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:

1. Directing
   Respondent to remove the torn-stone he has erected for Jeanette
   'Mamopeli Ntabe from the Ntabe grave site.

   
   

2. Restraining
   Respondent from erecting a torn-stone for Jeanette 'Mamopeli Ntabe
   as Jeanette 'Mamopeli Ntabe already has a torn-stone
   on her grave.

   
   

3. 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.

2

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.

3

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

4

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.