Peter v Katiya and Another

• Jurisdiction: South Africa
• Judge: Pickering, AJ
• Judgment Date: 09 October 2000
• Docket Number: 1420/92
• Court: Transkei Supreme Court
• Hearing Date: 09 October 2000
• Citation: 2000 JDR 0715 (TkS)

Pickering, AJ:

One Samuel Peter died on 15 September 1992 at the age of 62 years. On 23 September 1992 the Applicant launched an urgent application before this Court for certain relief and a rule nisi was issued-by Hancke J calling upon the Respondents to show cause why:

"1.

the First Respondent and all persons acting under his authority should not be ordered to refrain from removing the deceased body of Samuel Peter from Ciliwe Funeral Undertakers, Butterworth;

2.

the Second Respondent should not be interdicted and restrained from handing over the deceased body of the aforesaid Samuel Peter to First Respondent and all persons acting under his authority;

3.

the Second Respondent should not be directed to hand over the deceased body of the aforesaid Samuel Peter to Applicant;

4.

the First Respondent or all persons acting under his authority should not be ordered to return Applicant's Insurance Book and the death Certificate of the aforementioned Samuel Peter to Applicant;

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Pickering AJ

5.

the First Respondent should not be ordered to pay the costs of this Application."

It was ordered that the order should operate as an interim interdict.

This is now the return date of the rule nisi and a decision is called for urgently as both the Applicant and the First Respondent intend to hold the funeral of the deceased tomorrow in the event of their being successful in this application.

Applicant's founding affidavit was somewhat sketchy. She alleged that on 12 January 1954 she married the aforesaid Samuel Peter (hereinafter referred to as "the deceased). After his death his body was taken to the premises of Second Respondent, although she does not state by whom this was done. She made arrangements for the funeral to be held on 4 October 1992 and has expended a considerable amount of money towards these arrangements.

She then states as follows

"At the time of his death the deceased had an affair with one Nomawele Katiya, whom he often visited."

In consequence of information received by her from Second Respondent and others to the effect that Nomawele Katiya, the First Respondent, was also making arrangements for burying the deceased and had in fact set 26 September 1992 as a date for the funeral, she approached this Court as a matter of urgency for the relief set out above as she wished to bury the deceased at her own home. She averred that First Respondent was in possess ion of the Insurance Book and the death certificate of the deceased and that she needed these documents in order to enable her to attend to the funeral.

First Respondent, in her answering affidavit, alleged that she had married the deceased according to customary law in December 1968 whereafter she had lived with him and his parents at their home. After the deceased had been allocated his own homestead allotment they had built a house thereon and had lived there together as man and wife from 1978 till his death. Whilst admitting that Applicant had married

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Pickering AJ

deceased in 1954 she averred that "for all practical purposes that marriage was dissolved" when the deceased married her in 1968. She took issue with Applicant's averment that she had merely had an affair with the deceased and that he merely visited her and she alleged that they were in fact husband and wife and were known as such by the whole community. She attached to her affidavit an extract from her travel document reflecting her surname as "Peter" and not Katiya as well as her salary advice from her employer, Transkei Government, made out in the name of "Peter". She concluded by saying that she had looked after, the deceased throughout his...