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[2009] ZAFSHC 83
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Ramonare v Molly's Funeral Parlour and Another (4277/09) [2009] ZAFSHC 83 (10 September 2009)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. : 4277/09
In the matter between:-
MASESI DOROTHY
RAMONARE
Applicant
and
MOLLY’S FUNERAL
PARLOUR
First Respondent
THATO ANNAH PHAHLAHLA
Second
Respondent
_______________________________________________________
HEARD
ON:
3 SEPTEMBER
2009
_______________________________________________________
JUDGMENT
BY:
LEKALE,
AJ
_______________________________________________________
DELIVERED
ON:
10 SEPTEMBER
2009
_______________________________________________________
INTRODUCTION
AND BACKGROUND:
[1] On 3 September 2009, noting that the dead are not meant to share space with
the living and should, eventually, be allowed to
rest in peace, I issued an
order set out in paragraph [3] below accompanied by brief reasons therefor and
undertook to give full
reasons, if necessary, in due course.
[2] On 4 September 2009 the second respondent applied for the
reasons for the said order in terms of Rule 49(1)(c) of the Uniform
Rules of
Court.
[3] The order in question, which was given on an urgent basis and with a view to
ensuring that the deceased, like an actor who has
just completed a splendid
rendition on stage, takes his bow and exits in a graceful and dignified manner,
was to the effect that:
3.1 the first and/or second respondent and/or any person acting
under their instruction and/or authority is interdicted, prohibited
and/or
restrained from burying the corpse of the late
Phinias Ramonare
Ramonare
;
3.2 the first respondent and/or any other person acting on its
instruction or authority is interdicted, prohibited and/or restrained
from
releasing and/or handing over the corpse of the late
Phinias Ramonare
Ramonare
to the second respondent and/or any other person.
3.3 the first
respondent or any person(s) acting under its instruction or authority is
directed to hand over the corpse of the late
Phinias Ramonare Ramonare
to
the applicant or her nominated funeral undertaker;
3.4 in the event of
non-compliance with paragraph 3.3 above that the Sheriff is authorised and
directed to immediately seize the said
corpse of the late
Phinias Ramonare
Ramonare
and to deliver the same to the applicant or her nominated funeral
undertaker;
3.5 no order as to costs is made.
[4] The aforegoing was preceded by an application made by the surviving spouse
of the late
Phinias Ramonare Ramonare
(the deceased) who was married to
him in community of property.
[5] The application was initially launched by way of a request for a rule
nisi
made on an urgent basis in terms of Rule 6(12) of the Uniform Rules
of Court on 26 August 2009, but its hearing was postponed to
3 September 2009
per agreement between the parties after the second respondent had delivered her
opposing papers. It, therefore,
proceeded before me on the said date as an
opposed application for a final order with no opposing papers from the first
respondent.
[6] No time-frames were agreed upon by the parties with regard to the filing of
further documents when the matter was postponed.
The applicant, thereafter,
delivered her reply to the second respondent’s answering affidavit on 1
September 2009. The aforegoing,
apparently, happened after the second
respondent had already filed her Heads of Argument.
[7] From the papers before me it was clear that the deceased passed away on 19
August 2009 in Bloemfontein following an illness which
saw him first being
admitted at a hospital in the Kingdom of Lesotho and later in Bloemfontein. His
corpse was, thereafter, entrusted
to the first respondent by his brother for
safe keeping.
[8] The second respondent’s relationship to the deceased was akin to a
marriage insofar as she submitted a copy of a document
which,
ex facie
its contents, appears to be a marriage certificate issued in the Kingdom of
Lesotho on 24 August 2006.
[9] The second respondent, further, annexed to her answering affidavit copy of a
document declaring to be a
Last Will and Testament
of the deceased dated
17 March 2008. In terms of the said document, the deceased
qua
the
testator declared that:
5.
“
AANSTELLING VAN
ERFGENAAM:
Ek stel aan as my enigste erfgenaam my vrou, THATO AMMAH PHAHLAHLA
(PERSONNEL NOMMER 221268A038219F) as die enigste erfgenaam van
my boedel, niks
uitgesonderd nie, roerend of onroerend onderhewig aan die voorwaardes hierna
uiteengesit.
6.
ROEREND SOWEL AS ONROERENDE EIENDOM
Die geheel van my boedel welke roerende sowel as onroerende eiendom word
bemaak aan THATO AMMAH PHAHLAHLA met spesifieke verwysing
na my voertuie te
wete:
1. Kombi Toyota 15 sitplek, met registrasie nommer TTC 615 GP 2006
model.
2. E20 Nissan voertuig, met registrasie PPT 925 GP 1987 model.
3. Mercedez Benz, sport model 280 CE met registrasie HZY 977 GP 1982
model.
4. Toyota Conquest-Wit,
met registrasie KLP 613 GP 1991 model.
5. Can Inyathi, 2.2L, 2008
model met registrasie nommer WVX 255GP.
Vaste
eiendom:
geleë te 908 Orlando East, Soweto, Phielastraat 1804, titelakte nommer
13951/1986. Onroerende eiendomme, niks uit gesluit nie
word bemaak aan my vrou
Mev. Thato Ammah Phahlahla, personnel nommer 221268A038219F.
”
[10] Following the death of the deceased the applicant and the second respondent
could not agree on who was entitled to dispose of
the corpse of the deceased by
way of a funeral and where the same was to take place.
SUMMARY OF DEPOSITIONS AND SUBMISSIONS:
[11] In her founding affidavit the applicant relies on her marriage to the
deceased as conferring the right and duty on her to bury
him. In her replying
affidavit she challenges the validity of the Last Will and Testament of the
deceased and, further, relies on
the deceased’s alleged wish to be buried
by her in Soweto, Johannesburg, communicated to his (the deceased) mother. In
this
regard a confirmatory affidavit of the deceased’s mother is
submitted.
[12] On her part, the second respondent relies, in her claim to the corpse of
the deceased, on her alleged marriage to the deceased.
She does not stop there,
she further relies on the deceased’s alleged wish to be buried in Lesotho
as well as her alleged
appointment as the sole heiress to the deceased’s
estate. With regard to the deceased’s alleged burial wish a confirmatory
affidavit of one David Leita Mahloko is submitted.
[13] In the Heads of Argument delivered for the second
respondent and verbal submissions made by her counsel, no further reliance
is
made on the alleged marriage to the deceased and her right to the corpse is,
effectively, based on the fact that she is the sole
heiress of the
deceased’s estate in terms of the Will.
[14] On her part, the applicant, effectively, contends through her
representative in the Heads of Argument as well as verbal submissions
that:
there is a real dispute on the aspect relating to the deceased’s wish
and/or preference;
if it is found that the alleged Testament is indeed the deceased’s last
Will, then and only in that event, the deceased died
partly testate and partly
intestate insofar as he disposed only of some of his property in terms of the
said Last Will and Testament;
the applicant, as his surviving spouse, is, thus, also an intestate heiress and
has a word in when, how and where to bury the deceased;
in the light of the aforegoing reasonableness and fairness, and not heirship,
should be the decisive factor in accordance with the
robust approach adopted by
the courts in such
circumstances.
ISSUES IN
DISPUTE:
[15] When all was said and done, I was satisfied that the determination of the
application herein depended on the answer to the question
as to who is the heir
or heiress to the estate of the deceased. The law, in this regard, is clear
that the heir of the deceased
shall be the person who decides on the
arrangements surrounding the burial of the body in the absence of an explicit
indication,
as to who shall be responsible for the burial arrangements, in the
Will. (See in this regard
MAHALA v NKOMBOMBINI AND ANOTHER
2006
(5) SA 524
(SE) at p. 529 I.)
[16] In turn the question of heirship to the estate of the deceased depends on
the proper construction of the Last Will and Testament
attributed to the
deceased.
[17] The gravamens of the parties’ arguments in court revolved around
whether or not the second respondent, as the testamentary
heiress, was the sole
heiress of the whole of the deceased’s estate in terms of the Will.
[18] A finding that the second respondent is the sole heiress of
the whole estate of the deceased would bring the matter to an end
because, in
law, she would be entitled to decide the issue exclusively.
[19] A finding that the second respondent is not the sole heiress, will lead to
the next inquiry into whether or not reasonableness
and fairness are in favour
of the granting of the application. (See generally
TROLLIP v DU PLESSIS
EN ‘N ANDER
2002 (2) SA 242
(W) and
MAHALA v NKOMBOMBINI AND
ANOTHER
,
supra
.)
INTERPRETATION OF THE WILL:
[20]
Ante omnia
I must hasten to point out that the Will is silent on the
deceased’s wishes with regard to burial and, as such, heirship is
the
determinative factor in that regard.
[21] The golden rule in interpretation of testaments:
“
... is to ascertain the wishes of the testator from the language
used. And when those words are ascertained, the court is bound to
give effect
to them unless we are prevented by some rule or law from doing
so.
”
(Per Innes ACJ in
ROBERTSON v ROBERTSON’S EXECUTORS
1914 AD
503
at 507.)
[22] The testator’s intention is determined by having
regard to the actual words used by the testator and the courts’
purpose
is, thus, to ascertain the meaning of the words in which the testator’s
intention is couched and not what the testator
actually intended.
“
The Court is entitled to put itself in the position of the testator
at the time of the making of the will in order to ascertain what
the testator
intended by the use of particular forms of words... the question is not what any
words might mean apart from the testator's
intention but what the testator meant
by using them. That does not mean of course that effect can be given to an
intention or possible
intention on the part of the testator which has not been
embodied in words employed by him in his will.
”
(Per Faure Williamson J in
LEIMAN v OSTROFF AND OTHERS
1954 (4) SA
457
(W) at p. 461 D – F.)
[23] In the exercise of ascertaining the testator’s intention the
will
“
... should be construed as an ordinary man would construe it, looking
for its meaning rather in the actual words and sentences contained
therein than
in what was said or done by judges dealing with other wills.
”
(Per Van Zyl J in
LATEGAN v THE MASTER
1931 CPD 193
at p.
195.)
[24] Common words must be given the normal everyday meaning that they would have
had in the society in which the testator was living
at the time when he executed
his will unless the contrary intention appears from the will. Technical or
scientific words are to
be interpreted according to the generally understood
technical or scientific meaning.
“
... notwithstanding the allegations in the affidavits regarding what
the testator intended to do, the Court must give effect to his
expressed
intentions as set out in the will. In this regard I would refer to the second of
Wigram's
propositions, set out by
Phipson
, 8th ed. at p. 618,
viz
:
'Where there is nothing in the context of a will from which it is apparent
that a testator has used the words in which he has expressed
himself in any
other than their strict and primary sense, and where his words so interpreted
are sensible with reference to extrinsic
circumstances, it is an inflexible rule
of construction that the words of the will shall be interpreted in their strict
and primary
sense, and in no other, although they may be capable of some popular
or secondary interpretation, and although the most conclusive
evidence of
intention to use them in such popular or secondary sense be tendered.'
In the instant case the words of the will are, for the reasons I have given,
'sensible with reference to extrinsic circumstances'
within the meaning of
Wigram's
proposition. They must therefore be interpreted in their strict
and primary sense. In the words - not inapposite to the present case
- of
BLACKBURN, J. in
Allgood v Blake
,
supra
at p.
163:
'The Court is to construe the will as
made by the testator, not to make a will for him; and therefore it is bound to
execute his expressed
intention, even if there is great reason to believe that
he has, by blunder, expressed what he did not mean.
'”
(Per Ogilvie Thompson J in
EX PARTE FROY: IN RE ESTATE BRODIE
1954
(2) SA 366
(C) at 375 D - G.)
[25] The full effect is to be accorded to the dominant clause in terms of which
the testator bequeaths a legacy or names the heir
and its effect. Such a
clause
“
should not be modified nor its meaning strained because there are
other clauses in the will which apparently require this to be done,
unless it is
quite clear from those other clauses that the testator so
intended.
”
(Per Watermeyer J in
IN RE: ESTATE VAN AARDT
1925 CPD 250
at
255.)
[26] There is a presumption in favour of testacy and against partial intestacy
to the effect that, except for those instances where
it is clearly apparent from
the language of the will that the testator has not dealt with dispositions
relating to his whole estate,
whether expressly or by implication, the court
will presume that the testator had the intention of disposing of his entire
estate.
See
BRUNSDON’S ESTATE v BRUNSDON’S ESTATE
1920 CPD 159
at 169 and
AUBREY-SMITH v HOFMEYR, NO
1973 (1) SA 655
(C) at 664 E – F.)
[27] In the present matter the deceased,
qua
the testator, expressed
himself unequivocally and there exists, in my view, no cause to depart from the
primary sense in which he
used the words. In clause 5 of the Will he
emphatically appoints the second respondent as his sole heiress to be the sole
heiress
of his estate, nothing excluded, movable and immovable subject to the
conditions set out in clause 6 thereof.
[28] In clause 6 the
testator reiterates that the whole of his estate, movable and immovable, is
bequeathed to the second respondent
whose full names are once again repeated.
The testator, thereafter, proceeds to qualify the appointment by limiting his
generosity
to items specified in that clause insofar as he uses the words
“
met spesifieke verwysing na.
”
[29] In my view, by making the appointment of the second respondent
“
onderhewig aan die voorwaardes hierna uiteengesit”
the
deceased clearly intended to subject the appointment to the said conditions. He
actually gives the second respondent full and
exclusive ownership, as the sole
heiress in respect thereof, of the movable and immovable property set out in
clause 6 only.
[30] If the deceased intended to highlight, certain items of which he was not
certain that the second respondent was aware, as forming
part of his estate, as
contended by Mr. Reinders for the second respondent, one would have reasonably
expected the testator to have
used words such as “
in
particular
” or “
particularly
” or
“
including
” and not “
with specific reference
to
”. In such an event the deceased would, most probably, not have
made the appointment conditional on what is contained in clause
6. Such a
provision, in my view, would simply have been superfluous at the best and
inconsistent with the appointment as a universal
heiress at the worst.
[31] A reading of the will as a whole indicates that the deceased intended to
use the words in their strict and primary sense and
that they are sensible with
reference to extrinsic circumstances contained in the affidavits filed by the
parties. In this regard
it should be noted that it is not disputed by the
second respondent that the deceased had a daughter with the applicant. It was,
further, clear during the hearing that the parties were, effectively, in
agreement that the items set out in clause 6 of the Will
are not the only items
in the joint estate. The presumption of testacy was, thus, in my view rebutted
insofar as there also exists
a presumption against disinherison operating in
favour of the deceased’s daughter.
[32] It is clear, in my judgment, that the deceased died partly testate and
party intestate because he so intended in his Will.
He, effectively, made
specific bequests in favour of the second respondent leaving the residue of his
estate to devolve
ab
intestato
. In this regard, it is important
to note further that the requirement for the dominant clause not to be unduly
modified or for its
meaning not to be strained without clear cause therefor, was
clearly not in favour of the interpretation contended for on behalf
of the
second respondent insofar as it is clear, in my view, that clause 6 was intended
to limit the operation and effect of clause
5.
[33] The applicant, as the surviving spouse, is, therefore, one of the intestate
heirs in terms of the law on intestate succession.
(
Act No. 81 of 1987 which
applies to intestate estates of persons who die intestate, either wholly or in
part, after the commencement
of the Act,
viz
18 March 1988.
)
THE RIGHT TO BURY THE DECEASED:
[34] It follows
from the aforegoing that both the applicant and the second respondent, as well
as the deceased’s biological
daughter, are the heiresses to the estate.
The applicant and her daughter by virtue of the operation of the law on
intestate succession
while the second respondent by virtue of the
testator’s Will.
[35] The deceased’s daughter does not feature in this proceedings save for
the fact that her name is mentioned and reference
is made to her in the
applicant’s depositions.
[36] As pointed out and conceded by Mr. Majola, for the applicant, there exists
a dispute of fact which cannot be resolved on papers
with regard to the wishes
of the deceased. Mr. Reinders effectively and eloquently submitted that, that
issue should, in line with
the rule in
PLASCON-EVANS PAINTS LTD v VAN
RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A), be resolved in favour of
the second respondent because the applicant bears the onus of proof and, where
she chooses not to refer
the matter for oral evidence, she should live with the
consequences.
[37] On behalf of the applicant, Mr. Majola effectively invited the court to
adopt the robust approach enunciated in
TROLLIP v DU PLESSIS EN ‘N
ANDER
,
supra
, and followed in
MAHALA v NKOMBOMBINI AND
ANOTHER
,
supra
.
[38] According to the said approach the rule in
PLASCON-EVANS PAINTS LTD v
VAN RIEBEECK PAINTS (PTY) LTD
is possibly not entirely satisfactory for
urgent matters such as applications concerning the right to dispose of bodies of
deceased
persons.
“
... 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.
”
(Per A R Erasmus J in
MAHALA v NKOMBOMBINI AND ANOTHER
,
supra
, at 528 B.)
[39] I was satisfied that the issues involved are clear insofar as the
determination of the dispute revolves mainly around the interpretation
to be
attached to the relevant clause of the deceased’s Last Will and Testament
as well as the requirements of fairness as
the case was in
TROLLIP v DU
PLESSIS EN ‘N ANDER
and
MAHALA v NKOMBOMBINI AND
ANOTHER
,
supra
.
[40] It was, thus, in my view possible to resolve the dispute without the need
to hear oral evidence. In this regard it should be
noted that the relevant
conflicting assertions related to the alleged burial wishes attributed to the
deceased. On her part, the
second respondent and a deponent on her side made
bold averments to the effect that the deceased intimated, in their presence,
that
he wished to be buried in Lesotho. On the other hand, the deceased’s
mother deposed that the deceased expressed the wish to
be buried in Soweto and
from his matrimonial home. The second respondent, indeed, as contended by Mr.
Reinders, did not get an opportunity
to traverse these assertions by the
deceased’s mother because they were contained in the applicant’s
replying papers.
Although Mr. Reinders argued that an adverse inference be
drawn against the applicant for failing to disclose these assertions in
her
founding papers, in my view, fairness demands that recognition be taken of the
fact that when the applicant launched the application
that issue was, most
probably, not part of the equation in her mind and probably came to light, as
she deposes in her replying affidavit,
when she consulted with the
deceased’s mother after becoming privy to the second respondent’s
answer to the application.
[41] ”
Problems arise, however, where - as in the present matter - there
is a multiplicity of heirs. In such circumstances, there should
be no
hard-and-fast rules. Each case is to be decided on its own particular
circumstances... The Court shall have regard to the
family relationships of the
deceased, as well as all other relevant
circumstances.
”
(Per A R Erasmus J in
MAHALA v NKOMBOMBINI AND ANOTHER
,
supra
, at p. 529 J – 530 A.)
[42] In the present matter there are conflicting claims to the body of the
deceased by two women who had some intimate relationships
with the deceased
during his lifetime. The applicant, who was married to him and has a child with
him, on the one hand and the second
respondent, who appears to have had a
special place in the deceased’s heart and, apparently, entered into a
putative marriage
with him in Lesotho, on the other hand. Both are heiresses to
the estate of the deceased. The circumstances of this matter are,
in my view,
such that customary law, to the extent that it is not in conflict with the South
African Law of Succession, is applicable
and has to be recognised where
relevant. The aforegoing prevails because the parties referred, either
expressly or by implication,
to African culture and customs in their papers.
[43] The deceased had roots and was born into an African family which has
culture and customs. In true African tradition and custom,
his immediate and
extended families have a word in matters concerning his burial, although their
views may not be decisive and are
secondary to those of the heirs. In the
generalised system that African Customary Law is, the inputs of the members of
the deceased’s
clan cannot be simply ignored and count for something in
the order of things. The aforegoing prevails because African law and traditions
are mainly about the collective and not the individual. Customary Law is
recognised in terms of
section 2
of the
Law of Evidence Amendment Act, No. 45 of
1988
and section 211(3) of the Constitution of South Africa, on its part,
obliges the courts to apply customary law where applicable.
Although the
views and preferences of the deceased’s daughter are not before me, I am
satisfied that it can safely be accepted
that, by reason of the filial
relationship which she bears to the applicant, she is on the side of the
applicant.
[47] The deceased’s whole immediate family is on the applicant’s
side while the second respondent, on her part, is a
lone voice and cuts a lonely
figure which flies solo in her chartered plane.
[48] On the papers before me, it appears to be undisputed that the applicant had
already taken steps and incurred some costs in trying
to take the body of the
deceased back to Soweto as at the date of launching the application herein.
[49] In my view, the applicant represents the wishes of the deceased’s
immediate family or clan which, in true African custom,
is regarded as the
rightful custodian of his remains in the normal course of events. No matter how
little regard for or association
with his clan and/or family a deceased African
person may have had in his lifetime, even where he may have abandoned his family
and
its values, in an appropriate case where there is no-one to claim his body
after his death, only his family, in the practical African
tradition, bears the
duty to claim and pick up his bones, as its own, and to ensure their safe
passage to the Higher Place from whence
they came.
[50] Recognising the applicant’s right and duty, in African custom, to
bury the body of the deceased would, in my considered
view, accord with the
general views of his immediate family and the African tradition which requires
the deceased’s family
to ensure his safe and dignified return to his
ancestors. In African tradition and belief only the deceased’s family
links
him, like an umbilical cord, to his ancestors.
ORDER:
[51] I, therefore, granted the orders in terms of the Notice of Motion as set
out in paragraph [3] above.
[52] With regard to costs I felt that it was necessary and fair to recognise the
emotional relationship which the second respondent
had with the deceased as well
as the fact that she, as the
prima facie
testamentary heiress, would
reasonably and generally have expected to have exclusive burial rights over his
body. She was, thus,
in my view, entitled, to some extent, to put up a
fight.
[53] I, thus, made no order as to payment of costs with the
result that each party remains liable for its own costs.
______________
L.J. LEKALE, AJ
On behalf of applicant: Mr. N.N.
Majola
Instructed by:
Majola Attorneys
131 St Andrews
Street
BLOEMFONTEIN
On behalf of second respondent: Adv. S.J. Reinders
Instructed by:
Giorgi & Gerber Attorneys
72 St
Andrew Street
BLOEMFONTEIN
/sp