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[2021] ZAGPJHC 21
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Dumisa and Another v Dumisa and Another (3763/2021) [2021] ZAGPJHC 21 (9 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
YES
CASE
NO: 3763/2021
In
the matter between:
DUMISA,
MOSIBUDI
JUDITH
First Applicant
DUMISA,
KARABO
Second Applicant
and
DUMISA,
SAM
First Respondent
MHLANGAVEZA
FUNERALSERVIC CC
Second Respondent
Burial
dispute between estranged spouse and relatives of the deceased
JUDGMENT
DE
VILLIERS, AJ:
[1]
This matter came before me in urgent court.
It is a bitter fight about who should determine where and how the
deceased is to be
buried. The facts, for the most part, are not
contentious. Where there are conflicting versions (or the versions
are unnecessarily
bald), I comment on them as I record them:
[1.1]
The first applicant and the deceased were
married in October 1998 in a civil marriage;
[1.2]
A child was born of the marriage in January
2000, who is now a major, and who is the second applicant;
[1.3]
The marriage was not a happy marriage. As
will appear later herein, the first applicant obtained a restraining
order against her
husband (which presumably would have terminated any
contact between them). She gives no detail about this order and the
facts that
led to her obtaining it;
[1.4]
The deceased left the matrimonial home in
Brakpan in July 2016 or March 2017. The first applicant still resides
in the matrimonial
home;
[1.5]
In July 2020 the deceased commenced divorce
proceedings. As will appear later herein, the deceased’s mother
presented evidence
that it was common cause that the marriage had
irretrievably broken down. In reply, the first applicant alleged that
her attorney
and the attorney of the deceased were in negotiations
and that for this reason, no plea had been delivered. In the next
paragraph
she avers “
I confirm
that I have been involved in settlement negotiations with my late
husband to settle our differences and to continue with
our marriage
relationship
”. This seemingly,
read in context, referred to the negotiations conducted by the
attorneys, which would be an odd approach
to saving a marriage under
the known circumstances. Later in the “
replying
”
affidavit the first applicant makes this statement which seems to
conflict with a prolonged separation-
“
We
had some marital problems which appeared periodically, which never
lasted for a prolonged time
”;
[1.6]
The deceased passed away in January 2021;
[1.7]
The first respondent is the deceased’s
oldest brother, with whom he resided in Tsakane prior to his death.
The first respondent
advised the first applicant of the death of her
husband. It is not suggested in the papers that the first applicant
had any contact
with her husband at any recent time prior to his
death;
[1.8]
The first applicant baldly stated: “
The
intention of the deceased was and is very clear that he wanted me to
give him a dignified funeral
”. No
facts were stated about when, where or under what circumstances, this
alleged wish had been expressed. As will appear
later herein,
conflicting evidence is presented in the answering affidavit;
[1.9]
The first applicant, without explaining the
marital problems, further stated: “
If
I do not bury my deceased husband which I married and loved for all
these years, his soul will never rest in peace
”.
A marriage where the relationship has broken down irretrievably,
justifying even a protection order, points to the need
explain this
statement. No explanation was offered;
[1.10]
The applicant did not, and probably could
not address the question if the deceased died intestate or not. As
such, there was no
evidence of a burial wish in a will;
[1.11]
The second respondent is a funeral services
business where the deceased’s body was held when the first
applicant was informed
of the death of her husband. The first
applicant and her brother-in-law visited the second respondent’s
premises and she
signed certain, unspecified documents;
[1.12]
The first applicant made plans for a
funeral on the East Rand on 30 January 2021, she avers, by
agreement with her brother-in-law.
These arrangements included a
Christian church service. It was not alleged that the deceased was a
Christian or attended the attended
the intended church;
[1.13]
On 26 January 2021, the first respondent
advised the first applicant that he had instructed the second
respondent not to release
the body to her for burial. She learnt on
27 January that the body had been released to her brother-in-law and
then she learnt
that the deceased would be buried on 30 January 2021
“
apparently in Limpopo, a place
which is not known to me
”, she
stated;
[1.14]
Later, in reply, the first applicant stated
that her mother-in-law had never recognised her “
as
the legal wife
” of the deceased
and that she never recognised her marriage.
[2]
It
seems to me that the test in a normal application for an interdict
does not find easy application in this matter (such as a right
to a
deceased’s body). Due to the urgency of the matter, factual
disputes should be resolved as best one could. The matter
cannot wait
for months or years. As will appear below, in matters such as this
one, at least in this division of the High Court,
an equitable
finding must be made. That equitable approach and the urgency of a
matter, in my view dictate a relaxation of
Plascon
Evans
[1]
and point as of necessity to a more robust approach. In my view, one
should first have regard to the facts as set out by the applicant,
together with any facts set out by the respondent which the applicant
cannot dispute, and then to consider whether, having regard
to the
inherent probabilities, the applicant could, on those facts obtain
final relief at a trial.
[2]
If need be, the remaining factual disputes must be assessed and
resolved (if one can) by applying
Soffiantini
v Mould
1956 (4) SA 150
(E) at 154G-H:
“
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits
.”
[3]
Having had this approach in mind, I
commented on the applicants’ version as I recorded it. I do the
same when I record the
version of the deceased’s mother. I
noted with interest that Flemming DJP suggested that the appropriate
approach would be
as one would approach to determine a costs argument
in an opposed motion where the matter has become moot - another more
robust
approach. See
Trollip v Du
Plessis en 'n Ander
2002 (2) SA 242
(W)
at 245G. I fully associate myself with the statement by the learned
judge at 246I that a decision must be made on such facts
as one has.
[4]
The application was not opposed by the
respondents, but the deceased’s mother delivered an affidavit
in the form of an answering
affidavit. She did not seek to join the
matter, but did take a point of her non-joinder. It was replied to by
the applicant and
I did consider this affidavit, despite the deponent
not being a party to the proceedings. In the end, I do not decide the
non-joinder
point. I have heard the mother, I have considered her
version, and it would be in no one’s interest at this late
stage not
to decide the hard issue - who may bury the deceased?
[5]
The following facts and averments emerge
from the “answering” affidavit. Save for bald denials,
these facts have not
been (and in some instances could not have been
addressed) in the “replying” affidavit:
[5.1]
The first applicant knows the deponent and
knows that she resides at Zava Village, Limpopo Province;
[5.2]
The deceased was the deponent’s
oldest son;
[5.3]
The deponent was married by customary law
to her late husband. Her late husband and two of their five children
are buried at Zava
Village Cemetery, where she intended to have her
deceased oldest son buried as well;
[5.4]
After the death of her husband in 1996, her
oldest son (the deceased) became the successor of the Mpheto family
stand in an area
which falls “
under
the headman Zava which falls within Dzumeri Traditional Authority
under Mopani District in Limpopo Province
”.
The deponent’s son (as such) is regarded as a permanent
resident of the Zava Village. In reply, the first applicant
would
contest this, but it is a version reconcilable with someone having
two places of residence;
[5.5]
The deceased has a 29-year-old son, born
from a customary marriage concluded in 1992. The son supports a
burial at the Zava Village.
It is not clear from the papers what
transpired regarding this marriage;
[5.6]
The deceased returned to the village in
December 2020, sick. According to his mother:
“
3
.7
We had an opportunity to extend our conversation to his life in
Johannesburg and circumstances surrounding
his relationship with the
Applicant. He informed that he had long separated with the Applicant
and he had since instituted the
divorce proceeding as their marriage
had broken down irretrievable.
3
.8 He had long left the matrimonial home since the
Applicant had a protection order against him and he do not
want
anything to do with the Applicant other than to divorce.
3.9
During our conversations, I was not alone however we were in company
of EMMAH DUMISA, the sibling sister
of the Deceased. He further
informed me that he had committed mistakes in the pass for his life
and should he die, he should be
buried where his farther (…)
had been buried
”
(i.e.
at the village)
”
;
[5.7]
The deponent’s son returned to
Johannesburg to seek medical help, as his health deteriorated. A few
weeks later he would be
dead;
[5.8]
After the death of her son, the funeral
arrangements were made for 30 January 2021, according to his wishes.
She stated-
“
All
the payment were made and the tribal authority had already pointed
the grave which community member have already dig and prepared
the
grave. The customary ritual had been performed, food, cow was
slaughtered and other ancillary items such as blanket was purchased
however, I am not in position to estimate the costs at this stage
.”
[5.9]
Later, the customary ritual is stated to be
a ritual to ask ancestors to accept the deceased. The deponent fears
that, should the
deceased be buried in Gauteng against his wishes,
the rest of the family would “
be
followed by bad luck
”. “
It
would be also difficult for the family members to perform customary
rituals such as "mphahlo" if the Deceased would
be buried
separate grave yard from where the family members are buried
”;
[5.10]
Evidence from the attorneys was put forward
that at the time of the deceased’s death, the parties were in
the process of conducting
settlement negotiations in respect of the
division of joint estate only, and that the irretrievable break down
of the marriage
was common cause between the parties;
[5.11]
The authority of the first respondent to
have agreed to a burial in Gauteng (if he did), is disputed. Any such
arrangement was without
her knowledge and the first respondent did
not consult the deceased’s family;
[5.12]
The
heart of the dispute is stated to be:
[3]
“
5
.4
The right to bury the remain
body
of the Deceased is not an absolute right to any spouse whether legal
married or not. Any person nominated, such as me may have
the right
to bury the remain of the Deceased and in some instances our tsonga
culture follows the principle of primogeniture, where
the elder' s
son is allowed to decide whether the body of the Deceased should be
buried.
5
.5 My son was only legal married to the Applicant
on marriage certificate only however the Applicant and my
son were in
process of divorce which was pending even on the date of death
.”
[6]
The
first applicant obtained an order in this court against the
respondents on 29 January 2021, to interdict the funeral planned
at
the Zava Village.
[7]
This
factual background brings me to the law. No express reliance was
placed on customary law in the papers, and the applicant’s
counsel would later argue that the deceased’s mother relies on
custom and not customary law (binding on the first applicant).
Due to
the approach in this division to matters such as the present, I could
resolve the matter without having to address any conflict
in this
regard. Both parties accepted that fairness, based on the facts of
each case, must determine the outcome of the matter.
[8]
In
Finlay
and Another v Kutoane
1993 (4) SA 675
(W) Flemming DJP stated at 679J-680A that the proper
approach, where there are competing burial claims, is that “
the
law should ideally mirror what the community regards as proper and as
fair
”.
That view would be influenced
inter
alia
by views on social structures, views on family relationships and
marriage, views on the impropriety of not complying with requests
of
the deceased, religious views, cultural values and traditions.
[9]
The
fairness approach is applied in our courts. I refer to three more
recent cases next:
[9.1]
Mantame J, in
W
and Others v S and Others
[2016] ZAWCHC
49
, ordered, in not dissimilar circumstances, that the estranged
spouse should not determine where the deceased was to be buried, the
deceased’s family should do so. In that case (as in the present
one), it was a marriage on paper only, and the estranged
spouse had
nothing to do with the deceased. The expectations of the community,
fairness and reasonableness dictate that the deceased’s
relatives should determine where the burial must be, not the
estranged spouse. Costs followed the result;
[9.2]
Adams J in
T M
v C M and Another
[2019] ZAGPJHC 412,
came to a different conclusion in a case where the marriage could not
be described as a marriage on paper only.
He dealt with a case where
the parties were experiencing marital problems, but the parties had
not separated yet, and the surviving
spouse (who had sued for
divorce) did not proceed as she hoped to save the marriage. The
parties were not estranged. They also
had a 3-year-old child. There
was however evidence that the deceased intended to vacate the
matrimonial home. Weighing up several
factors listed in the judgment,
the learned judge found that the fairest order (on the facts of that
case) was that the surviving
spouse should be allowed to bury the
deceased. The judge made no costs order; and
[9.3]
Mokgoathleng J in
Sengadi
v Tsambo; In Re: Tsambo
[2019] 1 All SA
569
(GJ), dealt with a case where there was a dispute about a
customary marriage. At some time, the spouse (or if not, companion)
of
the deceased left the home due to the deceased’s infidelity
and drug dependency, it appears not long before his death. The
learned judge held that the customary marriage was valid, but found
that (on the facts of that case) the family of the deceased
should
bury the deceased. No costs order was made.
[10]
The applicants in two sets of heads of
argument relied on “
Nzaba v
Minister of Safety and Security and Others Case No: 0535/2005
”.
I could not find the case, and neither could the applicant provide it
to me in time for this judgment.
[11]
Against these cases, I considered, in no
particular order, especially the following facts:
[11.1]
The age of the second applicant, who is no
longer a young child living with the deceased under one roof;
[11.2]
The apparent, prolonged lack of contact
between the deceased and his estranged spouse;
[11.3]
The length of separation - it was for
several years;
[11.4]
The strength of the case (although disputed
to some degree) that the marriage had irretrievably broken down. If I
must resolve this
dispute on paper, the first applicant’s case
is the less plausible, if read in the context of the common cause
facts;
[11.5]
The lack of evidence about any will. As
such, there is no evidence of heirs at this stage. My acceptance of
the last wishes of the
deceased would have trumped the powers of the
heirs to determine burial arrangements;
[11.6]
The lack of evidence of any reason why the
deceased would have wanted the funeral planned by the first
applicant;
[11.7]
The strength of the case (although disputed
to some degree) that the actual wishes of the deceased were to be
buried at Zava Village.
The latter is indeed hearsay evidence, but it
is supported by the evidence of two witnesses and the statement was
made in the context
of an ill man discussing death with his family
and wishing to be buried at Zava Village. This must be compared to
the applicant’s
unconvincing bald statement;
[11.8]
Family cultural traditions and a precedent
of burials of family members at Zava Village;
[11.9]
The greater detail given about the cultural
beliefs of the deceased’s family.
[12]
In the end, it is my view that the
applicants should not determine the deceased’s burial
arrangements, and the application
stands to be dismissed. I make no
costs order as the deceased’s mother is not a party to the
proceedings, and my overall
impression is that burial arrangements
were made to the exclusion of the applicants.
Accordingly,
I make the following order:
1.
The application is dismissed.
DP de Villiers AJ
Heard
on:
4 February 2021
Delivered
on:
9 February 2021 by uploading on CaseLines
On
behalf of the Appellant:
Adv MT Khaba
Instructed
by:
Chris Janeke Attorneys
On
behalf of the Respondent:
Adv Khoza
Instructed
by:
Mabasa CL Attorneys
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-365C
[2]
As
used in
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189 in dealing with factual disputes about
a
prima
facie
right in interim interdicts.
[3]
I
quote verbatim.