Pretoria - A Woman’s dying wish that she should be buried in the Eastern Cape, where her roots are, has been honoured by the Gauteng High Court, Johannesburg.
The father of her five children turned to court to have her buried in Johannesburg so that they could visit her grave at any time.
While the applicant, only identified by the judge as DM, was set on burying the deceased in Johannesburg, her family was set on removing her body from the funeral parlour to take it to the Eastern Cape.
Both parties have already arranged a funeral for this weekend – one in Johannesburg and the other one in the Eastern Cape.
In deciding over the tug-of-war between the families over the body, Judge Stuart Wilson remarked that it should not really be up to the courts to decide where a person’s final resting place should be as there are so many emotional and cultural aspects involved. He said the fact that the parties felt compelled to decide matters in this way could only have compounded their pain and grief and that of those who knew and loved ZN (the deceased).
“I am not one of those people, and it is, in my view, profoundly sad that it should have fallen on me to issue the decision I was called upon to make,” the judge commented.
The applicant told the court that he was the customary law husband of ZN. She recently died of breast cancer at the age of 40.
The applicant asked the court to also declare that he was married to ZN in terms of customary law.
He also asked that the family of the deceased be interdicted from removing her body from the funeral parlour.
The family of the deceased strongly denied that the couple were married, and said that she needed to “go home” to be buried in the family graveyard in the Eastern Cape.
The judge said sometimes people make detailed provision for the manner and location of their funeral in their wills. When they do not, and do not otherwise make their wishes clear, the common law provides that the right to bury accrues to their testate or intestate heirs or, failing that, to what have been called “legitimate children or blood relations”.
He, however, added that judges have long been reluctant to be too rigid in these applications.
“They have also, quite rightly, recognised that the common law ought not to be applied in disputes concerning a deceased individual who has arranged their affairs according to customary law and who expects customary law to apply after their death.”
Judge Wilson said in the context of burial litigation, there are problems with ascertaining what customary law is in any particular case, since the content of that law will generally have to be proved, sometimes by way of oral evidence.
That sort of evidence is unlikely to make its way before a court in an urgent application, which is the type of proceeding in which the right to bury is most often contested.
He also noted that from some of the reported cases litigants seeking to assert burial rights often rush to court to obtain orders dealing with the deceased person’s marital status at the time of their death. They then argue that the right to bury accrues to the customary law spouse if the marriage is proved and to the deceased person’s family if it is not.
According to Judge Wilson, the wishes of the deceased person, where these are known, should play a role in determining the last resting place.
In this case, whether DM was ZN’s customary law husband is hotly disputed, both factually and legally.
It was not disputed, however, that DM and ZN were in a loving relationship for many years and that they had children together. That relationship only ended when ZN died.
The judge said he did not need to determine whether the applicant and the deceased were, in fact, married.
“DM was as close to ZN as any husband, and his wishes about where ZN should be laid to rest received as much weight in my decision-making as they would have done had I been able to conclude on the papers that he was ZN’s customary law spouse.”
The judge, referring to ZN’s wish, said she stated eight days before she died that she wanted her family to take her home with them to the Eastern Cape. Her family understood that to mean that she wished to return to her familial home in the Eastern Cape to be buried.
“ZN was so close to death she could not have thought that visiting the familial home while she was still alive was a realistic prospect. ZN must have been referring to where she wanted her final resting place to be,” the judge said.
The applicant, meanwhile, relied on what one of their children had told him, that she wanted to be buried in Johannesburg to be close to all of them.
The judge, in the end, ordered that she be taken to the Eastern Cape to be buried on the family plot. He added that her family had to fully include the applicant and the children in the funeral proceedings.
Pretoria News