Simelane & Another v Manyatsi & Others (1407/2018) [2019] SZHC 42 (01 March 2019);

IN THE HIGH COURT OF ESWATINI

 

JUDGMENT

HELD AT MBABANE                                        CIVIL CASE NO: 1407/2018

In the matter between:

MARIAH SIMELANE                                                               1^ST APPLICANT

SIKELELA WILSON SIMELANE                                             2^ND APPLICANT

And

CHARLES MCINISELI MANYATSI                                     1^ST RESPONDENT

MANYATSI FAMILY                                                          2^ND RESPONDENT

GEBENI UMPHAKATSI (ENDLINILEMBI)                         3^RD RESPONDENT

DUPS BURIAL FUNERAL HOME                                      4^TH RESPONDENT

THE ROYAL ESWATINI POLICE                                       5^TH RESPONDENT

THE ATTORNEY GENERAL                                             6^TH RESPONDENT

 

Neutral Citation:      Mariah Simelane & Another v Charles Mciniseli Manyatsi & 5 Others (1407/2018 [2019] SZHC 42 (01 March 2019)

 

CORAM:                        NKOSINATHI MASEKO J

 

FOR APPLICANTS:       MR. S. JELE

FOR RESPONDENTS:   MR. L. MANYATSI

DATE HEARD:              25/01/2019                         

DATE DELIVERD:         01/03/2019

 

PREAMBLE:   Civil Law – Interdict – Whether a female deceased spouse married by Customary Rites has a right to execute a Will and give instructions that she be buried at her parental home – whether a husband the surviving spouse has a right to claim burial rights over the deceased female spouse whom he deserted, abandoned and neglected during her period of sickness until death.

 

HELD:             That the Will executed by the deceased is valid and that her wishes of being buried at her parental are hereby granted.

 

[1]    On the 11^th October 2018 the Applicants launched motion proceedings on urgency for an order in the following terms:

1.       Dispensing with the usual time limits, procedures and manner of service provided for in the Rules of the above Honourable Court and hearing this matter urgently.

2.       Condoning the Applicant for non-compliance with the said Rules.

3.       Interdicting and restricting the 1^st and 2^nd Respondent from proceeding with the preparations and burial of the deceased, Zanele Debra Simelane, at Gebeni area, in the District of Manzini.

4.       Ordering and Directing that the deceased be buried at Mpatheni area in the District of Shiselweni in terms of her wishes as reflected in the Last Will and Testament.

5.       Interdicting the 4^th Respondent from releasing the body of the deceased to anyone pending determination of the application.

6.       That prayer 3 and 5 operate with immediate and interim effect pending finalization of the Application.

7.       Costs of suit in the event of unsuccessful opposition.

[2]      The Founding Affidavit of the 1^st Applicant Mariah Simelane and Annexures thereto were attached in support of this Application.      

 

[3]      The matter appeared before me on the 12^th October 2018 and I granted the rule nisi which was returnable on the 16^th October 2018.

 

THE PARTIES

[4]      The 1^st and 2^nd Applicants are husband and wife and parents of the deceased Zanele Debra Simelane.

 

[5]      The 1^st Respondent is Charles Mciniseli Manyatsi, is the husband to the deceased Zanele Debra Simelane.

 

[6]      The 2^nd Respondent is the Manyatsi Family Trust.

[7]      The 3^rd Respondent is Gebeni Umphakatsi.  The 4^th Respondent is Dups Burial Funeral Home and the 5^th and 6^th Respondents respectively are the Royal Eswatini Police and the Attorney General.

 

THE TIMELINE

[8]      As stated herein above, the matter appeared before me on the 12^th October 2018 and I granted a rule nisi returnable on the 16^th October 2018.  A Return of Service had been filed by Deputy Sherriff Phumelela Malindzisa on the service of the Application on Mrs. Manyatsi 1^st Respondent’s mother at Gebeni area.

 

[9]      On the Return date the 16^th October 2018 I confirmed the Rule as a final order of Court as there was no opposition from the Respondents.

 

[10]    As a result of the order of the 16^th October 2018 the Respondents filed a Rescission of Judgment Application mainly to stay execution of the order granted by this Court on the 16^th October 2018, and further to rescind the said order.  I found it prudent to stay the execution of the order of the 16^th October 2018 pending completion of the main application.

 

[11]    As is the norm, the stay of execution of the order meant that the body of the deceased Zanele Debra Simelane remained at Dups Burial Funeral Home pending finalization of the proceedings.

 

[12]    For ease of reference and convenience during the proceedings I ordered the parties to prepare two Books of Pleadings, the main Application being marked Volume I and to be prepared by Applicants’ Attorneys and the Rescission Application being marked Volume II and to be prepared by the Respondents’ Attorneys.  These two Books were indeed filed of record by Counsel on both sides and the Court is appreciative to that compliance by both Counsel.

 

[13]    Owing to the fact that the main Application was based on the contents of a Last Will and Testament allegedly executed by the deceased on the 13^th September 2018 wherein clause 4 the deceased allegedly specified that –

‘I want to be specifically buried at my parental home at Mphatheni.’

The 1^st Respondent, Charles Mciniseli Manyatsi moved a Counter-Application on the 2^nd November 2018 for a declaratory order on the validity of the Will per se, viz, to have it set aside on the ground that the deceased was critically ill on the 13^th September 2018 and could therefore not be in a fit and proper state of mind to execute a Will and that the said Will was therefore fabricated and cooked by the Applicants and thus invalid in law.

 

[14]    I allowed the parties to file all the necessary pleadings and further ordered that a separate Book of Pleadings be prepared by 1^st Respondents’ Attorneys and marked Volume III and this was done.

 

[15]    I must mention therefore that the Record of these proceedings contains:

                   (i)       Main Application                               -        Volume I

                   (ii)      Rescission Application                      -        Volume II

                   (iii)     Counter-Application to set aside                

                             the Will.                                             -        Volume III

 

[16]    I must mention further that the 1^st Respondent in his Answering Affidavit in the main Application raised a point in limine of Non-Joinder of the ka-Gwegwe Royal Kraal.  However, due to further developments in the matter, the point in limine was eventually argued simultaneously with the merits with the consent of both Counsel because it became apparent that there was a dispute fact as regards certain aspects of this matter.  Therefore on the 20^th October 2018, I ordered that oral evidence be led to establish –

(i)       Whether the husband (1^st Respondent) deserted the deceased wife in her hour of need and;

(ii)      Whether the Last Will and Testament executed by the deceased (wife) on the 13^th September 2018 is authentic.

 

[17]    It is against this background that oral evidence was led and the Applicants led the evidence of AW1 Alex Sipho Hlanze, AW2 Mariah Simelane, AW3 Mbuso Elijah Simelane and AW4 Winile Ntombifuthi Simelane.

 

[18]    On the other hand the Respondents led the evidence of RW1 Evelyn Ntfombendlala Manyatsi, RW2 Nomvuyo Lomangisi Manyatsi-Ndzinisa and RW3 Charles Mciniseli Manyatsi.

 

[19]    In the main it is the leading of oral evidence that contributed to the delay in finalizing the matter.  After all the oral evidence had been led I ordered the parties to file comprehensive Heads of Arguments and Bundles of Authorities and allocated the 21^st January 2019 as a date of arguments, however the matter was eventually argued on the 25^th January 2019.  I must also mention that even though I was available during the Christmas vacation and in January 2019 the matter could not be argued because Counsel was not available, but it is equally important to mention that the matter was argued when the Court was still in recess and the Court is appreciative to both Counsel for their valuable sacrifices and dedication.

BRIEF HISTORY OF THE MATTER

[20]    The 1^st Respondent Charles Mciniseli Manyatsi and the deceased were married to each other by SiSwati Law and Custom at Gebeni area, Manzini District on the 23^rd May 2009.  There is only one minor child born between the parties namely Sihlelelwe Sandzisile Manyatsi.

 

[21]    There is no matrimonial home of the deceased and the 1^st Respondent except for a house they have at the 1^st Respondent’s parental home at Gebeni area.  The 1^st Respondent is a teacher by profession and the deceased was a teacher as well, and they both resided in their respective official accommodation (i.e. teachers’ quarters) and would visit each other as per their arrangements.

 

[22]    It appears that the deceased has been sick from cancer from the year 2015, and in January 2016 an operation was conducted at Good Shepherd Hospital.  It appears that there were complications and she was eventually taken to a hospital in the Republic of South Africa through the Phalala Fund.  She spent sometime there and eventually came back to Eswatini.  She continued to nurse her illness.

 

[23]    In early January 2018 the deceased was again admitted at Good Shepherd Hospital whereupon it was discovered that the cancer had spread towards the kidneys.  She was then transferred to Mbabane Government Hospital whereupon she was again transferred to a hospital in Johannesburg through Phalala Fund.  She was discharged back to Eswatini and was admitted at Mbabane Government Hospital, where she started her dialysis programme on Mondays and Thursdays.

 

[24]    I must mention that although the deceased was lawfully married to the Manyatsi family at Gebeni she was in the main during her period of sickness being taken care of by her family – the Simelane family.  I will deal with this aspect later in the judgment.

 

[25]    Upon her discharge from the Mbabane Government Hospital around April 2019, she relocated to stay with her sister Winile Simelane-Sihlongonyane at Nkhaba area in the Hhohho Region.

 

[26]    On the 8^th September 2018, there was a meeting at the Manyatsi family homestead at Gebeni area between the Manyatsi and the Simelane families respectively.

 

[27]    It is common cause that the initiator of the meeting was the 2^nd Applicant Sikelela Wilson Simelane who wanted to know why the 1^st Respondent had deserted his wife (deceased) during her time of sickness.  The deceased was present during the meeting together with her sisters Winile, Nonhlanhla and Nomfundo.  There was also Mr. Alex Hlanze who had been asked by 2^nd Applicant to accompany them as a neutral person.

 

[28]    It is common cause that the deceased died on the 5^th October 2018.  She left a Last Will and Testament which she had executed on the 13^th September 2018.  The 1^st Respondent contest the validity of this Will as will be shown herein later in the judgment.

 

[29]    As I mentioned above, the three Applications as contained in Volumes 1, 2 and 3 respectively are all premised on the validity of the Last Will and Testament which was executed by the deceased on the 13^th September 2018 and whether the 1^st Respondent had deserted his wife when she needed him most.  At this stage it is pertinent that I deal with the Will itself.

 

THE LAST WILL AND TESTAMENT

[30]    According to the evidence of Attorney Mbuso Simelane, he consulted with deceased in his offices at Dhlanubeka Building on the 26^th August 2018 where he advised her to prepare written instructions and that on the 27^th August 2018 she again came to her offices with the written instructions, whereupon he started preparing the Will after she had paid the deposit of E1500-00.

 

[31]    The Will contains 8 clauses in all and was executed by the deceased on the 13^th September 2018 and was duly registered with the Master of the High Court on the 20^th September 2018.  Attached to the Will is certified copy of the deceased’s National Identity Card bearing ID number 7905141100126.  Every page of the Will is signed by two witnesses, and Mr. Simelane testified that these witnesses are his officers namely Nomvula Simelane and Nomkhosi Dlamini who were his secretary and Accountant respectively.  In addition to their signatures there is the signature of the Testator Zanele Debra Simelane on all the pages of the Will.

 

[32]    Clause 4 of the will provides as follows:

‘4.      I want to be specifically buried at my parental home at Mphatheni’.

Clause 4 herein quoted above cannot be taken lightly nor can it be ignored.  I will deal with Clause 4 later in the judgment.

 

 

 

ALLEGATIONS BY 1^ST RESPONDENT THAT THE WILL IS FRAUDULENT

[33]    As stated above, the 1^st Respondent moved an application for a declaratory order that the Will executed by the deceased on the 13^th September 2018 –

‘was fabricated and cooked up by the Applicants and therefore invalid in law’.

         

[34]    The 1^st Respondent adopted a double pronged strategy in his attack on the validity of the Will.

 

[35]    Firstly, he testified that the deceased was critically ill on the 13^th September 2018 such that she could not therefore have been in a position to execute the Will.

 

[36]    Secondly, he testified that the signatures on all the pages of the Will does not belong to the deceased.

 

DECEASED ALLEGEDLY CRITICALL ILL

[37]    This allegation by the 1^st Respondent that the deceased was critically ill and therefore could not execute the Will on the 13^th September 2018 flies in the face of the 1^st Respondent and is without merit.  He was not in hospital during the period when he should have been in hospital looking after his wife.  The people who were always taking care of the deceased was her mother and her sisters.  No single person from the Manyatsi family was there assisting them to look after their “wife” as it were.

 

[38]    The 1^st Respondent testified that he abandoned caring for his wife in hospital after his quarrel with his sister-in-law Winile Sihlongonyane in April/May 2018.  He testified that he was so angry at being shouted at (by Winile) such that he excused himself and went home.

 

[39]    From April 2018 until deceased met her untimely death on the 5^th October 2018 he never checked his wife in hospital and at Nkhaba (Winile’s matrimonial home).  This is unacceptable.  If the 1^st Respondent was angry at Winile, he should not have directed his anger to his wife – the deceased this is the time when the deceased needed him most and this is the time when he deserted her, simply because of his misunderstanding with Winile.

 

[40]    It is therefore not open to him to say deceased was critically ill on the 13^th September 2018 because he was not there.  AW2 Mariah Simelane, the mother to the deceased who was always in the company of the deceased in hospital together with AW4 Winile Sihlongonyane testified at length and convincingly that the deceased was in her sound and sober senses on the 13^th September 2018 when she executed the Will, although she was in pain.

 

[41]    1^st Respondent relies on the evidence of his mother RW1 Evelyn Ntfombendlala Manyatsi who testified that she checked the deceased at Mbabane Government Hospital on the 14^th September 2018 and was told by AW2 and AW4 that deceased has been unconscious since the 9^th September 2018, and therefore his argument was that she could not be in a position to execute the Will.  AW2 and AW4 both denied this because they were in hospital with the deceased at all material times.

 

[42]    In fact under close cross-examination AW2 testified that the deceased was well on the 13^th September 2018 when she signed the Will.  She testified that on the 14^th September 2018, she cried due to pain and the nurses sedated her such that when Ntfombendlala Manyatsi RW1 came to check her she found her sedated.  Even RW2 Lomangisi Manyatsi who came to check her on the 15^th September 2018 found her sedated.  AW1 clarified under cross-examination that Lomangisi enquired as to when the sickness started, to which AW1 replied that it started during the meeting at the Manyatsi family on the 8^th September 2018 when she collapsed in the toilet and this was not to mean that the deceased had been unconscious since then.

[43]    RW1 did not strike me as a credible witness.  She went out of her way to support her son the 1^st Respondent.  When cross-examined by Mr. Jele about the ill-treatment which she and a daughter (of hers) were allegedly perpetrating against the deceased, she answered in a confused incoherent manner that she didn’t know that, yet her son Mciniseli Manyatsi – 1^st Respondent himself confirmed under cross-examination by Mr. Jele that on numerous times he always assisted his wife when there were problems between her and his mother.  For the mother of 1^st Respondent to testify that she did not know any problems between her and the deceased is a sign of dishonesty and poor demeanor.  Further she was not in hospital on the 13^th September 2018 and most importantly AW1 denies having told them that the deceased had been in a critical state since the 9^th September 2018 as RW1 alleged.  The same applies to the testimony of RW2 Lomangisi which is easily contradicted by the testimony of AW1 as demonstrated above.

 

[44]    The 1^st Respondent did not produce any medical evidence to prove that the deceased was critically ill on the 13^th September 2018 such that she could not execute her will.  He was under a legal duty to do so as he alleged for a fact that she was critically ill and thus could not execute the Will.  It’s a shame for a man who stopped checking his wife in hospital and Nkhaba in April/May 2018 because of a dispute with his sister-in-law.  If the 1^st Respondent cared for his wife’s wellbeing and health, he should have removed her from Winile’s homestead and provided a suitable place for her, stayed with her or even arrange for a caregiver to take care of her in hospital during her last days, then he could be in a position to testify as to her state of health as of the 13^th September 2018 when she executed her Will, but that is not the case.  In fact the 1^st Respondent could even approach the Courts to assert his rights over his wife and take care of her.

 

SIGNATURE ON THE WILL NOT OF DECEASED

[45]    The 1^st Respondent also alleged that the signature on the Will purpoting to be that of the deceased was in fact not of the deceased.  He testified that he knows his wife’s signature and that the ones on the Will are not hers.

 

[46]    AW3 Mr. Mbuso Simelane testified that he took instructions from the deceased on the 26^th – 27^th August 2018 on the Will and started drafting same thereafter.

 

[47]    AW3 testified further that on the 12^th September 2018 the deceased called him through his phone and advised him that she was admitted at Mbabane Government Hospital and that he must bring the Will to sign as per her instructions.  He stated further that upon arrival in hospital on the 13^th September 2018 he found her lying on the bed and upon seeing him she sat up.  He testified that he was in the company of his Secretary Nomvula Simelane and Accountant Nomkhosi Dlamini.  Deceased was in the company of her mother and sister Winile.  He asked the two to excuse them, and they obliged.

 

[48]    AW3 testified that deceased read the Will and again reread it and the confirmed that it contains exactly what she wanted and she then signed it followed by the two witnesses Nomvula and Nomkhosi.  AW3 testified further that the deceased was conscious, talking and even recognized his employees Nomvula and Nomkhosi and was also alive to her surroundings.  He stated that he had not the slightest doubt that she fully appreciated everything.  He testified further that in his long service in the legal profession, he would never allow a person to sign a Will if that person was critically sick.

 

[49]    AW3 testified further that deceased appended her signatures on all the pages of the Will in his presence and the two witnesses.  He maintained even under cross-examination that the deceased executed the Will whilst in her sound state of mind.  He denied that the Will was concocted by AW2 Mariah Simelane and her family.  He testified also that the original Will was in the possession and custody of the Master of the High Court.

 

[50]    Again bare allegations by 1^st Respondent that the Will is fraudulent cannot stand in light of the evidence of AW3 Attorney Mbuso Simelane.  Nothing turned on the cross-examination by Mr. Manyatsi regards the signatures of the deceased on the Will.

 

[51]    Further, the 1^st Respondent did not lead any handwriting expert evidence.  To challenge the evidence of a signature without adducing expert evidence is a waste of precious time and is fatal to that litigant challenging the handwriting.  I carefully looked at the signatures on the Will and on Annexures MCM1 and MCM 2 respectively and found no significance variance in all the signatures except the normal slight differences that occur on a daily basis when a person signs documents and bearing in mind that a person’s signature can never be exactly the same, instead it is similar.  I take judicial notice that if you physically sign a document which requires a signature on every page, these signatures can never be the same although signed by one person, instead they will be similar to indicate that they were signed and belong to one person.  Further the sizes of the signatures may differ, therefore it doesn’t mean that if the signature in page 1 is bigger in size than the signature in page 2 then they don’t belong to one person.  Such a perception is unfortunate and factually wrong and is misleading.  1^st Respondent is therefore clutching at straws when he testified that the signatures on the Will are not of the deceased.

 

[52]    It is therefore prudent that when a challenge is made on the authenticity of a handwritten signature then it is compulsory to lead the evidence of a Handwriting Expert who would have the opportunity to conduct a forensic examination on any signed document to arrive at an acceptable expert opinion admissible before Court.

 

[53]    I am therefore of the considered view that the signatures on the Last Will and Testament duly executed on the 13^th September 2018 by the deceased Zanele Debra Simelane are authentic and are in fact her signatures appended by her before Attorney Mbuso Simelane and in the presence of witnesses, Nomvula Simelane and Nomkhosi Dlamini respectively, whilst the said deceased was in her sound and sober sensed, and after having read the Will twice and confirmed to Mr. Simelane that indeed her instructions had been complied with fully.

 

ALLEGATIONS OF DESERTION AGAINST 1^ST RESPONDENT

[54]    Evidence has been led by AW2 Mariah Simelane that in January 2018 the deceased was admitted at Good Shepherd Hospital in Siteki, the 1^st Respondent later arrived to check on her, and only to find she was about to be transferred to Mbabane Government Hospital.  She testified that the two of them eventually transported her to Mbabane Government Hospital wherein she would again be transferred to a hospital in Johannesburg through Phalala Fund.  Indeed she was taken to Johannesburg.

 

[55]    AW2 testified that deceased spend about 5 weeks in the hospital in Johannesburg without being checked by her husband 1^st Respondent.  She testified further that on the 6^th week she travelled to check her daughter in Johannesburg and that is when RW3 – the 1^st Respondent also came to check on her and he was in the company of Winile (AW4).

 

[56]    AW4 Winile herself testified that they travelled together with 1^st Respondent to check on the deceased on a Friday and they arrived in Johannesburg very late and then travelled to Pretoria to spend the night at the home of Winile’s sister together with 1^st Respondent.

 

[57]    Winile testified that on the Saturday, they had to first check her sister’s child in a hospital in Pretoria who had had a car accident on the previous day the Friday, before proceeding to Johannesburg to check the deceased in hospital.

 

[58]    AW4 testified that when they eventually reached the hospital in Johannesburg they checked the deceased and it was at that stage that the 1^st Respondent indicated that he had to rush home in Eswatini to buy food for his mother (RW1).  There was a misunderstanding between the Simelane family who did not understand why the 1^st Respondent was now rushing to go back to Eswatini on the Saturday without giving his wife enough time to be with him for the first time in six weeks because it had originally been agreed with 1^st Respondent that they would all come back on the Sunday to enable him to have enough time with his wife.  This evidence by AW4 Winile and AW1 Mariah Simelane was never challenged in cross-examination by Mr. Manyatsi for 1^st Respondent.

 

[59]    It is common cause that the 1^st Respondent only checked the deceased twice during her admission in the hospital in Johannesburg during the period 11^th February 2018 to 4^th April 2018.  The failure by the 1^st Respondent to give his wife (the deceased) the due attention and care during this difficult period in her life took its toll on the deceased and rightfully so.  Winile testified that she cried all the time and they eventually reported this situation to their father 2^nd Applicant who then set up the meeting of the 8^th September 2018 at the Manyatsi homestead, Gebeni.

 

[60]    The 1^st Respondent and AW4 Winile both confirm in their testimonies that upon her discharge from hospital in Johannesburg on 4^th April 2019 she was transported to Mbabane Government Hospital in an ambulance from Phalala and upon arrival she was admitted and started the dialysis treatment.

 

[61]    It is common cause that the deceased upon her discharge from Mbabane Government Hospital went to stay with her sister AW4 Winile Sihlongonyane at Nkhaba.  1^st Respondent confirms in his evidence that he had arranged for her to stay with his sister RW2 Lomangisi but that deceased had preferred to stay with her sister AW4 Winile as she would be more comfortable there, and that he had no problems with the arrangement as long as it would improve her health.  The deceased was to attend dialysis twice a week on Mondays and Thursdays.

 

[62]    AW4 Winile testified that the deceased had to be transported to Mbabane Government Hospital on Mondays and Thursdays to attend the dialysis treatment.  It was her undisputed evidence (by 1^st Respondent) that he 1^st Respondent made no financial contribution to the transportation costs.  Instead it was the deceased who single handedly forked out money for fuel and to pay those people she always had hired to drive her to hospital on the Mondays and Thursdays.  No financial assistance and or contribution was ever made by 1^st Respondent.  Despite deceased being critically sick, she always had to even fork out money for 1^st Respondent’s bus fare.  Even when she was discharged from hospital, the bills were settled by deceased in the presence of the 1^st Respondent and he never contributed anything.

 

[63]    In his own words in his evidence in chief, 1^st Respondent stated clearly that since 3^rd May 2018 after he had had the misunderstanding with AW4 Winile in hospital, he had never checked his sick wife the deceased until she met her untimely death on the 5^th October 2018.

 

[64]    It defeats logic why 1^st Respondent who claimed to have loved his wife was behaving in this manner during her painful period when she needed him the most.  It was the duty of the 1^st Respondent to act responsibly and understand the frustration and pain that Winile and the other Simelanes were going through in caring for their sister who had a chronic illness and whose husband had abandoned her.  There is no doubt that the behaviour of the 1^st Respondent in abandoning and neglecting the deceased amounted to gross abuse and cruelty.  I will repeat that I do not understand why a misunderstanding between Winile and 1^st Respondent would generate to this level of actual neglect of deceased by 1^st Respondent.  He has not quarreled with the deceased why didn’t the 1^st Respondent bypass Winile and deal direct with his wife.  Winile was very adamant during her testimony in chief and under cross-examination that 1^st Respondent was always abusive towards deceased and calling her names such as “imfengwane” (whistle) during her illness when he should have been supportive.

 

[65]    There was no Court Order in the form of an interdict preventing him from caring for his wife and showing love when she needed him most.  1^st Respondent did not need any person’s authority to care for his wife, this is a duty bestowed upon husbands to care for their wives because they are the administrators and heads of the families irregardless of whether the marriage is in accordance with Siswati Law and Custom or by Civil Rites.  At all material times the Simelanes never excluded him from taking care of his wife.  AW4 Winile denied under cross-examination that she shouted at the 1^st Respondent but stated that 1^st Respondent was angered when she complained about why he was late to take his wife for dialysis.  Again the 1^st Respondent was failing to appreciate the pain and trauma that Winile was going through caring for her sickly sister and without any assistance from him, be it financial assistance or otherwise.  Such is the cruelty and abuse that Winile and her sister the deceased experienced at the hands of the 1^st Respondent.

 

[66]    I must state that although deceased was sickly, she was aware of all the desertion or abandonment that was perpetrated on her by her husband.  It is for this reason that she included her displeasure in the Will as per Clause 5, 5.1 and 5.2 as follows:

‘5.      I further specifically direct that my husband Mciniseli Manyatsi shall not benefit anything from my estate.

5.1     My husband deserted me when I needed his utmost support and care.  I was critically ill and he left me alone for months while I was languishing in hospital.  He deserted me from March 2018.

5.2     My husband has been ill-treating me ever since we got married on the 23^rd May 2009 and it is my desire that the Public Service Pension Fund should not give him anything because I was not maintaining him as is employed’.

 

[67]    It is clear that when the deceased executed the Will from the 26^th – 27^th August 2018 until she appended her signature on same on the 13^th September 2018 she had fully made up her mind about excluding her husband who had abandoned her during her hour of need from benefiting from her estate.  The deceased appreciated that due to her chronic illness she was going to pass on and then prepared her Last Will and Testament.

 

[68]    It was her desire that 1^st Respondent should not inherit anything from her estate but I applaud the explanation tendered to her by Attorney Mbuso Simelane that The Constitution of the Kingdom of Eswatini Act No. 1 of 2005 prohibited complete disinheritance of one spouse by another.

 

[69]    Section 34 (1) provides as follows:

‘A surviving spouse is entitled to a reasonable provision out the estate of the other spouse whether the other spouse died having made a valid Will or not and whether the spouses were married by Civil Rites or Customary Rights’.

 

[70]    This provision in Section 34 (1) is therefore a saving grace to the 1^st Respondent.  He is protected under the Constitution which is the Supreme Law of the Kingdom from being disinherited and instead is entitled to a reasonable provision from the estate of the deceased.  It is the duty of the Master to deal with the reasonable provision due to the 1^st Respondent when the estate of the deceased is being wound up.  I must state that this does not mean the whole Will becomes invalid.

 

THE LAST WILL AND TESTAMENT EXECUTED BY THE DECEASED ZANELE DEBRA SIMELANE ON THE 13^TH SEPTEMBER 2018

[71]    In the Kingdom, Wills are regulated by The Wills Act No. 12 of 1955.  Section 3 (1) provides as follows:

‘3(1)   Subject to this Act no Will executed on or after the first day of March 1955 shall be valid unless –

1. the Will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and
2. such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
3. such witnesses attest and sign the Will in the presence of the testator and of each other and, if the Will is signed by such other person, in the presence of such other person; and
4. if the Will consists of more than one page, each page is so signed by the testator or by such other person and by such witnesses; and
5. if the Will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, and administrative office, justice of the peace, commissioner of oath, or notary public certifies at the end thereof that the testator is known to him and that he has satisfied himself that the Will so signed is the Will of the testator, and if the Will consists of more than one page, each page is signed by the administrative officer, justice of the peace, commissioner of oaths, or notary public who so certifies’.

 

[72]    I must state that the Will executed by the deceased meets all the requirements as provided in Section 3 (1) a, b, c and d.  I included subsection 3 (1) (e) for completeness in reading the section otherwise it does not apply in casu because the testator Zanele Debra Simelane did not sign by making a mark.  She appended her signature in all the pages where she was supposed to sign.

 

[73]    I further observe that the deceased had the competency to make a Will.  Section 10 of the Act provides as follows:

‘Any person of the age of sixteen or more may make a Will unless at the time of making a will he is mentally incapable of appreciating the nature and effect of this act, and the burden of proof that he was mentally incapable at the time shall rest on the person alleging the same’.

 

[74]    I have found for a fact that the testator was in her sound and sober senses when she executed her Will and being a person above the age of sixteen.  On the other hand the 1^st Respondent has failed to discharge the burden imposed on him by Section 10 i.e. that of proving that his wife, the deceased, was mentally incapable at the time she executed the Will on the 13^th September 2018.

 

[75]    I must state that Section 10 applies across the board in all forms of marriages, be it by Customary Rites of Civil Rites.  The misconception must therefore, be corrected, that because the testator (deceased) was married by Customary Rites therefore automatically he has the right of burial over her.  The Constitution is very clear that it is only a reasonable provision of inheritance that is due to the surviving spouse even though a valid Will exists purportedly disinheriting him/her and does not make any provision concerning the rights of burial.

 

[76]    I must state that a reasonable provision out of the estate of deceased spouse does not include the deceased spouse’s body (corpse) and where and how the deceased spouse wished to be buried.  It is the wishes of the deceased spouse as contained in the Will that are enforceable as they are not inconsistent with the Constitution.

 

[77]    In a Siswati Customary marriage set up and where the deceased female spouse did not make a Will on where she was to be buried, the position is that she is buried in the matrimonial homestead, but the situation is different where the deceased spouse executed a Will and stated specifically where she wanted to be buried.

 

[78]    The fact that the deceased female spouse executed a Will and stated that she wants to be buried at her parental home does not mean that the surviving male spouse cannot inherit from her estate.  As stated above the Constitution has taken care of that sensitive issue of inheritance is Section 34 (1) and further recognizes equally the two forms of marriages i.e. Customary Rites and Civil Rites.  This therefore means that deceased female spouse married in accordance with Siswati Customary Rites is competent to execute a Will and enjoy freedom of testation including on how and where her body is to be buried.  For example in Eswatini the practice of cremation has been introduced.  Any female whether married by Customary Rites or Civil Rites can choose how they want their corpse to be dealt with.  The male surviving spouse does not have the right to stop or alter those wishes unless it can be shown that the testamentary instrument relied upon is invalid or that the testator was mentally incapable of making a Will at the time when she did so.

 

[79]    The Constitution of the Kingdom of Eswatini recognizes and protects the rights and freedoms of women.  Section 28 provides as follows:

‘28(1)           Women have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.

(2)          Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realize their full potential and advancement.

(3)          A woman shall not be compelled to undergo or uphold any custom to which she is in conscience opposed.’

 

[80]    I must state that the Siswati custom is that a woman married by Customary Rites is normally buried in her matrimonial home.  This is the case with the deceased Zanele Debra Simelane who was married to the 1^st Respondent by Customary Rites and “emalobolo” were paid by the 1^st Respondent.  The custom dictates that she must be buried at the Manyatsi homestead, however during her lifetime she has exercised her constitutional right as per Section 28 (3) when she executed her Will stating that upon her death she does not want to be compelled to undergo or uphold that custom to which she was in her conscience opposed to during her lifetime, that custom of being buried at Gebeni in the Manyatsi family.  It is crystal clear that the deceased does not want to be buried at the 1^st Respondent’s homestead at Gebeni because of the ill-treatment and abuse she was subjected to by the 1^st Respondent and her mother-in-law Ntfombendlala Manyatsi together with one sister-in-law who is not mentioned by name.  RW2 Lomangisi Manyatsi Mdziniso also confirmed in her testimony that the deceased Debra came to her homestead to report the problems she was having with her mother-in-law.  This evidence was also confirmed and corroborated by AW1 Alex Sipho Hlanze who attended the meeting on 8^th September 2018 at the Manyatsi homestead that Lomangisi confirmed that deceased reported to her three times about the problems she was having with her mother in law and 1^st Respondent

 

[81]    It is common cause that the deceased wanted to have her own matrimonial and the 1^st Respondent has made it clear in his evidence in chief that he was not going to build deceased a home because he was caring for his mother RW1 Ntfombendlala Manyatsi whom he said was 80 years old.  This resulted in extreme frustration on the part of the deceased who continually clashed with her mother-in-law.  The 1^st Respondent was therefore adamant that he would not build a matrimonial home for his wife as he was taking care of his mother and indeed he did not do so until she passed on.

 

[82]    It appears from the uncontroverted evidence of Winile that even the house at Gebeni being used by 1^st Respondent was actually built by Zanele Debra Simelane including having electricity installed in it.  This evidence was not denied by 1^st Respondent through cross-examination of Winile and also when he testified in chief.  When 1^st Respondent was cross-examined by Attorney S. Jele, he conceded that the house which he referred to as a “small house was built in 2010.

 

[83]    On the 8^th September 2018 there was a meeting at the Manyatsi homestead at Gebeni.  It is common cause that the 2^nd Applicant Wilson Sikelela Simelane, the father of the deceased wanted an explanation from the Manyatsi family, as to why they had neglected his daughter, the deceased during her period of illness.  According to AW2 Mariah Simelane, 2^nd Applicant invited them to come to his homestead so that he could get clarity on why 1^st Respondent and his family were not checking on deceased, in Johannesburg and at Mbabane Government Hospital and at Nkhaba.  The Manyatsi family did not honor the invite and thus 2^nd Applicant took it upon himself to go to the Manyatsi family at Gebeni to find out what the problem was.  He requested AW1 Alex Sipho Hlanze to accompany him together with deceased, AW4 Winile Sihlongonyane, Nomfundo Simelane and Nonhlanhla Simelane.  The act of refusal by 1^st Respondent to honor the invite by his father-in-law is gross disrespect in Siswati Law and Custom.

 

[84]    According to the testimony of AW1 Alex Sipho Hlanze, the Manyatsi family were informed of the purpose of the visit, being to find out why they were not checking on Zanele Debra Simelane despite that she was sick.  AW1 testified that the 1^st Respondent informed the meeting that he was not checking his wife because of being ill-treated by AW4 Winile.

 

[85]    AW1 testified further that he realized that the problems between the Manyatsi family and the deceased was not due to the illness but had been there even long before the illness.  He testified that at that stage the deceased then stated that she has never had peace at the Manyatsi homestead ever since she arrived there in 2009.  He testified further that the deceased wanted to take her clothes and she also stated that she (deceased) reported her problems to RW2 Lomangisi who was present and confirmed that indeed deceased reported the problems she was having with her in-laws on about three occasions.  AW1 testified further that even 1^st Respondent confirmed that there were problems between deceased and her-in-laws.  AW1 testified further that at that stage the deceased said she had come to bid the Manyatsi goodbyes and also wanted to collect her belongings.  AW1 was quick to point out that him and 2^nd Applicant, the father of deceased, discouraged her from doing that because they had not come for that, but only to get clarification on why the Manyatsis had neglected her.

 

[86]    I must state that the neglect of the deceased by the 1^st Respondent and his family at the time when she was sick and needed her husband so much can never be ignored.  It is this neglect and the ill-treatment by the 1^st Respondent and his family which pushed the deceased to the point of executing the Will and further state that she wanted to be buried at her parental home at Mpatheni.  She wanted peace with her husband and her-in-laws during her lifetime, but such was not forthcoming and instead she was hurt by her husband and the in-laws during her painful and most hour of need by their act of neglecting her and abandoning her from May 2018 to around the 14^th and 15^th September 2018 when they checked her in hospital, after the meeting of the 8^th September 2018.

 

[87]    The deceased’s choice to be buried at Mpatheni, her parental home area, came about as a result of her search for peaceful rest of her body and soul within the compound and boundaries of her parents who loved her and cared for her until she passed on.  It must always be remembered that the deceased was suffering from a chronic illness and she knew that she was going to pass on hence she prepared her Last Will and Testament to make it clear to all and sundry that she wanted to be buried at Mpatheni where her soul would rest in peace.  This is called freedom of testation whereby a testator issues a written record of instructions representing the testator’s last wishes and intentions as to what he/she wants to have happened to his/her assets when he/she dies.

 

[88]    The corpse of a testator is his or her asset and he/she has right to prescribe where and how it is to be buried after death and or cremation whatever the testator so elects.  This is irregardless of the marriage regime in the case of married spouses.  Further I must state emphatically that the declaration of the deceased that she wants to be buried at Mpatheni is not contrary to public morals and certainly not contrary to Siswati Custom, because a deceased female married in accordance with Siswati Custom can be buried at her parental homestead if she so choses in a Will or where she had been jilted by her in-laws as long as the customary protocols of paying a cow for “kukhonta” for her burial are observed with the Royal Kraal in that particular Chiefdom.  This is the beauty of the Siswati Custom which recognizes that women married by Customary Rites can be buried in their Chiefdom of birth as long as credible reasons are provided to the authorities why such a request is made.

 

[89]    This position I have referred to above was observed by Mamba J in the case of Princess Tsase and Others v Lindimpi Wilson Ntshangase and Others, High Court Case No. 4381/2007 where His Lordship approved the position of Customary Law as stated in the Applicant’s arguments in paragraph 11 page 8 –

‘It is recognized practice then that a deceased person may not just be buried at any place at the whim of the relatives.  Nor can another Chief or authority, traditional or otherwise, impose on a Chief or Swazi area the burial of a deceased person without due regard to the customary protocol.  Such a situation would lead to breakdown of law and order ----’

 

[90]    Mamba J continued in paragraph 19 page 12 and made the following instructive remarks –

‘I shall assume further, without deciding the issue that as a matter of course under Swazi Law and Custom, a death in an area under a Chief must be reported to the Chief having jurisdiction over that area.  I shall further assume that an intended burial likewise must be reported to the Chief or that the Chief must be consulted on such an issue before hand----’

 

[91]    In dealing with the sensitive issue of the right to bury a woman married by Customary Rites who had given strict instructions that she should not be buried at her husband’s home but could be buried anywhere, Mamba J dealt head on with this sad situation in the case of  Steven Nhlanganiso Gumedze v Jabu Zelia Dlamini & Others Case No. 1053/2013 where the facts as outlined by Mamba J at pages 4-10 of the judgment are that:

‘the Applicant Steven Nhlanganiso Gamedze married the deceased Ntfonjana Albertina Gamedze (born Dlamini) by Customary Rites on the 27^th August 1988 at Gundvwini and seventeen (17) cattle were paid as “emalobolo”.

The Applicant and the deceased set up their marital home at Gundvwini at the home of the Applicant and the deceased who was a teacher by profession actually went to live there.  Within two years of their marriage, the couple experienced very serious and difficult times in their marriage.  One of such difficulties, it emerged, was that the deceased was unable to bear children and this became a constant source of jibe or derision on her by the Applicant.  The said difficulties forced her to leave their matrimonial home and return to her parental home at Ntondozi.  This was in 1990, just about two years into the marriage.  In 1995 the Applicant went to the deceased’s home to report the matter.  This is a customary practice that is done in terms of Swazi Customary Law where a wife has deserted her husband.

Following the Applicant’s reporting to the deceased’s parents of her desertion, the father of the deceased sent her back to her marital home, accompanied by his representatives.  The object of this was to try and reconcile the couple.  Again this a customary practice in terms of Swazi Law and Custom.  The meeting could not proceed as the Applicant drove out of the homestead on seeing them.

In the year 2000 he came to the deceased’s parental home on the request of the father of the deceased.  There, the deceased told her father in the presence of the Applicant that she had finally made up her mind, no doubt because of the difficulties she experienced in her marriage, to end her marriage to the Applicant.  She further told her father that she will take it upon herself to return whatever “emalobolo” were due and returnable to the Applicant.

Since that meeting in 2000, nothing of any significance seems to have taken place between the couple or their immediate families until the deceased died on the 18^th June 2013.  Her father had died sometime, predeceasing her.  The deceased is survived by her mother who is aged and at least two of her siblings.

It is common cause that none of the events mentioned above had the legal effect of terminating the marriage between Applicant and the deceased.  So, at the time of her death she was lawfully married to the Applicant.

After the death of the deceased, her family informed the Applicant of her death and talks about her burial began between the two families.  The Applicant says that as the husband of the deceased, despite the 23 years of separation, he has the unfettered right to decide where, when and how the deceased is to be buried.  He says he has determined that the burial shall take place at this home at Gundvwini on 13^th July 2013, and all necessary preparations for the interment have been made.

The First Respondent and her siblings and their aged mother are totally against the burial of the deceased at the Applicant’s home.  They have stated that during her lifetime, the deceased made it absolutely plain to them and the Chief that because of the severe pain and humiliation she was subjected to by the Applicant, she did not want to be buried at his home.  She decreed that she may be buried anywhere else but not at the Applicant’s home’.

 

[92]    At page 8 paragraphs 11- 13 Mamba J continues to state as follows:

‘[11]   It is generally accepted that under normal circumstances, the general rule is that, the surviving spouse has the primary right to decide or determine where the deceased spouse is to be buried.  This is accepted by both parties herein.  I do not think any authority is required for this elementary proposition.

[12]    The instant case is, however not your run-of-the mill or normal case in my judgment.  The Applicant has not shown that this is such a case.

[13]    The Applicant and the deceased separated about 23 years before deceased met her death.  The separation was due to the cruelty or abuse the deceased suffered at the hands of the Applicant.  When she left the matrimonial home she told the Applicant why she was leaving.  Later, she made it absolutely clear to him, in the presence of her father, that the separation was permanent and irreversible.  She told him, the marriage was over and she was prepared to return to him whatever “emalobolo” cattle were returnable to him.  But, as already stated, these events and or declarations did not have the effect of terminating the marriage’.

 

[93]    At pages 10-11 paragraphs 16-17 Mamba J continues as follows:

‘[16]   It is plain to me that the marriage between the Applicant and the deceased was irretrievably broken down.  It remained so for a long time; in fact until the death of the deceased.  It only existed in law or in paper.  Factually it died a long time ago.  In a word, it was a sham.  Recently in Vusizwe Mahlalela v Nonhlanhla Mahlalela (born Dlamini) Case No. 1926/09 I had occasion to quote HR HAHLO, THE SOUTH ARICAN LAW OF HUSBAND AND WIFE (5 ed) at 331 where the learned author says that a marriage that has irretrievably broken down is a dead marriage.  The marriage under the spot light herein was such a marriage.

[17]    In view of the totality of the factual circumstances in this case and the legal conclusions stated above, can it be said that the Applicant has established his right to bury the deceased?  The answer is, in my judgment a resounding no’.

 

[94]    I have deliberately reproduced this judgement of Mamba J to demonstrate the similarities in that case and this case in casu.  The abuse and cruelty suffered by the deceased Zanele Debra Simelane at the hands of the 1^st Respondent and his family, in particular, his mother are severe.  She was literally competing with her mother-in-law for the attention and support of her husband.  The 1^st Respondent flatly refused to provide her with her own matrimonial simply because he was taking care of his mother Ntfombendlala Manyatsi, notwithstanding his full knowledge and appreciation that deceased was continually being ill-treated by his mother, allegations which were also confirmed by RW2 Lomangisi that the deceased made numerous complaints to her of her ill-treatment by 1^st Respondent and his mother.  This was despite that she had constructed a house for them in 2010 and further installed electricity on it.

 

[95]    When deceased was admitted in hospital in Johannesburg the 1^st Respondent checked her only twice despite that she was in hospital from February to April 2018.  This was emotional abuse and desertion of the highest order.  As if that was not enough, 1^st Respondent again abandoned her whilst she was in hospital in Eswatini May 2018 and she never saw him until the 8^th September 2018 when deceased’s father led a delegation to the 1^st Respondent’s home at Gebeni to enquire why his daughter was neglected by the Manyatsi family in this matter.  That was when 1^st Respondent accused AW4 Winile Sihlongonyane for being responsible for his actions despite that she had diligently cared for deceased during her lifetime and seeing to it that she attends the dialysis session twice a week.

 

[96]    In her Will the deceased in Clause 5.1 stated that the 1^st Respondent had had been ill-treating her since 2009.

 

[97]    At page 10-11 paragraphs 18-20 this is what Mamba J stated in dealing with dignity and right of burial of an abused deceased female spouse and I quote –

‘[18]   People, dead or alive are human beings.  They have a name, reputation and dignity.  They command and deserve to be treated humanely – with care, respect, compassion and deference.  They should not be treated as chattels or mere possessions to be had and disposed of at will.

[19]    To hold that the Applicant, who humiliated and grossly abused the deceased during her lifetime and forced her to leave her marital home; has the right to bury her in all the circumstances, simply because he was married to her at death, would be a travesty of the law and grave insult to the dignity and humanity of the deceased.  It would be nothing but a blind and dogmatic application of the law; a misapplication in fact.

[20]    In life, the deceased could not withstand the abuse by the Applicant.  She could not live with him she removed herself from him.  Now that she is dead, the law must not compel ‘her to live with him’, just because her powers of resistance have been taken away from her by death.’

 

[98]    I must state that the judgment of Mamba J referred to herein is a clear indication that men who continually subject their wives to abuse and cruelty during their lifetime and in fact display total lack of love cannot easily turn around and pretend to love them when they are deceased and to the extent of wanting to bury their bodies.  This is the unfortunate situation that the deceased Zanele Debra Simelane was faced with during her lifetime and which sought to prevent during her death by choosing to be buried at Mpatheni where she could have peace.

 

[99]    In the case of Mfanyana Dlamini and Two Others v Cetjiwe Jabulile Dlamini (nee Mdluli) Civil Appeal Case No: 02/2014 MCB Maphalala JA (as he then was) stated the following at pages 8-9:

‘In deciding the matter, Moll J quoted with approval an article by Professor TW Price, under the heading LEGAL RIGHTS AND DUTIES IN REGARD TO DEAD BODIES, POST MORTEM AND DISSECTION, which is to be found in the SOUTH AFRICAN LAW JOURNAL, 1951, VOL 68, p 403 in which the learned author, referring, inter alia to Grotius indicated the importance to be attached to directions given by a testator as to his burial.  At page 405 the author states the following:

“Matters affecting the disposal of a corpse are rarely subjects of litigation, with the result that time is very little modern guidance on the subject as a whole.  But, applying general legal principles, it would seem reasonably clear that the primary duty of the executor, failing him, the surviving spouse, child, parent or other near relative of the deceased in regard to his mortal remains is to dispose of them in accordance with the terms of his Will, provided that this is not impossible, too expensive for the estate to bear, or unlawful.

It has been stated that in English Law, the Executor is not bound to obey the terms of the Will in this particular regard.  Even if this proposition is correct for English Law, it does not follow that it is correct for Roman-Dutch Law.

Grotius specifically says that a Will, besides disposing of the deceased’s property, may deal with other matters such as the guardianship of his children and directions as to his burial.  It is taken for granted that the heir (or in modern law the executor) must carry out all the terms of the Will as far as possible.  It therefore follows that in our law directions in the Will as to the disposal of the body must, if possible and lawful, be followed ------.  In obeying the instructions of the deceased the executor cannot be influenced by wishes of the surviving spouse or other interested relative.”’

 

[100]  It is clear from the judgment of MCB Maphalala JA (as he then was) herein referred to that where a valid Will has been prepared by testator regarding his/her burial, it is prudent and compelling to follow the instructions and this position has been in existence since the days of the eminent jurist Grotius.

 

[101]  His Lordship continued and as stated follows in the Mfanyana Dlamini case (supra) at page 14 paragraph 15 –

‘It is well settled in this jurisdiction that the duty to attend to the burial of the deceased lies with the surviving spouse in the absence of a Will providing otherwise.  Where, however, the couple stays in separation, and the deceased has died intestate, in determining the right to bury, the Court should be guided by what is just in the circumstances of the particular case ---’

 

[102]  In casu, the deceased Zanele Debra Simelane left a valid Will and clearly stated that she wanted to be buried at Mpatheni, her parental home.  This was against the background of the severe and extreme abuse and cruelty she was subjected to by her husband the 1^st Respondent and his mother RW1 Ntfombendlala since 2009 when she married the 1^st Respondent.

 

[103]  As observed by AW1 Alex Sipho Hlanze, the problems between the deceased and the 1^st Respondent dates back beyond May 2018 when the deceased was being cared for by her sister AW4 Winile.  For the deceased to include the ill-treatment by her husband in the Will indicates the seriousness in her desire not to be associated with the Manyatsi family even in death by stating that she wanted to be buried at Mpatheni.

 

[104]  The 1^st Respondent is at liberty to inherit from the estate of the deceased but this Court will not grant him his wish to bury the deceased at Gebeni owing to the gross abuse and cruelty which him and his family, in particular his mother, subjected the deceased during her lifetime.  They never gave her love during her lifetime and they never cared for her when she was terminally ill and needed them most.  They neglected her to the care of her aged mother and sister and 1^st Respondent never made any financial contribution whatsoever towards her medical bills, transportation bills etc., yet he comes before this Court to arrogantly pray to be given the right to bury her simply because he wants to inherit from her estate.  That I cannot allow.  There is no doubt that deceased deserve to rest peacefully in a place which she has chosen during her lifetime and to rest where she is most welcome and loved at her parental home at Mpatheni.  The deceased suffered greatly during her marriage to the 1^st Respondent who never had her best interest at heart, and now it is her only opportunity to rest peacefully by being buried at Mpatheni where she has chosen to be buried.  Her body and soul will rest in peace at Mpatheni.

 

[105]  1^st Respondent does not need the corpse of deceased to bury at Gebeni in order to inherit from her estate.  I have stated above and will repeat that the Constitution caters for his reasonable provision from her estate.

 

[106]  In the case of Canny Pumza Mjuza/Kamile and Mava Ntshibilili & Another Case NO. 389/2013 (Eastern Cape High Court Bhisho) Dukuda J. stated as follows on pages 8-9:

‘Locke J. in Gabavana and Another v Mbete and Others (2000) 3 ALL SA 544 (TK) collected together a number of relevant authorities.  These decisions state the principles that in the absence of some special direction in the Will, it is the heir of the deceased’s estate who shall be the person who decides on the arrangements relating to the burial of the deceased body.  Heath J. usefully summarized the principles involved as follows:

1. If someone is appointed in a Will by the deceased, then that person is entitled to give effect to his wishes.
2. The deceased person can appoint somebody to attend to his burial in his Will or in any other document or verbally, formally or informally and in all these instances effect should be given thereto in so far as it is otherwise legally possible and permissible.
3. A deceased can, in the third instance, die intestate, but can appoint someone to attend to his burial in a document or verbally.
4. In the absence of a testamentary direction, the duty of and the corresponding right to see to the burial of the deceased is that of the heirs.  The heirs appointed as heirs in the Will of the deceased.
5. The afore-mentioned principle that heirs (appointed as heirs) in the absence of any provision in the Will as to the burial of the deceased applied in my view similarly and equally to intestate heirs of a deceased.  That would meant that, in the absence of any indication by a deceased as to his burial arrangements, the intestate heirs would be in the same position as the testate heirs.  I can see no reason why the position should be different in the case of intestate heirs.
6. It follows that persons obliged and entitled to see to the burial arrangements are entitled to arrange where and when the deceased is to be buried’.

 

[107]  In describing a Will, Ceris Field in her wonderful work titled THE DRAFTING OF WILLS 2013 SIBER INK, at page 1 refers to the case of Bowes v Friedlander N.O. and Others 1982 (2) SA 504 (c) at 513 H where Marias AJ stated as follows:

                   ‘A Will is a solemn and important document’.

          Ceris Field continues to state that:

‘A Will comes into operation on the death of the testator and it cannot be revised, cancelled, amended or interpreted by the maker.  On death the Will is final’.

          Ceris Field states further that:

                   ‘The making of a Will is described as:

--- one of the most solemn and sacred juristic acts a person can perform.  A Will represents a person’s last wishes, and allows him to give expression to his gratitude towards, his sense of responsibility to and his concern for the welfare of those whom he leaves behind’.

 

[108]  I must state that these authorities are clear that a Will which is valid is the most important document in one’s lifetime and that it must be complied with by those instructed to do so in the Will.

 

[109]  The point in limine that the Applicant did not cite the kaGwegwe Royal Kraal is without merit and stands to be dismissed.

 

[110]  It is my belief that the Constitution provides adequate protection for all persons in the Kingdom and this is clearly evident from Section 20 which provides for Equality before law.

‘20(1)           All persons are equal before and under the law in all spheres of political, economic, social and cultmal life and in every other respect and shall enjoy equal protection of the law.

(2)                For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.

(3)                For the purpose of this section, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethinic origin, birth, tribe, creed or religion, or social or economic standing, political opinion, age or disability.

 

[111]  I am of the considered view that the Applicants as biological parents of the deceased have fully complied with the requirements for the grant of an interdict, and I need not go into the details as regards that aspect.  They have a clear right to conduct the burial of their daughter at their marital home at Mpatheni subject to compliance with the customary protocols.  They have sustained an injury due to her death and the abuse and cruelty the deceased suffered in the hands of the 1^st Respondent and his family and it is only this Court that could grant them protection and remedy for the deceased’s sufferings and for the enforcement of deceased’s wishes to be buried at her parental home at Mpatheni.

 

COSTS

[112]  As regards the issue of costs, it is clear that the Applicants have incurred legal costs in these proceedings whilst pursuing the fulfilment of the wishes of the deceased to be buried at Mpatheni.  I am also cognizant of the costs of keeping the body the deceased at the 4^th Respondent’s facilities.

 

 

CONCLUSION

[113]  In all the circumstances of this case, I therefore grant the following order:

1.       The Application for the burial of the deceased Zanele Debra Simelane at Mpatheni area is hereby granted with costs, and such costs are to be paid from the deceased’s estate.

2.       The point in limine is hereby dismissed.

3.       The Counter-Application by 1^stRespondent to have the Last Will and Testament executed by the deceased Zanele Debra Simelane on the 13^th September 2018 declared invalid is hereby dismissed.

4.       The Last Will and Testament executed by the deceased Zanele Debra Simelane on the 13^th September 2018 is hereby declared valid.

 

 

 

NKOSINATHI MASEKO

JUDGE