Lemaku v Simunye and Others (1887/2022) [2022] ZAFSHC 114 (25 May 2022)

Lemaku v Simunye and Others (1887/2022) [2022] ZAFSHC 114 (25 May 2022)

The court found that the applicant, although still married to the deceased on paper, had been estranged for 14 years and had fled the marital home due to abuse. The deceased had lived with the first respondent in a stable, permanent partnership for the same period. The family, excluding the applicant and her daughter, supported the first respondent's right to arrange the funeral and burial. The court held that the mere existence of a civil marriage does not automatically confer exclusive burial rights, especially where the marital relationship had ceased in substance. Considerations of fairness, reasonableness, and public policy, as developed in recent case law, override the blanket...

Citation
[2022] ZAFSHC 114
Parties
Applicant: Rasebotseng Lemaku; Respondent: Anna Simunye; Respondent: Molly Funeral Home; Respondent: The Sheriff for the District Thaba Nchu
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 May 2022
Case Number
1887/2022
Procedural Posture
Urgent Application / Application for Urgent Interdict and Final Relief
Outcome
Application dismissed, except for absolution from the instance regarding the request for documents in prayer 6.
Judges
N. Snellenburg
Legal Topics
Burial Rights, Urgent Interdict, Cohabitation, Public Policy, Ex Parte Applications
Family and Children Civil Procedure Burial Rights Urgent Interdict Cohabitation Public Policy Ex Parte Applications

Case Brief

Summary, issues, holding and outcome

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Parties

Rasebotseng Lemaku

Applicant

Anna Simunye

Respondent

Molly Funeral Home

Respondent

The Sheriff for the District Thaba Nchu

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict and Final Relief

Legal Issues

  1. 1 Whether the applicant, as the estranged lawful spouse, has the exclusive right to bury the deceased despite 14 years of separation.
  2. 2 Whether the first respondent, who cohabited with the deceased for 14 years, may undertake funeral arrangements and burial.
  3. 3 Whether an urgent ex parte application for final and interim relief is procedurally proper in these circumstances.

Ratio Decidendi

The court found that the applicant, although still married to the deceased on paper, had been estranged for 14 years and had fled the marital home due to abuse. The deceased had lived with the first respondent in a stable, permanent partnership for the same period. The family, excluding the applicant and her daughter, supported the first respondent's right to arrange the funeral and burial. The court held that the mere existence of a civil marriage does not automatically confer exclusive burial rights, especially where the marital relationship had ceased in substance. Considerations of fairness, reasonableness, and public policy, as developed in recent case law, override the blanket...

Court Disposition

Application dismissed, except for absolution from the instance regarding the request for documents in prayer 6.

Orders

  • Condonation is granted to the applicant for non-compliance with Uniform rules regulating form, service of process and time periods; the application is enrolled as urgent.
  • The application is dismissed, subject to the qualification below.