Rafiri v Ntloana and Others (CIV/APN 164 of 2000) [2000] LSCA 112 (17 November 2000)

1 CIV/APN/164/2000 IN T HE H I GH C O U RT OF L E S O T HO In the M a t t er B e t w e e n: M A T H A BO F R A N C I NA RAFIRI A P P L I C A NT and ' M A N T H A B I S E NG N T L O A NA S E T L A B O C H A R A M RI M O H A L E S H O EK G O V E R N M E NT M O R T U A RY T HE P R I N C I P AL S E C R E T A RY (Ministry of H e a l t h) T HE A T T O R N EY G E N E R AL 3rd 1st 2nd R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT 4™ R E S P O N D E NT 5™ R E S P O N D E NT Applicant's Counsel (A. C.) M r. N. Putsoane Before the Honourable M r. Justice T. M o n a p a t hi on the 17th d ay of N o v e m b er 2000 S U B M I S S I O NS A ND R U L I NG On application for e x h u m a t i on of the b o dy of late M a h l o m o la Ananias Rafiri P A RT 1 A . C. T he First R e s p o n d e nt a nd h er witness support the fact that the Applicant w as m a r r i ed t h o u gh the only issue is that of the nature of marriage a nd we are submitting that regardless of whether the marriage w as by civil rites or by custom the Applicant w o u ld still be the only person entitled a nd with the prior right to bury the deceased. H . L. So that substantially the Respondents do confirm that there w as marriage between your client a nd the deceased? A . C. T h ey are confirming that. H . L. T he dispute is only about the nature of the marriage. A C. Y e s, a nd w h i ch we are submitting w o u ld not m a ke a ny difference as to Applicant's right in this matter. H . L. Y ou are saying according to y ou it has only b e en a civil marriage. A . C. A civil marriage. H . L. T he consequences w h i ch w o u ld be to exclude another marriage. E v en in the alternative even if there is a finding that there is a customary marriage y ou are saying your client w o u ld still reserve a prior right. AC Because she is the first wife. It does not c h a n ge anything. H . L. Tell m e, w h at about that evidence of paying of h e ad of cattle w h at do they say about it? A . C. Yes. At that My L o rd the paragraph w h i ch I referred Y o ur Lordship. S ub paragraph (a) at p a ge 2 of the supporting affidavit. H . L. P a r a g r a ph (a) not 1? A . C. N o. E v en t h o u gh it is entitled opposing affidavit also because he suggested that the S e c o nd R e s p o n d e nt H . L. W h a t? W ho says w h a t? A . C. Setlabocha Rafiri My L o r d. It is p a r a g r a ph 1, 2, 3, 4 H . L. Setlabocha says w h a t? A . C. He says seven h e ad of cattle w e re paid a nd delivered to the h o me of the Applicant. H . L. W h at c o m m e nt do y ou h a ve against Setlabocha? A . C. A nd then the father of this very person Setlabocha n a m e ly Tlondollo Rafiri d e p o s ed to an affidavit in a reply H . L. Tlontlollo Rafiri? A . C. Is the father of Setlabocha Rafiri H . L. Father of Setlabocha contradicts that? A . C. He contradicts that stating that in fact he never sent this b oy to deliver a ny h e ad of cattle a nd that in fact he w as a g ed thirteen at that time. H . L. W h at would have been, he could have been thirteen A . C. Yes. A nd that he did not sent h im to deliver any cattle. A nd he confirms and endorsed that it cannot have been marriage cattle. H. L. H ad not? A . C. He endorsed p a y m e nt of abduction cattle. H. L. Did not sent him, but he had sent w h o? A . C. He (inaudible) H. L. H ad sent s o m e o ne to do what? A . C. To deliver the six head of cattle. H. L. For? A . C. Abduction. H. L. So that it is your case that those were cattle for abduction and not for bohali. W h at is this d o c u m e nt dated 17th of N o v e m b e r? A . C. W h i ch year is that? H. L. Attached to the answering affidavit. A . C. T h at one it relates to the marriage of the First Respondent. H . L. Marriage of the First Respondent? A . C. T h at is so My Lord. H . L. Y ou have no quarrel there? A . C. We have no quarrel with that. We are saying if that the Respondents that is First a nd Second Respondents arc alleging that there is any Sesotho marriage between the Applicant a nd the deceased they bear the burden of proof. H . L. Respondents bear the burden of proof to do what? A . C. To the allegation that there w as a Sesotho marriage between the Applicant a nd the deceased. H . L. T h at there w as a Sesotho marriage? A . C. T h at is so. A nd they w o u ld therefore have to prove three things. H . L. A nd they w o u ld have to? A . C. T he three things which we consider to be the essential elements or requirements for the subsistence of a valid Sesotho marriage. H . L. Yes. H . L. Of this requirement A . C. T h at is so. H . L. I see. Is that all? A . C. T h at is so. On the basis of this My L o rd it is clear that the First R e s p o n d e nt a nd the S e c o nd R e s p o n d e nt were not entitled to bury the deceased. A nd that in fact the b o dy should be e x h u m e d. T h en w o u ld request Y o ur Lordship to m a ke it an O r d er of C o u rt that those requirements w h i ch are e m b o d i ed in the letter of the Principal Secretary should be followed strictly in e x h u m i ng the body. A nd that in fact they should in fact assist because there are s o me surgical m u s ks a nd gloves w h i ch are needed a nd the insecticides. H . L. Is that all Sir? A . C. T h at is so My Lord. H . L. W h at about costs? A . C. T h ey should p ay the cost for the application. H. I. O . K. A . C. As the C o u rt pleases. P A RT II R U L I NG 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 17th d ay of N o v e m b er 2 0 00 This matter is an old matter. W h at I see is that the interim Court Order w as issued by M a q u tu J. as long ago as the 12th June 2000. I do not want to get very m u ch into the reasons w hy there has been a delay in having this matter heard. B ut it suffices to say that s o me of the blame should be put at the door of this Counsel involved in this application. Both of them. We appreciate that there m ay have been problems. O ne of them could have been to do with certificates from the hospital about whether the b o dy can be e x h u m ed consistent with precautions against health hazards. That the exhumation of the body should not pose a public health hazard. This certificate w as finally secured and it is dated the 9th October. It suffices to note that during today I should have heard both Counsel before m e. M r. M da was here this morning but I have been informed that he released his client a nd did himself go away from Court premises. He has not asked to be excused. He had not asked for alternative arrangements from the Court. Accordingly I asked that M r. Putsoane must address m e. His argument w as recorded on tape and it was also my intention that I should m a ke a short ruling which will be recorded. In doing so I proceed as follows : I find that probabilities indicate that the marriage between the Applicant a nd the deceased could only have been a civil marriage. M e a n i ng that this Applicant ( w ho h ad no m a j or m a le heir) w as entitled to bury the deceased. I agree that there w as no proof that there h a ve b e en a customary marriage b e t w e en the deceased and the Applicant. Since the Respondents asserted that there w as such a marriage they h ad to bear the b u r d en of proof. I f o u nd that they h a ve failed. This I did in as m u ch as I did not believe the evidence of that son of Rafire w ho said seven cattle w e re paid. I disbelief that they could h a ve b e en paid as cattle for marriage but took the view that that p a y m e nt w as for d a m a g es for abduction. Alternatively even if there h ad b e en such a marriage I w o u ld find that in the circumstances the Applicant still remains the first wife of the deceased m e a n i ng that she w o u ld h a ve the prior right to burial. I accordingly find that the First R e s p o n d e nt h ad no right to b u ry the deceased. In addition to that finding that I h a ve already m a de about the absence of Sesotho customary marriage I h a ve noted that the essentials of such a marriage w e re not p r o v ed by Respondents. T he first o ne w h i ch is a g r e e m e nt b e t w e en the parties that is the bride a nd bridegroom. T he second o ne being the agreement between the parents or those in the place of the parents. T he third o ne being agreement as to the a m o u nt of bohali. T he last o ne being p a y m e nt of that total bohali or part of a total. I could only find that if there w as anything paid by w ay of cattle it w as towards abduction. I accordingly allow the prayers as accordingly sought by the Applicant m e a n i ng that this application is allowed. My additional orders are that the Ministry of Health I suppose it will be the ministry in the M a f e t e ng district that the Third R e s p o n d e nt will see to it that the guideline in the certificate of the 9th O c t o b er are followed. T h e re w e re about three of the above requirements or precautions mostly w h i ch can only be executed by people w ho h a ve the k n ow h ow a nd people of the 4th Respondent's Ministry. F or e x a m p le provision of h e a vy duty gloves a nd insecticides for destruction of flies a nd other insects. All in all the Fourth R e s p o n d e nt m u st assist. I m a ke this order with an order for costs underlining that it w as w r o ng for the First R e s p o n d e nt to bury the deceased. Underlining secondly that these are the kinds of disputes that are very unpleasant to this Court. T h ey are surely uncalled for. H a v i ng a b o dy buried a nd having it e x h u m ed later is not a small task. It touches the Applicant in the s a me w ay almost as it touches the Respondents because is an emotional issue. T h at is all about this matter. T. M o n a p a t hi Judge