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[2019] ZANCHC 43
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Mphiki v Mphiki and Another (54/2018) [2019] ZANCHC 43 (24 May 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 54/2018
Heard
on 22/02/ 2019
Delivered:
24/05/2019
In
the matter between
MMACOWE
MARTHA MPHIKI
Applicant
And
KEROTSE
LILIAN MPHIKI
First Respondent
REKATHUSA
FUNERAL PALOUR
Second Respondent
JUDGMENT
PAKATI
J
[1]
The applicant, Ms Mmacokwe Martha Mphiki, approached this Court on an
urgent basis seeking an order for exhumation
of the body of the
deceased, Modisakgosi John Mphiki, from Magoyaneng Cemetery where he
was buried on 06 January 2018. She further
applies for an order that
the second respondent, Rekathusa Funeral Parlour, rebury the deceased
at Itireleng Cemetery and bear
the costs of the exhumation and
reburial. She also seeks a declaratory order that she be the only
lawful wife of the deceased and
that the marriage of the first
respondent, Ms Kerotse Lilian Mphiki, to the deceased was unlawful
and invalid. When the matter
was argued it was agreed by the parties
that urgency had become moot.
CONDONATION OF
THE LATE FILING OF THE FIRST RESPONDENT’S ANSWERING AFFIDAVIT
[2]
The first respondent applies for condonation for the late filing of
the answering affidavit. It was filed
on 12 June 2018 about five
months after the notice of motion was filed. The matter was placed on
the roll of 19 January 2018 and
postponed to 26 January 2018. No
order as to costs was made. On 26 January 2018 it was postponed to 11
May 2018 and costs were
ordered to be costs in the application. Mr
Bester of KBVS Attorneys, the first respondent’s erstwhile
attorneys, filed a
notice of withdrawal as attorneys of record on 27
February 2018. On 11 May 2018 it was further postponed to 24 August
2018 and
the court advised her to secure legal representation from
Legal Aid South Africa, which she did. During argument she was
represented
by Adv Tyuthuza. She was ordered to file her answering
affidavit by 15 June 2016 and the applicant, her replying affidavit
by 29
June 2018. The applicant was further ordered to file her heads
of argument by 20 August 2018 and the first respondent, 22 August
2018.
[3]
The applicant neither opposes the application for condonation nor
alleges that she would suffer prejudice
if condonation is granted. In
my view, no prejudice is likely to be suffered by the applicant if
the first respondent is given
an opportunity to be heard. In the
interest of justice, condonation for the late filing of the first
respondent’s answering
affidavit is hereby granted.
THE APPLICANT’S
CASE
[4]
The applicant was married to the deceased on 03 February 1979 in NG
Kerk of Africa, Huhudi in Vryburg by civil
rights. Out of this
marriage ten children were born, two of whom are deceased. The
applicant claims that when the deceased died
their marriage still
subsisted. He was employed at Sedibeng Water in Kuruman. On 16
December 2017 he was at home with the applicant
and family in
Itireleng for holidays.
[5]
After the applicant heard of the death of the deceased on 01 January
2018 she and her children namely, Joyce,
Gladys, Sofie, Lena, Alfred
and the deceased’s sister, Betty, approached the first
respondent and requested to bury the deceased
at Itireleng. The first
respondent refused and told them that she would seek a court order in
order to bury the deceased at Magoyaneng
but nothing was forthcoming
until 04 January 2018.
[6]
On 04 January 2018 at 12:06 the applicant forwarded a Short Message
Service (SMS) to the first respondent’s
cell number 0722882332
and informed her of her intention to seek relief from court on 05
January 2018 regarding the place of burial
of the deceased. The SMS
records:
‘
Dear
Me Kerotse Mphiki. Kindly take note that we, Me Mmacowe Martha Mphiki
(born Moshe), the legal wife of John Mphiki, will on
5 January 2018
make an urgent application at Mothibistad Magistrate’s Court,
for an interim order to stop the funeral of
John Mphiki planned by
you for the 6
th
of January 2018. The interim order will be served on you by the
Sheriff. Regards Vivian Mphiki – Cell number 0790637250’
No
response was forthcoming from the first respondent.
[7]
Mr Strydom, on behalf of the applicant, spoke to Ms Bonnie of the
second respondent telephonically and informed
her about the intended
application. He further requested that the deceased’s body
should not be released to the first respondent
until the court gave
direction.
[8]
On 05 January 2018 the applicant approached the Magistrates Court
Kudumane district, in Mothibistad on urgent
basis seeking an interim
order prohibiting the respondents from removing the deceased’s
body from the second respondent’s
funeral parlour and that he
be handed over to her for funeral arrangements at Itireleng. The
applicant states that the first respondent
wanted to bury the
deceased on 06 January 2018 at Magoyaneng, hence she approached court
on urgent basis.
[9]
The Magistrate dismissed the applicant’s application due to
lack of jurisdiction. However, the applicant
approached the second
respondent in its premises with the founding affidavit and the court
order. She was accompanied by two of
her daughters, Vivian and
Boipelo, and her grandson, Edward, her daughter’s friend, and
Mr Meshack Molaodi and Mr Strydom.
The first respondent and her
family were also present. An argument ensued between the applicant’s
children and the first
respondent’s child. Mr Strydom requested
the first respondent to appoint someone to represent her family in an
attempt to
reach an amicable solution. The applicant and Mr Strydom
tried to intervene without success.
[10] According to
the applicant Mr Bloem, who claimed to have an LLB degree from the
University of Free State was appointed
as the negotiator on behalf of
the first respondent and her family. During the negotiations Mr Bloem
mentioned that to facilitate
the marriage to the first respondent the
deceased used a different date of birth. Mr Bloem proposed that the
first respondent hold
a church service in honour of the deceased and
thereafter hand over the body to the applicant’s family for
funeral arrangements
at Itireleng Cemetery. The applicant and her
family accepted the proposal but the first respondent refused.
Notably, Mr Bloem’s
confirmatory affidavit has not been
attached to the founding affidavit.
[11] Mr Strydom
approached Mr Bubbles Dada, the owner of the second respondent, and
requested him to refrain from releasing
the deceased’s body to
anyone until the dispute between the parties was resolved in a court
of law. At that stage both families
were present. The applicant
alleges that the second respondent accepted that but the first
respondent refused to co-operate. The
understanding was therefore
that the deceased would not be buried until the dispute was resolved.
The applicant and her family
left the second respondent’s
premises under the impression that the funeral would not take place
as agreed with the second
respondent.
[12] The
applicant and her family learned later that the second respondent had
released the deceased’s body to the first
respondent for burial
on 06 January 2018. This caused trauma, distress and emotional
discomfort to the applicant and her children
as their culture and
tradition that her husband had to be laid to rest where his parents
and two of their predeceased children
were buried was not observed.
THE
FIRST RESPONDENT’S CASE
[13] The first
respondent and the deceased lived together at Deerward, House Number
B103, Kuruman since 1992 and later moved
to House Number 1058
Magojaneng, Kuruman. Before their marriage she had three children
from a previous relationship. The deceased
had informed her that he
had nine children from the applicant and two others from another
previous relationship. He did not inform
her that he was still
married to the applicant. He told her that he had problems of
infidelity with the applicant which caused
a stir in their
relationship.
[14] The deceased
initially worked at Water Supply, now known as Sedibeng Water in
Kuruman as a plumber from 1993 to 2009.
He was later transferred to
Moshaneng Municipality from 2009 to 2013 when he retired. He passed
away on 01 January 2018 at Kimberley
Hospital. The message of his
death was conveyed to his other children. A meeting of the family
members together with the applicant
and her children was held but
proved to be chaotic and was adjourned. The first respondent with her
uncles continued with the funeral
arrangements. As the second
respondent was preparing to transport the body to her home for the
night vigil on 05 January 2018 the
applicant, her legal
representative, Mr Strydom, and other people arrived. The applicant
attempted to hand over to her a document
from the Magistrates Court
but she refused to take it saying that she would only accept a
document served by the Sheriff.
[15] According to
the first respondent Mr Dada, released the deceased’s body to
her because he had known her as the
lawful wife of the deceased for
years. She also claims that she paid for the deceased’s funeral
policy. Therefore nothing
prevented her from burying the deceased.
The applicant and her children did not attend the funeral.
[16] The first
respondent denies that the marriage certificate of the applicant
(Annexure “C”) is authentic. She
denies further that when
negotiations between the two families could not be successful Mr
Strydom approached Mr Bubbles and informed
him to keep the deceased’s
body until the dispute was resolved. She requests that the
application be dismissed with costs
on a scale as between attorney
and own client.
DISCREPANCIES
IN THE MARRIAGE CERTIFICATES OF THE APPLICANT AND THE FIRST
RESPONDENT
[17] From the
marriage certificates issued by the Department of Home Affairs in
respect of the applicant and the first respondent
the following
discrepancies can be observed:
17.1 The deceased’s
date of birth in the marriage certificate between the applicant and
the deceased shows his date of birth
as 02 February 1943 (Annexure
“C”) and it corresponds with their abridged marriage
certificate (Annexure “D”).
They got married by civil
rights on 03 February 1979 and Home Affairs issued the marriage
certificate on 26 June 2013;
17.2 The deceased also
married the first respondent by civil rights on 17 February 2012.
From this relationship two children were
born, one was still born.
The deceased’s identity number 480302 5729 081 which appears on
their marriage certificate (Annexure
“F”) and his death
certificate (Annexure “E”) correspond. This clearly shows
his date of birth as 02 March
1948 different from his marriage to the
applicant. Home Affairs issued the marriage certificate on 21
February 2012;
17.3 The deceased’s
date of birth on his death certificate corresponds with the one on
his marriage to the first respondent.
THE SECOND
RESPONDENT’S VERSION
[18] The relief
sought against the second respondent is contained in prayer (d) of
the notice of motion dated 11 January 2018
namely, that the second
respondent should bear the costs of the exhumation and reburial of
the deceased at Itireleng Cemetery.
The applicant’s allegation
is that the second respondent knew about the dispute between the
parties regarding the place where
the deceased had to be buried as
well as the validity of their marriages. According to the applicant
the second respondent was
not supposed to release the deceased’s
body to the first respondent until the dispute was resolved.
[19] The second
respondent’s opposition is based on the following summarised
argument:
19.1 That although it
could gather that the dispute between the applicant and the first
respondent was concerned about who should
bury the deceased as well
as the place where he should be buried it did not have the details of
the dispute;
19.2 That it received a
written instruction (Annexure “A”) from the first
respondent requesting the release of the body
of the deceased which
indemnified it from any liability should the matter proceed to court.
Annexure “A” records:
‘
TO
WHOM IT MAY CONCERN
I,
Kerotse Lillian Mphiki, ID Number: 630110 1030 082,
hereto
referred to as the legal wife to Modisakgosi John Mphiki,
[the deceased], hereby as a
bona
fide
Policy Holder of Rekathusa
in
which the husband is the Policy Holder.
I
now have made all necessary arrangements for the funeral, set for
tomorrow, the 6
th
January 2018.
I
hereby instruct that Rekathusa carries the funeral forward as
planned, as there stand nothing prohibiting me to bury my husband.
Should there be any legal challenge I exonerate Rekathusa from any
liability.
’
My underlining
19.3 That since the
first respondent was its client it was obliged to adhere to what
seemed to be a reasonable instruction from
it; and
19.4 That there was no
court order prohibiting it from releasing the deceased’s body
to the first respondent. It therefore
acted
bona fide
at all
material times.
THE MARRIAGE
BETWEEN THE DECEASED, THE APPLICANT AND THE FIRST RESPONDENT
[20] The
applicant confirms that the deceased was her husband despite the
different dates on the above mentioned documents.
The applicant and
the first respondent allege that they knew for the first time after
the deceased’s death that he married
them by civil rights.
[21] The
applicant and the first respondent claim to be the lawful wives of
the deceased. I have dealt with the discrepancies
in their marriage
certificates. The applicant claims that when the deceased died they
were still legally married and that the first
respondent’s
marriage was therefore unlawful and invalid.
[22] Section 10
(1) and (4) of the Recognition of Customary Marriages Act
[1]
provides:
‘
10
Change of marriage system
(1)
A man and
a woman between whom a customary marriage subsists are competent to
contract a marriage with each other under the Marriage
Act, 1961 (Act
25 of 1961), if neither of them is a spouse in a subsisting customary
marriage with any other person.
(2)
…
(3)
…
(4)
Despite
subsection (1), no spouse of a marriage entered into under the
Marriage Act, 1961, is during the subsistence of such marriage,
competent to enter into any other marriage
.’
My underlining
[23] Clearly from
the evidence the deceased was incompetent to enter into another civil
marriage with the first respondent
while he was still married to the
applicant and he knew that. It is evident that he did not disclose to
the first respondent that
he was still married to the applicant. The
only reasonable inference that can be drawn from the deceased’s
conduct of changing
his date of birth, was that he wanted a short cut
which enabled him to also marry the first respondent by civil rights.
[24] Considering
the fact that the applicant was still married to the deceased when he
died as the evidence shows, there is
no reason why his body should
not be exhumed from Magoyaneng Cemetery where he was buried on 06
January 2018 and reburied at Itireleng
Cemetery, where his parents
and their predeceased children have been laid to rest.
[25] For the
reasons advanced
supra
the only reasonable conclusion is that
the marriage between the deceased and the first respondent was
unlawful and invalid which
leaves the applicant as the lawful wife of
the deceased.
[26] That brings
me to the question whether the second respondent should bear the
costs for the exhumation and reburial of
the deceased at Itireleng
Cemetery. In paragraph 7 of the founding affidavit the applicant
states:
‘
As
a result of this failing of the settlement, my legal representative
approached the owner of second respondent, Mr Bubbles Dada,
to keep
the body of my husband until the above Honourable Court makes a
ruling as to where the body should be buried. This was
done in the
presence of the representatives to both parties. The second
respondent indicated that he is willing to do so, but the
first
respondent was not co-operative in this regard. I was under the
impression that the second respondent will not give the body
to the
first respondent.’
[27] The
applicant argues that the second respondent was aware of the dispute
concerning the validity of the marriage between
the applicant, the
first respondent and the deceased as alluded to earlier. It also knew
of her intention to bury him at Itireleng
Cemetery. She states
further that on 04 January 2018 Ms Bonnie, an employee of the second
respondent, was made aware of the dispute
in her and Mr Meshack
Molaodi’s presence. A confirmatory affidavit of Mr Molaodi
dated 09 January 2018 was filed in this
regard.
[28] Ms Dada
admits knowledge of the dispute but denies that the second respondent
became aware of it on 04 January 2018.
The second respondent argues
that the applicant has failed to make out a case against it and the
application should be dismissed
with costs.
[29] In this
regard I take into account paragraphs 9, 10 and 11 of Mr Sampie John
Lourens Hoff’s confirmatory affidavit
to the affidavit of Ms
Margaret Eva Sussie Dada, the deponent to the second respondent’s
answering affidavit, which records:
‘
9.
Advocate Strydom did approach me asking me whether I would consider
not releasing the deceased’s body for burial until
the dispute
between the parties was put to rest and I informed him that, although
I personally did not have a problem with the
request, it would depend
on the 1
st
respondent and that I would have to discuss the request with the 1
st
respondent.
10.
I did discuss the request with the 1
st
respondent, but she was not amenable thereto and instructed me to
release the deceased’s body to her for burial.
11.
I informed the 1
st
respondent that the 2
nd
respondent is being dragged into a dispute which has got nothing to
do with the 2
nd
respondent, upon which the 1
st
respondent gave me a written instruction to proceed with the burial
of the deceased.’
[30] Mr Hoff
concedes the version of the applicant that Mr Strydom requested him
to keep the deceased’s body until the
dispute was resolved.
This version contradicts the account of events by the second
respondent that it could gather that the dispute
between the
applicant and the first respondent revolved around the question as to
who was responsible for the burial of the deceased
but did not know
the details of the dispute. Instead the second respondent relies on
the instruction given to Mr Hoff by the first
respondent. It is
undisputed that at that stage the dispute had not yet been resolved.
In his affidavit he does not dispute that
this took place on 04
January 2018
[31] The
following words in Annexure “A” should have alerted the
second respondent before releasing the body that
there was something
wrong with the legality of the marriage especially after Mr Strydom
had approached Mr Hoff. ‘
I,
Kerotse Lillian Mphiki, ID Number: 630110 1030 082,
hereto
referred to as the legal wife to Modisakgosi John Mphiki,
[the deceased], hereby as a
bona
fide
Policy Holder of Rekathusa in which the husband is the Policy
Holder.’
[32] .Paragraph
36 of the second respondent’s answering affidavit records:
‘
It
should be stated that, since the 1
st
respondent is a client of the 2
nd
respondent, the [2
nd
respondent] is in fact obligated to carry out reasonable instructions
given to it by the first respondent and, given the contents
of
Annexure “A” to the 2
nd
respondent’s confirmatory affidavit, the burial of the deceased
proceeded on 6 January 2018.’
[33] When Mr
Bloem, who represented the first respondent during negotiations,
mentioned that to facilitate the marriage to
the first respondent the
deceased used a different date of birth, the first respondent knew at
that stage already that her marriage
was unlawful.
[34] The first
respondent alleges that the body was released to her by Mr Dada
because he knew that she was the lawful wife
of the deceased and has
been paying for the funeral policy. On the contrary Mr Hoff relies on
Annexure “A” referred
to in paragraph 31
supra,
an
alleged instruction by the first respondent. This is clearly a
contradiction. There is also no explanation why the first respondent
had to mention that she was the ‘
legal wife’
.
Moreover, the second respondent knew that what the first respondent
was incorrect and economical with the truth when she said
that she
was the policy holder. The lawful policy holder was the deceased and
not the first respondent. If the first respondent
was the client of
the second respondent they could have taken this Court into their
confidence and attach a copy of the policy
document to show who was
actually the second respondent’s lawful policy holder. They
both failed to do so.
[35] Ms Dada
denies that the second respondent became aware of the dispute on 04
January 2018 as mentioned earlier. The first
respondent states that
the preparation of the burial was done on 05 January 2018 and the
body was buried on 06 January 2018. The
letter (Annexure “A”)
was forwarded to the second respondent on 05 January 2018 for the
release of the body. It can
therefore be accepted that Mr Hoff was
approached by Mr Strydom on 05 January 2018 and conceded to the
request by the applicant
to keep the deceased’s body until the
dispute was resolved. It makes no difference whether it was the 04
th
or 5
th
January 2018. What is important is that the second
respondent became aware of the dispute after Mr Hoff had agreed not
to release
the deceased’s body to the first respondent. The
applicant states further that Mr Hoff remarked that the second
respondent
previously had a similar incident where it had to exhume
and rebury someone at their own cost. It is untenable for the second
respondent
to now change and say it was unaware of the dispute and
that it had not been resolved.
[36] Taking into
account what I have mentioned above, I am satisfied that the
applicant has made out a proper case for the
relief sought and that
the second respondent knew when he handed over the deceased’s
body to the first respondent that it
was taking a risk. There is no
reason why it should not be held responsible for the costs of the
exhumation and reburial of the
deceased’s body.
COSTS
[37] The
applicant seeks costs against the first respondent on the scale as
between attorney and client. She did not ask for
costs of the
application against the second respondent in her notice of motion. Mr
Strydom now requests for costs against the second
respondent for
opposing the application. He indicated that both the applicant and
the first respondent are man of straw but the
first respondent was
represented by counsel.
[38] Ms Tyuthuza,
for the first respondent, urged me to dismiss the application with
costs on the scale as between attorney
and own client scale. She
indicated that she assists the first respondent
pro bono
.
[39] Mr Olivier,
for the second respondent also asked that the application be
dismissed with costs including costs of 26 January
2018. It should be
remembered that when the matter was postponed on 26 January 2018 to
11 May 2018 costs were ordered to be costs
in the application. Mr
Olivier argued that the application for a costs order by the
applicant was opportunistic and the second
respondent had to oppose
the application. He argued further that the applicant‘s
application was an abuse of the Court’s
process.
[40] It is a
fundamental principle that a party who succeeds should be awarded
costs and this rule should not be departed
from except on good
grounds.
[2]
The award of costs
is a matter wholly within the discretion of the court, but this is a
judicial discretion and must be exercised
on grounds upon which a
reasonable person could have come to the conclusion arrived at.
[3]
[41] An award of
attorney and client costs will not be granted lightly, as the court
looks upon such orders with disfavour
and is loath to penalise a
person who has exercised a right to obtain a judicial decision on any
complaint such party may have.
[4]
The grounds upon which the court may order a party to pay an
opponent’s attorney-and client costs include the following:
that the party has been guilty of dishonesty or fraud or had
vexatious, reckless and malicious, or frivolous motives or in the
conduct of the case. The court’s discretion in this regard is
not restricted to such conduct but it includes all cases in
which
special circumstances or considerations justify the granting of such
order.
[5]
[42] The
respondents opposed the application but are not the parties in whose
favour the judgment will be given. There is
therefore no reason why
in the exercise of my discretion the applicant, as the successful
party, should be deprived of costs. Be
that as it may, she was
assisted by Ms Tyuthuza on
pro bono
basis. It would therefore
not be in the interest of justice to order costs against her. The
same cannot be said about the second
respondent. In my view the
granting of costs on a scale as between party and party is
justifiable in the circumstances.
In the
circumstances I make the following order
:
1.
The
applicant, Mmacowe Martha Mphiki, is declared the lawful wife of the
deceased, Modisakgosi John Mphiki.
2.
The
second respondent, Rekathusa Funeral Parlour, is ordered to bear the
costs for the exhumation of the body of the deceased, Modisakgosi
John Mphiki, from Magojaneng Cemetery and rebury it at Itireleng
Cemetery.
3.
The
marriage of the first respondent, Kerotse Lilian Mphiki, is null and
void
ab
initio
.
4.
No
order as to costs against the first respondent, Kerotse Lilian
Mphiki.
5.
The
second respondent is ordered to pay the costs of this application on
a scale as between party and party.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant:
Adv WAF Strydom
Instructed
by:
Hugo Mathewson & Oosthuizen Inc
On
behalf of the 1
st
Respondent: Adv
T Tyuthuza
Instructed
by:
Moribe Attorneys
On
behalf of the 2
nd
Respondent: Adv D
Olivier
Instructed
by:
Duncan & Rothman
[1]
Act 120 of 1998
[2]
South African Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001
(1) SA 883
(CC) at 912; see also Union Government v Gass
1959 (4) SA
401
(A) at 413C-F
[3]
Beinash v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997 (3) SA 721
(A) ; see also
Norwich Union Fire Insurance Society Ltd v Tutt
1960 (4) SA 851
(A)
at 854C-E
[4]
Jewish Colonial Trust Ltd v Estate Nathan
1940 AD 163
at 183-184
[5]
Rautenbach v Symington
1995 (4) SA 583
(O) at 588A-B