Yona v Rakotsoane (1177/2004) [2004] ZAFSHC 84 (5 August 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2004
>>
[2004] ZAFSHC 84
|

|

Yona v Rakotsoane (1177/2004) [2004] ZAFSHC 84 (5 August 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 1177/2004
In the
matter between:
MATTHEWS
THABO YONA
Applicant
a nd
ZANYIWE
THELMA RAKOTSOANE
First Respondent
THABISO
RAKOTSOANE
Second Respondent
THEMBALETHU
FUNERAL PARLOUR
Third Respondent
_____________________________________________________________________
CORAM:
RAMPAI,
J
_____________________________________________________________________
HEARD
ON:
6 MAY 2004
_____________________________________________________________________
DELIVERED
ON:
5 AUGUSTUS 2004
_____________________________________________________________________
[1] The matter first came by way of an urgent
application on Thursday, 22 April 2004, before Van der Merwe, J. He
granted the rule
nisi
returnable on Thursday, 29 April 2004.
On the return date the rule
nisi
was extended until Thursday 6
May 2004. On that day I heard argument for the confirmation and for
the discharge of the rule
nisi
. Having heard argument I
discharged the rule
nisi
but gave no reasons. These then are
my reasons for the order I gave.
[2] This case is about the burial of a deceased person.
The deceased, Nthabiseng Joyce Yona ex-Rakotsoane, was born at
Philippolis
on 23 October 1975. The applicant is the deceased’s
widower. He and Nthabiseng were married to each other in community
of property
in Bloemfontein on 2 December 1999. She was a housewife.
He was a prison warder. Three dependent minor children were born of
the
couple’s marriage, namely D., a girl born on [day/month] 1994,
N., a girl born on [day/month] 2000, and L., a girl born on
[day/month]
2001. Nthabiseng took ill in December 2003. On 12
February 2004 she was admitted to the Medi-Clinic in Bloemfontein
where she was
diagnosed with cancer of the liver. She was
hospitalised there until 21 February 2004. On that day it seems she
was transferred
to Willow Med-Clinic also in Bloemfontein where she
died on Tuesday, 13 April 2004.
[3] The first respondent is the mother to the deceased
Nthabiseng whereas the second respondent is her brother. The first
respondent
is a pensioner. She lives at Philippolis. Her husband
predeceased Nthabiseng. The second respondent is a teacher. He
lives in
Bloemfontein. Subsequent to Nthabiseng’s death these two
respondents removed her corpse from Avbob Funeral Undertaker in
Bloemfontein.
The corpse was then delivered to the third respondent,
Thembalethu Funeral Parlour at Philippolis. The funeral arrangements
were
made by the respondents to lay Nthabiseng to rest at Philippolis
on Satursday, 24 April 2004. The applicant, on the other hand,
was
also planning to bury his deceased wife on the same day but in
Bloemfontein and not Philippolis. It was that conflict which
led to
the launching of these proceedings.
[4] There are two crucial questions the court is called
upon to determine in these urgent proceedings. The first issue to be
determined
is the final place of rest for the deceased. The second
issue to be determined is the person whose privilege it must be to
bury
the deceased.
[5] Mr Daffue, counsel for the applicant, on the one
hand, submitted that the applicant had made out a proper case for the
relief
he sought which, positively stated, is that he be granted an
order authorising him to bury the deceased here in Bloemfontein. He
urged me to confirm the rule
nisi
. He then referred me to the
following authorities in support of the various submissions he made:
Section
1(1)(c)(i) Intestate Succession Act No. 81/1987;
Boberg:
The Law of Persons and Family
1977 at p.23;
SAIID
v SCHATZ
1972 (1) SA 491
)TPD) at 494E;
HUMAN
v HUMAN
1975 (2) SA 251
(ECD)
;
GONSALVES & ANOTHER v GONSALVES & ANOTHER
1985 (3) SA 507
TPD
;
MBANJWA v MONA
1977 (4) SA 403
(Tk);
SEKELENI
v SEKELENI & ANOTHER
1986 (2) SA 176
(Tk);
TSEOLA & ANOTHER v MAQUTU & ANOTHER
1976 (2) SA 418
(Tk);
MANKAHLA v MATIWANE
1989 (2) SA 920
(Ck);
MNYAMA v GXALABA & ANOTHER
1990 (1) SA 650
(CPD)
MABULU
v THYS & ANOTHER
1993 (4) SA 701
(SEC) at 703B;
Schäffer Family Law Service:
Succession
p.57;
De
Wall
et al
:
Law of Succession
p.11-14.
[6] Mr Snellenburg, counsel for the respondents, on the
other hand, submitted that the applicant had failed to make out a
case for
the final relief sought. He urged me to discharge the rule
nisi
so as to allow the first and second respondents to bury
the deceased. He too referred me to the following authorities in
support
of the various submissions he made:
CAPE TEX ENGINEERING WORKS (PTY) LTD v SAB LINES
(PTY) LTD
1968 (2) SA 528
(C) at 529 – 530;
STELLENBOSCH
FARMERS’ WINERY LTD v STELLENVALE WINERY (PTY) LTD
1957 (4) SA
234
CPD at 235D-G;
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
AD at
634E-635C;
TRIOMF
KUNSMIS (EDMS) BPK v AE&CI BPK EN ANDERE
1984 (2) SA 255
(WLD) at 269C-G;
BAYAT
& OTHERS v HANSA & ANOTHER
1955 (3) SA 547
(NPD) at
553C-E;
DIE
MEESTER v JOUBERT EN ANDERE
1981 (4) SA 211
AD at 226H;
POUNTA’S TRUSTEE v LAHANAS
1924 WLD 67
on
68;
SEKELENI v SEKELENI & ANOTHER
1986 (2) SA
176
(Tk) on 178;
MABULU v THYS & ANOTHER
1993 (4) SA 701
(SEC);
TROLLIP v DU PLESSIS EN ‘N ANDER
2002 (2) SA
242
(WLD) on 245 – 246;
PHASE
ELECTRIC CO (PTY) LTD v ZINMANS ELECTRICAL SALES (PTY) LTD
1973
(3) SA 914
(WLD);
LEVINSONS
MEAT PRODUCTS (EDMS) BPK v ADDISIONELE LANDDROS KEIMOES EN ‘N ANDER
1981 (2) SA 562
(NCD).
[7] Before I examine the merits, let me first deal with
a preliminary issue raised in the replying affidavit. The applicant
also endeavoured
to rely on indigenous customary rites. In
POUNTA’S
TRUSTEE v LAHANAS
1924 WLD 67
on 68
Krause J stated
the rule as follows:
“I think it has been laid down in this Court repeatedly, that 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.”
[8] The principle of our law of civil procedure is that
all the essential averments must appears in the founding affidavit.
See
SHEPHARD v TUCKERS LAND & DEVELOPMENT CORPORATION (PTY)
LTD
1978 () SA 173 (W) at 177G-H
per Nestadt, J. See
also
TRIOMF KUNSMIS (EDMS) BPK v AE&CI BPK EN ANDERE
(
supra
),
BAYAT & OTHERS v HANSA AND ANOTHER
(
supra
) and
DIE MEESTER v JOUBERT EN ANDERE
(
supra
). Therefore the applicant’s belated attempt to rely
on cultural rites or customary right is impermissible. Seeing that
the applicant
seeks a final interdict in these proceedings, the
affidavits have to be adjudicated on the basis that the averments of
the respondents
are true. The action has to be adjudicated on the
strength of the respondents’ version together with the applicant’s
version
to the extent that it is admitted by the respondent.
[9] This is an inevitable consequence when the court is
asked to grant a final relief on motion proceedings instead of action
proceedings.
The court will not evaluate or balance the inherent
probabilities of the conflicting versions. Instead it will proceed
from the
premise that the respondent’s exposition is accepted as
the truth (
vide
STELLENBOSCH FARMERS’ WINERY LTD v
STELLENVALE WINERY (PTY) LTD
supra
,
CAPE TEX ENGINEERING WORKS (PTY) LTD v SAB LINES (PTY) LTD
at 529G-530C
and
PLASCON-EVANS PAINTS (PTY) LTD v VAN
RIEBEECK PAINTS (PTY) LTD
supra
at
634E-635C
).
It follows from the above that the solution to this
problem had to be sought by applying common law and not indigenous
law. The gravamen
of the applicant’s cause of action based on
common law is that he is the sole heir of the deceased’s estate.
This contention,
so argued Mr Daffue, is based on section 1 Intestate
Succession Act No. 81/1987 in particular sub-section (1)(c)(i)
thereof which
provides that if a person dies intestate and is
survived by a spouse as well as a descendant such a surviving spouse
shall inherit
a child’s share or so much as does not exceed the
ministerial statutory limit whichever is the greater. By virtue of
this section,
it was contended on behalf of the applicant that he was
the sole heir
ab intestato
. Since there are three surviving
minor children, the applicant cannot be treated as the sole heir of
the deceased’s estate although
he is the sole guardian of the
deceased’s children. Sub-section (1)(c)(i) relates to co-heirs and
applies to the instant case
because there are three surviving
children. At best for the applicant, it may be said that he is the
prime heir. The position of
the sole heir is governed by sub-section
(1)(a). Such a surviving spouse inherits the whole intestate estate,
since there is no surviving
descendants in such a scenario. But
sub-section (1)(a) does not apply here, since there are three
surviving dependants. Section
1(1)(c)(i) is in effect an extension
of the third rule of the burial principle. The third rule only
refers to the blood relations
of the deceased as the intestate heirs.
Since this enactment the surviving spouse is expressly included
among the intestate heirs.
In fact, the section makes the surviving
spouse the prime heir in the sense that the surviving spouse is now
the only intestate
heir who is entitled to inherit a greater share
than the child’s share.
[10] To begin with, I proceed to examine the allegations
of facts in an endeavour to find an answer to the first question. At
the
heart of the enquiry is a document described as Annexure “C”
which appears on p.20 of the paginated court record. See p.69 for
the original thereof. It is written in Sesotho. It reads as
follows:
“NNA NTHABISENG JOYCE RAKOTSOANE (YONA)
Nka Thabela tse latelang ha nka hlokahala Bana ba ka ba Bararo
eleng:
D.Y.
N.Y.
L.Y.
b a fuwe motswadi wa ka eleng ZANYIWE THELMA RAKOTSOANE hobane
ntate wa bona ha, ana tlhokomelo e ntle baneng.
Sabobedi
ke kopa hore boroko ba ka ba qetelo ke ilo bo robala haeso
Philippolis.
Dikopo
tsena ke di etsa kopo e kgolo. Ho tswa ho nna Nthabiseng. 2004.03.16
R. Bothma 16.03.2004
N.P.
Rakotsoane 16.03.2004.”
[11] The English translation thereof by Mr B.B. Mncayi,
our senior court interpreter, appears on p.70 of the paginated
record. It
reads as follows:
“I, Nthabiseng Joyce Rakotsoane (Yona)
I would be pleased if the following could happen should I die. I
have three children namely, D.Y., N.Y. and L.Y..
The
custody of the children has been given to my parent (mother) whose
name is Zanyiwe Thelma Rakotsoane because their father does
not care
properly for the children.
Secondly,
my request is that should I die I must be laid to rest at my home
town which is Philippolis.
I make these requests with great respect.
From
Nthabiseng.
Signed 2004-03-16
Signed 16-03-2004
Signed 16-03-2004.”
[12] In his founding affidavit the applicant vehemently
denied the authenticity of the aforesaid document on the following
grounds:
That Nthabiseng was too ill on 16 March 2004 to execute the
document; that the handwriting was not hers; that her signature does
not appear on the document; that she did not inform him about her
wish to be buried at Philippolis; that she regarded Bloemfontein
as
her permanent home and that neither the first nor the second
respondent informed him about the document until they had removed
the
corpse from Avbob Funeral Undertaker. He believed, for these
reasons, that the document was not authentic but a fake fabricated
by
the members of Nthabiseng’s family.
[13] In their answering affidavit the first two
respondents deny that the document was not a genuine document. They
deny that either
of them or any member of their family was the author
of the disputed document. In support of their contention, that
Nthabiseng was
the true author thereof, they annexed three sworn
statements.
[14] In determining whether the disputed document is a
dying declaration or not, the law commands that such a disputed
document has
to satisfy certain requirements. Those were set out in
R v ABDULL OTHERS
1905 TSC 199
, where Innes, CJ
had this to say about a dying declaration:
“In order that the dying declaration may be admitted as evidence,
the rule is that three things must have occurred: the person
must
have been in danger of impending death; he must have realised the
extent of his danger so as to have given up all hope of life
and
death must have ensued.”
See also
MADALA JIM NDLOVU v RAMOCOELA & 2
OTHERS
, an unreported decision of this court, Case No.
4144/2000, per Rampai, J on p.32 – 36 which was delivered on 25
January 2001.
[15] As we now know Nthabiseng was hospitalised on 12
February 2004. Her condition gradually deteriorated. She was
suffering from
cancer, a deadly illness. She was in danger of
eminent death. There is no question about it. Her doctor probably
advised her that
her condition was terminal. She must have realised
that the last chapter of her life was about to be closed. Eight
weeks later
she departed from this lower valley of tears. On 13 April
2004 Nthabiseng was declared dead.
[16] Four weeks after her hospitalisation and four weeks
prior to her death, the disputed death-note came into existence. Put
differently:
Nthabiseng was four weeks in hospital when the disputed
death-note was apparently written. Four weeks later Nthabiseng died.
The
disputed death-note was written on the printed letterheads of
Afrox Healthcare Hospitals. One of those group of hospitals was
Willow
Med-Clinic where Nthabiseng was still hospitalised at the time
the disputed death-note was apparently written. The note was written
in Sesotho, which happened to be Nthabiseng’s mother-tongue. The
author foresaw and anticipated her death as eminent and inevitable.

The note recorded the author’s express wish to be buried at
Philippolis, which happened to be Nthabiseng’s place of birth.
Though the note made no direct mention of the applicant’s name, it
indirectly referred to the father of specific minor children.
Four
weeks after the execution of the disputed note, Nthabiseng died in
hospital. All these factors have moved me to conclude that
the
aforesaid requirements of a dying declaration have, on a balance of
probabilities, been satisfied. Who then was the author of
the dying
declaration which has so much in common with Nthabiseng?
[17] Ms Nokwenzani Rakotsoane, Nthabiseng’s
sister-in-law stated on oath that she witnessed the writing of the
note. Ms Rhona Bothma,
Nthabiseng’s friend, made precisely the
same averment in her supporting affidavit. These two supporting
affidavits added a considerable
amount of weight to the version of
the respondents. The applicant cried a foul play by Nthabiseng’s
family. But could advance
or suggest no reason at all why Ms Bothma,
a neutral person with no interest in the matter, would fabricate such
a story or support
the alleged family conspiracy. In my view the
applicant failed to rebut this crucial averment that Nthabiseng was
the true author
of the note. His repeated denial and allegations of
conspiracy were not substantiated at all. They were indeed bald and
wild allegations.
[18] I accept the veracity of the version of the
respondents as backed up by the two ladies Ms Rakotsoane and Ms
Bothma. Moreover,
I have no reason to doubt the veracity of Dr
J.D.E. Cronje that on 16 March 2004 Nthabiseng was
mentis compos.
Therefore there is no room for the applicant’s unsubstantiated
allegation that Nthabiseng was incapable of writing the note in
question. It is not the applicant’s case that on 16 March 2004 he
was with his terminally ill wife in hospital and that her condition
was so weak that she could hardly write. Having considered all these
various factors I have come to the conclusion that the aforesaid
note
was, on a balance of probability, a genuine death-note or dying
declaration executed by Nthabiseng. The cumulative impact of
the
circumstantial evidence and the direct evidence is compelling.
[19] Her wish was that she should be laid to rest at
Philippolis, her birthplace. Such wish was legitimate and has to be
honoured.
Her mother, the first respondent, still lived there.
Certainly she knew that she and her husband had been living together
in Bloemfontein
for about 10 years. Notwithstanding this fact, she
made a conscious decision as regards her final place of rest.
Philippolis where
her mother lived was her preferred place for her
burial and not Bloemfontein where her husband lived.
Nthabiseng made a compassionate plea that her mother be
allowed to care for her three daughters and to bring them up. Her
two little
daughters were already staying with their maternal
grandmother with the consent of their father.
In
SAIID v SCHATZ
(
supra
) the
deceased woman’s brother alleged that his deceased sister wished to
be buried in accordance with the Islamic rites. He alleged
the
deceased’s wish was contained in a letter. But he failed to prove
the letter relied upon. The surviving husband won. The
brother lost
out. The rule
nisi
was discharged on that ground.
In casu
the deceased’s wish had been proven.
In
HUMAN v HUMAN
(
supra
) the
deceased man’s daughter alleged that her deceased father wished to
be buried at Queenstown and not Vereeniging where the deceased’s
widow wanted to bury him. The daughter alleged that the deceased’s
wish was orally expressed from his death-bed. Cloete, J in
discharging the rule
nisi
and thereby rejecting the daughter’s
reliance on an unproven oral wish said that the dying person’s
desire as to where he must
be buried was of a mere sentimental
importance.
In
TSEOLA & ANOTHER v MAQUTU
(
supra
)
Munnik CJ said that where the deceased had given no testamentary
directions the heir had the duty and the right to bury the deceased
wherever he wanted.
In
GONSALVES & ANOTHER v GONSALVES &
ANOTHER
(
supra
) the court said in pretty much a
similar vein that it was the duty and therefore the right of the heir
to decide upon the deceased’s
last place of rest where no
testamentary directions have been given.
[20] In all these cases the emphasis was placed on the
wishes of the deceased expressed in a formal instrument, the will.
The impression
was almost created in some cases that the wishes of
the deceased expressed in an informal instrument such as a letter or
dying declaration
or word of mouth were of no legal significance.
The legal commentator Prof. T.W. Price also once wrote that in our
law directions
in the will as to the disposal of the body must be
followed (
vide
SALJ (?) vol 68 p.403).
The trend took another turn in
SEKELENI v
SEKELENI
(
supra
) where Lombard, J elucidated the legal
position succinctly as follows at p.
178:
“Our law would indeed seem to be defective if it cannot give
effect to a person’s wishes regarding his burial, whether
expressed
formally or informally.”
This is in line with the exposition by
VOET
11.7.7 of the first rule of the burial principle.
In giving effect to the legitimate, practical and
reasonable wishes of the deceased our courts should not be unduly
influenced by
the selfish wishes of the surviving spouse either as
the sole heir or co-heir. However, if the deceased spouse has left
no last
wishes enveloped in a formal instrument or informal
instrument then the wishes of the surviving spouse are paramount and
should prevail.
In the instant case they are not and should not.
(
Vide
Prof. Price
supra
).
[21] It follows from the above that the first question
must be answered in favour of the respondents. The corpse of
Nthabiseng must
be buried at Philippolis in accordance with her
written dying declaration executed in Bloemfontein on 16 March 2004.
[22] I turn now to the second leg of the enquiry. Here
the question is who must bury the deceased. Nthabiseng is survived
by her
husband and three dependent minor daughters. The burial
principle of common law applies. The first three rules of the burial
principle
are worth reciting here. Voet: 11.7.7
Commentary on
the Pandects
gives an exposition of the principle as follows:
“ 1. Person chosen by the deceased must
bury:
“The funeral besides must be carried out by him whom the person
departing this life has chosen.”
2. Who may bury if none chosen? If the deceased did not impose the
duty of burial on anyone, the matter will affect those who have
been
named in the last will as the heirs.
3. Who may bury if none chosen? If no one has been so named, it
affects the legitimate children or the blood relations each in their
order of succession.”
[23] In the case of
SEKELENI v SEKELENI
supra
the court held, per Lombard J, that it was permissible
for the deceased to nominate a person to bury him or her by way of a
written
albeit a non-testamentary document. In the instant case and
in terms of the death-note the deceased did not nominate any specific
person to bury her. Therefore, the first rule of the burial
principle does not apply.
[24] Nthabiseng did not execute a valid will during her
lifetime. She died intestate. Since she left no will behind, it
follows without
saying that there are no testamentary heirs or
heiresses. Nobody can claim the privilege to bury her by virtue of
any testamentary
nomination. Therefore, the second rule of the
burial principle does not apply.
[25] Since the deceased died intestate it is the duty of
her intestate heirs or heiresses to bury her. The deceased’s
spouse is
her chief intestate heir. See section 1(1)(c)(i) of the
Succession Act. He and her children are entitled to share her
estate.
Nthabiseng has left behind three surviving children and
their father who was her lawfully wedded husband is her prime heir.
All
things being equal, the duty to bury her would have fallen upon him
to bury her at her chosen place, Philippolis. Therefore the
third
rule would have applied.
[26] In his founding affidavit the applicant averred
that the first and second respondents removed the corpse of his wife
from Bloemfontein
to Philippolis in a clandestine manner. The
removal constituted an injury to his right to bury his spouse. He
was reasonably apprehensive
that the respondents were planning to
bury his deceased spouse at Philippolis contrary to his wish to bury
her in Bloemfontein.
He feared that he would suffer irreparable harm
unless the respondents were interdicted as a matter of great urgency
from proceeding
with the funeral arrangements of his spouse. He
averred that he was remediless unless the relief he sought was
granted.
[27] In the answering affidavits the first and second
respondents answered that they took active steps to honour the last
wish of
the deceased. They admitted that they indeed removed her
corpse from Bloemfontein to Philippolis in order to achieve that
sacred
objective. In addition to this they averred that they made
the necessary funeral arrangements to have the deceased buried at her
chosen and final place of rest with the expressed consent of the
applicant. They averred that the applicant expressly consented that
the deceased’s corpse be released by the first funeral service
provider, Avbob Funeral Undertaker, to the respondents. They denied
that they secretly removed the corpse to Philippolis.
[28] The requisite of a final interdict are well known.
They are, firstly, that the applicant has a clear right which
requires protection
of the law. Secondly, that an injury to that
right has actually been committed or that there is a reasonable
apprehension or fear
that irreparable harm to such a right is about
to be committed, and, thirdly, that the applicant has no other
ordinary and effective
remedy to protect his right.
Vide
SETLOGELO v SETLOGELO
supra
. All these
requisites must be established. Failure to prove one of them is
fatal to the applicant’s case.
[29] As regards the first requisite, the applicant’s
case was that his right to bury the deceased was based on the
following: his
marriage to her; his status as her sole heir; his
status as the father and natural guardian of her children; his
economic position
as the sole bread winner of the family unit; his
view that Bloemfontein was her permanent place of residence; and his
view that she
had not expressed any genuine wish to be buried at any
place other than Bloemfontein. I deem it unnecessary to examine the
content
of the applicant’s right in depth. Suffice to say that I
have already made a finding that the foundation of his right
originates
or stems from the third rule of the burial principle. The
majority of these grounds on which the applicant relied are
compatible
to the third rule. I have already made a finding that
Annexure “C” embodied an authentic written statement or
declaration by
the deceased and that it was indeed a genuine
expression of her last wish of the place where she wanted to be laid
to rest. The
applicant’s strong challenge for the rejection of the
deceased’s express wish did nothing to bolster the foundation of
his right.
On the contrary, it reflected negatively on his
objectivity.
[30] The burial principle makes it abundantly clear that
the privilege or the right of the surviving spouse to bury his or her
deceased
spouse is subordinate to the written direction of the
deceased spouse concerning all the matters pertaining to the final
disposal
of the corpse. The first rule lays down that the person
nominated by the deceased must bury. The second rule lays down that
a person
nominated as an heir or heiress in terms of the deceased’s
written will, must bury. It is only in a case where virtually nobody
can be identified in terms of the first or the second rule that the
surviving spouse comes into the spotlight for consideration.
Where
somebody can properly be identified in terms of either the first or
the second rule, the surviving spouse remains dormant and
ineligible
to be considered. In such cases the wish of the deceased spouse
overrides the wish of the surviving spouse.
[31] Mr Daffue, counsel for the applicant, submitted,
and correctly so, that in the instant case the deceased did not
nominate anyone
to bury her. In such a situation the statutory
provision as well as the third rule of the burial principle inform us
that her surviving
husband must carry the burden of her burial.
However, Mr Snellenburg, counsel for the respondents, submitted that
notwithstanding
the third rule of the burial principle, the issue as
to who must bury the deceased spouse, even in the absence of any
directive wish
by the deceased, must be adjudicated with due
cognisance of the circumstances of the particular case and that due
regard must be
had to the considerations of what is reasonable and
equitable.
Vide
TROLLIP v DU PLESSIS EN ANDER
2002 (2) SA 242
(WLD) at 245I
where Flemming, DJP observed that
in this type of cases the approach to be adopted is to search for a
solution which is the most
equitable in the circumstances of each
particular case.
[32] The version of the respondents that the applicant
gave them permission to take possession of the corpse, to remove it
from Bloemfontein
and to transport it to Philippolis has to be
accepted as true and not the applicant’s version that the corpse
was secretly taken
away without his consent. (
PLACON-EVANS
PAINTS (PTY) LTD
supra
). In my view the applicant’s
denial is inherently unconvincing. Albert Coetzee, an employee of
Avbob Funeral Undertaker, had
no interest whatsoever in the dispute.
His account of the dealings he had with the applicant supported the
version of the respondents.
He confirmed that he released the
deceased’s corpse to the second respondent with the knowledge and
the consent of the applicant.
He denied the suggestion that he
wrongly regarded a copy of Annexure “C” as a court order seeing
that it had been certified
by the magistrate of Philippolis.
[33] I am persuaded to find that, on a balance of
probability, the applicant relinquished possession of the deceased’s
corpse and
authorised Avbob Funeral Undertaker to release the corpse
to the second respondent’s family and allowed them to take the
deceased’s
corpse to Philippolis for burial. The first and second
respondents acted in accordance with the consent of the applicant.
Their
prime motive was to respect and to carry out the last wish of
Nthabiseng. It seems to me that the applicant’s prime motive is
to
disregard Nthabiseng’s wish. By attacking Annexure “C”, the
deceased’s declared wish, the applicant made it clear that
he had
no respect for the last wish of his wife. His attitude was in sharp
contrast to the attitudes of the first and second respondents.
They
were determined to see to it that the last wish of Nthabiseng was
carried out. Nthabiseng’s last wish would certainly be
undermined
if her burial was left in the hands of the applicant. The
insensitive attitude of the surviving spouse as evidenced by
the
selfish unsympathetic unwillingness to respect the last earthly
wishes of his deceased spouse weighs heavily against the scale
of
equity. The unselfish and sympathetic willingness of the deceased’s
mother to respect the last wish of her daughter is an honourable
commitment which gives the moral edge over the surviving spouse.
[34] The applicant had not incurred any funeral expenses
for the planned burial of Nthabiseng in Bloemfontein. The first and
second
respondents, on the other hand, had already incurred funeral
expenses. It seems to me unreasonable, unfair and inequitable to
undo
what has already been done so far by those whose noble motive
was to respect the last wish of their departed daughter and sister.

I am of the view that the applicant surrendered the privilege or the
right he had to bury his wife and that mighty considerations
of
equity demand that he be held to the decision he made. The consent
he gave legally vitiated the very foundation of his right
which
stemmed from the third rule of the burial principle and section
1(1)(c)(i) Succession Act No. 81 of 1987. The considerations
of
justice, fairness and equity strongly militate against the idea of
allowing the applicant to reclaim his lost privilege, call
it a right
if you will, at the expense of the respondents.
[35] For the reasons enumerated above, I have come to
the conclusion that the applicant has failed to make out a case for
the final
relief he sought. Since he has not proven the first
requisite of a final interdict, namely a clear right which deserves
the protection
of the law, the application has to fail. It becomes
unnecessary and academic to deal with the remaining requisites of the
final
interdict.
[36] The general rule is that the successful party is
entitled to have the costs paid by the unsuccessful party. I can see
no reason
in the instant case why the general rule should not apply
in favour of the successful respondents.
[37] Accordingly I make the following orders:
37.1 The
rule
nisi
is hereby discharged.
37.2 The respondents are hereby authorised to bury the
deceased, Nthabiseng Joyce Yona ex-Rakotsoane, at Philippolis in
accordance
with her dying wish.
37.3 The
applicant is ordered to pay the costs of this application including
the cost of the postponement of 29 April 2004.
________________
M.H.
RAMPAI, J
On behalf of Applicant:
Adv. J.P. Daffue
instructed by
NW
Phalatsi & Partners
On behalf of 1
st
& 2
nd
Adv.
N. Snellenburg
Respondents:
instructed
by
Qwelane, Theron & van Niekerk
/scd