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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

                                                                                                                NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, EAST LONDON

                                           Case no:  EL 1110/2014

                                                               ECD 2410/2014

Date heard:  1.9.2014

  Reasons available:4.9.2014

In the matter between:         

Z. T.                                                                                                                             Applicant

vs

V. E. M.                                                                                                          First Respondent

B. M.                                                                                                         Second Respondent

KASHE & SONS SUNSET FUNERALS                                                      Third Respondent

REASONS FOR JUDGMENT

TSHIKI  J:

[1] On the 29^th August 2014, applicant approached this Court, before Hartle J,  for directions in terms of Rule 12 (a)(i) and (ii) of the Rules of this Court.  The provisions of Rule 12 (a)(i) and (ii) relate to the approach and procedure to be followed when the applicant seeks to move an application by way of urgency.  In our division the applicant has to submit a certificate of urgency to the duty Judge for the latter to be able to ascertain from the contents of the certificate alone whether or not the matter is urgent, and if so, to what extent.  If the Judge is of the view that the matter is urgent, he or she will issue directions pertaining to time at which counsel or the applicant’s attorney would approach the Judge with a view to make submissions pertaining to the granting of the order sought.

[2] Indeed on the 29^th August 2014 Hartle J granted the following order:

“1.        The matter may be enrolled for hearing on an urgent basis at 14h00 on 29^th August 2014 on notice to the respondents.

2.        The applicant should give considerations to joining the funeral parlour as a respondent.

3.        The proposed notice of motion (paras (a) – (c) thereof should be amended to cater for the alleged urgent circumstances.”

[3] However, due to failure by the applicant to have the founding papers served upon the respondents the matter could not be heard on Friday the 29^th August 2014, instead it was brought before me on the following Monday at 10h00 for argument.

[4] Mr Pitt appeared for the applicant and Mr Mlisana appeared for the respondents.  Counsel informed me that the time scheduled for the cremation was 12 noon on the same day and for that reason I had to allow counsel to argue the case.  This was so for the reason that it could be disposed of on the basis of locus standi or lack thereof on the part of the applicant.

[5] Briefly the facts of the case are that applicant sought an order interdicting the respondents from cremating the remains of the deceased X. M. pending the finalization of this application.  Applicant describes herself as the fiancée of the deceased and were engaged on the 24^th September 2013 at Queenstown.  They have a child, a [….] born on the [….].  Deceased is the biological father of the child.  Deceased became sick on or about the 16^th July 2014 and was later admitted in an East London private hospital.  He died on the 26^th August 2014.  Apparently, the deceased’s mother and sister removed his body to Queenstown for his cremation at 12 noon on the 1^st September 2014.  It is common cause that the applicant was never formally introduced to the family of the deceased.  As it was expected, there was also no lobola paid for her as is required by custom.  This is not surprising when one has regard to the fact that there had been no people of the deceased family that were sent to the applicant’s home with a view to ask for their hand in marriage.  This is a custom practiced by all Xhosa people like the deceased and the applicant.

[6] When the matter was to be argued, Mr Mlisana informed me that the papers served on the respondents did not include the founding affidavit.  For that reason and others respondents could not be able to prepare the answering affidavit.

[7] At the outset I was of the prima facie view that the applicant did not have locus standi in judicio in this matter.  Her founding affidavit states that she is filing the application on behalf of her young daughter referred to above.  She would then be in a position to chose, on her daughter’s behalf, to have the deceased buried in a grave instead of being cremated as the respondents would want it.  Respondents are the mother and the sister of the deceased respectively.  It is them who took the body of the deceased to a funeral parlour in Queenstown for cremation.

[8] Mr Mlisana was of the view that applicant did not have locus standi to oppose the deceased’s mother on the issue of how the remains of the deceased should be disposed of after his death.  This is so even if she would be representing her daughter.  The case was therefore argued on this point only, more so that the respondents had not filed an answering affidavit.

[9] Mr Pitt contended that the applicant had locus standi in judicio because she would be acting on behalf of her minor child.  He, however, did not agree that the evidence of the applicant as to the indications by the deceased that he would want to be buried next to his brother’s grave, was hearsay.

[10] On the question of hearsay evidence, section 3 (1)(c) of the Law of Evidence Amendment Act 45 of 1988 (the Act) which came into operation on 3^rd October 1988, empowers the Court to admit hearsay evidence in the interests of justice.  In deciding what is in the interests of justice, the Court may have regard, not only to certain specified matters, such as the purpose for which the evidence is tendered and its probative value, but to any other factor which in the opinion of the Court should be taken into account.  In this case, it is my view, that if one has to accept the hearsay evidence of the applicant who is obviously not a neutral person in these proceedings, she could be tempted to mislead the Court for the reason that she wanted the deceased to be buried in a place of her choice and not necessarily what the deceased told her.  It would, therefore, not be in the interests of justice to admit her evidence in this regard because to do so would seriously prejudice the case of the respondents , especially the mother of the deceased.  (See Mnyama v Gxalaba and Another 1990 (1) SA 650 (C) at 65 3-C).  Such evidence lacks cogency as a result of the interest the applicant harbours in this case which is exhibited by her evidence in these proceedings.  She is also aware that ordinarily she could not have been given the election to chose the place and manner as to where and how the remains of the deceased would have been disposed of. (See also Consalves and Another v Consalves and Another 1985 (3) SA 507 (T)).  In that case Kirk-Cohen also came to the conclusion that a statement by the deceased as to where he wished his body could be laid to rest was hearsay and inadmissible.  In my view, the evidence of the applicant in this regard amounts to inadmissible hearsay and therefore cannot be admitted.

[11] The Court is now left with the applicant’s daughter’s interests as against those of the respondents, the mother of the deceased and her daughter, the deceased’s sister.  During argument of the case I asked Mr Pitt whether if applicant is now allowed to make an election on behalf of her daughter as to how and where the deceased’s remains are disposed of or buried it would not amount to her determining the issue and not the child.  This is so especially when one has regard to the fact that the burial or disposal of the deceased’s remains could not wait until the applicant’s daughter reaches the age when she is able to make an election.  Even if so, what if the child would have chosen that her deceased father should have been cremated?  It was, therefore, clear in this regard that the wishes of the first respondent, who is the mother of the deceased, should be decisive on whether the deceased should be cremated or buried.  This is so because the mother is the closest relative of the deceased and after all the applicant is not even the wife of the deceased.  For that reason alone she does not have locus standi.  The deceased is the child of the first respondent and therefore she has more rights to have an election as to whether or not the deceased should be cremated or buried in a grave.  Only nature intestate heirs who, by virtue of their age,  can take a decision whether or not the deceased’s body should be cremated or buried and if so where.

[12] As for the applicant she is not an heir of the deceased because they were not married.  There was also no bride wealth paid for her.  In any event, children are generally not involved in deciding the burial matters of deceased persons unless they are of mature age.  What is said above does not include the rights of the child to inherit from her deceased father.  In that case she can be represented by her mother, the applicant.

[13] Mr Mlisana has also submitted that there has been non-joinder of the deceased’s other children.  In the view I take of this matter, I do not think it necessary to deal with such issue.  I must also conclude to say that in Xhosa custom, where the parties herein belong, a child under the age of majority does not become involved in the preparations of the burial of his or her deceased relative.  Such a task is left for the adult people inclusive of the identification of the place of burial. (Mbanjwa v Mona 1977 (4) SA 403 (TK), Thembisile and Another v Thembisile and Another   2002 (2) SA 209 (T)).

[14] It is for the above reasons that I dismissed the application with costs.

________________________

P.W. TSHIKI

JUDGE OF THE HIGH COURT

 

Counsel for the applicant                 :           Adv Pitt

Instructed by                                    :           Thina Peneni Attorneys

                                                                             KING WILLIAM’S TOWN

 

Counsel for the respondent             :           Adv Mlisana

                                                                             Member of the Cape Bar

                                                                             Room 1 Bank Chambers

                                                                             CAPE TOWN

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