points raised in limine herein.  Indeed, there are no members of the Matela family who have supported the applicant in any way.  All of the said Matela family members including the Principal Chief of Makhoakhoeng in the district of Butha-Buthe, Chief Tumane Matela, support the first respondent.

 

Tumane Matela has stated that he is in fact the head of the Matela family and this is a matter of common cause.  The fact whether or not he attended the Matela family meeting in which it was decided that first respondent, as the wife to the deceased herein should be the one to bury her husband, does not bestore on the applicant the right to bury the deceased, (his cousin).

 

It is a matter of common cause that the said Principal Chief of Makhoakhoeng has also been supported by his own mother; a very senior member in the Matela family, ‘Matumane Matela, and who in fact is the acting Chief of Makhoakhoeng currently.

 

In the circumstances of this case, it is the considered view of this Court that indeed, the applicant has dismally failed to establish any locus standi to bring this proceedings especially when not only the wife of but also the two sons of the first respondent and the deceased are all still alive.

 

In the circumstances of this case, and in the light of the fact, that none of the Matela family senior members have not supported him in anyway in this application, this point in limine raised by the first respondent should be and is upheld.

 

The next issue for determination by this Court is the existence or not of a dispute of fact.  Without much ado, this Court is convinced and has been successfully persuaded to agree and or make a decision that indeed there is a dispute of fact and that as such, this point in limine raised by the first respondent has to be and is upheld.

 

The applicant has himself conceded in many respects that oral evidence be adduced before this Court in order for the Court to find were the truth lies.  Whatever that means, the crux of the matter is that once applicant calls for viva voce evidence to be let in an application of this nature; filed on urgent basis, this is an admission that indeed there is a dispute of fact.

 

Applicant should have foreseen the imminent dispute of facts impending therein.  He should then have brought this matter by way of action and not by way an urgent application.  Vide: Plascon –Evans Paints (TVL) Ltd. v. Van Riebeck Paints 1984 (3) 623 and authorities therein cited.

 

It is on the basis of the above that this Court has equally come to the conclusion that the applicant foresaw that there are disputes of fact but he nonetheless approached this Court as he did in total disregard of the principles of the law and also in total disregard with impunity of the Rules of this Court as well as in disregard of the numerous pronouncements of this Court and those of the Court of Appeal of this country.

 

This Court has accordingly come to the conclusion that the applicant’s application is without merit and has no basis.  Accordingly all the points raised in limine by and or on behalf of the first respondent are upheld and the application is dismissed with costs to the first respondent.

 

In conclusion it is noted that the applicant’s counsel has not filed any heads of argument.  This is unacceptable practice and I urge all counsel to always file heads of argument for the simple reason that such heads, among other things enable this Court to perform its duties efficiently and with ease as counsel are to provide well researched material to enable this Court to discharge its duties.  It is not the function of this Court to research for counsel.  This Court will carry out its own research if there be need for such, but not because counsel has not made any research in support of its argument.

 

 

M. Mahase

Judge

 

 

For Applicant           -       Adv. C.J. Lephuthing

For 1^st respondent   -       ADV. Mots’oari