The mother and children of a man who died after he was shot are at loggerheads with his wife, as she wants to have the dead man cremated, while the mother and children want him buried.
The disagreement between the parties turned in the Gauteng High Court, Johannesburg, where the wife asked for an urgent order that her wishes for a cremation be honoured.
The application involved the method of exercising what is now known as burial rights. In the opening to his judgment, Judge Graham Moshoana explained that up to now, there were three known methods to dispose of a corpse.
Those are burial, cremation and aquamation. The most popular method among Africans is the burial method. This method entails placing the deceased’s body six-feet underground in a coffin and covering it over with soil.
The other method which is also gaining traction among Africans is cremation. This method entails the burning of a body to ashes. The fairly new method is one of aquamation. This method entails the use of an alkaline water solution to slowly and gently break down the body into a powder-like substance similar to cremated ashes, the judge explained.
The mother and children (applicants) prefer and insist on the burial method. They contend that the burial method accords with Zulu custom and culture. The deceased was apparently a staunch supporter of Zulu customs and traditions.
The wife (respondent), allegedly following the wishes of the deceased, prefers and insists on the cremation method.
Judge Moshoana commented that over and above the competing rights issue, this application pit methods of burial against cremation. He said from a biblical point of view, the Holy scripture states: “By the sweat of your brow you will eat food until you return to the ground since from it you were taken; for dust you are and to dust you will return.
“Proponents of both methods use Genesis 3:19 to support the burial and the cremation method. Seemingly, the phrase ‘return to the ground’ supports the burial and ‘to dust you will return’ supports the cremation method.”
But, the judge added, this judgment would not seek to elevate one method over another. It is not concerned with the question of which of the methods is morally acceptable and defensible. This judgment will concern itself with who has the right to choose a method.
The deceased, identified only as M in court papers, was married to the respondent (the surviving spouse) by civil rights in 2017. They lived together in their home in Meerdale in Johannesburg.
The applicants labelled the wife as “the estranged wife”, although they lived together until his death.
The judge said in a weak attempt to bolster the alleged estrangement, the applicants conveniently alleged that before his death, the deceased had expressed to his mother, uncle and attorney his intention to divorce her.
“The applicants were so brazen to even suggest that divorce summons was issued but the surviving spouse refused to accept service thereof, yet a copy of the issued summons was not availed to this court.”
The deceased left home earlier this month to visit a place identified in the court papers as Mai-Mai. In due course, the wife received a call from the friend of the deceased to come to Mai-Mai because the deceased had been shot. He subsequently died.
The family gathered to arrange the funeral, during which the wife mentioned to all present that the deceased had expressed the wish to be cremated instead of buried.
The family did not expressly object to the wish but sought an undertaking from the wife to have the ashes released to them for burial. The surviving wife did not provide such an undertaking there and then.
As a result, a cremation process was scheduled to take place on September 13. Owing to the request to perform certain rituals before the cremation could take place, the cremation was rescheduled.
Unbeknown to the wife, the applicants launched the present application, which they said they had the constitutional right to choose the method of burial.
In turning down the mother and the children’s application as they have no burial rights, Judge Moshoana said none of the rights of the children as protected in the Constitution are implicated by the choice of the disposal of the body method.
In addressing the applicants’ argument, that they had cultural rights to choose how the deceased’s body should be disposed of, the judge said there was no clear cultural rights demonstrated that the Zulu nation did not cremate.
“On the contrary, the surviving spouse presented uncontested evidence that in the immediate family of the deceased, three deceased bodies were cremated.” The judge also pointed out that the wife, in no uncertain terms, told the family her husband’s wish was to be cremated.
“This court must accept that in the Zulu culture, the likes of the deceased are accommodated. On the balance of probabilities, although there might be negative attitudes towards cremation as a disposal method, based on the Intando KaMufi practice, the culture does accommodate cremation.”
Regarding the allegation that the deceased and wife were estranged and due to get divorced, the judge said at the time of his death, they were still married
“Warring married parties do sometimes reach a reconciliation, even at the doorsteps of a divorce court.”
Judge Moshoana added that in his view, the family members, when compared with a surviving spouse, do not enjoy burial rights of the deceased spouse. Only a surviving spouse enjoys the burial rights.
In turning to the argument by the applicants that as the deceased was shot, his body may be required to be exhumed as part of the criminal investigation into his death.
But the judge said this argument is not only fanciful but it is also speculative. He pointed out that the deceased died of a bullet wound, thus there cannot be speculations as to how he passed.
Pretoria News
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