D.M v B2P Funeral Services and Others (2023/071479) [2023] ZAGPJHC 856 (3 August 2023)

D.M v B2P Funeral Services and Others (2023/071479) [2023] ZAGPJHC 856 (3 August 2023)

The court found that, although the applicant and the deceased were in a long-term, loving relationship and had children together, the existence of a customary law marriage was disputed and not determinative for the burial decision. The deceased had expressed a wish to be taken home to the Eastern Cape shortly before her death, which the court accepted as her wish to be buried there. The applicant had agreed to the funeral taking place in the Eastern Cape after discussions with the family. The broader family expected burial in the Eastern Cape, and practical considerations favored that location. The respondents undertook to allow the applicant and his children full access to the funeral...

Citation
[2023] ZAGPJHC 856
Parties
Applicant: D.M; Respondent: B2P Funeral Services; Respondent: N.N; Respondent: S.N
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 August 2023
Case Number
2023/071479
Procedural Posture
Urgent Application / Final Relief Application; Reasons for Order
Outcome
Application for declaration of customary law marriage postponed sine die; funeral to proceed in the Eastern Cape with full access for applicant and children.
Judges
S D J Wilson
Legal Topics
Burial Rights, Customary Law Marriage, Urgent Interdict, Balance of Fairness
Family and Children Civil Procedure Burial Rights Customary Law Marriage Urgent Interdict Balance of Fairness

Case Brief

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Parties

D.M

Applicant

B2P Funeral Services

Respondent

N.N

Respondent

S.N

Respondent

Procedural Posture

Urgent Application / Final Relief Application; Reasons for Order

Legal Issues

  1. 1 Whether the applicant was married to the deceased under customary law.
  2. 2 Who has the right to determine the location and manner of the deceased's burial.
  3. 3 Whether the applicant is entitled to an interdict restraining removal of the deceased's body.

Ratio Decidendi

The court found that, although the applicant and the deceased were in a long-term, loving relationship and had children together, the existence of a customary law marriage was disputed and not determinative for the burial decision. The deceased had expressed a wish to be taken home to the Eastern Cape shortly before her death, which the court accepted as her wish to be buried there. The applicant had agreed to the funeral taking place in the Eastern Cape after discussions with the family. The broader family expected burial in the Eastern Cape, and practical considerations favored that location. The respondents undertook to allow the applicant and his children full access to the funeral...

Court Disposition

Application for declaration of customary law marriage postponed sine die; funeral to proceed in the Eastern Cape with full access for applicant and children.

Orders

  • ZN's body is to be returned to the Eastern Cape and buried there.
  • NN and SN must ensure DM and his children have full and unfettered access to the funeral and gravesite for life.