8 BURIAL AND FUNERAL CEREMONIES

In Africa, burial was not an occasion of great formality, and it was usually attended to as soon as possible after death. (The more important ceremony occurred some weeks or months later, when the deceased's spirit was laid to rest and the heir formally appointed.) In Christian and other beliefs, however, considerable religious and emotional significance is attached to burial.

If some members of a family want a traditional African form of burial and others prefer Christian rites, who is entitled to decide? Although the cultural and religious affiliation of the deceased and the deceased's family would seem to be relevant, according to the common law, the heir has the final decision (provided that the deceased left no specific instructions).^[27]

If it is accepted that heirs have the sole right to decide burial, a problem may then arise. The identity of the heir can be fixed only when it is apparent what law governs devolution of the estate, and deciding whether this is to be customary or common law is a complex matter. While the existence of a will and an antenuptial contract are key factors in choice of law, the courts have held on policy grounds that, where a deceased had married by Christian rites, his widow should be preferred to the customary-law heir(s).^[28]

Who should be entitled to decide the manner and place of burial in the event of a disagreement in the deceased's family?

[27] See Mbanjwa v Mona 1977 (4) SA 403 (Tk).

[28] Saiid v Schatz & another 1972 (1) SA 491 (T) and Tseola & another v Maqutu & another 1976 (2) SA 418 (Tk).

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