SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG.
Case Number: 2026/053364
P[…] L[…] C […] 1st Applicant
T[…] G[…] C[…] 2nd Applicant
and
KINGS AND QUEENS FUNERAL PARLOUR 1 st
Respondent
DUBE 2nd
Respondent
____________________________________________________________________
JUDGMENT
____________________________________________________________________
NOKO J
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
1 April 2026
DATE SIGNATURE
2
Introduction
[1] The applicants launched urgent proceedings against the respondents for an order
interdicting the second respondent to release th e body of the Late C [...] K[…] (“the
Deceased”) to the applicants for burial in Cape Town, South Africa . The first applicant
(who is said to be South African , together with the deceased) a vers that as the surviving
spouse, she is entitled to bury the deceased. The second applicant is the son born of the
marriage between the applicant and the deceased , and supports the application for the
relief sought.
[2] The application is opposed by Johnson Mahoka Dube 1 a Zimbabwean citizen and
the deceased's elder brother, who disputes the existence of the marriage between the
deceased and the applicant. He further denies that the deceased and the first applicant are
South Africans and a sserts that the deceased’s real surname is Dube, not K […] . He
argues that the deceased should therefore be buried in Zimbabwe, he argues.
[3] The first respondent is a funeral undertaker at whose premises the mortal remains
of the deceased are kept. The first respondent is not participating in these proceedings ;
reference to the respondent shall refer to Johnson Mahoka Dube.
Background and parties’ versions
[4] The first applicant avers that she and the deceased were born in KwaZulu- Natal.
They became romantically involved in 1999 and were married in terms of customary law
on 21 November 2001. As evidence of the alleged marriage, the first applicant attached a
lobola letter to her founding papers . She states that there are two children born of the
marriage, namely T[…] G[…] C[…] , born on 8 January 2005, and N […] C[…] , born on
17 August 2009. They initially resided in Berea , Johannesburg and relocated to Cape
Town in 2018, where the deceased was running a security company.
[5] The deceased sustained burn injuries on 26 February 2026 and was transported to
Tygerberg Hospital by an ambulance, accompanied by the second applicant. The
Tygerberg Hospital by an ambulance, accompanied by the second applicant. The
1 The applicants did not identify the second respondent’s names in detail, and John Mahoka Dube avers that
he was authorised by the Dube family to oppose the application and has filed an affidavit titled ‘Second
Respondent’s Answering Affidavit’.
3
applicant states that during the journey to the hospital, the deceased told the second
applicant that if he were to die, he would wish to be buried in Cape Town. The deceased
succumbed to his injuries while at Tygerberg Hospital.
[6] The first applicant then went to the hospital with a funeral undertaker to transfer
the deceased’s body to a mortuary. She was astonished to be informed that a certain Mr
Dube visited the hospital and claimed the body, as to her knowledge, the deceased was
South African and had never claimed to be from Zimbabwe. The hospital informed her
that the deceased's body was released to Mr Dube.
[7] The first applicant later learned that the Dube family planned to travel to
Zimbabwe with the deceased’s body on 8 March 2026, and she immediately initiated
urgent proceedings for an interdict, scheduling it for that date. The parties agreed that,
since the Dube family intends to oppose the application and requires more time, the
matter should be moved to Tuesday, 10 March 2026. The second respondent undertook
that the deceased’s body would stay with the first respondent and not be taken to
Zimbabwe.
[8] The second respondent, on the other hand, agreed with the first applicant that the
deceased had two male children with the applicant. He states that the applicant is the
deceased's partner but is also Zimbabwean, with her correct name being S […] N[…] , and
her Zimbabwean Identity number is 2[…] . Furthermore, both the applicant and the
deceased may have fraudulently obtained South African identities and citizenship. He
also mentions that the applicant was not residing in South Africa with the deceased but
was living at the deceased's house in Zimbabwe. The respondent further indicated that
she had the deceased’s Zimbabwean mobile numbers through which the deceased sent
her money.
[9] In support of his averments , the second respondent stated that the first applicant
and the deceased are Zimbabwean and submitted copies of photographs taken during the
and the deceased are Zimbabwean and submitted copies of photographs taken during the
ceremony in Zimbabwe, at which the deceased and the applicant attended an event . The
respondent also included a copy of the Facebook page where the Dubes' family wished
the applicant a happy birthday.
4
[10] The respondent attached several confirmatory affidavits to his answering
affidavit, confirming various averments he made. Firstly, a confirmatory affidavit sworn
by T[..] N[…] , aged 35 and born on 24 April 1990, who is the deceased's eldest daughter.
Like her siblings (including the first applicant’s children), she does not use the deceased's
surname, and her mother is V[…] N[…] , a Zimbabwean citizen. She has a younger sister,
N[…] N…] , aged 12 and born on 30 September 2013, who is the deceased’s youngest
child. She attached photographs of herself with the second applicant (her stepbrother), a
photo of herself with the deceased, and another photo taken by the deceased and his
brother. She wishes for the deceased to be buried in Zimbabwe under customary law; in
the absence of a surviving spouse (as her father was unmarried), the decision regarding
the burial rests with her as the eldest daughter.
[11] A second confirmatory affidavit was sworn by Rangarirai Alfred Dube, who
stated that he is the deceased's cousin and that he arrived in South Africa with the
deceased in 1990. He was asked in March this year by the deceased’s stepmother to travel
to Tygerberg Hospital to identify the deceased’s body. He travelled to Cape Town with
his niece, Tjandapiwa Nkomo. He discovered that the deceased had been admitted under
the incorrect surname of K[…] , and through the investigating officer, Detective Williams,
was permitted to identify the body. A further confirmatory affidavit sworn by Tjandapiwa
Nkomo confirmed that she is a cousin of the deceased and that s he accompanied
Rangarirai Alfred Dube to Tygerberg Hospital.
[12] A third confirmatory affidavit was sworn by Arte Dube, stating that he went to
Cape Town to collect the body of the deceased on 6 March 2026. They were permitted to
take the body after presenting a handwritten letter from the Zimbabwean Consulate in
South Africa and a letter from the Zimbabwean authorities in Plumtree, where the
South Africa and a letter from the Zimbabwean authorities in Plumtree, where the
deceased was born. He positively identified the deceased. The hospital staff also
completed the necessary forms for the deceased’s release; the deceased’s surname was
changed from K […] to Dube before the body was released. They left Tygerberg on 7
March 2026, heading to Gauteng Province to prepare for their journey to Zimbabwe.
5
[13] On the first day of hearing before me, I directed that the parties obtain formal
status reports on the deceased from the Department of Home Affairs and the Zimbabwean
Embassy to be submitted within 48 hours. The official from the Department of Home
Affairs deposed to an affidavit under section 212 of the Criminal Procedure Act, stating
that the deceased was indeed a South African. The statement further noted that there had
been previous enquiries about the deceased’s status, which had been subsequently
resolved. At the time of the hearing, the Zimbabwean Embassy had not yet submitted a
report to the court.
Contentions and Submissions by the parties
Urgency
[14] Counsel for the applicant argued that the applicant satisfied the requirements for
urgency according to the court’s rules and directives. The application was filed urgently
because the available information indicated that the deceased would be taken to
Zimbabwe on 8 March 2026. The matter was moved to Tuesday, 10 March 2026, by
agreement between the parties. Counsel disputed the respondent’s claim that postponing
the application to Tuesday reduced its urgency, as it was requested by the respondent's
agreement to keep the first respondent in South Africa and to allow sufficient time to file
answering papers. To this end, the second respondent's claim that urgency was self -
created is unfounded.
[15] The counsel for the applicant s also contended that the y would not obtain
substantial redress if the application was launched under normal circumstances. The
deceased's body would have been transported and buried in Zimbabwe. The costs
associated with the exhumation and repatriation would be prohibitive.
[16] The respondent's counsel expressed regret at being given only a brief two- hour
period to oppose and respond to the application. Furthermore, the applicant failed to
comply with the rules governing urgent court procedures and related directives.
comply with the rules governing urgent court procedures and related directives.
Specifically, the applicant did not provide details explaining the basis for the urgency.
Additionally, the respondent’s counsel argued that the second requirement of the absence
of substantial redress was also satisfied, particularly as the applicant could have obtained
6
substantial redress by exhuming the remains if the matter was ultimately decided in her
favour.
[17] Having considered the submissions from both parties, I find that the application is
indeed urgent and that non-compliance with deadlines, forms, directives, and time frames
is tolerated.
Merits
[18] The counsel for the applicant argued that the evidence before the court, supported
by a statement from the Department of Home Affairs, clearly shows that the deceased
was a South African. This assertion was made despite the Home Affairs official's
statement that the deceased had previously been flagged and cleared.
[19] The applicant’s counsel further submitted, without conceding any challenge to the
marriage, that the court should consider the wishes of the deceased’s children and that the
second applicant, as one of the children, should have the final say. The counsel referred
to Mankahla,
2 where the court held that in the absence of a will, the surviving spouse, or
failing that, the children, have the right to decide. In Mankahla, 3 the children were still
minors, and the court, acting as their guardian, ordered that the funeral service be held in
their hometown.
[20] The applicant’s counsel further referred to Mnyama
4 where the court had to . inter
alia, consider the admissibility of hearsay evidence in the interest of justice as
contemplated in section 3(1)(c) of the Law of Evidence Amendment Act ,5 and concluded
that verbal wishes conveyed by the deceased regarding his burial may be accepted. The
court in that case had regard to the probative value of the evi dence and analysed it to
determine whether it had sufficient cogency to warrant its acceptance.
2 Mankahla v Matiwane 1989 (2) SA 920.
3 Id.
4 Mnyama v Gxalaba and Another 1990 (1) SA 650 (C).
5 45 of 1988.
7
[21] In conclusion, the applicant’s counsel submitted that when there remains a dispute
or uncertainty arising from the children’s wishes, the court should consider the
circumstances leading up to the death. In this regard, the deceased has been in South
Africa since birth and has lived with the applicant and their two children in Cape Town.
The deceased also informed the second applicant that his wish is to be buried in Cape
Town.
[22] The respondent’s counsel, on the other hand, argues that there is overwhelming
evidence from the respondent and his relatives indicating that the deceased is a
Zimbabwean citizen. The Consulate has already confirmed this position prior to releasing
his body from Tygerberg Hospital. The first applicant also attended a discussion meeting
with the family shortly after the death to arrange the burial , but then decided to withdraw
for no apparent reason.
[23] The respondent further argues that the applicant has not met the requirements for
a final interdict. Significantly, he argued, the applicant failed to demonstrate a clear right,
as the l obola letter does not constitute proof of marriage. In any case, the argument
continued, the deceased body in the respondent's possession is that of C […] D[..],
whereas the applicants seek an order for the release of C […] K[…] . However, the
counsel admitted that the court is not barred from ordering the release of C […] D[…] 's
remains.
[24] Since the marriage is being disputed and there are no legislative provisions
governing burial rights, respondent’s counsel argued that the court should follow
common law, which states that, in the absence of the spouse, the eldest child, then the
parents, and finally the siblings would need to decide on the funeral. In this case, the
eldest daughter has expressed her wishes to bury the deceased in Zimbabwe. The counsel
was quick to acknowledge that the principle of primogeniture has been abolished.
Issues
was quick to acknowledge that the principle of primogeniture has been abolished.
Issues
[25] The issues for the determination are w hether the application is urgent and who
bears the burial rights.
8
Legal principles and discussion
[26] The parties acknowledge that, generally, the priority for who assumes
responsibilities and rights to bury a deceased person would be the person named in the
Will, failing which the surviving spouse ,6 then th e children , parents and thereafter the
siblings. There is a dispute between the parties as to whether the deceased was married to
the applicant. The respondent contends that the deceased was Zimbabwean and that the
marriage would have been negotiated with the Dube family. Whereas the first applicant
contends that , as a South African, the customary law was followed. This court cannot
determine the dispute regarding the validity of the marriage, which is closely linked to the
citizenship status of the first applicant and the deceased, which would require oral
evidence. As will be shown below, the determination of the validity of the marriage does
not preclude determining the question of burial, which is the issue before this court.
[27] The legal position agreed upon by both parties is that the children of the deceased
have the right to decide on burial when there is no will. The parties further recognised
that the principle of primogeniture is outlawed in South Africa. Therefore, the right to
decide does not solely rest with the eldest child. It is undisputed between the parties that
the applicant and the deceased have two children, and the applicant disputes that the
deceased was not a Zimbabwean and is unaware of any family members in that country.
It follows, therefore, that the paternity of the two Zimbabwean female children is
disputed. Based on the undisputed evidence regarding the deceased ’s children, one of
whom is the second applicant, I conclude that his decision should be taken into
consideration. The second applicant’s brother, who was born in 2009, is a minor, and his
well-being is to be decided by the court as the upper guardian of the minor children.
7 I
well-being is to be decided by the court as the upper guardian of the minor children.
7 I
therefore conclude that on behalf of the minor , the deceased should be buried in Cape
Town. My decision aligns with the wishes of the second applicant.
6 See also P.N. and O thers v P.N . (104659/2022) [2024] (18 September 2024) ; Sengadi V Tsambo
(40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018) confirmed by the SCA in
Tsambo v Sengadi (244/10) [2020] ZASCA 46 (30 April 2020)
7 See Mnyama above, fn 4.
9
[28] Even if the daughter’s wishes were to be accommodated, the counsel for the
applicants submitted that, when children's wishes are in conflict, the court, in Mahala’s
case, held that it should adopt a practical approach. The practical considerations in this
case are that he lived in South Africa for over thirty years as an adult, and that his cousin
(Rangarirai Alfred Dube) stated they arrived together in 1990. Both parties agreed that
the deceased had built his life in Cape Town. The deceased’s children resi de in Cape
Town. Critically, the evidence that the deceased informed the second applicant that he
wished to be buried in Cape Town was not gainsaid, and it overrides other considerations
and the parties' wishes, including those of the first applicant and the second respondent.
Conclusion
[29] I find that the decision regarding the burial rights would, in this case, not relate to
the citizenship of the deceased and/or the first applicant, nor to the validity of the
customary marriage. Based on these premises, I am convinced that a proper case has been
made for an order instructing the first and second respondents to release the mortal
remains of C[...] K[…] , whose surname is recorded as C […] D[…] , to the applicants for
burial.
[30] I am also persuaded that, in this case, the right to bury the deceased belongs to the
children. The harm would be irreparable, and there is no other satisfactory redress
available for the deceased's children. Of paramount importance are the deceased's
expressed wishes, which in this case were communicated to the second applicant. Several
factors were considered to prevent confusion arising from conflicting views among the
children. It is undeniable that harm exists, and the proposed remedy of exhumation by the
respondent is clearly untenable.
Costs
[31] The costs will follow the results.
Order
[32] As a result, I made the following order:
10
1. The Applicants’ non- compliance with the forms , service and directives of the
court is condoned, and this case is dealt with as urgent in terms of Rule 6(12) of
the Uniform Rules of Court.
2. The First and or Third Respondents are directed to release the remains of C […]
K[…] K[…] , registered as C […] D[…] with the First Respondent , to the
applicants.
3. The Applicants are authorised to bury the remains of C […] K[…] K[…] in Cape
Town.
4. The second respondent is ordered to pay the legal costs, including costs of counsel
on scale B, where so employed.
__________________
M V Noko
Judge of the High Court
DISCLAIMER: This judgment was prepared and authored by Judge Noko and is handed
down electronically by circulation to the Parties /their legal representatives by email and
by uploading it to the electronic file of this matter on Case Lines. The hand -down date is
1 April 2026.
Date of Hearing: 27 March 2026.
Date of Judgment: 1 April 2026.
Appearances:
For the Applicants: Lebethe D, instructed by Ndlovu-
Lebethe Attorneys, Randburg.
For Second Respondent: Samuel S, instructed by Sam Sekhu
Attorneys Inc., Braamfontein.