Motomokgolo v Rikhotso and Others (5009/2017) [2018] ZALMPPHC 19 (24 April 2018)

Motomokgolo v Rikhotso and Others (5009/2017) [2018] ZALMPPHC 19 (24 April 2018)

The court found that the respondents failed to establish the existence of a certain, uniformly observed, and reasonable custom prohibiting reburial in the same cemetery. The evidence showed inconsistency among community elders regarding the scope of the alleged custom, and the custom was not shown to be practiced for a long period. Furthermore, the custom would not pass constitutional muster, as it would unreasonably infringe on the applicant's rights. The applicant demonstrated a clear right to determine her son's burial place, suffered injury through exhumation and banishment, and had no satisfactory alternative remedy. The requirements for a final interdict were satisfied, and the...

Citation
[2018] ZALMPPHC 19
Parties
Applicant: Nkhensani Christinah Motomokgolo; Respondent: Hlayiseka Rikhotso & 20 Others
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
24 April 2018
Case Number
5009/2017
Procedural Posture
Urgent Application / Final Interdict Application After Prior Urgent Application Struck Off for Lack of Urgency
Outcome
Application granted. Final interdict issued in favour of the applicant.
Judges
MF Kganyago
Legal Topics
Final Interdict, Customary Law, Burial Rights, Constitutional Conformity
Civil Procedure Family and Children Final Interdict Customary Law Burial Rights Constitutional Conformity

Case Brief

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Parties

Nkhensani Christinah Motomokgolo

Applicant

Hlayiseka Rikhotso & 20 Others

Respondent

Procedural Posture

Urgent Application / Final Interdict Application After Prior Urgent Application Struck Off for Lack of Urgency

Legal Issues

  1. 1 Whether the applicant is entitled to rebury her son at Shawela village cemetery despite opposition based on alleged custom.
  2. 2 Whether the respondents' claimed custom prohibiting reburial in the same cemetery is established, reasonable, and constitutionally compliant.
  3. 3 Whether the requirements for a final interdict are satisfied.

Ratio Decidendi

The court found that the respondents failed to establish the existence of a certain, uniformly observed, and reasonable custom prohibiting reburial in the same cemetery. The evidence showed inconsistency among community elders regarding the scope of the alleged custom, and the custom was not shown to be practiced for a long period. Furthermore, the custom would not pass constitutional muster, as it would unreasonably infringe on the applicant's rights. The applicant demonstrated a clear right to determine her son's burial place, suffered injury through exhumation and banishment, and had no satisfactory alternative remedy. The requirements for a final interdict were satisfied, and the...

Court Disposition

Application granted. Final interdict issued in favour of the applicant.

Orders

  • Against the eleventh and twelfth respondents, an order in terms of prayer 2 and 5 is granted.
  • Against the remainder of the respondents, an order as prayed for in the notice of motion is granted.