Ntoagae v Makabanyane and Another (M420/2015) [2015] ZANWHC 78 (12 November 2015)

Ntoagae v Makabanyane and Another (M420/2015) [2015] ZANWHC 78 (12 November 2015)

The applicant failed to prove the existence of a valid customary marriage with the deceased, as the essential requirement of the formal handing over of the bride was not met. Customary marriage is not solely about the parties but involves both families, and the absence of the handing over process means the marriage was not concluded. Without a valid marriage, the applicant had no legal right to arrange the burial. In the absence of a will, the right to bury the deceased falls to her legitimate child, who is a minor, and thus the first respondent, as the deceased's mother, is entitled to make burial arrangements. The first respondent had already made funeral arrangements and incurred...

Citation
[2015] ZANWHC 78
Parties
Applicant: Phistos Ntoagae; Respondent: Troy Makabanyane; Respondent: Mayaba Funeral Services
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 November 2015
Case Number
M420/2015
Procedural Posture
Urgent Application / Final Order After Rule Nisi Anticipated
Outcome
Application dismissed; costs awarded against the applicant; first respondent permitted to bury the deceased.
Judges
DJAJE
Legal Topics
Customary Marriage Requirements, Right to Bury, Handing Over of Bride, Burial Arrangements
Family and Children Customary Marriage Requirements Right to Bury Handing Over of Bride Burial Arrangements

Case Brief

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Parties

Phistos Ntoagae

Applicant

Troy Makabanyane

Respondent

Mayaba Funeral Services

Respondent

Procedural Posture

Urgent Application / Final Order After Rule Nisi Anticipated

Legal Issues

  1. 1 Whether a valid customary marriage existed between the applicant and the deceased.
  2. 2 Who has the legal right to arrange and conduct the burial of the deceased.
  3. 3 Whether the applicant established a right to interdict the respondents from burying the deceased.

Ratio Decidendi

The applicant failed to prove the existence of a valid customary marriage with the deceased, as the essential requirement of the formal handing over of the bride was not met. Customary marriage is not solely about the parties but involves both families, and the absence of the handing over process means the marriage was not concluded. Without a valid marriage, the applicant had no legal right to arrange the burial. In the absence of a will, the right to bury the deceased falls to her legitimate child, who is a minor, and thus the first respondent, as the deceased's mother, is entitled to make burial arrangements. The first respondent had already made funeral arrangements and incurred...

Court Disposition

Application dismissed; costs awarded against the applicant; first respondent permitted to bury the deceased.

Orders

  • Rule nisi granted on 9 October 2015 is discharged.
  • Applicant is ordered to pay the costs of this application.