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[2015] ZANCHC 38
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Kgosietsile v Plaatjies and Another (2277/2015) [2015] ZANCHC 38 (25 November 2015)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No: 2277/2015
Heard:23-11-2015
Delivered:
25-11-2015
In the
matter between:
MATLHOGONOLO
KGOSIETSILE APPLICANT
AND
LILIAN
PLAATJIES 1ST RESPONDENT
THE
STATION COMMISSIONER;
SOUTH
AFRICAN POLICE SERVICE 2ND RESPONDENT
Coram:
Kgomo JP, Olivier J et Pakati J
JUDGMENT
– FULL BENCH
KGOMO
JP
1. This
appeal emanates from the judgment of my brother Coetzee AJ which he
delivered ex tempore on 06 November 2015 because it
was and remains
urgent. Leave to appeal was granted by the Judge on 18 November 2015.
2. The
essence of the issue that fell for determination by that Court may be
paraphrased as follows, after amendment of the relief
sought which
was, helpfully, suggested by the Judge:
2.1 That
the First Respondent, Ms Lilian Plaatjies, the mother of the
deceased, Mr Casius Edward Plaatjies, be interdicted and prohibited
from burying his body (the remains) in Upington, Northern Cape;
2.2 That
the Second Respondent, the Station Commissioner, South African Police
Service (SAPS), Postmasburg be interdicted and prohibited
from
releasing the deceased’s body to the deceased’s mother or
any other person pending the decision of the Court as
regards in whom
the right reposes and responsibility rests to bury the body of the
deceased;
2.3 A
declaratory order that the applicant, Matlhogonolo Kgosietsile, be
declared to be the customary wife of the deceased and consequently
the rightful person to arrange and bury the deceased in the manner
that she deems appropriate;
2.4 No
cost order is sought against any of the respondents.
3. The
deceased’s mother opposed the relief sought. The Station
Commissioner merely stated that the deceased’s body
was in the
possession and under the control of the Forensic Department of
Health, Northern Cape, and that the Station Commissioner
has,
consequently, been misjoined. Nothing revolves around this issue
because we have been given the assurance by counsel that
an
undertaking has been given that the body would be retained by the
Forensic Department pending the outcome of this appeal, although
its
condition was busy degenerating as its preservation was inadequate.
4. Coetzee
AJ simply dismissed the application without any directive and
remained silent on the costs issue. There exists an impasse
in light
of the fact that the question of who should rightfully bury the
deceased remains unresolved.
5. The
reasons for the dismissal of the application are set out, to the
extent crucial, as follows by the Judge:
“
The
crux of this application, in my view is to be found in the answer to
the question whether the Applicant showed, on a balance
of
probabilities, that a customary marriage existed between herself and
the deceased. And in this regard Mr Khokho conceded that
this is the
real question to be answered.
In
order to be successful the Applicant has to show, as has been
pronounced by Dlodlo J, in Fanti v Boto and Others 2008(5) SA 405
(C), and I quote:
‘
It
is actually relatively easy to prove the existence of a customary
marriage in view of the fact that there are essential requirements
that are inescapably must be alleged and proved. These would be:
Consent
of the bride;
(1) Consent
of the bride’s father or guardian;
(2) Payment
of lobola; and
(3) The
handing over of the bride.
See
Mabuza v Mbatha
2003 (4) SA 218
C also reported as
2003 JOL 10756
C
at 223.’
The
learned Judge then proceeded:
“
The
same requirements are set out as follows by Olivier, Becker &
Others in their work “Indigenous Law”.
(1) A
consensual agreement between the family groups with respect to the
two individuals who are to be married and the lobola to
be paid; and
(2) The
transfer of the bride by the family group to the family of the man.
Regard
being had to the above requirements for the validity of a customary
marriage, I emphasise, payment of lobola remains merely
as one of the
essential requirements. In other words, even if payment of lobola is
properly alleged and proved that alone would
not render a
relationship a valid customary marriage in the absence of the other
essential requirements.”
And
then the learned Judge referred to certain decisions, being Gidia v
Jindwana 1944 NAC NNT4; R v Mane 1947(2) PH H328 (GW); Ziwande
v
Sibeke 1948 NAC C21; Mkhongolo v Pakies 1953 NAC 5103.
In
applying the well-known principles laid down in Plascon-Evans Paints
Ltd v Van Riebeck’s Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) I
accept the following facts:
[1]
That the deceased is the biological son of the First Respondent.
[2]That
the deceased had a love relationship with the Applicant and that a
child was born from this relationship.
[3]
That an amount of R20 000,00 was paid by the deceased to the
Applicant’s family.
[4]
That no negotiations took place between the family of the deceased
being his brother or mother. In this regard Mr Khokho submitted
that
Dumane Mqomo, deceased’s brother who is patently not the
deceased’s brother; Mabel Bosman, the deceased’s
aunt;
Sara Mqomo, the deceased’s guardian who is patently not the
deceased’s guardian; and Keamogetse Mqomo, the deceased’s
cousin, negotiated the marriage between the deceased and the
Applicant. These people are clearly not the deceased’s family
and hence could not negotiate a valid customary marriage.
[5]
That there was no consent by the deceased’s mother or guardian
and no allegation of such consent by the deceased’s
father.
In the
above premises the application is dismissed”. (My emphasis).
6. The
history of this matter, much of which is common cause or not in
dispute or uncontroverted, is the following. The deceased
was born to
Ms Lilian Plaatjies in 1983 in Namibia. As a toddler the mother, the
said Ms Lilian Plaatjies, moved to Cape Town with
the deceased. In
no time she abandoned him. He was rescued by some neighbours who
enlisted the assistance of Social Workers.
Through their joint effort
Ms Sarah Mqomo, the sister to Lilian Plaatjies, was traced to
Postmasburg in this Province. His custody
and control was entrusted
to her.
7. Ms
Sarah Mqomo henceforth became not only a guardian but a de facto
mother to the deceased. She put him through primary school
at HTT
Bidi Primary School in Postmasburg from the early 1990’s. He
matriculated in 2004 from Ratang Thuto High School, still
in
Postmasburg. He obtained a Bachelor of Political Science degree from
the University of the Free State. A remarkable feat, given
his
circumstances.
8. Upon
completion of his studies the deceased was engaged as a Political
Officer by the African National Congress (ANC) and was
based in the
ZF Mgcawu district in Upington.
9. The
applicant and the deceased started a love relationship in 2010 from
which a boy named Kgolagano (Setswana for “the
bond”) was
born. Kgolagano is now four years old.
10. The
applicant takes up what subsequently transpired in this fashion:
“
6.7
On or around January 2014 the deaceased’s family, which
included the deceased’s brother, Dumane Mqomo, Mabel Bosman,
the deceased’s aunt, Sarah Mqomo, the deceased’s guardian
and Keamogetse Mqomo, the deceased’s cousin visited
my family
in Tlakgameng, Vryburg, where they negotiated the marriage between
myself and the deceased. The Honourable Court’s
attention is
drawn to the attached confirmatory affidavits marked herein
respectively as annexures “A”, “B”,”C”,
and “D”.
6.8
Subsequent to the marital negotiations, on the 23rd May 2014, an
amount of R20 000,00 (Twenty Thousand Rands) was paid by the
deceased’s family to my family for lobola.
6.9
Thereafter I was subjected to the deceased's cultural rituals and I
was also given the deceased's cultural name.
6.10
From June 2014 myself, the deceased and our minor son stayed together
in our matrimonial home in Postmasburg. Even though the
deceased was
employed in Upington, he was home in Postmasburg every Friday of the
week and on Sunday he would drive back to Upington.
6.11
On the 23rd October 2015, the deceased tragically died in a fatal car
accident outside Postmasburg. His corpse was taken to
the Government
Mortuary where an autopsy was performed by the Forensic Pathologist.
6.12
On the 24th October 2015, the First Respondent, after being notified
of the deceased's death, telephonically informed me that
since I was
customarily married to the deceased, I must arrange the funeral of
the deceased in whatever manner I deemed fit.
6.13
Furthermore, on Monday the 26th October 2015, the First Respondent
came to our residence in Postmasburg wherein she informed
me that I
must continue with the funeral arrangements of my late husband and
bury him at his place of residence in Postmasburg.
6.14
I then started with the funeral arrangements with a view to burying
the deceased on Saturday the 31st October 2015.
6.15
To my dismay, on the 29th October 2015 I received a call from Colonel
Witbooi of the Postmasburg Police Service informing me
that the First
Respondent has deposed to an affidavit at Paballelo Police Station in
Upington wherein she demanded the Postmasburg's
Forensic Pathology
Department of the South African Police Service to release the
deceased's corpse to herself and not to me.
6.16
I informed colonel Witbooi that I am the legal wife of the deceased
and I am legally entitled to his corpse and to bury it
at his place
of residence in Postmasburg. Colonel Witbooi then informed me that
since there is a dispute over the corpse they are
not going to
release the corpse to anyone until the Honourable court has made a
ruling on the rightful owner of the corpse.
6.17
I must say at the time the First Respondent stopped the funeral to
take place on the 31st October 2015, I had already made
funeral
arrangements, payments were already made towards the hiring of tents,
hiring of cooking pots, chairs and tables, groceries
as well as the
perishable vegetables. Animals were already slaughtered.
6.18
All items went to waste as the funeral could not take place on the
scheduled date. I must mention that on the Friday before
the
scheduled Saturday of the funeral, I rushed towards my attorney's
offices [in] a bid to obtain an order permitting me to carry
on with
the funeral but I was informed that it is late to bring this urgent
application and I must postpone it to this week.
6.19
I pause to mention that the first Respondent does not have a house in
Upington, she intends conducting the deceased's funeral
service from
a friend's house. I find this arrangement totally insulting to me and
my entire family.
6.20
The first Respondent is under the impression that the deceased's
policies will be paying a lot of money towards whoever will
be
conducting the funeral service of the deceased. This impression is
totally wrong because the deceased has left no policies behind
and
the expenses of his funeral services will be carried by myself with
the help of the African National Congress.” (My emphasis).
11. The
applicant states that notwithstanding her best endeavours Ms Lilian
Plaatjies is adamant that she is entitled to bury the
body of the
deceased.
12. As
foreshadowed earlier Ms Lilian Plaatjies is as silent as the grave in
which the deceased will find his final resting place
concerning the
deceased’s long and winding road from Namibia until he met his
untimely demise. When he was alive she never
cared for or about
him. Now that he has died she cares. Strange.
13. Ms
Lilian Plaatjies’ version is that (translated): “I want
to know who of the deceased family negotiated the lobola/bogadi
because my eldest son, Andile Plaatjies, and I and the rest of the
family have no knowledge in that regard”. This is a strange
statement because it presupposes that she has not read para 6.7 and
6.8 of the applicant’s deposition quoted in full in para
10
(above), of this Judgment. Significantly Ms Lilian Plaatjies says at
para 6.16 of her statement: “I was unaware of the
allegation
that the applicant was my son’s lawful wife”.
Understandably so.
14. Ms
Lilian Plaatjies denies that cultural rituals were performed after
the bogadi was paid. There was no need or requirement
for her to be
informed or involved. She was never part of the deceased’s
life since she dumped him unceremoniously and has
given no
explanation to the Court a quo why she did it and whether she
apologised for her inhuman conduct. What would she be saying
now if
the deceased disappeared traceless at infancy, which is what she
seems to have sought.
15. From
the mouth of Ms Lilian Plaatjies comes the following (un-translated
to eliminate any ambiguity):
“
Ons
het toe terug gekeer Upington toe waarna ek kom uitvind het op 27
Oktober 2015 dat daar wel ‘n polis by AVBOB is en dat
ene
Matlhogonolo Kgosietsile die begustigde is. Ek het toe, vir die
eerste keer sedert my kind se dood, die Applikant gebel om
uit te
vind of sy nie die persoon ken nie. Die Applikant het toe gesê
dit is sy. Ek het haar toe gevra of sy die begrafnis
voordele sal kom
opeis om my in staat te stel om die begrafnis in Upington te hou
waarna sy toe in gestem het. Ek het toe my suster
gebel en vir haar
gesê dat daar ‘n polis [is] en dat ek hom op Upington kan
en gaan begrawe. My suster se antwoord
was: ”Thandiwe maak jy
my so my suster, maar is reg”. Dumani, haar seun, het my toe
daarna gebel en gesê oor
sy dooie liggam sal my kind in
Upington begrawe word want sy ma, my suster, het hom groot gemaak.”
(My emphasis).
16. AVBOB,
it is a notorious fact, is a funeral undertaker. What Ms Lilian
Plaatjies, perhaps unwittingly, admitted to is that
the deceased
instituted the applicant, whom he regarded as his wife, Matlhogonolo
Kgosietsile, as his beneficiary. If he was averse
to her burying him
he, surely, would not have made her his “begunstigde”
(beneficiary). A deceased need not devise
a testament (will) to
nominate a person to take charge of his/her burial. A mere letter or
verbal declaration to witnesses would
suffice. For example the
following is recorded in LAWSA, Second Ed, Vol 2 (part 2), at P279
para 314, under “Burial rights
and duties”: “Failing
such testamentary instructions, the wishes of the deceased person
should be acceded to where
there is clear proof of his or her
wishes.”
Footnote
3 gives a string of authorities for such principle and some
commentary on this view. I can hardly fathom why the deceased
would
have preferred a mother, who was indifferent to his plight, to bury
him over a loving wife.
17. In
terms of s 3 of the Regulation of the Customary Marriages Act, 120 of
1998, the following are the requirements for the validity
of a
customary marriage:
“
(1)
For a customary marriage entered into after the commencement of this
Act to be valid:
(a) The
prospective spouses-
i. Must
both be above the age of 18 years; and
ii. Must
both consent to be married to each other under customary law; and
(b) The
marriage must be negotiated and entered into or celebrated in
accordance with customary law.
(2)
Save as provided in section 10(1), no spouses in a customary marriage
shall be competent to enter into a marriage under the
Marriage Act,
1961 (Act 25 of 1961), during the subsistence of such customary
marriage.
(3)(a)
If either of the prospective spouses is a minor, both his or her
parents, or if he or she has no parents, his or her legal
guardian,
must consent to the marriage”.
18. I
am satisfied that the learned Judge erred in finding that:
18.1
No negotiations took place between the family of the deceased and
that of the applicant. It unquestionably did. It is inconsistent
for
the Judge to accept that bogadi/lobola was paid but to disclaim the
negotiations took part. The two are inseparable.
18.2
The court a quo also erred in having found that the mentioned
intermediaries “are clearly not the deceased’s family
and
could not negotiate a valid customary marriage”. Outside the
deceased’s mother, Ms Lilian Plaatjies, who disqualified
herself, who could be a closer blood relative to the deceased than
his mother’s sister, Ms Sarah Mqomo? None.
18.3
The Court was also remiss in having found that “there was no
consent by the deceased’s mother or guardian or such
consent by
the father”. Both the deceased and the applicant were adults.
Ms Lilian Plaatjies mentions that the applicant
is a “regsgleerde
van beroep”. Section 3(1) quoted above is also very clear. The
days of perpetual tutelage for women
are no more. See Bhe and Others
v Magistrate, Khayelitsha and others (Commission For Gender Equality
As Amicus Curiae); Shibi
v Sithole and Others, South African Human
Rights Commission and Another v President of the Republic of South
Africa and Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC). See also Shilubana And
Others v Nwamitwa
2009 (2) SA 66
(CC).
18.4 Coetzee
AJ in dealing with the dispute of fact correctly alluded to
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A). However, in my view, he applied the principle too strictly
for a case of this nature. The remarks of Erasmus J in Mahala
v
Nkombombini and Another
2006 (5) SA 524
(SE) at para 9 commend
themselves to me whereat the following is recorded:
“
[9]
The issue before the Court is a vexing one. Both the applicant and
first respondent wish to dispose of the body of their loved
one, the
deceased. This is understandable. It is a matter of regret that the
parties could not have come to some agreement prior
to coming to
Court. As appears from my summary of the affidavits, there is a
dispute of fact on the papers. But, due to the urgency
of the matter,
there is clearly no time to refer these disputes to oral evidence for
adjudication. The Court must decide the matter
on the affidavits
before the Court. In this regard, the general rule, as stated in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634H, operates. That rule has it that where, in
proceedings on notice of motion, disputes of fact have arisen on the
affidavits,
a final order may, generally speaking, only be granted
if those facts averred in the applicant's affidavits which have been
admitted
by the respondent, together with the facts alleged by the
respondent, justify such an order. That approach is possibly not
entirely
satisfactory for a matter such as the present. As was
pointed out in Trollip v Du Plessis en 'n Ander
2002 (2) SA 242
(W)
at 245E - F, a more robust approach is sometimes required, and the
Court should then grant the order if it is satisfied that
there is
sufficient clarity regarding the issues to be resolved for the Court
to make the order prayed for.”
18.5 I
wish to add that this does not stray from the Plascon-Evans rule that
binds us but we invoke the approach of Phatshoane J
in the Cecilia
Thupane and Others v Mary Lechuti and Others Case No. 973/2011,
Kimberley, Delivered on 5 August 2011, unreported,
where she stated
at para 5 of that judgment:
“
5. In
Soffiantini v Mould
1956 (4) SA 150
(E) at 154 Price JP pronounced:
‘
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits.’
In
Plascon-Evans Paints Ltd v Van Riebeeck Paints supra the Appellate
Division did not upset or criticize this enunciation. A more
robust
approach is sometimes necessary and a Court should grant the order if
it is satisfied that there is sufficient clarity regarding
the issues
to be resolved for the Court to make the order prayed for. There is
no reason in my view that this matter cannot be
disposed off on the
basis of the authorities cited above. “
19. According
to the applicant and the intermediaries all the customary rituals
were performed and she adopted a cultural name.
Although details are
lacking, those rituals must be inferred to have encompassed the
handing over of the bride, the applicant.
After all they lived as a
married couple and to boot the “guardian/mother”, Ms
Sarah Mqomo, supports her all the way.
20. In
this application no thought was given to the fact that the deceased’s
son, Kgolagano, is an heir to his father’s
estate and that in
matters affecting him, which this case is an example of, his best
interests are paramount. A curator ad litem
should have been
appointed for him. See s 28(2) of the Constitution of the Republic of
South Africa, 108 of 1996. See also Du Toit
and Another v Minister of
Welfare and Population Development and Others (Lesbian and Gay
Equality project as Amicus Curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC) at paras
20-22. I am, however, satisfied that the child’s best
interests, at least as far as this application is concerned,
won’t
be adversely affected.
21. In
Cecilia Thupane and Others v Mary Lechuti and Others Case No.
973/2011, Kimberley, Delivered on 5 August 2011, unreported,
Phatshoane J had this to say:
“
14. The
conclusion reached in numerous decided cases with regard to burial
rites is that in the absence of a will with directions
as to who
should bury the testator the heirs to the deceased estate are
entitled to arrange his/her burial. See Mahala v Nkombomini
and
Another
2006 (5) SA 524
(SE) at 528 para 11; Gabavana And Another v
Mbete and Others
[2000] 3 All SA 561(Tk)
; Saiid v Schatz &
another
1972 (1) SA 491(
T); Human v Human & Others
1975 (2) SA
251
(E); Tseola v Maqutu
1976 (2) SA 418
(Tk); Sekeleni v Sekeleni
And Another
1986 (2) SA 176
(Tks); Mankahla v Matiwane
1989 (2) SA
920
(CkGD).
15. The
following relevant passage appears in the 2003 South African Law
Journal ‘Till Death us do part’: Thembisile
v Thembisile
at 790-791 para 3 by Elsje Bonthuys and Sanele Sibanda:
“
The
South African common-law position regarding the burial of a deceased
person, who has left no specific instructions as to his
burial, is
that the duty of burying him, together with the corresponding rights,
adheres to the heirs. This common-law rule is
derived from a
statement by Voet (Mankahla v Matiwane
1989 (2) SA 920
(Ck) at
922B-F sets out the origin and subsequent application of the rule)
and has been applied to African and non-African families
alike
(Gonsalves And Another v Gonsalves And Another
1985 (3) SA 507
(T)
at 509H-I).
The
common-law position where there are competing claims by the heirs of
the deceased was set out in Tseola And Another v Maqutu
And Another
1976 (2) SA 418 (Tk), which involved a burial dispute between the
deceased’s civil law wife and his mother, both
intestate heirs
under the Interstate Succession Act 81 of 1987, which applied because
of the existence of a civil marriage. The
court accepted that where
the deceased has left no testamentary instructions as to where he
wanted to be buried, the heirs would
bear the duty of burying him as
well as the corresponding right to bury him wherever they wished (at
422G). However, the court,
being compelled to prefer one of the
heirs over the other, opted to recognize the wife as having stronger
right than the deceased’s
mother. The preference for the wife
was based on public policy considerations and on ‘a sense of
what is right’ (424H).
The court in this case, without
explanation, appears to have taken the position that the wife’s
wishes should prevail over
those of the deceased’s
mother.........”
22. On a
conspectus of the evidence and the submissions made.
I make
the following order:
1. The
order of the court a quo dismissing the application is set aside and
substituted with the following order:
“
1.1 That
the First Respondent, Ms Thandiwe Lilian Plaatjies, the mother of the
deceased, Mr Casius Edward Plaatjies, is hereby interdicted
and
prohibited from burying his body (the remains) in Upington, Northern
Cape, or anywhere else.
1.2 The
Second Respondent, the Station Commissioner, South African Police
Service (SAPS), Postmasburg, or whomsoever is in charge
of the
Forensic Department of Health, Northern Cape, where the body of the
deceased, Casius Edward Plaatjies, is kept is hereby
interdicted and
prohibited from releasing the deceased’s body to Ms Lilian
Plaatjies, his mother, or any other person but
are ordered to release
the body to Ms Matlhogonolo Kgosietsile, the widow of the deceased
Casius Edward Plaatjies.
1.3 A
declaratory order is hereby issued that the applicant, Matlhogonolo
Kgosietsile, is declared to be the customary wife of the
deceased,
Casius Edward Plaatjies, and is consequently the rightful person to
arrange and bury the deceased at a place of her choice
and in the
manner that she deems appropriate.
1.4 No
cost order is made against any of the respondents.”
__________________
F DIALE
KGOMO
JUDGE
PRESIDENT
Northern
Cape High Court, Kimberley
I concur.
________________
C J
OLIVIER
JUDGE
Northern
Cape High Court, Kimberley
I concur.
______________
B M
PAKATI
JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For the
Applicant: Adv. D. Khokho
Instructed
by: Mzuzu Attorneys
For the
1st Respondent: Mr D Janse Van Vuuren
Instructed
by: Legal Aid Board
For the
2nd Respondent: No Appearance