Mothobi v Mothobi and Others (5662/2021) [2021] ZAFSHC 334 (21 December 2021)

Mothobi v Mothobi and Others (5662/2021) [2021] ZAFSHC 334 (21 December 2021)

The applicant failed to establish a prima facie right to the relief sought. She did not rely on any right derived from a will, nor did she provide evidence of a directive from the deceased regarding his burial. The founding affidavit was silent on the rights of the deceased's daughters, who are majors and entitled to participate in their father's burial arrangements. Preferring the mother over the daughters would perpetuate unlawful primogeniture and gender discrimination, contrary to constitutional principles. Fairness requires that those who lived with and cared for the deceased during his lifetime, namely his daughters and former spouse, should arrange the funeral. The application was...

Citation
[2021] ZAFSHC 334
Parties
Applicant: Mantsiêng Margaret Mothobi; Respondent: Keneiloe Daphne Mothobi; Respondent: Gomolemo Mothobi; Respondent: Tshepo Mothobi; Respondent: Covision Funeral Home
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 December 2021
Case Number
5662/2021
Procedural Posture
Urgent Application / Application for Interim Interdict
Outcome
Application dismissed.
Judges
Molitsoane
Legal Topics
Interim Interdict, Burial Rights, Customary Law, Gender Equality
Civil Procedure Family and Children Interim Interdict Burial Rights Customary Law Gender Equality

Case Brief

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Parties

Mantsiêng Margaret Mothobi

Applicant

Keneiloe Daphne Mothobi

Respondent

Gomolemo Mothobi

Respondent

Tshepo Mothobi

Respondent

Covision Funeral Home

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict

Legal Issues

  1. 1 Whether the applicant has established a prima facie right to obtain an interim interdict preventing the funeral from proceeding.
  2. 2 Whether the applicant is entitled to arrange the funeral and determine the burial place of the deceased.
  3. 3 Whether the rights of the deceased's daughters to participate in the burial arrangements have been properly considered.

Ratio Decidendi

The applicant failed to establish a prima facie right to the relief sought. She did not rely on any right derived from a will, nor did she provide evidence of a directive from the deceased regarding his burial. The founding affidavit was silent on the rights of the deceased's daughters, who are majors and entitled to participate in their father's burial arrangements. Preferring the mother over the daughters would perpetuate unlawful primogeniture and gender discrimination, contrary to constitutional principles. Fairness requires that those who lived with and cared for the deceased during his lifetime, namely his daughters and former spouse, should arrange the funeral. The application was...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.