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[2021] ZALMPPHC 36
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Mabulana v Mabulana and Others (5040/2021) [2021] ZALMPPHC 36 (26 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO: 5040/2021
In
the matter between:
MOYAHABO
EUGLY MABULANA
APPLICANT
And
GLEDIES
MABULANA
FIRST
RESPONDENT
SOPHY
MABULANA
SECOND
RESPONDENT
TWO
MOUNTAINS BURIAL SOCIETY
THIRD
RESPONDENT
NURSE
MADUMO
FOURTH
RESPONDENT
MPHO
ARON NYALUNGU
FIFTH
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
On 21
st
July 2021 the applicant brought an ex-parte urgent
application seeking an interim relief that the first and second
respondents
be interdicted from burying Nakampe Wilard Mabulana
(deceased); that she be allowed to bury the deceased and first and
second respondents
or any other person be interdicted from misusing
or taking the deceased assets pending the final determination of the
matter. On
that date the court gave directives that the application
be served on the respondents and it be set down to be heard on 22
nd
July 2021 at 14h00.
[2]
On 22
nd
July 2021 the first and second respondents applied
for joinder of Nurse Madumo and Mpho Aron Nyalungu the children of
the deceased
from another marriage as fourth and fifth respondents.
The applicant did not oppose the application and the joinder
application
was granted. The matter was adjourned to the 23
rd
July 2021 at 14h00 to enable the respondents to file their answering
affidavit and reply by the applicant if any, and the matter
was
supposed to be heard virtually.
[3]
On 23
rd
July 2021 the court was informed that due to some
technicalities, counsel for the respondents was having some problems
to join
the virtual hearing and the parties have agreed that the
court finalise the matter on papers without oral submissions. The
court
dismissed that applicant’s application and notified the
parties that the written reasons for the order will follow. What now
follows is the written reasons for the order of the 23
rd
July 2021.
[4]
The applicant is the deceased’s wife, the first respondent is
the deceased sister in law
and the second respondent is the deceased
sister. According to the applicant, she and the deceased were married
each other on 3
rd
July 1996 in terms of civil rites, and
from the said marriage they had three children who are currently all
majors. The applicant
avers that during 2018 her marriage between her
and the deceased faced some challenges and difficulties which led to
the deceased
moving out of their common matrimonial home. However,
during their separation they continued to communicate with each other
concerning
their children and matrimonial home.
[5]
On 18
th
July 2021 the applicant was informed by one of
their the children of the passing away of the deceased. On hearing
that the applicant
started preparing and making arrangements for the
deceased burial. When the applicant went to the third respondent, the
employees
of the third respondent informed her that the deceased was
brought to them by the first and second respondents, and that they
will
not be able to assist her. The applicant was advised by the
employees of the third respondent to try and resolve their issues as
a family. The applicant approached the first and second respondents
to try and resolve the matter, but the first and second respondents
did not want to talk to her in order to resolve the deceased burial
arrangements.
[6]
On 20
th
July 2021 the applicant went to the third
respondent’s premises seeking necessary documents to apply for
a death certificate
of the deceased, but the third respondent did not
provide her same. The third respondent told the applicant that they
were unable
to assist her as the first and second respondents were
arranging the funeral of the deceased. The third respondent further
informed
the applicant that the only thing that can stop them from
handing over the deceased body to the first and second respondents
was
a court order. According to the applicant, the first and second
respondents are intending to bury the deceased on 24
th
July 2021.
[7]
That led to the applicant instituting an urgent application against
the respondents. It is the
applicant’s contention that the
respondents are unlawfully and without good cause refusing her as the
deceased wife to fully
and fairly participate in her late husband
funeral arrangements and burial. The applicant had submitted that she
and the children
have already prepared the burial site for her late
husband.
[8]
The first, second, fourth and fifth respondents (respondents) are
opposing the applicant’s
application. The respondents’
answering affidavit has been deposed by the fourth respondent on
behalf of all the respondents
and other respondents have filed
confirmatory affidavits.
[9]
The respondents in their answering affidavit have submitted that the
deceased and the applicant
were married to each other on 3
rd
July 1996. On 9
th
January 2018 the applicant instituted
divorce proceedings against the deceased, and in her papers has
stated that she had lost
love and affection towards the deceased. In
her particulars of claim in the divorce action, the applicant has
stated that there
were no children born between her and the deceased.
That the deceased had vigorously contested the divorce, but on 30
th
June 2021 the parties at court agreed that the applicant should
obtain the decree of divorce on unopposed basis, and that
their joint
estate be equally divided. On that date the matter was postponed to
28
th
July 2021 to enable the applicant to obtain the
assistance on an interpreter. That had it not been for the
postponement, the divorce
would have been finalised on 30
th
June 2021.
[10] The
respondents further submit that it has been the wishes of the
deceased to be buried by the first
respondent, and further that the
deceased had left a will and particulars of his burial societies to
the first respondent. The
respondents avers that towards the deceased
final days, he was not well and was cared for by the first
respondent, and further
that the first respondent has been taking
care of the deceased since 2013, and even after the deceased ceased
working. The respondents
further avers that there was no
communication between the deceased and the applicant.
[11]
The respondent have submitted that the applicant had withdrawn her
divorce action immediately after
hearing that the deceased had passed
away. The respondents further submit that the applicant and her
children are not prohibited
from attending the deceased funeral. It
is the respondents’ contention that the third respondent
derives its entitlement
and right to bury the deceased by virtue of
the fact that it is named as one of the beneficiaries in the deceased
will.
[12]
The applicant in her replying affidavit has submitted that she is
having a clear right to bury the
deceased since she is married to the
deceased, and the will is silent on the issue of the person who must
prepare and arrange the
deceased funeral. It is the applicant’s
contention that the marriage relationship between her and the
deceased was terminated
by the death of deceased and that the
deceased death certificate state that he was still married at the
time of his death.
[13] Family
feuds in relation to who has the right to bury a deceased person had
the potential of permanently dividing
the family. These are sensitive
disputes which are best suited to be mediated and resolved by family
elders rather than bring them
to court where there is no winner, but
divides a united family structure which end up being teared apart. It
is the time when the
family should be united more than ever, and
preparing to give the loved one a dignified burial, rather than hang
their dirty linen
in court. It will therefore be the duty of the
court to evaluate the evidence presented before it in its totality in
order to arrive
at a just and fair decision.
[14]
The applicant and the deceased were married to each other by civil
rite which marriage still subsisted
at the time of the deceased
death, even though the parties were undergoing a divorce process
which was on the verge of been finalised.
The parties have already
agreed that the applicant should proceed to obtain the decree of
divorce on uncontested basis, and have
also agreed on how their joint
estate should be divided. In fact had it not been for their matter
been postponed on 30
th
June 2021, their divorce would have
been finalised at the time of the deceased death.
[15]
In applications of this nature, it is the duty of all the parties to
make a full disclosure of all
the relevant and vital facts relating
to the matter in dispute to enable the court make a just and fair
decision. The applicant
was aware that at the time of the deceased
death, she had instituted a divorce action against the deceased; that
they have already
agreed that she will obtain the decree of divorce
on uncontested basis; have agreed on how their estate will be divided
and have
already secured a date on which the divorce will be
finalised, which was few days before the deceased death. All these
are vital
and necessary information which would assist the court in
arriving a just and fair decision, but the applicant without
justification
failed to disclose that, and even in her replying
affidavit she admitted the contents of the paragraphs without giving
an explanation
why she had failed to disclose these vital information
in her founding affidavit.
[16]
The applicant in her founding affidavit has stated that she became
aware of the deceased death on 18
th
July 2021 which is the
date on which the deceased passed away. However, on 19
th
July 2021 she filed a notice of withdrawal of her divorce action. In
her replying affidavit she had stated that the marriage relationship
between her and the deceased was terminated by the death of the
deceased, but does not explain why she withdrew her divorce action
immediately on learning about the deceased death. In my view, it was
opportunistic of her to withdraw her divorce action immediately
on
learning of the deceased death, as she knew the implications it will
have on her in relation to her right to bury the deceased.
[17]
The applicant in her founding affidavit has stated that the deceased
had moved out of their common
home during 2018, and she did not
dispute the respondents’ version that towards the deceased
final days, he was not well
and was being cared for by the first
respondent. The deceased therefore passed away in the care of the
first respondent. The applicant
in her divorce papers has stated that
she had lost love, affection and respect towards the deceased and
that she desired for a
divorce. The parties have already agreed that
the applicant will obtain a decree of divorce on uncontested basis;
they have already
agreed how their joint estate was going to be
divided on finalisation of the divorce; they have already settled on
the date on
which the their divorce was to be finalised, which was a
few days before the deceased death and the parties have been
separated
since 2018.
[18]
The applicant had for a long period of time disassociated herself
with the deceased, she had lost love,
affection and respect towards
the deceased, and did not want be with him anymore. All these have
been expressly stated by the applicant
in her divorce papers, and the
applicant had failed explain how the death of the deceased had
restored the lost love, affection
and respect towards the deceased
when she was on the eve of obtaining the permanent termination of the
relationship which she had
with the deceased. Even at the time of the
deceased death, the relationship was existing on papers only as they
have separated
during 2018, and a final decree of divorce which they
were supposed to obtain on 28
th
July 2021 was a mere
formality as the parties have already agreed on contentious issues.
[19]
In
W
and Others v S and Others
[1]
Mantame
J said:
“…
the
deceased, by her actions disassociated herself from the first
respondent whilst she was still alive. It is unheard of that a
person
who was severing ties with her husband would now be claimed to be the
husband’s ancestor when she is no more…
nothing was left
from his civil union with the deceased, as they were two (2) days
away from divorce when the deceased met her
death.”
[20]
In my view, the case at hand is not distinguishable from the
W and
Others
case above, as the applicant was a few days away from
obtaining a decree of divorce when the deceased passed away, the
parties
have since 2018 separated from each other, and have already
agreed on a divorce. What was still joining them together was a
marriage
certificate of which the actual marriage existed only on
paper.
[21]
The deceased had left a will which relates to his half share of the
joint estate, and the applicant
is not challenging its validity. In
terms of the deceased will, he had nominated the second and fourth
respondents as the only
heirs of his estate. The applicant in her
replying affidavit has stated that the will is silent on who must
prepare and arrange
the deceased funeral, and that ‘as the
lawful wife of the deceased had a clear right to bury the deceased.
[22]
In
Tseola
and Another v Maqutu and Another
[2]
Munnik
CJ said:
“…
from
these two cases it is quite clear that it is the duty and therefore
the right of the heir to bury the deceased and to use his
discretion
in doing so where no testamentary directions have been given. In fact
the testamentary directions can even be ignored
if they are of an
impracticable nature/or involving or going beyond a just scale of
expenditure.”
[23]
The deceased will did not give directions as who will be responsible
for arranging his funeral, and
also did not specify where he should
be buried. However, the deceased had nominated the heirs in his will,
and those heirs are
still alive. The deceased and the applicant have
disassociated themselves from each other during the deceased’s
lifetime,
and they have already agreed to separate from each other
permanently, and were on the verge of achieving their wishes. The
respondents
in their answering affidavit have that stated it has
always been the deceased wishes to be buried by the first respondent.
The
applicant in her replying affidavit has combined three paragraphs
and stated that the respondents are not telling the truth except
where they differ with her on the allegations, and the rest of the
paragraphs are noted, and further that she is having a clear
right to
bury the deceased as they are still married. It is not clear whether
she is disputing that it has always been the deceased
wishes to be
buried by the first respondent. The only conclusion will be that she
is not disputing that, but according to her,
despite those wishes,
she is entitled to bury the deceased as she was still lawfully
married to the deceased.
[24]
The wishes of the deceased had to be
respected. In
Trollip
v Du Plessis and
Another
[3]
the
court held that it was within the bounds of reasonableness to respect
the wishes of the deceased, whether expressed in a testament
or not,
and if no such preference was expressed, resort could be had to the
heirs. During his last days the deceased was in the
care of the first
respondent and the applicant did take care of him and was not even
present when he passed away, and they have
being separated from each
other for a long time. The deceased by making his separate will
despite being married in community of
property with the applicant,
and in that will had disinherited the applicant, was a sign that he
had made his position clear that
he had severed ties with the
applicant even though on papers they were still married. The deceased
had expressed his wishes to
buried by the first respondent, and also
taking into consideration that the marriage of the parties only
existed on papers, in
my view, the first, second fourth and fifth
respondents are ones who are having a right to make preparations and
funeral arrangements
of the deceased and also to bury him. It follows
that the applicant has failed to establish a clear right to bury the
deceased.
[25]
In the result I make the following order
25.1
Forms and service provided for in the Uniform Rules of Court are
dispensed with and the matter is enrolled as urgent.
25.2
The applicant’s application is dismissed with costs on party
and party scale
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicant
:
Adv Sibiya TD
Instructed
by
:
HM Mhlongo Attorneys
Counsel
for the respondent
:
Mr Mokoena
Instructed
by
:
MB Mokoena Attorneys
Date
heard
:
23
rd
July 2021
Date
delivered
:
26
th
July
2021 electronically
[1]
[2016]
ZAWCHC 49
(4 May 2016) at para 38
[2]
1976
(2) SA 418
(THC) at 422H
[3]
2002
(2) SA 242
(W)