CIV/APN/178/87
IN THE HIGH COURT OF LESOTHO
In the Application of :
SEREMA LETHUNYA 1st Applicant
'MASEREMA LETHUNYA 2nd Applicant
V
MATLERE THEJANE . 1st Respondent
LESOTHO FUNERAL SERVICES 2nd Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. Lehohla on the 5th day of June. 1.987.
Considerations which I have taken into account in an attempt to resolve the issue before me are that it is common cause that parties involved in the dispute are according to customary law people who represent the families of a detainee Lesesa Lethunye and that of his deceased wife 'Malapane Lethunya.
I have resolved on papers before me that up to the time she died, 'Malapane was still legally married by custom to her husband now in detention in the Central Prison following his wife's death and that of one Teboho Kama.
Within the brief period allotted me to peruse the papers, hear arguments and deliberate on the matter a point of some vital importance has arisen, namely that after assaults meted against her by her husband the deceased "ngalaed" to her parental home and found refuge in the home of her uncle the said Teboho Koma. Mr. Pheko for 1st Respondent argued strongly that having "ngalaed" thus it behoved her husband's family to meet with her family in order to
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resolve the dispute between her husband and herself. On the authorities cited and relied on by Respondent's attorney it was argued that even though the deceased had died at the hands of her husband the husband's family is obliged to resolve the matter that caused the deceased to flee before 1st Respondent's family can release their daughter dead or alive to her in-laws' family.
It was pointed out that from the time of deceased's death on 22nd May 1987 to date i.e. 5-6-87 they did not opt to do so therefore it was argued that 1st Respondent was on grounds of public policy entitled to bury his daughter.
It is common cause that Lesesa has not submitted any affidavit before this Court nor is there any indication by any of the deponents to affidavits before Court that he or she was authorised by Lesesa who is heir to his late wife to have them represent him in this Court. But dealing as we are here with a matter of custom I have resolved to take the view that in as much as a matter of customary law marriage denotes not merely a union between the parties to that marriage but also their respective parents' families' interest and right in the marriage, there does not seem to be any grave danger in assuming that Lesesa's elder brother as head of the Lethunya family as he avers albeit belatedly in his replying affidavit is a true and proper representative of Lesesa before this Court. I also take the view that para 2 of Lepoko Lethunya to the extent that he avers in it that at a first meeting a definite conclusion was arrived at namely that deceased would return to her maiden-home, to some significant degree tends to tip the scales in favour of the view that the point much strained at by Mr. Pheko that deceased had not been released by her maiden parents after she had "ngalaed" was resolved at that meeting.
Understandably, from the revelations of the unhappy state of the marriage 'between deceased and her
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husband ending in her death i.n the manner described the deceased's maiden family have undergone a particularly keen sense of grievance and' indignation against the Lethunya family. I feel that good morality and public policy would not favour what is read into Poulter's
exposition that failing any indication to the contrary, deceased's.body should not be buried until the question of her flight has been resolved.
The argument that the body should remain in stats while families of deceased and her husband are engaged in discussions geared at
resolving the problems which led to deceased's betaking herself to her maiden home would not only be an abuse of that right, if any, but a living censure on the modern practice of keeping dead bodies in mortuaries for a long time before burial. Traditionally this could not happen because of lack of permafrosts afforded by mortuary facilities for preservation of dead bodies. Indeed a dead body would commonly be buried within three days of the death at the longest. It is thus inconceivable that in such circumstances the Basotho would hold the question of burial of the deceased in abeyance pending finalisation of the discussions which might protract beyond seven days or more; or even be interrupted by postponements to later dates spanning sometimes six months as the case might be.
This would be contrary to the well known Basotho saying that death has (read brooks) no indabas or controversies - "lefu ha le na litaba." This is an expression invoked time and again at burials in an attempt to avoid disputations that might prevent the burial.
The practice of the Basotho to bury their dead within a short time of the death is a wholesome one one indeed a vestige of antiquity. Flouting it by upholding this objection would not only do violence to the wise saw that "we should follow the footsteps of our fathers" which has an equivalent in other languages,
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namely - Sequamur vestigia patram notrorum - but would in the circumstances of this ease lead to subversion of the rule that custom can neither arise from, nor be taken away by injury. See Lofft. 340 or Whartons' Epitome of the Law at 173.
I therefore have gome to the conclusion that the proper order to make in the circumstances is that respondents release to applicants the deceased's body for burial, as prayed but that each party bear its own cost.
ACTING
JUDGE
5th June, 1987.
For Applicants : Mr. Moiloa
For Respondent : Mr. Pheko.
