Bukula and Another v Nkosi (41333/11) [2014] ZAGPJHC 298 (20 October 2014)

Bukula and Another v Nkosi (41333/11) [2014] ZAGPJHC 298 (20 October 2014)

The court found that the applicants failed to establish a prima facie right to bury the deceased, as Me Bukula's alleged customary marriage was invalid due to the subsistence of the civil marriage between the deceased and Me Nkosi. Joyce's right as a daughter was subsidiary to Me Nkosi's right as the lawful spouse. The applicants acted in contempt of a rule nisi by proceeding with the burial and failed to oppose the exhumation application properly. The urgency claimed was self-created, and the applicants did not demonstrate irreparable harm or the absence of alternative remedies. The balance of convenience favoured the respondents, who had lawfully obtained the exhumation order. The...

Citation
[2014] ZAGPJHC 298
Parties
Applicant: Bukula Nomvuselelo Cynthia; Applicant: Nkosi Joyce; Respondent: Nkosi Matlakala Mabel
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2014
Case Number
41333/11
Procedural Posture
Urgent Application / Application for Stay of Exhumation Order Pending Rescission Application
Outcome
Application dismissed with punitive costs order against the applicants' attorneys.
Judges
Modiba
Legal Topics
Interim Interdict, Burial Rights, Customary Marriage, Civil Marriage, Costs De Bonis Propriis
Civil Procedure Family and Children Interim Interdict Burial Rights Customary Marriage Civil Marriage Costs De Bonis Propriis

Case Brief

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Parties

Bukula Nomvuselelo Cynthia

Applicant

Nkosi Joyce

Applicant

Nkosi Matlakala Mabel

Respondent

Procedural Posture

Urgent Application / Application for Stay of Exhumation Order Pending Rescission Application

Legal Issues

  1. 1 Whether the applicants have a prima facie right to stay the exhumation of the deceased's remains pending a rescission application.
  2. 2 Whether the applicants will suffer irreparable harm if interim relief is not granted.
  3. 3 Whether the balance of convenience favours the applicants or respondents.

Ratio Decidendi

The court found that the applicants failed to establish a prima facie right to bury the deceased, as Me Bukula's alleged customary marriage was invalid due to the subsistence of the civil marriage between the deceased and Me Nkosi. Joyce's right as a daughter was subsidiary to Me Nkosi's right as the lawful spouse. The applicants acted in contempt of a rule nisi by proceeding with the burial and failed to oppose the exhumation application properly. The urgency claimed was self-created, and the applicants did not demonstrate irreparable harm or the absence of alternative remedies. The balance of convenience favoured the respondents, who had lawfully obtained the exhumation order. The...

Court Disposition

Application dismissed with punitive costs order against the applicants' attorneys.

Orders

  • The application is dismissed.
  • The applicant's attorney shall pay the costs of this application de bonis propriis.