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[2024] ZAECMKHC 133
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Zilwana v Booi and Another (3476/2024) [2024] ZAECMKHC 133 (22 August 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
(EASTERN
CAPE DIVISION – MAKHANDA)
Reportable/
Not
Reportable
Case
no.: 3476/2024
Matter
heard on: 21 August 2024
Judgment
delivered on: 22 August 2024
In
the matter between:
NOYENA
MABEL ZILWANA
Applicant
and
NOPINKI
BOOI
First Respondent
VON
DER DECKEN FUNERALS
Second Respondent
JUDGMENT
BRODY
AJ
1.
The late Mbuyiselo Graham Zilwana (“the deceased”) passed
away on
the 3
rd
of August 2024.
2.
On the 16
th
of August 2024 a certificate of urgency was
served and filed in terms of the rules of court and this indicated
that the applicant,
described by herself in her founding affidavit as
“
a mother to the deceased”
, with the deceased’s
children, became aware on the 15
th
of August 2024, in the
evening, that a funeral would take place on the 17
th
of
August 2024. The main reason given for the urgent application was
that the first respondent, described by the applicant as “
a
girlfriend to the deceased
” was disregarding the deceased’s
last wishes and effectively was taking away the deceased’s
children, the applicant’s
“
grandchildren
” to
bury the deceased according to his last wishes. The place of the
funeral was the main issue in contention.
3.
Based on the certificate of urgency Mullins AJ, as duty judge, issued
a rule
nisi
interdicting the funeral and indicated that the
matter would be postponed to 14h00 on Wednesday, the 21
st
of August 2024.
4.
On Wednesday, the 21
st
of August 2024 the matter was
called before 14h00 and Mullins AJ, in error, heard argument on
behalf of the first respondent and
dismissed the application,
ordering costs on an attorney and client scale.
5.
By arrangement with the parties the matter was then called again at
16h00 on
the 21
st
of August 2024 and I withdrew the
previous orders, which were clearly granted in error and heard
argument in the matter.
6.
The applicant, clearly describing herself as the “
mother
”
of the deceased, and describing the first respondent as the
deceased’s “
girlfriend
” requested an
interdict against the first respondent from removing the body of the
deceased and sought to prevent the burial
of the deceased at No 2[…],
Takalani Location, Fort Beaufort. The further order sought was that
the body should be buried
at No 5[…] M[…] Street, Group
5, Fort Beaufort. I shall refer to the first address as “
Takalani”
,
and the second address as “
Mtshizana
”.
7.
The main reason for the interdict was the following:
“
18.
The family of the deceased called a meeting and invited the first
respondent to attend, and in that
meeting the family of the deceased
in tandem with the first respondent acquiesced that the deceased
would be buried at his home,
as it was his last wish that he be laid
to rest at his house.”
8.
In the first respondent’s answering affidavit she opposed the
application
on various grounds and these were the following:
8.1.
The deceased and the first respondent were married to each other in
community of property on
the 10
th
of March 2020. A copy of
the marriage certificate was attached to the papers
8.2.
The deceased’s family and the first respondent’s family
conducted lobola negotiations
and the deceased paid lobola for the
first respondent on the 4
th
of June 2021. The minute of
that meeting was also attached to the papers.
8.3.
The deceased and the first respondent had been living together since
2019 when their relationship
started and had also lived together
since then until the deceased’s passing on 3 August 2024.
8.4.
On the 25
th
of May 2022, the deceased and the first
respondent concluded a Joint Will and a copy of the Will was attached
to the papers.
9.
The aforesaid facts were common cause in argument as they could not
be disputed
given the corroborating evidence attached to the
answering affidavits.
10.
In addition, the Joint Will made it clear that the deceased and the
first respondent both
resided at Takalani.
11.
The first respondent also wished to bury the deceased at Valley
Christian Church as this
was a mutual place where all who could
attend to say their last goodbyes to the deceased.
12.
In the applicant’s replying affidavit, the applicant accepted
that the first respondent
was married to the deceased, however,
alleged that this fact was never divulged to any of the family.
13.
The applicant also alleged that the Will was not valid as it was not
signed before a Commissioner
of Oaths as the testator had affixed “
a
mark to the will”
. This is clearly wrong as the Will is not
signed by a mark, however, is signed by the deceased in terms of the
Wills Act. This
eventually became common cause in argument.
14.
I am in agreement with Mr Somandi that, in
ex
parte
applications
an applicant bears a duty of utmost good faith in disclosing all
material facts in her knowledge.
[1]
15.
The applicant is also required to disclose all material facts which
might affect the granting,
or otherwise, of an
ex
parte
order and the holding back of any material facts, either wilfully and
male
fide
,
or negligently, is to be deprecated.
[2]
16.
There can be no doubt that any applicant, on an
ex
parte
basis, must be scrupulously fair in presenting the case, put forward
all facts relevant to reasonably expected disputes. An applicant
is
also required to exercise due care and must not refrain from
disclosing matter which is relevant to the dispute.
[3]
17.
I am in agreement with Mr Somandi that the applicant has made grave
and material non-disclosures
in her founding affidavit.
18.
The patently false allegations are the following:
18.1
That she is the deceased’s “
mother
”;
18.2
That the first respondent was the deceased’s “
girlfriend
”
when in fact they were married;
18.3
That the deceased and the first respondent did not live together,
when in fact they did.
19.
A further complicating factor is that in the Will there is a
nominated executor, namely
Mr Frederick Johannes Potgieter, an
attorney of this court. He was not cited in the application, nor was
reference made to him
by the applicant.
20.
I am satisfied that in terms of the Plascon-Evans
[4]
approach the apparent disputes raised by the founding affidavits are
in fact not real disputes given the corroboratory evidence
furnished
by the first respondent.
21.
I have no hesitation in dismissing the application primarily on the
following material facts:
21.1
Applicant is not the mother of the deceased and is in fact the aunt
of the deceased;
21.2
The first respondent and the deceased were married in community of
property on 10 March 2020;
21.3
The deceased lived as husband and wife with the first respondent at
Takalani;
21.4
The deceased paid lobola for the first respondent on 4 June 2021;
21.5
The deceased and the first respondent completed a Joint Will on 25
May 2022;
21.6
The applicant is the only party in the proceedings and her
locus
standi
is accordingly questionable.
22.
Having regard to the family relationship between the deceased and the
first respondent,
their marriage, the Will, and the absence of any
clear indication of the deceased’s wishes, I am satisfied that
it is the
first respondent that can decide where the funeral will
occur and in what circumstances. This is in line with the well-known
matter
of Mahala vs Nkombombini and Another
[5]
23.
Not only was the first respondent and the deceased married according
to civil marriage,
they are also married in terms of customary law.
24.
In view of the blatantly false allegations made by the applicant in
her founding affidavit
and the manner in which she approached this
court, I have no hesitation in granting a costs order against the
applicant on the
scale as between attorney and client.
25.
The following order is made:
25.1
The application is dismissed;
25.2
The applicant shall pay the costs of the application, including the
costs incurred on the 21
st
of August 2024, on the scale as
between attorney and client.
B B BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant
:
Adv.
Ndinise
Instructed
by
:
L
Mazaleni Attorneys Inc.
c/o
Neville Borman & Botha
21
Hill Street
MAKHANDA
(REF.:
CIV/XAL/143/LM)
Counsel
for first Respondent
:
Adv.
Somandi
Instructed
by
:
Loyiso
Nqini Attorneys Inc.
c/o Mgangatho Attorneys
7
Somerset Street
MAKHANDA
(REF.:
N BOOI 01/2024)
[1]
Thint (Pty) Ltd vs NDPP and Others; Zuma and Another vs NDPP and
Others
[2008] JOL 22119(CC)
, paragraph 102
[2]
Schlesinger vs Schlesinger ZAFSHC/2022/114 (SAFLII)
[3]
Recycling and Economic Development Initiative of South Africa NPC vs
Minister of Environmental Affairs and
2019 (3) SA 251(SCA)
,
paragraphs 45 - 52
[4]
Plascon-Evans Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984(3) SA
623(A) at 634E - G
[5]
2006(5) SA 524 (SE), paragraph 14