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[2018] ZALMPPHC 19
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Motomokgolo v Rikhotso and Others (5009/2017) [2018] ZALMPPHC 19 (24 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: 5009/2017
In
the matter between:
NKHENSANI
CHRISTINAH MOTOMOKGOLO
APPLICANT
And
HLAYISEKA
RIKHOTSO & 20 OTHERS
RESPONDENTS
JUDGMENT
KGANYAGO
J
[1]
This is an unusual application to be brought before the Court. The
applicant on the 19
th
October 2017 obtained an order for leave to serve her application by
way of substituted service. Thereafter the matter was brought
on
urgent basis and it was struck off the roll due to lack of urgency.
[2] The applicant is
seeking an order in the following terms:
“
1.
That the application for leave to file its supplementary affidavit to
the founding affidavit be heard with the main application
and that
the supplementary affidavit and the application for leave to be bound
in the record of the main application;
2.
Leave be granted to the Applicant to file its supplementary affidavit
to the founding affidavit;
3.
Condoning the Applicant’s non-compliance with the rules, forms
and service provided for in the uniform rules of court and
granting
leave for this application to be heard as one of urgency.
4. Directing the
fourteenth, eighteenth, nineteenth and twentieth respondents to, upon
notification for burial, provide the applicants
with keys and access
to Shawela village cemetery in order to rebury the deceased;
5.
Interdicting the
first, second, third, fourth, fifth, sixth, seventh, ninth, eleventh,
twelfth thirteenth fourteenth eighteenth,
nineteenth, twentieth
respondents from obstructing the applicant from reburying the
deceased next to the gravesite of his late
father and brother in the
Shawela village cemetery in any manner, including:
5.1
the use of violence and /or inciting anyone else to do so;
5.2
threats to physically injure and/or inciting anyone else to do so;
5.3
threats to injure their property and/or inciting anyone else to do
so; or
5.4
the use of provocative language or behaving in a provocative manner
and /or inciting anyone else to do so.
6.
Interdicting the first, second, third, fourth, fifth, sixth, seventh,
ninth, eleventh, twelfth, thirteenth, fourteenth, eighteenth,
nineteenth, twentieth respondents from exhuming the body of the
deceased and/or inciting anyone else to do so.
7.
Interdicting the first, second, third, fourth, fifth, sixth, seventh,
ninth, eleventh, twelfth, thirteenth, fourteenth, eighteenth,
nineteenth, twentieth, respondents from obstructing the appellant
from returning to her home in Shawela village in any manner,
including
7.1
the use of violence and /or inciting anyone else to do so;
7.2
threats to physically injure and/or incite anyone else to do so; or
7.3
threats to injure her property and /or incite anyone else to do so;
or
7.4
use of provocative language or behaving in a provocative manner
and/or incite anyone else to do so.
8.
Interdicting the first, second, third, fourth, fifth, sixth, seventh,
ninth, eleventh, twelfth, thirteenth, fourteenth, eighteenth,
nineteenth, twentieth respondents from using violence against the
applicant including:
8.1
threatening to physically injure the applicant and /or inciting
anyone else to do so.
8.2
threatening the property of the applicant and /or inciting anyone
else to do so;
8.3
using provocative language or behaving in a provocative manner
towards the applicant and/or inciting anyone else to do so.
9.
Directing the fifteenth respondent and officials acting under his
supervision to do all things necessary to:
9.1
accompany the applicant and her family to her home in Shawela
village;
9.2
protect applicant from physical harm;
9.3
protect
applicant’s
home
from being damaged;
9.4
protect the applicant and her family during the burial of the
deceased.”
[3] Only the 11
th
(“Mahumani Traditional Council”) and 12
th
(“Hosi AK Mahumani”) respondents (herein after referred
to as respondents”) are opposing the applicant’s
application. As the matter has already been struck off the roll due
to lack of urgency, prayer 3 of the applicant’s notice
of
motion automatically falls away. Counsel for both parties have agreed
that prayer 6, 7 and 8 will not be applicable against
the eleventh
and twelfth respondents. The parties further agreed that the only
contentious issue against the eleventh and twelfth
respondents is
prayer 5. The remainder of the prayers as set out in the applicant’s
notice of motion, the respondents are
not contesting them.
[4]
The facts of this application are briefly as follows: According to
the applicant, her son (“deceased”) passed away
on the
25
th
August 2013 in a motor accident in Pretoria. He was found by his
family nine months after the accident at a Government Mortuary
in
Pretoria. His burial was scheduled to take place on the 18
th
May 2014. On the day of the funeral there were rumours that the body
that was brought for burial was not that of the deceased but
rather
that of an old person. Community members started chanting demanding
that the coffin be opened so that the people can identify
the
deceased. Some family members assured the community members that the
body was that of the deceased. Police were called to the
applicant’s
house to control the protesting Shawela village community members
from disrupting the funeral. The funeral proceeded
under the watch of
the SAPS members.
[5] In the early hours of
the 26
th
May 2014 whilst the applicant and her sister were
asleep, they heard people signing outside her home. They were afraid
to come
out of the house to go and check what was happening. They
called the police. On arrival of the police, they went outside and
they
found the coffin of the deceased in the garage. They opened the
coffin and they found the deceased inside it. The police took the
deceased to the government mortuary.
[6]
Whilst police were still busy investigating the matter, the community
members of Shawela village came to the applicant’s
homestead
and ordered them to leave their village threatening to burn her
house. The applicant left her homestead to go and live
with his
brother in the neighbouring village.
[7]
On the 9
th
December 2014 the applicant and her family were summoned to a meeting
by the respondents. At that meeting the applicant’s
family was
fined R6000-00 and ordered to conduct the burial by the 13
th
December 2014. She was also requested to find another house to stay.
They could not conduct the funeral as ordered by the respondents
as
the members of the community were obstructing them. They also could
not access the cemetery keys as it was in possession of
community
members.
[8]
In the meantime the police conducted DNA tests on the deceased. On
receipt of the DNA test results, the police called a general
community meeting at the sports ground to pronounce the said results.
The DNA test results confirmed that the deceased was indeed
the
applicant’s son. The eleventh respondent approached Greater
Giyani Local Municipality (“the twenty first respondent”)
to allocate a graveside for the deceased. The twenty first respondent
agreed to provide the gravesite. However, the applicant does
not wish
her son to be buried at the gravesite allocated by the twenty first
respondent but would prefer for him to be buried at
Shawela village
cemetery where her late husband and the other son were buried.
According to her, it is a taboo to separate blood.
[9]
During 2015 the applicant approached the Magistrate Court for
assistance. The Magistrate Court gave her a letter to give to
the
police to assist her. The police told her that they could not assist
her as they were afraid of the residents of Shawela village
as they
are a very difficult community.
[10].
On the 9
th
November 2015 the government mortuary notified the applicant that
they could no longer store the deceased body, and it was moved
to Two
Mountains Mortuary (“sixteenth respondent”) a
private mortuary for storage until the matter is sorted
out.
[11]
In the process the applicant approached Shirinda Legal Resources
Centre for assistance. Shirinda Legal Resources tried to mediate
the
matter without success.
[12]
The respondents concede that the deceased was buried on the 18
th
May 2014 at Shawela village cemetery. However, they state that he was
exhumed by unknown people. The respondents concede that there
was an
unrest at Shawela village as there were allegations that they have
buried a wrong person. However, they state that the applicant
had
agreed to bury the deceased at a gravesite allocated by the twenty
first respondent.
[13]
The respondents concede that they indeed summoned the applicant’s
family to the Royal House and that they were fined
R6000-00. The
respondents contends that it is a taboo to have someone who has been
exhumed, like in the present case, to have him
reburied in the same
grave. The twelfth respondent regard himself as the custodian of
customs and culture of Mahumani community.
[14]
The respondents have attached the confirmatory affidavit of one
Raserope Mothelo Chaisa a traditional healer. He state that
on the
14
th
June 2014 he was called by the community of Mahumani to perform
cleansing ritual (“Kuxuva”) at Shawela cemetery where
the
deceased was buried. He state further that if a corpse is exhumed,
custom dictates that it will not allowed to be reburied
in the same
cemetery since the spirit has been escorted from the grave side.
According to him the return of the corpse to the same
grave
(cemetery) side will cause misfortunes. According to Chaise, as part
of the rituals that he had performed he had buried a
tree stump in
the grave which the deceased was initially buried.
[15]
The applicant is seeking an interdict against the respondents as she
is been prevented to rebury the deceased at Shawela village
cemetery.
The respondents are not disputing that they refusing the applicant to
rebury the deceased at Shawela village cemetery.
Their justification
is that according to their custom, it is a taboo to rebury an exhumed
corpse in the same grave (cemetery).
[16]
It is not in dispute that the deceased was buried at Shawela village
cemetery and later exhumed by unknown people who took
him to the
applicant’s house. That was as a result of the rumours that
were doing rounds that they have buried a wrong person.
[17]
Before the Court can determine whether the applicant has satisfied
the requirements of a final interdict, it is important to
first
determine whether indeed this custom is in existence; is well known
and for some time has been practiced by the community
of Mahumani
village.
[18]
Customary Law is entrenched in our Constitution. Courts are required
to apply customary law where it is applicable subject
to the
Constitution and any relevant legislation. Customary law must be
determined with reference to both history and the usage
by the
community concerned.
[19] In
Shilubana and
Others v Nwamitwa
2009 (2) SA 66
(CC)
83 E-G Van der Westhuizen J
said:
“
The
classical test for the existence of custom as a source of law is that
set out in Van Breda v Jacobs, in which it was held that
to be
recognized as law, a practice must be certain, uniformly observed for
a long period of time and reasonable. The requirements
of
reasonableness would now of course, be applied in a way compliant
with the Constitution. The appropriateness of this test to
determine
the existence of a norm of indigenous customary law must be
examined.”
[20]
The respondents’ counsel has conceded that the applicant’s
case is the first case to happen at Mahumani community.
If it is the
first case to happen in that community, the question is whether the
said custom that it is a taboo to rebury an exhumed
corpse in the
same grave/cemetery has been known in the community, practiced and
uniformly observed for a long period of time.
[21]
According to Chaisa the traditional healer, an exhumed corpse is not
allowed to be reburied in the same cemetery. However,
the twelfth
respondent in paragraph 20 of his answering affidavit has stated that
the applicant has not asked for another grave
to be allocated and as
such, my understanding is that she seeks to use the same grave which
cannot customarily be. The twelfth
respondent is specific, he refers
to the same grave and not cemetery. In other words, according to the
twelfth respondent, the
problem is reburying in the same grave which
has already been allocated and dug. If another allocation of a grave
is made in the
same grave yard that should not be a problem. The
twelfth respondent also regard himself as a custodian of custom and
culture of
Mahumani community, whilst Chaisa is an ordinary
traditional healer.
[22]
The applicant has stated in her founding affidavit in paragraph 5
that on the 9
th
December 2014 her family was invited to Mahumani Tribal Council
office where she was fined R6000-00 and ordered to rebury the
deceased by 13
th
December 2014. She further stated that she could not comply with the
order as the Mahumani community members continued to obstruct
her,
and also she could not access the keys to Shawela village cemetery.
[23]
The respondents in their answering affidavit has conceded that the
applicant was summoned to the Royal House and that she was
fined
R6000-00. They are not disputing that the applicant was ordered to
rebury the deceased by the 13
th
December 2014. What they are disputing is that the applicant was
requested to find another house to stay.
[24]
In relation to the issue that the applicant was obstructed and could
not access the keys to the cemetery, the respondents has
merely noted
the contents. In other words the applicant’s version remained
unchallenged on this aspect.
[25]
This meeting of the 9
th
December 2014 took place long after Chaisa has performed the rituals
at the cemetery. Chaisa has performed the rituals on the 14
th
June 2014. The question is whether as at the 9
th
December 2014, the twelfth respondent who is the custodian of the
customs and culture of the Mahumani Community, has forgotten
about
this taboo or has condoned it when he ordered the applicant to rebury
the deceased by the 13
th
December 2014? On reading of paragraph 20 of his answering affidavit,
the custom that he knows is that of not reburying in the
same grave
and not the same cemetery.
[26]
The twelfth respondent and Chaisa who seems to be the elders in the
community are not speaking with one voice. The other one
is referring
to the same grave, whilst the other one is extending it to the whole
cemetery. In my view, it can therefore not be
said that the alleged
custom is certain, and uniformly observed for a long period of time.
[27]
The other problem that the respondents will encounter with their
alleged custom if indeed it is in existence, is its reasonableness.
Counsel for the respondent could not explain as to what will happen
if the exhumation was made through a valid court order? Will
the
reburial also take place at another cemetery or grave? The
respondent’s counsel could not answer that or shed any light
on
that. In my view, the alleged custom will not pass the constitutional
test. Customary law like any other law, must be in conformity
with
the Constitution. Courts will not apply customs that are not in
conformity with the Constitution.
[28]
It clear that the exhumation of the deceased at Mahumani community is
unprecedented. In my view it cannot be said with certainty
that a
custom relating to exhumation and reburial has been developed and
practiced for a long time by the community of Mahumani.
The twelfth
respondent and Chaisa whom it can be said are the elders of the
community are not even certain about the said
custom.
[29]
I turn to the issue whether the applicant has satisfied the
requirements for a final interdict. It is settled law that the
requirements for a final interdict are a clear right, an injury
actually committed or reasonably apprehended, and that there is
no
other satisfactory remedy available. (See
Setlogelo
v Setlogelo
1914 AD 221
at 227).
[30]
The applicant is arguing that she is having a clear right as it is
her right to make funeral arrangements and determine the
deceased
final resting place and also to bury him. In my view the applicant’s
right to bury the deceased and determine his
final resting place is a
valid and clear right. However that right has been threatened and
infringed by the respondents in obstructing
her to rebury the
deceased relying on a non- existent custom.
[31]
What is clear is that the protest by the community members was fueled
by the rumours that the applicant has buried the wrong
person.
However, that was cleared by the DNA test results conducted by the
police. Therefore, the respondents has no basis to refuse
the
applicant to rebury the deceased. They can even call the traditional
healer to perform the rituals before the reburial or allocate
another
gravesite in the same cemetery if they did not wish to take out the
tree stump from the initial grave.
[32]
I turn to the second requirements, an injury actually committed or
reasonably apprehended. The deceased has been exhumed by
people
unknown to the applicant. The applicant has been forced to vacate his
house by community members who threatened to burn
it. The respondents
in their answering affidavit concede that the deceased was exhumed by
unknown people after his burial. The
respondents also state that
there were unrest and roads were closed in Shawela village as a
result of the burial of the deceased
and the allegations that a wrong
person was buried.
[33]
By exhuming the deceased and banishing the applicant from her home,
an injury has actually been committed. In
von
Molkte v Costa Areosa
(Pty)
Ltd
1975 (1) SA
255
(C)
it
was held that a party seeking relief must show that he is suffering
or will suffer some injury, or prejudice or damage or invasion
of
right peculiar to himself and over and above that sustained by the
members of the public in general. In the present case the
applicant
has already suffered and continue to suffer for as long as the
deceased remain kept at the mortuary without a solution
been reached.
[34]
Turning to the third and final requirement, whether there is no other
satisfactory remedy available. The applicant alleges
that she engaged
the respondents in many meetings which did not bear fruits. On the
other hand the respondents argue that the applicant’s
alternative remedy is to bury the deceased at the municipal
graveyard. In my view, the respondents’ argument will not
prevail
since it is based on a non-existing custom. Reburying the
deceased at the municipal graveside will inconvenience the applicant
and therefore, in view it is not an appropriate remedy. There is no
justification why the deceased should not be buried in the same
cemetery where his father and brother were buried. The applicant is
entitled to re-bury the deceased at Shawela village cemetery
next to
his father and brother.
[35]
Under the circumstances the Court is satisfied that the applicant has
satisfied all the requirements for a final interdict.
[36]
In the result I
make the following order:
36.1
Against eleventh and twelfth respondents, an order in terms of prayer
2 and 5 is granted.
36.2
Against the remainder of the respondents an order as prayed for in
the notice of motion is granted.
36.3
The eleventh and twelfth respondents to pay the costs of this
application.
_________________________
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE
Appearances
1.
For
the applicant : Adv. L. Siyo
2.
Instructed
by : Bowman Gilfillan Incorporated
3.
Telephone
Number : 011 669 9000
4.
For
the Respondents : Adv. R Baloyi
5.
Instructed
by : Mahumani Incorporated
6.
Telephone
numbers : 012 330 0025
7.
Date
of Argument : 15 March 2018
8.
Date
of Judgment : 24
th
April 2018