CIVIL
CASE NO. 1387/04
In
the matter between:
THANDI
FLORAH DLAMINI (NEE MYENI) 1st APPLICANT
SIBONISO
DLAMINI 2nd APPLICANT
ZANELE
DLAMINI 3rd APPLICANT
SICELO
DLAMINI 4TH APPLICANT
AND
PHILILE
DLAMINI (NEE CINDZI) 1st RESPONDENT
NTFULO
ELIAS DLAMINI 2nd RESPONDENT
SHONALANGA
UNDERTAKERS PIGGS PEAK 3rd RESPONDENT
CORAM
K.P. NKAMBULE
FOR
APPLICANTS S.C. DLAMINI
FOR
RESPONDENTS S.V. MDLADLA
RULING
27/5/04
This
application came before court under a certificate of urgency on the
21st May 2004. On this date the matter was postponed to the 26th May
2004 with an order that applicant who is one of the heirs of the
deceased filed an affidavit. The respondents were ordered not to
proceed with the burial until the matter was finalised.
Briefly,",
the background is as follows;
The
applicant Thandie F. Dlamini is the senior wife of the deceased.
Second, third and fourth applicants are children belonging to
applicant and the deceased who were born of a marriage contracted in
terms of Swazi law and custom. The marriage was solemnised in 1976 at
Herefords. The marriage produced six children some of whom are
applicants in this matter.
It
is common cause that in 2001 the deceased married first respondent at
Herefords and no children were born of this marriage. The second
respondent is the deceased brother. The deceased lived with the
applicant from the day of their marriage until 2001 when he married
first respondent and set up a home at Ekuthuleni.
The
order sought by the applicant was as follows:
1.
Dispensing with the usual time limits, forms and provisions of
service as are required in terms of the rules of court and that the
matter be heard as one of urgency.
2.
Pending finalisation of the matter:-
2.1
Declaring first applicant in collaboration with the second applicant
to have the sole burial rights in respect of the deceased.
2.2
Respondent to hand over the body of the deceased to the applicants.
2.3
First and second respondent pay the costs of this application.
When
the matter was heard on the 21st May 2004 Mr. Mdladla for respondent
raised points in limine from the bar as follows:-
Locus
standi
That
second applicant cannot bring this matter before court and as such
his affidavit should be struck out.
That
the marriage between the deceased and first applicant was nullified
after the deceased got married to the first respondent and as such
she is not competent to seek the order of this nature.
That
the applicant has not been able to satisfy the requirements of an
interim interdict.
Locus
standi
The
first question which arises is whether the first applicant or second
applicant has locus standi to claim the right to make the
arrangements for the funeral of the deceased. As already stated in
the background of this application that the first applicant is the
senior wife of the deceased and that the second applicant is the
first born son of the deceased AND first applicant, it therefore,
goes without doubt that they are both heirs of the deceased.
It
is common cause that the deceased died intestate. At the time of his
death he did not impose the duty of disposal of his remains to
anyone.
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In
regard to the principles that apply, I wish to refer to a number of
judgements and other relevant authorities. In Saiid Vs Schatz and
Another 1972 (1) SA 49 IT Moll J quoted the following principle with
approval at 494 B-C,
"It
is taken for granted that the heir (or in the Modem Law the executor)
must carry out all the terms of the will as far as possible. It
therefore follows in our law that directions in the will as to the
disposal of the body must, if possible and lawful, be followed.0
The
learned judge quoted the principle which was laid down by Voet as per
Gane's translations at 494 of this judgement;
"If
the deceased did not impose the duty of burial on anyone, the matter
would affect those who have been named in the last will as heirs. If
no one has been named, it affects the legitimate children or the
blood relations, each in their order of succession. If they are also
wanting, it is the duty of the magistracy to take care that the
deceased is buried.
This
approach was followed in the subsequent cases such as Human V Human
and Others 1975 (2) SA 251 (E) per Cloete AJP at 254 B. The learned
judge referred to a discussion of Voet by Dr. Manfred Nathan which
reads as follows:
"...That
person ought to perform funeral rights whom the deceased has chosen
for the purpose. If the person appointed does not carry out the
wishes of the deceased, he forfeits whatever has been left to him by
the deceased."
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"If
the deceased has appointed no one to perform them (that is the
funeral rights) the duty falls to the heirs nominated by the will: If
no heir is nominated the legitimate or cognate heirs who succeeded
must do so. Failing these, the duty of burying the deceased falls on
the civil authorities, at the expense of his estate."
At
page 254 H the learned judge concluded:
It
follows, therefore, and I come to the conclusion that the first
respondent is to be regarded as the heir of the deceased and, that
being so, it seems to me that I should follow in the absence of any
authorities to the contrary, the statement of the law in Voet that it
is the duty of the person named in the last will as heir to attend to
the funeral rights of the deceased."
The
next judgement in line in this point is Tseola and Another Vs Maqutu
1976 (2) SA 418. This was a judgement by MUNNIK CJ. In this judgement
the learned Chief Justice referred to the above mentioned judgements
(Saiid Vs Sehatz and Human Vs Human) and quoted the principles laid
down in those judgements with approval:
"Now
from these two cases it is quite clear that it is the duty and
therefore the right of the heir to bury the deceased and to use his
discretion in doing so where no testamentary directions have been
given."
In
the case of Mbanjwa Vs Mona 1977 (4) SA 403 the same judge was
dealing with a case of a deceased who died intestate. He stated as
follows in his conclusion:
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This
has two consequences. Firstly, it means that she left no discretions
as to her burial. Secondly,, it means that it is the duty and ,
therefore, the right of her intestate heirs to bury her and such
includes the choice of the place of burial as was said by Cloete J.
in Human's case supra",
Under
circumstances it seems to me to be settled law that it is the heirs
of the deceased person who are entitled to decide upon burial
arrangements and in particular as to where and when the body is to be
buried. For the above reasons and conclusions it is my opinion that
the point of Locus standi as far as applicant No. 2 is concerned has
no basis in law and should fail.
The
second point that the deceased's marriage with First applicant was
nullified cannot stand because respondent has only alleged. No
documentation has been tendered to support this point. This point
cannot succeed.
The
last point is that the applicant has failed to satisfy the
requirements of an interim relief. It is clear from the submissions
made regarding this point that the objection is ill conceived. The
order sought by the applicant cannot be classified as an interim
relief. The order seeks a final interdict. I am not prepared to exert
my attention to the drafting of papers to this effect because they
are clear.
The
requisites for a final interdict are clear. They have been dealt with
in numerous cases before this court. They are as follows;
A
clear right;
An
injury actually committed or reasonable apprehended or an actual or
threatened invasion of that right; and
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iii)
the absence of similar protection by any other ordinary or suitable
legal remedy.
Regarding
the first requisite, that of a clear right has been satisfied. When
dealing with the second point in these points of law I mentioned that
the applicants have established that Applicant No. 1 was married to
the deceased in 1976 through Swazi law and custom. There is no
evidence to the contrary or any evidence which proves that at some
point in time the marriage was nullified.
The
wife as the senior wife of the deceased has a right as already
pointed out that as the intestate heir of the deceased she has the
right to bury the deceased. This is a right shared by all the
applicants as the heirs of the deceased.
Regarding
the second requisite the applicants aver on page 4 of their founding
affidavit that;
"The
first and second respondents have made funeral arrangement with the
distant relatives which is unlawful in terms of the Swazi law and
custom."
From
the above it is clear that the respondents are intending to go ahead
and bury the deceased without consulting the applicants who are the
core of the applicant's family and who are by law entitled to get
first preference in terms of the seniority in the family.
Regarding
the third and final requisites the applicant stated on page 5
paragraph 24 of the founding affidavit that he has no other
satisfactory remedy apart from the relief that he is seeking.
The
court stepped in during argument and asked whether exhuming the body
cannot be said to be an alternative remedy. Mr. Dlamini for the
applicant stated that though this might look as an alternative
remedy, it however, is not a satisfactory remedy because by the time
the body would be exhumed it would be in a serious state of
decomposition and such remedy cannot be said to be a satisfactory one
or suitable one under circumstances.
From
the foregoing it is the opinion of this court that the applicant has
been able to satisfy the requirements of a final interdict which is
the remedy they were seeking.
It
is therefore, ordered as follows:
it
is hereby declared that 1st Applicant and 2nd Applicant are granted
sole burial rights in respect of the deceased.
The
respondents to hand over the body of the deceased to the applicants
on or before 12.00 noon on Friday the 28th May 2004.
First
and second respondents to pay the costs of this application.
K.P.
NKAMBULE
JUDGE
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