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[2013] ZAECBHC 7
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C.P.M/K v M.N and Another (389/13) [2013] ZAECBHC 7 (12 July 2013)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE HIGH COURT BHISHO
Case
No: 389/13
Date
heard: 11 July 2013
Judgment
Delivered: 12 July 2013
In
the matter between:
C[…]
P[…] M[…]/K[…]
Applicant
and
M[…]
N[…]
1
st
Respondent
AVBOB FUNERAL
PALOUR
2
nd
Respondent
JUDGMENT
DUKADA
J:
[1]
When a person passes on, it is usually expected that he would be
respectfully buried and laid
to rest within a reasonable time.
That sometimes does not happen when conflicting claims crop up in
respect of the right
to arrange the burial, when and where to burry
the deceased. Such claims have regrettably come before
the Courts of
this country a number of times for resolution.
[1]
[2]
In the present case the applicant launched an urgent application
seeking the following orders:-
1.1 That the
first respondent be interdicted and restrained from removing the
corpse of M[...] N[...] (the
deceased) from the possession or
premises of the second respondent:-
1.2 That the
second respondent be interdicted and retrained from releasing
the corpse of the deceased
to the first respondent and/or any person
acting under his instruction or any person not authorized by a valid
Court order,
1.3 In the
event of the corpse of the deceased having already been handed over
to the first respondent by
the second respondent and/or any person
under their instruction
1.1.1 The
sheriff of this Court be authorized to immediately seize the corpse
of the deceased herein and
hand over possession thereof to the
applicant.
1.1.2 The
first and second respondents and/or any person acting under their
instruction be interdicted and
restrained from buring the corpse of
the deceased and be ordered to hand over possession of the corpse of
the deceased to the applicant
or the sheriff of this Court;
1.4 The
applicant be allowed to take possession of the corpse of the deceased
from anyone of the respondents
and/or anyone acting on their
instructions and/or the sheriff of this Court.
1.4 The
applicant be entitled to bury the corpse of the deceased on any
suitable date and venue,
1.5 The sheriff
of this Court be authorized to seize from the possession of the first
and second respondents
all the goods, property and documents,
including marriage certificate, the identity document of the deceased
which were unlawfully
taken by the first and second respondents from
the applicant’s matrimonial home and hand over same to the
applicant.
1.7 That the
first respondent pays costs of this application on a punitive scale.
APPLICANT’S
CASE
[2]
The facts relevant to the issue are as follows:-
Applicant states that she was married
under customary law to the deceased on the 5 April 2012 at Cildara
Administrative Area, Debe
Nek, Middledrift and it subsisted until the
death of the deceased on the 22 June 2013. Some marital rituals
were performed
in respect of their marriage at the deceased
biological home at Cildara and thereafter the deceased went to stay
with her at Rhabe
since 2004 until his death on 22 June 2013.
She annexed to her founding affidavit a copy of the minutes of a
meeting at the
offices of the Master of the High Court and also a
computer print- out from South African Police Services. (I will deal
with these
documents later in this judgment).
Applicant further states that the
deceased parted ways with the N[…]i family as he was
discriminated against by the first
respondent because he was fathered
outside the family.
The document annexed to applicant’s
founding affidavit has a heading. “
Minutes of a family
meeting re-customary marriage.”
On the
side of the deceased family the persons who were in attendance are
Abongile Matshikwe and Thandeka Eunice Mdayi, and on the
side of the
applicant were Mongameli Defender Dlabati and Phumele Majongo.
The minute records a decision about
payment of lobola and an agreement that a customary marriage exists
between the deceased and
the applicant, and is signed by the
facilitator, the Note keeper, the applicant and the afore-mentioned
persons. The document
does not reflect that any formal enquiry
was conducted into the existence of the customary union between the
applicant and the
deceased. But even if a formal enquiry was
conducted, this Court would not be bound per se by its decision.
In my view,
the said minute gives no weight to the issue in this
matter.
The other document is the SAPS
computer print-out. This document reflects the applicant as the
next of kin of the deceased
and her relationship to the deceased as
“
Verloofde Vroulik”
.
The word “
verloofde”
is defined in Pharos Afrikaans Engels Woordeboeke as meaning
“
engaged”
, “
affianced”, “to
be engaged to be married
”. Following the primary rule of
interpretation, in my view, this document reflects the applicant as
engaged to the deceased.
I found no basis for her averments
that this document confirms her to have been married to the deceased.
The thrust of her claim to be a
customary law wife of the deceased in her founding affidavit lingers
on the two afore-mentioned
documents. (I will deal further with
this aspect later in this judgment.) The other dimension on
this point is that
the applicant only mentions the words “
vroulike”
in her affidavits when
describing her status as reflected on the said computer print-out.
She omits the word “
verloofde
”.
It is trite law that in applications of this nature an applicant is
obliged to be in good faith and to disclose all
material relevant
facts.
[2]
In her replying affidavit applicant states that the deceased had
disassociated himself with the family of the first
respondent and she
annexed confirmatory affidavits from Zamekile Michael Notshe and
Marshall Gcinuhlanga Lusithi who state that
they were present when
the deceased was welcomed into the K[…] family (the family of
his biological father).
Mr Lusithi further states that the
deceased is the son of his father’s brother with whom he shased
the same clan-name “
Dlamini”
and that he is the
eldest in the family who administers and heads all the cultural
rituals of the K[…] family. He
welcomed the deceased
into the K[…] family and that he also personally conducted the
customary union rituals namely “
utsiki”
and
“
ukutyisa amasi
”. He further states that the
applicant was given a customary union name “L
ikhaka
”
by Thandeka Mdayi, deceased’s sister.
FIRST
RESPONDENT’S CASE
[3]
First respondent states that the deceased was conceived by their
mother out of wedlock after his
father had passed away, but he grew
up in his home as his brother using the same clan-name and surname.
There was never any
discrimination of the deceased in his home.
He further states that the deceased divorced his wife N[…]
G[…]
N[…] with whom he got two children, S[…]
and A[…]. He further states that none from the K[…]
family ever came up claiming the deceased. He denied that any
“
ukugoduswa”
ritual was ever performed in respect
of the deceased.
He denies that the deceased was ever
married by customary union to the applicant.
DISPUTE
OF FACTS
[4]
The dispute of relevant facts in this matter may be summarized as
follows:-
It is denied that:-
(i) The
deceased was married by customary union to the applicant at the time
of his death.
(ii) The
deceased was not a member of the family of the first respondent at
the time of his death but of
the K[…] family.
[5]
The above-mentioned dispute of facts seems to be fundamental to the
resolution of this matter.
The Court has to decide this matter
on affidavits. The rule in
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Proprietary) Limited
[3]
comes into play. That rule has it that where, in proceedings on
notice of motion, disputes of fact have arisen on the affidavits,
a
final order will 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.
This matter is of such an urgent
nature that it needs as speedy resolution. To refer it to oral
evidence or trial would, in
my view, not be fair and just in the
circumstances of this case.
The deceased passed away on the
22 June 2013 and today the 12 July 2013 it is his 20
th
day
he lying cold in the mortuary of the second respondent. He
could not be buried and laid to rest up to now as a result
this
dispute in respect of his burial between the applicant and the first
respondent which has to be resolved by the order of this
Court.
I, therefore prefer to adopt the
approach pointed out in Trollip v Du Plessis en ‘n Ander
[4]
which is more robust as such 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
[5]
or to refuse the order prayed for if the contrary prevails.
ISSUES
[6]
The real issue in this matter is whether the applicant has a right to
arrange the burial of the
deceased. Such a right depends on
whether the applicant was married by customary union to the deceased
at the time of his
death. The latter aspect is an issue in a
dispute for its resolution will result in the resolution of the real
issue.
THE
AUTHOROTIES ON THE ISSUES BEFORE THIS COURT
[7]
Locke J in Gabavana and Another v Mbete and Others
[6]
collected together a number of relevant authorities. These
decisions state the principle that in the absence of some special
direction in the Will, it is the heir of the deceased estate who
shall be the person who decides on the arrangements relating to
the
burial of the deceased body.
[7]
Heath
J usefully summarized the principles involved as follows.
(a) If someone is appointed in a
Will by the deceased, then that person is entitled and obliged to
attend to his burial and
that person is entitled to give effect to
his wishes.
(b) The deceased person can
appoint somebody to attend to his burial in his Will or in any other
document or verbally, formally
or informally, and in all these
instances effect should be given thereto in so far as it is otherwise
legally possible and permissible.
(c) A deceased can, in the
third instance, die intestate, but can appoint someone to attend to
his burial in a document
or verbally.
(d) In the absence of a
testamentary direction, the duty of and the corresponding right to
see to the burial of the deceased
is that of the heirs. The
heirs appointed as heirs in the Will of a deceased.
(e) The afore-mentioned
principle that heirs (appointed as heirs), in the absence of any
provision in the Will as to the burial
of the deceased are entitled
and obliged to attend to the burial of the deceased applies in my
view similarly and equally to intestate
heirs of a deceased.
That would mean that, in the absence of any indication by a deceased
as to his burial arrangements,
the intestate heirs would be in the
same position as testate heirs. I can see no reason why the
position should be different
in the case of intestate heirs.
(f) It also follows
that persons obliged and entitled to see to the burial arrangements
are entitled to arrange
where and when the deceased is to be buried.
[8]
Turning to the present case, the applicant in his founding affidavit
relies on the minute of the
meeting in the office of the Master of
the High Court and the computer print-out from the SAPS, (I have
already commented on these
documents). It is trite law that an
applicant must make out her case in the founding affidavit.
Diemount J put this
point aptly as follows in
Director
of Hospital Services v Mistry.
[8]
:-
“
When as in this case,
the proceedings are launched by way of a notice of motion, it is to
the founding affidavit which a Judge will
look to determine what the
complaint is. As was pointed out by Krause J in Pountas
Trustees v Lahanas
1924 WLD 67
at 68 and as has been said in many
other cases: ‘…………an applicant must
stand or fall by his petition
and the facts alleged therein and that,
although sometimes it is permissible to supplement the allegations
contained in the petition,
still the main foundation of the
application is the allegation of facts stated therein because those
are the facts which the respondent
is called upon either to affirm or
deny.’ ’’
It lies, of course in the
discretion of the Court in each particular case to decide whether the
applicant’s founding affidavit
contains sufficient allegations
for the establishment of his case.
[9]
In the present case, the
applicant, in my view, has not succeeded in establishing that she was
married by customary union to the
deceased at the time of his death.
In case I am wrong in this
conclusion I have considered also the contents of the replying
affidavits. Applicant
attempts to establish that
she was lobolaed by the deceased, taken into customary union and
customary union rituals performed in
respect of her. She gets
corroboration from the comfirmatory affidavits by Zamekile Michael
Notshe and Marshall Gcinuhlanga Lusithi.
Both men are not
members of the K[…] family. There is no explanation
whether, at the time the lobola negotiations
were conducted, lobola
paid and marriage rituals in terms of customary law performed, there
were any brothers to the husband of
the mother of the deceased alive
or not. In fact no information is furnished to this Court as to
the male family members
of that family. In paragraph 5
(iv) and 5 (xiii) of the applicant’s replying affidavit she
stated that the deceased
was born out of an “
ukungena
”
custom which she describes as “
a practice which is performed
after the death of the husband of the surviving female spouse
”
NJJ Olivier et al in their book
with the title “
Indegenous Law
” comment as follows
on “
ukungena”
custom “
the traditional
position is that when the husband dies the marriage agreement between
the two family groups continues to exist.
The widow is
expected to stay in the family group of the deceased husband and to
be available for the procreation of children on
behalf of the
deceased.
” These eminent writers go on to
summarize the main principles underlying the “
ukungena
”
custom. One of these principles is that “
normally the
ukungena partner is a close relative of the deceased
.”
In the present case the man who
fathered the deceased has not been shown to be a close relative of
the deceased. In the circumstances
I am of the view that the
deceased was not born out of an “
ukungena”
union.
It appears to me that in the
present case the deceased was just a child of a widow, a child born
by a married woman from another
man after the death of her husband.
NJJ Olivier et al, op cit, at page 156 paragraph 146 (c) remark that
the general
principle in customary law is that the death of the
family head does not terminate the marriage relationship between the
widow
and her husband’s family.
Children from the widow are
regarded as legitimate children of the deceased.
Turning to this case, the deceased was
born in the home of his mother’s late husband, and used his
surname up to his death.
There is no information in the
papers that the deceased was ever disinherited by the N[…]
family.
In customary law a family head
may disinherit his son and exclude him from the right of succession
by following two procedures which
essentially include calling a
meeting where the family head would publicly disinherit his son.
[10]
In my view, the deceased could
have been a member of the family of his biological father only if he
was disinherited in terms of
the customary law and that absent, he
died still a member of the N[…] family. Consequently, in
my view, any rituals
performed by K[…] family had no legal
consequences in African customary law. So is the position in
respect of the
alleged marriage rituals in respect of the applicant.
The other dimension in this
matter is that two children of the deceased, who have shown up and
also being the intestate heirs of
the deceased, are deponents to
confirmatory affidavits to first respondent’s answering
affidavit. These children
also use the surname of the
first respondent. They seem to me, as such, to be on the side
of the first respondent in this
matter. Even taking into
account the practical considerations and the family relationships of
the deceased, in my view, the
pendulum of fairness and justice in the
circumstances of this case swings against the applicant.
Adv R.M. Mantantana, Counsel for
the applicant, has argued stremuously the case for the applicant in
line with her allegations in
her affidavits, but I am more inclined
to agree with Adv Maseti, Counsel for the first respondent, that the
applicant has failed
to establish that she was married by customary
union to the deceased at the time of his death. To put it
in other words,
she has failed to prove the issue in this dispute,
and so it is in respect of the real issue. That is my
finding.
[9]
In the circumstances I conclude that the applicant has failed to
establish that she has a right
to arrange the burial of the deceased
and that by virtue of that right she would have been entitled to the
orders sought in this
matter.
[10]
In the circumstances this application must fail.
[11]
As far as the costs are concerned it is clear to me that the
circumstances which led to the present application
were to a large
extent brought about by the deceased. After divorcing his
wife N[…] G[…] N[…],
he later proceeded again
with a relationship with her while having another relationship with
the applicant.
It appears from the documents
annexed to applicant’s founding affidavit that the deceased was
a Warrant Officer in the South
African Police Services at the time of
his death and, in my view, he was in a position to formally marry the
applicant, if he so
wished, even by civil marriage for that matter
for he had already divorced his wife. Instead he left the
applicant with a
status described as “
verloofde vroulik
”
in the records of his employer.
In the circumstances I am of the
view that a costs order which would be fair and just is one which
obliges neither party to pay
the costs of this application but that
they be borne by the deceased estate.
[12]
In the result the following order shall issue:-
(i) The
application is dismissed;
(ii) It is
ordered that costs of this application be borne by the estate of the
deceased the late M[...]
N[...].
D.Z.
DUKADA
JUDGE
OF THE HIGH COURT
Appearances
For the applicant:
Adv Mantantana
Instructed by
Ntwendala
Attorneys
KING WILLIAM’S
TOWN
For the 1
st
Respondent:
Adv Maseti
Instructed by
Msesiwe Vapi Inc
EAST LONDON
[1]
See
Human v Human 1975(2) SA 251 (E); Tseola and Another v Maqutu and
Another 1976(2) SA 418 (TK);Khumalo and Others v Khumalo
and Another
1984 (2) SA 229
(D); Sekeleni v Sekeleni and Another
1986 (2) SA 176
(TK) at 178; Gabavana and Another v Mbete and Others [2000]3 ALL SA
554 (TK) at 571 e-572g; and Sokoni and another v Sokoni and
Another
[2008] JOL 22085 (ck)
[2]
See Rosenberg v Mbanga & Others
1992 (4) SA 331
(E) at 336 H;
Cubitt v Stannic
[2000] 3 ALL SA 16
(E) at 18 f-g; Philiphs and
Others v National Director of Public Prosecution
2003 (6) SA 447
(SCA); Hassan vs Berrange NO 2012 (6) 329 (SCA) at 335 G-H.
[3]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634 H
[4]
2002 (2) SA 242
(W) at 245 D-F
[5]
This approach was endorsed by A.B Erasmus J in Mahala v Nkombombini
and Another
2006 (5) SA 524
(SECLD) at 528 B-C
[6]
Referred to in Note 1 above
[7]
See also cases in Note 1 above
[8]
1979 (1) SA 626
(A) at 635 H-636A
[9]
See also Titty ‘s Bar and Bottle Store (Pty) Ltd v ABC Garage
(Pty) Ltd
1974 (4) SA 362
(7) at 369 A; Sheperd v Mitchell Cotts
Seafreight (SA) (Pty) Ltd
1984 (3) SA 202
(C) at 205 E; and Bowman
NO v De Souza Poldeo 1988 (4)
[10]
See NJJ Olivier et al, op cit, para 147