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[2020] ZAGPJHC 443
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Letho and Another v Dhlamini and Others (2020/18376) [2020] ZAGPJHC 443 (19 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBERS: 2020/18376
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED:
19/08/2020
In
the matter between:
PHOMOLO
JUSTICE LETHO
Applicant
DINTLE
MOEKETSI JR NTOOELE
Intervening Applicant
and
SHANTELL
DHLAMINI
First Respondent
AVBOB
Second Respondent
NTEBALENG
NCHUPETSANG N.O.
Third Respondent
Coram:
Wepener J
Heard
:
19 August 2020
Delivered
:
19 August 2020
JUDGMENT
Wepener,
J:
[1]
The applicant seeks an order declaring that the deceased was not
married and consequential
relief in relation to the burial and other
issues regarding the deceased.
[2]
At the outset of the hearing I
permitted the son of the deceased to join as a co-applicant.
There is
no dispute that the intervening party is the son of the deceased. He
joins in the proceedings seeking the same relief
sought by the
applicant.
[3]
The first respondent is Shantell Dhlamini, an adult person, who lived
with the deceased
at the time of his demise. It is also alleged that
the first respondent and the deceased had a daughter born from their
relationship.
[3]
At the heart of the matter is a disputed right to bury the deceased.
There is no dispute
that the deceased’s son does have such a
right.
[4]
The first respondent alleges that she is the wife of the deceased by
customary marriage
and that she has the right to bury the deceased.
She furnishes some evidence which is disputed and controverted by the
applicants.
The applicants did not make any issue regarding the
status of the first respondent as wife in the founding papers
because, as they
say, they had no knowledge of such a claim by the
first respondent.
[5]
When they learnt of this claim the applicants embarked on some
research. They found
that the first respondent had completed certain
forms after the death of the deceased. The first was a declaration
made by the
first respondent under oath in which she said that she
knows ‘that the deceased was a single person and that the
deceased
did not enter into any Customary Union’.
[6]
The second is a document wherein the first respondent reported the
death of the deceased
and at the space where it is required to insert
the particulars of a surviving spouse, the first respondent indicated
that the
information is ‘not applicable’.
[7]
The third is a death’s notice. At para 13 the question is ‘if
married,
place where married.’ The answer is ‘not
applicable’. At the para 14 of the same document the question
reads
‘Full names of surviving spouse’. The first
respondent filled in that it is ‘not applicable’.
[8]
These documents were completed
by the first respondent after the death of the deceased
and wholly
contradicts the version that she now proffered that she had married
the deceased by customary law and her version of
a customary marriage
in 2019 should be rejected out of hand.
[9]
The document so completed by the first respondent completely supports
the evidence
of the applicant as supported by the intervening
applicant that no such customary union was ever entered into.
However, this matter
comes before me as a matter of urgency and I
will decide it on these papers only.
[10]
I am of the view that the son of the deceased has the right to
determine the burial process of
the deceased and I issue the
following order:
1.
For the purposes of the burial of the deceased, it is declared that
the deceased,
Russel Moeketsi Moletsane, was not married to the first
respondent.
2.
The Respondents or any other person are interdicted from removing the
corpse
of the deceased Moeketsi Russell Moeketsane from any mortuary
where it is currently placed without the consent of the applicant
and
the intervening applicant.
3.
It is declared that the burial of the deceased is to be held by his
son, the
intervening applicant
4.
The First Respondent is ordered to pay the costs of both the
applications by
the applicant and the intervening applicant.
_________________
W.L.
Wepener
Judge
of the High Court of South Africa
APPEARANCES
Counsel for the
Applicants: S.T. Mosomane
Attorney for the
Applicants: Mosomane Incorporated
Counsel for First
Respondent: M. Mkhatshwa
Attorney for First
Respondent: M.D. Pheeha Incorporated Attorneys