Tau v Tau and Another (CIV/APN 228 of 2000) [2000] LSCA 68 (28 June 2000)

1 C I V / A P N / 2 2 8 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: ' M A S U P I NG G E R A R D I NA T AU A P P L I C A NT and ' M A T H A B O T AU M K M M O R T U A RY 1ST 2ND R E S P O N D E NT R E S P O N D E NT For the Applicant : M r. K. N. Lesutu For the First Respondent: M r. K. T. K h a u oe J U D G M E NT Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 28th d ay of J u ne 2 0 00 This dispute is over the burial of o ne M A S U K U LU P A S C A L IS T A U. T he deceased w as said to h a ve died on the 3rd J u ne 2 0 0 0. It w as only on the 23rd J u ne 2 0 00 that the Applicant's C o u n s el m o v ed this C o u rt ex parte a nd obtained an interim interdict against the burial scheduled for the following day. T he Applicant said the deceased w as h er h u s b a n d. It transpired a nd i n d e ed it w as c o m m on cause that the deceased w as also m a r r i ed to the First R e s p o n d e n t. T h at is w hy the dispute c o n c e r n ed the declarations that the A p p l i c a nt be declared the only lawful wife of the deceased, that the A p p l i c a nt be declared the lawful heir to the estate of the deceased a nd that the First R e s p o n d e nt be o r d e r ed to bring b a ck to this Applicant a savings b o o k, passport, death certificate of the deceased a nd the m o r t u a ry d o c u m e nt to the Applicant. In addition that the First R e s p o n d e nt be ordered h a nd over the g un of the deceased to police before the funeral took place. A nd that fifthly the Applicant be allowed to b u ry the d e c e a s ed at the place a nd time of the Applicant's o wn choice. A nd last b ut n ot least that the S e c o nd R e s p o n d e nt shall be restrained f r om releasing the b o dy of the d e c e a s ed to n o b o dy except by d ue process of l aw p e n d i ng the o u t c o me of the application. I n o t ed that there h ad n ot b e en a prayer that the First R e s p o n d e nt be interdicted f r om b u r y i ng the deceased. I t h o u g ht this w o u ld be implied in p r a y er (e). At the time that M r. Lesutu for the Applicant c a me to a p p ly for the interim order I anticipated that the application w as g o i ng to be a p r o b l e m a t ic o n e. T h is w as indicated in the m o st obvious w ay w h en o ne h ad regard to the t i me w h en the Applicant first k n ew of the d e a th of the deceased that is, on the third of J u ne this year. I h ad questioned M r. L e s u tu very closely a b o ut the aspect of w h en his client b e g an to learn that the m a t t er w as unresolvable a nd she h ad to resort to the C o u r t s. T h is w as in the light of w h at the Applicant h ad said in p a r a g r a ph 10 of h er f o u n d i ng affidavit n a m e l y: " T h en I a p p r o a c h ed the First R e s p o n d e nt to a r r a n ge the funeral together but she w as very unco-operative. S he t h en said she is b u r y i ng h er h u s b a nd we will talk after the funeral. I h a ve learned f r om other relatives that the burial will be on the 24th J u ne 2 0 0 0 ." It w as clear on the surface there h ad been a considerable delay to h a ve launched the application considering that the burial w as less than o ne full d ay w h en Counsel appeared before m e. Inclined as the Courts are to investigate this sensitive question of the rights of burial of deceased persons I felt with hindsight that I h ad b e en unduly sympathetic to h a ve given the order. Later events proved this. T he application h o w e v er turned out to be an interesting o n e. T he application w as interesting even m o re by reason of the concessions that w e re m a de by Applicant's Counsel. T he first concession w as that the Applicant h ad always regarded the First R e s p o n d e nt as another wife of the deceased. A nd that she w o u ld not challenge the First Respondent's marriage w h i ch h ad c o me first, as against the impression originally given in a r g u m e nt that the deceased h ad "merely seduced or impregnated the First Respondent." T h at customary marriage of the First R e s p o n d e nt w as evidenced by annexure " M T 1" certifying p a y m e nt of four cattle for bohali. O n ce Applicant's Counsel accepted that probabilities favoured the existence of the marriage the question w as inevitably w hy the Applicant w as before the C o u rt with her application. Furthermore w h en the civil marriage between the deceased a nd the Applicant w h i ch c a me three (3) years later w as registered or entered into it h ad been preceded by the customary o ne b e t w e en the deceased a nd the First R e s p o n d e nt w h i ch w as already in existence. It therefore m e a nt that the marriage of the deceased a nd the Applicant w as not a g o od marriage in terms of section 29(1) of the Marriage A ct of 1974. It w as null a nd void ab initio. T he other interesting issue w as the point raised by the Applicant. It w as about a letter dated the 27th M ay 1986. In that letter it w as sought by Rantahli Seetane (for the bride) a nd T h a bo T au (for bridegroom) to dissolve that customary marriage b e t w e en the First R e s p o n d e nt a nd the deceased. This w as even m o re interesting w h en the letter w as read with the fact that the d e c e a s ed a nd First R e s p o n d e nt h ad in addition to the c u s t o m a ry marriage entered into a civil m a r r i a ge albeit ten (10) years later. A nd t h en it b r o u g ht a serious question as to w h at these p e o p le w e re d o i ng in purporting to "privately" dissolve the c u s t o m a ry m a r r i a g e. T h ey virtually "closed themselves in a h u t" in an a t t e m pt to dissolve the marriage. T he question that I put to the Applicant's C o u n s el w as w h e re they w o u ld h a ve h ad a ny legal p o w e rs to cancel the a g r e e m e nt of m a r r i a ge w h i ch h ad b e en previously reached. In seeking to dissolve the m a r r i a ge they said: "This is to certify that we h a ve agreed to cancel o ur previous a g r e e m e nt of m a r r i a ge w h i ch we h ad entered into previously. T h a bo T au agrees to release to Rantahli Seetane his children because he a nd his s on h a ve failed to m a r ry or to pay. C h i l d r en will r e m a in those of Rantahli exclusively. T h a bo T au a nd his s on r e m a in h a v i ng released themselves. B a l a n ce of cattle should n ot be paid. W i t n e s s: M o t s o e la S e e t a ne " C h i e f" T h a bo K o p a n o ." T he question that arose w as w h e re the deceased a nd the First Applicant w e re w h en the m a r r i a ge a g r e e m e nt w as being g o ne a b o ut being "cancelled." W h at then bordered on the d a n g e r o us w as that a g e n t l e m an called M o t s o e la Seetane w ho w as allegedly a witness w h en the a b o ve a g r e e m e nt w as purportedly cancelled denied h a v i ng b e en a witness n or that he k n ew a b o ut this a g r e e m e nt n or that he w as present n or that he signed. I asked C o u n s el to allow me to get an u n s w o rn statement f r om the g e n t l e m a n. C o u n s el agreed. T h is resulted in the said total denial. T he question w o u ld therefore be w h e re did Applicant get this kind of letter. W hy do people give s u ch a misleading impression that there w as a surreptitious exercise to dissolve a marriage? Shouldn't a dissolution of a m a r r i a ge be a public act? T he s e c o nd disconcerting aspect in the p u r p o r t ed cancellation of t he m a r r i a ge b e t w e en the deceased a nd the First R e s p o n d e nt w as the a b s e n ce of a ny reference to the attitude of the deceased a nd the R e s p o n d e n t. T h is type of omission w as referred to in the case of M A S U P HA v ' M O TA L AC (1985-89) 58 albeit a b o ut joinder a nd locus standi. T h is w o u ld sharply bring into question the decision of parents w ho decide to question marriage in the a b s e n ce of the bride a nd the b r i d e g r o o m, w h en their m a r r i a ge w as being so questioned or in the instant case w h en it w as purported to be dissolved. S ee also my j u d g m e nt in M O T S O MI M O T S O MI v T S E PA N K U A T S A NA A ND F I VE O T H E RS C I V / A P N / 8 2 / 9 8, 18th D e c e m b er 1998. T h is p r o b l em of dispute of rights of burial c o n c e r n i ng multiple marriages keeps c r o p p i ng u p. Instead of receding it appears to be on the increase. H u s b a n ds w ho contract these marriages do n ot care a b o ut the legal position. Lo a nd behold! w h at h a p p e ns after their deaths. I do n ot k n ow w hy legislature c a n n ot intervene in its o wn w i s d om to a t t e m pt to solve this p r o b l e m. Just in relation to this question of disputed burials. O ne m ay digress to say the following. T h at the present position appears to be rigid a nd legalistic w h i ch is undesirable. It is the m o st equitable a nd s y m p a t h e t ic a p p r o a ch that is desirable. It w o u ld be as follows. T h at the person to b u ry the deceased should be the p e r s on with w h om the deceased w as m o st attached to a nd w ho e n d ed his last d a ys with the deceased. T h is is the person w ho the deceased probably loved m o re t h an others j u d g i ng f r om the total circumstances. It is the person w h om the deceased w o u ld h a ve loved to see burying h i m. It is this person w ho m o st p r o b a b ly g a ve the deceased p e a c e, c a lm a nd c o m f o r t. It is the person w ho should be given the rights of burial. T h is should be so regardless of w h e t h er it w as the lawful wife or the first lawful wife as against others. Unfortunately this is n ot the law. In other jurisdictions o ne w o u ld h a ve to inquire as to the person w ho last lived with the deceased. A nd that in probability is the person the deceased loved best. It is the person w h om he w o u ld h a ve liked to have been buried by. T he issue of w h e t h er the marriage is a lawful o ne a nd w ho w o u ld have prior right to the estate causes problems if it continues to be an approach adopted in isolation a nd against other approaches. B ut it is the law of this country. It is just that lawyers cause confusion by adopting a r g u m e n ts w h i ch m ay be fundamentally s o u nd or logical. W h en they fail they are re-worked although they are not the law of the country. S o m e t i m es it is a p r o b l em of evidence or proof. T he legal position remains nevertheless clear that it is the m a le heir w ho has the right of burial. In the event of minority or absence of the m a le heir the senior wife of the deceased will have those rights. In the e nd I w o u ld h a ve r e c o m m e n d ed to the legislature to h a ve a law that looks at the total circumstances. It should not exclude the consideration that consultation of the family cannot be ignored in our country as things are as they are. A classical situation, for its pathos, that this C o u rt has c o me across w as three (3) years a go in the case of M A S SA v M A S SA C I V / A P N / 5 / 97 dated 14th J a n u a ry 1997. A m an h ad left his wife a nd lived with another for about twenty (20) years or m o r e. It w as a peaceful family life a nd a g o od homestead w as established. T he family lived in c a lm a nd peace. After deceased's death the former wife a nd eldest son of the first family surfaced. T h e re w as a dispute about the deceased's burial. T he larger family supported the eldest son. T he decision w as that the son w as the rightful person to bury the deceased. T he decision w as not a pleasant o ne to m a k e. T h at is w hy I expressed those sentiments w h i ch I h a ve just observed in the j u d g m e n t. But the decision w as in terms of the law of this country. In the present situation it appeared that the first a nd lawful wife of the deceased w as the First R e s p o n d e n t. T h at is the finding that I m a de a nd a declaration that I w o u ld m a ke includes that she w o u ld be entitled to benefits a nd rights as if or similar to the prayers w h i ch the Applicant has sought a nd w h i ch w o u ld flow. T he deceased's marriage to the Applicant appeared to be null a nd void following the interpretation of the law. I w as not addressed on the question of the Applicant's a nd deceased child a b oy called Suping. T he Respondent's response to the statement that there w as this boy, w as merely an a n s w er that the contents of the statement w e re noted. R e s p o n d e nt said h o w e v er that she did not h a ve a ny k n o w l e d ge thereof a nd could not admit the s a me a nd " p ut the Applicant to the proof thereof." I n e ed not c o m m e nt further than that except to r e m a rk that it w o u ld h a ve b e en interesting to investigate w h e t h er the marriage of the Applicant w as putative or not. S ee T H O KA v H O O H LO 1978 L LR 375. T he application w as an unfortunate one. It included a situation w h e re after the application w as anticipated on a S u n d ay the parties a nd relatives w e nt about waiting a nd r o a m i ng about for a hearing as promised. T h ey waited in vain. T he judge w as also kept waiting. A logistical p r o b l em w as described as unavailability of a Registrar. It prevented the application f r om being heard. T h e se people w ho waited as said a b o ve included t wo ladies w ho w e re later present in Court, t wo other ladies, an elderly gentlemen a nd a gentleman f r om the deceased's w o rk place in the m i n es of S o u th Africa. T he latter h ad been sent by his a nd the deceased's e m p l o y er a nd colleagues of the deceased to bring financial assistance a nd take b a ck reports about the funeral. He h ad to go back disappointed because the funeral did not take place on Saturday (the 25th J u ne 2000) as a result of the b u r d e n s o me interdict. It w as again unfortunate a nd quite embarrassing that the deceased's corpse w as allowed to be r e m o v ed f r om the mortuary to the deceased's village w h e re he w o u ld be buried. It w as f r om there that the corpse h ad (as I suspected) to be taken back after service of the interim court order. It w as because of Applicant's Counsel's failure to h a ve hastened to serve the S e c o nd R e s p o n d e n t. T h e se are unpleasant incidents in the ill-starred court order. T h e se c an undoubtedly be laid at the d o or of Applicant a nd the attitude of her legal adviser. I h a ve thought seriously about the a w a rd of costs of this application. W h at I considered included M r. K h a u o e 's submission that those costs should be a w a r d ed against the First R e s p o n d e nt on Attorney a nd Client scale thus inclining to punish the First Respondent. Costs are in the discretion of the Court. T he C o u rt looks at the conduct of litigants a nd their Counsel a nd circumstances immediately surrounding the prosecution or defence of the dispute in Court. It is true that the a w a rd of costs w h i ch are exemplary is not restricted to dishonest, i m p r o p er a nd fraudulent conduct. O t h er unreasonable actions w o u ld call for such a w a rd against a defaulting party. In cases w h e re an application w as brought w h e re an applicant w as held to h a ve k n o wn that the application w o u ld not succeed costs w e re a w a r d ed on an Attorney a nd client scale ( EX P A R TE C O N T R O L L ED I N V E S T M E NT P TY L TD 1948(2) 339(T). Situations like these often flow f r om b ad legal advice. In this case my attitude w as also influenced by the following observations. In speaking about the c o n d u ct or attitude of the litigant (Applicant) o ne cannot ignore the standard of the c o m m u n i ty in w h i ch she lives. This is h o w e v er to be d o ne with caution for fear of misdirection a nd u n d ue disturbance of policy principles. I w o u ld look at the Applicant a nd R e s p o n d e nt w ho are ordinary Basotho w o m e n f o l k. T h e se are people or o ne of t h em against w h om I w as indirectly told to expect a nd exact high standards of attitude a nd discretion w h en they h ad to rely on legal advise of trained legal professionals. H ow far can this expectation f r om t h em go w h en they ought to be guided by these lawyers? It could m e an that there is p u n i s h m e nt for receiving b ad legal advice. M o st of the times it is. T he last consideration is that this thing of disputes or fights over burial rights in our courts s e e ms to be here to stay. It will take a long time. It s e e ms to be part of our m o d em society in w h i ch no o ne s e e ms i m m u n e. O ne w o u ld reasonably expect that o ne d ay a nd not far o ne or one's next- of- kin will be involved in such a fight over a corpse. It c an fairly be said to be the w ay o ur people live. It is a w ay of thinking. It is unwise to be unduly j u d g m e n t al over this situation w h i ch seems to be of sociological origin. Neither c an o ne say it is b ad but it is nevertheless disagreeable to s o me extent. If there is a w ay the tendency h as to be discouraged. A nd the legislature in its w i s d om w o u ld be invited to be involved in an exercise that others w o u ld call a kind of social engineering. L a ws for c h a n ge c an be used to c h a n ge people's attitudes. If parliament w o u ld intervene the disputes will be lessened. As courts we accept that we will still h a ve this kind of litigation on o ur unavoidable m e nu list of disputes in w h i ch we h a ve no choice. It c an only be comforting to our people that we remain in readiness to entertain this kind of disputes in the s a me w ay as others to the extent that they do not b e c o me abuse of court process. It cannot h o w e v er be e n c o u r a g e m e nt for litigants to c o me later on Fridays a nd Saturdays to apply for interdicts against burials. T h e re will be punitive costs against both litigants a nd their lawyers a nd against the latter these will be b om personally (de bonis propris). This should be heeded. In the b a c k g r o u nd are always factors of involved preparations, publicity a nd an expectation that deceased will be given their respect a nd dignity of early burials. See C H E M A NE M O K O A T LE v S E N A T SI S E N A T SI C I V / A P N / 1 6 3 / 9 1, Cullinan CJ (unreported) In s o me religions the dignity a nd respect to a deceased p e r s on is the burial itself n ot these a b u n d a nt foods a nd beverages a nd other expensive preparations a nd trappings w h i ch are n ow o r d er of the d a y. In the e nd the application w as dismissed w i th costs on the ordinary scale. T. M O N A P A T HI J U D GE 28th June 2000