IN THE HIGH COURT OF ESWATINI
Case No. 401/2020
In the matter between:
THANDIE FRANCINAH YENDE (BORN MLANGENI) Applicant
SIPHIWE SHONGWE 1st Respondent
THOBILE NDLANGAMANDLA 2nd Respondent
FANA YENDE 3rd Respondent
NELISIWE YENDE 4th Respondent
SANDILE YENDE 5th Respondent
MUNTU YENDE 6th Respondent
SHADO YENDE 7th Respondent
MGABABA YENDE 8th Respondent
THE NATIONAL COMMISSIONER OF
THE ROYAL ESWATINI POLICE 9th Respondent
THE ATTORNEY GENERAL 10th respondent
Neutral citation: Thandi Francinah Yende (Born Mlangeni) v Siphiwe Shongwe & 9 Others (401/2020)  SZHC 38 (16 April 2020)
Coram : T. L. Dlamini J
Heard : 11 March 2020
Ex tempore order issued : 12 March 2020
Judgment delivered : 16 April 2020
Summary: Civil law – Duty to attend the burial of a deceased – Principles thereof considered – Evidence shows that husband chose the place where he is to be buried after his death – This choice was communicated during his lifetime.
Held: That the expressed choice of the place where he is to be buried is his ‘Will’ – And that he is to be buried according to that expressed ‘will’.
 This is another case where the burial of the body of a deceased person is kept in abeyance and not given the honour and respect that the Eswatini society holds in respect of dead bodies. A husband who had two wives died on the 16 February 2020. Based on the papers filed of record and submissions made before this court, there is disagreement between the two wives of the deceased concerning the burial place.
 The applicant is the second wife of the deceased, Peter Gasa Yende. They married according to civil rites and in community of property in March 2016. This appears ex facie the marriage certificate which is attached to the founding affidavit and marked as annexure “TY2”. An endorsement made on the certificate reflects that their marriage is governed by the Common Law. Their marital homestead was established at Esitjeni in Lobamba, Hhohho region.
 The first respondent, Siphiwe Shongwe, is the first wife. According to her answering affidavit, her correct name is Sibongile Eunice Yende. Based on depositions made in the affidavit, she was married to the deceased according to Swazi Law and Custom in 1990. The marriage ceremonies of paying Emalobolo and Umtsimba were fulfilled. A copy of their marriage certificate has not been attached to the papers before court, and it appears from the evidence placed before court that non was registered with the Registrar of Births, Deaths and Marriages. Their marital homestead was established at kaNdinda in the Manzini region.
 The second respondent, Thobile Ndlangamandla, is a cousin of the deceased. This is gathered from the founding affidavit deposed to by the applicant. This averment has not been denied by the respondents.
 The third to eighth respondents are children of the deceased born from the first respondent. The ninth and tenth respondents are officers of the state whose primary responsibilities, amongst others, is to ensure the effective enforcement of the law and compliance with court orders.
 I find it appropriate to mention that there was no appearance on behalf of the 9th and 10th respondents (The National Commissioner of Police and the Attorney General). No explanation was given to the court for the non-appearance. This is notwithstanding the fact that both offices of these respondents were served with the court application on 03 March 2020.
 Amongst the orders sought, is an order directing the police to ensure that there is compliance with the orders to be issued. Regarding the substance of an order which this court is to issue, the police are to be informed and advised by the Attorney General concerning that Order. It is therefore of fundamental importance that the 9th respondent must be in attendance in court when these issues are deliberated upon, otherwise there would be no way of understanding and appreciating the substance of the orders resulting therefrom.
 The applicant filed an application under a certificate of urgency seeking the following orders:
1. That the Applicant be condoned for the non-compliance with the time limits and manner of service and that the matter be enrolled as one of urgency.
2. That an order be granted directing that Peter Gasa Yende (“the deceased”) be buried at his parental homestead at Mgazini, Mankayane, under the District of Manzini, Kingdom of Eswatini.
3. That the Respondents, in particular the first to eighth Respondents and/or anyone acting on their behest, be restrained from interfering with the funeral and subsequent burial of the deceased.
4. That the ninth Respondent assisted by members of the Eswatini Royal Police stationed at Mankayane be ordered to ensure that there is compliance with any order to be issued by this Honourable Court and make sure that there is peace throughout the entire process.
5. Costs of suit in the event of unsuccessful opposition, and
6. Further and/or alternative relief.
 The application is opposed by the respondents and the opposition is mainly premised on points of law. Concerning the fundamental prayer that the late Peter Gasa Yende be buried at his parental homestead in Mgazini, Mankayane, under Manzini District, the respondents contend that the applicant has no right to have a say on issues relating to the burial of the deceased because she is not lawfully married to him, and that her marriage to him is bigamous.
 The applicant contends that due to their husband’s intertwined types of marriages, their husband decided that it would be in the best interest of everyone that he be buried at his parental homestead in Mankayane. The respondents however, want nothing to hear of that.
 The applicant also contends that in the year 2014, she was informed by the deceased that he was leaving the 1st respondent (first wife) because he found her in bed with another man. He was so agitated that he packed all his belongings and went to stay alone at Mangozeni in Malkerns. She contends that she would visit him there from time to time as their love relationship was strong.
 In the year 2016 the applicant and the deceased married in terms of civil rights. According to the applicant, the 1st respondent tried to interdict and stop their wedding on the basis of her existing marriage with the deceased but unsuccessfully as she failed to furnish evidence in proof of the marriage. According to the applicant, this was during the marriage preparations. This was also during the actual marriage when persons who had valid reasons and objected to the marriage were called upon to avail themselves. According to the applicant, the 1st respondent objected to them being married but was unable to furnish valid reasons for her objection within the allowed seven days period. Subsequent to her failure, a marriage certificate was then authorized and issued in respect of the marriage between the applicant and the deceased.
 The applicant firmly contends that her husband’s wish to be buried at his parental homestead in Mankayane is due to the fact that he saw a bitter relationship between the applicant and the 1st respondent and her children. For everyone to be accommodated, the deceased deemed it proper that upon his death, his families from the two wives’ homesteads should convene at his parental homestead where everyone would be comfortable and accepted, and not at the homestead of either wife.
 It is contended by the applicant that the 1st respondent and some of her children objected to having the deceased buried in Mankayane, while the 2nd respondent wants him buried in Nhlangano at his maternal home where he grew up. The applicant wants the body of the deceased to be buried in Mankayane in accordance with the wish that the deceased expressed during his lifetime.
 The applicant also contends that on account of the different opinions concerning the burial place, the relevant chiefdom of Mankayane was unable to resolve the issue and therefore advised the parties to approach this court for intervention and decision.
 A confirmatory affidavit of Almon Yende is attached to the applicant’s founding affidavit. He is a brother to the deceased. Hereunder I will quote his deposition verbatim:
“4.1 The deceased, Peter Gasa Yende, is a brother to me. The deceased has always communicated one thing to me in relation to his demise – he has always stated to me that in the event he passes away, it was his wish that he be buried with his forefathers in Mankayane which is also his parental homestead.
4.2 The deceased re-emphasized this position to me when he left the First Respondent at kaNdinda area. He alleged that he found his wife in bed with another man and was, therefore, leaving her for good.
4.3 Further, in order to avoid any chaos and conflict, it is my humble submission that the deceased is better buried at his parental homestead. I say so because if the deceased were to be buried at KaNdinda, not only will this be against his will but also the Applicant will not be allowed to attend the funeral of her husband and pay her last respects to him because of the relationship they (i.e. the Applicant and the First Respondent) have – they do not see eye-to-eye.”
 The respondents have raised three points in limine. The first point is that prayer 2 is legally incompetent. This court, according to respondents, has no jurisdiction to deal with this matter because the propriety or otherwise of the burial site of a deceased person’s body is purely a matter of Swazi Law and Custom and is to be decided upon by families and or chiefdoms.
 The second point is that the applicant has no locus standi in judicio to bring the application before court because she is not a lawfully wedded wife of the deceased person. The third point is that the applicant has not established a clear right to the relief sought.
 On the merits, the respondents’ contention is that the applicant is not legally married to the deceased although she underwent a wedding ceremony with him. The 1st respondent contends that for all intents and purposes the applicant was a stay-in girlfriend of the deceased as she could not marry him according to civil rights because the deceased was already married to her. She asserts that as a girlfriend, the applicant has no right to determine how the remains of the deceased are to be buried.
 The 1st respondent also contends that the deceased tried to build the applicant a homestead at Esitjeni in Lobamba but the umphakatsi (chiefdom) disowned them and stated that their home was constructed without authority of the umphakatsi. For this reason, the umphakatsi refused to authorize the burial of the deceased at Esitjeni. It is this refusal, contends the 1st respondent, that made the applicant to want the burial of the deceased to be next to her parental homestead at Mgazini. She further contends that the deceased does not belong to Mgazini but grew up at Malkerns with his Ndlangamandla maternal family which originates from Phongola in the Republic of South Africa. The Yende family at Mgazini is just family friends with whom they share the surname and have grown to be so close such that they became equivalent to relatives but are in actual fact not. He is therefore to be buried at Kandinda where he has a home, wife and children.
 In her reply to the above averments, the applicant states that the averment that they constructed a home with her husband at Esitjeni without the approval of the umphakatsi is untruthful. As a matter of fact, they were never even called at the umphakatsi concerning the alleged unauthorized construction of their homestead at Esitjeni. The applicant correctly points out, in my view, that this averment constitutes hearsay as there is no confirmatory affidavit of any member of the Esitjeni inner council confirming it as true. She states that the reason she could not bury the deceased at Esitjeni is because she is adhering to the wishes of the deceased who stated in clear terms that he should be buried with his forefathers at Mgazini. This choice is confirmed by the brother of the deceased Almon Yende. She states that she never even approached the umphakatsi to seek permission to bury the deceased at Esitjeni.
 The 1st respondent denies that her husband left her in 2014 and went to reside alone at Mangozeni in Malkerns. She calls this averment as “untrue and a pure fabrication.” She also states that in “any event a Swazi man is sovereign” and “decides to spend his time in the manner he wants.” The only thing she concedes is that like all married couples, they could not see eye to eye on certain things but there were no allegations of infidelity between them. She asserts that she is the only wedded wife of the deceased and she wants his body to be buried at KaNdinda where he khontaed and constructed his home. She also asserts that she cannot allow the body of her husband to be buried by a girlfriend who bears no lawful title over him. She further asserts that this is the reason why she is opposing the application.
 As confirmation of her objection to the marriage of the applicant and the deceased, the 1st respondent avers that she sent to the Marriage Officer and the Lobamba Police affidavits certifying that she was legally married to the deceased. She attached the two affidavits to her answering papers and collectively referred to them as “YENDE 2”.
DETERMINATION OF THE CONTESTED ISSUES
Before determining the merits, I must first deal with the issues raised in limine.
Lack of jurisdiction to grant prayer 2
 The respondents submit that this court has no jurisdiction to grant prayer 2. It is submitted on their behalf that s.151 (3) of the Constitution of the Kingdom of Eswatini Act 1/2005 outs the jurisdiction of this court. The section provides as quoted below:
151. (3) Notwithstanding the provisions of subsection (1), theHigh Court –
(b) has no original but has review and appellate jurisdiction in matters in which a Swazi Court or Court Martial has jurisdiction under any law for the time being in force.
 This court, in terms of prayer 2, is asked to grant an order in the following terms:
“2. An order directing that Peter Gasa Yende (“the deceased”) be buried at his parental homestead at Mgazini, Mankayane which is under the District of Manzini, Kingdom of Eswatini.”
 The respondents’ argument is that prayer 2 is a matter of Swazi Law and Custom and as such, it is a matter to be dealt with by the Swazi National Courts. In terms of s.11 (a) of the Swazi Courts Act, 1950, Swazi Courts are to administer Swazi law and custom prevailing in the Kingdom of Eswatini. The provision is quoted below:
Laws to be administered
11. Subject to the provisions of this Act a Swazi Court shall administer –
(a) the Swazi law and custom prevailing in Swaziland so far as it is not repugnant to natural justice or morality or inconsistent with the provisions of any law in force in Swaziland; (own emphasis)
 The above stated legal position as articulated on behalf of the respondents is correct but its application to the present matter is wanting. The applicant’s position is that she is enforcing a wish of the deceased by seeking an order for his body’s burial at Mgazini in Mankayane. According to the respondents, a determination of the burial place is a matter of Swazi law and custom, hence only the families involved are entitled to determine the appropriate burial place, failing which, it should be the umphakatsi or the Swazi National Court. It is only after these structures have made their determination that the matter may be brought on appeal or review to this court.
 With due respect, I do not see how this becomes a matter of Swazi law and custom. The applicant is not before court seeking an order that determines the validity of the wives’ marriage with the deceased and the consequences arising therefrom. It also does not seek an order making a declaration on who has the right to bury the deceased. On the papers before court, it seeks an order which enforces a wish which the deceased expressed during his lifetime. I find nothing on the facts which places the matter in the purview of Swazi law and custom.
 The respondents’ second argument on this point is that even when the matter is considered and looked at from the civil rites’ marriage regime, s.24 of the Marriage Act 47/1964 (hereinafter referred to as “the Act”) requires that the proprietary consequences arising from the civil rites marriage be dealt with in accordance with Swazi law and custom. Section 24 of the Act provides as quoted below:
- (own emphasis)
 In terms of s.11 of the Swazi Courts Act, 1950, Swazi law and custom is administered by the Swazi National Courts.
 It is common cause that the applicant and the deceased were married in terms of civil rights, and both are Africans. On the basis of section 24, it is undisputable that the marital power of the husband and the proprietary rights of the couple is to be governed by Swazi law and custom. This is however subject to section 25 which provides as quoted below:
Variation of consequences of marriage.
- (own emphasis)
(2) If the parties agree that the consequences flowing from the marriage shall be governed by the common law, the marriage officer shall endorse on the original marriage register and on the duplicate original marriage register the fact of the agreement; and the production of a marriage certificate, original marriage register or duplicate original marriage register so endorsed shall be ‘prima facie’ evidence of that fact unless the contrary is proved. (own emphasis)
 Attached to the founding affidavit as annexure “TY 2” is a certified copy of the marriage certificate of the marriage between the applicant and the deceased. It reflects that the marriage was solemnized according to Civil Rites under the Marriage Act. It also reflects that the date of the marriage is 19 March 2016. It further reflects that the law governing the consequences of the marriage is the common law. These endorsements on the marriage certificate are evidence of the fact that the agreement which was made between the applicant and the deceased is that the consequences of their marriage is governed by the common law. The liberty to make this choice is granted by section 25 (1) of the Marriage Act. The endorsements so made on the marriage certificate are in compliance with the requirement stipulated by subsection (2) of section 25.
 On the basis of the analysis I make of sections 24 and 25 in the foregoing paragraphs, it is a finding of this court that the consequences flowing from the marriage between the applicant and the deceased cannot be governed by, and or determined in accordance with, Swazi law and custom, as submitted by the respondents’ attorney, but by the common law. The respondents’ attorney seems to have paid attention to section 24 alone and turned a blind eye to section 25 of the Marriage Act.
 It is my finding that the respondents’ point in limine on jurisdiction (legal incompetence of prayer 2) warrants to be dismissed and I so order.
Lack of locus standi to bring this application
 The respondents contend that the applicant is not a lawfully wedded wife of the deceased and she therefore cannot fight for the proprietary consequences that flow from a lawful marriage. The respondents’ argument is that even though the applicant underwent a wedding ceremony with the deceased, she is not legally married to him because the Marriage Officer was not informed that the deceased married the 1st respondent in accordance with Swazi law and custom and that the marriage subsisted at the time of the marriage of the applicant and the deceased.
 This argument is based on the common cause fact that the applicant is a second wife of the deceased. They married in terms of civil rites (in 2016) when the deceased was already married to the 1st respondent in 1990 in terms of Swazi law and custom and this marriage was still in subsistence when the applicant and the deceased got married.
 The respondents’ submission is that the applicant is enforcing a right which accrues to lawfully married wives yet she is not lawfully married to the deceased. The submission is premised on section 7 of the Marriage Act which does not permit the co-existence of two marriages to two different persons. The section provides as quoted below:
Provided that nothing in this section shall prevent parties married in accordance with Swazi law or custom or other rites from re-marrying one another in terms of this Act.
(2) No person married in terms of this act shall, during the subsistence of the marriage, purport to contract a legally recognized ceremony of marriage with any person other than the lawful spouse of the first-named person.
(3) Any person who contravenes sub-section (2) shall be deemed to have committed the offence of bigamy.
 Premised on the submission and argument made on behalf of the respondents, viz., that the applicant is legally not a wife of the deceased, the respondents submit therefore, that the applicant has no locus standi in judicio to bring the application before court. The term locus standi in judicio is a Latin expression that means the right to bring a matter and to be heard in court. I fully concur with the definition given by the respondents’ attorney who quoted Ota J. in the unreported case of Apostolic Faith Mission v Dlamini, High Court Case No. 3117/2010 stated as follows:
“The term locus standi denotes legal capacity to institutes proceedings in a Court of law and is used interchangeably with terms like ‘standing’ or ‘title to sue’. It is the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law”.
 In casu, the applicant seeks a mandatory interdict which would compel the respondents to allow the remains of the late Peter Gasa Yende to be buried at Mgazini in Mankayane. According to Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South Africa, 4th ed, in an application for an interdict, applicant will have locus standi in judicio if the right on which he basis his claim is one that he personally enjoys or has a sufficient interest in the person whose right he seeks to protect and it is impossible or impracticable for that person to approach the court himself. At page 1079, the authors state as quoted below:
“The applicant will have locus standi in judicio if the right on which he basis his claim for an interdict is one that he personally enjoys, or if he has a sufficient interest in the person or persons whose rights he seeks to protect and it is impossible or impractical for those persons to approach the court themselves.” (own emphasis)
 It is common cause that a civil rites’ marriage between the applicant and the deceased was solemnized. According to the applicant, this was in March 2016. This is confirmed by the marriage certificate which was thereafter issued as evidence of the marriage (Annexure “TY2”).
 It is also common cause that this marriage between the applicant and the deceased was not nullified by any court. This fact remains true even to date. Courts are there to determine the legality or otherwise of our conduct. Acts or ceremonies that have been fully performed remain valid until they become nullified by the courts. This court has not been called upon to determine the validity, legality or otherwise, of the marriage between the applicant and the deceased Peter Gasa Yende. To do so, required the 1st respondent to file a counter-application or fresh proceedings seeking an order declaring the marriage null and void. Until this has been done, and an order nullifying the marriage being issued thereafter, the marriage between the applicant and the deceased remains valid. The applicant is accordingly a wife of the deceased and has a sufficient interest in his affairs. She has a right to protect her deceased husband’s rights as it has become impracticable, due to death, for him to do so.
 The 1st respondent’s submission and argument that the applicant has no locus standi to bring this application is therefore untenable because the applicant’s marriage with the deceased has not been nullified by the court. It remains a valid marriage. This point of law therefore fails and is accordingly dismissed.
Lack of clear right to relief sought
 The respondents contend that the applicant dismally failed to establish a clear right to the relief she seeks and therefore ask the court to dismiss the prayer for an interdict against the respondents as lacking in merit. Their argument is that the applicant is a second wife of the deceased and were married in terms of civil rights in 2014 yet the 1st respondent married the deceased in terms of Swazi law and custom in 1990 and the marriage was still in subsistence at the time of the marriage of the applicant and the deceased. On this basis, they submit that the applicant is not a wife in our law and cannot therefore claim any of the rights accruing to lawfully married women.
 I state in paragraph  above, that the kind of interdict being sought by the applicant is a mandatory interdict. According to the authors Stephen Pete et al in their book Civil Procedure: A Practical Guide, 3rd ed, interdicts “involve the enforcement and protection of rights. It follows that the first prerequisite for the granting of an interdict is the existence of a right accruing to the person who seeks to enforce the interdict.” (p.455)
 The respondents’ argument is that the applicant, being a second wife of the deceased, and having married him in terms of civil rites during the subsistence of a Swazi law and custom marriage between the deceased and the 1st respondent, is in our law not a lawfully married wife and cannot claim any right which accrues to married women.
 This point in limine, in my view, is intertwined with the point of law on lack of locus standi in that both are premised on the submission and argument that the applicant is not married to the deceased as her marriage to him was during the subsistence of another marriage by the deceased to the 1st respondent, hence the second marriage is a nullity as it contravenes s.7 of the Marriage Act.
 The respondents’ argument places the cart before the horse as the validity or otherwise of the marriage between the applicant and the deceased has not been nullified and or set aside by the court. The respondents must first make an application to court and seek an order that would declare the marriage between the applicant and the deceased invalid. Until such a declaratory order is sought and granted by the court, the marriage remains valid. As a wife of the deceased, the applicant has the right to seek an order for the protection and enforcement of his rights. The point of law therefore fails and is dismissed.
 In the case of Mfanyana Dlamini & 2 Others vs Cetjiwe Jabulile Dlamini nee Mdluli (02/2014)  SZSC 38 (30 May 2014) the Supreme Court stated as quoted below:
 Where however, the deceased dies testate, the executor, the surviving spouse or family should bury the deceased according to his wishes. See: Thembi Mhlanga v Alfred Mhlanga & 4 Others (16/2014)  SZSC 51 (03 December 2014) para 22.
 According to the Black’s Law Dictionary, 10th ed., the word ‘will’ “denotes the sum of what the testator wishes, or ‘wills’, to happen on his death.” It also “denotes the document or documents in which that intention is expressed.”
 On the facts placed before this court, the deceased communicated his wish on what is to happen upon his death. The applicant deposed in paragraph 6.3 of her founding affidavit as quoted below:
 A confirmatory affidavit of Almon Yende, a brother to the deceased, is attached to the founding affidavit and is deposed to as quoted below:
4.2 The deceased re-emphasized this position to me when he left the First Respondent at kaNdinda area. He alleged that he found his wife in bed with another man and was, therefore, leaving her for good.”
 The 1st respondent has made an unconvincing denial of the above quoted averments made in the founding papers. Instead of answering the substance of those averments, she elects to attack the marital status of the applicant. Below is how she answered the averments made by the applicant:
I deny the contents of this paragraph in the strongest possible terms and aver that this is a pure fabrication of facts. There is no way the deceased would have told a girl friend such an important issue and there is no bad blood between me and Applicant. There is also no explanation why the deceased would not write a will or tell the elders of the Yende family such a wish.”
 I have taken note of the fact that the 1st respondent elected not to answer the averments made by Almon Yende in his confirmatory affidavit. Those averments remain uncontroverted. I am of the firm view that the deceased expressed his choice of the place where he is to be buried. This choice is his ‘Will’, and that he is to be buried according to this expressed ‘will’.
 On the totality of the facts placed before this court, I find in favour of the applicant. The following orders are issued:
[55.1] The prayer that the matter be heard as one of urgency is granted;
[55.2] The deceased Peter Gasa Yende is to be buried at his parental homestead at Mgazini, Mankayane, District of Manzini, as per his wish that he expressed during his lifetime;
[55.3] The First to Eighth Respondents and /or anyone acting on their behest, are hereby restrained from interfering with the funeral and subsequent burial of Peter Gasa Yende. They however, have the full liberty to attend his funeral and burial, and if they so wish, to contribute for purposes of having a dignified burial;
[55.4] The National Commissioner of Police of the Royal Eswatini Police Service, acting through members of the Police Service, is directed to ensure compliance with the above issued Orders;
[55.5] The parties are each ordered to bear their own costs.
JUDGE – HIGH COURT
For the Applicant : Mr M. Mntungwa
For the Respondents : Mr P.K. Msibi