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[2016] ZAWCHC 49
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S.E.W and Others v Z.P.S and Others (360/16) [2016] ZAWCHC 49 (4 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE, CAPE TOWN)
CASE
NO. 360/16
[REPORTABLE]
In
the matter between:
[S…….]
[E…….]
[W…….]
..............................................................................................
First
Applicant
[M…….]
[W………]
.....................................................................................................
Second
Applicant
[A....]
[W……]
.................................................................................................................
Third
Applicant
And
[Z……..]
[P…….]
[S……]
............................................................................................
First
Respondent
CASLYN
BAILIE
N.O
.............................................................................................
Second
Respondent
WESTERN
CAPE DEPARTMENT OF
HEALTH
......................................................................................................................
Third
Respondent
JUDGMENT
DELIVERED ON 4 MAY 2016
MANTAME,
J
A
INTRODUCTION
[1]
This application for an interdict came on an urgent basis before me
on 4 February 2016. The applicants, that is, the blood
relatives’ of the deceased brought this application on the
basis that they had a right to bury the deceased who was estranged
from her husband and was virtually on the eve of her divorce.
First respondent, the deceased’s husband opposed this
application on the basis that the decision to decide the burial of
his family member rests with him, as the head of the family.
This is in line with the respect for his dignity and his
isiXhosa
culture, as the head of the family.
[2]
First to third applicants were represented by Mr Newton and first
respondent was represented by Mr Abaas. Second and third
respondents did not oppose this application.
B
BACKGROUND FACTS
[3]
The deceased [N……] [C….] [S……] and
the first respondent [Z….] [P…..] [S…….]
were married to each other in community of property at Nyanga, Cape
Town on 27 August 2005. They were later on blessed with
two (2)
children, [E…… [S…..], a boy, who was born on 10
November 2005 and [S……] [S……],
a boy, who
was born on 17 August 2010. The deceased worked as an executive
secretary at Cape Winelands District Municipality,
Stellenbosch and
first respondent as driver supervisor at the City of Cape Town, Solid
Waste Department, Woodstock.
[4]
First to third applicants are the deceased’s brothers, together
with [N….] [W……], who is the deceased’s
sister. This sister did not formally form part of these
proceedings due to the fact that she resides in the remote part of
Alice, Eastern Cape, where she was not accessible through electronic
media. As a result it was not possible to cite her in
these
proceedings nor obtain a confirmatory affidavit from her timeously.
Otherwise, it was said that [N…..] [W……]
supported this application and that was contained in a short message
system (sms) she attached to the application. Since
the
deceased biological parents had both passed away, first to third
applicants contended that they have
locus standi
to bring
these proceedings as they are the deceased’s only surviving
“blood relations”.
[5]
The deceased tragically passed away together with her two (2)
children aforementioned and other two (2) relatives in a motor
vehicle collision whilst travelling from her blood relatives
homestead in Alice to Cape Town. This accident occurred on
Saturday, 9 January 2016 near Beaufort West.
[6]
As stated above, second and third respondents did not oppose these
proceedings. Second respondent is the Facility Manager
of the
Beaufort West Forensic Services, where the deceased body was kept.
This facility falls under the control of the third
respondent.
So the body of the deceased which formed part of these proceedings
was stored by second and third respondents.
[7]
The deceased and first respondent had become estranged on or about
2014. When the deceased met her death she was no longer staying
with
first respondent. As a result thereof, deceased had instituted
a divorce action against first respondent in the Mitchell’s
Plain Regional Court on 6 October 2014 under Case Number: 1125/2014,
as it is evident from the attached summons. First respondent
initially entered an appearance to defend the divorce action, but
failed to file a plea. After various efforts were made
to
settle the divorce action, the deceased instructed her attorney to
enrol the matter on an unopposed roll for hearing on Monday,
11
January 2016, exactly two (2) days after the deceased died.
That was evident on the attached notice of set down.
It was
stated under oath that at the time of the accident, she was
travelling back to Cape Town to finalise the divorce process.
[8]
First respondent denied that he and deceased had become estranged
when she met her death. He stated that they had some
marital
problems which appeared periodically, which were not of a serious
nature and never lasted for a prolonged time. He
did not file a
plea as there were negotiations between the two (2) of them to settle
their differences and continue with their
marriage. He was
aware of the date of set down of the divorce proceedings on 11
January 2016 and intended to oppose the action.
[9]
In fact, preceding the civil union, he and the deceased entered into
a customary law union on or about 2003 in Gugulethu.
This union
was confirmed and celebrated by the observance of various rituals and
ceremonies in accordance with the
isiXhosa
tradition. According to first respondent, he paid
ilobola
to the deceased family in instalments of R8000, R12000, R4000 and
R3000 respectively. It was after the initial payment of
ilobola
that “
Kwenziwa u Tsiki
”
– (“handing over a girl”). This ceremony was
performed by the elder women of his family. This
entails that a
bride in
isiXhosa
tradition will leave her family and will be introduced to the groom’s
family and his ancestors – and become part of
this new family.
Also this ceremony is signified by a name change. The woman
remains part of the man’s family
until death, even if there
would be a separation between the parties. In this ceremony,
the deceased’s name changed
from “
N……
”
to “
N…….
”.
This was the name in which the man’s family and the ancestors
will recognise as she assumed her new identity.
[10]
The existence of this customary law union was vehemently denied by
applicants. Applicants denied further that this purported
marriage was ever confirmed and celebrated by the observance of
various rituals and ceremonies in accordance with
isiXhosa
tradition. What they alleged to have occurred was that, first
respondent expressed an interest in marrying the deceased in
accordance with customary law. As a result thereof, first
respondent’s delegation approached the deceased’s family
with a view to obtain the deceased’s family consent to the
marriage and reaching an agreement regarding payment of
ilobola
.
The negotiations were introductory in nature. Their purpose was
to gauge whether the deceased’s family was amenable
“in
principle” to the contemplated customary union. According
to the customary practice, in order to initiate
the negotiations for
ilobola
the man’s family has to pay a certain token amount which is
referred to as “
imvulamlomo
”
– (“opening of the mouth of the bride’s family”).
Likewise, first respondent paid an
imvulamlomo
of an amount of R9000.00, which according to the culture or custom is
not intended or accepted to be part of any subsequent
ilobola
that may be agreed upon and paid. Its acceptance merely
signifies that the deceased’s family were willing to enter
into
negotiations regarding payment of
ilobola
.
Then the
ilobola
negotiations will then resume thereafter.
[11]
Applicants asserted that after the payment of this R9000.00 as
imvulamlomo
,
they never heard anything from the first respondent’s family.
Further, there was no agreement that was ever reached
regarding the
payment of
ilobola
;
nor any amount in respect of the actual
ilobola
was ever paid; no traditional wedding ever took place between the
parties; nor was there any “
u
Tsiki
” – (“handing
over of the girl”) that took place; and the deceased name was
never changed from “
N……….
”
to “
N…..
”.
It was stated in no uncertain terms that first respondent and the
deceased were never validly married in accordance
with customary
law. Due to the breakdown in the initial negotiations between
their respective families, the two (2) parties
decided on their own
to get married civilly, which marriage applicants do not dispute.
[12]
The deceased’s attorney, David Allan John Sauls also filed an
affidavit confirming that he was instructed by the deceased
to
prosecute her divorce action to finality as soon as possible in order
to obtain the relief she sought in the prayers to her
particulars of
claim. Mr Sauls stated that on 8 January 2016, he telephoned
the deceased in order to confirm if she will
be able to attend court
on 11 January 2016 to finalise her divorce. The deceased
advised him that she was travelling back
to Cape Town on the same
weekend specifically to attend court on Monday, 11 January 2016.
The relevant page of his itemised
billing account was attached as
proof of such conversation having taken place from his cellphone to
the deceased’s cellphone.
Further, he confirmed that the
deceased was anxious to finalise her divorce and she sent him various
inquiring messages, amongst
others:
“
12.1
An sms on 11 November 2015 at 15H42 which read:
“
Hi
D…… I tried to call u and your office : i wanted to
know which date did your secretary got from court she didn’t
call me yesterday to inform me. Pls ask her to call me”;
and
12.2
An sms on 22 December 2015 at 05H50 which read:
“
Morning
D…….. did you manage to send the letter to my husband
re the court date in January the 11
th
”.
Mr
Sauls pointed out that the “letter” referred to was the
Notice of Set Down of the divorce action.
[13]
First applicant stated in the founding papers that when he first
heard about the death of his sister, he travelled to Beaufort
West
Forensic Services on Monday, 11 January 2016. When he arrived
at the mortuary, he met first respondent whom he was advised
had
already identified the body of the deceased and their two (2)
children. They, together had a brief conversation where
he
indicated that he was amenable to the deceased’s body being
handed over to an undertaker or funeral service designated
by first
applicant and his siblings in order for them to arrange for her
burial in Alice. They then agreed to meet in Cape
Town the next
day (Tuesday, 12 January 2016) in order to finalise the necessary
arrangements in this regard.
[14]
To first applicant and his siblings’ great dismay, first
respondent failed to attend the contemplated meeting on 12 January
2016. Instead, he sent him an sms on the same day in the
evening where he informed him that he had decided the deceased and
their two (2) sons’ bodies would all be buried in first
respondent’s family burial grounds in Steynsburg in the Eastern
Cape. After this sms, it appears that all mediation efforts
failed, hence applicant’s approached this Court for an
interdict.
[15]
First respondent denied that when they met at the state mortuary,
applicants ever stated their intention to remove the deceased’s
body and bury her in Alice was based on deceased’s wishes.
[16]
The urgency of the matter was not contested, as all parties agreed
that the body of the deceased has been lying at the mortuary
for too
long and has to be buried.
C
ISSUES IN DISPUTE
[17]
This Court was called upon to decide this urgent interdict in the
circumstances of this matter, and further based on which
party had a
right to bury the remains of the deceased.
D
ARGUMENTS BY BOTH PARTIES
Clear
right
[18]
Applicants submitted that they have a clear right to be authorised to
bury the deceased as on numerous occasions whilst she
was still
alive, she informed first applicant and her siblings that she wished
to be buried in Alice and further that her siblings
should attend to
her funeral arrangements should she die. In addition, she was
in the process of severing all ties with her
husband, as she was only
two (2) days away from the decree of divorce being granted by a
competent court when she met her death.
In any event she was
long estranged from her husband and taken up residence with her uncle
in Macassar, where she continued to
reside until she met her death.
She was only legally married on paper and was left with obtaining a
decree of divorce in
order to sever all ties with her husband
completely. Given these circumstances the applicants and the
deceased’s sister
are the sole surviving “blood
relations” of the deceased, who have a right to bury the
deceased and carry their sister’s
wishes through, and interr
her remains in their family burial ground in Alice, in the Eastern
Cape.
[19]
First respondent argued that the evidence regarding the deceased’s
wishes amounts to hearsay, and he was never informed
by the deceased
of such wishes.
[20]
It is therefore common knowledge and accepted practice that the
decision to bury a family member is a family decision that
is made by
the head of the family. First respondent stressed that he is
the head of the family. Even if they were to
separate or were
separated, the deceased would have to be buried next to him, as long
as she had not married. According to
first respondent’s
culture, if a deceased is not buried in the correct place, this will
have an impact to those who are still
alive. He had already had
a dream wherein the deceased asked him “
Why is he leaving
her and that she is tired and she wants his sister to come and get
her.
” Further, in
isiXhosa
culture, it is bad
luck and evil omen that ancestors are buried in different places.
One should visit the graveyard in order
to give respect and honour to
the ancestors. This requires all of them to be buried in the
same burial grounds to ensure
good luck and prosperity to those who
honour the ancestors.
Reasonable
apprehension of irreparable harm
[21]
It was applicant’s argument that there is a reasonable
apprehension that the first respondent would bury the deceased
in his
family grounds in Steynsburg, against her wishes should the relief
sought not be granted. If such were to happen,
the deceased’s
wishes will in all probability be negated; since it would be very
difficult for the first applicant and his
siblings to procure the
exhumation and reburial of her remains in Alice.
[22]
First respondent contended that it would be undignified for him to
have his children buried in one place and his wife at another,
when
they all died together – and this all happened whilst he is
still the husband of the deceased. The period after
the death
of a family member would set into motion a mourning period of one (1)
year called “
ukuzila
”,
and this mourning period culminates in the ceremony of the
slaughtering of a sacrificial animal for the deceased and the
cleansing of the kraal. The ceremony cannot be performed if the
deceased is buried in grounds other than first respondent’s
family grounds. Part of first respondent’s culture is
that the husband must be buried next to the wife and that the
children be buried along the same line in the burial grounds.
If applicants would be successful that would mean that their
children
will not be buried next to their mother. It is first
respondent’s belief that the deceased will never rest,
and that
will affect the living if she is not buried in his family ground and
next to her children.
No
alternative remedy
[23]
First applicant and his siblings were then left with no option or
alternative remedy but to approach this Court for relief,
in light of
first respondent’s assertion aforementioned, and having
unilaterally and despite his earlier assurances to the
contrary, he
decided to arrange for the deceased to be buried in his own ancestral
grounds in Steynsburg against her express wishes.
E
LEGAL FRAMEWORK
[24]
Mr Newton for the applicants submitted that according to LAWSA,
Volume 32 (2
nd
edition) at paragraph 221 General, it was stated:
“
The
right to bury a deceased is sometimes controversial and the courts
did not always follow a similar approach in solving the problem
before the court. Some courts took customary law practice into
account, while others applied the Roman – Dutch law
principle
that the heir has the right to decide on the issue of burial of the
deceased. The Transvaal courts on the other
hand, followed the
principle of fairness.
”
It
was submitted that the relevant authority in this matter is
Trollip
v Du Plessis
2002 (2) SA 242
(W)
,
where the circumstances are similar. Applicant, the surviving
spouse of the deceased applied to Court for an order terminating
the
involvement of the first respondent, the deceased eldest daughter and
the applicant’s stepchild in the deceased’s
funeral.
The applicant’s contention was that he as the deceased’s
spouse had the ‘paramount right’
to decide on the
funeral. The applicant relied on the series of Eastern Cape
decisions in which it was held that the heirs
had the final say.
This approach differed from the one that was followed in the
Transvaal, where it was held that fairness
in particular
circumstances of the case was decisive, and that a claim could not be
evaluated according to the mathematical proportions
of heirship.
It appeared from the evidence that an aunt of the deceased, and a
brother, had been present at the time of the
deceased’s death,
and that they had made the funeral arrangements without consulting
the applicant, who had not been present
at the time. The
applicant intended to hold the funeral at his home and through a
different church than the one to which
the deceased and her family
belonged. No last will was proved. The Court held that
the approach adopted in the Transvaal
had to be followed
, which would have
the effect of tilting the balance in the respondent’s favour,
since the applicant had not been present
when the deceased died.
Respondents had incurred expenses in preparation for the funeral.
The court held that it was
within the bounds of reasonable fairness
to respect the wishes of the deceased, whether expressed in a
testament or not.
If no such preference was expressed, resort
could be had to the heirs. It was not necessary for the
deceased to have expressed
an instruction as opposed to a preference
before it was decided what would have caused offence. In this
context, it counted
in respondent’s favour that the deceased
had been a member of the church from which they intended burying
her. If applicant
were to be successful the funeral would be
held in an unfamiliar venue and church. The applicant also
never averred that
he would suffer emotional trauma in respect of the
respondent’s plans for the funeral. In the final analysis
the court
held that if regard were to be had to the numbers, it would
become clear that the deceased’s children were more numerous
that the single person on the applicant’s side. The
application was accordingly dismissed.
[25]
So, according to applicants, given the set of circumstances in
Trollip
(
supra
)
and the instant matter, the Transvaal approach which look at common
sense and fairness should be adopted and the right to bury
the
deceased be afforded to the applicants. In
Finlay
and Another v Kutoane
1993 (4) SA 675
(W)
,
it was held that:
“
Also
in deciding between competing persons, the law should ideally mirror
what the community regards as proper and as fair.
That
perception will be partly the result of views on social structures,
mainly of family relationships and marriage, and on the
vesting of
authority and the finality of decisions. There may be views
about the impropriety of not complying with requests
of the
deceased. Religious views, cultural values and traditions may
play a role.
”
Besides,
many of our courts have relied on Voet’s approach when dealing
with the right to bury which is directly linked to
the Transvaal
approach. Applicants referred this Court to an extract from
“
The Selective Voet being the
Commentary on the Pandects [Paris Edition of 1829] by Johannes Voet
[1647 – 1713] et al Translated
by Percival Gane Volume Two,
1955”
where it was stated in
Section 7 –
Person
chosen by deceased must bury
:-
“
A
funeral besides must be carried out by him whom the person departing
this life has chosen … [but]…
Who
may bury if non chosen?
If
the deceased did not impose the duty of burial on anyone, the matter
will affect those who have been named in the last will as
heirs.
If no one has been so named, it affects the legitimate children or
the
blood relations
,
each in their order of succession. If they are also wanting, it
is the duty of the magistracy to take care that the deceased
is
buried out of his own money or property. Nay, indeed anybody to
whom the funeral does not properly fall, however complete
a stranger,
can carry out the funeral, so that dead bodies may not lie unburied;
and he will be able to reclaim his expenses in
a funerary action,
lest a person be buried out of the funds of another
.”
It
was therefore applicant’s argument that the deceased in this
matter had no will or testament on how she intended to be
buried.
She only expressed her wishes to her siblings that she wished to be
buried in Alice in her family burial grounds.
That is evidenced
by the fact that shortly after she filed her divorce summons, she
started building a house in her rural village
in Eastern Cape.
Even by the time she met her death, she was travelling from the same
rural village. Also, she was
no longer living with her husband
as they were estranged. She was residing with her uncle in
Macassar when in Cape Town.
The deceased’s other
intention of wanting to sever ties completely with her husband can be
seen in her particulars of claim
(divorce summons) where she sought
to divide their joint estate on the basis that first respondent would
keep their property in
Steynsburg (where he is from, and where he
wishes to bury her) and the deceased would keep their property in
Macassar, Khayelitsha
as she was paying the bond. Each party
was to keep the car he / she were driving and their respective
pensions and so on.
It was therefore submitted that the
willingness on the part of the deceased to relinquish the property in
Steynsburg admits no
interpretation other than that she wished to
sever her ties with the first respondent and his family in
Steynsburg.
[26]
It was applicants further submission that, it might be so that first
respondent is the husband and heir that has a right to
decide on the
issue of burial of the deceased, but the facts of this case should be
distinguishable from others. The marriage
was only on paper.
The deceased was on the doorstep of divorce when she met her death
and her wishes were expressed in the
divorce summons and to her
siblings. The deceased had nothing to do with first
respondent. She had reverted back to
her birth family. In
all fairness and common sense the deceased’s sole surviving
“blood relations” should
be entitled to bury her remains
in her own family grounds.
[27]
Mr Abaas for the first respondent submitted that the deceased’s
wishes are hearsay, and that was conceded by the applicants.
When first respondent met with the first applicant at the state
mortuary, at no stage did any of the applicants ever state that
their
intention was to remove the body of the deceased and bury her in
Alice, based on the deceased’s wishes. The reliance
on
unproven wishes was dismissed in several cases involving the right to
bury – See
Human v Human
1975 (2) SA 251
(ECD); Saiid v Schats
1972 (1) SA 491
TPD et al.
It was respondents’ argument that this Court should consider
the allegations of the deceased’s wishes and accept
that it can
be followed, but first, it should meet the test of being accepted as
admissible hearsay evidence. In the current
circumstances there
is no way that this hearsay evidence should be declared admissible.
Even if this Court were to accept
that this hearsay evidence is
admissible, the deceased equally expressed wishes to the first
respondent to be buried in his family
next to her children and
husband. This therefore creates a dispute of fact regarding the
deceased’s wishes.
[28]
Be that as it may, it was argued by Mr Abaas that the deceased died
intestate and left no descendants other than first respondent
who is
the sole heir of the deceased estate. If a deceased died
intestate, she is survived by the spouse. For instance
in
Tseola and Another v Maqutu and Another
1976 (2) SA 419
at
422
, the court held that where the deceased had given no
testamentary directions, the heir had a duty and right to bury the
deceased.
Further, as the first respondent has alleged that
there was a customary union, which the applicants deny, if this Court
find that
there was such union would have customary law consequences
that would be instructive in deciding where the deceased should be
buried
in the absence of directives. It was argued further that
in
Mabulu v Thys and Another
1993 (4) SA 701
(SEC) at 702
,
where the court recognised that an heir to an estate in terms of
isiXhosa
tradition would be entitled to decide where the body
of the deceased should be buried in the absence of specific
instructions by
the deceased.
[29]
It was also disputed by the first respondent that applicants have
locus standi
to bring these proceedings, based on the Free State Provincial
Division authority
Yona v Rakotsane
(unreported) Case No: 1177/2004
,
where Rampai J when discussing the three part rules espoused by Voet
stated “
the third rule only refers
to the blood relations of the deceased as the intestate heirs
.”
It was submitted that the understanding is further supported in that
the learned Judge when commenting on the third
rule of Voet relies on
the provisions of the Intestate law. Based on this argument
applicants lack
locus standi
as they are not heirs of the deceased and they have therefore failed
to establish a clear right, and this application should fail.
F
ANALYSIS OF EVIDENCE AND THE
APPLICABLE LEGISLATION
[30]
Since applicants
locus standi
to bring these proceedings before this Court has been challenged by
the first respondent, it is therefore necessary to first deal
with
this point. Applicants brought this application on the basis
that they are the deceased “blood relations.”
Voet
was the authority to found
locus standi
by applicants. First respondent
disputed the assertion by applicants based on the interpretation that
was employed in
Yona
(
supra
) by
Rampai J. I turn to respectfully disagree with the
interpretation employed by Rampai J of the Voet approach in relation
to the “blood relations” as expressed in that matter.
The interpretation employed in that judgment related to
the intestate
succession heir and the learned Judge even made reference to the
Section 1(1)(c)(i) of the Succession Act.
In my opinion, when
the court is called upon to determine as to: who has the right to
bury the deceased? The court should
not confuse this point for
determination with the law of succession, as it will end up
determining issues not properly before it.
In my view when Voet
referred to the “
blood relations,
each in their order of succession
”.
He was only making reference on the order of hierarchy on which they
were born, hence the Succession Act cannot find
application in this
category of persons in a case involving: who has the right to bury
the deceased.
[31]
For instance, in this matter, if this Court were to adopt the
guideline as stipulated in
Voet
(
supra
),
the first person who has a right to bury the deceased would be
the
one mentioned in the last will as heirs
.
In the current matter there is no will, this scenario falls away.
But due to the fact that in terms of the Intestate
Succession Act,
first respondent would qualify as heir. Nevertheless the
intestate succession law is not mentioned in Voet’s
category.
The second category is
the legitimate
children
. Also this category
falls away as the deceased died with her children – who in any
event were minors at the time.
The third category of persons is
the “blood relations”
,
each in their order of succession. If regard is had to the
correct interpretation of Voet with respect to who is the deceased
“
blood relation
”
– applicants qualify as the deceased blood relations. The
online Free English dictionary by Farlex describes
“blood
relations” as a plural noun – meaning “
a
person who is related to another by birth rather than marriage
”.
First respondent does not at all fall in this category – hence
this Court cannot find that
Yona
(
supra
) to
be in application regarding the interpretation of “blood
relations.” So, in light of this analysis, applicants
do
have the necessary
locus standi
to bring these proceedings.
[32]
When courts had to deal with burial matters and taking into account
all the parties involved, it has to be cautious as these
matters are
sensitive in nature, because of grief, tragedy and loss of their
loved one. This is evidenced by the fact that
over the years,
there has been a shift from the blanket approach originating from the
Roman – Dutch law principle that the
heir has the right to
decide on the issue of burial of the deceased. This is the
right that first respondent relied to in
this matter. This
approach did not take into account the expectations of the community;
the relationship between the deceased
(whilst still alive) and this
heir who has a right to decide the issue of burial of the deceased
and fairness and reasonableness
of such decision.
[33]
I turn to agree with applicants’ approach as espoused in
Trollip
(
supra
)
that a claim to bury the deceased cannot be evaluated according to
the mathematical proportions of heirship. Hence reasonable
fairness and common sense dictates that this Court should analyse the
evidence before it in totality and reach a just and fair
conclusion.
It is common cause that first respondent was legally married to the
deceased when the deceased died. That
is not disputed by any of
the parties. Even if he wanted to argue the principle (which I
strongly disagree with) in
Mabulu
(
supra
)
that
isiXhosa
tradition is applicable in the absence of any instructions to the
burial, the heir to the estate has a right to decide the issue
of
burial of the deceased. First respondent tried to bolster his
case with the fact that he is an heir and also has an entitlement
to
the burial of the deceased by the mere fact that he was married to
the deceased in terms of customary law. The process
that first
respondent took towards the conclusion of his customary union is very
vague, lacks integrity and by its tone very much
commercialised.
It further lacks the dignity and decorum that these celebrations are
accorded to this culture. The
correct procedure in my view is
the one that was narrated by the applicants. According to the
isiXhosa
culture, one does not readily pay instalments of “
ilobola
”
without the preliminary procedures which are preceded by
“
imvulamlomo
”,
and also some small tokens of appreciations normally given to the
elderly women for raising the child until she attained
the marriage
stage are concluded. Besides, even if the stage was reached
when
ilobola
negotiations had resumed – and the money was paid, such money
is never referred to as “instalments”, such money
is
traditionally referred to as “cows” or “
iinkomo
”
– the whole process by first respondent lacks cultural dignity,
hence I turned to refer to it as commercialised.
The way
applicants narrated the fact that first respondent only showed an
interest and his intention to marry the deceased and
thereby paid an
“
imvulamlomo
”
and never returned, made sense to this Court, as is normally the
preliminary procedure. After the preliminary procedure
aborted,
they went to marry civilly where there would not be so many
traditional formalities. Also, the process as referred
to by
first respondent of “handing over of the girl” is totally
flawed and inconceivable, as the girl is never handed
over without
the groom being welcomed by the girl’s family. First
respondent seemed to have little or no understanding
of the
isiXhosa
culture. In his explanation he was vague, mixed up the
customary law processes, and this does not give credence to his claim
of his conclusion of a customary union with the deceased. This
contention that he concluded a customary union with the deceased
has
to be rejected outrightly.
[34]
First respondent rejected the contentions by the first applicant that
when the deceased died, she was no longer living with
him as husband
and wife; the parties had been estranged for more than a year; and
the deceased had taken up residence with her
uncle in Macassar; the
deceased was in the process of reverting back to her birth family
permanently and as a result thereof, she
was in the process of
building a house for herself in Alice where she wanted to be buried
should she die; and that the deceased
was so anxious to see the
divorce being finalised and further that she was travelling to Cape
Town to have her divorce finalised
when she met her death. In
rejecting these contentions, first respondent did not furnish
evidence to the contrary, other
than a bare denial.
[35]
Applicants on the other hand, furnished proof in the form of divorce
summons, sms’s between the deceased and her attorney
facilitating the process of divorce; notice of set down showing that
indeed the deceased was travelling from the Eastern Cape on
Saturday
9 January 2016 to be on time for the divorce proceedings on 11
January 2016. Judging from the totality of this evidence,
the
deceased was in the process of severing ties with the first
respondent. If for instance, they were staying together as
husband and wife all the time, and with minor conflicts why would the
deceased send an sms to her attorney on 22 December 2015
asking if
the “letter” (notice of set down) was sent to her husband
notifying him about the court date in January 11.
That on its
own is a true indication that the deceased did not know about the
everyday affairs of the first respondent. If
at all they were
all living together, had minor conflicts and talking to each other,
the deceased would have asked him personally
if he received the
letter. Besides if all was well in their household, there would
have been no reason for the deceased to
proceed and be anxious to
finalise the divorce action.
[36]
Also, it does not make sense for first respondent to state that the
deceased wished to be buried in Steynsburg next to her
children and
husband, whereas she stated in her particulars of claim in the
section dealing with the division of assets that first
respondent
should keep the Steynsburg house and she will keep the Macassar house
as she is paying the bond. This division
of joint assets that
was prayed for by the deceased does not suggest that she has
intention to later on be laid to rest in Steynsburg.
[37]
Besides, how could the deceased have known that she would die on the
same day with her children, for her to leave a wish that
she wishes
to be buried next to her children. This assertion by first
respondent cannot hold. On the other hand, the
deceased’s
actions prior to her death points to one direction, that she wanted
to revert back to her birth family.
That was also confirmed by
the deceased’s siblings that she was also building a house in
her rural village in Alice, so as
to be buried there. The
inference to be drawn by this Court is that the deceased wanted to be
with her birth family.
It might be so that there were no
specific instructions or wishes that were reduced into writing by the
deceased in the form of
a will or testament, therefore all this
information is hearsay evidence. I agree that this is hearsay
evidence. The
actions of the deceased when she was alive at
least give credence to this hearsay evidence. In any event,
African people
in general, are well-known for not writing down their
last wills and testament. They always believe in their
expressed dying
wishes. This burial wish is not abstract from
the members of this population – the dying wishes are said
sometimes
in gest all the time. But in this scenario, this
Court will therefore accept this hearsay evidence as admissible,
given the
totality of evidence presented to this Court supporting the
said hearsay evidence.
[38]
Besides, the deceased, by her actions disassociated herself from
first respondent whilst she was still alive. It is unheard
of
that a person who was severing her ties with her husband would now be
claimed to be the husband’s ancestor when she is
no-more.
In fact, the fact that first respondent agreed that applicants could
bury the deceased when they met for the first
time at the mortuary on
11 January 2016, was a realisation from his side that in any event,
nothing was left from his civil union
with the deceased, as they were
two (2) days away from divorce when the deceased met her death.
It appears that he reneged
from this stance after consultation with
other members of his family.
[39]
Even if first respondent could be said to be the heir according to
the Roman-Dutch principle, in my view, he failed to act
like one.
He failed to protect the interests of the deceased whilst still alive
and she ended up fleeing her marital home.
Due to the status
accorded to the heir, his rights must not only come into fore when he
or she stands to benefit, his rights must
also come with
responsibility. First respondent has not demonstrated
sufficiently that he is responsible enough to be the
heir to decide
on the issue of the burial of the deceased. In any event, first
respondent was only left with two (2) days
as “heir to the
deceased estate” before she met her death. In my view,
despite their marriage regime, and the
consequences flowing from the
Intestate Succession Act – the scales tilt heavily to the
deceased “blood relations.”
[40]
I re-iterate that in all probabilities, the scales tilt to the Voet’s
third approach that “blood relations”
may bury the
deceased if none is chosen. Applicants have demonstrated that the
expectations of the community, fairness and reasonableness
dictate
that they should bury the deceased. The heir, who had no
relationship with the deceased, cannot be expected to give
the
deceased a decent funeral as it would be the case with her “blood
relations”. If the deceased wanted to be
rid fid from the
first respondent whilst he was still alive – what would then
convince this Court that she wanted to be laid
closer to him when he
is no more. Judging from the past two (2) years in which first
respondent lived with the deceased,
fairness is decisive that
applicant’s case succeed.
[41]
This Court is satisfied that applicants have made a proper case for
the grant of an interdict.
[42]
In the result, I therefore grant this order:
42.1
First, second and third respondent are directed to release the body
of NOSIPHO CYNTHIA SILWANA (with ID No:
79............), the deceased
into the custody of the first applicant or such funeral parlour or
service, subject to all of the
second and third respondent’s
further requirements having been met (including payment of any
storage or any other fees that
may be due to it) at the time of such
release;
42.2
First applicant is directed to arrange for the deceased’s
remains to be interred at Alice in the Eastern
Cape;
42.3
First respondent is ordered to deliver the deceased’s identity
document, together with any further
documents that may be relevant to
her funeral, such as funeral insurance policies and schedules to the
first applicant forthwith;
42.4
First respondent is ordered to pay costs of this application.
MANTAME,
J
WESTERN
CAPE HIGH COURT