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2024
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[2024] ZAECBHC 11
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Makatasi v Metele and Another (389/2024) [2024] ZAECBHC 11 (18 May 2024)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO:
389/2024
In the matter between
LIMA SYBIL
MAKATASI
Applicant
and
XOLA
METELE
First Respondent
AVBOB FUNERAL SERVICES
LIMITED
Second Respondent
JUDGMENT IN URGENT
APPLICATION
HARTLE J
[1]
It has been left to this court to decide
the competing burial claims of the applicant, who is the surviving
spouse of the deceased
but who was in a manner estranged from him at
the time of his death, and the respondent who is his son.
[2]
It is common cause that the deceased died
intestate and that there is no written document evidencing his own
choice in this regard
as to who should be responsible to attend to
his burial, how his mortal remains are to be disposed of, or where. A
bitter dispute
has arisen within the family over who should be
entitled to take charge of his body for these purposes.
[3]
The compunction under which I have been
called upon to decide this issue is that the body of the deceased is
in the custody for
the time being of the second respondent in its
mortuary where it obviously cannot remain indefinitely.
[4]
I was informed by counsel that the burial
service had already been held (after the issue of the present
application) at the instance
of the first respondent at Hanover where
the deceased resided with him at the time of his demise. The body was
returned to the
second respondent’s parlour after that service
by agreement between the parties to be kept there until the
“
finalisation of the matter
”.
[5]
Given the parties’ agreement reached
on the afternoon of the first enrolment of the matter before my
colleague (which was
made an order of court), the initial relief
sought by the applicant that the second respondent be interdicted
from releasing the
mortal remains of the deceased to the first
respondent has indeed become moot, but it yet remains compelling for
this court to
determine whether, as sought by the applicant in her
notice of motion, she should be declared to be vested with sole
authority
over his mortal remains in her capacity as his surviving
spouse and intestate heir of their joint estate to give effect to his
claimed dying wishes, alternatively as agreed between her and their
other three children who support her in the present application.
[6]
When the matter came before me the issue of
urgency and costs and anything ancillary thereto (several objections
of a technical
nature were also raised) were at my insistence set
aside and I prevailed upon the parties to address me only on the
single issue
of whether the applicant should succeed on the basis of
her claimed entitlement, as this would naturally prompt a much
desired
conclusion of the fate of the body. It appears that all other
attempts at a mediation of the matter have thus far been in
considerable
vain.
[7]
I heard argument late Thursday afternoon
(16 May 2024), and heads were supplemented by the first respondent
that night at my insistence.
The opposing papers were filed out of
time despite my colleague’s order directing that they be
delivered by 13 May 2024.
When the answering papers came to hand,
sans
any
heads of argument, I was already seized of the opposed motion court
roll for the day and could not read them or the replying
papers
except cursorily. Nonetheless I heard the parties - given the
conundrum facing the family and reserved my judgment.
[8]
I have since had careful regard to the
founding papers, the opposing contentions and the stated law on the
vexed consideration of
such matters and have resolved to determine
that despite the applicant having been physically separated from the
deceased at the
time of his passing, she was not completely estranged
from him or uninvolved in his life and that this is not one of those
matters
in which I should regard the fact of her marriage with him as
having been merely in existence on paper. To the contrary fairness
in
this peculiar fact scenario dictates in my opinion that the applicant
rather than the first respondent should bury the deceased
in keeping
with the family’s joint discretion, which supports their mother
taking the lead in this respect and burying their
father at his
ancestral home.
[9]
The
facts of this case are entirely distinguishable from those of
Dumisa
[1]
and
Mabulana
[2]
to which Mr. Metu who appeared on behalf of the first respondent
referred me. In both those matters the court looked beyond
the
status of the valid marriages that pertained between the spouses
seeking to bury their respective husbands in opposed urgent
applications where they asserted their rights by virtue of those
unions to determine the burial arrangements.
[10]
In
Dumisa
the spouses were in the throes of divorce. The deceased had left the
matrimonial home some four years before and had commenced
divorce
proceedings upon the narrative that the marriage had broken down
irretrievably. The applicant had also obtained a protection
order
against him. The divorce proceedings had reached the stage
before the demise of the deceased where they were in the
process of
conducting settlement negotiations in respect of the division of
their joint estate only. Applying the “
fairness
approach
”
enunciated in
Finlay
and Another v Kutoane
[3]
(as the court did in
W
and Others v S and others
[4]
,
TM
v CM and Another
[5]
and
Sengadi
v Tsambo; In Re: Tsambo
[6]
,
although coming to different conclusions in each example), the court
was influenced by: the fact that the spouses had been estranged
for a
lengthy period of time; her case made out on the papers was the less
plausible; the lack of any evidence about a will or
of any reason why
the deceased would have wanted the funeral planned by the applicant;
the strength of the opposing case that the
actual wishes of the
deceased were to be buried at Zava Village; family cultural
traditions and a precedent of burials of family
members at Zava
Village; as well as greater detail given about the cultural beliefs
of the deceased’s family.
[11]
In
Mabulana
the deceased’s wife sought the leave
of the court to bury her spouse despite her separation from him some
three years prior.
She claimed that they had notwithstanding their
parting remained in touch concerning their mutual interests regarding
the children
and their matrimonial home. It transpired that just
before the deceased’s passing, a decree of divorce had
practically been
granted, but the matter could not proceed without
the assistance of an interpreter. In other words, had it not been for
a postponement
of the matter for this reason, the divorce action
would have been finalised days before the deceased's death on the
basis of the
parties’ agreement that the order could be taken
unopposed. In the particulars of claim the applicant had stated that
she
had lost her love and affection for the deceased.
[12]
The divorce action was however withdrawn by
the applicant immediately after hearing that the deceased had passed
away, a factor
which the court in the application lamented she had
failed to disclose to it. The respondents (a sister-in-law and sister
respectively)
had submitted that it had been the deceased's express
wishes to be buried by the first respondent who had cared for him in
his
final days and had in fact looked out for his interests for eight
years before that.
[13]
The deceased had also left a will in which
the first respondent had been nominated beneficiary although in it he
had not given directions
as to who should prepare for and arrange his
burial.
[14]
The respondents in their opposing papers
had refuted the communication contended for between the applicant and
the deceased.
[15]
The court found that the applicant’s
failure to have disclosed that she and the deceased were undergoing a
divorce which was
on the verge of being finalised and would have been
disposed of on an unopposed basis but for his death was a vital
factor in its
consideration against the grant of the relief sought by
her. In its view and in pursuit of reaching a just and fair decision,
it
determined that the applicant had opportunistically withheld
critical information and had presented a contrary picture of the true
circumstances. It further factored in that for a long period of time
the applicant had in fact disassociated herself with the deceased.
She had also stated in her particulars of claim in the divorce action
that she had lost her love and affection for him and that
she no
longer wanted to be with him. Their permanent relationship would have
come to an end but for the postponement aforesaid
of the divorce
action.
[16]
In
the result he court held that their relationship existed on paper
only and found support in the approach adopted by the court
in the
similar fact matter of
W
and others v S
[7]
where despite the applicant in that matter and the deceased being in
an extant civil marriage at the time of his dying, that union
was
just two days away from divorce when the deceased had met his death.
[17]
The facts in this matter that innately
justify in my view that it is fair and just that the applicant be
allowed to bury the deceased
are uncomplicated and straight forward
with no hidden agendas.
[18]
The applicant and the deceased were married
in 1979 from which union four children, including the first
respondent, were born. The
deceased was mostly itinerant given the
unfortunate discriminatory laws of our country that prevailed at the
time. This caused
a strain on the marriage and the upbringing of
their children, but the couple endured and persisted in their lawful
union.
[19]
The deceased last disappeared from home in
2014 until 2021 when he was found in Idutywa working as a cattle
herder/shepherd. He
was in a frail state. The family endeavored to
bring him home but the deceased expressed the desire to live with the
first respondent
at his home in Hanover. The applicant noted this
development as a mere practicality and pointed out that the
arrangement was felicitous
because the first respondent is a man of
means as compared to the rest of the family.
[20]
This is how the deceased lived out the
remaining few years of his life.
[21]
In March this year he was admitted to the
Bhisho Hospital where he ultimately passed.
[22]
The applicant alleges that for the period
that the deceased lived with the first respondent at the latter’s
home, this was
not an exclusionary arrangement. Indeed, she and
the rest of the family enjoyed visitation rights until his passing
and “
there existed a harmonious
relationship with the family.”
[23]
It was only after the deceased’s
death that the notion arose per the first respondent that his father
had purportedly asserted
his desire to be buried in Hanover “
versus
where everyone else in the family expresses that he ought to be
buried in his ancestral home”.
It
is common cause that the latter is in Mooi Plaas which is the
deceased’s childhood homestead and a place where significant
family events have taken place (each of the couple’s sons have
for example celebrated their cultural initiations there and
the
applicant and the deceased were also married at the home) and where
the applicant says the deceased had expressed to her a
desire to be
buried ultimately.
[24]
The first respondent commenced burial
preparations off his own bat claiming that the deceased’s
mortal remains were rightfully
his. He was singularly unprepared to
engage with either the applicant or his three siblings in this regard
and also scorned an
attempt by Legal Aid South Africa, who the family
approached to resolve their differences, to formally mediate the
dispute between
them.
[25]
The
only purportedly divergent sentiment that emerges from the first
respondent’s opposing affidavit (apart from the litany
of
technical points taken including (most ironically) the applicant’s
non-compliance with the provisions of rule 41A (2)
(a) of the Uniform
Rules of Court despite his having spurned the opportunity of Legal
Aid South Africa to mediate the dispute)
[8]
is that the applicant and the deceased never had a matrimonial home,
that she left him for an extramarital affair, and that at
the time of
the deceased’s passing she resided with her “
current
boyfriend.”
The suggestion that the applicant’s marriage to the deceased
merely existed on paper is coincidentally uttered through the
mouths
of two of his brothers in opposing affidavits but they rely for that
critical contention on the hearsay evidence of the
first respondent.
He in turn has not had the confidence to assert as much with his own
voice in his opposing affidavit which
is to my mind bereft of any
real reason that she should be entitled as wife and intestate heir of
the joint estate to make the
important decision of where her spouse
is to be laid to rest especially since she has the support of the
rest of her children in
doing so.
[26]
The applicant has been quite forthcoming
with the court from the outset concerning the state of her
relationship with the deceased.
She has not sought to exaggerate a
perfect marriage but it appears to me to have been one that has
always been family centered.
She has forgiven his absences from home
and has sought to maintain harmonious relationships for the sake of
the family. One
gains the impression that it came as a surprise
to the family to have found the deceased in 2021 in a fragile state
after a very
lengthy absence from home, but the applicant and the
family were mindful of his need to be reintegrated into the family.
The deceased
chose at that juncture to live in Hanover with the first
respondent but did not sever the bonds of his marriage to the
applicant.
[27]
She has responded to the scurrilous
allegations of her purported impropriety that they are “
rather
unfortunate”
and that for “
peace
sake
” she would prefer to veer
away from statements made in reply that would further rupture the
family. In this stance she is
also supported by her other sons who
confirm that despite the imperfections in their parents’
relationship they had until
his death remained committed to their
bonds of marriage. She has not boasted that she acquired property or
maintained a home in
Mdantsane despite the absence from home of the
plaintiff. To the contrary she regards the property a belonging
to the joint
estate. Her interest is further quite evidently in
the family’s security and integrity as a unit rather than in
any
self-serving way. Any other conclusion would to my mind be
quite implausible and inconsistent with the common cause facts.
[28]
Although the first respondent sought to
muddy the waters by the thoughtless suggestion that the applicant has
taken in a boyfriend,
the first respondent has dealt with this fact
in the faintest of terms and I am not persuaded that I need pay any
attention
thereto in a situation where I must decide the issues briskly and as
best I can under the unique exigencies of the matter.
[9]
[29]
Further, the first respondent does not
suggest that his father himself ever pointedly expressed a desire to
him personally to rather
be buried by him, his own blood relatives,
or at any other particular location above all else. He does not
take the court
into his confidence in this respect at all. The plans
to bury the deceased at Hanover seem instead to have been laid by him
after
his father’s passing in discussing the burial with
“
family elders”
purportedly “
in line with amaXhosa
tradition,”
which insistence is
so patently in absolute disregard of the applicant’s
ex
lege
interests as a spouse in a valid
marriage that was only terminated upon the deceased’s death,
and as intestate heir of the
joint estate. It also overlooks the fact
that the rest of the nuclear family have a view and an interest in
the decision which
they have been actively engaging with since their
father passed.
[30]
The first respondent has invested much
emphasis in his opposing papers in describing why Mooi Plaas is no
longer a suitable resting
place for his father which strangely
supports the applicant’s case that this is where the deceased
indeed indicated his desire
to be buried.
[31]
In this instance the predominating desire
of the family who support the application is to give a place of
honour to their parents’
marriage and to allow the applicant to
take the lead (upon consultation with them) in disposing of the body
of their beloved father.
It is commendable that the first
respondent took care of him in his last few years but this was not a
unitary act. He always
did so within the context of a close,
caring nuclear family that desires harmonious family relations.
[32]
As
was stated closer to home in
Mahala
v Nkombombini and Another
[10]
in circumstances like these there should be no hard and fast rules
and each case is to be decided on its own particular circumstances.
Common sense should be the order of the day and the approach to
strive for is one of fairness in the particular circumstances of
the
case.
[11]
[33]
Those dictates of fairness sway me in the
direction of permitting the applicant to get on with the family’s
arrangements of
burying the deceased without further ado.
[34]
I conclude with the hope that the family
will find peace in this tragic situation and remember their strength
in one another as
a whole.
[35]
In the result, I make the following order:
1.
It is declared that the applicant is vested
with the sole authority over the mortal remains of the late
Mxolisi
Kevin Metele
.
2.
The rest of the issues raised by the
parties on the papers such as they are still contestable, including
the issue of the costs,
are postponed
sine
die
for determination on the ordinary
opposed motion court roll
.
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING
:
16 May 2024
DATE OF
JUDGMENT
:
18 May 2024*
Appearances:
For the applicant:
Mr. L Mati instructed by Kale Attorneys Inc., East London (Ref.
KALE/TK/M23).
For the first
respondent: Mr. B Metu instructed b Sotenjwa Attorneys, East London
(Ref. NS/001/66).
For the second
respondent: Nil.
*Given the exigency of
the matter the order was handed down on Saturday at 13h49 by voice
note which the Registrar was requested
to immediately publish to the
parties, with the undertaking given by the court that a written
judgement (or reasons for the order)
would be made available to the
parties on the morning of 20 May 2024.
[1]
[2021]
ZAGPJHC 21 (19 February 2021).
[2]
[2021]
ZALMPPHC 36 (26 July 2021).
[3]
1993
(4) SA 675
(W) at 679J-680A where Flemming DJP
declared
that the proper approach, where there are competing burial claims,
is that “
the
law should ideally mirror what the community regards as proper and
as fair
”.
That view would, according to de Villiers AJ in
Dumisa,
be influenced inter alia by views on social structures, views on
family relationships and marriage, views on the impropriety
of not
complying with requests of the deceased, religious views, cultural
values and traditions.
[4]
[2016]
ZAWCHC 49.
The parties were estranged. The court found that the
marriage was on paper only and that the estranged spouse had nothing
to
do with the deceased. In that matter the court held that
the expectations of the community, fairness and reasonableness
dictated that the deceased’s relatives should determine where
the burial had to be, and not the estranged spouse.
[5]
[2019]
ZAGPJHC 412. The court came to a different conclusion. It was
not convinced that the marriage was on paper only.
Although
the couple were experiencing marital problems, the parties had not
yet separated. The surviving spouse, who had sued
for divorce, had
however not proceeded with the action as she had hoped to save the
marriage. They were not estranged and
also had a 3 year old
child. Although evidence was presented that the deceased had
intended to vacate the matrimonial home,
the court found that the
fairest order (on the facts of that case) was that the surviving
spouse should be allowed to bury the
deceased.
[6]
[2019]
1 All SA 569
(GJ). In this matter there was a dispute about the
validity of a customary marriage. At some stage the applicant
had left
the home due to the deceased’s infidelity and drug
dependence, it appeared not long before his death. The court found
that
the marriage was valid, but on the facts of the case, decided
that the family should rather bury the deceased.
[7]
Supra.
[8]
I
was informed from the bar that counsel also tried for hours to
broker a settlement of the dispute when the matter first came
before
the court on the basis of urgency.
[9]
See
the approach adopted by the court in W
ightman
t/a JW Construction v Headfour (Pty) Ltd and Anothe
r
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) which requires party seeking to raise a
dispute in his affidavit to do so “
seriously
”
and to unambiguously address the fact said to be disputed. As stated
by that court there is “
a
serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come
as no
surprise that the court takes a robust view of the matter.”
In this instance the first respondent has thrown fluff to
offset the very firm intimation by the applicant that she remained
married to the deceased as a conscious election and a firm purpose
and that they never divorced.
[10]
2006
(5) SA 524 (SE).
[11]
Trollip
v Du Plessis and Another
2002 (2) SA 242
(WLD) 245 E – F.