IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No.: 02/2025
Reportable Yes/No
In the matter between:
FUZILE MBALANE Applicant
and
NTOMBOMZI MBALANE 1st Respondent
ASILISI FUNERAL SERVICES 2nd Respondent
KING SABATA DALINDYEBO
LOCAL MUNICIPALITY 3rd Respondent
MEC FOR HEALTH, EASTERN CAPE PROVINCE 4th Respondent
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] By way of notice of motion, filed of record and served to the respondents, on
06 January 2025 the applicant approached this court seeking an order in the
following terms:
1. Condoning the applicant’s non-compliance with Uniform Rules of the
court relating to forms, time frames and matters relating to service and
move the application as a matter of urgency;
2. Allowing the applicant to exhume the deceased’s body Siyamthemba
Mbalane buried at the first respondent’s home situated at Lower
Ngqwarha Location in the district of Mqanduli, SZDZZ Eastern Cape
Province.
3. Authorizing the applicant to hire an undertaker of his choice to rebury
the deceased and bear the costs of such burial.
4. Directing the second respondent to bear the costs of the exhumation.
5. Directing the respondents to pay the costs of this application only in the
event that the respondents oppose the application.
6. Directing the members of the South African Police Service to assist the
applicant with protection during the exhumation and burial processes.
[2] The application is opposed by the first respondent. Following the
postponements, on 06 February 2025 the matter was allocated to me for hearing.
The first respondent raised certain points of law relating to non-joinder and pre-
emption; however , these were dissolved by agreement between the partie s.
[3] Before I delve into the main issues, a brief introduction and the nature of the
dispute under consideration is significant. This is a family dispute emanating from the
burial rights and exhumation of the deceased’s body. The applicant and the first
respondent are the deceased’s parents. Siyamthemba Mbalane born on 13 March
1992, died intestate on 24 December 2024 . He was buried at his maternal home on
2 January 2025.
Urgency
[4] On the date of the hearing of the matter, there was a discord between the
parties emanating on whether the issue of urgency was still relevant considering the
lapse of time between the filing of the matter, the postponements and the
subsequent date for the hearing. Mr Mngunyana, counsel for the applicant argued
that this matter was allocated an expeditious date and was not placed on the urgent
court roll. Considering the absence of evidence to substantiate this proposition,
counsel conceded that the court may consider the issue of urgency and make a
finding. In his founding affidavit, the applicant asserts that the circumstances of this
matter are such that he will not be afforded substantial redress in future if the matter
is not enrolled as a matter of urgency. He had planned to bury his son on 11 January
2025, the cattle had been brought and kept home and his spirit was wandering
around without being accepted by his ancestors into the spiritual realm. Since the
next available date in the motion court’s roll falls within the next term, by the time the
matter is heard his spirit will have long been lost.
[5] Furthermore, if the matter is delayed there is a possibility that the deceased’s
body will decompos e making it impossible for it to be recognised by his ancestors.
The delay in the exhumation of the body had caused his family great embarrassment
and emotional turmoil. The applicant avers that after the death of the deceased ,
there was an agreement that the deceased’s body would be buried at his home and
the funeral ceremony be held at his maternal home (the first respondent’s place). His
attorney wrote a letter to the funeral parlour, the second respondent , advising them
not to release the body to the first respondent. The second respondent failed to
adhere to the undertaking it made and released the body. When he approached the
court for an interdict , there were minor obscurities that needed to be clarified by his
attorneys in his application. By the time he approached the court for an interdict, the
body was already buried rendering the application to halt the funeral moot.
[6] Referring to the case of Oliver Reginald District Municipality and Independent
Electoral Commission and Others1, counsel argued that even if a finding is made
that the applicant has failed to demonstrate urgency in the proceedings, the court
may still exercise its constitutional role in providing access to justice and find a
speedy resolution to the issues raised.
[7] Conversely, Mr Mbiko , couns el for the first respondent, refuted the allegations
of urgency and argued that this case does not meet the legal standards relating to
urgency. He contended that the argument that the deceased’s spirit will be lost if
urgency is not considered is a myth that should be discarded by the court.
Furthermore, so he submitted , since urgen cy is self-created the matter should
summarily be dismissed for want of urgency.
[8] The legal framework governing the approach in dealing with urgent matters is
well-settled.2 The test is whether the applicant will be afforded substantial redress in
due course.3 Once the applicant has established that it will not obtain a substantial
redress at a hearing in due course, the court concerns itself with the question of
whether the abridg ement of the time period from those ordinarily prescribed by the
Rules is commensurate with the urgency with which the redress is required.4
[9] It is worth noting that this dispute extends beyond legal issue s. It is a case
that is deeply rooted in family tensions. Both the applicant and the first respondent
passionately protect their social and cultural beliefs, a factor that I must swiftly
consider. Because there are family dynamics, the case requires a high level of
sensitivity, empathy and a respectful approach. While the family dynamics and
cultural beliefs in this case warrant urgent attention, I do not intend to set a
precedent that all cases with the relevant specifics should be treated urgently.
1 Unreported judgment, case number: 1995/2021 decided on 12 August 2021.
2 Uniform Rule 6(12) of the Uniform Rules of Court provides: ‘(12) (a) In urgent applications the court
or a judge may dispense with the forms and service provided for in these rules and may dispose of
such matter as such time and place and in such manner and in accordance wit h such procedure
(which shall as far as practicable be in terms of these rules) as it deems fit. (b) In every affidavit or
petition filed in support of any application under paragraph (a) of this subrule, the applicant must set
forth explicitly the circums tances which averred render the matter urgent and the reasons why the
applicant claims that applicant could not be afforded substantial redress at a hearing in due course.’
3 Chung -Fung (Pty) Ltd and Another v Mayfair Resident Association and others (2023 /080436 ) [2023]
ZAGPJHC 1162 (13 October 2023) para 18 -19; see also Several matter on urgent roll 2012 (1) SA
549 (GSJ).
4 Luna Meubel 1977 (4) SA 135 (W) at 137 (F).
Urgency is evaluated on its own unique circumstances, considering its context. I am
of the view that there is no basis to summarily dismiss the matter for lack of urgency .
In contrast , a prompt substantial redress is warranted. Therefore, in exercising my
discretion I find that urgency is self-evident and the respondent will suffer no
prejudice by an urgent hearing of the matter.
The merits of the case
[10] In 1988 the applicant and the first respondent (hereinafter referred to as the
parties) commenced an intimate relationship which was followed by the birth of four
children, now adults. Tragicall y, on 2 May 2013, their second -born son whilst in the
visit of the applicant passed on. He was subsequently buried at the applicant’s place
by agreement between the parties.
[11] By reasons of the deterioration in their relationship, in 1995 the parties parted
ways. Subsequently, the applicant married Ntombenci nci Mbalane and registered
their marriage at home affairs. The examination of the identity document attached to
the affidavits filed exhibits that the first respondent although she is from Ntwanambi
origin and was named Ntombosindiso, is documented as No-First Mbalane.
The applicant’s case
[12] The applicant contends that his son’s body ought to have been buried at his
home because: in 1988 he and the first respondent were engaged in a customary
marri age hence the first respondent bears the name No-First Mbalane; her son
Yanga was buried at his home; although the deceased grew up in his maternal home
with his siblings, he underwe nt an initiation ceremony (ukwaluka) and performed all
the rituals relate d thereto including ukuqatywa at his paternal home. In the
applicant’s view the fact that the deceased’s ukwaluka custom was performed at his
paternal home, inter alia, demonstrates his wishes to be buried there.
The first respondent’s case
[13] Regarding the allegations of the customary union between the parties, the
respondent avers that at no stage was she ever married to the applicant except that
they were occasionally cohabitating. In her answering affidavit , the first respondent
explains how she raised her children without any financial or emotional support from
the applicant. These averments are supported by a confirmatory affidavit of
Maxalanga Sam Ntwanambi, the brother of the first respondent’s late father (the first
respondent’s uncle) who refutes the allegations of the customary union between the
two parties. Mr Ntwanambi avers that the first respondent’s children were raised by
the first respondent singingly. Except that he paid damages (ukuhlawula) in respect
of the firstborn, the applicant neve r paid any damages for other children, never
maintained the children and no lobola was ever paid by the applicant.
[14] Further to her affidavit, the first respondent has attached a letter from the
Tribal Authority which confirms that the first respondent originates from Ngqwarha
Administrative Are. According to the information the Tribal Authority held at its
disposal, at no stage did the first respondent enter into a customary union. In her
explanation of how she acquired the names as documented in her identity document
from the Department of Home Affair s, the first respondent stated the following: pre-
1994, she possessed a documen t known as ‘a book of life’. In 1994 in the midst of
the rush to vote, she was accompanied by the applicant’s sister, Vuyokazi Mbalane
to obtain an identity document at the Department of Home Affairs. The officials
informed her that her name was too lengthy and registered her name as No-First.
Because she was in the company of the applicant’s sister, she ended up being
registered under the surname Mbalane. As a result, her children inherited the
surname Mbalane.
The question of the exhumation of the deceased’s body
[15] As previously indicated, the facts of this case are grounded in customary law.
In resolving customary issues, the courts are required to apply customary law when
it is relevant, on condition that such application is consistent with the Constitution of
the Republic of South Africa (the Constitution) and any legislation specifically
governing customary law.5 I subscribe to the views expressed by Wilson J in the
5 Section 211 (3) of the Constitution Act 108 of 1996 .
unreported judgment of DM and B2P Funeral Services6, where he stated that
practical considerations and some sort of flexibility are all relevant and well-suited in
cases involving burial rights. Borrowing his words, in resolving this dispute, my aim is
to do the least harm or less aggravation of the grief. Further more, a careful
consideration will be given to the parties’ contentions, as well as the relevant case
law cited in the heads of argument which are well appreciated by this court .
[16] The question of the exhumation of the deceased’s body and the burial rights
are inextricably interconnected . Once the dispute regarding the burial rights is
settled, the issue of exhumation of the body will be considered. As far back as 1972,
the approach to be adopted by the courts in resolving burial disputes had already
been well settled in a multitude of cases.7
[17] A well-known principle has been reiterated that where there is no explicit
indication as to who shall be responsible for the burial arrangements, as in the
present case, the heir or heirs of the deceased shall be the persons responsible for
the disposition of the deceased’s body.8 Moreover, where there are multiple heirs,
6 The case was delivered in Gauteng Division, Johannesburg on 03 August 2023.
7 In Mankahla v Matiwane 1989 (2) SA 920 (CK) at paragraphs F-H, the right or obligation to make
arrangements for a person who has died were summarised as follows:
(a) If someone is appointed in a will by the deceased then that person is entitled and
obliged to attend to his burial and that person is entitled to give effect to his wishes.
(b) The deceased person can appoint somebody to attend to his burial in his will or in
any other document or verbally, formally or informally, and in all these instances
effect should be given thereto insofar as it is otherwise legally possible and
permissible .
(c) A deceased can die intestate but can appoint someone to attend to his burial in a
document or verbally.
(d) In the absence of a testamentary direction, the duty of, and the corresponding right,
to see to the burial of the deceased is that of the heir s, i.e. those appointed as heirs in
the will of a deceased.
(e) The aforementioned principle that heirs (appointed as heirs), in the absence of any
provision in the will as to the burial of the deceased, are entitled and obliged to attend
to the burial of the deceased applies similarly and equally to intestate heirs of a
deceased. That would mean that, in the absence of any indication by a deceased as
to his burial arrangements, the intestate heirs would be in the same position as
testate heirs; there being no reason why the position should be different.
(f) It also follows that persons obliged and entitled to see to the burial arrangements are
also entitled to arrange where and when the deceased is to be buried ; see also Saiid
v Schatz and Another 1972 (1) SA 491 (T) at 494 B -C; Human v Human and
Others 1975 (2) SA 251 (E) at 254B.
8 In Khumalo and Others v Khumalo and Another 1984 (2) SA 229 (D) Booysen J stated the following
at 232E: It seems to me that it is now fairly well settled that it is the heir or heirs of a deceased person
who are entitled to decide upon burial arrangements an d in particular as to when and where the body
is to be buried.’ ; see also Mahala v Nkombombini and Another 2006 (5) SA 524 (SE) at p age 529 1.
the common -sense approach in deciding burial rights prevail s.9 For purposes of the
decision -making process, the enquiry is fact-based. In the matter under
consideration, both parties agree that they are the deceased’s heirs.
[18] There is a dispute on the question of the existence of the customary union
between the parties. In my engagement with the applicant’s counsel , I initially
considered it insignificant to hunt through the question on whether the parties were
married or not. However, in retrospect, I recognised this fact in relation to the
applicant’s case. It is apparent from the applicant’s papers including his replying
affidavit that regarding the question of the existence of the customary union, he
seeks to establish that, in accordance with the customary law, as the spouse of the
first respondent, their children or ‘seeds’ should be buried at their paternal home and
hence Yanga (the late) was also buried there. Where there is a dispute of fact, our
courts have developed a more robust and pragmatic approach in resolving factual
disputes in urgent matters specifically in cases involving burial rights. This is so
because in these cases time-sensitive decisions are required. In Mahala10, Erasmus
J held that:
‘As appears from my summary of the affidavits, there is a dispute of facts on
paper. But due to the urgency of the matter, there is clearly no time to refer
these disputes to oral evidence for adjudication. The court must decide the
matter on the affidavits before the court. In this regard , the general rule as
stated in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623 (A) 634 H operates .’
[19] Again the application of the Plascon -Evans rule11 may in some instance s, as
in the present case, not be satisfactory. Under consideration, I am required to apply
a thorough, rigorous and effective approach because there is sufficient clarity
regarding the issues to be resolved.12
9 Mankahla fn1 .
10 Mahala (fn 6 supra) at para 9.
11 This rule entails that where in proceedings on notice of motion, disputes of fact have arisen on the
affidavits, a final order may only be granted if those facts averred in the applicant’s affidavits which
have been admitted by the respondent, together with the facts alleged by the respondent, justify such
an or der.
12 Trollip Du Plessis en ander 2002 (2) SA 242 (WLD)245 E -F.
[20] Based on the papers filed, there is certain ty that no customary union existed
between the two parties. In contrast to Mr Ntwanambi’s affidavit which provide s
comprehensive evidence refuting the existence of a customary union, the affidavit of
Gedeon Goliyadi which was filed by the applicant lacks details in proving the
existence of customary marriage between the parties. The non-existence of the
customary marriage between the two parties is not only substantiated by Mr
Ntwanambi but is also undoubtedly reinforced by the applicant’s registered marriage
to Ntombencinci Mbalane as officially recorded at the Department of Home Affairs.
[21] In my opinion, the allegations of the existence of a customary union cannot be
substantiated solely by the inheritance of the applicant ’s surname. The first
respondent’s explanation of how she inherited the applica nt’s surname including the
historical context of how the deceased came to inher it the applicant’s surname
makes logical sense.
[22] It is crucial to acknowledge that personal identity is protected through a range
of statutes13 and human rights laws. A person’s personal choice of surname and
identit y reinforces his/her rights as entrenched by section 10 of the Constitution
which provides :
‘Everyone has inherent dignity and the right to have their dignity respected
and protected. ’
While the applicant seems to link the deceased’s retention of his surname to his
customary beliefs and burial rights, such beliefs must be aligned with the
Constitution, which upholds the right to personal choice, particularly for adults.
Therefore, the deceased’s decision to preserve the applicant’s surname is a matter
of his personal choice and identity and therefore cannot be directly linked to his
wishes with regard to the burial location. In my view, the two aspects are distinct and
separate.
13 The Births and Deaths Registration Act 51 of 1992 in particular sections 9(1) and 9(2) which deal
with notices and registration of births acknowledges that in accordance with the concept of equality
and equal rights, a notice of birth by either the father or the mother is given under the surname of
either the father or the mother of the child concerned or the surname of the father and the mother
joined together as a double barrel.
[23] A further consideration is that at no stage was the applicant sidelined in
preparation for the deceased’s funeral. The undispute d message that was conveyed
to the first respondent’s family was that the applicant was not financially prepared to
bear the burial costs. According to the message, the applicant proposed that the
funeral service be held at the first respondent’s place with the intention of later
transporting the deceased’s body to his home for burial. In a meeting that was
arranged at the deceased maternal home in preparation for the funeral, the applicant
was invited . He never participated because he felt disrespected due to being invited
to attend a meeting at the deceased’s maternal home. In my view, the applicant’s
failure to participate in the meeting as invited was motivated by concerns over his
ego, rather than a genuine interest in ensuring that the deceased received a dignified
funeral. In accordance with the undisputed customary tradition, as averred by the
first respondent in her answering affidavi t, it was important to expedite the burial of
the deceased’s body, considering the fact that his death resulted from unnatural
causes.
[24] I acknowledge the sound argument by the applicant’s counsel where he
stated that the deceased’s wishes should be protected and respected . However,
even if assuming I am incorrect in my finding regarding the non-existence of the
customary union between the parties, the following consideration arises: a thorough
assessment of the applic ant’s affidavits demonstrate s that the only wishes that are
explicitly articula ted are those of the applicant himself. Therefore, it would be illogical
and unreasonable to exhume the deceased’s body on the basis of the applicant’s
personal wishes in the absence of credible evidence displaying the deceased’s
actual wishes.
[25] It is obvious from the facts of this case that there was a tumultuous
relationship between the parties which persisted over a period of time. Despite the
fact that the first respondent raised her children singingly including the deceased,
upon reaching adulthood the deceased maintained a strong bond with both parents.
While he grew up in the care of his mother, he chose to perform ukwaluka custom at
his paternal home thereby exhibiting his connection to both lineages. It is therefore
reasonable to infer that he held his ancestors from both sides in high esteem.
Therefo re, the argument positing that the deceased would be unrecognised by his
maternal ancestors in death is illogical. Furthermore, there is no reasonable basis to
conclude that his spirit would be wandering. Taking all these factors into account , it
is logical and fair to cause less harm and grief by allowing the deceased’s body and
spirit to rest in peace at his maternal home . This is where he was cared for from
infancy until he was ultimately laid to rest. Consequently, the application must fail.
Order
[26] The following order is issued:
1. The application for the exhumation of the deceased’s body is hereby
dismissed.
2. The applicant shall pay costs on scale “A” as contempla ted under Rule
67A read with Rule 69 of the Uniform Rules of Court .
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Adv: Mngunyana
Instruct ed by : ABONGILE DUMILE INC.
18 Park Road
MTHATHA
Ref.: A Dumile
Tel.: 082 647 7906
Counsel for the Respondent : Adv: Mbiko
Instructed by : NQORO ATTORNEYS INC.
27 Victoria Street
Cathedral Building
MTHATHA
Ref.: N/zn/nm/000190A -app
Tel.: 047 – 065 0770
Cell.: 073 761 9612
Date Heard : 06 February 2025
Date Delivered : 04 March 2025