Ramokone v Ramokone and Others ; Ramokone v Daemane (CIV/APN/17/90; CIV/APN/18/90) [1990] LSCA 39 (6 February 1990)

CIV/APN/17/90 CIV/APN/18/90 IN THE HIGH COURT OF LESOTHO In the Application of : THABANG RAMOKONE Applicant and RAMAROBANE RAMOKONE MOJELA RAMOKONE CHRISTIAN RAMOKONE 1st Respondent 2nd Respondent 3rd Respondent JAMES RAMOKONE Applicant and THABAMG MORETELE DAEMANE Respondent J U D G M E NT Delivered by the Hon. Mr. Justice B. K. Molai on the 6th day of February, 1990. On 25th January, 1990 the applicant, in CIV/APN/17/90, Thabang Ramokone, appeared before Lehohla J. and obtained (ex-parte) an interim Order whereby the Respondents were, inter alia, restrained from disrupting 'Malebaleho Ramokone's funeral which he was arranging for the 31st January, 1990. However, on the following day, 26th January, 1990, the applicant in CIV/APN/18/90, who is the 3rd Respondent in CIV/APN/17/90 also appeared before Kheola J. and obtained (ex-parte) another interim Order whereby the Respondent, who is the Applicant in CIV/APN/17/90, was restrained from burrying 2/ the corpse - 2- the corpse of 'Malebaleho Ramokone and empowering him to bury the deceased. On 29th January, 1990 and by consent of the parties Lehohla J. ordered that the applications be consolidated. Although no notices of intention to oppose were filed in both applications answering affidavits were filed by the Respondents in CIV/APN/17/90 and the applicant in CIV/APN/17/90 also filed a Replying Affidavit. In as far as it is relevant the facts that emerge from the affidavits are that 'Malebaleho Ramokone was lawfully married to her husband who pre-deceased her. On 12 January, 1990 'Malebaleho Ramokone herself passed away., No male issue was born of the marriage between 'Malebaleho Ramokone and her late husband. It is, therefore, common cause that the deceased and her late husband died leaving no male heir. According to the averment of the Applicant in CIV/APN/17/90 supported by that of his mother, 'Mathabang Ramokone, the latter who is admittedly the daughter of the deceased, was never married to any man. The applicant w a s, therefore, brought up in the home of the deceased and her late husband who had always regarded him as their child and heir. The Respondents in CIV/APN/17/90 had never associated themselves with the affairs of the family of the deceased and her late husband. Indeed, they did not even attended the funeral of the deceased's husband consequently, the Applicant in CIV/APN/17/90 moved the court for confirmation of the order obtained against the Respondentson 25th January, 1990. The Respondents concede that the Applicant in CIV/APN/17/90 is the son of 'Mathabang who is one of the daughters of the deceased. They further concede that the applicant in CIV/APN/17/90 was brought up by the deceased and her late husband. They aver that the 3/ applicant's -3- a p p l i c a n t 's m o t h e r, 'Mathabang, w as m a r r i ed to o ne M o h a n oe D a e m a n e. In s u p p o rt of t h is a v e r m e nt o ne Libitla S e k o me d e p o s ed to an a f f i d a v it in w h i ch he averred t h at he u s ed to be t he right h a n d m an of t he h e a d m an in t h e ir v i l l a g e. He k n ew t h at t he a p p l i c a n t 's m o t h er w as m a rri ed to a c e r t a in M o h a n oe w ho w a s, t h e r e f o re t he a p p l i c a n t 's f a t h e r. 'Mamahlelebe D a e m a ne a l so d i p o s ed to an a f f i d a v it in w h i ch she a v e r r ed t h at she w as the w i d ow of o ne Lebusa Daemane, t he e l d er b r o t h er of M o h a n o e. She knew t h at a p p l i c a n t 's m o t h er w as m a r r i ed b e c a u se w h en she a r r i v ed in t he f a m i ly of Daemane she ('Mamahlelebe) p e r s o n a l ly p e r f o m ed t he n e c e s s a ry ritual c e r e m o n i es f or a n e w ly m a r r i ed w o m a n. T he a p p l i c a nt w as g i v en t he n a me of M o r e t e le by Daemane's F a m i ly and in 1981 a p p l i c a nt s l a u g h t e r ed a beast f or his late f a t h e r, M o h a n o e. It is t r i te law t h at in t h is c o u n t ry t h e re a re t wo t y p es or m a r r i a ge viz. civil rite m a r r i a ge and c u s t o m a ry law m a r r i a g e. A civil rite m a r r i a ge is p r o v ed by p r o d u c t i on of a m a r r i a ge c e r t i f i c a te w h i l st f or a c u s t o m a ry law m a r r i a ge o ne h as to p r o ve t he e s s e n t i a ls laid d o wn u n d er S . 3 4 ( 1) of Part II of t he Laws of L e r o t h o l i. In t h e ir a f f i d a v i ts both Libitla Sekome a nd 'Mamahlelebe D a e m a ne h a ve c o n v e n i e n t ly avoided to prove e i t h er t he civil rite m a r r i a ge or t he c u s t o m a ry law m a r r i a ge b e t w e en t he a p p l i c a n t 's m o t h er and M o h a n oe D a e m a n e. T he o n us of p r o of vested s q u a r e ly on t h e ir s h o u l d e rs on t he well known p r i n c i p le t h at he w ho a v e rs b e a rs the o n us of p r o o f. They have f a i l ed to d i s- c h a r ge t h at o n u s. I am n o t, t h e r e f o r e, c o n v i n c ed t h at t he a p p l i c a n t 's m o t h er w as lawfully m a r r i ed to M o h a n oe D a e m a n e. It is s i g n i f i c a nt t h at in h is a f f i d a v it t he f i r st R e s p o n d e nt h as depos ed t h at he is m a r r i ed to o ne of t he d e c e a s e d 's d a u g h t e r s. He is 4/ t h e r e f o r e, -4- therefore, the deceased's son in law and not her heir. In his affidavit the 3rd Respondent who is the applicant in CIV/APN/18/90 has deposed that he is the younger brother of the 1st Respondent. Although he avers that by the decision of the family of Ramokone he was appointed the heir in the deceased's house, a fact denied by the applicant in CIV/APN/17/90, the 3rd Respondent has neither called any member of Ramokone family who took part in the alleged family council nor produced any, document in support of his averment- For that reason I find his averment unconvincing. The 2nd Respondent made no attempt whatsoever to justify his opposition to confirmation of the interim order granted to the applicant in CIV/APN/17/90. By and large, none of the Respondents in CIV/APN/17/90 h a s, on a preponderance of probabilities satisfied me that he has a better right than the applicant to bury the deceased. That being so,it necessarily follows that the interim order obtained by the applicant, in CIV/APN/18,96O who is the third Respondent in CIV/APN/17/90 cannot be allowed to stand. Even if I were wrong and it is held that he is not the deceased's heir it seems to me that in the absence of the rightful heir the applicant in CIV/APN/17/90 is a better person to be allowed to bury the deceased. In the result, I would confirm the interim order in CIV/APN/17/90 and discharge it in CIV/APN/18/90 with costs. B. K. MOLAI JUDGE 6th February, 1990. For Applicant : Mr. Klass For Respondent : Mr. Pitso.