IN THE HIGH COURT OF LESOTHO
In the matter between:
PII NCHANYANA Applicant
'MALERATO NCHANYANA 1st Respondent
SENAKANGOELI FUNERAL SERVICE 2nd Respondent
For Applicant : Mr. K. Kulundu
For Respondent : Mr. E. Putsoane
Delivered by the Honourable Mr. Justice T. Monapathi on the 28th day of January 2003
The Applicant and the Second Respondent (Funeral House) were parties in CIV/APN/579/2002 whose order (the first Order) was confirmed having been granted unopposed on the 24th December 2002 by brother Mofolo J. In this application the
Applicant therein who is the present First Respondent sought an order as follows:
"That the periods and modes of service prescribed by the rules they
dispense with on account of the urgency hereof.
That the rule nisi issue returnable on the date and time to be determined by this Honourable Court calling upon the Respondents herein to show cause if any why:
The Second Respondent shall not be interdicted and restrained from releasing the body of the late Sankoe Simon Nchanyana pending the hearing and the finalization of this application.
That the Applicant shall not be declared the rightful person charged with the duty of burying the body of the late Sankoe Simon Nchanyana at the time and place of her choice.
That the Respondent shall not be ordered to release to the Applicant the Nedbank, Standard Bank and Teba Cash Book of the late Sankoe Simon Nchanyana together with his passports.
That the Respondent shall not be ordered to pay costs herein.
That the Applicant should not be granted further and/or alternative relief.
That prayers 1 and 2(a) operate with immediate effect as an Interim Order."
This application, it is common cause, ended unopposed and was confirmed on the 24th December 2002. It is on record that the parties and relatives ended up discussing the ways or the manner in which the burial would be proceeded with. It was around the 27th December 2002. This did not come to fruition in that the Deceased was not buried.
In the present application, which is opposed, the following orders are
sought by the Applicant:
"Dispensing with the rules of court pertaining to the periods and modes of service of process owing to the urgency of this matter.
Varying an order of this Honourable Court to read to the Second Responded is directed to give the body of the deceased Sankoe Simon Nchanyana to Applicant.
Granting costs of this application only in the event of opposition.
Granting Applicant further and/or alternative relief this Honourable Court may deem fit.
That prayer 1 operate with immediate effect as an Interim Order."
At the centre of the dispute once again is the burial of Sankoe Simon Nchanyana the deceased, the First Respondent's husband in the instant matter. Deceased died on or about the 6th day of December 2002.
The first application was not opposed, that is why I recall that the application or rule ended being confirmed or the final order was being made on the 24th of December. And then we have it on record as said before that the parties and relatives ended up discussing the way or the manner in which the burial of the Deceased could be proceeded with around the date of the 27th December 2002. Although in one annexure to this proceedings a family meeting is recorded to have taken place, it does not appear nor is it recorded the Applicant participated therein. I am however satisfied that he must have been
involved in the arrangements. This he did not outrightly deny.
Anyway against the background of that first application that we spoke about, it appeared that at the time when the application was filed some of the monies in the bank books, referred to in the first application, had already been withdrawn. There has also been reference from the bar by Mr. Putsoane that there ought to be included, as having been interfered with, funds that were deposited at Central Bank.
Briefly about the monies allegedly interfered with. These monies were obviously not claimed before this Court in the present application, that is, besides the bank books in the previous application. I clarify this to say that before this Court in this application before me, there is nothing about the claim for the funds, except that it is being said that the return or refund of those funds is being pursued somewhere in the Magistrate's Court at a very initial stage. I am not told that there is any substantial progress so far.
The present application is tried against the background that now after the order of the 24th December 2002 in her favour, the First Respondent, the wife of the Deceased, was not able to bury the Deceased. That is why now this Applicant, the father of the Deceased, is seeking to be charged with the duty to
bury the Deceased. He concedes that ordinarily the wife of the Deceased would be the one charged with primary duty to bury the Deceased. But the Applicant, as the father of the Deceased, has the secondary duty to bury the Deceased. He says he seeks for an order to bury the Deceased as shown in page 3 of the present application.
The ground upon which the Applicant seeks this order to be varied is the fact that he had not been served with the papers. And he says in terms of Rule 45 of the High Court rules this entitled him to come to this Court and make an application of this type because he says it is a mistake or that the judgment was a result of a mistake because as a matter of fact that he was not served. Mr. Putsoane on the other hand says that the absence of service makes no difference because Applicant was aware of the court order against him.
Firstly, according to Mr. Putsoane, on the 20th December 2002, at that time when the Applicant says he went to claim for the body of his son, he knew that there was an interdicting order because he was prevented by that order from getting the corpse. Applicant concedes that at the time when the order was to be confirmed around the 24th December, he knew that there was an order in Court. There was a claim in Court in which he was being cited. Mr. Putsoane goes to the extent of saying Applicant was with Chief Theko at Court and he was
aware that order was to be confirmed and he then indicated that he is not opposing. Well, as it were, he consented to order being given because he was not opposing.
Mr. Kulundu replied that Applicant may have known about the two orders. But the situation is that still he had not been served with the papers and that had been irregular. Applicant was just warned about that order which continued to be secured as a result of a mistake. And he says it does not matter that he knew all about the order it was secured through a mistake . This was the mistake of not having been served as Applicant should have been served.
Mr. Kulundu went further to submit that on the authority of this case of Maqalika Leballo vs Thabiso Leballo & Ano. 1993-94 LLR-LB 275 at 282 per Cullinan CJ this Court has got power to vary the order that it made by mistake. It is that order I must remind that was made by my brother Mofolo J. I did not hear that there was any opposition to counter Mr. Kulundu's suggestion that he was, on the basis of the authority of the case quoted, entitled to have such an order set aside, even if Applicant may have known about it. Nor was I appraised of any cases that would, on principle, go against the case of Maqalika Leballo (supra) and the other two cases that Mr Kulundu has mentioned namely Anlaby v Pretorius (1880) 20cch 764, Sterk v Kustner 1959(2) SA 495. My
conclusion would be that, on the basis of this submission, I would agree to vary the order made by Mofolo J.
What remains is an investigation as to whether it is a good reason that the First Respondent says she have not been able to bury the Deceased because she had been prevented by the conduct of the Applicant. Briefly she says the Applicant is responsible for filching the funds in the bank books referred to in the applications. And she says that on a balance of probabilities it should be found to be so because at least one of bank books, Lesotho Bank book and/or Teba Cash Book were handed to the Respondent by this Applicant. The Applicant is suspected of having withdrawn the funds therefrom. The Bank books as shown in annexures attached to the proceedings show nil balances in the bank accounts. I have also observed that Mr. Putsoane speaks about some other account with the Central Bank.
Mr. Kulundu went about to deny also that such funds could have ben taken out by the Applicant. He also went to the extent of saying even evidence put forward in support of the allegation to this allegation or rather that the evidence put in that regard consists of inadmissible hearsay.
My overall view of this matter is that it is one of great difficulty. The
difficulty is that, although I, on my part, strongly suspect that the person who took out the funds is the person who had possession of the books including Applicant, I cannot conclude and need not conclude that it is so for the following reasons.
This is a matter that would be investigated, only if it was an issue, a really issue. But it is not. It is not because the Respondent is not claiming those funds now. It therefore becomes a peripheral thing because she don't claim for the funds. If I had to pursue it or even order for further evidence, as I have the power, the question would be how would I be pursuing the matter when the matter is not correctly before Court. The reason being that there is no claim for the funds.
If there was a counter-claim herein for those funds allegedly being claimed at the magistrate's court then I would be able to pursue the investigation. I would even order that the banks be cited. I would even order that a bank official to bring withdrawal papers or file affidavits to show as to who it was that withdrew the funds from the accounts. There is therefore no good reason why I should, in the present circumstances, pursue the matter.
What only remains is that I have serious suspicion that somebody who has had possession of the books must have taken out the funds. It is a strong
suspicion and my suspicion centres around at the Applicant. The other Court will investigate the matter. It should therefore not concern me now. It is however undisputed that following the order of Mofolo J. the books had been handed over to the First Respondent and if it was discovered that there were no funds in the books then I should have been informed by way of a claim against the Applicant.
All in all it remains not a good defence that the Deceased has not been buried. The Deceased must be buried. I agreed that there are weighty public policy considerations that Mr. Kulundu has spoken about, having conceded that the Applicant is only a secondary repository of the duty to bury the Deceased. So that I again associate myself with the policy grounds as shown in the two cases cited by Mr. Kulundu. Firstly, is the case of Lebohang Sello v 'Mamotlatsi Semamola and others CIV/APN/319/96 (Unreported) and secondly this Court of Appeal case of 'Manthabiseng Ntoane and Others v 'Mabatho Rafiri C of A (CIV) No42/2000 where Ramodibedi J states the following at page 9 thereof:
"Each case must be decided on its own merits and the Court must not be bound by any flexible Rules when determining the question as to who has the right to bury. It is true that the heir must always be given first preference whenever it is just to do so but there may well be cases where the heir himself is unsuited to bury example where he had not lived with the deceased for very inordinate lack of time."
Although there is this allegation that the First Respondent may have not lived with the Deceased for a long time I was not called to decide on the matter.
I am satisfied that the Applicant correctly believes that the First Respondent had such a right to bury the Deceased but it is proved that she is unable to do so. I am satisfied that all the circumstances of this case indicates that this First Respondent now stands being unable to discharge the duty. And evidently it could be that she is out of funds and she could even be that it is the result of the conduct of that Applicant. And I strongly suspect that Applicant may be responsible for having taken the funds.
Mr. Putsoane spoke of the need for this Applicant to have come with clean hands. This is short of saying that I do not have to possess sufficient evidence to prove that Applicant has done wrong. I did not agree. If not the Court would stand out having to investigate each and every issue that arises which is not strictly relevant. It should have been relevant if the funds were claimed. But as matters stand they were claimed at the Magistrate Court and the question is whether those funds be available in order that the Deceased be buried. In the ordinary run of things it will be a month or so before the Magistrate is able to give judgment. That is why it becomes clear now that it was unwise that those funds were not claimed together with the opposition that was put out by Mr.
Putsoane's clients in the present case.
I do not agree that Ramodibedi J's dictum in that case of 'Mabatho Rafiri (supra) is good defence to the failure by Respondent to counter-claim. The dictum is at page 11 of that judgment where the learned judge says:
"Courts should be astute to ensure that litigants do not seek their intervention in burial applications to determine disputes or inheritance to estates."
Here it is different because Mofolo J had already ordered that the items in prayer 2(c) of the first application be produced and delivered by the Applicant. Then why separate things when a judge had already ordered that books be given over to the First Respondent? Why should the funds not be claimed in the same way. Before Mofolo J the books were duly claimed, why cannot the funds be claimed before this Court? It is not a good defence therefore to say claim for inheritance to estates was being avoided. It was not. The claim should have followed on the order that the learned Judge had already made on the 24th December 2002 then if it was discovered that the funds were taken out why was the issue not properly followed before me. So that, finally, all the indications are that if we are to rely upon expected recovery of the funds for the purpose of burying the Deceased, this Deceased will end up not buried. That is if we are going expectantly follow what the Magistrate will end up deciding which is hopelessly
I often remark that the question or the principle behind duty of right burial of deceased people is not well understood. The important principle is that people and families have a duty to bury the deceased as against people having a right to do so. It is a matter of duty. The question being "Who is it that is charged with duty if the other fails"? So that is the real issue in the Applicant's case is that. If A fails in his duty to bury B, C must necessarily be seized at the duty. If not any of the deceased's relatives and the family will bury. And if not the chief and the villagers. That is how this must work in this case. So that all in all, I decide that, in the circumstance of this case application succeeds. I make no order as to costs.
One thing that I must impress is that I had to do my level best to make this contestants to settle this matter amicably. A suggestion made by Court that parties must settle should not be taken lightly although is not binding. Litigation is costly and stressful. This can often be avoided. That parties must seek as much as possible to settle disputes outside Court should always be taken seriously. I also suggested that the Applicant could kill or offer a cow for burial and that the First Respondent must put in a coffin. At that time it was not expected that there were problems like these. All agreed that they would
attempt a settlement. And if settlement is not arrived at the Court as it is its duty will be bound to make a final decision. On reflection it will always appear that Courts fights such as the present were unnecessary. Surely a matter such as this should, after all, have been settled amicably.
I have made this order with the understanding that First Respondent had a primary duty to bury the Deceased but there were some problems that I loathed to dwell on. All I was interested in is that the deceased must be buried peacefully as soon as possible so that his soul will truly rest in peace.
28th January 2003