Mphiki v Mphiki and Another (54/2018) [2019] ZANCHC 43 (24 May 2019)

Mphiki v Mphiki and Another (54/2018) [2019] ZANCHC 43 (24 May 2019)

The court found that the applicant was the lawful wife of the deceased, as her marriage to him subsisted at the time of his death. The deceased was incompetent to enter into a subsequent civil marriage with the first respondent, rendering that marriage null and void. The evidence showed the deceased used a different date of birth to facilitate the second marriage, which was a deliberate act to circumvent the law. The applicant established that the second respondent was aware of the burial dispute and released the body to the first respondent despite being informed of the pending legal process. The court held the second respondent liable for the costs of exhumation and reburial, as it...

Citation
[2019] ZANCHC 43
Parties
Applicant: Mmacowe Martha Mphiki; Respondent: Kerotse Lilian Mphiki; Respondent: Rekathusa Funeral Parlour
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
24 May 2019
Case Number
54/2018
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion
Outcome
Application granted in favour of the applicant.
Judges
BM Pakati
Legal Topics
Recognition of Customary Marriages Act, Declaratory Relief, Exhumation and Reburial, Condonation of Late Filing, Costs Award
Family and Children Civil Procedure Recognition of Customary Marriages Act Declaratory Relief Exhumation and Reburial Condonation of Late Filing Costs Award

Case Brief

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Parties

Mmacowe Martha Mphiki

Applicant

Kerotse Lilian Mphiki

Respondent

Rekathusa Funeral Parlour

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the applicant is the lawful wife of the deceased.
  2. 2 Whether the marriage between the deceased and the first respondent is valid.
  3. 3 Whether the body of the deceased should be exhumed and reburied at Itireleng Cemetery.

Ratio Decidendi

The court found that the applicant was the lawful wife of the deceased, as her marriage to him subsisted at the time of his death. The deceased was incompetent to enter into a subsequent civil marriage with the first respondent, rendering that marriage null and void. The evidence showed the deceased used a different date of birth to facilitate the second marriage, which was a deliberate act to circumvent the law. The applicant established that the second respondent was aware of the burial dispute and released the body to the first respondent despite being informed of the pending legal process. The court held the second respondent liable for the costs of exhumation and reburial, as it...

Court Disposition

Application granted in favour of the applicant.

Orders

  • The applicant, Mmacowe Martha Mphiki, is declared the lawful wife of the deceased, Modisakgosi John Mphiki.
  • The second respondent, Rekathusa Funeral Parlour, is ordered to bear the costs for the exhumation of the body of the deceased from Magojaneng Cemetery and rebury it at Itireleng Cemetery.