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[2022] ZAFSHC 114
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Lemaku v Simunye and Others (1887/2022) [2022] ZAFSHC 114 (25 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
1887/2022
Reportable:
Yes/No
Of
Interest to other Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
RASEBOTSENG
LEMAKU
Applicant
and
ANNA
SIMUNYE
First
Respondent
MOLLY
FUNERAL HOME
Second Respondent
THE
SHERIFF FOR THE DISTRICT THABA NCHU
Third
Respondent
JUDGMENT
BY:
N. SNELLENBURG, AJ
HEARD:
21 APRIL 2022
REASONS
DELIVERED ON:
25 MAY 2022
[1]
Aggrieved by the first respondent undertaking the funeral
arrangements, with the intended
burial of the Late Johannes Masusu
Lemako [the deceased], who passed away on 14 April 2022, to take
place during the early morning
hours of Friday, 22 April 2022, the
applicant approached the Court on urgent ex parte basis on Thursday,
21 April 2022 at 20h30
(approximately 8½ hours before the
ceremony and burial would take place), for final and interim
relief
[1]
intended to stay the
burial and declare that the applicant shall be entitled to bury the
deceased. The applicant filed only a notice
of motion and requested
leave to lead
viva
voce
evidence in substantiation of the urgency and the relief she sought.
[2]
The application was enrolled as urgent application and dismissed on
22 April 2022
at 00h30, save for the relief sought in prayer 6 of the
notice of motion with regards to which an order of absolution of the
instance
was granted.
[3]
These are the reasons for the order.
[4]
The applicant is the estranged wife of the deceased. They have been
separated for
14 years after she fled the marital home during 2007 to
escape the deceased’s continued abuse. The applicant and the
deceased
were separated since then although they were never divorced.
[5]
It is accepted for purposes hereof that the applicant and the
deceased were married
to each other in community of property in
Lesotho during 1981 and that this marriage, at least on paper, still
existed when the
deceased passed away.
[6]
As far as can be discerned from the evidence, the applicant and
deceased had three
children, two of which are still alive i.e., a son
and a daughter. The daughter, Mrs Nthabiseng Joyce Rakubutu (n
ée
Lemako) [Nthabiseng] testified on behalf of the applicant.
[7]
For his part, the deceased and the first respondent entered into a
relationship and
lived together at the first respondent’s
residence as husband and wife since 2007/2008. The relationship
endured until the
deceased’s death.
[8]
The second respondent is the mortuary where the deceased’s body
is kept, and
the third respondent is the Sheriff for the district of
Thaba Nchu.
[9]
The right asserted by the applicant is premised on the common law
principles that
govern burial rights.
[10]
These principles, based on the statements of Voet, are well
documented and entrenched in our
law and provide that the court will
give preference to the wishes of the deceased which may be expressed
in the deceased’s
Will, any document or verbally.
[2]
In absence of instructions
the
burial rights vest in the testamentary heirs and if there are none
then in the intestate heirs.
[3]
[11]
In
Finlay
[4]
,
Flemming
DJP explained that:
“
Voet was, however,
not dealing with choosing between competing parties. He spelled out
the duty to bury. As is shown by s 11.7 and
by his way of explaining
and justifying the rules, it is a propriety with undertones of
religious duties and regarding some aspects
as hallowed.”
[5]
[12]
Flemming DJP expressed the view that ‘Voet is no authority on
how our legal system should
cope with demands which were unknown to
him but are bona fide and real.’.
[6]
Earlier
in the judgment, before dealing with the burial rights at common law,
the Judge remarked-
“
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.”
[7]
[13]
Erasmus J, in dealing with
competing claims of heirs for burial rights, said in
Mahala
v Nkombombini and Another
2006
(5) SA 524
(SE) para 14-
“
Where a deceased
leaves a will, but without explicit indication as to whom shall be
responsible for the burial arrangements, it
could well be the
implicit intention of the testator that such arrangements be effected
by those who inherit his earthly goods.
The same would apply,
presumably, where the deceased dies intestate. There can be little
problem where there is a single heir.
Problems however arise where -
as in the present matter – there is a multiplicity of heirs. In
such circumstances there should
be no hard and fast rules. Each case
is to be decided on its own particular circumstances. Common sense
shall largely dictate the
decision of the court. The court shall have
regard to the family relationships of the deceased, as well as all
other relevant circumstances.
The court shall, for example, take
account of the practical considerations. This reflects the approach
adopted in the Transvaal
in Trollip’s case (supra)
[8]
.
The learned judge stated that fairness in the particular
circumstances of the case was decisive (245 I). He added that the
claim
could not be evaluated according to the mathematical
proportions of heirship, as if there was a co-shareholding in the
body of
the deceased (245 J). To respect the wishes of the deceased
it was both sensible and fair.”
[14]
In
W and
Others v S and Others
[9]
[W v S], a case with some commonalities to the matter at hand,
Mantame
J
pointed out that the blanket approach to the heir’s burial
rights at common law failed to take into account the expectations
of
the community; the relationship between the deceased (whilst still
alive) and the heir who has a right to decide the issue of
burial of
the deceased and fairness and reasonableness of such decision:
“
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.”
[10]
[emphasis added]
Whilst
the Court in
W v S
still appeared to deal with competing
claims of persons who fell within the categories of persons who
qualified for burial rights
at common law, i.e., the blood relatives
were preferred over the estranged husband on the facts of that
matter, the facts of this
matter do differ in that respect. That
said, I agree fully with the astute observations in the passage
above, more so where we
live in enlightened times where our
Constitutional values are infused in the public policy which has
changed considerably from
what it was when many of the older
precedents, dealing with burial rights, were penned. The relevant
common law principles have
been developed so that notions of
reasonableness and fairness have tempered the blanket application.
[15]
In
W v S
at para 24 reference is made to the passage in LAWSA,
` Volume 32 (2
nd
edition) at para 221
‘General’, where 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.”
[16]
The issue for consideration, which has to be determined solely on the
applicant’s case
under the circumstances described above, is
whether the mere fact that the applicant and deceased were still
lawfully married in
terms of a civil marriage when he passed away,
vests her with the exclusive right to attend to his burial
notwithstanding the fact
that the applicant and deceased had been
estranged for a period of 14 years and the deceased had until his
death, for a period
of approximately 14 years lived with the first
respondent in a relationship as ‘husband and wife’,
albeit an extra-marital
relationship.
[17]
Regarding the procedure the applicant elected to follow,
Uniform
rule 6(2) provides that when relief is claimed against any person, or
where it is necessary or proper to give any person
notice of such
application, the notice of motion must be addressed to both the
registrar and such person, otherwise it must be
addressed to the
registrar only. In
casu
although the notice of motion was
addressed to the respondents, the application was made on ex parte
basis.
[18]
It is a foundation stone of our legal system that a person is
entitled to notice of legal proceedings
instituted against him.
[11]
It is well established that requesting and obtaining an order without
notice to the person against whom the legal proceedings are
instituted and without affording the person an opportunity to be
heard, regardless of whether it is provisional or final relief,
is
contrary to the rules of natural justice.
[19]
The Supreme Court of Appeal succinctly summarized the principles
applicable to ex parte applications
in
Recycling and Economic
Development Initiative of South Africa NPC v Minister of
Environmental Affairs
2019 (3) SA 251
(SCA) paras 45 –
52:
“
Disclosure —
legal principles
[45] The principle
of disclosure in ex parte proceedings is clear. In
NDPP
v Basson
[12]
this court said:
'Where an order is sought
ex parte it is well established that the utmost good faith must be
observed. All material facts must be
disclosed which might influence
a court in coming to its decision, and the withholding or suppression
of material facts, by itself,
entitles a court to set aside an order,
even if the non-disclosure or suppression was not wilful or mala fide
(
Schlesinger v Schlesinger
1979 (4) SA 342
(W) at 348E –
349B).'
[46]
The duty of utmost good faith, and in particular the duty of full and
fair disclosure, is imposed
because orders granted without notice to
affected parties are a departure from a fundamental principle of the
administration of
justice, namely, audi alteram partem. The law
sometimes allows a departure from this principle in the interests of
justice but
in those exceptional circumstances the ex parte applicant
assumes a heavy responsibility to neutralise the prejudice the
affected
party suffers by his or her absence.
[47]
The applicant must thus be scrupulously fair in presenting her own
case. She must also speak for the
absent party by disclosing all
relevant facts she knows or reasonably expects the absent party would
want placed before the court.
The applicant must disclose and deal
fairly with any defences of which she is aware or which she may
reasonably anticipate. She
must disclose all relevant adverse
material that the absent respondent might have put up in opposition
to the order. She must also
exercise due care and make such enquiries
and conduct such investigations as are reasonable in the
circumstances before seeking
ex parte relief. She may not refrain
from disclosing matter asserted by the absent party because she
believes it to be untrue.
And even where the ex parte applicant has
endeavoured in good faith to discharge her duty, she will be held to
have fallen short
if the court finds that matter she regarded as
irrelevant was sufficiently material to require disclosure. The test
is objective.
[13]
[48]
As Waller J said in
Arab
Business Consortium
[14]
,
points in favour of the absent party should not only be drawn to the
judge's attention, but must be done clearly: 'There should
be no
thought in the mind of those preparing affidavits that provided that
somewhere in the exhibits or in the affidavit a point
of materiality
can be discerned, that is good enough.'
[49]
The ex parte litigant should not be guided by any notion of doing the
bare minimum. She should
not make disclosure in a way calculated to
deflect the judge's attention from the force and substance of the
absent respondent's
known or likely stance on the matters at issue.
Generally, this will require disclosure in the body of the affidavit.
The judge
who hears an ex parte application, particularly if urgent
and voluminous, is rarely able to study the papers at length and
cannot
be expected to trawl through annexures in order to find
material favouring the absent party.”
[20]
Neither the applicant nor Nthabiseng disclosed whether they knew if
the deceased had a Will or
whether they made any reasonable enquiries
in that regard.
[21]
The following facts are relevant:
21.1
At midnight on 14 April 2022 the applicant’s son, who resides
in Cape
Town, informed Nthabiseng’s husband, not the applicant,
that the deceased had passed away.
21.2
The applicant’s son informed Nthabiseng that he would not
attend the
funeral.
21.3
The applicant and her daughter attended a ‘family meeting’
after
learning of the deceased’s death where she asserted the
right to bury the deceased. The meeting consisted of aunts, uncles,
and cousins. The family did not accept that the applicant had the
right to bury the deceased. The family accepted instead that
the
memorial service would be held at the first respondent’s house.
During argument the applicant’s counsel made much
of the fact
that this family meeting in fact consisted of extended family.
Suffice to say, that the outcome did not please the
applicant.
21.4
The applicant and Nthabiseng amongst other matters involved the
police to obtain
the documents from the first respondent which would
be necessary to bury the deceased and demand release of the
deceased’s
body to the applicant. To their surprise, the
applicant’s son – who informed Nthabiseng earlier that he
would not attend
the funeral - was present at the first respondent’s
house and spoke to the police. The applicant’s son informed the
police that he did not know why they were asking “these
things”; that the memorial ceremony would take place at the
first respondent’s house and that ‘they’, the
applicant and Nthabiseng, were cruel.
21.5
The reason for the urgency was explained to have its origin in a
message send
to the applicant by her son, presumably on 21 April 2022
informing her that the deceased would be buried ‘early in the
morning’
and that first respondent had already collected the
body from the mortuary.
21.6
The applicant, as an afterthought, claimed that the deceased had made
attempts
to reconcile with her before his passing. No meaningful
details with any measure of credence were supplied in this regard.
[22]
As stated, the applicant and the deceased were separated for at least
the past 14 years. The
applicant on her version fled from the marital
home.
[23]
The deceased cohabited with the first respondent and their
relationship was akin to that of husband
and wife. Although they were
not formally married, because the deceased and applicant were never
divorced, on the applicant’s
own version it can safely accepted
that the first respondent and the deceased had lived together in the
same home, had a common
household which they maintained and to which
they both contributed, and maintained an intimate relationship.
[15]
The deceased and first respondent lived ‘together in a fixed
and stable relationship in which they mutually regarded each
other as
a permanent partner’.
[16]
[24]
T
he right to bury one's dead is a matter within the ambit of
the right to human dignity. Funeral and burial rituals serve to
express
final acknowledgment by the bereaved of the human dignity of
the deceased.
Nkosi v Bührmann
2002 (1) SA 372
(SCA)
para 55.
[25]
The applicant’s argument is premised on the following: when the
deceased passed away, a
valid civil marriage between them existed.
The marriage was dissolved by his death. The first respondent was not
married to the
deceased. They were engaged in an illicit extra
marital relationship. As the deceased’s lawful spouse, the
right to bury
vests in her and must have preference over any other
competing rights, if it can be said that any competing rights do
exist.
[26]
The applicant’s marriage was merely on paper for the past 14
years.
[27]
The applicant’s son’s remarks to the police are telling.
With exclusion of the applicant and her daughter,
the family respects and supports the first respondent’s right
to dispose
of the body of the deceased by burial.
[28]
In
EH
v SH
[17]
supra
the Court was called upon to consider whether public policy barred a
wife claiming maintenance from her husband on divorce,
where the wife
was (and had been) living with and being maintained by another man.
The court held that public policy no longer
barred a claim solely on
the ground of such cohabitation.
[18]
“
Relying
upon judgments such as
Dodo v Dodo
1990
(2) SA 77
(W) at 89G;
Carstens v
Carstens
1985 (2) SA 351
(SE) at
353F; and
SP v HP
2009
(5) SA 223
(O) para 10 it was argued, both in the high court and in
the appellant's heads of argument, that it would be against public
policy
for a woman to be supported by two men at the same time. While
there are no doubt members of society who would endorse that view,
it
rather speaks of values from times past and I do not think in the
modern, more liberal (some may say more 'enlightened') age
in which
we live, public policy demands that a person who cohabits with
another should for that reason alone be barred from claiming
maintenance from his or her spouse. Each case must be determined by
its own facts, and counsel for the appellant (whom I must hasten
to
add had not been responsible for the preparation of the appellant's
heads of argument) did not seek to persuade us to accept
that the
mere fact that the respondent was living with Mr Smith operated as an
automatic bar to her recovering maintenance from
the
appellant.”
[29]
Admittedly the aforesaid case concerned a claim for maintenance in
divorce proceedings, but the
principles enunciated are equally
apposite to this matter.
[30]
In
Jacobs v Road
Accident Fund
2019 (2) SA 275
(GP)
[Jacobs] Collis J was called upon to consider whether the Road
Accident Fund was liable for a claim by the surviving partner
in a
‘live-in relationship’, for loss of maintenance and
support, where the deceased was still married to someone else
when he
died. In considering the boni mores criteria Collis J inter alia held
as follows:
“
[16] It is so that
our society recognises the sanctity of marriage and by extension the
reciprocal duty spouses owe each other.
In Dawood and Another v
Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas
and Another v Minister of Home
Affairs and Others
2000 (3) SA 936
(CC)
(2000 (8) BCLR 837
;
[2000]
ZACC 8)
the court said the following regarding the institution of
marriage:
'The institutions of
marriage and the family are important social institutions that
provide for the security, support and companionship
of members of our
society and bear an important role in the rearing of children.'
[17] Furthermore the
court said:
'Entering into and
sustaining a marriage is a matter of intense private significance to
the parties to that marriage for they make
a promise to one another
to establish and maintain an intimate relationship for the rest of
their lives which they acknowledge
obliges them to support one
another, to live together and to be faithful to one another.'
[18] The matter, however,
does not end there. There can be no doubt that our courts also have a
duty to develop the common law.
This is the power which they have
always had.
[19]
Today the
power must be exercised in accordance with the provisions of s 39(2)
of the Constitution which requires that the common
law be developed
in a manner that promotes the spirit, purport and objects of the Bill
of Rights. This entails developing the common
law in accordance with
extant public policy. In Du Plessis
[20]
Kentridge AJ in para 61 quoted the case of Salituro with approval:
'Judges can and should
adapt the common law to reflect the changing social, moral and
economic fabric of the country. Judges should
not be quick to
perpetuate rules whose social foundation has long since disappeared.
Nonetheless there are significant constraints
on the power of the
Judiciary to change the law. . . . In a constitutional democracy such
as ours it is the Legislature and not
the courts which has the major
responsibility for law reform. . . . The judiciary should confine
itself to those incremental changes
which are necessary to keep the
common law in step with the dynamic and evolving fabric of our
society.'
[21]
[19] Having regard to our
South African context, millions of South Africans live together
without entering into any formal marriage.
This is simply a fact of
life, although as Mokgoro J and O'Regan J observed in Volks, their
circumstances differ significantly:
'Some may be living
together with no intention of permanence at all, others may be living
together because there is a legal or religious
bar to their marriage,
others may be living together on the firm and joint understanding
that they do not wish their relationship
to attract legal
consequences, and still others may be living together with the firm
and shared intention of being permanent life
partners.'
This, however, does not
mean that our courts demean the value or importance that our society
places on marriage as an institution.”
[31]
The Court further observed that:
“…
Cohabitation
outside a formal marriage, and dare I say, even where one of the
parties is still married, is now widely practised
and accepted by
many communities, including our South African community. ..”
[22]
[32]
The reasoning articulated in
Jacobs
is similarly applicable to
the matter at hand.
[33]
The argument that the first respondent must be deprived of the right
to undertake the funeral
arrangements and burial of the deceased,
based on the preference shown to spouses or heirs at common law,
because the deceased
cohabited with the first respondent whilst still
being married to the applicant, on the basis that the relationship is
‘illicit’
(in other words in the context used by the
applicant meaning ‘disapproved of by society’ or contrary
to public policy)
‘
speaks of values from
times past’.
[34]
In the circumstances of this case, the fact that the deceased lived
with the first respondent
as ‘husband and wife’ for 14
years (until he passed away), whilst still being married to the
applicant on paper, should
not be an automatic bar from being
entitled to undertake the deceased’s funeral arrangements and
burial.
[35]
The threshold requirements for final and interim interdicts are
trite. The applicant is required
to establish:
35.1
a prima facie right, though it may be open to some doubt;
a
well-grounded apprehension of irreparable harm, if the interim relief
is not granted and final relief is ultimately granted;
the balance of
convenience must favour the granting of interim relief; and there
must be no alternative remedy available to give
suitable redress to
the applicant; and-
35.2
a clear right, an infringement of the right actually committed
or
reasonably apprehended, and the absence of an alternative remedy for
a final interdict.
[36]
The first issue that can be disposed of without further debate is the
applicant’s claim
for final relief in motion proceedings on ex
parte basis. Whilst there may be circumstances where a Court could
make an order which
may be final in effect without notice, such
discretion would most certainly only be exercised in exceptional
circumstances in the
rarest of cases. This is not such a case.
[37]
On the facts of this matter the
applicant has not satisfied
the threshold requirements for an interim interdict.
[38]
The applicant sought the interdict hours before the funeral without
notice to the first respondent
or for that matter any of the family.
[39]
The arrangements for the funeral were finalised.
[40]
The society would not expect that the first respondent should be
denied the right to bury the
deceased on the facts of this matter.
[41]
Considerations of fairness, reasonableness, logic and practicality
dictate that the applicant
had not established a prima facie right
though open to only some doubt. In any event, the balance of
convenience did not favour
the grant of an interim interdict, even
should the applicant establish the first requirement.
[42]
The applicant may nonetheless be entitled, for
other reasons, to all or some of the documents she requested
in
prayer 6
[23]
of the notice of
motion. For that reason, the order of dismissal of the application
was qualified as far as prayer 6 of the notice
of motion is
concerned, to be that of absolution from the instance.
[43]
In the premises the following ORDER was made:
1.
Condonation is granted to the applicant
for her non-compliance with
the Uniform rules regulating form, service of process and time
periods relating thereto, and the application
is enrolled for hearing
as urgent application in terms of Uniform rule 6(12).
2.
The application is dismissed subject to para 3 below.
3.
The order of dismissal operates as order of absolution from
the
instance regarding the relief sought in prayer 6 of the notice of
motion.
N.
SNELLENBURG AJ
Appearance:
On
behalf of the applicant:
Adv. P Mphuloane
Instructed
by:
Mphatswe Attorneys, Bloemfontein
[1]
The
applicant sought the following final relief “
Interdicting
the First Respondent and/or any other person associated with her
from burying Mr Johannes Masusu Lemako (“the
deceased”);
Interdicting the Second Respondent from delivery of or making the
body of the deceased available to the First
Respondent and/or any
other person. Directing the First Respondent to hand over the
identity document, drivers licence [
sic
],
RSA passport and Burial order of the deceased to the Applicant. In
term of the rule
nisi
the applicant sought an order that she shall be entitled to bury the
deceased and make any and all arrangements that are associated
with
such burial.
[2]
Finlay
v Kutoane
1993
(4) SA 675
(W) at 679G–680E;
Sekeleni
v Sekeleni and Another
1986
(2) SA 176
(Tk);
Mankahla
v Matiwane
1989
(2) SA 920 (Ck).
[3]
Finlay
v Kutoane
1993
(4) SA 675
(W) at 679G–680E
;
Mankahla
v Matiwane
1989
(2) SA 920
(Ck);
Sekeleni
v Sekeleni and Another
1986
(2) SA 176 (Tk).
[4]
See
n2 above
[5]
At
680D-E.
[6]
Finlay
above
at p681G-H.
[7]
At
p679I-680A.
[8]
Trollip
v Du Plessis en 'n Ander
2002
(2) SA 242 (W).
[9]
W and
Others v S and Others
(360/16)
[2016] ZAWCHC 49
(4 May 2016).
[10]
Para 32.
[11]
Steinberg
v Cosmopolitan National Bank of Chicago
1973
(3) SA 885
(RA) at 892B – C;
Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd (t/a Altech Card Solutions)
2012
(5) SA 267
(GSJ) para 20.
[12]
National Director of Public Prosecutions v Basson
2002 (1) SA
419
(SCA) para 21.
[13]
See eg
Thomas
A Edison Ltd v Bullock
[1912] HCA 72
((1912)
[1912] HCA 72
;
15 CLR 679)
at 681 – 682 per Isaacs J;
Bank
Mellat
v Nikpour
[1985] FSR 87
(CA) at 89 per Lord Denning MR, at 92 per Donaldson
LJ, and at 93 per Slade LJ;
Siporex
Trade SA v Comdel Commodities Ltd
[1986] 2 Lloyd's Rep 428 at 437 per Bingham J;
Arab
Business Consortium International Finance and Investment Co v Banque
Franco-Tunisienne
[1996] 1 Lloyd's Rep 485 (QB) at 489;
Aristocrat
Technologies Australia Pty Ltd v Allam
[2016] HCA 3
para 15.
[14]
Arab
Business Consortium International Finance and Investment Co v Banque
Franco-Tunisienne
n11 at 491.
[15]
EH
v SH
2012
(4) SA 164
(SCA) para 10;
Drummond
v Drummond
1979
(1) SA 161
(A) at 167A – C.
[16]
EH
v SH
above,
para 10.
[17]
EH
v SH
above
fn 7.
[18]
EH
v SH
above
fn 7, para 11.
[19]
Argus Printing and Publishing Co Ltd v lnkatha Freedom Party
[1992] ZASCA 63
;
1992
(3) SA 579
(A) ([1992] ZASCA 63) at 590G – H.
[20]
Du Plessis and Others v De Klerk and Another 1996 (3) SA 850
(CC) (1996 (5) BCLR 658; [1996] ZACC 10).
[21]
R v Salituro (1992) 8 CRR (2d) 173 (SCC) ([1991]
3 SCR 654)
(Canada)
at 666G – H and 670F – I (Salituro).
[22]
Jacobs
v Road Accident Fund
above at para 22.
[23]
Prayer
6 of the notice of motion provides “
Directing
the First Respondent to hand over the identity document, drivers
licence, RSA passport and Burial order of the deceased
to the
Applicant.
”