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[2017] ZANCHC 72
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Roman v Roman and Others (2659/17) [2017] ZANCHC 72 (17 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT KIMBERLEY)
Case
number:
2659/17
Date
heard:
10/11/2017
Date
delivered:
17/11/2017
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES /NO
In
the matter of:
LENA
ROMAN
Applicant
and
LORRAINE
ROMAN
First Respondent
FORENSIC
DEPARTMENT, HARRY SURTIE
Second Respondent
PROVINCIAL
HOSPITAL
AVBOB,
UPINGTON
Third Respondent
Coram:
Snyders AJ
JUDGMENT
SNYDERS,
AJ
1.
This was an opposed motion argued on the
return date for the confirmation or discharge of the
rule
nisi
granted by myself on 06 November
2017, which reads:
“
1.
That a rule nisi is issued with a return date of
09:30
on Friday, 10 November 2017
,
calling on the First Respondent to show cause, why the following
order should not be granted, namely that-:
1.1
The applicant be authorised to bury
the corpse of Leon Albertus Roman (identity number [....]) at 77
Wolman Street, Wegdraai, Groblershoop,
Northern Cape Province;
1.2
The applicant be authorised to bury
the corpse of Leon Albertus Roman (identity number [....]) on a date
suitable to the Applicant;
and
1.3
The First Respondent pay the costs
of this application only in the event of opposition.”
2.
The
rule nisi
was confirmed on 10 November 2017 and the reasons for that order
follow.
3.
The applicant is Lena Roman and the mother
of the late Leon Albertus Roman (“
the
deceased
”). The first respondent
is Lorraine Roman, the wife of the deceased. The second respondent is
the Forensic Department: Harry
Surtie Provincial Hospital, Upington
and the third respondent is AVBOB Funerals, Upington. The second and
third respondent was
cited as interested parties and no relief was
sought against them, nor did they oppose the application.
4.
On 29 October 2017, the deceased passed
away in a motor vehicle accident. The deceased was married to the
first respondent in community
of property at the time of his death.
The deceased and first respondent did not have any children, nor did
he father any children
in any other relationship.
5.
According to the applicant, the deceased
and first respondent were estranged from each other since 2012. The
deceased relocated
to Wegdraai where he lived until his death. He did
not have any contact with the first respondent since their
estrangement. It
is common cause that the deceased and first
respondent’s marriage was never dissolved.
6.
It is further the applicant’s version
that the deceased was in a romantic relationship with Nontsikelelo
Cynthia Ndlovu (“
Ndlovu
”)
from 2013 until his death. Ndlovu is a beneficiary on the deceased’s
life policy, a dependant on his medical aid
and a signatory to his
bank accounts. Documents to this effect, as well as a confirmatory
affidavit by Ndlovu, were attached to
the papers.
7.
The applicant further states that the
deceased died intestate. At various stages during his lifetime, and
more specifically in the
month leading up to his death, the deceased
informed his grandfather, Dawid Ludick, that he wished to be buried
out of his grandfather’s
house at 77 Wolman Street, Wegdraai.
The deceased reiterated this request to his grandfather when the
deceased’s grandmother
passed away during August 2017 and
specifically requested that his funeral ceremony be conducted from
the grandfather’s home
in Wegdraai. A confirmatory affidavit by
the grandfather dated 03 November 2017 (“
the
first affidavit
”) was attached.
To further support this contention, affidavits were attached by
Majorietta Johanna Ludick, the deceased’s
maternal aunt and
Pieter Floris Pretorius, his pastor in Wegdraai. In the replying
affidavit, the applicant also attached an affidavit
in support of
this contention by Christo Van Der Westhuizen, the deceased’s
cousin and confidant. He also confirmed that
the deceased and first
respondent were unhappily married and that the deceased intended to
divorce the first respondent.
8.
The applicant contends that she informed
the first respondent of the intended funeral arrangements but that
she instead wanted the
deceased released to her for burial in
Kimberley. The applicant confirmed that she had made funeral
arrangements, whilst the first
respondent had taken no such steps.
The applicant also offered to pay for the funeral and did not seek
any financial contribution
from the first respondent in respect
thereof.
9.
The first respondent opposed the
application and relied on her rights as spouse and heir to his
estate, as well as on the express
wishes of the deceased as relayed
to her regarding his burial.
10.
The first respondent denied that there were
any marital problems between herself and the deceased. The reason for
having separate
homes was as a result of his employment in
Groblershoop. Since the deceased commenced working in Groblershoop,
he went to visit
the first respondent every second week-end. The
first respondent alleged that the last time that the deceased was at
home with
her was 22 October 2017 in order to give her money for her
birthday. The first respondent attached a confirmatory affidavit from
her neighbour, Sandra Doyle, who confirmed that the deceased came to
the first respondent every second week-end. The first respondent
stated that she had no knowledge of Ndlovu and trusted the deceased
while he worked in Groblershoop. In a replying affidavit, the
applicant admits that the deceased had met the first respondent by
chance when he was in Kimberley. A confirmatory affidavit by
Ndlovu
is attached. The circumstances of the meeting are set out in the two
affidavits. On 21 and 22 October 2017, the deceased
and Ndlovu went
to Kimberley to visit her family, which they occasionally did. During
these trips, the deceased was never away
from Ndlovu for more than an
hour. Hence, the deceased spent every week- end with her, never went
to the first respondent every
second week -end, nor did he visit her
on 21 October 2017. On that day, the deceased went to run some
errands and met the first
respondent in a shop by chance. During this
meeting, the deceased discussed finalising a divorce with the first
respondent. The
content of this discussion is confirmed by the
deceased’s aunt, Mrs MJ Ludick, as the deceased relayed the
conversation to
her. The conversation is further confirmed by Mr
Rodgers, who was present at the time of the conversation.
11.
The first respondent further states that
the deceased had expressed a wish to her to be cremated. She was,
however, not satisfied
with this arrangement and intends to bury the
deceased. She also denied that the deceased had ever expressed his
intention to be
buried from his grandfather’s house. The first
respondent attached an affidavit from the grandfather, Dawid Ludick,
dated
03 November 2017
(“the
second affidavit”
), wherein the
grandfather expresses the wish to bury the deceased from his home in
Wegdraai as follows:
“
...
Dit is my verlang dat hy uit die huis begrawe word omdat die hele
familie in Wegdraai begrawe is. Ek verwittig ook dat hy voor
sy
heengaan gevra het dat ons hom uit die huis moet begrawe.”
12.
The grandfather, Dawid Ludick, deposed to a
third affidavit attached to the replying papers, wherein he confirms
that it is indeed
his wish that the deceased be buried from his home,
but that it was also the deceased’s wish.
13.
The first respondent states that the
deceased did not have a meaningful relationship with the applicant.
In her replying affidavit,
the applicant denies this. The applicant
intimated that, to the contrary, the deceased and Ndlovu cared for
her when she was ill.
The first respondent averred that she does not
know the pastor, Mr Pretorius and denied that those were the
deceased’s wishes
as relayed by the pastor.
14.
The first respondent contends that, as the
legally married spouse of the deceased, she had the right to bury him
Kimberley at a
date and venue of her choosing. The first respondent
lodged a counter-application to this effect.
15.
A brief mention needs to be made of an
unsigned divorce summons dated February 2016 which was attached to
the replying affidavit.
Ndlovu had fortuitously discovered this
summons on the deceased’s computer on the day that the
affidavit was to be filed.
I do not intend to attach much weight to
the summons or deal with it any further.
16.
The issue to be determined is whether the
first respondent is entitled to bury the deceased or whether the
applicant has proven
his express wishes to the contrary. Linked to
this determination is whether the deceased and first respondents’
marriage
had deteriorated, as this will show whether the first
respondent was privy to the deceased’s wishes.
17.
The case law has developed over the years
regarding burial rights. Two main themes have developed, mainly that
the heir has the
right to decide on the issue of burial, barring
express wishes to the contrary; or the principles of fairness are to
be followed.
In my view, the first approach is correct but fairness
is inextricably linked to the adjudication of such matters.
18.
The
leading authority on this matter is
Voet
[1]
,
who
wrote that the right to bury should follow, first the deceased’s
preference (whether in a will or not); second, if there
are no such
instructions, the testamentary heirs have the right to bury; thirdly,
if there is no will, the intestate heirs in order
of succession have
the right to bury the deceased; and fourthly, if there are no
intestate heirs, the magistracy must decide.
19.
The
principles set out above were applied in a number of cases. A case in
point is
Mnyama
v Gxalaba & Another
[2]
.
In that matter, the applicant alleged that it was his right as the
intestate heir of the deceased to bury the deceased. The second
respondent, however, maintained that she had the right to bury the
deceased in terms of oral wishes expressed by the deceased.
The Court
held that evidence of a man’s state of mind could be tendered
by way of hearsay evidence
[3]
.
The Court further held that the applicant is entitled to bury the
deceased, as the second respondent’s evidence of the alleged
wish was not sufficiently cogent and the application could not
succeed.
20.
In
Sekeleni
v Sekeleni and Another
[4]
,
the Court relied on the principles set out by
Voet
as above. In the
Sekeleni
matter, the deceased had been married in community of property to Mrs
L Sekeleni. After the dissolution of his marriage until his
death, he
resided with Ms Ntlonze but was never formally married to her. The
deceased died intestate. The deceased’s children,
as his
intestate heirs, sought to bury the deceased. Shortly before his
death, the deceased made his wishes known regarding his
burial in a
written document handed to Ntlonze. The court held that the
deceased’s express wishes are to be given effect
to,
irrespective of whether they are contained in a will or not. Such
wishes may even be verbal.
[5]
21.
In
Mahala
v Nkombombini
[6]
,
the Court held that when considering who should bury a deceased,
there are no “
hard
and fast rules
”
and that each case should be decided on its own particular
circumstances. Common sense should also dictate the decision
of the
Court, which includes practical considerations.
ANALYSIS
22.
Ms Stanton, for the applicant urged the
Court to confirm the interim order in light of the express wishes of
the deceased conveyed
to members of his family and Ndlovu. She argued
that the marriage between the deceased and first respondent had
disintegrated.
Mr Jankowitz, for the first respondent, argued that
ignorance on the part of the first respondent of the relationship
between the
deceased and Ndlovu, did not amount to the assumption
that her marriage was in trouble. He was hard pressed to explain why
Ndlovu
was registered as a beneficiary on the deceased’s
medical aid and pension fund.
23.
What swayed me, however that the deceased
and first respondent’s marriage had broken down was the
deceased’s answers
filled in on a loan application form. On the
form where he is to complete his marital status, he stated that he is
married in community
of property and in parentheses says “
separated
”.
Where he is to provide the details of his spouse, he inserts Ndlovu’s
name. I am satisfied that this is indicative
that the deceased and
first respondent’s marriage had broken down. Under those
circumstances, I am persuaded that the applicant
and Ndlovu would
have known the deceased’s last wishes he expressed concerning
his burial.
24.
Although the first respondent, as the heir
to the deceased’s estate, has a strong claim, it was countered
with affidavits
from various people concerning the deceased’s
wishes. Even if one could find some ulterior motive in their
allegations, no
ulterior motive for the pastor making such statements
is given. Ms Stanton argued that the grandfather, Dawid Ludick,
expressly
stated in his second and third affidavit that, although it
was his wish for the deceased to be buried from his house, it was
also
the deceased’s wish. This is evident from a plain reading
of the second affidavit by the grandfather.
25.
In
the matter of
Plascon
Evans
[7]
,
the Court held that where there is a dispute as to the facts a
final interdict should only be granted in motion proceedings
if
the facts as stated by the respondents together with the admitted
facts in the applicant's affidavits justify such an order.
The Court
further held that where it is clear that facts, though not formally
admitted, cannot be denied, they must be regarded
as admitted. The
Court went on further to state at an extract of 634I to 635D:
“
The
power of the Court to give such final relief on the papers before it
is, however, not confined to such a situation. In certain
instances
the denial by respondent of a fact alleged by the applicant may not
be such as to raise a real, genuine or bona fide
dispute of fact. If
in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to
be called for cross-examination
under Rule 6 (5) (g) of the Uniform Rules of Court and the Court is
satisfied as to the inherent
credibility of the applicant's factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among
those upon which it determines whether
the applicant is entitled to the final relief which he seeks.
Moreover, there may be
exceptions to this general rule, as, for
example, where the allegations or denials of the respondent are
so far-fetched or
clearly untenable that the Court is justified in
rejecting them merely on the papers.”
26.
I am satisfied to proceed on the
correctness of the applicant’s factual averments, as the
deceased’s wishes were express,
cogent and supported by a
number of confirmatory affidavits. In line with the above case law, I
also accept these wishes, even
though they were made verbally. The
first respondent’s version in the papers is implausible and
untenable and stands to be
rejected. She had not availed herself of
the right to apply for the applicant to be subjected to
cross-examination. By implication,
the confirmation of the
rule
nisi
disposed of the counterclaim.
27.
The first respondent was aware that costs
are sought against her in the event of opposition. She nevertheless
proceeded with the
opposition. There is no reason why costs should
not follow the result.
For
the reasons above, the following order was made on 10 November
2017:
1.
The rule nisi granted on 06 November
2017 is confirmed.
J.A
SNYDERS
ACTING
JUDGE
On
behalf of Applicant:
Adv A Stanton (Elliot & Maris Attorneys.)
On
behalf of Respondent:
Adv D Jankowitz (Gary Botha Attorneys)
[1]
Commentarius
ad Pandectas (Gane’s Translation) 11.7.7.
[2]
[1990]
3 All SA 1042 (C).
[3]
Mnyama
v Gxalaba supra at 1043 and 1045.
[4]
1986
(2) SA 176 (TkS).
[5]
Sekeleni
v Sekeleni
supra
at
179.
[6]
Mahala
v Nkombombini
2006 (5) SA 524
(SE) at 528G-529G.
[7]
Plascon
– Evans Paints Ltd v Rieberck Paints (Pty) Ltd 1984(3) SA 623
at 634 D-F