THE HIGH COURT OF SWAZILAND
AT MBABANE CIV. CASE NO. 1259/95
the matter between:
JUBHELA MTSIMKHULU 1st Applicant
GIBA MABILA 2nd applicant
JESSIA MABILA 3rd Applicant
MANDLA MKHWANAZI 1st Respondent
BURIAL BENEFIT SOCIETY LTD 2nd Respondent
PLAINTIFF: MR. S. DLAMINI
DEFENDANT: MR. SHILUBANE
30th June, 1995, the applicants brought an urgent application dated
22 June, 1995 at 3:30 p.m. seeking an order in the following terms:
the usual requirements of the rules of court regarding notice and
service of applications be waived in view of the urgency of the
a rule nisi do issue returnable on a day to be determined by this
Honourable Court calling on the Respondents to show cause why the
following order should not be made final:-
the first respondent from either directly or indirectly removing the
body of JOSEPH SIHHOHLO MKHWANAZI from the mortuary of the second
Respondent and from interring the said remains of the said JOSEPH
the second Respondent to hand over the body of the said JOSEPH
SIHHOHLO MKHWANAZI to the applicants to enable the applicants to
proceed with the funeral arrangements and the burial thereof
the applicants to be the persons who have the sole burial rights in
respect of the body of the said JOSEPH SIHHOHLO MKHWANAZI.
the rule nisi operates as an interim order pending the finalisation
of the application.
the Respondents be ordered to pay the costs of this application
should they oppose it.
order was granted and the rule nisi was issued returnable on 30th
the return day, the applicants filed Notice of Motion Head Notice of
counter-application seeking an order in the following terms:-
the proceedings under case number 1259/95 pending the finalisation of
contempt of court proceedings to be instituted by the Applicants
during the course of next week against WINSTON MANDLA MKHWANAZI,
ELIZABETH NANI MKHWANAZI and all those who aided and abetted them in
defying the order of court dated 23rd June, 1995.
the rule nisi which was issued on the 23rd June, 1995 until the
finalisation of the contempt of court proceedings referred to in
prayer one (1) above.
against WINSTON MANDLA MKHWANAZI and ELIZABETH NANI MKHWNAZI jointly
and severally on an Attorney and Client scale.
and/or alternative relief.
respondent on 27/06/95 had filed a Notice of Motion seeking an order
in the folowing terms:-
the rule nisi issued in this matter dated 22 June 1995 in terms of
rule 6 (22) of the rules of court.
the third Respondent leave to oppose and intervene and be joined as
third Respondent in these proceedings.
against the Applicants jointly and severally on an Attorney and
and alternative relief.
the return day of the rule I ordered that the parties must argue the
main application and I postponed the counter application to the
Notice of Motion of the respondents dated 29/06/95 to a date to be
applicants filed affidavits of Timothy Jubhela Mthimkhulu, Phillip
Giba Mabila and Lomacala Jessie Mabila. The respondents filed the
answering affidavits of Elizabeth Nani Mkhwanazi and Mandla Winston
the affidavits of the applicants and the respondents, the deceased's
wife, it is clear that the applicants and the deceased had a
relationship. The court must only decide who had the right to bury
the deceased and though it is not for the court to decide, the
apparent heir of the deceased.
affidavit of the first applicant states that the deceased stayed at
or with the Mkhwanazi at Mahamba since 1948 when his father i.e.
applicant's father who came with the deceased to Swaziland died.
affidavits of the first applicant in paragraph 6 states:
deceased was born Joseph Sihhohlo Mabila at Komatipoort in the R.S.A.
in or about 1935 of Zenjane Mabila and Ngwababane Mketiwa Mthimkhulu.
That latter was my aunt. Zenjane Mabila is the natural father of the
second and third applicants and the deceased".
deceased according to the paragraph is the half brother of the second
and the third applicants. The deceased is also the cousin of the
first applicant on the maternal side. According to paragraph 7
(seven), the deceased lived with the Mkhwanazi since 1948. The
deceased then acquired the surname of Mkhwanazi as early as 1948. It
does not appear in the affidavit that the deceased had been forced in
his life to call himself with the adopted surname, nor does it appear
that he intended to build his permanent home at his half brother's
home at Luve. The mother of the deceased died in 1992 in the R.S.A.
The deceased's parents were South Africans.
paragraph 13 of the affidavit. It is stated that the widow discussed
the burial arrangements with the Mabila's. It was agreed that the
deceased must be buried at Luve.
respondent filed the affidavits of Elizabeth Mkhwanazi the widow of
the deceased and Winston Mkhwanazi, the first respondent. The widow
denied that she discussed the burial with the Mabilas.
raised a point of law in limine challenging the locus standi of the
applicants. I shall deal first with the point of law. The affidavit
of the first applicant states clearly that the deceased's parents
were South Africans. They both died in the R.S.A. It does not state
whether the parents were married or not. The people who might have a
locus standi are the deceased's parents who are South Africans. They
have no connection with Luve. The first applicant states that the
mother of the deceased died in the R.S.A. and was buried there. He
does not state how the Mabilas come to be buried at Luve and why
should the deceased be buried at Luve when he intended to build his
home at Logoba where he had Khontaed. The second and third
respondents have no better right than the widow of the deceased to
whom he was married according to civil rites
widow has produced a marriage certificate which gives her a locus
standi. All those who were prepared to help with the burial of the
deceased could discuss the burial arrangements with her. In the
present case the widow denies that she was approached by the
applicants. She is not aware that they have a right over a person
whose parents are South Africans. The person who is the heir to the
deceased is the widow and deceased's children. It is clear from the
affidavit of the first applicant that the deceased grew up at Mahamba
and regarded the Mkhwanazi's home as his home. The widow decided that
he must be buried in Mahamba because the deceased regarded Mahamba as
therefore, find that the applicants have no locus standi in this
matter. As the applicants have no locus standi, it is not necessary
for the court to go into the merits of the application. The rule is
applicants can continue with the counter-application and arrange a
date for its hearing.