C.P.M/K v M.N and Another (389/13) [2013] ZAECBHC 7 (12 July 2013)

C.P.M/K v M.N and Another (389/13) [2013] ZAECBHC 7 (12 July 2013)

The court found that the applicant failed to establish, on the papers, that she was married to the deceased by customary union at the time of his death. The documents relied upon by the applicant, including the family meeting minutes and SAPS print-out, did not provide sufficient proof of a customary marriage. The confirmatory affidavits did not demonstrate that the necessary customary rituals were performed with the involvement of the deceased's family. The deceased was not shown to have been disinherited from his family, and his children, as intestate heirs, supported the respondent's position. Consequently, the applicant did not have the right to arrange the burial, and the application...

Citation
[2013] ZAECBHC 7
Parties
Applicant: C[...] P[...] M[/]K[...]; Respondent: M[...] N[...]; Respondent: AVBOB FUNERAL PALOUR
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
12 July 2013
Case Number
389/13
Procedural Posture
Urgent Application / Final Judgment
Outcome
Application dismissed.
Judges
D.Z. Dukada
Legal Topics
Customary Marriage, Burial Rights, Urgent Interdict, Intestate Succession
Family and Children Civil Procedure Customary Marriage Burial Rights Urgent Interdict Intestate Succession

Case Brief

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Parties

C[...] P[...] M[/]K[...]

Applicant

M[...] N[...]

Respondent

AVBOB FUNERAL PALOUR

Respondent

Procedural Posture

Urgent Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant was married to the deceased by customary union at the time of his death.
  2. 2 Whether the applicant has the right to arrange the burial of the deceased.
  3. 3 Whether the applicant is entitled to the orders sought regarding possession and burial of the deceased's body.

Ratio Decidendi

The court found that the applicant failed to establish, on the papers, that she was married to the deceased by customary union at the time of his death. The documents relied upon by the applicant, including the family meeting minutes and SAPS print-out, did not provide sufficient proof of a customary marriage. The confirmatory affidavits did not demonstrate that the necessary customary rituals were performed with the involvement of the deceased's family. The deceased was not shown to have been disinherited from his family, and his children, as intestate heirs, supported the respondent's position. Consequently, the applicant did not have the right to arrange the burial, and the application...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The costs of the application are to be borne by the estate of the deceased, the late M[...] N[...].