Q A & Another v K O & Others (C of A (CIV) 48 of 2021, CIV/APN 337 of 2021)  LSCA 41 (12 November 2021);
In what circumstances may an heir (spouse) be denied the right to bury a deceased spouse? Court sets out the applicable legal principles - there is no inflexible rule - each case should be decided on its facts - the test is what is just in the circumstances?
Please note that certain names and personal details have been redacted from this document to protect the privacy of the parties concerned.
IN THE APPEAL COURT OF LESOTHO
HELD AT MASERU C of A (CIV) 48/2021 CIV/APN/337/2021
In the matter between:
Q A 1ST APPELLANT
M A 2ND APPELLANT
‘K O 1ST RESPONDENT
‘L O 2ND RESPONDENT
R O 3RD RESPONDENT
LESOTHO FUNERAL SERVICES 4TH RESPONDENT
MASTER OF HIGH COURT 5TH RESPONDENT
OFFICE OF COMMANDING 6TH RESPONDENT
MABOTE POLICE STATION
COMMISSIONER OF POLICE 7TH RESPONDENT
ATTORNEY GENERAL 8TH RESPONDENT
CORAM : K.E. MOSITO P
P.T. DAMASEB, AJA AND
M. H. CHINHENGO, AJA
DATE OF HEARING : 27 OCTOBER 2021
ORDER GRANTED : 27 OCTOBER 2021
DATE OF REASONS : 12 NOVEMBER 2021
In what circumstances may an heir (spouse) be denied the right to bury a deceased spouse? Court sets out the applicable legal principals - there is no inflexible rule - each case should be decided on its facts - the test is what is just in the circumstances?
PT DAMASEB AJA:
 This appeal concerns two rival claims to bury a deceased Mosotho woman, ‘M A born R C O (the deceased), who died intestate on 11 September 2021 in Bloemfontein, South Africa. She was married by civil rites to the 1st appellant (Q).
 The rival claimants are the deceased’s biological family represented in these proceedings by the 1st to 4th respondents, and Q and his relatives who are the remainder of the respondents.
 I will refer to the two families respectively as the ‘O family’ and the ‘A family’.
 The O family approached the High Court in September 2021 seeking urgent interim relief pendente lite that they –not the A family - are best suited to bury the deceased.
 They sought the following substantive relief:
a) That pending the finalization of this application, the [Lesotho Funeral Services] is ordered not to release the corpse of the [deceased] to [Q] his family and or his agents.
b) That pending the finalization of this application all parties should not access, use or interfere with any funds belonging to the [deceased].
c) That [Q] be declared unfit to bury the corpse of [the deceased] or to benefit from proceeds accruing out of her part of the joint estate.
d) That the applicants and the O family be and are hereby authorised and allowed to bury the corpse of the [deceased].
e) That the corpse of the [deceased] be released to the applicants for burial at Maqhaka in the district of Maseru.
f) That Vodacom Lesotho be allowed and authorised to release or facilitate the release of the funds for purposes of burial of the [deceased] to the applicants.
g) That all parties involved in this litigation are, save as stated in prayer d) above, interdicted from accessing or administering any funds connected with the deceased …or her estate.
h) That the Master of the High Court should administer the estate of the [deceased] on behalf of her minor children.
i) That [Q] be declared unfit to raise and have custody of the minor children …
j) That the Master of the High Court should make a specific enquiry, involve a social worker and report to court accordingly in respect of what is in the best interest of the children regarding their custody and the proper place of their abode.
k) That the police be ordered to keep order during the burial and exercise such other powers they have per law.
 The founding affidavit on behalf of the O family is deposed to by the 1st respondent (K) who is the biological elder sister of the deceased. According to K, because Q is the author of the deceased’s death. He and is family are unsuitable to bury the deceased. (In paras -  I set out in full the basis on which that allegation is based as the material facts are largely undisputed).
 The other relief sought by the O family is that Q had lost the right to inherit from the deceased as he cannot benefit from his wrongdoing. That is the basis for the relief sought under prayers (c) and (h) of the notice of motion. Para (h) of the relief seeks to order the Master to administer funds in estate for the children while (j) calls upon the Master to inquire into the best interests of the children in relation to their custody and place of abode.
 What is of concern is that in the proceedings largely aimed at securing a quick burial of the deceased, K sought an order that the interests of the minor children of the union between the deceased and Q be divested of the latter and be placed under the control of the Master of the High Court.
 On the strength of the allegation that Q killed the deceased, K maintained that :
‘…it is unconscionable that [Q] would dare to attempt to benefit from the portion of the estate which belongs to his victim, his wife that he mercilessly killed’.
 To support the prayer that Q be deprived of the right of guardianship over the minor children of the marriage, she alleged that the physical abuse of the deceased by Q was often perpetrated in the presence of the minor children. According to her, it was thus necessary for the court to protect the children from Q. To that end, the court was asked to order an enquiry in terms of the law into what is in the best interest of the children.
 Q and the 2nd appellant, his elder brother (M), opposed the application and in limine alleged that the applicants lacked locus standi as they have no right of inheritance from the deceased.
 The A family also pleaded over on the merits and denied that Q killed the deceased as a doctor’s report demonstrates that she died of ‘natural causes. He maintained that the fact that he was arrested and charged for murder is an irrelevant consideration as he is presumed to be innocent until proven guilty at this stage.
 He alleged, in the alternative, that even if he bore some responsibility for the demise of the deceased that did not disentitle him to bury late wife and that if he, for any reason, were found to be unsuitable, his relatives – in particular M - assumed that responsibility under Basotho custom as the deceased was by marriage now part of the A family.
The High Court
 The High Court (Mokhesi J) dismissed the in limine objection of lack of locus. The learned judge held that under the common- law a deceased’s blood relatives have a direct and substantial interest in the burial.
 The learned judge a quo correctly held that the O family’s relief seeking an order to disinherit Q was incompetent because the applicants lacked a direct and substantial interest (locus standi) to seek such relief.
 In regard to the prayer asking the court to order an enquiry regarding the custody of the minor children of the marriage, the court a quo, and again correctly, concluded that such matters are properly within the jurisdiction of the Children’s Court and are best ventilated in that forum.
 As regards the order asking that Q to be divested of the responsibility to administer the estate on behalf of the minor children, the court a quo held that the O family had demonstrated that they have a direct and substantial interest to seek such an order. The learned judge reasoned that it was in the best interest of the minor children that there is an orderly administration of the deceased’s estate under the supervision of the Master of the High Court. The importance of the best interest of minor children has the consequence of relaxing, according to the learned judge, the ‘strictures of standing or locus standi …which might conveniently be raised by surviving spouses who are unwilling to report …estates for reasons which might redound not to the benefit of the minor children.’
 Mokhesi J then made the following order:
a) The 1st respondent is declared unworthy to bury the corpse of his late wife
`M A born R C O.
b) The applicants and O family are hereby authorised to bury the corpse of the late `M A in consultation with the heir and his family.
c) The corpse of the late `M A born R C O should be released to the applicants for burial at Maqhaka in the district of Maseru.
d) Vodacom Lesotho is authorized to release or facilitate the release of the funds for purposes of burial of the late `M A born R C O to the 3rd applicant or her duly authorised representative.
e) The Master of the High court should administer the estate of the late
`M A born R C O on behalf of the minor children in terms of the prescripts of the Children’s Protection and Welfare Act 2011.
f) The Mabote Police is ordered to keep law and order during the burial and to exercise all such powers as are bestowed on them by the law.
g) There is no order as to costs.’
 As I will later demonstrate, the dismissal of the relief seeking to disinherit Q is not challenged on appeal and nothing further needs to be said about it.
 Aggrieved by the judgement and order of the High Court, the appellants appealed to this Court. The appellants’ grounds of appeal state:
 The learned judge erred and misdirected himself in holding that Applicant is unfit to bury his late wife merely because he is charged with her murder. The right to bury primarily vests with 1st Respondent.
 The learned judge erred and misdirected himself with authorizing the 1st to 4th Respondents to bury the late `M A nee R O disregarding the right of burial of the A family primarily. 2nd Appellant as the head of the A family and the A family as the deceased was married into the said family.
 The learned judge further erred and misdirected himself in holding that the 9th Respondent should administer the estate of the late `M A nee R O on behalf of the minor children to the exclusion of the 1st Respondent who is the deceased’s lawful husband and heir.
 The learned judge erred and misdirected himself in that he has failed to properly apply his mind and ignored the preliminary point that Applicants, lacked the necessary locus standi to file this application.
 The learned judge erred and misdirected himself in holding that the 1st Applicant is unworthy to bury his late wife including that he has assaulted her leading to her death yet Applicant has not been convicted by any competent court.
 Advocate Molapo for the A family submitted that the fact that Q has been charged with the murder of his wife does not denude him of the right to bury her. After all, counsel submitted, he is presumed innocent until proven guilty. Adv. Molapo also submitted that the doctor who attended to the deceased upon admission in Bloemfontein and prior to her death reported that she died of ‘natural causes’.
 Counsel further submitted that even if Q were found to be unsuitable, the responsibility to bury the deceased devolved upon the other members of the A family into which the deceased had married. Adv. Molapo therefore submitted that the High Court erred in holding that K had locus standi to bring the application to oust the A family’s right to bury the deceased. He submitted that K only had a ‘derivative’ interest as a blood relative.
 Advocate Molati for the O family supported the judgment and order of the High Court and in the main submitted that there is no inflexible rule as to who should bury a deceased and that, on the authorities, each case is to be determined on its facts guided by what is just in the circumstances.
 I am not persuaded by Adv. Molapo’s submission on behalf of the A family that the test for determining who should bury a corpse is to be determined in terms of, or with reference to, the law relating to inheritance or ‘succession’. If I understood him correctly, counsel deployed the latter concept loosely in the sense of Basotho custom where, according to counsel, the head of the family’s responsibility to take care of the family devolves upon the next in line in the event that the primary repository of the responsibility is unable to perform it for one or the other reason. In context, that failing Q, the responsibility to bury the deceased passed on to M.
 When a person dies, it is in the public interest that the body is buried as quickly as possible. Even in death, a person is entitled to be treated with dignity and decency as to the manner of burial.
 In the absence of a testamentary stipulation by a deceased person as to who should assume the responsibility for his or her burial, the heir must be given first preference, more so if he or she is a surviving spouse.
 In the case of a surviving spouse, he or she may be denied that right or privilege where (a) he or she had been separated from the deceased for a considerable length of time such that they had become emotionally detached from each other, or (b) the surviving spouse has killed the deceased or has, in relation to the deceased and prior to his or her death, engaged in conduct which would make it repugnant to public morality, sensibilities and policy for the surviving spouse to assume the responsibility of burying the deceased.
 Where a surviving spouse is found to be unsuitable, close relatives of the deceased either from the direct blood line or through marriage may be considered, but where there are rival claims the preference should be given to that person or persons who can demonstrate a strong enough emotional bond with the deceased prior to his or her death.
 It is imprudent to set down an inflexible rule. Each case must be considered on its facts and surrounding circumstances. The true test is: What is just in the circumstances? As Ramodibedi JA put it in Ntloana:
‘[C]onsideration of the question of the right to bury cannot be divorced from equity and public policy. A sense of what is right in each particular case should prevail. This includes the need for proper consultation with the deceased’s family members (including the person on whom the right to bury primarily lies) aimed at giving deceased persons decent burials.’
 It would set a dangerous precedent to hold that where a spouse is accused of having caused the death of the deceased, that is immaterial and irrelevant because he or she is presumed innocent until proven guilty in a court of law. Gender-based violence against especially women and children by men has become a scourge in our society. The courts should not contribute to its continuation by setting standards which might encourage it. Here the criminal standard of proof or the fact of conviction is not the decisive consideration.
 It would offend the bones mores of the community and the sensibilities of right-thinking people if a person who is found to have been in some way criminally blameworthy for the death of another is given preference to bury his/her victim; when there is a clear and bona fide expressed desire on the part of another with close blood connection to be afforded the opportunity to bury the deceased.
 In the first place, was the High Court correct to grant order (e) which is effectively a final relief, when the applicants approached court on an urgent basis seeking an interim order?
 The second question is who, based on the common cause and undisputed facts and circumstances, was best suited to take control of the deceased’s remains and to inter it ?
 On behalf of the O family, Mr Moloti conceded that the most important issue at this stage in the aftermath of the demise of the deceased is to ensure that the remains of the deceased are put to rest. Inheritance and custody over minor children and their rights relative to the estate of the deceased are issues properly regulated by law and which can be dealt with at the right stage and in the fullness of time. In that process those who are entitled to inherit may raise any objections permissible under the law and take any appropriate steps to enforce their rights. That would include the O family taking appropriate steps to challenge Q's right either to administer the deceased’s estate or to disentitle him from inheriting from the share of the deceased’s estate.
 The same considerations will apply a propos custody over the minor children and who may properly assume guardianship rights over the minor children of the marriage between Q and the deceased.
 That concession has the consequence that order (e) of the High Court’s order cannot be sustained. Had it not been sought as final relief but as some interlocutory relief pending determination of issues in paragraph (j) of the substantive relief (para ) I may have a different view of it. Most importantly, in the manner it is framed or worded: it is final in nature and deprives Q the opportunity to properly exercise his rights at the right time when the estate is reported to the Master.
 It is not fair to Q that final relief was granted when what the applicants came to court for was, or should have been, interim relief pendente lite.
Law to facts
Common cause facts
 It is undisputed that the deceased died in a Bloemfontein hospital on 11 September 2021. She was with Q at the time. The doctor who attended to her when she reported at the hospital recorded as follows:
Mrs M A (born 06/06/1991)
Referred from: Maseru Private Hospital Referred by: Dr. Thabiso Kolobe
Mrs. A was admitted to Pelonomi Hospital on 10 September 2021.
History: (As given in the referral letter and confirmed by Patient). She was admitted assaulted by her husband on Friday 3 September, hit with fists and throttled. Subsequently she had been weak and feeling dizzy. She fainted three times and vomited several times. She also complained of pain in her upper chest on the left.
She had no history of fainting or convulsing. Physical examination revealed no external injuries, but for bruising around the left eye. She was fully conscious.
Examination to her chest, abdomen and limbs was normal. Her heart rate was 100 beats per minute. Her blood tests were essentially normal for raised liver enzymes.
She was treated with pain relief medication (Rayzon and Perfalgan) and planned for CT scan of her brain for the following day.
In the early hours of 11th September 2021 she collapsed and died despite efforts resuscitation by nursing staff and hospital doctor on duty.
 A post-mortem was subsequently conducted on the deceased’s body. I set out its contents in full in para  below.
 Contrary to Mr Molapo’s suggestion to the contrary, Dr Mosese’s report nowhere suggests that the deceased died of ‘natural causes’. In fact, that report in material respects corroborates the post-mortem findings that the deceased died because of violence perpetrated on her.
 The Dr Mosese report which was proffered into evidence by Q himself makes clear why the deceased came to hospital. It states that she was beaten up and strangled by Q. She had bruises on the body consistent with an assault.
 Q nowhere deals with the entries made by Dr Mosese. He should, on affidavit, have denied the accusations made to the doctor about him by his late wife and explained, if he knew the contrary, how the deceased sustained the injuries. By his silence he accepted the accusations made against him by his late wife on her dying bed.
 The post-mortem report by Dr L. F Phakoana is very damning and puts paid to any suggestion that the deceased died of natural causes. It records the cause of death as traumatic internal bleeding. It also makes the following findings:
‘External appearance (a)…multiple bruises on the chest. Bruise on the face left eye (‘’blue eye’’), bruises and scratches on the neck. Subcutaneous bleeding in the muscle of the neck and scalp.
Skull and its contents (10) collection of blood in the subdural space of the brain.
massive collection of blood in the thoracic cavity.
Peritoneum and peritoneal sac …collected blood in the peritoneal cavity
– lot of blood
Liver …Gall bladder and Bile ducts: laceration of the liver with a lot of
blood in the peritoneal cavity’.
 This is clear evidence that the deceased died as a result of a very violent and sustained assault. All indications are that Q contributed to that criminal act. He has not placed any credible exculpatory evidence on record to suggest otherwise.
 There is therefore, as found by Mokhesi J, no real dispute of fact that Q is rightly regarded as the author of the demise of the deceased.
 In view of the concession made by Adv. Moloti that it was wrong for the court a quo to make determinations on the issues of inheritance as regards the minor children, the only real issue is the order of that court declaring Q unsuitable to bury the deceased; and according that right to the O family.
 I have already set out the legal principles to be applied in adjudicating that issue. The undisputed facts demonstrate that Q had a part to play in the death of the deceased. It would be repugnant in the circumstances for Q to be granted the right to bury the deceased.
 The difficulty for Q's brother, M, is that the O family, in particular, K, insists on being granted the right to bury the deceased. K makes a very strong case – much stronger than M's - that she had a stronger emotional bond with the deceased prior to her death. She is the elder biological sister of the deceased. A closer personal relationship to a dead person is hardly imaginable. Additionally, she evocatively makes the point that Q's family do not intend to bury the deceased at their family rural home in Botha-Buthe but in some other place where her resting place will forever be isolated from family, whether marital or natal, when the O family will bury her at a place where some members of her natal family are interred.
 We were therefore satisfied that, broadly, the High Court approached the issue on correct principle and that its order on the right to bury the deceased is substantially in order.
 The O family clearly made out the case on the papers that in the circumstances of this case it was just that they be allowed to assume the primary responsibility to bury the deceased, in consultation with the A family. That offer of cooperation was repeated at the hearing of the appeal and resulted in the parties reaching some compromise on the aspects of the funeral arrangements to achieve cooperation between the families. That compromise is reflected in the order we made immediately after the hearing on 27 October 2021, replacing that of the High Court.
 Both counsel submitted that this is not a proper case for ordering costs against a losing party, both a quo and in the appeal.
 It was for the above reasons that after hearing oral argument on 27 October 202, we made the following order:
‘1. The appeal succeeds partially and the order of the High Court is altered to read as follows:
(a) The 1st to 4th applicants and O family are hereby authorized to bury the corpse of the late ‘M A in consultation with the heir and his family.
(b) The corpse of the late ‘M A born R C O should be released to the 1st to 4th applicants for burial.
(c) The deceased shall be collected from the funeral parlour in the morning of the burial and transported to her marital home for a short prayer service.
(d) The funeral ceremony shall take place at Molula field near Mabote Police Station.
(e) The deceased shall be buried at the Maqhaka public cemetery in the district Berea.
(f) Vodacom Lesotho is authorized to release or facilitate the release of the funds for purposes of burial of the late ‘M A born R C O to the 3rd Applicant or her duly authorized representative.
(g) The Mabote Police is ordered to keep law and order during the burial and to exercise all such powers as are bestowed on them by the law.
(h) There is no order as to costs.”
2. Each party to bear its own costs of appeal.’
ACTING JUSTICE OF APPEAL
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
M.H. CHINHENGO ACTING JUSTICE OF APPEAL
FOR APPELLANTS: ADV L D MOLAPO
FOR RESPONDENTS: ADV L A MOLATI
 W and others v S and others (360/16)  ZAWCHC 49 (4 May 2016) para 30; Voet: 11.7.7 Commentary on the Pandects, paras 1-3.
 Lethunya and Another v Thejane and Another (CIV/APN/178/87)  LSHC 89 (05 June 1987).
 Ntloana and Another Rafiri LAC (2000-2004) 279 at 285.
 Sello v Semamola and Others (CIV/APN/319/96)  LSHC 85 (30 August 1996); Ntloana
(supra) at 284-5.
 Ntloana (supra) at 285.
No Similar Judgment found.