Dalasile and Others v Mgoduka and Another (5056/2018) [2018] ZAECMHC 56 (2 October 2018)

Dalasile and Others v Mgoduka and Another (5056/2018) [2018] ZAECMHC 56 (2 October 2018)

The court found that the requirements for a valid customary marriage under section 3 of the Recognition of Customary Marriages Act were not met. Although lobola negotiations and partial payments occurred, the evidence did not establish that the deceased was handed over or celebrated as a bride in accordance with Xhosa custom. The alleged handing over was disputed and not substantiated by credible evidence. The respondent’s denials and supporting affidavits were found to be bare and unconvincing, failing to raise a genuine dispute of fact. The court rejected the respondent’s reliance on parental responsibilities and inheritance rights under the Children’s Act and common law, holding that...

Citation
[2018] ZAECMHC 56
Parties
Applicant: Nikiwe Dalasile; Applicant: Yandiswa Dalasile; Applicant: Mongezi Dalasile; Respondent: Babalo Mgoduka; Respondent: AVBOB Funeral Parlour – Kokstad
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
2 October 2018
Case Number
5056/2018
Procedural Posture
Urgent Application / Final Interdict Application on Urgent Basis
Outcome
Application granted; the first respondent is interdicted from burying the deceased, and burial is to take place at her maiden home.
Judges
Jolwana
Legal Topics
Recognition of Customary Marriages Act, Customary Marriage Validity, Burial Rights, Interdict, Locus Standi
Family and Children Civil Procedure Recognition of Customary Marriages Act Customary Marriage Validity Burial Rights Interdict Locus Standi

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Nikiwe Dalasile

Applicant

Yandiswa Dalasile

Applicant

Mongezi Dalasile

Applicant

Babalo Mgoduka

Respondent

AVBOB Funeral Parlour – Kokstad

Respondent

Procedural Posture

Urgent Application / Final Interdict Application on Urgent Basis

Legal Issues

  1. 1 Whether a valid customary marriage was concluded between the deceased and the first respondent.
  2. 2 Who is entitled to bury the deceased under customary law.
  3. 3 Whether the requirements of section 3 of the Recognition of Customary Marriages Act were fulfilled.

Ratio Decidendi

The court found that the requirements for a valid customary marriage under section 3 of the Recognition of Customary Marriages Act were not met. Although lobola negotiations and partial payments occurred, the evidence did not establish that the deceased was handed over or celebrated as a bride in accordance with Xhosa custom. The alleged handing over was disputed and not substantiated by credible evidence. The respondent’s denials and supporting affidavits were found to be bare and unconvincing, failing to raise a genuine dispute of fact. The court rejected the respondent’s reliance on parental responsibilities and inheritance rights under the Children’s Act and common law, holding that...

Court Disposition

Application granted; the first respondent is interdicted from burying the deceased, and burial is to take place at her maiden home.

Orders

  • The first respondent and any person acting in concert with him are interdicted and restrained from burying the remains of the deceased Phezisa Dalasile.
  • The deceased shall be buried at her maiden home at Bokleni Administrative Area, Engcobo.