T M v C M and Another (2019/24763) [2019] ZAGPJHC 412 (11 September 2019)

T M v C M and Another (2019/24763) [2019] ZAGPJHC 412 (11 September 2019)

The court held that, despite the marital difficulties and pending divorce proceedings, the deceased and the first respondent were still legally married at the time of death. The general rule is that the surviving spouse has the right to bury the deceased, and this is not displaced by customary law, as the principle of primogeniture has been abolished for violating constitutional rights. The applicant's family did not provide compelling evidence that the deceased wished to be buried by them, nor did they establish grounds to deviate from the general rule. The balance of convenience and fairness favoured the first respondent, who had already made funeral arrangements. The court adopted a...

Citation
[2019] ZAGPJHC 412
Parties
Applicant: T M; Respondent: C M; Respondent: Faith Funeral Home
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 September 2019
Case Number
2019/24763
Procedural Posture
Urgent Application / Return Day of Rule Nisi; Opposed Urgent Application
Outcome
Application dismissed; burial rights granted to the first respondent.
Judges
L R Adams
Legal Topics
Burial Rights, Customary Law Vs Constitution, Interdict, Spousal Rights
Family and Children Civil Procedure Burial Rights Customary Law Vs Constitution Interdict Spousal Rights

Case Brief

Summary, issues, holding and outcome

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Parties

T M

Applicant

C M

Respondent

Faith Funeral Home

Respondent

Procedural Posture

Urgent Application / Return Day of Rule Nisi; Opposed Urgent Application

Legal Issues

  1. 1 Who has the legal right to bury the deceased in the absence of a will.
  2. 2 Whether the applicant's family or the deceased's wife should be granted burial rights.
  3. 3 Whether customary law or constitutional principles should govern burial arrangements.

Ratio Decidendi

The court held that, despite the marital difficulties and pending divorce proceedings, the deceased and the first respondent were still legally married at the time of death. The general rule is that the surviving spouse has the right to bury the deceased, and this is not displaced by customary law, as the principle of primogeniture has been abolished for violating constitutional rights. The applicant's family did not provide compelling evidence that the deceased wished to be buried by them, nor did they establish grounds to deviate from the general rule. The balance of convenience and fairness favoured the first respondent, who had already made funeral arrangements. The court adopted a...

Court Disposition

Application dismissed; burial rights granted to the first respondent.

Orders

  • The first respondent is granted permission to bury B M, identity number: […].
  • The second respondent shall release to the first respondent the body of the deceased for purposes of the funeral and burial.