What does the 17thC legal writer Johannes Voet have to do with a dispute in modern-day Lesotho? Quite a lot, as it turns out. For it was Voet who wrote about the principles that must apply when deciding who has the ‘right’ to bury a deceased person, and Judge Moroke Mokhesi of the high court in Lesotho quoted that author to explain that a woman’s blood relatives had every right to ask for the right to bury her.
Their right had been put in question by the woman’s husband who has been formally charged with her murder, but who is out on bail. Incensed because they believe he was responsible for her death, the woman’s own birth-family have strongly objected to the husband being given the privilege of burying her.
The couple were married in 2012 and lived together from then on. The wife ‘developed complications’ and was transferred to a hospital in South Africa where she died. But what caused those ‘complications’, asked the court?
According to her birth family, she was assaulted so badly by her husband that she developed complication that led to her death. On the other hand, her husband claims that the medical report shows she died of natural causes.
Dealing with the question of whether the woman’s birth family had a ‘direct and substantial interest’ in the question of her burial, something challenged by the husband, Judge Mokhesi found that they did, regardless of whether the husband and heir was still alive.
The judge also found that the family had standing to ask for other aspects of their initial application that the husband contested.
Both sides of the dispute based their position on medical reports. The woman’s birth family quoted the pathologist’s post-mortem report that said she died from massive internal bleeding, and noted the details of which organs were found most damaged.
The husband said he had to be considered innocent until proven guilty. He also quotes a medical report and claims she died of natural causes. She was found to have had a black eye, which he says was caused because she fainted and that she was ‘diagnosed with depression’.
Judge Mokhesi found two somewhat similar cases from which he concluded that the right of an heir to bury a deceased person was not absolute, and in appropriate cases the rule could be disregarded by the court ‘where public policy and a sense of what is right dictates such a course of action’.
The husband in this case seemed to be suggesting that Judge Mokhesi had to wait for the criminal court’s verdict ‘before responsibility for his wife’s death can be attributed’.
‘With all due respect, that approach is wrong,’ said the judge. ‘Where evidence is available as to whether (one) spouse is responsible for the death of another, a civil court should not shy away from making a determination of responsibility for such death.’
As to the medical report on which the husband’s claim that his wife died of natural causes was based, the court found that it represented the superficial observation of a doctor when the woman was first admitted to hospital.
Judge Mokhesi said he found it ‘rather odd’ that the husband ‘wholeheartedly embraces’ what could appear to suggest that she died of natural causes, yet ignored that the same doctor, in the same report, notes that the woman reported having been assaulted by her husband, that she was ‘hit with fists and throttled’, that she felt pain in her chest and that she fainted and vomited.
The subsequent detailed post-mortem report ‘lays bare the gory details of the extent of the … traumatic bleeding’. Because the husband relied on the first report, written by the admitting doctor, there was a dispute of fact. In such a case, the version of the respondent should be the preferred one, unless that version is, among others, ‘implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.’
The judge said the husband’s version that his wife died of ‘natural causes’ was clearly untenable when seen in the light of the post-mortem report, and the court rejected it.
So, what had caused her injuries? From all the facts ‘a clear picture of what transpired emerges.’
The husband’s ‘religious reliance’ on the admitting doctor’s initial report, totally disregarding the post mortem report, was ‘opportunistic and ridiculous’. In protesting his innocence, he did not make even a ‘fleeting mention’ of the post mortem report.
The court found that the answer to the question of how the woman sustained all the terrible injuries ‘could not be more glaring’: she was assaulted on 3 September 2021 but only taken for medical observation more than a week later, where she succumbed to internal bleeding resulting from the same assault.
‘The (husband) is responsible for the death of his wife. In my judgment, there is nothing natural about the way the deceased met her death. She met her death in a violent way, and that violence could only have been meted out by (the husband). I find it unnecessary to determine whether he is guilty of culpable homicide or murder as such a call (can) only rightly be made by a criminal court.’
Given these findings, should the husband be deprived of the right to bury his wife?
Judge Mokhesi found that he should. The wife had been ‘brutalised by her husband in what is plainly a callous act of domestic violence.’
Such behaviour offended public policy the world over, which frowns on women being abused and brutalised. It would offend a sense of what is right to allow him to bury her merely because he is the heir. The only ‘reasonable and fair’ thing to do was to authorise the woman’s blood relatives to bury her ‘in consultation with the heir and his family’.
The court also agreed that the master of the high court should administer the woman’s estate on behalf of the children.
In his formal order, Judge Mokesi declared the husband ‘unworthy to bury the corpse of his late wife’, and that her blood relatives were authorised to do so ‘in consultation with the heir and his family’. He also ordered that the Master should administer the woman’s estate on behalf of the children, and ordered that the local police should ‘keep law and order during the burial’.