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[2020] ZAGPJHC 156
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Shai v Botlholo and Others (01091/2020) [2020] ZAGPJHC 156 (30 April 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 01091/2020
In
the matter between:
SHAI
M
L
Applicant
and
BOTLHOLO
K
A
First
Respondent
SEA
TRADE 24/7 FUNERAL
DIRECTORS
Second
Respondent
THE
NATIONAL
COMMISSIONER
Third
Respondent
SOUTH
AFRICAN POLICE
SERVICES
Fourth
Respondent
PREMIER
OF
GAUTENG
Fifth
Respondent
THE
EXECUTIVE MAYOR, CITY OF JOHANNESBURG
Sixth
Respondent
METROPOLITAN
MUNICIPALITY
THE
MEC, GAUTENG DEPARTMENT OF HEALTH
Seventh
Respondent
THE
CITY OF JOHANNESBURG
MEDICAL
Eighth
Respondent
OFFICERS
OF HEALTH
REASONS
[1]
This
is an Application for exhumation of the remains of Mpota Abraham
Shai
(“the
deceased”) who died on 9 April 2020. The Application came
before me on 17 April 2020. After reading the papers
and hearing
counsels for the parties, I granted the order and deferred the
reasons. The reasons are as set out below.
[2]
The
Applicant, Ms. Maite Lena Shai, an adult female was married to the
deceased by civil rights since 1995, having prior to that
time,
concluded a customary marriage in 1976. They had a house at stand
number […], Bokgaga village, Tzaneen, Limpopo province
and had
six children one of whom predeceased the parents. The surviving five
children are all adults.
[3]
The
first Respondent Ms. Kedibone Alena Botlholo, is an adult female. She
lived with the deceased at house number […] Green
Village,
Protea Glen Soweto, Johannesburg. The house was acquired by the
deceased when he was still employed by the Erstwhile South
African
Railways.
[4]
After
the death of the deceased there was a dispute between the parties
about the right to bury the deceased.
[5]
The
First Respondent had planned to bury the deceased on 17 April 2020
but was informed by both the Applicant and her attorney that
burial
should not take place until the determination of the burial rights by
this Court.
[6]
Despite
that knowledge, the first Respondent instructed the second respondent
to bury the deceased on 15 April 2020, the day the
papers were served
on her. This was done as a way of frustrating the legal proceedings
that were about to be launched by the deceased’s
wife, the
Applicant in this case.
[7]
The
Applicant amended her application and cited in addition to the
initial two respondents, six other respondents, namely the National
Commissioner; South African Police Services; Premier of Gauteng; the
Executive Mayor of City of Johannesburg; the MEC Gauteng Department
of Health; the City of Johannesburg Administrator of Cemeteries and
the City of Johannesburg Medical Officers of Health. This was
done as
they now added to the prayers, the main prayer of exhumation which
from the regulatory perspective, will involve other
interested
parties as cited. None of the additional respondents had an
opportunity to make any contribution to this dispute.
[8]
The
first respondent’s defence in the application is that she
derives her rights to bury the deceased as she is an heir in
the will
of the deceased. She does not dispute the marriage of the deceased to
the Applicant save to state that they were not living
as husband and
wife for many years. I do not find any legal basis for such defences.
The Applicant’s marriage to the deceased
only came to an end
upon the death of the deceased. The so called deceased’s
intention to divorce the applicant, which the
first respondent sought
to support by way of copies of summons commencing action for divorce,
has no legal consequences.
[9]
The
exhumation of mortal remains are governed by Regulations relating to
the Management of Human Remains, R363 of 22 May 2013 (“the
Regulation”) read with the National Health Act 61 of
2003.Section 26 of the Regulation provides that no exhumation and
reburial
of human remains shall be done unless authorised by the
relevant sphere of government and permitted by relevant local
government
in whose jurisdiction the exhumation and reburial will
take place or through a court order and shall be permitted by the
relevant
local government in whose jurisdiction the exhumation and
reburial will take place.
[10]
The
first respondent attacked the application on the basis that it was
not urgent and that the urgency was self-created. I do not
agree with
the contention. This application is urgent and the applicant has a
clear right because she is the widow of the deceased.
The fact that
the first respondent lived with the deceased and she is mentioned as
an heir in the deceased’s will does not
in any view, create a
right for the first respondent to bury the deceased.
[11]
Mr
Zwane argued on behalf of the first respondent that as one of the
heirs, the first respondent was entitled to bury the deceased
as she
did. He referred me to an unreported case of
Yona
v Rakotsoane (1177/2004)
[2004] ZAFSHC 84
(5 August 2004)
where Rampai J refused to confirm rule nisi on the burial right. That
case is different from the current case before me because
in
Yona
,
the testator had spelt out in her Will, her wish to be laid to rest
in her home town. The Will which has been made available by
the first
respondent in her answering papers, is silent about the deceased’s
wish for his final resting place. Rampai J in
Yona
v Rakotsoane
correctly refused to grant the widower of the deceased the right to
bury the deceased as this was in accordance with the wish to
the
deceased who desired after succumbing to cancer to be buried at her
home town and her surviving mother and brother fulfilled
her wish.
[12]
Mr
Zwane who referred me to
Tseola
and Another v Maquntu and Another
1976 (2) SA 419
at 422
where the court held that where the deceased had given no testemary
directions; the heir had a duty and right to bury the deceased.
[13]
In
W
and Others v S and Others (360/16)
[2016] ZAWCHC 49
(4 May 2016)
Mantame J, had the following to say at [32]:
“
When
courts had to deal with burial matters and taking into account all
the parties involved, it has to be cautious as the matters
are
sensitive in nature, because of grief, tragedy and loss of their
loved one. This is evidenced 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 the first respondent relied on 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.” I concur
with the approach adopted by Mantame J
in this matter.
[14]
The
first respondent and the deceased cohabitated as partners whilst the
deceased was alive. Out of their cohabitation two children
were born.
The first respondent, as already stated, claims her rights to bury
the deceased by virtue of the Will, which has not
been fully canvased
by the applicant as it was only made available on the date of the
hearing of the application.
[15]
The
relationship the deceased had with the applicant was that of husband
and wife by virtue of marriage. The marriage only came
to an end upon
his death. That relationship must be reconciled with the relationship
the deceased had with the first respondent.
I am of the view that the
two relationships are reconcilable. As a consequence and absence of
the deceased’s wishes form
the Will about his burial desires, I
hold the view that the applicant has the right to bury the mortal
remains of the deceased.
[16]
The
first respondent was not willing to operate with the applicant and
her attorney prior to the burial of the deceased. When it
became
evident that legal proceeding were implemented, the first respondent
went out of her way to move the burial date from 17
April 2020 as she
had planned to 15 April 2020. This was done on a 24 hour notice to
the second respondent was a service provider
for the burial. This was
designed to frustrate the applicant and force the applicant to bring
and even amend the papers at additional
costs to the applicant. The
conduct of the first respondent justifies an appropriate cost order
against her on a punitive scale.
[17]
ORDER:
The
following order is made:
17.1.
Non-compliance with normal rules of this court relating to service,
filing and time limits is condoned and the matter is dealt
with as
one of urgency;
17.2.
The second respondent is directed to exhume the mortal remains of
Mpota Abraham Shai ID No: […] and hand over same
to the
applicant for reburial;
17.3.
The third to the eighth respondents are directed to oversee the
exhumation process;
17.4
The first respondent is directed to pay the costs of the exhumation;
17.5
The applicant is authorised to transport the mortal remains of the
deceased from Johannesburg to Bokgaga Village, Tzaneen,
Limpopo
province and to bury the deceased according to her customs and
practices;
17.6.
The first respondent is authorised to travel to Bokgaga Village,
Tzaneen for the purpose of attending the funeral if she so
wishes;
and
17.7. The first
respondent is ordered to pay the costs of this application on the
scale as between attorney and client.
__________
_______________
SENYATSI
ML
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Date
urgent application heard: 17 April 2020
Date
of Judgment: 30 April 2020
Applicant’s
Counsel: Adv T. Malatji
Instructed
by: Raseasala Attorneys
Respondent’s
Counsel: Adv. Z. Madikane
Adv.
Zwane
Instructed
by: Mathopo Attorneys