Nodada Funeral Services CC v the Master and Others

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 13 December 2002
• Citation: 2003 (4) SA 422 (TkH)
• Docket Number: 120/2002
• Hearing Date: 29 October 2002
• Counsel: S M Mbenenge for the applicant. N R Mtshabe for the respondents.
• Court: Transkei High Court

Miller J:

The applicant seeks the following relief:

(1)

that the second respondent be declared to be liable for the repayment of the amount of R65 958,12 to the applicant for the expenses incurred in the conduct of the funeral of the late T C M Moko B (the deceased) as well as the erection of the tombstone on his grave and the erection of the tombstones on the graves of the deceased's parents;

(2)

that the first respondent be ordered to deduct the said amount from the proceeds of the insurance policy paid to it by Sanlam C Insurance Co for the benefit of the second respondent and pay over such amount to the applicant; and

(3)

that the costs of the application be paid by the first respondent from the proceeds of the said insurance policy.

The second respondent is the daughter of the deceased. She is nine years old and is cited as being sued duly assisted by her mother and guardian, Nozithembiso Eunice Dyani. D

The deceased was employed by the Eastern Cape Department of Sports, Arts, Culture and Recreation and was stationed at Libode as a Sports Development Officer. He died during May 2001 in a shooting incident which took place in East London. Shortly after his death, Mr Thembelani Joseph Nodada, the executive director of the applicant, was E approached at the applicant's place of business by Ms Nombulo Moko, the sister of the deceased. She was in the company of one Nombulelo August and Mr and Mrs Mangxola. Mr Nodada states in his founding affidavit that the deceased's sister approached him in 'her capacity as the only sibling and closest relative of the deceased' and that Ms F August and Mr and Mrs Mangxola were acting in their capacities as personal friends of the deceased.

They requested that the applicant fetch the deceased's body from East London and bring it to the applicants mortuary in Umtata and then G conduct the funeral of the deceased, including the provision of the coffin and other funeral necessities and also to supply and erect a tombstone at the grave. The deceased's sister also stated that the applicant should erect tombstones at the graves of her parents as the deceased was their only son and, as such, had the duty to erect tombstones at their graves but had not done so before his death. H

They told Mr Nodada that there were no funds available for the conduct of the funeral and the erection of the tombstones but they stated that the deceased had an endowment policy from Sanlam Insurance Co which had a death cover on his life in the amount of R200 000. They requested the applicant to agree that all the expenses incurred by it be paid out of the proceeds of the policy. Mr Nodada was shown the I policy and, after satisfying himself that the policy did cover the deceased's life for R200 000, he agreed on behalf of the applicant to carry out their requests on the basis that all of its expenses would be paid from the proceeds of the policy. J

Miller J

The applicant then performed all of its obligations in terms of the A agreement. The funeral of the deceased took place on 20 May 2001 and all three tombstones were erected within a week of the funeral. The total cost for the work done and goods supplied by the applicant was R65 958,12 of which R13 174,98 was in respect of the tombstones erected at the graves of the deceased's parents.

The applicant then presented an invoice to the deceased's sister for B payment. Shortly thereafter the applicant received a letter from a firm of attorneys, Mpange and Associates, informing it that they represent the family of the deceased in the winding-up of the estate and that they had submitted the applicant's statement of account to the magistrate, Tsolo, with whom the estate file had been opened. The expectation was that the proceeds of the insurance policy would be paid C into the estate account which was administered by the magistrate, Tsolo.

During November 2001, Mr Nodada was informed by Ms Nombulelo August, who had visited him with the deceased's sister shortly after the death of the deceased and who was a representative of Sanlam Insurance Co, D that the second respondent had been nominated by the deceased as a beneficiary...