Lemaku v Simunye and Another

• Jurisdiction: South Africa
• Judge: N Snellenburg AJ
• Judgment Date: 25 May 2022
• Docket Number: 1887/2022
• Hearing Date: 21 April 2022
• Court: Free State Division, Bloemfontein
• Citation: 2022 JDR 1481 (FB)

N Snellenburg AJ:

[1]

Aggrieved by the first respondent undertaking the funeral arrangements, with the intended burial of the Late Johannes Masusu Lemako [the deceased], who passed away on 14 April 2022, to take place during the early morning hours of Friday, 22 April 2022, the applicant approached the Court on urgent ex parte basis on Thursday, 21 April 2022 at 20h30 (approximately 8½ hours before the ceremony and burial would take place), for final and interim relief [1] intended to stay the burial and declare that the applicant shall be entitled to bury the deceased. The applicant filed only a notice of motion and requested leave to lead viva voce evidence in substantiation of the urgency and the relief she sought.

[2]

The application was enrolled as urgent application and dismissed on 22 April 2022 at 00h30, save for the relief sought in prayer 6 of the notice of motion with regards to which an order of absolution of the instance was granted.

[3]

These are the reasons for the order.

[4]

The applicant is the estranged wife of the deceased. They have been separated for 14 years after she fled the marital home during 2007 to

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escape the deceased's continued abuse. The applicant and the deceased were separated since then although they were never divorced.

[5]

It is accepted for purposes hereof that the applicant and the deceased were married to each other in community of property in Lesotho during 1981 and that this marriage, at least on paper, still existed when the deceased passed away.

[6]

As far as can be discerned from the evidence, the applicant and deceased had three children, two of which are still alive i.e., a son and a daughter. The daughter, Mrs Nthabiseng Joyce Rakubutu (née Lemako) [Nthabiseng] testified on behalf of the applicant.

[7]

For his part, the deceased and the first respondent entered into a relationship and lived together at the first respondent's residence as husband and wife since 2007/2008. The relationship endured until the deceased's death.

[8]

The second respondent is the mortuary where the deceased's body is kept, and the third respondent is the Sheriff for the district of Thaba Nchu.

[9]

The right asserted by the applicant is premised on the common law principles that govern burial rights.

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[10]

These principles, based on the statements of Voet, are well documented and entrenched in our law and provide that the court will give preference to the wishes of the deceased which may be expressed in the deceased's Will, any document or verbally. [2] In absence of instructions the burial rights vest in the testamentary heirs and if there are none then in the intestate heirs. [3]

[11]

In Finlay [4] , Flemming DJP explained that:

"Voet was, however, not dealing with choosing between competing parties. He spelled out the duty to bury. As is shown by s 11.7 and by his way of explaining and justifying the rules, it is a propriety with undertones of religious duties and regarding some aspects as hallowed." [5]

[12]

Flemming DJP expressed the view that 'Voet is no authority on how our legal system should cope with demands which were unknown to him but are bona fide and real.'. [6]

Earlier in the judgment, before dealing with the burial rights at common law, the Judge remarked-

"Also in deciding between competing persons, the law should ideally mirror what the community regards as proper and as fair. That perception will be partly the

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result of views on social structures, mainly of family relationships and marriage, and on the vesting of authority and the finality of decisions. There may be views about the impropriety of not complying with requests of the deceased. Religious views, cultural values and traditions may play a role." [7]

[13]

Erasmus J, in dealing with competing claims of heirs for burial rights, said in Mahala v Nkombombini and Another 2006 (5) SA 524 (SE) para 14-

"Where a deceased leaves a will, but without explicit indication as to whom shall be responsible for the burial arrangements, it could well be the implicit intention of the testator that such arrangements be effected by those who inherit his earthly goods. The same would apply, presumably, where the deceased dies intestate. There can be little problem where there is a single heir. Problems however arise where - as in the present matter – there is a multiplicity of heirs. In such circumstances there should be no hard and fast rules. Each case is to be decided on its own particular circumstances. Common sense shall largely dictate the decision of the court. The court shall have regard to the family relationships of the deceased, as well as all other relevant circumstances. The court shall, for example, take account of the practical considerations. This reflects the approach adopted in the Transvaal in Trollip's case (supra) [8] . The learned judge stated that fairness in the particular circumstances of the case was decisive (245 I). He added that the claim could not be evaluated according to the mathematical proportions of heirship, as if there was a co-shareholding in the body of the deceased (245 J). To respect the wishes of the deceased it was both sensible and fair."

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[14]

In W and Others v S and Others [9] [W v S], a case with some commonalities to the matter at hand, Mantame J pointed out that the blanket approach to the heir's burial rights at common law failed to take into account the expectations of the community; the relationship between the deceased (whilst still alive) and the heir who has a right to decide the issue of burial of the deceased and fairness and reasonableness of such decision:

"This is evidenced by the fact that over the years, there has been a shift from the blanket approach originating from the Roman – Dutch law principle that the heir has the right to decide on the issue of burial of the deceased. This is the right that first respondent relied to in this matter. This approach did not take into account the expectations of the community; the relationship between the deceased (whilst still alive) and this heir who has a right to decide the issue of burial of the deceased and fairness and reasonableness of such decision." [10] [emphasis added]

Whilst the Court in W v S still appeared to deal with competing claims of persons who fell within the categories of persons who qualified for burial rights at common law, i.e., the blood relatives were preferred over the estranged husband on the facts of that matter, the facts of this matter do differ in that respect. That said, I agree fully with the astute observations in the passage above, more so where we live in enlightened times where our Constitutional values are infused in the public policy which has changed considerably from what it was when many of the older precedents, dealing with burial rights, were penned. The relevant common law principles have been developed so that

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notions of reasonableness and fairness have tempered the blanket application.

[15]

In W v S at para 24 reference is made to the passage in LAWSA, ' Volume 32 (2nd edition) at para 221 'General', where it was stated:

"The right to bury a deceased is sometimes controversial and the courts did not always follow a similar approach in solving the problem before the court. Some courts took customary law practice into account, while others applied the Roman – Dutch law principle that the heir has the right to decide on the issue of burial of the deceased. The Transvaal courts on the other hand, followed the principle of fairness."

[16]

The issue for consideration, which has to be determined solely on the applicant's case under the circumstances described above, is whether the mere fact that the applicant and deceased were still lawfully married in terms of a civil marriage when he passed away, vests her with the exclusive right to attend to his burial notwithstanding the fact that the applicant and deceased had been estranged for a period of 14 years and the deceased had until his death, for a period of approximately 14 years lived with the first respondent in a relationship as 'husband and wife', albeit an extra-marital...