Ramotlau v Makhele and Others (CIV/APN 99) [2000] LSCA 14 (17 March 2000)

1 CIV/APN/4/4/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between : S E M PE ELIAS R A M O T L AU APPLICANT and ' M A S E K H A R U ME M A K H E LE (duly assisted by her husband) L E T H U S A NG R A M O T L AU (duly assisted by her husband) M. K. M. B U R I AL S O C I E TY (PTY) L TD 1st 2nd 3rd 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 R E A S O NS F OR J U D G M E NT For Applicant : Mr. S. Phafane For Respondents : Mr. H. Putsoane For 3rd Respondent: No appearance Delivered by the Honourable M r. Justice T. Monapathi on the 17th day of March 2000 I have already given my decision in the matter in which I allowed the application with costs on the ordinary scale. I n ow give my reasons for that decision. T he application sought for a rule nisi and asked that. " (a) T he first and second Respondents "be restrained and/or interdicted from removing the body of the late 'Malethusang Lisbeth Ramotlau from the third Respondent's mortuary for burial or any other cause pending the realization hereof;" (b) T he third Respondent " be restrained and interdicted f r om releasing the b o dy of the late 'Malethusang Lisbeth R a m o t l au to the first and/or second Respondents or anybody pending the finalization hereof;" (c) T he first and second Respondents "be ordered and directed to release the Deceased's household property including the Deceased's insurance books, her bank b o o ks and passport to the Applicant," (d) T he Applicant "be allowed to r e m o ve the b o dy of the late 'Malethusang Lisbeth Ramotlau from the third Respondent's mortuary for burial on a date and at a place of his choice;" (e) T he Rules as to forms and notices "be dispensed with on account of urgency;" (f) T he first and second Respondents "pay the costs hereof and the third Respondent only in the event of its opposing this application." 2. That prayers 1(a), (b) and (e) operate with immediate effect as an Interim Court Orders pending the realization hereof. T he brief background to the application had been that the Applicant w as husband of the deceased. T he parties w e re married by civil rites on the 6th January 1977. W h en the deceased (the wife) died on or about the 10th D e c e m b er 1998, the marriage still subsisted. T he deceased had been an office assistant in the Ministry of Agriculture, during her lifetime. At the time w h en deceased passed a w ay there had been differences between her and her husband which had led to her leaving the matrimonial h o m e. S he had been staying with her parents for a while before c o m i ng to M a s e ru where she lived in a rented flat. T he Applicant said w h en the deceased passed a w ay she w as still living a w ay from the matrimonial h o me and while he w as busy persuading her to go back by w ay of seeking to reconcile. T h o se witnesses on the side of the Respondent testified that deceased had left instructions as to her burial contained in annexure " MM 1" dated 2nd September 1994. I strongly suspected that the separation of the parties had been a considerably long o ne and that the prospects of reconciliation could be safely said to have been very slim. T he picture of the Applicant as s h o wn by Respondents w as of an irresponsible husband and father w ho failed to maintain his wife and children and w ho neglected a burial of o ne of his children. A nd furthermore that the Applicant had not even attended at the marriage c e r e m o ny of o ne of his daughters. He had not involved himself in the preparations. T he S e c o nd Respondent, o ne of his daughters (the eldest), painted a picture of a big gulf b e t w e en the parties and, the deceased's family being naturally on the side of deceased. W h at w as important in my view, w as that it had been almost a m o n th since the death of the deceased and her burial having not taken place because her b o dy w as being claimed by the parties. This had resulted in a n u m b er of meetings and negotiations w h i ch brought no resolution nor satisfaction at least to the Applicant. He contended that as lawfully married husband to the deceased during her lifetime he had the right to bury as against anybody else and m o st specifically n o ne of the Respondents. T he Applicant claimed that he had not been able to bury his wife for that long period of time d ue to interferences by the First and Second Respondents w ho w e re deceased's mother and the Applicant's daughter respectively. These Respondents claimed that they w e re entitled and/or obliged to bury the deceased at a place and on a date of their choice. Several meetings had been held before their local chief on the issue but the Respondents still insisted that they w e re going to bury the deceased at Ha 'Masana, in the district of Maseru. T he Applicant had intended to bury the deceased at S e m o n k o ng on the 9th January 1999 as he had felt he had that right while the Respondents had no right. T he Applicant had been to the place w h e re the deceased lived and had discovered that the entire household property including the deceased's insurance books, her bank books, and passport had been r e m o v ed and w e re allegedly in custody of the First Respondent. As he contended the First Respondent had no colour of right to the property and yet she insisted and held on to the property. As the Applicant contended further the Respondents were so determined to bury the deceased against the Applicant's wishes that he had a grave apprehension that there would be bloodshed inasmuch as he had not been prepared to give in to their allegedly groundless demands to bury the deceased and their persistence to hold on to the property of the deceased The First Respondent alluded to those matters which showed the Applicant as an impossible father and that as a result the deceased left instructions that the Respondent should bury the deceased with the assistance of the Second Respondent, the deceased's daughter They relied on the alleged instructions for their right to bury the deceased Whatever minor details in the intricate relationship between the parties I thought all in all the Respondents insisted that they had to bury the deceased as against the Applicant because the deceased had left the said written instructions That w as w hy the First Respondent said "she denved such a right from his daughter's instructions which w as marked an annexure " M M 1" to the proceedings She also referred to Chief Mohlakana Lerotholi w ho allegedly w as present and endorsed the said written instructions T he First Respondent furthermore denied removal or possession of any of the deceased's property T he two Counsel for the parties most wisely agreed that the resolution of the dispute would revolve around whether Annexure " M M 1" w as a true document and not a fake or otherwise All other conclusions would revolve around the finding hence the need to call viva voce evidence either to support or to seek to discredit the document. Witnesses were therefore called after argument as to w ho had to begin T he parties however agreed that the Respondents would begin I w as not therefore able to decide which side had the onus to begin on the issue of the validity of " M M 1" on the issue of onus. See also the remarks of Schutz JP in R A M A H A TA (also k n o wn as P H E P H E T H O) vs R A M A H A TA 1985 - 1989 L AC 184 at 185 E - G A nd indeed A n d r ew Paizes has remarked about the incidence of onus of proof to say that "At times one feels that he is chasing shadows and that no attempt to c o me to grips with the subject can ever deliver anything of subsistence." See S O U TH A F R I C AN L AW J O U R N A L. Vol 116 Part III page 531 Chasing shadows Exploring the meaning, function and incidence of T HE O N US OF P R O OF IN T HE S O U TH A F R I C AN L AW " Respondents called in the following witnesses Chief Mohlakana Lerotholi, Motsoane Makhele and the Applicant called R a m e no Ramotlau. Having heard the two sides I confirmed that the issues had to be decided on a balance of probabilities T he first thing that weighed on my mind w as that the deceased w as said to be a literate office assistant w ho could sign her n a me as borne out by Exhibit " A" T he latter w as a leave application from filled by the deceased herself on the 15th M ay 1998, that w as about six months before her death There were several factors which undoubtedly pointed to the probability that " M M 1" w as a fake I included as negative one of the elements the evasiveness of the t wo witness of the Respondents and I approved the forthrightness of the witness R a m e no on the other hand T he latter as aforesaid had been called by the Applicant. M r. Phafane's cross examination severely dented and embarrassed Chief Lerotholi whose demeanour left m u ch to be desired. He allegedly authenticated " M M 1" In the first place he w as not acting as a chief at the material time but had merely stepped in while there w as still a substantive holder of of office I had to c o m m e nt further about the testimony of the Chief Lerotholi. It w as not clearly explained w hy he c a me to attend to the matter while he w as usually resident in Maseru He did not see Lethusang Ramotlau (Second Respondent) one of the witnesses to the letter He did not recall if Mapalesa Makakole one of the witnesses to the letter w as present. He said M a s e b o p e ho Lerotholi one of the witnesses to the letter w as not present Significantly he did not recall if Lethusang Ramotlau one of the witnesses w as present. He did not recall if Tsela Khoase one of the witnesses w as present To s um it all the circumstances of the signing and witnessing of the letter were extremely m o re than doubtful T he deceased had been a literate Civil Servant in the Ministry of Agriculture She had been able to read and write It could not be explained w hy the letter could not have been signed by the deceased herself. T he most damning thing was that it ended up being revealed during cross examination that the letter w as in the handwriting of Lethusang Ramotlau, the deceased's daughter I w as not convinced that the deceased would have delegated anybody to deal with a thing as important and sensitive as her burial a nd distribution of her property after her death. I had noted that in paragraph 4 of his supporting affidavit of Chief Lerotholi h ad said that the deceased had handed h im a letter addressed to h im and "signed by herself and s o me four people w h om she said w e re witnesses to her decision " During cross examination it w as clear that this statement w as too g o od to be true I found it unnecessary to go about the remainder of the blemishes in the Respondents' witnesses' testimonies Suffice it to say that at and despite the lengthy negotiations between the parties and furthermore even before Respondent's chief the existence of the letter " MM 1" w as never revealed It b e c a me c o m m on cause that the existence of the letter " MM 1", w as notified to the Applicant, for the very first time, in the answering affidavit It w as not a very a m u s i ng state of affairs to a Court which w as after the truth and credibility of evidence I w o u ld conclude that the letter seeking to s h ow that the deceased h ad left direction as to her burial w as clearly a fake In all probabilities no such directions had b e en left T he kindest to be said w o u ld be that there had been an abject failure on the Respondents to prove the existence of such alleged directions I allowed the application and confirmed the prayers with costs on the ordinary scale It meant that the Applicant h ad the right to decide the burial of the deceased w ho w as his lawfully w e d d ed wife Their marriage having not b e en dissolved at the time of the deceased's death T MONAPATHI JUDGE 17th March 2000 Judgment noted by Mr B Sooknanan