M v M & ANOR

HIGH COURT, HARARE

[Urgent Chamber Application HH 399-16]

July 5, 2016

MAFUSIRE J

Family Law – Burial rights over a deceased person – Principles applicable to contested burial rights.

The applicant was the surviving spouse of the deceased. She contended that she had the exclusive spousal rights to decide where her late husband, with whom she had lived a Christian life divorced from African customary law, should be buried. While she had wished for her husband to be buried at a farm outside town, the respondents wanted to bury the deceased at a cemetery in town.

Held, that where burial rights are contested, the following principles, considered cumulatively should apply:

1. An heir to the estate of the deceased has some right in the determination of the burial place of the deceased person but the rights of the heir in relation to burial rights are not exclusive.

2. The voice of the surviving spouse of a deceased person carries greater weight than all other voices but regard must always be had to the wishes of the deceased’s broader family.

3. The wishes of the deceased, during his lifetime, as to the choice of his or her burial place, if proven by cogent evidence, have to be taken into account, but only in so far as it is practicable to do so.

4. The customs, traditions and cultural practices of the family or community must be taken into account in so far as they are not in conflict with the general laws of the land.

Cases cited:

Fanti v Boto and Others 2008 (5) SA 405 (C); [2008] 2 All SA 533 (C), referred to

Kimata & Anor v Wanjiru & Anor Civ App 94/14; [2015] eKLR (unreported) (Kenya), referred to

Mahala v Nkombombini and Another 2006 (5) SA 524 (SE), referred to

MN v HZS and Others Case No 940/13; [2014] ZAECMHC (unreported) (South Africa), referred to

Njoronge v Njoronge & Anor Civil Case No 330/04 [2004] eKLR (unreported) (Kenya), referred to

Otieno v Ougo & Anor Civ Case No 4873/86; [1987] eKLR (unreported) (Kenya), referred to

Ramonare v Molly’s Funeral Parlour and Another Case No 4277/09; [2009] ZAFSHC 83 (unreported) (South Africa), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 16, 17, 26

Deceased Estates Succession Act [Chapter 6:02], s 3

Marriage Act [Chapter 5:11], s 26

S Mpofu, for the applicant

C Chopamba, for the first respondent

Second respondent’s attendance excused

MAFUSIRE J:

This was an urgent chamber application over burial rights. The deceased was said to be the founder of a Christian denomination. The applicant was the surviving widow. Supporting her were some of her children with the deceased, as well as some pastors from the Church. The first respondent was the applicant’s father-in-law. Supporting him were the members of the deceased’s natural family. The second respondent was the funeral parlour at which the deceased’s remains lay in state as the family did battle in court.

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