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[2019] ZAGPJHC 412
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T M v C M and Another (2019/24763) [2019] ZAGPJHC 412 (11 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2019/24763
DATE
:
11
th
September 2019
In
the matter between:
M
,
T
Applicant
and
M
,
C
First Respondent
FAITH
FUNERAL
HOME
Second Respondent
JUDGMENT
Adams
J:
[1].
This is an opposed
urgent application by the applicant against the first respondent for
an order that she and her family, being
the parents and siblings of B
M (‘the deceased’), as against the first respondent, who
is the wife of the deceased,
be allowed to bury him.
[2].
The application was
heard on what was in essence the return day of a
rule
nisi
which
I had issued in the early evening of Friday, the 6
th
of September 2019. In terms of the
rule
nisi
, I
had granted an interim order interdicting the funeral and burial
which the first respondent had scheduled and planned for Saturday,
the 7
th
of September 2019. I had also interdicted the funeral parlour from
releasing the body to the first respondent pending the hearing
of the
application.
[3].
The deceased was married to the first
respondent on 5 December 2015 and one minor child, a 3 year old boy,
was born of the marriage
between them. During June 2019 the first
respondent had caused a divorce summons to be issued against the
deceased as they were
experiencing challenges in their marriage. She
did however not proceed with the divorce proceedings as they were
hoping that the
marriage could be saved. There was evidence placed
before me to the effect that in the weeks and months prior to his
death the
deceased had indicated that he was very unhappy in his
marriage and that he was in the process of moving out of the communal
home.
The communal home was in fact the residence of the parents of
the first respondent, the wife of the deceased. This property is
situated in Toekomsrus in Randfontein. The first respondent confirms
that, whilst they were still living in the same house at the
time of
the death of the deceased, they were not living together as husband
and wife. They were sleeping in separate beds. The
two of them were
living in back quarters, a cottage of sorts, of the property of the
first respondent’s parents, which they
shared with their minor
son as well as with the two other children of the respondent from a
previous relationship.
[4].
The deceased died in the early hours of
Monday, 2 September 2019, and he had reportedly died from pesticide
poisoning. It is the
version of the first respondent that the
deceased had committed suicide. The post mortem confirms the cause of
death as being consistent
with pesticide poisoning. The toxicology
report is however still awaited. The first respondent explained that
on the evening of
Sunday, 1 September 2019, the deceased arrived from
church, whereafter he and their son had supper. Thereafter she went
to bed.
In the early hours of the morning, her son screamed
uncontrollably, and this awoke her. She then found the deceased
outside the
house in the yard clearly in distress and foaming from
the mouth. An ambulance was summoned, but on their arrival within
minutes,
the paramedics declared the deceased dead on the scene.
[5].
It is the case of the applicant and the
family that the first respondent, the wife of the deceased, should
not be allowed to bury
him. She had issued a divorce summons against
him and the deceased himself had made it known to all that he did not
want to continue
with his marriage. Prior to his death the deceased
had in fact informed his older brother that he intended moving back
to the family
home in Pretoria. The applicant and her family
are also of the view that the first respondent is unaffected by the
death
of the deceased. She is more interested, so they contend, in
cashing in his policies and benefiting from any other benefits on his
death. This is denied by the first respondent.
[6].
Normally the
right to bury a deceased person reposes on his spouse (widow), who,
in the absence of a valid will and last testament,
is normally the
heiress to the deceased's estate. In that regard see:
Nzaba
v Minister of Safety and Security and Others
,
Case No: 0535/2005 (unreported). The applicant and her family urged
me to deviate from this general rule because the deceased
and the
first respondent were in the process of getting a divorce. The fact
of the matter is however that as at the date of his
death, the
deceased and the first respondent were still legally married.
[7].
My
understanding is that in customary law the male head of the family of
the deceased is the person who decides the arrangements
concerning
the burial of the body of the deceased. This authority of the male
head of the family or the father of the deceased
was predicated on
the principle of primogeniture. The Constitution has decreed that the
principle of primogeniture regarding the
law of intestacy violated
the right of women to human dignity guaranteed in section 10 of the
Constitution. In our new constitutional
dispensation these
traditional cultural customary law practices were reconsidered in the
light of our constitutional development
pursuant to section 39 (2)
and 111 (2) of the Constitution, Act 108 of 1996. S
ee
Bhe and Others v Magistrate Khayelitsha and Others; Shibi v Sithole
and Others,
where the principle of primogeniture was abolished;
South
African Human Rights Commission and Another v President of the
Republic of South Africa and Another
,
2005 (1) SA 560
(cc) 2005 (1) BCRL (1).
[8].
The first
respondent is the wife of the deceased and she is entitled to bury
her husband. There is a competing claim by the family
of the
deceased, who believe that it would have been the wish of the
deceased on his deathbed to be buried by them. They do not
however
say so in as many words. There are also considerations of fairness,
equality, equity and the interests of justice as well
as the balance
of convenience and the exigency that the first respondent had made
arrangements for the funeral on Saturday, the
7
th
of September 2019, which arrangements were summarily derailed by the
order of the court on Friday, the 6
th
of September 2019. The balance of convenience therefore appears to be
in favour of the first respondent.
[9].
These multiple
competing and practical considerations cannot be governed and
resolved strictly on the basis of the principles governing
the
granting of interdicts. The court is obliged to adopt a practical
common sense approach. In any event, the order I intend granting
would subsume the legitimate burial rights of the first respondent as
the lawful wife of the deceased. I think that the reality
of the
matter is that the rights of the wife trump the interest of the
applicant and the family, and, all things considered, the
fairest
thing to do is to allow the wife to bury her husband.
[10].
The first
respondent seeks an order to bury the deceased in Randfontein. The
applicant and her family have indicated they would
attend the
deceased's funeral irrespective of where same is to be held. Taking
into consideration the competing interests and balancing
same on the
principle of proportionality, I am of the view that the first
respondent should be allowed to bury her husband.
Order
In
the result, I make the following order:-
(1)
The first
respondent is granted permission to bury
B
M
,
identity number: […] (‘the deceased’)
.
(2)
The second
respondent shall release to the first respondent the body of the
deceased for purposes of the funeral and the burial.
(3)
There shall be
no order as to cost.
_________________________________
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD ON:
10
th
September 2019
JUDGMENT DATE:
11
th
September 2019
FOR THE APPLICANT:
Ms Malebo Maleka
INSTRUCTED BY:
Malebo Maleka
Attorneys
FOR THE FIRST
RESPONDENT:
In person
INSTRUCTED
BY:
In
person
FOR
THE SECOND RESPONDENT:
No
appearance