Letsie v Seeiso and Another (CIV/APN/285/03 )

Case No: 
CIV/APN/285/03
Media Neutral Citation: 
[2003] LSHC 77
Judgment Date: 
10 July, 2003

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CIV/APN/285/03

APN/146/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


MANAMOLELA LETSIE APPLICANT

And

CHIEF MOHOLOBELA SEEISO 1st RESPONDENT

MOKHANYA TS'ASANYANE 2nd RESPONDENT


JUDGEMENT


Delivered by the Honourable Justice Mrs. K.J. GUNI on the 10th July, 2003.


The applicant in this matter is Manamolela Letsie, who described himself as a Motho male adult of HA MPALI-PALI, with business at Motsekuoa. The applicant approached this court by way of an urgent and exparte application in which he sought and obtained restraining order against the respondents from burying the deceased -ALETTA TSASANYANE who has been known as MAJEKE LETSIE, at


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HA MPAL1-PALI pending the finalization of two applications. This application which is being determined now and CIV/APN/146/2003 which is set down for hearing on the 6th May 2004.


The deceased was being buried on the 5th July 2003 when this applicant obtained ex-parte this court - order restraining the respondents from carrying on the said burial. The applicant had heard about the death of the deceased from his son prior to his receipt of the letter dated 1st July 2003, from the 1st respondent who was expressing his disappointment by the applicant's failure to give him notice of the said death. In that same letter 1st respondent advised the applicant to inform him about the steps he is going to take regarding that death. The applicant expresses a view that the deceased's death was and still is none of his concern. The applicant further claims that he came to know about the date and place of burial of the deceased from a relative of his Mathe Letsie, on the 4th July 2003. The exact date of death of this deceased is not mentioned by anyone in the paper filed of record. It must be some time in June 2003.


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From the perusal of the papers filed of record in this application together with those filed in respect of CIV/APN/146/2003 the parties in the two matters are relatives. This applicant is the cousin of the late Chief Telang Letsie - the husband of the deceased. It appears their fathers are brothers. The late chief Telang Letsie, during his lifetime lived together with the deceased as husband and wife. They have one minor child - named Mpali-pali. The 1st respondent is the principal Chief of MATELILE under whose direct administrative jurisdiction, falls the village of Ha Mpali-pali where the deceased and her late husband Chief Telang Mpali-pali resided and where the office of the chief of Ha Mpali-pali is located. As the principal chief he also claims and correctly so if I may add, to be the head of the Letsie family under his principality.


The applicant's father is the chief of KENA which is his home - a separate and different place from HA MPALI-PALI. The late chief Telang's home and area of chieftancy is HA MPALI-PALI. That is where he was succeeded by his son-on whose behalf because of his


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minority, his mother the deceased was acting as the chief during her lifetime. This is what this present applicant is challenging in CIV/APN/146/2003


In that application - CIV/APN/146/2003, the applicant is seeking a declaratory order in the following terms:-


  1. Declaring the marriage between the late Chief Telang Letsie and the 1st respondent as null and void.

  2. Declaring the applicant as the rightful successor to the Chieftainship of Ha Mpali-pali.

  3. Ordering the 2nd Respondent to comply with the family decision with regard to succession to the Chieftainship of Ha Mpali-pali.


Those prayers, and the whole application are irrelevant to the determination of the present application. This applicant claims that the recommendations have been made by his family for him to succeed (his father) to the chieftancy of Ha MPALI-PALI. His father, when he died, had never been the Chief of Ha Mpali-pali. He may have aspired to occupy the chieftancy of Ha Mpali-pali. He may have even made some attempts to occupy the same. The applicant may succeed his father in aspiring but that does not per se entitle him to claim to be a successor to that office of the chief of Ha Mpali-pali.


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Wishes are not horses. I must hasten to add that in the present application the question of who is entitled to succeed to chieftancy of Ha Mpali-pali does not fall for determination in this application. Wishes and facts must be kept distinctly separate. The applicant's wishes or desires to be the chief, do not give him a right to stop the burial of the deceased at the grave yard which does not belong to him.


In the present application the issues as gleaned from the papers filed of record appear to be whether or not the deceased should be buried before or after the finalization of the two applications i.e.


CIV/APN/146/2003 CIV/APN/285/2003


Who is entitled to make the decision of when and where to bury the deceased?


The facts that are in the common cause in this application are; (1) That since the death of her late husband, the deceased's relationship with this applicant and also his late father became extremely bad to the extent that her personal safety was threatened. She left her permanent residence and sought refuge or place of safety


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at her parental home. But as the acting chieftainess she continued to perform her official duties at the office of the chief of Ha Mpali-pali. She has not removed her residence permanently from Ha Mpali-pali. Her permanent residence together with the office of the chief are still presently at Ha Mpali-pali. She died at her parental home where she had merely sought refuge - not permanently moved her residence and office. All the burial rituals that must be performed in accordance with the Sesotho custom and tradition were performed at her parental home. The applicant does not claim the right to bury the deceased. He does not claim the right to decide the place and time of burial of the deceased. He appears to want to do absolutely nothing, except obstructing those who want to bury the deceased.


Ms. Tau for applicant has argued that the deceased may be buried anywhere by anyone except at Ha Mpali-pali grave yard. The applicant is claiming ownership of the grave site. He is not claiming any right to determine the place or even time to bury the deceased. Has he got any real and substantial interest in this matter of the burial of the deceased? What are his interests? K.T.KHAUOE V ATTORNEY


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GENERAL and Another 1995-1996-LLR and L B Page 470. His case will either fail or succeed on this question


The respondent has raised a number of points in limine thus:-


4.1 The present application constitutes an abuse of Court process in as much as it does not meet the requirement of an interdict;

4.2 The applicant not only foresaw but actually knew this application would be seriously disputed;

4.3 Applicant cannot interdict a burial pending the determination of a matter that is due to be heard on the 6th May, 2004, almost a whole year from now.

4.4 It borders on contempt for the dead and the customary way in which Basotho honour deceased people regardless of personal events towards them, to seek and interdict on the very day of the burial.

4.5 Deponent does not state what irreparable harm or prejudice he would suffer if this matter was heard in due course.


In his address Mr. Mohau for the respondent dwelt on only two of those points in limine - namely (1) Locus standi


(2) Repugnancy of prayer 1 (b) to justice and what is right.


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  1. Locus standi

By what authority - right, title is this applicant bringing this application. The applicant seems to suggest that by instituting a legal action against the deceased - in CIV/APN/146/03 he acquired a right to stop the deceased from being buried particularly when those responsible to bury her are well aware that he has initiated a legal action against her. She is dead. Even if her body is not buried, she cannot answer personally the claims made in the action instituted against her.


The legal action instituted by the applicant against the deceased, merely indicates that this applicant is an aspiring chief of Ha Mpali-pali. He is not yet a chief thereat. The institution of a legal action bestows no right to the litigant who as yet held no such right even if he hopes to succeed in his claim. There is no vacancy in the office of the chief of Ha Mpali-pali. The deceased was the acting chief on behalf of her minor son. The area where the office of the chief this applicant aspires to occupy is directly located under the administrative


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jurisdiction of the principal chief of MATELILE - the 1st respondent herein. The applicant claims the ownership of the grave site at Ha Mpalpali. Does he have any proof of the claim of that ownership? None. He hopes to succeed in CIV/APN/146/03 and then as the chief he will perhaps allocate to himself that site. Presently, the said grave site does not belong to him.


The grave site or any site for that matter, is allocated by the chief who is already occupying the office of the chief - not an aspirant of that office. It is argued that although the applicant is not yet in occupation of that office of the chief of Ha Mpali-pali, recommendations have been made by his family for him to succeed his father as a candidate for the vacancy in the chiefs office at Ha Mpali-pai. The recommendation is just what it says -recommendation. It was not, as a recommendation, bestow any right upon the person so recommended. The applicant when he insists that because of the recommendation he has a right to administer or to interfere in the administration of the village of Ha Mpali-pali by allocating burial sites or denying the same to anyone, seems to have his card far infront of his horse. The area, I repeat is administered by


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the current chief whose deceased mother acted on his behalf. The applicant never had a right to allocate burial sites or any site at Ha Mpali-pali. He has no right to restrain the current allocating authority from doing so. He in fact does not claim the powers to allocate the grave site. For him to have succeeded to prevent the deceased from being buried there without proof of his claim of ownership of that grave site was wrong. He may have been recommended to the principal chief as a candidate for the vacancy - if any existed, at the chieftaincy of Ha Mpali-pali. The recommendation by itself does not give him right to the said chieftancy.


The succession to the office of the chief is governed by the rules set out in section 10 and 11 of Chieftancy Act NO.22/68. The recommendation for candidature to the vacancy - if any existed, does not give him authority to run the affairs of that village of Ha Mpali-pai. He is not competent to allocate burial sites or to deny anyone the right to be buried there at Ha Mpali-pali. It is an admitted fact that that area of Ha Mpali-pali falls directly under the administrative jurisdiction of the 1st respondent herein. He, the 1st respondent has authority to allocate directly or by delegation of his powers to the


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local chief or acting chief, the burial sites in that area which is directly under his administrative jurisdiction.


The place of burial as allocated by the proper authority and decided upon by those with the right to determine the place and time of burial of the deceased, is properly allocated and so determined. This is not challenged. The applicant cannot challenge the same. He therefore has no locus standi. On this ground alone this application must fail.


2. The second point in limine which was raised and argued before this court concerned the repugnancy of the prayer 1 (b). This prayer reads as follows:


"Interdicting the respondents from burying the deceased Aletta Tsasanyane alias Majeke Letsie at Ha Mpali-pali pending finalization Of this application and determination of CIV/APN/146/2003"


That prayer forced those who were responsible to bury the body of the deceased to return it - it was in fact returned from the grave yard to the mortuary. There it has remained. In terms of this prayer it must remain unburied for that period of approximately one year while the final determination of CIV/APN/146/2003 is being


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awaited. There is no provision suggested as to who should bear the costs for keeping the body of the deceased while the final determination for both these applications is awaited, particularly for that long period in respect of CIV/APN/146/2003.


There seems to be no care whatsoever as to what happens to the body of the deceased. That demonstration of total lack of respect for the dead is what makes the prayer repugnant, not just to justice and what is right but to our sense of respect and veneration of the dead as a Basotho Nation. No where in this kingdom, do we find dead bodies ignored or dumped anywhere. The deceased lived there at Ha Mpali- pali permanently. After her husband's death, when this applicant and his father became so hostile to her and threaten her personal safety, she did what is expected of her in those circumstances - ran for her dear life. She died while still on the run. The argument by the applicant's attorney is to the effect that the deceased must continue running or be buried there where she fell. This is the most unrealistic suggestion. It ignores the right of those who have a duty to determine the place of burial of the deceased. The Sesotho culture and tradition demands that the dead be accorded respect at their final resting place.


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Those who die away from their permanent home - while at work or on the run as this deceased, there are rituals and ceremonies that are performed in order to bring them back home.The tradition demands that the deceased be brought from where she had fallen and died to her permanent home. It is the Sesotho custom and practice to put their dearly departed to rest soon after death. That culture is changing because for various reasons the mortuaries are making big and increasing business at an alarming rate. The idea of mortuaries has its bad and also admirable features which I should not bother to discuss in this judgement. The deceased in this matter is entitled to that veneration and must be allowed to be laid at the final resting place in peace without further undue delays. The fact that she was being sued for her occupation of the chiefs office, does not entitle the applicant to an order preventing her to be laid to rest at her own home. The applicant may if he so wishes persist in his quest to occupy the office of the chief of Ha Mpali-pali by suing the substantive occupant of that office. For asking the court for an order preventing the burial for this long a period is repugnant to our sense of justice and morality. On this ground alone this application must fail.


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COSTS:


The successfully party is entitled to his costs. In this application Mr. Mohau for respondent has requested that the court award the costs at a higher than ordinary scale. The court order restraining the respondents from carrying on the burial of the deceased was sought and obtained on the burial day. The deceased's body was returned from the grave yard to the mortuary. The disruption of the funeral process by the applicant was for no good cause as it emerged during the hearing of this matter. He had no right to prevent the deceased from being buried particularly when it was clearly no concern of his according to him. In his own affidavit, he claims to have known of the deceased's death before he received the letter from the 1st respondent on the 3rd July 2003. It also emerged from the deceased's father's affidavit that the message of the deceased's death was sent soonest after her death to her place of permanent residence and office of the chief of Ha Mpali-pali. There is evidence that scores of her subjects and relative from Ha Mpali-pali went to her parent's place to pay their last respects for a week or so before the burial


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The Sesotho funerals are expensive. It is not disputed chat the beast had already been slaughtered for the purposes of the burial rituals. Those mourners who garnered to pay their respects to the deceased were fed and entertained at the cost to respondents. The period of mourning has been unduly and unreasonably lengthened by this frivolous action by the person who is not competent to determined the place nor time of the burial of the deceased. The applicant does not want the deceased to be buried because of what appears to be some kind of disrespect for the dead. The applicant according to the evidence appears to have harboured the bad feeling and disrespect against the deceased since the death of her late husband-chief Telang Letsie. Those who want to bury the deceased will have to incur further costs for the proper maintenance of her body at the mortuary until this matter is finalised. These further mortuary costs are the result of this applicant as they are incurred as a direct result of this application. For these reasons I am satisfied that the respondents are entitled to their costs at the higher scale as requested. The costs include the cost of the second and final burial of the


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deceased. This rule Nisi is therefore discharged with costs at attorney and client scale.


KJ. GUNI

JUDGE


For applicant - Ms. Tau

For respondents – Respondents


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