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[1] The issue in this application was who had the right to bury Lwazi Ngcebo Lionel
Zaca (the deceased). It primarily arose between the applicant and the first
respondent, the only respondent who opposed the application. I conveniently
refer to her as the respondent. The second and third respondents, the South
African Police Service (SAPS) and the Johannesburg Forensic Pathology
Services (the JFPS) did not enter the fray. They were probably cited due to the
role they would play in enforcing the order of this Court. I could not conjure any
direct interest they had in the order sought.
[2] The applicant brought the application based on urgency in terms of uniform rule
6 (12). He sought an order declaring that he had the right to bury the deceased.
He also sought other ancillary relief. The second respondent filed a counter
application seeking an order declaring that she, and not the applicant had the
right to bury the deceased. She too also sought similar ancillary relief. After
hearing oral arguments from counsel for the parties on 25 November 2025, I
dismissed the application and granted th e counter application. I undertook to
prepare succinct reasons for these orders. I set them out below.
[3] The facts are largely common cause between the parties. Several factual issues
are in dispute. The Plascon Evans rule dictates that common cause facts and
the respondent ’s version of the disputed facts prevails. The applicant did not
show that the respondent’s version of the disputed facts is so untenable that this
Court cannot reasonably rely on it. I therefore determine the disputed facts on
the respondent’s version which I set out below.
[4] The deceased died under very tragic circumstances. On a fateful day during
August 2025, he did not arrive home from work . A person described in the
founding papers as his partner, with who he had been residing, opening a
missing person case with the SAPS in respect of the deceased on 17 August
missing person case with the SAPS in respect of the deceased on 17 August
2025. His charged body was found in his car which had burnt down. A DNA
analysis of his charged remains, which took several weeks to conduct, was used
to identify him. In the meantime, the present dispute arose between the parties.
[5] Although at the time of his death, he was living with a partner, he was party to a
civil marriage with the respondent. Two minor children were born from their
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marriage. They resided in Johannesburg together with their children until
September 2023 when the deceased left their marital home after he was arrested
on charges laid against him by the respondent. They remained estranged until
the deceased met his tragic death.
[6] The applicant is the deceased’s cousin. He resides in Kwa Zulu Natal (KZN). As
already stated, he asserted that under the circumstances on this case, together
with the deceased’s relatives, t hey had to be granted the right to bury the
deceased. He relied on the following factors:
6.1 the deceased informed him his marriage to the respondent ha d irretrievably
broken down, he intended divorcing her and in the event of his death, he must
give him a dignified funeral at their homestead in KZN;
6.2 the deceased and the respondent had been estranged for two years when
he died, they were living separate lives, the deceased was living with his
partner and other than a marriage certificate, nothing joined the parties
together, his death would not restore their marriage;
6.3 there is no trace that the respondent reported the deceased missing;
6.4 given the wishes of the deceased concerning his burial, he will never rest in
peace should his remains be buried in Johannesburg by his estranged wife.
[7] The applicant contended that having regard to the above factors and the fact that
there was acrimony between the parties, the deceased family should be allowed
to bury him in accordance with his wishes. The respondent assert ed her legal
right, as the deceased’s surviving spouse to bury the deceased. She contended
that she did not lose that right because of her estrangement from the deceased,
especially having regard to the circumstances that led to their estrangement
which I deal with below, and the fact that their relationship remained cordial. She
further contended that although the deceased did express his intention to initiate
divorce proceedings which she would not have opposed, he never acted on that
divorce proceedings which she would not have opposed, he never acted on that
intention. Therefore, no weight should be placed on this in these proceedings.
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[8] She pertinently placed the applicant’s legal standing to bring this application in
dispute. According to her, the applicant is not the deceased brother as alleged.
He is his cousin. In his founding affidavit, he had not alleged that he enjoyed the
support of the deceased’s other relatives, even though he placed reliance on
their participation in the deceased’s burial. He remedied this in reply, by filing
confirmatory affidavit from several persons who alleged to be the deceased’s
relatives and one claimed to be his child from a previous relationship and another
who claimed to be his half-brother.
[9] The parties agreed that in South African law, in the absence of the deceased’s
specific instruction s, the legal right and responsibility to make decisions
regarding the burial of a deceased person who died intestate, lies with his or her
heirs.1 Ordinarily, e strangement does not nullify that right and duty. Each
application is considered on its fac ts and public policy considerations have a
bearing on the court’s decision to deprive a party of his or her right to bury a
deceased person.
[10] The applicant cited copious authorities which he contended supported his case,
however, they were either distinguishable on the facts or he simply cited the
outcome of a case without any reference to its peculiar circumstances and its
similarities with the present case. Dealing with each of these authorities will not
add value to this judgment.
[11] It is common cause that the applicant is not the deceased’s intestate heir. Given
that the respondent disputed that the deceased had a child from a previous
relationship, none of the persons who filed confirmatory affidavits in support of
his application are his intestate heir . None of the factors he relied on justified
depriving the respondent of her legal right to bury the deceased and to make to
make decisions regarding his burial. On the respondent’s version, he is not the
make decisions regarding his burial. On the respondent’s version, he is not the
deceased brother. Therefore, h is relationship with the deceased is not as
proximate as he would have this court believe. The alleged deceased’s wishes
concerning his burial are only based on his say so. They are unwritten. It is
1 See Johannesburg City Parks & Zoo and another v Zwane 2024 JDR 4043 (GJ) para 17-21 and all
the authorities cited there.
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unclear why the deceased would have made speculations about his death as
alleged by the applicant. He was relatively young. There is no suggestion that he
was unwell. His death was sudden and unexpected. It simply fails on the Plascon
Evans rule as the respondent has placed it in dispute.
[12] The deceased left the matrimonial home after he was arrested on allegations of
domestic violence. The respondent did not expel him from the matrimonial home.
It was never the respondent’s intention to end the marriage. The fact that she
would not have defended the divorce proceedings the deceased had intended to
institute does not alter this position. In the two years that they have been
estranged, they have been able to maintain a cordial relationship as evidenced
from whatsapp messages attached to the re spondent’s answering affidavit.
Neither of the parties instituted divorce proceedings. Any speculation as to
whether he would have persisted in his intention to institute divorce proceedings
carries insignificant weight in these proceedings.
[13] Given the fact that together with the children born in the marriage between the
respondent and the deceased, she is the intestate heir, the respondent and none
of the parties who support ed his application are his intestate heirs and having
regard to the six year s period during which the parties lived together, that their
matrimonial home is in Johannesburg, the respondent and th e minor children
continued to reside there, she was a victim of domestic violence perpetrated by
the deceased as a result of which the two became estranged ; public policy
demands that she should not be deprived of her legal right to bury the deceased,
lest this court subject ed her to secondary victimization. For reasons set out
above, the respondent’s locus standi point in limine was established.
[14] I set out the order granted on 25 November 2025 below:
Order
14.1. The Applicant’s application and the First Respondent’s counterapplication
Order
14.1. The Applicant’s application and the First Respondent’s counterapplication
are declared to be urgent. Insofar as necessary, in terms of Rule 6(12), the usual
forms and service s provided for in the Uniform Rules of Court and/ or Practice
Directives are dispensed with.
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For the Second and Third
Respondents: No appearance
Date of hearing: 25 November 2025
Date order was granted: 25 November 2025
Date of reasons: 12 December 2025
MODE OF DELIVERY: This judgment is handed down by transmitting it to the parties’
legal representatives by email, uploading on CaseLines and release to SAFLII. The
date and time for delivery is deemed to be 10 am.
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