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
>>
2024
>>
[2024] ZAFSHC 330
|
|
G.E.M v M.M.M and Another (5928/2024) [2024] ZAFSHC 330 (22 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
5928/2024
In the matter
between:
G[…]
E[…] M[…]
Applicant
And
M[…]
M[…] M[…]
1
st
Respondent
KEAMOGETSWE
FUNERAL PARLOUR
2
nd
Respondent
Coram:
JP DAFFUE J
Heard
:
18 OCTOBER 2024
Delivered
:
22 OCTOBER 2024
Summary:
The court was approached on an urgent basis to adjudicate which of
the parties were vested with the burial rights of the deceased,
a
male person who at the time of his death was still married in
community of property with the applicant. The spouses have been
living separately for three years. They were awaiting trial dates for
the adjudication of the opposed divorce proceedings. Having
prima
facie
accepted the applicant’s entitlement to bury the
deceased, the court considered (a) the breakdown in the marriage
relationship,
(b) the duration of the acrimonious relationship
between the deceased and surviving spouse, (c) the reasons for the
breakdown,
(d) that the spouses had been living separately for three
years and clearly severed ties, (e) for several years the deceased
had
been engaged in a love relationship with another women who stayed
with him and who had been embraced by his family, (f) the deceased’s
expressed wish during his lifetime to be buried next to his father in
Hertzogville, being the town where he was born and bred and
where his
mother and other family members had already made arrangements for him
to be buried. The court held that fairness required
the application
to be dismissed, each party to pay their own costs.
ORDER
1.
The application is dismissed, each party to
pay their own costs.
JUDGMENT
Daffue
J
Introduction
[1]
The central issue in these interdict proceedings is the
right to bury
the deceased who unexpectedly passed away on 12 October 2024 due to
unnatural causes. At loggerheads are the deceased’s
lawful
wife, she being the applicant, and the deceased’s mother,
supported by the deceased’s family members and his
life
partner.
[2]
Late Thursday afternoon, 17 October 2024, an application
was issued
with the intention to apply for urgent relief on Friday morning, 18
October 2024 at 09h30. The applicant intended to
obtain an interdict
to prohibit the respondents from proceeding with the deceased’s
funeral service and burial scheduled
to take place, as alleged, on
Saturday, 19 October 2024 at 08h00. The application became opposed.
Answering and replying affidavits
were filed and the opposed
application was eventually argued during the course of Friday
afternoon. It transpired that the funeral
was in fact arranged to
take place the next weekend only, but the court was none the less
prepared to hear the application on an
urgent basis.
The
parties
[3]
The applicant is Mrs G[…] E[…] M[…].
She resides
in Seretse township, Boshof, Free State Province. At the time of the
deceased’s death, she was still lawfully
married to him in
community of property, he being the late Mr G[…] J[…]
M[…]. She was represented by Adv NA
Feza, instructed by Fixane
Attorneys, Bloemfontein.
[4]
The first respondent is Mrs M[…] M[…] M[…],
a
female pensioner residing in Malebogo township, Hertzogville, Free
State Province. She is the biological mother of the deceased.
She was
represented by Adv MP Modise, duly instructed by Moruri Attorneys,
Bloemfontein.
[5]
The second respondent is Keamogetswe Funeral Parlour
which entity has
not been served with the application papers
ex facie
the court
file and who also did not play any role in the proceedings before me.
The
relief sought and the parties’ contentions
[6]
It is not necessary to quote the relief sought in the
notice of
motion, save to state that the applicant sought an interdict
prohibiting the deceased’s funeral service and burial
to
proceed in Hertzogville as arranged by the first respondent. Also,
that the applicant be authorized to take possession of the
deceased’s
body for purposes of arranging his burial. The applicant contended
that she was entitled to bury the deceased
and that the burial should
take place in Boshof where the deceased stayed and worked during his
lifetime. The first respondent
opposed the application. She contended
that the deceased should be buried as arranged by her in Hertzogville
in accordance with
the deceased’s express wish to be buried
next to his father and bearing in mind the fact that the deceased was
born and bred
in Hertzogville. She submitted that although still
legally married, the applicant and deceased were on the brink of a
divorce,
having been staying separately since December 2021. Her
further reasons will be considered during the evaluation of the
evidence.
Material
background facts
[7]
The applicant and the deceased were married to each other
in
community of property in Kimberley on 16 November 2013 and the
marriage still subsisted at the time of the deceased’s
death.
Two minor children were born out of the marriage, to wit an
eight-year-old daughter and a seven-year-old boy.
[8]
The applicant initially instituted a divorce action in
the Northern
Cape Division of the High Court in Kimberley. The deceased filed a
special plea relying on lack of jurisdiction of
that court as both
parties were permanently resident in the Free State Province.
Thereafter these proceedings were withdrawn. On
17 July 2023 the
deceased initiated divorce proceedings in this Division under case
number 3666/2023. On 6 December 2023 the applicant
filed her plea and
counterclaim. Thereupon the plaintiff filed his plea to the
counterclaim on 2 October 2023. On 30 July 2024
the legal
representatives of the parties held a pre-trial conference in terms
of Rule 37 of the Uniform Rules of Court whereupon
minutes were
prepared and filed with the court. On 30 September 2024 the divorce
action was declared trial-ready.
[9]
There can be no doubt that both spouses sought finalisation
of the
divorce proceedings. They merely waited for trial dates to be
allocated. It is common cause, as is also apparent from the
pleadings
in the divorce action, that the applicant moved out of the former
matrimonial home in December 2021 and that the parties
have not been
living together as husband and wife ever since. Serious allegations
were made by both parties in respect of the reasons
for the
breakdown. According to the deceased he had lost all love and respect
for the applicant who abused him emotionally and
abandoned the
matrimonial home. On the other hand, the applicant alleged that the
deceased physically and emotionally abused her
throughout the
duration of the marriage which caused her to depart from the
matrimonial home and as a result she had lost all love
and respect
for him. The deceased was also accused of entering into numerous
extra-marital affairs.
[10]
Both spouses insisted that the primary care of the two children
should be awarded
to them. On 12 May 2023 the deceased approached the
Children’s Court in Boshof and obtained a court order under
case number
7/2023. That court, after hearing submissions by the
parties and social workers, ordered that the children should remain
in the
care of the deceased pending finalisation of the divorce
proceedings in the High Court, subject to certain contact rights in
favour
of the applicant.
Evaluation
of the evidence and submissions by the parties
[11]
I did not herein before deal in any detail with the parties’
factual
allegations, but will consider the material issues raised by
them during my evaluation in the next paragraphs.
[12]
It is trite that opposed application procedure for final relief is
not suitable
to adjudicate disputed facts. Unless the circumstances
are special, they cannot be used to resolve factual issues because
they
are nor designed to determine probabilities.
[1]
It is also necessary to remind ourselves again of the principles
established in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
pertaining to the adjudication of applications for final relief in
opposed motion proceedings. In the event of disputed facts,
the
applicant seeking final relief shall accept the version set up by
their opponent, unless the latter’s allegations are
in the
opinion of the court not
raising
a real, genuine or
bona
fide
dispute,
or are so far-fetched, or clearly untenable that the court is
justified in rejecting them merely on the papers. I must immediately
point out that the notice of motion was prepared on the basis that a
rule
nisi
would
be sought with return date Tuesday, 22 October 2024. However, bearing
in mind that full sets of affidavits were filed and
that the
applicant eventually requested
in the replying affidavit that final relief be granted to her,
the
application should be adjudicated in accordance with the
Plascon-Evans
principles.
[13]
The applicant contended that she as the deceased’s lawful wife
was entitled
to bury him. Her counsel, Adv Feza, emphasised this
aspect in her oral submissions. It is the applicant’s case that
the law
is trite. This was again confirmed in
Sengadi
v Tsambo
[3]
which
judgment was confirmed by the Supreme Court of Appeal in
Tsambo
v Sengadi
[4]
(
Tsambo
),
to wit that the customary law wife of the deceased was entitled to
bury her customary law marriage husband, the deceased. Obviously,
the
same principle applies to civil marriages.
[5]
Notwithstanding
the finding of the High Court that a valid customary marriage has
been entered into, it found on the facts of that
case that the
deceased’s family should bury him. This finding was not taken
on appeal.
In
Tsambo
the Supreme Court of Appeal was asked to adjudicate whether a
customary law marriage did indeed come into existence between the
deceased and the respondent (the applicant in the court a quo). It
held that the respondent and the deceased concluded a customary
marriage that complied with all the requirements for validity as
contemplated in
s 3(1)
of the
Recognition of Customary Marriages Act
120 of 1998
.
[6]
[14]
In
Simakuhle
v Simakuhle and Another
[7]
the court dismissed an
application by the eldest brother of the deceased to bury the
deceased at his ancestral home in the Eastern
Cape and not in
Centurion, Gauteng where the deceased’s customary law wife
wanted him to be buried. The court quoted
Tsambo
with approval, held that
the deceased’s wife had burial rights and might decide where
her late husband should be buried.
[8]
It then dismissed the application.
[15]
Adv Feza referred to the allegations and counter-allegations by the
parties
in the divorce proceedings, the closing of pleadings and even
the mere awaiting of trial dates, but submitted that all these
factors
were really immaterial insofar as a valid civil marriage
existed at the time when the deceased passed away. She submitted that
it happens frequently, and it could happen in this case, that parties
reconcile even at the doorsteps of the divorce court.
[16]
In
Tsambo
the customary marriage was concluded on 28 February
2016. The following facts should be considered in order to conclude
eventually
herein whether the facts
in casu
are on all fours
with the facts in
Tsambo.
For easy reference I quote from the
judgment.
‘
According
to the respondent, she and the deceased continued to live together as
husband and wife until sometime during 2018, when
their
relationship went through a rough patch, apparently because of the
deceased’s infidelity and drug addiction for which
he refused
to undergo rehabilitation. This caused the respondent to leave the
matrimonial home although she did not take all her
personal
belongings with her
.
Due
to the deteriorating health and depression of the deceased, during
April 2018, the respondent convened a meeting of the two
families.
She reported the deterioration in the deceased’s health
.
The deceased, however, stalked out in a huff before any resolution
could be reached.
During
August 2018, the couple reconciled but did not resume their
cohabitation as the respondent had insisted that she would return
to
the matrimonial home only if the deceased agreed to submit himself to
a rehabilitation programme. Unfortunately, the deceased
committed
suicide on 23 October 2018.
The
respondent returned to the matrimonial home on 24 October 2018 in
order to mourn the passing of her husband.’
(Emphasis
added)
[17]
In
P.N and Others v P.N
[9]
(P.N)
the court considered allegations by the applicants, labelling the
deceased’s surviving spouse as an estranged wife. The
applicants alleged that the deceased had expressed to his mother,
uncle and attorney of record that he intended to divorce his wife.
They even alleged that divorce summons had been issued, but no proof
of this was tendered. The learned judge, Moshoana J, regarded
the
applicants’ attempts to prove an estrangement as ‘weak’
and rejected same. It was common cause that the spouses
were still
living ‘under the same roof as husband and wife until the
demise of the deceased.’
[10]
Having considered the facts in that case, the learned judge concluded
as follows:
[11]
‘
With
regard to the authorities relied on, this Court takes a view that
what generates the burial rights as they are commonly known,
is the
existence of the marriage. In law a marriage is terminated by either
a decree of divorce or death. As at the time of death,
the deceased
and the surviving spouse were still married.
Thus,
to my mind, the burial rights remain intact even if estrangement
enters the fray. One of the grounds for divorce is the irretrievable
breakdown of the marriage. Warring married parties do sometimes reach
a reconciliation, even at the doorsteps of a divorce Court.’
(Emphasis
added)
[18]
The learned judge continued in the next paragraph,
[12]
criticising authorities quoted by the applicants, that the burial
rights of an estranged surviving spouse are lost in such instances.
I
do not agree that fairness and reasonableness should not be
considered. The facts
in
casu
demonstrate my
viewpoint clearly and sufficiently. A marriage certificate on the
verge of being torn up, figuratively speaking,
should not be used as
a sword to rip apart family relationships.
[19]
I have been informed from the bar that the minor children have been
staying
with the deceased ever since the separation of the parties,
bearing in mind the aforesaid Children’s Court’s order.
Since the death of the deceased they are in the primary care of their
paternal grandmother, the first respondent.
[20]
Adv Modise
inter alia
referred to
Mabulana v
Mabulana
(
Mabulana
),
[13]
submitting that the facts in that case were acutely similar to the
facts
in casu
.
In
Mabulana
the deceased passed away just before the trial date of the divorce
proceedings. By then they had agreed that a decree of divorce
could
be obtained on an unopposed basis and that their estate be equally
divided. The court dismissed the estranged wife’s
application to bury the deceased, stating that it was not just and
equitable for her to do so in the said circumstances.
[21]
Adv Modise emphasised that the first respondent and the deceased’s
family
had no intention to exclude the applicant from the funeral
and/or burial proceedings, but submitted that the first respondent
was
entitled to bury the deceased in Hertzogville. He submitted that
the following material facts should be considered in adjudicating
the
application:
a.
the serious allegations and counter-allegations
in the divorce
proceedings cannot be ignored;
b.
the parties had been staying separately since
December 2021, a period
of nearly three years;
c.
the parties were merely awaiting trial dates
for the divorce
proceedings to be finalised;
d.
the deceased had moved on with his life and
had been staying with his
new life partner, M[…] M[…], from 2021 in what was
previously the matrimonial home of the
applicant and the deceased and
consequently, it could never be the deceased’s wish to be
buried by his estranged wife;
e.
when first respondent’s husband and
the deceased’s father
passed away in July 2024, the applicant was notably absent;
f.
during his lifetime the deceased
expressed on multiple occasions his
intention to marry M[…] M[…] as soon as the divorce
proceedings were finalised;
g.
the deceased’s family had embraced M[…]
M[…] as
the deceased’s life partner who regularly accompanied him to
all family gatherings and functions;
h.
the deceased expressed the wish to several
family members after the
passing of his father in July 2024 that, in the event of his own
death, he should be buried alongside
his father in Hertzogville.
[14]
[22]
In the replying affidavit the applicant merely noted the allegations
pertaining
to the romantic relationship of the deceased and his life
partner and the fact that they have been staying together in the
deceased’s
home, the former matrimonial home. She did not deny
any of the allegations mentioned above, save to submit that it was
far-fetched
that the deceased would want to be buried in Hertzogville
as he resided and worked in Boshof. It is common cause that the
deceased
clearly disassociated himself from the applicant and that
she disassociated herself from his family over the last three years.
This cannot be disregarded.
[15]
Although the applicant was lawfully married to the deceased and is
also an intestate heir in the absence of a will, it would be
preposterous to claim that she, in the words of Mantame J, wants ‘to
be laid closer to him when he is no more’.
[16]
[23]
Flemming
DJP stated in
Finlay
and Another v Kutoane
[17]
that
in deciding burial rights between competing persons, the following
should be taken into consideration:
‘
Also
in deciding between competing persons, the law should ideally mirror
what the community regards as proper and as fair. That
perception
will be partly the result of views on social structures, mainly of
family relationships and marriage, and on the vesting
of authority
and the finality of decisions. There may be views about the
impropriety of not complying with requests of the deceased.
Religious
views, cultural values and traditions may play a role.’
This
dictum
was
cited with approval in
Dumisa v Dumisa and
Another.
[18]
[24]
I took cognisance of the
Simakuhle, Mabulana, Tsambo
and
P.N
judgments. I agree with the approach adopted in
Simakuhle
and
Mabulana
. The facts in
Mabulana
closely resemble those
in casu
. It is also instructive to consider the approach by
the High Court in
Tsambo
as mentioned above. Contrary thereto,
the facts in
P.N
differ materially from those
in casu
,
but having said that, I respectfully do not agree with the reasoning
in
P.N
for the reasons set out herein. In my view fairness and
reasonableness cannot be taken out of the equation, bearing in mind
the
particular facts.
[25]
Whatever the future may hold pertaining to the primary care of the
two minor
children, fact of the matter is that they are presently in
the care of their paternal grandmother in Hertzogville. It cannot be
found untenable or far-fetched that the deceased expressed the wish
to be buried alongside his father in Hertzogville, the town
of his
birth. His wish must be respected. I am not prepared to accept that
it is unreasonable in the prevailing circumstances.
[19]
The acrimonious relationship between the deceased and the applicant
and the extremely serious allegations made against each other
cannot
be brushed aside. It would be unfair and unreasonable to disregard
the wish of the deceased and all the factors and circumstances
set
out above. The applicant and the deceased’s marriage existed on
paper only. The bonds of marriage were bound to be dissolved
soon. I
also accept that in the absence of a valid will, the applicant as
intestate heir would in principle be entitled to bury
the deceased.
Again, fairness dictates that this principle should not be followed.
The applicant has disassociated herself from
the deceased and his
family over a period of three years.
[26]
The deceased’s wish where to be buried were conveyed by him in
July 2024,
a couple of months before his death. The first respondent
relied in this regard on an affidavit of the deceased’s cousin.
This is obviously hearsay evidence. Standing on its own, I would not
be prepared to accept the statement as admissible. However,
bearing
in mind the totality of the common cause facts, I am inclined to
accept the hearsay evidence. I wish to emphasise that
my conclusion
would be the same, even if the statement was ruled to be
inadmissible.
Conclusion
[27]
I therefore conclude that the application should be dismissed in
order to allow
the first respondent and the deceased’s family
to continue with the funeral and burial proceedings. The only
question left
to be considered is the costs of the application. No
doubt, the feud between the parties pertaining to the burial rights
has the
potential of permanently divide the family, the applicant
being on the one side and her children and the deceased’s
family
on the other. This sensitive issue should really have been
resolved by the family elders, rather than the court. Cost awards are
in the discretion of the court. The applicant as the lawful wife of
the deceased was
prima facie
entitled to approach the court
for the relief sought. She lost. The first respondent as the
successful litigant is in terms of
the general rule entitled to costs
in her favour. Such an order will create even more tension and
division which should be avoided
as far as possible. Consequently,
and after having thought about this over the weekend, I decided, in
the exercise of my discretion,
that it would be fair and equitable to
order the parties to pay their own costs.
Order
[28]
The following order is made:
1.
The application is dismissed, each party to
pay their own costs.
JP
DAFFUE J
Appearances
For applicant:
Adv NA Feza
Instructed by:
Fixane Attorneys
Bloemfontein
For respondent:
Adv MP Modise
Instructed by:
Moruri Attorneys
Bloemfontein.
[1]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para
26.
[2]
[1984]
ZASCA 51
;
1984]
2 All SA 366
(A)
[1984] ZASCA 51
; ;
1984
(3) SA 623
(A)
at 634E-635C.
[3]
[2018]
ZAGPJHC 666;
2019
(4) SA 50
(GJ);
[2019]
1 All SA 569
(GJ).
[4]
(244/19)
[2020]
ZASCA 46
(30
April 2020).
[5]
Tseola and Another v Maqutu and Another 1976 (2) 418 (T.H.C) at
425D.
[6]
Loc
cit
para
30;
see
also Mbungela and Another v Mkabi and Others
2020 (1) SA 41
(SCA).
[7]
[2024] JDR 0331 (GP), a judgment delivered on 24 January 2024.
[8]
Ibid
para
36.
[9]
(104659/2022) [2024] ZAGPJHC 924 (18 September 2024).
[10]
Ibid
paras
5 & 6.
[11]
Ibid
para
24.
[12]
Ibid
para
25.
[13]
[2021]
ZALMPPHC 36
.
[14]
In
Mabulu
v Thys and Another
1993
(4) SA 701
SECLD at 703A-B Zietsman JP, citing several previous
judgments with approval, stated that the wishes of a deceased person
concerning
his burial should be acceded to in the case of clear
proof. The court ultimately found, in dealing with the hearsay
evidence,
that the wishes of the deceased had not been established.
[15]
Wellem
v Silwana
2016
JDR 0832 (WCC) para 38.
[16]
Ibid
para 40.
[17]
1993 (4) SA 675
(WLD) at 679J-680A.
[18]
(3763/2021) [2021] ZAGPJHC 21 (9 February 2021) para 8 and
authorities cited in the judgment.
[19]
See
Trollip
v Du Plessis
2002
(2) SA 242
(W), cited with approval in
Mabulana
loc
cit para 24.