R v Ndondozela (Rev. Case No 202/2004 CR 1763/2004 Rev. Order No 20/2004)

Media Neutral Citation: 
[2004] LSHC 118
Judgment Date: 
11 October, 2004

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[N THE HIGH COURT OF LESOTHO

In the matter of:


REX

V

JAN NDONDOZELA


Review Case No 202/2004 CR 1763/2004

Review Order No 20/2004 In Maseru District


REVIEW ORDER 11th OCTOBER, 2004


This matter came to me on review.


The accused was charged with contravening section 87(1) of the Land Act No 17 of 1979 in that:


"The said accused did unlawfully occupy land without proper authority"


In the charge sheet the word "wrongfully" has been crossed out.


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The accused pleaded guilty and was according to his plea found guilty as charged. The Magistrate then sentenced the accused to M5000.00 or 5 years imprisonment the whole sentence was suspended for two years. The fact of the case were summarised as follows:


"Evidence would show that on 3/01/04 accused went to the chief and asked him to bury his relative.


The Chief refused on the ground that the deceased was not staying in his place.


Accused left and came back with chief Matsoso with deceased and buried him regardless of the fact that the chief had refused.


Accused had no authority to use or occupy that land.


It is only the Maseru City Council that can authorize the allocation of land."


The record shows that the accused accepted these facts.


The first problem in this case is that the name of the chief and the area where the accused was asking to bury the deceased is not mentioned. It is also not clear what is meant by the term "the deceased was not staying in his place."


The second problem is that the authority of that chief to permit or refuse to allow a burial is not disclosed. If it is the Maseru City Council that is the land allocation authority, then I do not understand how the chief whose name is not disclosed features. It was in my view necessary to state where exactly the land that is alleged to have been invaded is.


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The other important issue is whether burial and land allocation are same thing. Has the accused buried deceased at a cemetery? This is also not disclosed. If chief Matsoso authorized the burial wrongfully and unlawfully why has chief Matsoso not charged.


If chief Matsoso invaded the other chief's jurisdiction and allocated accused a burial site, then he is the principal offender. If he is the Senior Chief where a subordinate chief has refused to allow a burial, then no offence is committed.


The administration of cemeteries and burials in the Maseru City is an issue that should have been clearly stated if the offence was committed in the Maseru City. But as I have stated this was not disclosed. The other question that bothers me is what does the unnamed chief has to do with this burial site, if this is a Maseru City Council responsibility.


In Basotho Society, all burials are the sacred duty of those who have a duty to bury the deceased see Matsotang Mafereka V Tjomela Mafereka & two others 1991 -96 LLR 445 at page 450. It is the duty of the authorities to facilitate the burial of the deceased. Voet X1.7.7 says the heirs of the deceased have a duty to bury the deceased:


"If no one has been so named, it affects the legitimate children or blood relations, each in order of succession. If they are also wanting, it is the duty of the magistracy to take care that the deceased is buried out of his own money or property. Nay indeed anybody... however a complete stranger, so that dead bodies may not He unburied..."


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In Basotho custom as summarised by the Laws of Lerotholi II section 30:


"Every man residing in the village in which death may occur or... such adult as may be ordered by the chief, headman, sub-headman, shall assist in digging the grave for the burial of the deceased person."


In Ramahloli VRamahloli CIV/APN/479/93 (unreported) this court said:


"From this the court concludes that the right and duty to bury the deceased is shared by the family, the heir and the community... In Basotho Custom, it is the chiefs duty (who stands for the magistracy) to see that the deceased is buried. Even if the family is there, burial is regarded as the legal and moral duty of the community."


The family has precedence because burial is closely linked with the law of succession and has a close relationship with the deceased. The way this accused did not get the assistance and co-operation from this unnamed chief strikes me as violating what Cullinan CJ in Mokoatle V Senatsi & another C1V/APN/163/91 (unreported), called "a custom which is common to all mankind namely, respect for the dead." The chief (if he really was the proper authority) failed in his duty to see deceased people are decently buried.


To claim the deceased did not live in the village violates the custom that deceased should be buried near his relatives so that the deceased's grave can be well tended and looked after. Voet XI.7.1 shows that the Dutch share with Basotho Custom the treatment of graves as sacred and states.


"A place is hallowed in which a dead body either of a free human being or a slave, or the main portion of it, to wit the head has been laid."


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For the above reasons:


I quashed both conviction and sentence of the accused and found him not guilty.


W.C.M.MAQUTU

JUDGE OF THE HIGH COURT


Copy: Chief Magistrate

The Magistrate - Maseru

Director of Public Prosecutions

O/C Police - Maseru

O/C Prisons – Maseru


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