Customary law wife entitled to bury her husband

Tina Hokwana Legal Practitioner
Court rules on burial dispute.
Court rules on burial dispute.
Image: 123RF

The brother-in-law of a woman who sought to challenge her right to bury her husband, found that the wife's decision-making power are not subordinate to cultural approval.

The deceased and the deceased’s wife (first respondent) were married in terms of Xhosa customary law and later by civil rite on June 4 2018.

The husband passed away on January 12.

When the husband died, his eldest brother, the applicant, brought an urgent application seeking to interdict the mans wife from burying him in Centurion, Tshwane.

He sought to bury the man on the basis that he was his older brother and that he thus had the exclusive right to decide where he was to be buried.

The mans older brother argued that in terms of Xhosa tradition, the deceased had to be buried in his ancestral home in Gqeberha, Eastern Cape.

The mans wife, however, opposed the application on the grounds that as the deceased’s wife, she had a right to bury her husband.

Counsel for the older brother submitted that when lobola was paid for the deceased’s wife, she became a customary law wife. As such, she belonged to the deceased’s family and could not make any decisions on behalf of the family.

According to counsel, the deceased’s wife became “the property” of the deceased family and, therefore, occupied a “low-ranking position” that barred her from making any burial-related decisions.

Counsel concluded that the deceased could not be buried anywhere but the Eastern Cape because burying him elsewhere would cause the deceased’s family to “suffer curses and bad luck in the future”.

It was then argued on behalf of the wife that the applicant had not met the requirements for the court to grant an interdict. In addition, counsel for the wife submitted that the deceased’s wife was entitled to decide where the deceased should be buried.

According to counsel, the deceased and his wife were in love and had spent holidays together when the deceased fell ill.

In determining the matter, the court concluded that the first respondent, as the deceased’s wife, has burial rights and may decide where her late husband should be buried.

The court went further and highlighted that at some stage, the applicant, in so far as hospital-related decisions were about to be made about the deceased, had stated as follows to the deceased’s wife: Kindly note that I spoke to my sisters and we decided that you were there from the inception of his illness. He is your legal husband and father of your child. We therefore decided it’s best if you make the final decision.

It was therefore surprising to the court that suddenly, the deceased’s wife’s decision-making powers in the context of her marriage and her late husband were subject to cultural approval.

The court found this to be rather unfortunate.

To conclude, the court referred to Judge Kganyago’s words in Mabulana v Mabulana: ‘Family feuds in relation to who has the right to bury a deceased person had the potential of permanently dividing the family. These are sensitive disputes, which are best suited to be mediated and resolved by family elders rather than bring them to court where there is no winner, but divides a united family structure which ends up being torn apart.

It is the time when the family should be united more than ever, and prepare to give the loved one a dignified burial, rather than hang their dirty linen in court. It will therefore be the duty of the court to evaluate the evidence presented before it in its totality in order to arrive at a just and fair decision.

The applicant’s application was dismissed with costs.

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