Letho and Another v Dhlamini and Others (2020/18376) [2020] ZAGPJHC 443 (19 August 2020)

Letho and Another v Dhlamini and Others (2020/18376) [2020] ZAGPJHC 443 (19 August 2020)

The court found that the first respondent's own sworn statements and official documents completed after the death of the deceased unequivocally stated that the deceased was single and had not entered into any customary union. These documents directly contradicted her later claim of a customary marriage. The evidence provided by the applicants, supported by the intervening applicant (the deceased's son), was accepted as credible. The court held that the son of the deceased has the right to determine the burial process. The urgency of the matter justified deciding the dispute on the papers before the court. The first respondent was interdicted from removing the corpse without the consent of...

Citation
[2020] ZAGPJHC 443
Parties
Applicant: Phomolo Justice Letho; Applicant: Dintle Moeketsi Jr Ntoeele; Respondent: Shantell Dhlamini; Respondent: AVBOB; Respondent: Ntebaleng Nchupetsang N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 August 2020
Case Number
2020/18376
Procedural Posture
Urgent Application / Judgment Delivered After Urgent Application
Outcome
Application granted. The deceased was declared not married to the first respondent. The son has the right to bury the deceased. The first respondent is interdicted from removing the corpse without consent. Costs awarded against the first respondent.
Judges
Wepener
Legal Topics
Customary Marriage, Burial Rights, Urgent Interdict
Family and Children Civil Procedure Customary Marriage Burial Rights Urgent Interdict

Case Brief

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Parties

Phomolo Justice Letho

Applicant

Dintle Moeketsi Jr Ntoeele

Applicant

Shantell Dhlamini

Respondent

AVBOB

Respondent

Ntebaleng Nchupetsang N.O.

Respondent

Procedural Posture

Urgent Application / Judgment Delivered After Urgent Application

Legal Issues

  1. 1 Whether the deceased was married to the first respondent by customary law.
  2. 2 Who has the right to determine the burial of the deceased.
  3. 3 Whether the first respondent is interdicted from removing the corpse without consent.

Ratio Decidendi

The court found that the first respondent's own sworn statements and official documents completed after the death of the deceased unequivocally stated that the deceased was single and had not entered into any customary union. These documents directly contradicted her later claim of a customary marriage. The evidence provided by the applicants, supported by the intervening applicant (the deceased's son), was accepted as credible. The court held that the son of the deceased has the right to determine the burial process. The urgency of the matter justified deciding the dispute on the papers before the court. The first respondent was interdicted from removing the corpse without the consent of...

Court Disposition

Application granted. The deceased was declared not married to the first respondent. The son has the right to bury the deceased. The first respondent is interdicted from removing the corpse without consent. Costs awarded against the first respondent.

Orders

  • It is declared that the deceased, Russel Moeketsi Moletsane, was not married to the first respondent for the purposes of burial.
  • The respondents or any other person are interdicted from removing the corpse of the deceased from any mortuary without the consent of the applicant and the intervening applicant.