Ntshate and Another v Nqikela and Others (2420/2019) [2020] ZAECGHC 69 (25 June 2020)

Ntshate and Another v Nqikela and Others (2420/2019) [2020] ZAECGHC 69 (25 June 2020)

The court found that, although there was a dispute regarding the first applicant's status as the deceased's adoptive son, both parties agreed that, according to Xhosa custom, the deceased should have been buried at her marital home in Peddie. The burial in Grahamstown resulted from a breakdown in relations between the families, not from the deceased's expressed wishes. The court held that the applicants had made out a case for exhumation and reburial in Peddie, subject to municipal regulations. However, the declaratory relief sought by the first applicant, declaring him the only rightful person to bury the deceased, could not be granted due to unresolved factual disputes. Similarly, the...

Citation
[2020] ZAECGHC 69
Parties
Applicant: Anathi Ntshate; Applicant: Gladness Luvuyo Zitshu; Respondent: Tutu Nqikela; Respondent: Yoliswa Nqikela; Respondent: Portia Nqikela; Respondent: Makana Municipality; Respondent: Sheriff of the High Court, Grahamstown
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
25 June 2020
Case Number
2420/2019
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application partially granted: exhumation and reburial authorised, declaratory and document relief refused, each party to pay own costs.
Judges
NG Beshe
Legal Topics
Burial Rights, Customary Law, Exhumation, Declaratory Relief
Family and Children Civil Procedure Burial Rights Customary Law Exhumation Declaratory Relief

Case Brief

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Parties

Anathi Ntshate

Applicant

Gladness Luvuyo Zitshu

Applicant

Tutu Nqikela

Respondent

Yoliswa Nqikela

Respondent

Portia Nqikela

Respondent

Makana Municipality

Respondent

Sheriff of the High Court, Grahamstown

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to exhume and rebury the deceased at her marital home in Peddie.
  2. 2 Whether the first applicant is the only rightful person to bury the deceased.
  3. 3 Whether the respondents must return the deceased's death certificate and identity document to the applicants.

Ratio Decidendi

The court found that, although there was a dispute regarding the first applicant's status as the deceased's adoptive son, both parties agreed that, according to Xhosa custom, the deceased should have been buried at her marital home in Peddie. The burial in Grahamstown resulted from a breakdown in relations between the families, not from the deceased's expressed wishes. The court held that the applicants had made out a case for exhumation and reburial in Peddie, subject to municipal regulations. However, the declaratory relief sought by the first applicant, declaring him the only rightful person to bury the deceased, could not be granted due to unresolved factual disputes. Similarly, the...

Court Disposition

Application partially granted: exhumation and reburial authorised, declaratory and document relief refused, each party to pay own costs.

Orders

  • The applicants or any person acting on their instructions are authorised to arrange for the exhumation of the body of the late Sylvia Phindezwa Zitshu from the grave where she is buried in the Waainek Municipal Graveyard, Grahamstown, subject to applicable bye-laws and regulations.
  • This order must be brought to the attention of the Local Municipality (Makhanda) within seven days of the issuing thereof.