M.M.M and Others v L.N.M and Others (86457/2023) [2023] ZAGPJHC 1032 (7 September 2023)

M.M.M and Others v L.N.M and Others (86457/2023) [2023] ZAGPJHC 1032 (7 September 2023)

The court found that the matter was not urgent as the deceased had already been buried and decomposition had commenced. The applicants failed to establish that they would not obtain substantial redress in the ordinary course, nor did they provide evidence that a viewing of the body would still be possible. The court emphasized that exhumation is a serious and traumatic process, not to be granted lightly, and that the applicants' rights could be ventilated in due course. The conduct of the first respondent was condemned as insensitive and inappropriate, but did not justify urgent intervention. The application was accordingly struck from the urgent roll.

Citation
[2023] ZAGPJHC 1032
Parties
Applicant: M[...] M[...] M[...]; Applicant: J] M[...] M[...]; Applicant: T[...] R[...]; Applicant: D[...] K[...] M[...]; Applicant: T[...] J[...] M[...]; Respondent: Advocate L[...] N[...] M[...]; Respondent: Batho Batsho Bakopane (B3); Respondent: South African Police Service; Respondent: Makhudutamaga Local Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 September 2023
Case Number
86457/2023
Procedural Posture
Urgent Application / Application to Urgent Court for Exhumation and Reburial
Outcome
Application struck from the urgent court roll; no order as to costs.
Judges
Y Carrim
Legal Topics
Burial Rights, Exhumation, Customary Law, Urgency, Dignity in Burial
Family and Children Burial Rights Exhumation Customary Law Urgency Dignity in Burial

Case Brief

Summary, issues, holding and outcome

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Parties

M[...] M[...] M[...]

Applicant

J] M[...] M[...]

Applicant

T[...] R[...]

Applicant

D[...] K[...] M[...]

Applicant

T[...] J[...] M[...]

Applicant

Advocate L[...] N[...] M[...]

Respondent

Batho Batsho Bakopane (B3)

Respondent

South African Police Service

Respondent

Makhudutamaga Local Municipality

Respondent

Procedural Posture

Urgent Application / Application to Urgent Court for Exhumation and Reburial

Legal Issues

  1. 1 Whether the application for exhumation and reburial of the deceased is urgent and should be heard on the urgent roll.
  2. 2 Whether the applicants have established a clear right to exhumation and reburial based on the deceased's alleged wishes.
  3. 3 Whether the applicants would suffer irreparable harm if the order is not granted.

Ratio Decidendi

The court found that the matter was not urgent as the deceased had already been buried and decomposition had commenced. The applicants failed to establish that they would not obtain substantial redress in the ordinary course, nor did they provide evidence that a viewing of the body would still be possible. The court emphasized that exhumation is a serious and traumatic process, not to be granted lightly, and that the applicants' rights could be ventilated in due course. The conduct of the first respondent was condemned as insensitive and inappropriate, but did not justify urgent intervention. The application was accordingly struck from the urgent roll.

Court Disposition

Application struck from the urgent court roll; no order as to costs.

Orders

  • The matter is struck from the Urgent Court roll.
  • There is no order as to costs.