CIV/APN/221/86
IN THE HIGH COURT OF LESOTHO
In the application of :
EZEKIEL MOPELI NTABE Applicant
v
MOAHLOLI NTABE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 29th day of May, 1987.
The applicant herein has filed with the Registrar of the High Court a notice of motion in which he moves the court for an order framed in the following terms:
Directing Respondent to remove the torn-stone he has erected for Jeanette 'Mamopeli Ntabe from the Ntabe grave site.
Restraining Respondent from erecting a torn-stone for Jeanette 'Mamopeli Ntabe as Jeanette 'Mamopeli Ntabe already has a torn-stone on her grave.
Directing Respondent to pay the costs of this application."
The application is opposed and the parties have duly filed their affidavits.
The facts that emerge from the affidavits are that Masilonyant Ntabe and Jeanette 'Mamopeli Ntabe were husband and wife. They had altogether seven (7) children of whom the applicant and the Respondent's father are the first and the second sons, respectively.
It appears that Masilonyane Ntabe pre-deceased Jeanette 'Mamopoli Ntabe who passed away in November, 1978. Following her death, the Respondent had an idea to erect a torn-stone on the grave of Jeanette 'Mamopeli Ntabe. He chose the 24th December, 1984 as the date on which the- unveiling ceremony would take place.
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The applicant himself, as the first son of Jeanette 'Mamopeli and Masilonyane Ntabe, was also contemplating to erect a torn-stone on the grave. He did not, therefore, oppose the Respondent's idea. He, however, advised him that, according to custom, the date on which the torn-stone was to be unveiled could not be decided unilaterally by the Respondent. It had to be decided in consultation with not only the applicant as the heir of the deceased but, other members of the family as well so as to enable their participation.
The Respondent declined the advice and told the applicant that he would go ahead and unveil the torn-stone on the grave on the date he had already chosen. However, with the assistance of the local chief and the police, the applicant succeeded to stop the Respondent from erecting and unveiling the torn-stone on 24th December, 1984. According to the applicant the Respondent then told him that he was abandoning the idea of erecting and unveiling a torn-stone on the grave of Jeanette 'Mamopeli Ntabe and he could, therefore, be counted out of the project.
The applicant, in consultation with his younger brothers, Joel, Lebamang and Lephuruhloana, then met and agreed that they would go ahead to erect and unveil a tom-stone on the grave of their late mother Jeanette 'Mamopeli Ntabe during the Easter of 1986.
On 24th September, 1985, the applicant accordingly placed an order with the Homes Trust in Maseru for Jeanette 'Mamopeli Ntabe's tom-stone which was delivered on 21st December, 1985 in readiness for Easter 1986. However, on 31st December 1985 the applicant noticed, to his greatest surpirse, that the Respondent had already erected a tom-stone on the grave of Jeanette 'Mamopeli .Ntabe. He immediately approached the High Court and instituted CIV/APN/9/86 in which he sought, against the Respondent, an order directing him to remove his tom-stone from the grave of the late Jeanette 'Mamopli Ntabe, restraining him from erecting a tom-stone on the grave and directing him to pay the costs of the application. The Respondent did not oppose the application and on 17th February 1986, the order was accordingly granted as prayed.
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In compliance with the order granted under CIV/APN/9/86 the Respondent removed the tom-stone from the grave of Jeanette 'Mamopeli Ntabe. However, when on 29th March, 1986 he went to unveil the tom-stone he had erected on the grave, the applicant found that the Respondent had, on 22nd March, 1986 unveiled the tom-stone he himself had bought for the late Jeanette 'Mamopeli Ntabe and erected about seven (7) paces away from the grave. According to the Respondent he erected the tom-stone at the place he had done on the order of his chief who did not,however, file any affidavit to that effect. It is the applicant's contention that the presence of the tom-stone erected by the Respondent for Jeanette 'Mamopeli Ntabe in the same grave yard has the effect of creating confusion to future generations who will find it difficult to know the exact spot where their grandmother has been buried. Wherefor he has approached this court for an order as afore said.
There can be no doubt from the affidavits that the Respondent has erected and unveiled a tom-stone for the late Jeanette 'Mamopeli Ntabe without the consent or agreement of the applicant who is her customary heir. There are numerous decisions that it is the heir who has a final say about the burial of the deceased - see Tseola and Another v. Maqutu and Another 1976(2) S.A. 418; Mathibeli v. Chabalala CIV/APN/76/85; and Mabona v. Mabona CIV/APN/280/86. Although the decisions were concerned with the burial of a deceased, I find no good reason why the same principle should not be applied where a torn stone is to be erected and unveiled on the grave of the deceased. Consequently I come to the conclusion that the Respondent was wrong in erecting and unveiling the tom-stone for Jeanette 'Mamopeli Ntabe without the consent of the applicant, her customary heir.
It has been argued on his behalf that it was on the instructions of his chief that Respondent erected the tom-stone he had bought for Jeanette 'Mamopeli Ntabe not on her grave but some distance away from it. I have already indicated that no affidavit has been filed by the chief in this application. The Respondent's averment that the chief has ordered him to erect the tom-stone is, therefore, hearsay and of no evidential value. There can be no doubt from the affidavits that
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Jeanette 'Mamopeli Ntabe has now two torn-stones in the same grave yard. One erected by the applicant on the grave itself and the other by the Respondent only a short distance away from the grave. I am not aware that in Sesotho custom a tom-stbhe can be erected on a vacant space in the grave yard. To my knowledge it is always erected on the grave itself.
I am convinced that the Respondent's action of erecting his torn-stone only a short distance away from the grave of Jeanette 'Mamdpeli Ntabe is nothing but an attempt to circumvent the court order granted against him under CIV/APN/9.786. This should not be allowed. In my view there is a lot of sense in the applicant's contention that the two torn-stones for the late Jeanette 'Mamopeli Ntabe in the same grave yard have the effect of creating confusion to future generations and the Respondent must remove the torn-stone he has erected on a vacant space in the grave yard if this confusion were to be avoided...
In the circumstances,I have no alternative but to come to the conclusion that this application ought to succeed and it is accordingly granted in terms of the prayers in the notice of motion..
B.K. MOLAI.
JUDGE
29th May, 1987.
For Applicant : Mr. Maqutu
For Respondent : Mr. Monyako.