“Family feuds, in relation to who has the right to bury a deceased person, has the potential of permanently dividing the family. These are sensitive disputes that are best suited to be mediated and resolved by family elders rather than being brought to court where there is no winner and a united family structure ends up divided and torn apart. It is a time where the family should be united more than ever, preparing to give the loved one a dignified burial, rather than airing their dirty linen in court”.
Polokwane High Court Judge Maake Kganyago stated the latter when handing down her judgment in the Mabulana v Mabulana and Others (LP) (unreported case no 5040/2021, 26-7-2021) matter.
The High Court dismissed Mrs Mabulana’s (the Applicant) application to interdict Gledies and Sophy Mabulana (the Respondents) from burying the Applicant’s estranged husband, Wilard Mabulana (the deceased). Gledies was the deceased’s sister-in-law and Sophy the deceased’s sister. Gledies took care of the deceased since 2013, especially while he was sick.
The Applicant and deceased were married on 3 July 1996 and three children were born from their marriage. However, as the years passed, the couple realised that their marriage was on rocky waters. The deceased decided to move out of their matrimonial home in 2018 and the couple effectively separated.
On 9 January 2018, the Applicant instituted divorce proceedings against the deceased on the grounds that she had no more love or affection towards the deceased. The deceased was apparently disgruntled by the pending divorce proceedings, but eventually agreed that a decree of divorce should be sought on an unopposed basis. The parties further agreed that their joint estate would be equally divided between them. During a court appearance on 30 June 2021, the parties agreed to postpone the hearing of the divorce to 28 July 2021. The reason for the postponement was that the Applicant had to obtain the assistance of an interpreter. The divorce would likely have been finalised on 30 June 2021, was it not for the postponement.
On 18 July 2021, the Applicant was informed by one of her children that the deceased had passed away. The Applicant, therefore, started preparing and making arrangements for the deceased’s burial. When the Applicant approached the burial services to claim the body, she was advised that the Respondents brought the deceased to them and that they accordingly cannot assist the Applicant. This led to the Applicant instituting an application to interdict the Respondents from burying the deceased.
The Applicant submitted that she had a clear right to bury the deceased as she had been married to the deceased, and the deceased’s will was silent on the issue of the person who had to prepare and arrange the deceased’s funeral.
The court held that it was evident from the facts of the matter that the Applicant had lost her love, affection, and respect towards the deceased. The Applicant failed to explain how the death of the deceased had restored the lost love, affection, and respect towards the deceased when she was on the verge of divorcing him.
The court pointed out that the deceased, in his will, did not give directions as to who would be responsible for arranging his burial. The deceased, however, made a separate will, despite being married in community of property with the Applicant, and in that will had disinherited the Applicant. According to the court, this was a sign that the deceased had made his position clear that he had severed ties with the Applicant.
The court referred to Trollip v Du Plessis and Another where the court held that it was within the bounds of reasonableness to respect the wishes of the deceased, whether expressed in a testament or not, and if no such preference was expressed, to resort to the wishes of the heirs.
During the deceased’s final days, he was in the care of the Gledies and expressed his wish that Gledies should bury him. The Applicant was not present when the deceased passed away and they have been separated from each other for a long time.
In turning down the wife’s application, the judge held the wishes of the deceased had to be respected.
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