Roman v Roman and Others (2659/17) [2017] ZANCHC 72 (17 November 2017)

Roman v Roman and Others (2659/17) [2017] ZANCHC 72 (17 November 2017)

The court found that the deceased's marriage to the first respondent had broken down, as evidenced by his own statements and conduct, including listing himself as 'separated' and naming Ndlovu as his spouse on official documents. Multiple affidavits from family members and associates credibly established that the...

Source-derived case information.

Citation
[2017] ZANCHC 72
Parties
Applicant: Lena Roman; Respondent: Lorraine Roman; Respondent: Forensic Department, Harry Surtie Provincial Hospital; Respondent: AVBOB, Upington
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
17 November 2017
Case Number
2659/17
Procedural Posture
Urgent Application / Return Date for Confirmation or Discharge of Rule Nisi
Outcome
The rule nisi was confirmed, authorizing the applicant to bury the deceased as per his expressed wishes. The first respondent's counter-application was disposed of by implication. Costs were awarded against the first respondent due to her opposition.
Judges
Snyders
Legal Topics
Burial Rights, Intestate Succession, Motion Proceedings, Costs Order
Family and Children Civil Procedure Burial Rights Intestate Succession Motion Proceedings Costs Order

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Summary, issues, holding and outcome

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Parties

Lena Roman

Applicant

Lorraine Roman

Respondent

Forensic Department, Harry Surtie Provincial Hospital

Respondent

AVBOB, Upington

Respondent

Procedural Posture

Urgent Application / Return Date for Confirmation or Discharge of Rule Nisi

Legal Issues

  1. 1 Whether the applicant or the first respondent is entitled to bury the deceased.
  2. 2 Whether the deceased's express wishes regarding his burial were proven and should be given effect.
  3. 3 Whether the marriage between the deceased and the first respondent had deteriorated, affecting burial rights.

Ratio Decidendi

The court found that the deceased's marriage to the first respondent had broken down, as evidenced by his own statements and conduct, including listing himself as 'separated' and naming Ndlovu as his spouse on official documents. Multiple affidavits from family members and associates credibly established that the deceased had expressed a clear wish to be buried from his grandfather's house in Wegdraai. The first respondent's version was implausible and unsupported, and she did not avail herself of the right to cross-examine the applicant. The court held that the deceased's express wishes, even if verbal, should be respected and given effect to, and confirmed the rule nisi authorizing the...

Court Disposition

The rule nisi was confirmed, authorizing the applicant to bury the deceased as per his expressed wishes. The first respondent's counter-application was disposed of by implication. Costs were awarded against the first respondent due to her opposition.

Orders

  • The rule nisi granted on 06 November 2017 is confirmed.
  • The applicant is authorized to bury the corpse of Leon Albertus Roman at 77 Wolman Street, Wegdraai, Groblershoop, Northern Cape Province.