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IN THE HIGH COURT OF SOUTH AFRICA(ORANGE FREE STATE PROVINCIAL DIVISION)
Case No.: 1177/2004
In the matter between:
MATTHEWS THABO YONA Applicant
a nd
ZANYIWE THELMA RAKOTSOANE First RespondentTHABISO RAKOTSOANE Second RespondentTHEMBALETHU FUNERAL PARLOUR Third Respondent
_____________________________________________________________________
CORAM: RAMPAI, J_____________________________________________________________________
HEARD ON: 6 MAY 2004_____________________________________________________________________
DELIVERED ON: 5 AUGUSTUS 2004_____________________________________________________________________
[1] The matter first came by way of an urgent application on Thursday,
22 April 2004, before Van der Merwe, J. He granted the rule nisi
returnable on Thursday, 29 April 2004. On the return date the rule
nisi was extended until Thursday 6 May 2004. On that day I heard
argument for the confirmation and for the discharge of the rule nisi.
Having heard argument I discharged the rule nisi but gave no
reasons. These then are my reasons for the order I gave.
[2] This case is about the burial of a deceased person. The deceased,
Nthabiseng Joyce Yona exRakotsoane, was born at Philippolis on
23 October 1975. The applicant is the deceased’s widower. He
and Nthabiseng were married to each other in community of
property in Bloemfontein on 2 December 1999. She was a
housewife. He was a prison warder. Three dependent minor
children were born of the couple’s marriage, namely D., a girl born
on [day/month] 1994, N., a girl born on [day/month] 2000, and L.,
a girl born on [day/month] 2001. Nthabiseng took ill in December
2003. On 12 February 2004 she was admitted to the MediClinic
in Bloemfontein where she was diagnosed with cancer of the liver.
She was hospitalised there until 21 February 2004. On that day it
seems she was transferred to Willow MedClinic also in
Bloemfontein where she died on Tuesday, 13 April 2004.
[3] The first respondent is the mother to the deceased Nthabiseng
whereas the second respondent is her brother. The first respondent
is a pensioner. She lives at Philippolis. Her husband predeceased
Nthabiseng. The second respondent is a teacher. He lives in
Bloemfontein. Subsequent to Nthabiseng’s death these two
respondents removed her corpse from Avbob Funeral Undertaker
in Bloemfontein. The corpse was then delivered to the third
2
respondent, Thembalethu Funeral Parlour at Philippolis. The
funeral arrangements were made by the respondents to lay
Nthabiseng to rest at Philippolis on Satursday, 24 April 2004. The
applicant, on the other hand, was also planning to bury his
deceased wife on the same day but in Bloemfontein and not
Philippolis. It was that conflict which led to the launching of these
proceedings.
[4] There are two crucial questions the court is called upon to
determine in these urgent proceedings. The first issue to be
determined is the final place of rest for the deceased. The second
issue to be determined is the person whose privilege it must be to
bury the deceased.
[5] Mr Daffue, counsel for the applicant, on the one hand, submitted
that the applicant had made out a proper case for the relief he
sought which, positively stated, is that he be granted an order
authorising him to bury the deceased here in Bloemfontein. He
urged me to confirm the rule nisi. He then referred me to the
following authorities in support of the various submissions he
made:
3
Section 1(1)(c)(i) Intestate Succession Act No. 81/1987;Boberg: The Law of Persons and Family 1977 at p.23;
SAIID v SCHATZ 1972 (1) SA 491 )TPD) at 494E;HUMAN v HUMAN 1975 (2) SA 251 (ECD);GONSALVES & ANOTHER v GONSALVES & ANOTHER
1985 (3) SA 507 TPD;
MBANJWA v MONA 1977 (4) SA 403 (Tk);
SEKELENI v SEKELENI & ANOTHER 1986 (2) SA 176 (Tk);TSEOLA & ANOTHER v MAQUTU & ANOTHER 1976 (2)
SA 418 (Tk);
MANKAHLA v MATIWANE 1989 (2) SA 920 (Ck);
MNYAMA v GXALABA & ANOTHER 1990 (1) SA 650 (CPD)
MABULU v THYS & ANOTHER 1993 (4) SA 701 (SEC) at 703B;Schäffer Family Law Service: Succession p.57;
De Wall et al : Law of Succession p.1114.
[6] Mr Snellenburg, counsel for the respondents, on the other hand,
submitted that the applicant had failed to make out a case for the
final relief sought. He urged me to discharge the rule nisi so as to
allow the first and second respondents to bury the deceased. He
too referred me to the following authorities in support of the
various submissions he made:
4
CAPE TEX ENGINEERING WORKS (PTY) LTD v SAB
LINES (PTY) LTD 1968 (2) SA 528 (C) at 529 – 530;
STELLENBOSCH FARMERS’ WINERY LTD v STELLENVALE WINERY (PTY) LTD 1957 (4) SA 234 CPD at 235DG;PLASCONEVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984 (3) SA 623 AD at 634E635C;TRIOMF KUNSMIS (EDMS) BPK v AE&CI BPK EN ANDERE 1984 (2) SA 255 (WLD) at 269CG;BAYAT & OTHERS v HANSA & ANOTHER 1955 (3) SA 547 (NPD) at 553CE;DIE MEESTER v JOUBERT EN ANDERE 1981 (4) SA 211 AD at 226H;
POUNTA’S TRUSTEE v LAHANAS 1924 WLD 67 on 68;
SEKELENI v SEKELENI & ANOTHER 1986 (2) SA 176 (Tk)
on 178;
MABULU v THYS & ANOTHER 1993 (4) SA 701 (SEC);
TROLLIP v DU PLESSIS EN ‘N ANDER 2002 (2) SA 242
(WLD) on 245 – 246;
PHASE ELECTRIC CO (PTY) LTD v ZINMANS ELECTRICAL SALES (PTY) LTD 1973 (3) SA 914 (WLD);LEVINSONS MEAT PRODUCTS (EDMS) BPK v ADDISIONELE LANDDROS KEIMOES EN ‘N ANDER 1981 (2) SA 562 (NCD).
[7] Before I examine the merits, let me first deal with a preliminary
issue raised in the replying affidavit. The applicant also
5
endeavoured to rely on indigenous customary rites. In
POUNTA’S TRUSTEE v LAHANAS 1924 WLD 67 on 68
Krause J stated the rule as follows:
“I think it has been laid down in this Court repeatedly, that an applicant
must stand or fall by his petition and the facts alleged therein, and that,
although sometimes it is permissible to supplement the allegations
contained in the petition, still the main foundation of the application is
the allegation of facts stated therein, because those are the facts which
the respondent is called upon either to affirm or deny.”
[8] The principle of our law of civil procedure is that all the essential
averments must appears in the founding affidavit. See
SHEPHARD v TUCKERS LAND & DEVELOPMENT
CORPORATION (PTY) LTD 1978 () SA 173 (W) at 177GH
per Nestadt, J. See also TRIOMF KUNSMIS (EDMS) BPK v
AE&CI BPK EN ANDERE (supra), BAYAT & OTHERS v
HANSA AND ANOTHER (supra) and DIE MEESTER v
JOUBERT EN ANDERE (supra). Therefore the applicant’s
belated attempt to rely on cultural rites or customary right is
impermissible. Seeing that the applicant seeks a final interdict in
these proceedings, the affidavits have to be adjudicated on the basis
6
that the averments of the respondents are true. The action has to be
adjudicated on the strength of the respondents’ version together
with the applicant’s version to the extent that it is admitted by the
respondent.
[9] This is an inevitable consequence when the court is asked to grant
a final relief on motion proceedings instead of action proceedings.
The court will not evaluate or balance the inherent probabilities of
the conflicting versions. Instead it will proceed from the premise
that the respondent’s exposition is accepted as the truth (vide
STELLENBOSCH FARMERS’ WINERY LTD v
STELLENVALE WINERY (PTY) LTD supra, CAPE TEX
ENGINEERING WORKS (PTY) LTD v SAB LINES (PTY)
LTD at 529G530C and PLASCONEVANS PAINTS (PTY)
LTD v VAN RIEBEECK PAINTS (PTY) LTD supra at
634E635C).
It follows from the above that the solution to this problem had to be
sought by applying common law and not indigenous law. The
gravamen of the applicant’s cause of action based on common law
is that he is the sole heir of the deceased’s estate. This contention,
7
so argued Mr Daffue, is based on section 1 Intestate Succession
Act No. 81/1987 in particular subsection (1)(c)(i) thereof which
provides that if a person dies intestate and is survived by a spouse
as well as a descendant such a surviving spouse shall inherit a
child’s share or so much as does not exceed the ministerial
statutory limit whichever is the greater. By virtue of this section, it
was contended on behalf of the applicant that he was the sole heir
ab intestato. Since there are three surviving minor children, the
applicant cannot be treated as the sole heir of the deceased’s estate
although he is the sole guardian of the deceased’s children. Sub
section (1)(c)(i) relates to coheirs and applies to the instant case
because there are three surviving children. At best for the
applicant, it may be said that he is the prime heir. The position of
the sole heir is governed by subsection (1)(a). Such a surviving
spouse inherits the whole intestate estate, since there is no
surviving descendants in such a scenario. But subsection (1)(a)
does not apply here, since there are three surviving dependants.
Section 1(1)(c)(i) is in effect an extension of the third rule of the
burial principle. The third rule only refers to the blood relations of
the deceased as the intestate heirs. Since this enactment the
surviving spouse is expressly included among the intestate heirs.
8
In fact, the section makes the surviving spouse the prime heir in the
sense that the surviving spouse is now the only intestate heir who is
entitled to inherit a greater share than the child’s share.
[10] To begin with, I proceed to examine the allegations of facts in an
endeavour to find an answer to the first question. At the heart of
the enquiry is a document described as Annexure “C” which
appears on p.20 of the paginated court record. See p.69 for the
original thereof. It is written in Sesotho. It reads as follows:
“NNA NTHABISENG JOYCE RAKOTSOANE (YONA)
Nka Thabela tse latelang ha nka hlokahala Bana ba ka ba Bararo
eleng:
D.Y.
N.Y.L.Y. b a fuwe motswadi wa ka eleng ZANYIWE THELMA
RAKOTSOANE hobane ntate wa bona ha, ana tlhokomelo e ntle
baneng.
Sabobedi ke kopa hore boroko ba ka ba qetelo ke ilo bo robala haeso Philippolis. Dikopo tsena ke di etsa kopo e kgolo. Ho tswa ho nna Nthabiseng. 2004.03.16
R. Bothma 16.03.2004
N.P. Rakotsoane 16.03.2004.”
[11] The English translation thereof by Mr B.B. Mncayi, our senior
9
court interpreter, appears on p.70 of the paginated record. It reads
as follows:
“I, Nthabiseng Joyce Rakotsoane (Yona)
I would be pleased if the following could happen should I die. I have
three children namely, D.Y., N.Y. and L.Y..
The custody of the children has been given to my parent (mother) whose name is Zanyiwe Thelma Rakotsoane because their father does not care properly for the children.Secondly, my request is that should I die I must be laid to rest at my home town which is Philippolis.
I make these requests with great respect.
FromNthabiseng. Signed 20040316Signed 16032004Signed 16032004.”
[12] In his founding affidavit the applicant vehemently denied the
authenticity of the aforesaid document on the following grounds:
That Nthabiseng was too ill on 16 March 2004 to execute the
document; that the handwriting was not hers; that her signature
does not appear on the document; that she did not inform him
about her wish to be buried at Philippolis; that she regarded
Bloemfontein as her permanent home and that neither the first nor
the second respondent informed him about the document until they
had removed the corpse from Avbob Funeral Undertaker. He
believed, for these reasons, that the document was not authentic but
a fake fabricated by the members of Nthabiseng’s family.
10
[13] In their answering affidavit the first two respondents deny that the
document was not a genuine document. They deny that either of
them or any member of their family was the author of the disputed
document. In support of their contention, that Nthabiseng was the
true author thereof, they annexed three sworn statements.
[14] In determining whether the disputed document is a dying
declaration or not, the law commands that such a disputed
document has to satisfy certain requirements. Those were set out
in R v ABDULL OTHERS 1905 TSC 199, where Innes, CJ had
this to say about a dying declaration:
“In order that the dying declaration may be admitted as evidence, the
rule is that three things must have occurred: the person must have
been in danger of impending death; he must have realised the extent of
his danger so as to have given up all hope of life and death must have
ensued.”
See also MADALA JIM NDLOVU v RAMOCOELA & 2
OTHERS, an unreported decision of this court, Case No.
11
4144/2000, per Rampai, J on p.32 – 36 which was delivered on 25
January 2001.
[15] As we now know Nthabiseng was hospitalised on 12 February
2004. Her condition gradually deteriorated. She was suffering
from cancer, a deadly illness. She was in danger of eminent death.
There is no question about it. Her doctor probably advised her that
her condition was terminal. She must have realised that the last
chapter of her life was about to be closed. Eight weeks later she
departed from this lower valley of tears. On 13 April 2004
Nthabiseng was declared dead.
[16] Four weeks after her hospitalisation and four weeks prior to her
death, the disputed deathnote came into existence. Put differently:
Nthabiseng was four weeks in hospital when the disputed death
note was apparently written. Four weeks later Nthabiseng died.
The disputed deathnote was written on the printed letterheads of
Afrox Healthcare Hospitals. One of those group of hospitals was
Willow MedClinic where Nthabiseng was still hospitalised at the
time the disputed deathnote was apparently written. The note was
written in Sesotho, which happened to be Nthabiseng’s mother
12
tongue. The author foresaw and anticipated her death as eminent
and inevitable. The note recorded the author’s express wish to be
buried at Philippolis, which happened to be Nthabiseng’s place of
birth. Though the note made no direct mention of the applicant’s
name, it indirectly referred to the father of specific minor children.
Four weeks after the execution of the disputed note, Nthabiseng
died in hospital. All these factors have moved me to conclude that
the aforesaid requirements of a dying declaration have, on a
balance of probabilities, been satisfied. Who then was the author of
the dying declaration which has so much in common with
Nthabiseng?
[17] Ms Nokwenzani Rakotsoane, Nthabiseng’s sisterinlaw stated on
oath that she witnessed the writing of the note. Ms Rhona Bothma,
Nthabiseng’s friend, made precisely the same averment in her
supporting affidavit. These two supporting affidavits added a
considerable amount of weight to the version of the respondents.
The applicant cried a foul play by Nthabiseng’s family. But could
advance or suggest no reason at all why Ms Bothma, a neutral
person with no interest in the matter, would fabricate such a story
or support the alleged family conspiracy. In my view the applicant
13
failed to rebut this crucial averment that Nthabiseng was the true
author of the note. His repeated denial and allegations of
conspiracy were not substantiated at all. They were indeed bald and
wild allegations.
[18] I accept the veracity of the version of the respondents as backed up
by the two ladies Ms Rakotsoane and Ms Bothma. Moreover, I
have no reason to doubt the veracity of Dr J.D.E. Cronje that on 16
March 2004 Nthabiseng was mentis compos. Therefore there is no
room for the applicant’s unsubstantiated allegation that Nthabiseng
was incapable of writing the note in question. It is not the
applicant’s case that on 16 March 2004 he was with his terminally
ill wife in hospital and that her condition was so weak that she
could hardly write. Having considered all these various factors I
have come to the conclusion that the aforesaid note was, on a
balance of probability, a genuine deathnote or dying declaration
executed by Nthabiseng. The cumulative impact of the
circumstantial evidence and the direct evidence is compelling.
[19] Her wish was that she should be laid to rest at Philippolis, her
birthplace. Such wish was legitimate and has to be honoured. Her
14
mother, the first respondent, still lived there. Certainly she knew
that she and her husband had been living together in Bloemfontein
for about 10 years. Notwithstanding this fact, she made a
conscious decision as regards her final place of rest. Philippolis
where her mother lived was her preferred place for her burial and
not Bloemfontein where her husband lived.
Nthabiseng made a compassionate plea that her mother be allowed
to care for her three daughters and to bring them up. Her two little
daughters were already staying with their maternal grandmother
with the consent of their father.
In SAIID v SCHATZ (supra) the deceased woman’s brother
alleged that his deceased sister wished to be buried in accordance
with the Islamic rites. He alleged the deceased’s wish was
contained in a letter. But he failed to prove the letter relied upon.
The surviving husband won. The brother lost out. The rule nisi
was discharged on that ground. In casu the deceased’s wish had
been proven.
In HUMAN v HUMAN (supra) the deceased man’s daughter
15
alleged that her deceased father wished to be buried at Queenstown
and not Vereeniging where the deceased’s widow wanted to bury
him. The daughter alleged that the deceased’s wish was orally
expressed from his deathbed. Cloete, J in discharging the rule nisi
and thereby rejecting the daughter’s reliance on an unproven oral
wish said that the dying person’s desire as to where he must be
buried was of a mere sentimental importance.
In TSEOLA & ANOTHER v MAQUTU (supra) Munnik CJ said
that where the deceased had given no testamentary directions the
heir had the duty and the right to bury the deceased wherever he
wanted.
In GONSALVES & ANOTHER v GONSALVES &
ANOTHER (supra) the court said in pretty much a similar vein
that it was the duty and therefore the right of the heir to decide
upon the deceased’s last place of rest where no testamentary
directions have been given.
[20] In all these cases the emphasis was placed on the wishes of the
16
deceased expressed in a formal instrument, the will. The
impression was almost created in some cases that the wishes of the
deceased expressed in an informal instrument such as a letter or
dying declaration or word of mouth were of no legal significance.
The legal commentator Prof. T.W. Price also once wrote that in our
law directions in the will as to the disposal of the body must be
followed (vide SALJ (?) vol 68 p.403).
The trend took another turn in SEKELENI v SEKELENI (supra)
where Lombard, J elucidated the legal position succinctly as
follows at p.178:
“Our law would indeed seem to be defective if it cannot give effect to
a person’s wishes regarding his burial, whether expressed formally or
informally.”
This is in line with the exposition by VOET 11.7.7 of the first rule
of the burial principle.
In giving effect to the legitimate, practical and reasonable wishes
of the deceased our courts should not be unduly influenced by the
17
selfish wishes of the surviving spouse either as the sole heir or co
heir. However, if the deceased spouse has left no last wishes
enveloped in a formal instrument or informal instrument then the
wishes of the surviving spouse are paramount and should prevail.
In the instant case they are not and should not. (Vide Prof. Price
supra).
[21] It follows from the above that the first question must be answered
in favour of the respondents. The corpse of Nthabiseng must be
buried at Philippolis in accordance with her written dying
declaration executed in Bloemfontein on 16 March 2004.
[22] I turn now to the second leg of the enquiry. Here the question is
who must bury the deceased. Nthabiseng is survived by her
husband and three dependent minor daughters. The burial
principle of common law applies. The first three rules of the burial
principle are worth reciting here. Voet: 11.7.7 Commentary on
the Pandects gives an exposition of the principle as follows:
“ 1. Person chosen by the deceased must bury:
“The funeral besides must be carried out by him whom
18
the person departing this life has chosen.”
2. Who may bury if none chosen? If the deceased did not impose
the duty of burial on anyone, the matter will affect those who
have been named in the last will as the heirs.
3. Who may bury if none chosen? If no one has been so named, it
affects the legitimate children or the blood relations each in
their order of succession.”
[23] In the case of SEKELENI v SEKELENI supra the court held, per
Lombard J, that it was permissible for the deceased to nominate a
person to bury him or her by way of a written albeit a non
testamentary document. In the instant case and in terms of the
deathnote the deceased did not nominate any specific person to
bury her. Therefore, the first rule of the burial principle does not
apply.
[24] Nthabiseng did not execute a valid will during her lifetime. She
died intestate. Since she left no will behind, it follows without
saying that there are no testamentary heirs or heiresses. Nobody
can claim the privilege to bury her by virtue of any testamentary
nomination. Therefore, the second rule of the burial principle does
not apply.
19
[25] Since the deceased died intestate it is the duty of her intestate heirs
or heiresses to bury her. The deceased’s spouse is her chief
intestate heir. See section 1(1)(c)(i) of the Succession Act. He and
her children are entitled to share her estate. Nthabiseng has left
behind three surviving children and their father who was her
lawfully wedded husband is her prime heir.
All things being equal, the duty to bury her would have fallen upon him to bury her at her chosen place, Philippolis. Therefore the third rule would have applied.
[26] In his founding affidavit the applicant averred that the first and
second respondents removed the corpse of his wife from
Bloemfontein to Philippolis in a clandestine manner. The removal
constituted an injury to his right to bury his spouse. He was
reasonably apprehensive that the respondents were planning to
bury his deceased spouse at Philippolis contrary to his wish to bury
her in Bloemfontein. He feared that he would suffer irreparable
harm unless the respondents were interdicted as a matter of great
urgency from proceeding with the funeral arrangements of his
spouse. He averred that he was remediless unless the relief he
20
sought was granted.
[27] In the answering affidavits the first and second respondents
answered that they took active steps to honour the last wish of the
deceased. They admitted that they indeed removed her corpse
from Bloemfontein to Philippolis in order to achieve that sacred
objective. In addition to this they averred that they made the
necessary funeral arrangements to have the deceased buried at her
chosen and final place of rest with the expressed consent of the
applicant. They averred that the applicant expressly consented that
the deceased’s corpse be released by the first funeral service
provider, Avbob Funeral Undertaker, to the respondents. They
denied that they secretly removed the corpse to Philippolis.
[28] The requisite of a final interdict are well known. They are, firstly,
that the applicant has a clear right which requires protection of the
law. Secondly, that an injury to that right has actually been
committed or that there is a reasonable apprehension or fear that
irreparable harm to such a right is about to be committed, and,
thirdly, that the applicant has no other ordinary and effective
remedy to protect his right. Vide SETLOGELO v SETLOGELO
21
supra. All these requisites must be established. Failure to prove
one of them is fatal to the applicant’s case.
[29] As regards the first requisite, the applicant’s case was that his right
to bury the deceased was based on the following: his marriage to
her; his status as her sole heir; his status as the father and natural
guardian of her children; his economic position as the sole bread
winner of the family unit; his view that Bloemfontein was her
permanent place of residence; and his view that she had not
expressed any genuine wish to be buried at any place other than
Bloemfontein. I deem it unnecessary to examine the content of the
applicant’s right in depth. Suffice to say that I have already made a
finding that the foundation of his right originates or stems from the
third rule of the burial principle. The majority of these grounds on
which the applicant relied are compatible to the third rule. I have
already made a finding that Annexure “C” embodied an authentic
written statement or declaration by the deceased and that it was
indeed a genuine expression of her last wish of the place where she
wanted to be laid to rest. The applicant’s strong challenge for the
rejection of the deceased’s express wish did nothing to bolster the
foundation of his right. On the contrary, it reflected negatively on
22
his objectivity.
[30] The burial principle makes it abundantly clear that the privilege or
the right of the surviving spouse to bury his or her deceased spouse
is subordinate to the written direction of the deceased spouse
concerning all the matters pertaining to the final disposal of the
corpse. The first rule lays down that the person nominated by the
deceased must bury. The second rule lays down that a person
nominated as an heir or heiress in terms of the deceased’s written
will, must bury. It is only in a case where virtually nobody can be
identified in terms of the first or the second rule that the surviving
spouse comes into the spotlight for consideration. Where
somebody can properly be identified in terms of either the first or
the second rule, the surviving spouse remains dormant and
ineligible to be considered. In such cases the wish of the deceased
spouse overrides the wish of the surviving spouse.
[31] Mr Daffue, counsel for the applicant, submitted, and correctly so,
that in the instant case the deceased did not nominate anyone to
bury her. In such a situation the statutory provision as well as the
third rule of the burial principle inform us that her surviving
23
husband must carry the burden of her burial. However, Mr
Snellenburg, counsel for the respondents, submitted that
notwithstanding the third rule of the burial principle, the issue as to
who must bury the deceased spouse, even in the absence of any
directive wish by the deceased, must be adjudicated with due
cognisance of the circumstances of the particular case and that due
regard must be had to the considerations of what is reasonable and
equitable. Vide TROLLIP v DU PLESSIS EN ANDER 2002 (2)
SA 242 (WLD) at 245I where Flemming, DJP observed that in
this type of cases the approach to be adopted is to search for a
solution which is the most equitable in the circumstances of each
particular case.
[32] The version of the respondents that the applicant gave them
permission to take possession of the corpse, to remove it from
Bloemfontein and to transport it to Philippolis has to be accepted as
true and not the applicant’s version that the corpse was secretly
taken away without his consent. (PLACONEVANS PAINTS
(PTY) LTD supra). In my view the applicant’s denial is
inherently unconvincing. Albert Coetzee, an employee of Avbob
24
Funeral Undertaker, had no interest whatsoever in the dispute. His
account of the dealings he had with the applicant supported the
version of the respondents. He confirmed that he released the
deceased’s corpse to the second respondent with the knowledge
and the consent of the applicant. He denied the suggestion that he
wrongly regarded a copy of Annexure “C” as a court order seeing
that it had been certified by the magistrate of Philippolis.
[33] I am persuaded to find that, on a balance of probability, the
applicant relinquished possession of the deceased’s corpse and
authorised Avbob Funeral Undertaker to release the corpse to the
second respondent’s family and allowed them to take the
deceased’s corpse to Philippolis for burial. The first and second
respondents acted in accordance with the consent of the applicant.
Their prime motive was to respect and to carry out the last wish of
Nthabiseng. It seems to me that the applicant’s prime motive is to
disregard Nthabiseng’s wish. By attacking Annexure “C”, the
deceased’s declared wish, the applicant made it clear that he had no
respect for the last wish of his wife. His attitude was in sharp
contrast to the attitudes of the first and second respondents. They
were determined to see to it that the last wish of Nthabiseng was
25
carried out. Nthabiseng’s last wish would certainly be undermined
if her burial was left in the hands of the applicant. The insensitive
attitude of the surviving spouse as evidenced by the selfish
unsympathetic unwillingness to respect the last earthly wishes of
his deceased spouse weighs heavily against the scale of equity.
The unselfish and sympathetic willingness of the deceased’s
mother to respect the last wish of her daughter is an honourable
commitment which gives the moral edge over the surviving spouse.
[34] The applicant had not incurred any funeral expenses for the
planned burial of Nthabiseng in Bloemfontein. The first and
second respondents, on the other hand, had already incurred funeral
expenses. It seems to me unreasonable, unfair and inequitable to
undo what has already been done so far by those whose noble
motive was to respect the last wish of their departed daughter and
sister. I am of the view that the applicant surrendered the privilege
or the right he had to bury his wife and that mighty considerations
of equity demand that he be held to the decision he made. The
consent he gave legally vitiated the very foundation of his right
which stemmed from the third rule of the burial principle and
section 1(1)(c)(i) Succession Act No. 81 of 1987. The
26
considerations of justice, fairness and equity strongly militate
against the idea of allowing the applicant to reclaim his lost
privilege, call it a right if you will, at the expense of the
respondents.
[35] For the reasons enumerated above, I have come to the conclusion
that the applicant has failed to make out a case for the final relief
he sought. Since he has not proven the first requisite of a final
interdict, namely a clear right which deserves the protection of the
law, the application has to fail. It becomes unnecessary and
academic to deal with the remaining requisites of the final interdict.
[36] The general rule is that the successful party is entitled to have the
costs paid by the unsuccessful party. I can see no reason in the
instant case why the general rule should not apply in favour of the
successful respondents.
[37] Accordingly I make the following orders:
37.1 The rule nisi is hereby discharged.37.2 The respondents are hereby authorised to bury the deceased,
Nthabiseng Joyce Yona exRakotsoane, at Philippolis in
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accordance with her dying wish.
37.3 The applicant is ordered to pay the costs of this application including the cost of the postponement of 29 April 2004.
________________M.H. RAMPAI, J
On behalf of Applicant: Adv. J.P. Daffueinstructed byNW Phalatsi & Partners
On behalf of 1 st & 2 nd Adv. N. SnellenburgRespondents: instructed by
Qwelane, Theron & van Niekerk
/scd
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