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[2018] ZALMPPHC 14
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Malepe v Thobejane and Another (1127/2018B) [2018] ZALMPPHC 14 (23 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION POLOKWANE
Case
No: 1127/2018B
In
the matter between
MOLEMA
MAANE
MALEPE
APPLICANT
AND
DITHABE
THOBEJANE
FIRST
RESPONDENT
TSWELOPELE
FUNERAL PARLOUR
UNDERTAKER
& FUNERAL DIRECTORS
SECOND
RESPONDENT
JUDGMENT
Kganyago
J
[1]
The applicant has brought an application on urgent basis seeking an
order in the following terms:
“
1. That
non-compliance with the rules be condoned and that the matter be
heard on urgent basis in terms of Rule 6(12);
2. That the 1
st
Respondent, or any other person directly and indirectly instructed by
the Respondent, be interdicted from proceeding and/or continuing,
either directly or indirectly, with the burial and/or funeral of the
deceased, Makomane Solomon Malepe, scheduled to take place
on
Saturday, 24 February 2018 or at any date soon thereafter;
3. That the 2
nd
Respondent be interdicted and precluded from releasing the deceased
body into the 1
st
Respondent’s possession, or
possession of any other person who may require or demand the release
of the aforesaid body;
4. That the 2
nd
Respondent be ordered to release the deceased’s body into the
Applicant’s possession or his authorised representative
for
burial purpose
5. That the Applicant
be declared the sole and exclusive person having the legal right to
bury the deceased.
6. That the 1
st
Respondent and 2
nd
Respondents be ordered to pay the costs
of this application on attorney and client scale in the event it is
opposed.
7. Further and/or
alternative relief.”
[2]
The first respondent is opposing the applicant’s application.
According to the applicant, she is the surviving spouse
of the late
Mamokone Solomon Malepe (“ the deceased”). She and the
deceased were married to each other by civil rights,
in community of
property on the 13
th
December 1991 and that their marriage was never dissolved by any
court of law. She has attached a copy of a marriage certificate
to
her founding affidavit. From the said marriage they were blessed with
five children, of which three of them are now majors.
[3]
The deceased has passed away on the 13
th
February 2018. At the time of his death, the deceased had deserted
the applicant and was living with the first respondent at her
house.
The deceased has left the common home during 2016. According to the
applicant, the first respondent intends to bury the
deceased on the
24
th
February 2018. The applicant’s contends that the first
respondent has no legal right to bury the deceased and that it is
her
who has the legal right to bury him.
[4]
According to the first respondent, the deceased was her life partner.
The applicant has issued divorce summons against the deceased
during
2017. At the time the applicant issued divorce summons, she was
already in a love relationship with one Kando Thobejane.
The first
respondent is therefore of the view that the applicant has moved on
with her life with Mr Thobejane whilst the deceased
has moved on with
his life with her. The first respondent submits that she has taken
care of the deceased whilst he was ill until
he passed on in her
house. The first respondent contends that the deceased had made a
wish that upon his death, she in cooperation
with his family should
bury him. The first respondent has also attached a confirmatory
affidavit of Petrus Malepe whom it is alleged
that he is the brother
in law of the first respondent. According to the first respondent, at
the time of the deceased death, he
had already paid lobola for her.
She has attached a document to her answering affidavit which it is
alleged to be the lobola agreement.
[5]
The applicant has filed her replying affidavit wherein she has
conceded that during 2017 she has issued divorce summons against
the
deceased, but that the matter was mediated and resolved. She further
stated that the deceased never entered a notice of intention
to
defend the divorce action, and further that she did not proceed to
obtain a default order.
[6]
The duty and right to bury a deceased person can be contentious.
Instead of burying the deceased with dignity, parties will
be
involved in acrimonious litigation. It is trite that in applications
of this nature, the party that approach the court must
do so with
clean hands. He or she must also make a full disclosure of all the
circumstances surrounding the case in order to enable
the court to
arrive at a fair and just decision. Failure to do so may result in
the court inferring that the application is nothing
less than
vexatious and malicious. At this stage I am not called upon to
determine the validity of the alleged customary union
between the
deceased and the first respondent, and it will therefore not be
necessary for me to pronounce on it.
[7]
The applicant in her founding affidavit has failed to disclose that
during 2017 she has issued divorce summons against the deceased
and
that the said summons was duly served on the deceased. This issue was
raised by the first respondent for the first time in
her answering
affidavit. In her replying affidavit, the applicant has conceded that
indeed she has issued divorce summons against
the deceased. However,
she contends that the matter was mediated and resolved. She does not
state when the matter was mediated
and resolved, and also by whom.
She does not state whether after that mediation the deceased has
returned to their common home.
She does state whether after their
dispute was resolved she has withdrawn her divorce action. She is
merely giving a scanty picture
of the outcome of the alleged
mediation. Her counsel stated from the bar that there was an
agreement not to proceed with the divorce
action but could not give
the full details of the alleged agreement. He could not explain what
was going to happen after the divorce
action was allegedly stopped.
[8]
The respondent in her answering affidavit has stated that the
applicant is in a love relationship with one Kando Thobejane,
and has
therefore moved on with her life with Mr Thobejane whilst the
deceased has moved on with his life with her. In reply to
these
allegations, the applicant in her replying affidavit has merely
stated that the contents are noted and that there is no need
to admit
or deny. Since she is not admitting or denying, the court will accept
the first respondent’s version as the truth.
That will explain
why the applicant has instituted a divorce action against the
deceased. The fact that the applicant has issued
divorce summons
against the deceased, are the facts which are within her knowledge,
and in my view crucial information to be disclosed
by her in her
founding affidavit. She has deliberately failed to disclose them as
she knew very well that they are prejudicial
for her case. In my view
failure to disclose such crucial information shows that she not
taking this court into confidence and
was therefore not honest with
this court.
[9]
Paragraph 7.5 of the applicant’s divorce summons read as
follows:
“
As a result of
the aforesaid, the Plaintiff has lost love and affection towards the
Defendant.”
[10]
As I have already pointed out in paragraph 7
supra,
the
details of the alleged mediation agreement is scanty, and the
applicant has failed to submit proof that she has withdrawn her
divorce summons against the deceased. It can therefore, not be said
with certainty that she abandoned her divorce action against
the
deceased, or that their dispute has been amicably resolved, moreso
that she not disputing that she has moved on with her life
with Mr
Thobejane.
[11]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
the
court held that a serious duty is imposed on a legal advisor who
settles answering affidavit to ascertain and engage with facts
which
his client dispute and to reflect such disputes accurately in the
answering affidavit. If that does not happen it should
not come as a
surprise that the court take a robust view of the matter. Even if
Wightman case refers to an answering affidavit,
in my view, the same
principle will also be applicable to a founding affidavit and a
replying affidavit. The applicant’s
founding and replying
affidavit does not reflect the facts of this case accurately, hence
in most instances the applicant’s
counsel was forced to make
submissions from the bar.
[12]
The applicant has disowned the deceased whilst he was still alive,
and has also put it in black and white that she has lost
love and
affection towards him. If she has lost love and affection towards the
deceased whilst he was still alive, what now makes
her love a corpse.
It does not make sense at all.
[13]
It is not in dispute that at the time of the deceased death, he
deceased was living with the first respondent, and that he
passed
away at her place. It is not in dispute that the first respondent and
the deceased were not legally married at the time
of the deceased
death. The applicant is now using the marriage certificate between
her and the deceased as an entitlement for her
to bury the deceased.
[14]
In
W and
Others v S and Others
[2016] ZAWCHC 49
(4 May 2016)
the
blood relatives of the deceased brought an urgent application on the
basis that they have a right a right to bury the deceased
who was
estranged from her husband and was virtually on the eve of her
divorce. The court held that the deceased by actions has
disassociated herself from the first respondent whilst still alive.
It is unheard of that a person who was severing ties with her
husband
would now be claimed to be husband’s ancestor when she is no
more. It was further held that if the deceased wanted
to be rid from
the first respondent whilst still alive, what would then convince
this court that she wanted to be laid closer to
him when he is no
more.
[15]
In my view the present case is not distinguishable from the W and
Others v S and Others case. I therefore, tend to align
myself
with that case. The applicant by instituting divorce summons against
the deceased, and stating in her particulars of claim
to the summons
that she has lost all love and affection towards the deceased, was
disassociating herself from the deceased. The
first respondent is the
one who took care of the deceased from the moment he started to be
sick up until his last breath. After
she saw that the deceased has
passed on, she went to inform the deceased family and not the
applicant. The deceased family on been
informed has not attacked the
first respondent, but has been supporting her and also making the
funeral arrangements with her.
Now that he is dead, what makes the
applicant to love a corpse which she has lost love and affection
whilst still breathing.
[16]
The first respondent has the support of the family of the deceased
represented Petrus Malepe the brother of the deceased. Petrus
even
regard himself as the brother in law of the first respondent. He has
deposed a confirmatory affidavit confirming the averments
made by the
first respondent in her answering affidavit. In paragraph 64 of her
answering affidavit, the first respondent is stating
that the
deceased during her life time has expressed to her that upon his
death she should cooperate with his (deceased) family
to bury him.
That has been corroborated by Petrus when he deposed the confirmatory
affidavit to the first respondent answering
affidavit.
[17]
Counsel for applicant has conceded that the deceased wishes cannot be
lightly ignored by the court. In my view the deceased
has made a
choice, and that his choice was to be with the first respondent, and
also be buried by the first respondent in cooperation
with his
family. Therefore his choice must be respected since the applicant
has disassociated and disowned him whilst still alive.
The court also
takes a dim view on the applicant for deliberately failing to
disclose the crucial information regarding the divorce
action that
she has instituted against the deceased. The time period which the
deceased and the first respondent has spent together
in this case
becomes immaterial as the applicant has made her intention clear
which was to sever ties with the deceased whilst
still alive by
serving him with divorce summons.
[18]
Under the circumstances, the court is not satisfied that the
applicant has made a proper case for the granting of an interdict
against the respondents.
[19]
In the result, I make the following order:
19.1 The applicant’s
application is dismissed with costs.
_____________________
MF
KGANYAGO
JUDGE
OF THE HIGH COURT
SOUTH
AFRICA LIMPOPO
DIVISION POLOKWANE
Appearance
for the applicant: Adv Ramabala
KNS
Mgiba Attorneys
For
the respondent: Mr Thobejane
Botha
Massyn & Thobejane Associated Attorneys
Date
of hearing: 22
nd
February 2018
Date
of judgment: 23
rd
February 2018