Makoro v Malatsi and Others (170/02) [2002] ZANWHC 13 (7 May 2002)

Makoro v Malatsi and Others (170/02) [2002] ZANWHC 13 (7 May 2002)

The court found that the applicant was the lawful spouse of the deceased, as the divorce proceedings were never finalized and the parties reconciled. The purported marriage between the deceased and the second respondent was void ab initio, conferring no legal rights. The evidence did not establish that the applicant had abandoned the deceased; her failure to visit him during illness was not sufficient to strip her of burial rights, given her work obligations and the absence of denial of cohabitation by the second respondent. No testament or sufficiently cogent verbal wish existed to override the applicant's rights. Consequently, the applicant was entitled to bury the deceased and receive...

Citation
[2002] ZANWHC 13
Parties
Applicant: Dingile Elnes Makoro; Respondent: Minah Malatsi; Respondent: Mantwa Ruth Makoro; Respondent: Boikanyos Funeral Home
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
7 May 2002
Case Number
170/02
Procedural Posture
Urgent Application / Return Day of Rule Nisi; Confirmation of Interim Order
Outcome
Rule nisi confirmed; applicant declared entitled to bury the deceased; each party to pay own costs.
Judges
B.E. Nkabinde
Legal Topics
Burial Rights, Interdict, Marital Status Dispute, Intestate Succession
Family and Children Civil Procedure Burial Rights Interdict Marital Status Dispute Intestate Succession

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 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Dingile Elnes Makoro

Applicant

Minah Malatsi

Respondent

Mantwa Ruth Makoro

Respondent

Boikanyos Funeral Home

Respondent

Procedural Posture

Urgent Application / Return Day of Rule Nisi; Confirmation of Interim Order

Legal Issues

  1. 1 Who has the lawful right to bury the deceased, Molutsi John Makoro.
  2. 2 Whether the applicant, as the lawful spouse, abandoned the deceased, affecting her burial rights.
  3. 3 Whether the second respondent's purported marriage to the deceased confers burial rights.

Ratio Decidendi

The court found that the applicant was the lawful spouse of the deceased, as the divorce proceedings were never finalized and the parties reconciled. The purported marriage between the deceased and the second respondent was void ab initio, conferring no legal rights. The evidence did not establish that the applicant had abandoned the deceased; her failure to visit him during illness was not sufficient to strip her of burial rights, given her work obligations and the absence of denial of cohabitation by the second respondent. No testament or sufficiently cogent verbal wish existed to override the applicant's rights. Consequently, the applicant was entitled to bury the deceased and receive...

Court Disposition

Rule nisi confirmed; applicant declared entitled to bury the deceased; each party to pay own costs.

Orders

  • The applicant is declared the person with sole burial rights in respect of the deceased.
  • The respondents are interdicted and restrained from burying the deceased at Louisdaal village, district Ditsobotla, or any other place.