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[2021] ZAGPJHC 680
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Mokwena v Mokwena and Others (31066/2021) [2021] ZAGPJHC 680 (27 August 2021)
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: 31066/2021
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
MAHLASELA
DORCAS MOKWENA
Applicant
and
ANNA
REFILWE
MOKWENA
First Respondent
ESTATE
LATE: SERUWANE FRANK MOKWENA
Second Respondent
CHRIS
HANI BARAGWANATH HOSPITAL
Third Respondent
NEDBANK
Fourth Respondent
FIRST
NATIONAL
BANK
Fifth Respondent
PUTCO
BUS SERVICES (PTY)
LTD
Sixth Respondent
JUDGMENT
MAKUME
J
:
[1]
This is the return date of a rule nisi granted by my brother Mabesele
J on the 2 July
2021 in terms of which the Respondents are in the
main called upon to show cause why a final order shall not be granted
amongst
others: -
-
Permitting
the Applicant to take possession of the body of one Frank Seruwane
Mokwena from the Baragwanath Hospital Mortuary and
to bury the
deceased at Burgersfort in Limpopo.
[2]
It is common cause that during or about 1978 the deceased Frank
Seruwe Mokwena (the
deceased) concluded a customary marriage in
Limpopo with the Applicant. Eight children were born out of that
marriage all of them
are now major the last one born in the year
2000. The Applicant lives in Limpopo.
[3]
The deceased was employed as a bus driver by PUTCO Bus Company and
owned a house in
Freedom Park Soweto. It was whilst employed in
Johannesburg and living here that he met the First Respondent. A
romantic relationship
developed which led to the deceased and the
first Respondent concluding a marriage by civil rights during 1998.
No children were
born out of that marriage.
[4]
The first Respondent and the deceased lived together as husband and
wife at the house
in Freedom Park. It is common cause that the
Applicant was aware of the cohabitation though she did not consent to
it. It is also
true that the first Respondent was aware and knew that
the deceased had a wife in Limpopo being the Applicant with children.
[5]
The deceased passed away by natural causes on the 21
st
June 2021. On hearing the news, the Applicant dispatched two of her
sons to come to Johannesburg and to collect the body of their
father
for burial at the family burial place in Limpopo as it is their
tradition. On arrival the first Respondent refused and told
them that
she is preparing to bury the deceased on Saturday the 2
nd
July 2021 in Soweto. The sons reported to their mother and this
resulted in the urgent interim interdict referred to above.
[6]
The first Respondent has filed her answering affidavit and the
Applicant filed a reply.
The three sets of affidavits deal mainly
with two issues namely:
i)
The
validity or otherwise of the two marriages.
ii)
The
right to bury.
[7]
I do not think that this court is well placed to deal with the first
issue namely
to declare which of the two marriages still exists. It
is an issue to be dealt with at another forum perhaps in trial
proceedings.
[8]
The crux of the dispute in this matter is who between the two woman
has the right
to claim the body of the deceased and bury it.
[9]
The Applicant not only relies on her right derived from the marriage
with the deceased
by custom but also makes the point in paragraph
5.15 of her founding affidavit where she says the following:
“
Arrangements
are already made to bury the deceased at his ancestral graveyard at
Burgersfort, Driekop where all the family of the
Mokwena are laid to
rest. This is a special graveyard specifically reserved for all
family members of the deceased.”
[10]
On the other hand the first Respondent also lays a claim to burial
rights based on her civil
marriage with the deceased. Over and above
that she has annexed to her answering affidavit a hand written
document allegedly penned
by the deceased in which he says that on
his death the first Respondent “will be the owner of all assets
we own.” The
piece of paper is not dated and was seemingly an
instruction to the bank to draft as Will. No Will was attached to the
answering
affidavit.
[11]
On the 7
th
July 2021 when counsel appeared before me to
make their submissions it was only then that the first Respondent’s
counsels
sought to introduce two documents marked “SFMF”
it is a document dated the 15 December 2020 which seem to be an
application
by the deceased and the first Respondent instructing
Nedbank to draft a Will. There was no formal application to introduce
the
Will as evidence neither was there any affidavit filed explaining
why that document was not disclosed in the answering affidavit
to
enable the Applicant to have dealt with it in reply.
[12]
I made no ruling about the Will safe to note that in the Will itself
there is nowhere that the
deceased says where he wants to be buried
and who must be responsible. It is only in the application to Nedbank
where there is
mention of Nasrec Cemetery and even then he did not
indicate who must be responsible for his burial. I will accordingly
not take
notice of that Will in this judgment for reasons mentioned
above.
[13]
The children of the deceased say they want their father to be buried
in Burgersfort. Their mother
the Applicant makes a strong case based
on the tradition of the family. I have not been persuaded to ignore
that, neither has the
Respondent given a contrary version.
[14]
It is interesting to note that in her answering affidavit the first
Respondent did not deal with
pertinent averments by the Applicant for
example in paragraph 5.3 of the founding affidavit the Applicant says
that she and the
deceased concluded a customary marriage in the year
1978 and that same still subsists. This is not disputed by the first
Respondent.
Significantly at paragraph 5.9 the Applicant says “the
whole family of the deceased including all his children wished that
he be buried at our home in Burgersfort. The first Respondent simply
says she notes that.
[15]
In response to the direct statement by the Applicant as set out in
paragraph 5.15 the first Respondent
does not deny that it is a
tradition of the deceased that all family members are buried at a
special burial place in Burgersfort.
All that first Respondent says
is that “
I am a lawful wife and that the deceased lived with
me
” and on that basis she claims the right to bury the
deceased.
[16]
The issue of burial rites has long been a burning issue in our courts
more especially where a
man had decided to get married to more than
one woman.
[17]
The deceased was such a person. The High Court in the matter of
Thembisile & Another v Thembisile & Another
2002 (2) SA
209
was faced with a matter with similar facts as the present
matter. In that matter the Applicant had concluded a customary
marriage
with the deceased and had one son with him. The deceased
went on to conclude a civil marriage with the second woman and two
children
were born. When he died the court held that the first wife
married by custom and her eldest son had the right to bury the
deceased
at his ancestral place in the Transkei and not in Rustenburg
where he had been living with the second wife.
[18]
The present matter is on all four with the decision in Thembisile
referred to above. Whilst it
is correct that the deceased lived both
in Soweto and Burgersfort and that he mostly spent his time with the
first Respondent in
Soweto he had not expressed a wish to cut ties
with his first wife and his children. All his children and his family
are in Burgersfort
it will be an inconvenience to allow that his
remains be buried in Soweto far from his family and ancestors.
Whenever his wife
and children including grandchildren wish to visit
the grave they will have to travel all the way from Burgersfort to
Soweto at
great express.
[19]
I am satisfied that the Applicant has made out a case for some of the
relief she seeks. I say
this as I indicated before that some of the
order granted in the
rule nisi.
I am unable to confirm them as
evidence will have to be led at trial proceedings and this being the
urgent court is not suited to
deal sufficiently with those issues.
[20]
In the result I make the following order:
ORDER
1.
The
first Respondent is hereby interdicted from burying the deceased
Frank Seruwane Mokwena in Soweto.
2.
It
is further ordered that on receipt of this order Vuyo Funeral
Undertakers in Orlando West, Soweto shall release the body of the
deceased Frank Seruwane Mokwena to the Applicant or to persons
nominated and authorised by the Applicant.
3.
The
Applicant shall bury the body of the deceased at the family burial
site in Bothashoek village in Burgersfort, Limpopo.
4.
The
bank account held in the name of the deceased at Nedbank being
account number
[....]
shall remain frozen until an executor shall have been appointed by
the Master of the High Court.
5.
The
bank account of the deceased held at First National Bank being
account number
[....]
shall remain frozen pending the appointment of an executor by the
Master of the High Court.
6.
It is further
directed that Nedbank, First National Bank or any other Institution
holding money on behalf of the deceased including
his employer shall
release to the Applicant such amounts of money reasonably required to
pay for the burial expenses of the deceased.
7.
The first
Respondent has the right to attend the funeral of the deceased at
Burgersfort, Limpopo.
8.
Each party to pay
own costs.
DATED
at JOHANNESBURG this the 26 day of AUGUST 2021.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING :
07 JULY 2021
DATE
OF JUDGMENT :
27 AUGUST 2021
FOR
APPLICANT
:
ADV MM
MOKWENA
INSTRUCTED
BY
:
THAPELO
SETHWANA ATTORNEYS
FOR
RESPONDENT :
ADV KHUNOU
INSTRUCTED
BY
:
DITAN
ATTORNEYS