A family dispute over where the body of a loved one should be buried, turned into a legal dispute when the son of a deceased woman turned to court to obtain an urgent order that his mother had to be buried in the family graveyard, next to the family’s ancestors.
While the son and the family of the deceased wanted to transport her remains to KwaZulu-Natal to be buried there, the woman’s high school sweetheart, who said he was married to her, wanted to bury her in Johannesburg.
He refused to let the family of the deceased remove her body to take it to KZN.
He said as they were married, his ancestors were now part of her’s.
The Gauteng High Court, Johannesburg, earlier this month, on a Friday afternoon, on the eve of the funeral, ordered that the husband may bury her. This was after the son of the deceased turned to court in a bid to stay that funeral, so that they could bury her.
After losing their application, the son and the wife’s family wanted reasons from the court as to why it turned down their application. Acting Judge WJ du Plessis now delivered his reasons.
It was disputed by the family of the deceased that she was married to the respondent (the man claiming to be her husband).
Her son instituted the application on the basis that the respondent is not a family member of the deceased, and their relationship was merely based on informal cohabitation. Thus, as the first respondent is unrelated to the deceased, he has no legal burial rights in civil or customary law to make the burial arrangements and exercise the burial rights, the son said.
According to the son, all the family members are buried in the family’s burial site next to their ancestors. He stated that that is where the deceased wanted to be buried. They do not want to bury the deceased in an ancestrally unknown site, in the absence of her “real family”, far away from them.
The court was told that should she not be buried with her family, the family would experience bad luck and they would not be able to perform the necessary rituals.
The respondent in turn said that the deceased has never mentioned to him that she wants to be buried with her biological family. He explained that they were high school sweethearts in 1989; from that relationship, twins were born.
After some time, they separated, but they once again got together and they remained together for 15 years – up to the day of her death.
He said he approached her family to ask for her hand in marriage, which was accepted.
The applicant asserts that the negotiations remain incomplete as the respondent only paid two of the nine cows required. Thus, he cannot be the customary law spouse of the deceased, the son said.
The respondent, on the other hand, said he paid two cows and money for ilobolo (bride price), and the bride was handed over to him by her family at her homestead. Due to her giving birth to two children with other men, the ilobolo was reduced, he said.
He said he thus has a right to bury her and her ancestors became that of her husband.
Judge Du Plessis said here is sufficient information “before me to find that the balance of probabilities favours that the parties were married. There were lobola negotiations, and some lobola were paid”.
“After that payment, on the respondent’s version, there was a handing over of the deceased to his family. The fact that they cohabitated for such a long period tips the scale in favour of an interpretation that they were married.
“I have taken into account the applicant’s contention that his mother should be buried with her ancestors, and I have taken into account that the respondent stated that since she is married to him, she should be buried with his family.”
In ordering in favour of the husband, the judge said he is aware that his decision caused pain to the already grieving applicant and the family in KwaZulu-Natal, who wanted the deceased buried close by in their family graveyard.
“This almost impossible decision was not taken lightly,” the judge said.
Pretoria News
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