IN THE HIGH COURT OF LESOTHO
In the matter between:
MOHOLOBELA SEEISO MOHOLOBELA Applicant
MAPAKISO SEPEPANA 1st Respondent
THATO MAPHEKHO 2nd Respondent
MATUMELO TSOLOHO NAKALEBI 3rd Respondent
NTHAKO RALINTSI 4th Respondent
MOTLALEPULA RALINTSI 5th Respondent
MASTER OF HIGH COURT N.O. 6th Respondent
Delivered by the Honourable Mr Justice T. Nomngcongo
I have already dismissed this application and indicated that my reasons would follow. These are my reasons.
The applicant approached court on a certificate of urgency seeking relief in the following terms:-
Dispensing with the ordinary rules pertaining to the modes and periods of service due to the urgency of this matter.
Directing the parties to file their respective pleadings with such shortened periods as this Honourable Court shall deem fit to enable this matter to be dealt with on an urgent basis.
A rule nisi do hereby issue calling upon to show cause if any on the date to be determined by the above Honourable Court why:-
The Respondents and/or their agents shall not be interdicted from burying the body of the late Alice Mamapolesa Seeiso Moholobela (Alias Alice Mamphekho) at a site situated at Matelile belonging to the estate of the late Chief Simon Joel Seeiso Moholobela.
The first to third Respondents and/or their agents shall not be restrained from disposing, alienating, destroying and/or selling both movable and immovable assets of the estate of the late Chief Simon Joel Seeiso Moholobela.
The purported marriage between the late Chief Simon Joel Seeiso Moholobela and the late Alice Mamapolesa Seeiso Moholobela (Alias Alice Mamphekho) shall not be declared null and void and of no force and effect.
The estate of the late Simon Joel Seeiso Moholobela shall not devolve intestate under Common Law . on the Applicants as heirs to the estate of the late Simon Joel Seeiso Moholobela.
The first to third Respondents shall not be ejected from the site situated at Matelile Ha Seeiso they are presently occupying belonging to the late Chief Simon Joel Seeiso Moholobela.
The Respondents shall not be ordered to pay the costs of this (sic) proceedings in the event of opposing this application.
Further and/or alternative relief.
That prayer 1,2,3(a) and 3(b) operate with immediate effect as interim reliefs.
A Rule Nisi was ordered to issue by my sister Hlajoane J. in terms of the notice of motion and applicant obtained an interim court order. This was anticipated by the respondents in terms of Rule 8 (18) by notice to the applicants. Together with the notice the 2nd applicant also filed a rather lengthy supporting affidavit whose sole purpose was to motivate the anticipation of the rule. This was completely unnecessary as such a notice serves, in my view the same purpose as a notice of intention to oppose and it certainly is not an application and it should never have been brought as such. This was an improper procedure which the applicants might have, but have not chosen to object to in terms of Rule 30 (1). They did so at their own peril.
I must remark that it has now most unfortunately become a regular feature in applications regarding the right of burial of deceased persons for applicants to simultaneously stake their claims for inheritance in the deceased estates. They then ride on the need for urgency in such a situation to try and get what they would normal have to get by way of action because of the inherent and therefore quite foreseeable disputes of facts, such as, are matters of inheritance. This is an abuse of process.
This is one such application. The death of the deceased has been used as an occasion to have the applicants declared as heirs to the estate of the Chief Simon Seeiso Moholobela, to declare his marriage to the respondents late mother null and void and to eject respondents from a certain site belonging to that estate. There is nothing urgent about all these.
When the matter was argued before me Counsel on both sides agreed that the only question central to all these issues before me was whether there
was a valid marriage or not between the late Chief Simon Joel Seeiso Moholobela and the late Alice Mamapolesa Seeiso Moholobela. In passing it is interesting to note that the applicants themselves refer to her by a name denoting or at least suggesting that they regard her as the wife of the late Chief. Counsel confined their brief argument to only this aspect of the matter and I propose to address such argument only more so because of the view that I hold of the case. The question whether the late Alice Mamapolesa Seeiso Moholobela was the wife of the late Chief Simon Joel Seeiso Moholobela does not arise for the first time in these proceedings. It was raised when the late Chief died and the late Alice claimed the right to bury him. The respondents say that matter has not been decided. The applicants said nothing about this in their founding papers. That of course amounts to material non-disclosure in an application brought ex parte. But then again this dispute was just not only foreseeable by the applicants who approached the court ex parte, but it was also known to the applicants at least one of whom was a party in that case (CIV/APN/209/02) (See Koko
Thapelo Deke v Maghoai Marystella Qhoai & 4 ORS. 1985 – 1990 LLR p. 458). In view of this it is not necessary for me to decide whether there was a valid marriage or not between the late Chief Moholobela and Alice Moholobela: The application itself is misconceived. It was not urgent and there were clear disputes of fact.
The application was dismissed and the rule nisi discharged.
For Applicant: Mr Dichaba
For Respondents : Mr Mosito