Mkhize v Mkhize and Others (2022/117657) [2022] ZAGPJHC 180 (28 March 2022)

Mkhize v Mkhize and Others (2022/117657) [2022] ZAGPJHC 180 (28 March 2022)

The court found that the applicant had not established a clear right to the relief sought. The evidence showed that the deceased had lived apart from the applicant for many years, was close to her children, and did not practice cultural rites. The respondents had already made funeral arrangements and incurred expenses. The applicant's delay in bringing the application and lack of meaningful communication undermined his claim to urgency and entitlement. The court inferred that the deceased's wishes were to be buried under her children's supervision, not the applicant's. The requirements for urgent interim relief were not met, and the application was dismissed.

Citation
[2022] ZAGPJHC 180
Parties
Applicant: Mkhize, Qatimbi Sidney; Respondent: Mkhize, Fanyana Moses; Respondent: Mkhize, Nomvula Pamela; Respondent: SFS Funeral Undertakers / Parlour
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2022
Case Number
2022/117657
Procedural Posture
Urgent Application / Part A: Interim Interdict; Part B: Moot Due to Dismissal
Outcome
Application dismissed; costs awarded against applicant.
Judges
Moorcroft
Legal Topics
Funeral Arrangements, Interim Interdict, Cultural Rights, Urgent Application
Family and Children Civil Procedure Funeral Arrangements Interim Interdict Cultural Rights Urgent Application

Case Brief

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Parties

Mkhize, Qatimbi Sidney

Applicant

Mkhize, Fanyana Moses

Respondent

Mkhize, Nomvula Pamela

Respondent

SFS Funeral Undertakers / Parlour

Respondent

Procedural Posture

Urgent Application / Part A: Interim Interdict; Part B: Moot Due to Dismissal

Legal Issues

  1. 1 Whether the applicant is entitled to interdict the respondents from arranging and conducting the funeral of the late Mrs Mkhize.
  2. 2 Whether the applicant and/or the Mkhize family are entitled to view the body of the deceased prior to burial.
  3. 3 Whether the applicant's cultural rights override the wishes of the deceased and her children in the context of funeral arrangements.

Ratio Decidendi

The court found that the applicant had not established a clear right to the relief sought. The evidence showed that the deceased had lived apart from the applicant for many years, was close to her children, and did not practice cultural rites. The respondents had already made funeral arrangements and incurred expenses. The applicant's delay in bringing the application and lack of meaningful communication undermined his claim to urgency and entitlement. The court inferred that the deceased's wishes were to be buried under her children's supervision, not the applicant's. The requirements for urgent interim relief were not met, and the application was dismissed.

Court Disposition

Application dismissed; costs awarded against applicant.

Orders

  • Part A of the application is dismissed.
  • The applicant is ordered to pay the costs of the application.