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Written by

Zelda Venter

Chief Reporter, Pretoria News



By Zelda Venter

 * Pretoria News
 * News


COURT RULES FAMILY CAN HONOUR WOMAN’S DYING WISH TO BE BURIED IN EASTERN CAPE

A Woman’s dying wish to be buried in the Eastern Cape has been honoured.
Picture: File

Published 12h ago

 | Published 12h ago



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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



Related Topics:

High Court of South AfricaDeaths and TributesCulture and TraditionHigh
CourtJudgecourt casesCancerBreast Cancer

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