Metso v Lekhema and Another (CIV/APN 6 of 2000) [2000] LSCA 17 (17 March 2000)

CIV/APN/6/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n :- M A N EO ' M E T SO A P P L I C A NT and M O T S E L I SI L E K H E MA M . K . M. B U R I AL S O C I E TY 1ST 2ND R E S P O N D E NT R E S P O N D E NT J U D G M E NT Delivered by the honourable M r s. Justice K. J. G u ni on the 17th day of M a r ch 2 0 00 T he deceased , ' M A L E P H A KA ' M A T E B O HO ' M E T SO died on 29/12/99. S he is survived by only o ne of her three children. T he surviving child is a girl n a m ed M O T S E L I SI L E K H E M A. All her children including this M O T S E L I SI L E K H E MA were married. M O T S E L I SI L E K H E M A 's marriage failed a nd she returned to her maternal h o me w h e re she lived with her m o t h er - the deceased till she died. B o th sons are late. T he second son's wife is also late. T he applicant herein is the wife of the first b om son and heir of the deceased. There h a ve been squabbles between this applicant and her mother-in-law, the deceased. T he lst respondent joined the quarrels on her mother's side. A c c o r d i ng to the applicant the 1st respondent w as in fact the instigator of such squabbles w h i ch existed b e t w e en this applicant and her mother-in-law. 1st respondent is alleged to have g o ne to the chief of the village w ho agreed with her, to expel the applicant from the deceased's h o me w h e re she h ad c o me to prepare for her burial. T he applicant after the chief and 1st respondent had expelled her, she approached this court to seek an order of the court to enforce her right to bury the deceased. T he R u le issued on 6th January 2 0 00 w as confirmed on 8th February 2 0 0 0. An indication w as m a de then that the reasons will follow. T h e se are the reasons. T he application is opposed by the deceased's daughter, M O T S E L I SI L E K H E M A. Although M O T S E L I SI L E K H E MA is unable to claim a superior right or any right at all for her to bury her mother, she opposes this application on the g r o u nd that there are others w ho h a ve a prior right to this applicant's. T h o se others h a ve not been joint and they do not wish to claim a ny right to bury the deceased. In recognition of the deceased's eldest son's right to be the heir of the deceased, 1st respondent denies that the applicant is the eldest daughter-in-law. 1st respondent asserts that there is an heir. T he deceased's eldest son had t wo wives according to the 1st respondent. There is a senior wife to this applicant. Furthermore that first wife has a son. It is this son by the first wife of the deceased's son T e b o h o, w ho is the deceased's heir according to Sesotho custom. Malitlhare A b r a h a ms v K h o j a ne A b r a h a ms a nd A n o t h er L LR 1991 - 1 9 96 Vol. 1 P a ge 1. T e b o ho , allegedly entered into customary law marriage with both his wives. For any marriage to be recognised as a customary law marriage there are s o me essentials w h i ch m u st be established. Firstly, there m u st be consent between the parties w ho intend to be married. Secondly, there must be consent of their parents or those people in Thirdly, there must be part or full p a y m e nt of bohali [ L A WS OF L E R O T H O L I, P A RT II Section 34 (4)]. T he applicant has attached to the Founding Affidavit a documentary proof [Annexure M M 1] of her customary law marriage to the deceased's eldest son T e b o h o. T he applicant is ' M A N EO M E T SO [ b om Tseka]. A n n e x u re M M1 s h o ws that Tseka and M e t so families agreed that their children w ho intended to be married h a ve the blessing of their families to do so. T he a g r e ed a m o u nt of "bohali" w as stipulated. A greater part of that bohali w as paid, leaving but a small outstanding balance. A c c o r d i ng to this applicant, s he a nd her late h u s b a nd lived together as h u s b a nd a nd w i fe for o v er ( 4 0) forty years. All the characteristics of the marriage by B a s o t ho c u s t om are f o u nd c o m p l e t ed in their marriage. It is therefore proper to be d e e m ed as a recognised S e s o t ho c u s t o m a ry m a r r i a g e. T h e re is also alleged c u s t o m a ry l aw marriage b e t w e en this applicant's late h u s b a nd a nd o ne Maphinithi M e t s o. In her Supporting Affidavit, M a p h i n i t hi c l a i ms to be the senior wife to the deceased's eldest s on T e b o h o. T h e re is a b oy b om of that couple. T he only child of the alleged marriage b e t w e en the deceased's s on T e b o ho a nd Maphinithi is called Phinithi M e t s o. T h is Phinithi M e t so is according to the respondent the heir a nd the p e r s on entitled according to S e s o t ho c u s t o m a ry l aw to d e t e r m i ne the place a nd t i me of the burial of the deceased. Z u ma vs Z u ma C I V / A P N / 2 8 3 / 88 (unreported). Phinithi has not applied to be joint to o p p o se this application. Therefore he is not seeking a ny court order to enforce a ny right s h o u ld he be f o u nd to h a ve any. E x a m i n a t i on of the evidence before the court s h o ws that a n u m b er of cattle w e re driven f r om the deceased's h o me to Maphinithi's family. T h e re is no clear a nd firm e v i d e n ce to s h ow this court for w h at p u r p o se w e re the said cattle w e re driven there. S o me witnesses claim to h a ve s e en four (4) h e rd of cattle d r i v en to Maphinithi's family h o m e. S o me testified to the effect that, t h o se cattle w e re for p a y m e nt of d a m a g es since M a p h i n i t hi w as a b d u c t ed by the d e c e a s e d 's son. A p p a r e n t ly Maphinithi's father w as so o f f e n d ed by that act of a b d u c t i on of his d a u g h t er that he refused to accept those cattle. He is reported as expressly withholding his c o n s e nt to the purported m a r r i a ge b e t w e en the d e c e a s e d 's s on a nd his daughter, M a p h i n i t h i. T h e re is another type of e v i d e n ce to the effect that the n u m b er of cattle seen driven by the s a me n a m ed m en f r om the d e c e a s e d 's village to Maphinithi's village, w as thirteen. A c c o r d i ng to this witness, those cattle w e re for "bohali". O ne of w h i ch w as slaughtered for "tlhabiso" c e r e m o n y. N o ne of these witnesses w ho testified w e re part of the delegation either f r om the b o y 's or girl's family. N o ne of these witnesses t o ok part either in the driving of the cattle or negotiations for their acceptance. All they claim to h a ve s e en is a herd of cattle being driven. On seeing those cattle, they then speculated a nd c a me to the conclusions they told this court: that those cattle w e re for the p a y m e nt of d a m a g es for abduction or that they w e re p a y m e nt for bohali. It is the finding of this court that the e v i d e n ce led so far to p r o ve that there w as a B a s o t ho c u s t o m a ry marriage b e t w e en M a p h i n i t hi a nd the d e c e a s e d 's eldest s o n, is so unreliable it cannot be accepted. In this circumstances it is the finding of this court that there w as no marriage b e t w e en T e b o ho - deceased's eldest s on a nd Maphinithi, that could be said to remotely c o m p ly with the requirements of the Sesotho customary law marriage. That being the case, Phinithi has correctly, in my view, stood aside because his m o t h er is not T e b o h o 's B a s o t ho customary l aw wife. T e b o h o 's wife has a right to succeed h im in the absence of his m a le adult issue. S he is the person with the right to determine, the place, date a nd time of the burial of the deceased. M a b o na v M a b o na C I V / A P N / 6 0 / 88 This application m u st succeed. It is therefore granted as prayed. There is no order as to costs. K. J. G U NI J U D GE 17th M a r ch 2000. For Applicant: M r. Fosa For 1st Respondent: Ms C h i m o m be