Phakoe and Another v Mafoka and Another; Mofoka and Another v Phakoe and Others (CIV/APN 464 of 95) [1996] LSHC 4 (18 January 1996)

Phakoe and Another v Mafoka and Another; Mofoka and Another v Phakoe and Others (CIV/APN 464 of 95) [1996] LSHC 4 (18 January 1996)

Tšita Phakoe, as the deceased's younger brother and head of the family, is entitled by Basotho custom to bury the deceased, as the alleged marriage and legitimacy of a son have not been established in these proceedings.

Source-derived case information.

Citation
[1996] LSHC 4
Parties
Applicant: Labane Phakoe; Applicant: Mamosotho Phakoe; Respondent: Thuso Mofoka; Respondent: Tšita Phakoe; Respondent: Ramatla Phakoe; Respondent: Tatolo Phakoe; Respondent: 'Mamosotho Phakoe; Respondent: Phakoe Phakoe; Respondent: Likhoa Phakoe; Respondent: Mamatlakala Phakoe
Court
High Court
Jurisdiction
Lesotho
Judgment Date
18 January 1996
Case Number
CIV/APN 464 of 95
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed; burial rights granted to Tšita Phakoe; costs order deferred for Labane Phakoe; no costs against other family members.
Legal Topics
Burial Rights, Succession, Customary Marriage, Contempt of Court
Source Language
english
Family Law Customary Law Burial Rights Succession Customary Marriage Contempt of Court

Source-derived case record

Summary, issues, holding and outcome

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Parties

Labane Phakoe

Applicant

Mamosotho Phakoe

Applicant

Thuso Mofoka

Respondent

Tšita Phakoe

Respondent

Ramatla Phakoe

Respondent

Tatolo Phakoe

Respondent

'Mamosotho Phakoe

Respondent

Phakoe Phakoe

Respondent

Likhoa Phakoe

Respondent

Mamatlakala Phakoe

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Who has the right to bury the late Teboho Phakoe under Basotho custom?
  2. 2 Does the alleged marriage of Mamosotho Phakoe affect burial rights?
  3. 3 Should Labane Phakoe be held in contempt of court for unauthorized burial?

Ratio Decidendi

Tšita Phakoe, as the deceased's younger brother and head of the family, is entitled by Basotho custom to bury the deceased, as the alleged marriage and legitimacy of a son have not been established in these proceedings.

Court Disposition

Application dismissed; burial rights granted to Tšita Phakoe; costs order deferred for Labane Phakoe; no costs against other family members.

Orders

  • Tšita Phakoe is declared the only person entitled to bury the deceased's body.
  • Tšita Phakoe to bury the late Teboho Phakoe at a place of his choice within five days.