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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

                                             

 

Case Number:   5662/2021

In the matter between:

 

 

MANTSIENG MARGARET MOTHOBI                                       Applicant

 

and

 

KENEILOE DAPHNE MOTHOBI                                                 1^st Respondent

 

GOMOLEMO MOTHOBI                                                               2^nd Respondent

 

TSHEPO MOTHOBI                                                                        3^rd Respondent

 

COVISION FUNERAL HOME                                                       4^th Respondent

 

                 

 

REASONS BY:               MOLITSOANE, J

 

 

HEARD ON:                  05 DECEMBER   2021

 

 

DELIVERED ON:            21 DECEMBER 2021

 

 

 

[1]       Labious Mogoase Mothobi, the deceased, died on 30 November 2021. His funeral was set for 5 December 2021 at 11hh00 in Bloemfontein. On the day of the funeral at 7h00 the applicant, who is the mother of the deceased, brought an urgent application, on an ex parte basis seeking to temporarily interdict and prohibit the first, second and third respondents from proceeding with the scheduled funeral service and further seeking an order authorising her to make funeral arrangements and bury the deceased at Magogoe Village, Mafikeng, North West Province. She also sought other ancillary relief against the fourth respondent but such relief is dependent on the success of the relief against the other respondents. I dismissed the application and undertook to give my reasons at a later stage. These are my reasons. 

          

[2]       The first respondent and the deceased were married to each other on 30 October 1993. Two major daughters, Gomolemo and Tshepo (the second and third respondents) were born from the marriage. The first respondent and the deceased were divorced on 22 October 2019. 

 

[3]       It is the applicant’s case that she learnt of the passing on of the deceased on 30 November 2021. On the same day she was asked by the first respondent and gave permission to the latter to inform the other family members and the relatives about the demise of the deceased. On 1 December 2021 her daughter, Gaongalelwe and the second respondent discussed the funeral arrangements of the deceased. The issue of the place of the burial of the deceased was not discussed.   

 

[4]       It appears that this issue of the place where the deceased was to be buried became the main contentious issue amongst the parties. The children of the deceased even went to the applicant in Centurion in an attempt to resolve this issue without any success. The applicant contends that she is the biological mother and surviving parent of the deceased and thus has a direct and substantive interest in matters relating to his burial. She contends that the deceased has to be buried in Magogoe next to his father and other members of the Mothobi clan, in keeping with the wishes of her late husband and the traditional and cultural practises of the said clan. 

 

[5]       The main issue for determination is whether the applicant has satisfied the requirements for the issue of an interim interdict.

 

[6]       The requirements for an interim interdict are trite. In order to succeed with an application for an interim order the applicant must establish that: she has a prima facie right even though open to some doubt, a well-grounded apprehension of irreparable harm if the interim order is not granted, that the balance of convenience favours the granting of the order, and lastly that there is no other satisfactory or adequate remedy available to her.   

 

 

[7]       It has been held that it is the heir or heirs of the deceased who are entitled to decide upon the burial arrangements of the deceased and the place where the body ought to be interred.[1] In Sekeleni v Sekeleni and Another[2]  the court held as follows:

           “It is clear that, if the deceased did not impose the duty of burial on any person, then duty falls upon the heir named in the will. The duty of burial devolves upon the heir named in the will, if no such duty was imposed by the deceased on any other person. This to my mind is very clear if one firstly looks at the first sub-heading of Voet 11.7.7… I am therefore satisfied that if the deceased appoints or names somebody to attend to his burial, effect should be given thereto irrespective of whether such appointment is contained in his will or in any other document or even verbally.”  

          

 

[8]       The principle that, in the absence of the directive by the deceased as to who and where his remains must be buried, falls on the heirs/heiresses is not cast in stone. In my view, the principle in Trollip v Du Plessis en Andere[3] is to be preferred. In this case the approach preferred by the court was in finding a solution which was most reasonable and equitable. Fairness must thus play a greater role in adjudicating who and where the remains of the deceased ought to be buried.      

 

 

[9]       In Finlay and Another v Kutoane[4] the court held as follows:

           “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 results of the views on social structures, mainly of family relationships and marriage, and on the vesting of authority and 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.”

 

 

[10]     It is noteworthy to observe that the applicant does not rely on any right derived from the will in asserting that she is entitled to make funeral arrangements and to bury the deceased in Magogoe.  The founding affidavit is also silent on the issue of whether the deceased left a will or not. I am tempted to believe that the deceased died intestate according to the applicant, after all why would she not make any reference to the will if same was available. If the will was present it could have given this court some form of guidance as to the wishes of the deceased regarding his last resting place.    

 

 

[11]     There is further no reliance on the wishes or any kind of directives from the deceased as to who should arrange his funeral and at which place must his remains be interred. What is palpably missing in the founding affidavit is the place where the deceased resided during his life-time. I raised this issue with Counsel for the applicant and from the response given, it appears that after the divorce the deceased continued to stay in the same place with the first respondent albeit in different rooms. What is, however, interesting to note is that the three respondents and the deceased, during his life-time shared the same place of residence. This calls for one to ask oneself why the deceased would prefer his funeral arrangements not to be made by the people with whom he stayed during his life-time. Surely fairness would demand that the deceased should be buried by the people who stayed with him during his life-time and who cared for him during his illness.

 

 

[12]     The founding affidavit is silent on the rights, if any, of the heiresses, the two daughters of the deceased, in the burial of their father. They are majors and their rights to bury their father should have been considered. Even if they were minors, it was imperative that a curator ad litem should have been appointed for them.[5] In her affidavit[6] the applicant says ‘that the deceased has to be buried in Mahikeng in keeping with…family tradition, customs and rituals. That is where my late husband (deceased’s father) was buried. The deceased, as my eldest son was in charge and responsible for the burial and funeral arrangements of his father (my emphasis).” This statement is perplexing in view of the fact that the applicant seems to be of the view that it is okay for the deceased, as the eldest son to be in charge of the funeral arrangements of his father yet the same privilege or right cannot be accorded to his own children.

 

[13]     It is appropriate at this stage to digress and refer to customary law on intestate succession. This system recognised the principle of primogeniture which essentially meant that the eldest son of the deceased inherited the whole of his estate. Women were excluded from inheritance. The Constitutional court in Bhe and Others v Magistrate Khayelitsha and Others (Commissioner for Gender Equality  as amicus curiae and two Others[7] said the following:

           “To the extent that the primogeniture rule prevents all female children and significantly curtails the rights of male extra-marital children from inheriting, it discriminates against them too. These are particularly vulnerable groups in our society which correctly places much store in the well-being and protection of children who are ordinarily not in a position to protect themselves. In denying female and extra marital children the ability and the opportunity to inherit from their deceased fathers, the application of the principle of primogeniture is also in violation of section 9(3) of the Constitution.”       

 

[14]     Clearly the conduct of the applicant in disregarding the rights and participation of the daughters of the deceased in the arrangement of the burial of their father seems to be based on the fact that they are women. This would amount to promoting the unlawful system of primogeniture and deepening patriarchy. If it is not so, what possible explanation can there be to allow the deceased to arrange the burial of his father ‘as the eldest son’ and totally ignore his own daughters in his burial.  To grant this order would be violating the rights of the daughters of the deceased as women. To this end, preferring the mother of the deceased over the children of the deceased in arranging the funeral of the deceased would be unfair.     

 

 

[15]     In my view the applicant has failed to establish a prima facie right to obtain this interdict. On this point alone, I dismissed the application. I made the following order:

 

  ORDER

                                            

 

1.   The application is dismissed.

2.   There is no order as to costs.

 

 

          

 

 

                                                                

                                                          P.E. MOLITSOANE

 

 

 

 

 

On Behalf of the Applicant:                  Adv. D Nkhahle

 

Instructed by:                                             Motaung Attorneys

                                                                         BLOEMFONTEIN

 

 

 

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