Nat Molomo & Caswell Tlali
TEYATEYANENG — The battle was fought in a tiny courtroom at Teyateneng Magistrate’s Court.
The man who was the subject of that bruising battle, Harebatho “Black Jesus” ‘Musa, was not in court.
His body lay lifeless at a morgue, possibly a few minutes’ walk from the court room.
‘Musa, 70, who was known to many simply as BJ, died two weeks ago.
Although it was his wife, ’Mamandla ’Musa, who was in court yesterday, it was in the end BJ’s battle.
It was his idea to be buried in his yard that had necessitated this rare court hearing on a rare day like Saturday.
The Malubalube Local Council had brought an application to court arguing that ‘Musa should not be buried in his yard but at a community cemetery in the village.
They argued that burying him in his yard would violate local government by-laws which stipulate that graves must be in a designated area.
BJ planned his burial some 21 years ago, way before the Local Government Act became law in 1997.
He made graves for his daughter, his wife and himself.
The arrangement was approved by the principal chief of the area and a feast was held for the “official opening of the graves”.
And when his daughter died in 1996 she was buried there.
The news that the local council was blocking the burial of BJ in his preferred grave therefore startled his wife, ’Mamandla.
She hired family lawyer Haae Phoofolo for the legal fight.
In court on Friday, Phoofolo argued that the law could not be applied retrospectively because Local Government Act had been enacted eight years after BJ had created his cemetery.
But when the magistrate postponed the hearing to yesterday it seemed as though the local council was going to prevail.
Time did not favour BJ.
Yesterday’s hearing was only due to start at 9am yet his burial had been set for 3am yesterday.
Outside the courtroom Phoofolo took ’Mamandla aside for advice.
He told ’Mamandla that it would not be wise to bury BJ at his cemetery before the outcome of the hearing because if they lost the case they would be forced to exhume the body.
A determined ’Mamandla said if push came to shove she would go against the court order.
“BJ has already suffered enough so I am prepared to go to jail,” ’Mamandla said.
Phoofolo then advised her to consult other family members.
It was at that consultative meeting that a decision was made to hold back the burial until the court ruling.
Judging by the number of people who had squeezed into the tiny courtroom, it was clear that the case had captured the interest of many people.
“The application was based more on the wishes of the people rather than the law,” said Phoofolo during yesterday’s hearing.
“The Acts of parliament, which are the principal law, are only enabling legislation and not in themselves, and cannot be treated as by-laws,” Phoofolo said.
Phoofolo said the fact that the council had told BJ’s wife that they had heard that she was planning to bury her husband in the yard and was advising her against that meant the council did not have any law to prohibit the burial.
If the council had a legal basis for blocking the burial it should have quoted the clauses of the law, Phoofolo argued.
“Where is the gazette because the principal law says that the bye-laws for regulating the affairs of the council shall be gazetted?” the lawyer said.
“Unless the Malubalube Community Council produced a law that prevents people from being buried in their yards this application has no basis.”
The lawyer for Malubalube Community Council, Mojalefa Phomane, said Phoofolo’s accusation that the council had acted maliciously by not serving papers on BJ’s wife on time was not true.
Phomane maintained that ’Mamandla would be violating the law if she buried her husband in the yard.
Magistrate Moopisa Motilane then deferred judgment to 6pm saying she was tired because she had been listening to the protracted argument the whole day.
When she came back at 6pm she delivered a victory judgment for BJ.
She said the council should have produced a gazette to show that the cemetery in which it wanted BJ to be buried had been designated.
Because the council could not produce the gazette the court had no choice but to allow BJ to be buried in his yard, she said.
Phoofolo said although the ruling was made by a magistrate’s court it was landmark judgment “because everybody who wants to bury their dead even in their yards must be shown proof of a gazetted site if their local authorities oppose such burials”.
Black Jesus was buried last night immediately after the court ruling.