Mohasoa and Others v Mohasoa and Others (B3028/2024) [2024] ZAGPPHC 1149 (11 November 2024)

Mohasoa and Others v Mohasoa and Others (B3028/2024) [2024] ZAGPPHC 1149 (11 November 2024)

The court found, on a balance of probabilities, that the deceased expressed his wish to be buried next to his late wife in Soshanguve, as confirmed by credible evidence from the Applicants and the family meeting held before his death. The Respondents' version regarding burial in Seabe was not supported by sufficient evidence and was contradicted by procedural requirements for burial in a homestead, which the deceased, as an advisor to the traditional leader, would have known and followed if that were his true wish. The First Respondent's claim of a customary marriage was invalid due to the subsistence of a civil marriage, as per statutory law. The ex parte order was granted without proper...

Citation
[2024] ZAGPPHC 1149
Parties
Applicant: Daniel Mohasoa; Applicant: Janette Celia Mohasoa; Applicant: The Mohasoa Family; Respondent: Elsie Mmadipiwana Mohasoa; Respondent: Solly Mohasoa; Respondent: Kgosi E.P Chaane; Respondent: Royal Undertakers; Respondent: AVBOB Mabopane Branch
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 November 2024
Case Number
B3028/2024
Procedural Posture
Urgent Application / Application for Reconsideration of Ex Parte Interdict
Outcome
Application for reconsideration granted. The deceased is to be buried at the cemetery where his late wife was buried or the closest available cemetery.
Judges
MP Kumalo
Legal Topics
Burial Rights, Customary Marriage Validity, Interdict, Family Dispute Resolution
Family and Children Civil Procedure Burial Rights Customary Marriage Validity Interdict Family Dispute Resolution

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 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Daniel Mohasoa

Applicant

Janette Celia Mohasoa

Applicant

The Mohasoa Family

Applicant

Elsie Mmadipiwana Mohasoa

Respondent

Solly Mohasoa

Respondent

Kgosi E.P Chaane

Respondent

Royal Undertakers

Respondent

AVBOB Mabopane Branch

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Ex Parte Interdict

Legal Issues

  1. 1 Whether the deceased's burial should take place in Soshanguve next to his late wife or in Seabe next to his father.
  2. 2 Whether the order granted ex parte interdicting the burial should be reconsidered.
  3. 3 Whether the First Respondent's customary marriage to the deceased was valid during the subsistence of a civil marriage.

Ratio Decidendi

The court found, on a balance of probabilities, that the deceased expressed his wish to be buried next to his late wife in Soshanguve, as confirmed by credible evidence from the Applicants and the family meeting held before his death. The Respondents' version regarding burial in Seabe was not supported by sufficient evidence and was contradicted by procedural requirements for burial in a homestead, which the deceased, as an advisor to the traditional leader, would have known and followed if that were his true wish. The First Respondent's claim of a customary marriage was invalid due to the subsistence of a civil marriage, as per statutory law. The ex parte order was granted without proper...

Court Disposition

Application for reconsideration granted. The deceased is to be buried at the cemetery where his late wife was buried or the closest available cemetery.

Orders

  • The funeral of the late Ntobe Elias Mohasoa will be arranged with the involvement of all his family members including the First Respondent where possible, in accordance with the traditions and customs of the Seabe tribe.
  • The deceased shall be buried at the cemetery where his wife the Late Ella Mohasoa (born Msiza) or any closest cemetery where the Late Ella Mohasoa was buried.