IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CIVIL CASE NO: 334/2019
In the matter between:
DANIEL B. DLAMINI APPLICANT
MUSA MASELIMANE MAVIMBELA 1ST RESPONDENT
DUPS FUNERAL HOME AND CREMATORIUM
PTY (LTD) 2ND RESPONDENT
THE NATIONAL COMMISSIONER OF POLICE 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
Neutral Citation: Daniel B. Dlamini v Musa Maselimane Mavimbela & 3 Others (334/2019)  SZHC 52 (20 March 2019)
CORAM: NKOSINATHI MASEKO J
FOR APPLICANT: MR. SIBONGINKHOSI JELE
(T.M. BHEMBE ATTORNEYS)
FOR 1ST RESPONDENTS: MR. LEO NDVUNA DLAMINI
(S.A. NKOSI ATTORNEYS)
DATE HEARD: 13 MARCH 2019
DATE DELIVERD: 20 MARCH 2019
PREAMBLE: Civil Law – Family Law – Parties married in terms of Siswati Law and Custom and living in separation for 10 years marriage – deceased female spouse subjected to humiliation, cruelty and gross ill-treatment by the surviving male spouse who then demands to bury her at the marital home – Deceased female spouse having declared her wishes to be buried at her parental home and not at marital home owing to the humiliation and suffering she experienced at the marital home – Whether her wishes to be buried at her parental home sufficient to override the sudden interest of the surviving spouse to bury her at the marital home she was forced out 10 years ago – Whether marriage irretrievably broken down – The legal position in our jurisdiction is that in the absence of a Will providing otherwise, the duty to attend the burial of the deceased lies with the surviving spouse – Where, however, the couple stayed in separation and the deceased die intestate, the Court should be guided, in determining the right to bury, by what is just in the circumstances of the particular case – Held that deceased declared her wishes to be buried at her parental home to her father (Applicant), siblings and her children and that in the circumstances of this particular case it is just to order that her burial be conducted in accordance with her wishes, and therefore the Application is granted with costs.
 On the 4th March 2019, the Applicant launched Civil Proceedings for an order in the following terms as per the Notice of Motion:
1. Condoning the Applicant’s non-compliance with the Rules of this Honourable Court regarding service and time limits and enrolling and hearing this matter on urgent basis.
2. Interdicting the 1st Respondent, his family and or anyone acting on his authority, stead and or sympathy from burying and or conducting the funeral of Gugu Glory Mavimbela (nee Dlamini).
3. Directing and ordering the 2nd Respondent (Dups) not to release the body of Gugu Glory Mavimbela (nee Dlamini), and or any funeral benefits per her policy to anyone until finalization on this matter and per directive of this Honourable Court.
4. Costs of suit.
5. Further and or alternative relief
 The Founding Affidavit of the Applicant Daniel B. Dlamini, the father of the deceased is attached to the Notice of Motion in support of this Application.
 At paragraph 7 of the Applicant’s Founding Affidavit, he states that the deceased Gugu Glory Mavimbela (born Dlamini) is his biological daughter and that she and the 1st Respondent were married by Siswati Law and Custom during the year 1991. They established their marital home at Sigcineni and were blessed with two children.
 Applicant states further that the 1st Respondent paid a number of cattle as “emalobolo”, and from these “umhlambiso” was purchased for purposes of taking the next crucial step in the consummation of the marriage, namely the “umtsimba” ceremony. Applicant states that the 2nd Respondent refused the commissioning of the umtsimba ceremony which is part of the rites to be performed in a customary marriage and to-date the umhlambiso (bridal gifts to her in-laws) has never been delivered to the Mavimbela family.
 Applicant states further that the “lugege cow” was never slaughtered as the groom’s delegation on the presentation of the “part payment emalobolo cattle” stated that they had not brought it and that it (the lugege) would be presented at a later date along with the remainder of the emalobolo cattle.
 Applicant states further that, in the course of their stay together the two experienced constant marital problems being the 1st Respondent’s chronic physical and verbal abuse on the deceased. Deceased would report these to her parents and there would be meetings with the 1st Respondent to try and resolve these conflicts but in vain.
 Applicant states that in one incident, 1st Respondent threatened to shoot deceased with a firearm in the presence of their children and mistakenly hit their son with the firearm resulting in a scar on the fore-head. The violence was reported to the Manzini Police and the Sigcineni Umphakatsi, however, there was no end to it.
 Applicant states further that deceased could not take it anymore and in 2009 she was forced out of the marriage and came back home. She began life on her own with her two minor children and stayed at her place of work at kaPhunga. The abuse didn’t stop as the 1st Respondent would go to kaPhunga and perpetrate the abuse and thus around 2010/2011 she approached the Manzini Magistrate’s Court for a Peace Binding Order.
 Applicant states further that the 1st Respondent sent at least there (3) delegations to his homestead to demand his emalobolo cattle back. 1st Respondent’s brother Hlangabeza Mavimbela and Mbali Mavimbela were among the delegations.
 Applicant states further that during deceased’s lifetime the 1st Respondent did not maintain her or the children. Deceased instead was single-handedly responsible for the maintenance of the children including paying for their educational needs.
 Applicant states that after she was forced out of the marriage, deceased has on numerous occasions informed him and her children and generally made it known to members of her family that upon her demise, she wanted to be buried at her parental homestead and not at her marital home.
 Applicant states that deceased repeatedly made known to him and her children that she did not wish to be buried by the Mavimbela family or under their hand because of the humiliation and suffering she was subjected to by the 1st Respondent.
 Applicant states that it was deceased’s desire that having been freed from 1st Respondent’s constant abuse during her lifetime, she didn’t want to be taken there in death when she could no longer talk and fight for herself.
 Applicant states further that she made it clear that she wished to be buried with and among her loved ones and not in a place where she endured abuse. He states further that in as much as she was married to the 1st Respondent, however he was not present in the deceased’s life in the past 10 years.
1ST RESPONDENT’S CASE
 The 1st Respondent confirmed that the deceased was his wife and that they separated in 2009, and that they have two children. He denies that he abused the deceased.
 1st Respondent states further that the deceased did not leave a Will and therefore as the surviving spouse he has the right to bury her at his parental home.
 1st Respondent states further that as the surviving spouse the balance of convenience favours him to bury the deceased and that the Applicant has no locus standi in this matter which involves him and his wife – the deceased.
 The 1st Respondent elected to make bare denials against the sensitive allegations of abuse and desertion which were made by the Applicant.
EVALUATION OF THE EVIDENCE
 It is common cause that the deceased left the marital home she shared with the 1st Respondent in 2009. It has not been denied by the 1st Respondent in his Answering Affidavit that she left because he was persistently ill-treating her and also subjected her to constant physical abuse and violence, which led to many meetings and at times reports were made to the police and the Umphakatsi without any success.
 1st Respondent also did not deny that these assaults and violence were perpetrated against the deceased in the presence of their children and at some point in time, a firearm was used wherein the 1st Respondent accidentally hit their son with the firearm which left him with a scar in the forehead.
 1st Respondent also did not explain why Applicant alleged that deceased left his marital home as a result of what Applicant termed “chronic physical and verbal abuse”.
 It is common cause that the deceased settled at her workplace kaPhunga together with her two children. Again Applicant states that 1st Respondent would go to kaPhunga to physically and verbally abuse deceased in front of her children and colleagues. This resulted in a Peace Binding Order being issued against the 1st Respondent by the Manzini Magistrate Court during 2010/2011. This allegation has not been sufficiently explained by the 1st Respondent, other than the usual bare denial of “the contents hereof are denied and Applicant is put to strict proof thereof”.
 This manner of pleading is not sufficient where the 1st Respondent was expected to advance a credible and cogent explanation to counter the Applicant’s version.
 The Applicant has made a strong case of the chronic physical and verbal abuse that the deceased suffered in the hands of the 1st Respondent, and on the other hand the 1st Respondent had not made any averments at all to counter these serious and damning allegations against him.
 The Applicant has made a strong case that the deceased wished to be buried at her parental home where she would be in the company of her family members who loved her and cared for her when she was abused and subjected to domestic violence at the hands of the 1st Respondent. These wishes are confirmed by their daughter Nomile who looked after her mother when she (deceased) was sick, and also confirmed by deceased’s siblings Lungile Dlamini and Njabulo Dlamini respectively.
 All what the 1st Respondent states is that the deceased left no Will and therefore as the surviving spouse he alone has the right to bury her at his homestead.
 The 1st Respondent failed dismally to address the issue of the Umtsimba and Umhlambiso as was well articulated by the Applicant. It is an indictment against the 1st Respondent that he has failed to sufficiently explain these allegations and the damning allegations that he sent three delegations to demand his emalobolo cattle back.
 There is no doubt that in Siswati Law and Custom, the refusal by the groom to commission the Umtsimba when asked by his in laws so that the Umhlambiso (bridal gifts) can be delivered to the groom’s people and coupled with the demand for the return of the emalobolo is an indication that the customary marriage is on the rocks and on the verge of being described as irretrievably broken down.
 PROFESSOR RONALD THANDABANTU NHLAPO in his master work titled MARRIAGE AND DIVORCE IN SWAZI LAW AND CUSTOM published by Websters in 1992 at pages 48-49 states as follows:
‘Lobolo means cattle (or their equivalent in money) which the bride-groom, his father or his guardian agrees to deliver to the father or guardian of the bride for the purpose of ratifying the matrimonial contract between the group of the bridegroom and the group of the bride and ensuring that the children of the marriage adhere to the family of the bridegroom.
Lobolo has two important functions, the legitimation of children and as a guarantee of the good behaviour of the partners.
On dissolution of course the principle is exemplified by the rule that where the wife is at fault, the husband may claim back the lobolo cattle from the father who is, however, allowed to retain two beasts for each girl his daughter has borne during the marriage, and one beast for each boy.
Nxumalo refers to lobolo as a “factor in the settlement of disputes between man and wife”. A husband who ill-treats his wife until she is compelled to return to her home may forfeit the lobolo cattle, conversely, if the woman is at fault, her father may have to return the cattle to the husband.’
 I must point out that I am not dealing with a dissolution of a customary marriage, but it is in my view important to refer to Prof Nhlapo’s articulation of the purpose of emalobolo in the customary marriage set up and under what circumstances may such lobolo cattle be forfeited by the husband or paid back to the husband. It depends on who is at fault between the parties. In casu, it cannot be said that the deceased was at fault, instead she was on the receiving end of the chronic physical and verbal abuse from the 1st Respondent – her husband until she had had enough and left the marital home in 2009.
 I have no doubt in my mind that the deceased was forced out of her marital home by the violence and gross-ill treatment she was subjected by the 1st Respondent at the marital home and he persisted even at her place of work at kaPhunga. I will repeat that the Applicant referred to it as “1st Respondent’s chronic physical and verbal abuse”.
 In discussing the sensitive subject of Dissolution of Marriage at pages 83-84 Prof Nhlapo states as follows:
‘Cruelty, neglect and/or gross ill-treatment
Ideas persist in the literature that the above may ground a divorce at the instance of the wife at customary law. To the list may be added habitual drunkenness, which in practice is a major contributing factor to mismanagement of family affairs by husbands.
Gross ill-treatment in the form of extreme behaviour by the husband towards the wife and/or the children of the marriage is a clear case where divorce may be ordered. This is because such treatment invariably takes the form of excessive beatings and, depending on extent, physical violence against a wife may actually be a criminal offence attracting the jurisdiction of the chief and possibly the Swazi Courts.’
 In casu, the deceased was forced out of the marital home because of the cruelty and/or gross ill-treatment which was occasioned on her by her husband. Her family did not commence nor pursue any formal and or permanent separation from the 1st Respondent through, customary procedures instead she went back to her parental home where she set up base and would commute between her workstation kaPhunga and her parental home.
 It is clear from the informative discussion of the dissolution of a customary marriage by Prof R.T. Nhlapo that cruelty and gross ill-treatment of the wife by the husband can actually force the wife out of the marriage and consequently in certain circumstances the parties may separate permanently as it were.
 In casu it is this cruelty and gross ill-treatment which forced the deceased to openly declare to her family that she did not wish to be buried in the Mavimbela homestead because her husband – 1st Respondent subjected her to extreme physical and verbal abuse. She did not get the love that she was supposed to get, and therefore in death she did not want to be buried with the people who ill-treated her as she could no longer defend herself.
 These wishes were communicated to her father, siblings and children including Nomile Mavimbela who looked after her mother even during her sickness. Nomile filed a Supporting Affidavit to her grandfather – the Applicant, literally confirming all the abuse and gross-ill-treatment that her mother experienced at the hands of the 1st Respondent and also confirmed deceased’s wishes not to be buried at the Mavimbela homestead but at deceased’s parental homestead.
 In his submissions Mr. S. Jele for the Applicant relied heavily on the landmark case of Steven Nhlanganiso Gamedze v Jabu Zelia Dlamini & Others High Court Case No. 1053/2013 decided by His Lordship Justice M. Mamba. Mr. Jele also referred to the landmark Supreme Court Judgment of Mfanyana Dlamini & 2 Others v Cetjiwe Jabulile Dlamini (nee Mdluli) (02/2014)  SZSC 38 in support of his submissions that the deceased be buried at the homestead of the Applicant primarily because she had declared her wishes to Applicant and the rest of her family that she did not wish to be buried at the 1st Respondent’s homestead because she never had peace there during her lifetime.
 Mr. L.N. Dlamini who appeared for the 1st Respondent relied heavily on the case of Mfanyana Dlamini supra and submitted that it was a Supreme Court decision and had to be followed by this Court in the consideration of this matter.
 Mr. Dlamini submitted further that the 1st Respondent is the surviving spouse and that she did not leave a Will stating how she was to be buried, and therefore it is the 1st Respondent who has the duty and right to bury the deceased. Mr. Dlamini relied on the Mfanyana Dlamini case (supra) as if the Supreme Court laid down a rigid principle that it is the surviving spouse who has a sole right to bury the deceased spouse where there is no Will.
 Unfortunately for Mr. Dlamini this is not the position as adopted by the Supreme Court in the Mfanyana Dlamini case. The Supreme Court referred to a number of decisions by this Court and even beyond the borders of Eswatini, in particular in Lesotho and South Africa. Ramodibedi CJ (as he then was) MCB Maphalala JA (as he then was) and BJ Odoki JA applied their minds extensively to this sensitive issue of the right of burial.
 At pages 12-14 paragraph 14 the learned Justices refer to the judgment of Mamba J in re Steven Nhlanganiso Gamedze supra and I quote:
‘His Lordship Justice Mbutfo Mamba at para 11-17 held that it is accepted that under normal circumstances the surviving spouse has the primary right to bury the deceased spouse; however, His Lordship found that the marriage between the parties was dead in view of the long period of separation. Accordingly, he dismissed the application. At para 11, 16 and 17 His Lordship made the following conclusions:
“ 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----.
 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 death of the deceased. It only existed in law or on paper. Factually it died a long time ago.”’
 At paragraph 15 page 14 their Lordships stated as follows:
‘ It is well settled law 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”
 I must state that the Supreme Court in Mfanyana Dlamini case (supra) extensively considered the judgment of His Lordship Justice Mamba and the other authorities in determining the right of burial of a deceased spouse where the couple had been in separation for a lengthy period of time.
 I am therefore not in agreement with the manner in which Mr. Dlamini for the 1st Respondent articulated his argument. On the other hand I am in full agreement with the submissions by Mr. Jele for the Applicant as regards the legal authorities submitted on this sensitive issue of the right of burial of the deceased spouse in the circumstances prevailing in casu.
 In the case of Sibongile V. Dlamini v John Dlamini & 5 Others (440/20116)  SZHC 80 (20 July 2016) His Lordship Justice Ticheme Dlamini referred to the Supreme Court judgment of Mfanyana Dlamini supra at pages 16-17 paragraph 32 where he stated the following:
‘MCB Maphalala JA, sitting with Ramodibedi CJ, as they were then, and Dr. B.J. Odoki JA, cited with approval a Lesotho Court of Appeal decision in the matter of Ntloana and Another v Rafiri, Civil Appeal Case No. 42/2000 and held that-
“Where, however, the couple stays in separation, and, the deceased died intestate, in determining the right to bury, the Court should be guided by what is just in the circumstances of the particular case.”
‘This is the principle, in my considered view, which should guide me in deciding this matter because the Applicant states in her affidavit that the deceased started a relationship with the 3rd Respondent. In consequence thereof the relationship of the married couple deteriorated resulting in the Applicant returning to her parental home with her children. From what is stated in the affidavit, the Court finds that the Applicant and the deceased lived in separation from that time until the death of the husband.’
 In the case of Steven Nhlanganiso Gamedze (supra) His Lordship Justice Mamba stated the following at pages 10-11 paragraphs 18-20:
‘ 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.
 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 of this case, simply because he was married to her at her death, would be a travesity of the law and a 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 infact.
 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’.
 In casu this is the situation before me where the 1st Respondent expect me to find in his favour and order that he conducts the burial of the deceased simply because he is the surviving spouse and that there was no Will providing instructions on how she is to be buried and by whom.
 It is difficult for me to appreciate the 1st Respondent’s case against all the injustices that the Applicant has delivered squarely at his doorstep and which he has dismally failed to challenge.
 It is my considered view that 1st Respondent has failed to explain the allegations of cruelty and gross ill-treatment towards the deceased which eventually forced the deceased out of the marital home and return to her parental home with her two children in 2009.
 1st Respondent has failed to explain why he could not deal with the deceased’s family to resolve the issues in the ten years of separation notwithstanding the fact that they lived in the same neighbourhood separated at the most by a mere five kilometres. This is sad and grossly unfair to the Applicant and to the deceased who can no longer defend herself because of death.
 It defeats logic why 1st Respondent even had the guts to uplift the deceased’s Death Certificate from the Birth, Marriages and Deaths Registry Department without even consulting the Applicant, who was staying with his daughter, the deceased, until she met her untimely death.
 The question that begs an answer is why is the 1st Respondent running up and down in the manner he is doing now that the deceased is late. Common sense dictates that even though tensions between him and the Applicant may have been high, but upon learning of the demise of his wife, he was duty bound together with his family as per Siswati Custom, to immediately go to the Applicant’s home to convey their condolences (kulila), and literally chat a way forward and in particular as regards her burial.
 Instead it is the Applicant who belittled and humbled himself and in pursuit of the “kulila custom” who went to the 1st Respondent’s home and was told point blank by 1st Respondent’s mother that the deceased was to be buried at her marital home because she was 1st Respondent’s wife.
 I observe that this behaviour by the 1st Respondent and his family amount to a gross abuse of the Siswati Customary Marriage because they are flagging the marriage in the face of all the pain, trauma and cruelty that they subjected the deceased during her lifetime. She was forced out of her marital home by 1st Respondent who now finds it proper to run and prepare the death certificate upon learning of her death and literally demanding to bury her at his homestead against her wishes to be buried at her parental home, and which were communicated to 1st Respondent’s family by Applicant personally when he went to pay his family’s condolences (kulila) to the Mavimbela family.
 I am of the considered view that it would not be just in these circumstances to order the deceased to be buried at the marital home because she stated clearly during her lifetime that she wished to be buried amongst her loved ones at her parental home and not at her marital home because of the humiliation and suffering she was subjected to by the 1st Respondent.
 I would be failing in my duty if I were to disregard all the pain and humiliation that the deceased suffered in the hands of the 1st Respondent, if I were to allow the 1st Respondent to bury his deceased wife against her clear wishes that she did not want to be buried at his (1st Respondent’s) homestead.
 I will repeat His Lordship’s Justice Mamba’s observation in the Steven Nhlanganiso Gamedze case supra that:
‘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 to be disposed of at will.’
 In the result, for the aforegoing reasons I hereby grant the following order:
1. The Application is hereby granted.
2. The Applicant is granted the right to bury the deceased Gugu Glory Mavimbela (born Dlamini) in accordance with her wishes.
3. The 1st Respondent is interdicted and restrained from conducting the burial of the deceased Gugu Glory Mavimbela (born Dlamini) at his parental and/or their marital home.
4. The 1st Respondent is ordered to forthwith surrender the Death Certificate and all other related documentation to the Applicant to facilitate the prompt burial of the deceased.
5. The 2nd Respondent is hereby ordered to release the body of the deceased to the Applicant for the burial ceremony.
6. The 1st Respondent is to pay the costs of this application on the ordinary scale.