O.T.T v D.B.T and Another (UM 19/2021) [2021] ZANWHC 16 (17 February 2021)

O.T.T v D.B.T and Another (UM 19/2021) [2021] ZANWHC 16 (17 February 2021)

The court found that, although customary law generally vests burial rights in the family head, this is not an absolute rule. The evidence showed that the first respondent had been absent from the lives of the deceased and the applicant for over thirteen years, with only limited financial involvement. The applicant, as the deceased's closest living relative, shared a close emotional and psychological bond with the deceased and resided with him until his death. The dictates of fairness, reasonableness, and community convictions favoured the applicant as the person best suited to bury the deceased, especially as the deceased would be laid to rest with his mother. The first respondent's right...

Citation
[2021] ZANWHC 16
Parties
Applicant: O[....] T[....] T[....]; Respondent: D[....] B[....] T[....]; Respondent: The Station Commander, Northam Police Station
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 February 2021
Case Number
UM 19/2021
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Interdict
Outcome
The rule nisi was confirmed. The applicant is granted the right to bury the deceased. The first respondent is ordered to deliver all necessary documents for burial and to pay the costs of the application.
Judges
A.H. Petersen
Legal Topics
Burial Rights, Interim Interdict, Locus Standi, Customary Law, Rule Nisi
Family and Children Civil Procedure Burial Rights Interim Interdict Locus Standi Customary Law Rule Nisi

Case Brief

Summary, issues, holding and outcome

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Parties

O[....] T[....] T[....]

Applicant

D[....] B[....] T[....]

Respondent

The Station Commander, Northam Police Station

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Interdict

Legal Issues

  1. 1 Who has the right to bury the deceased in the absence of a will or explicit instruction.
  2. 2 Whether the applicant has locus standi to bring the application for burial rights.
  3. 3 Whether the first respondent's authority as family head under customary law is decisive.

Ratio Decidendi

The court found that, although customary law generally vests burial rights in the family head, this is not an absolute rule. The evidence showed that the first respondent had been absent from the lives of the deceased and the applicant for over thirteen years, with only limited financial involvement. The applicant, as the deceased's closest living relative, shared a close emotional and psychological bond with the deceased and resided with him until his death. The dictates of fairness, reasonableness, and community convictions favoured the applicant as the person best suited to bury the deceased, especially as the deceased would be laid to rest with his mother. The first respondent's right...

Court Disposition

The rule nisi was confirmed. The applicant is granted the right to bury the deceased. The first respondent is ordered to deliver all necessary documents for burial and to pay the costs of the application.

Orders

  • The rule nisi granted on 05 February 2021 is confirmed.
  • The body of the deceased is to be released into the custody of the applicant from the funeral parlour.