A man tried to stop the funeral of his deceased partner after her family began funeral proceedings in the Eastern Cape, instead of closer to him in the Johannesburg.
Both he and her family scheduled funerals on the same day, in different provinces. The court had to decide therefore “which funeral should go ahead”.
The man, known only as “DM”, urgently asked the Johannesburg high court to recognise his customary marriage to the deceased and restrain her family from moving her body from Johannesburg. Her family disputed the existence of the marriage and opposed his restraint.
In the end, judge Stuart Wilson on Wednesday ordered that the body be moved to the Eastern Cape.
What the law says about burials
When people do not specify in wills how they wish to be buried, the law says the decision rests with the surviving family, including legally recognised spouses.
His reading of previous judgments in burial rights cases shows people “rush to court” to obtain orders about the deceased’s marital status. Once the marital status is established, the litigant argues the burial rights fall to them.
However, Wilson noted there had been judgments where, even though a customary marriage was recognised, the court ruled the wishes of the spouse “had to yield to a broader public interest”.
Wilson concluded as a result of similar decisions, there has been a “suppler” approach, taking into account a broader range of considerations, such as communal interests and familial expectations. “Ideally,” Wilson said, “A judge should not be making decisions about how a deceased person is buried and memorialised. That is primarily a decision for those who knew and loved that person.”
However, he still had to resolve the dispute before him.
Whether the marriage existed
He noted what was “hotly disputed” was whether DM really was the deceased’s customary-law husband. He noted that what was not disputed was that DM and the deceased were in a loving, long-term relationship and her own family referred to themselves as DM’s in-laws.
In the end, Wilson ruled: “I do not think that it matters whether their relationship can be recognised as a customary law marriage.” Wilson gave DM’s wishes “as much weight in my decision-making” as if DM was her customary-law husband.
Why the court opted for the Eastern Cape
Despite DM’s wishes, Wilson noted days before she died, the deceased indicated to her mother and sister her wish to be taken home to the Eastern Cape. DM tried to dispute this, claiming a funeral services employee heard otherwise. But unlike the mother and sister, DM did not hear this directly himself.
Her family also said they discussed the burial in the Eastern Cape with DM three times and he agreed with them. DM denied this but “did not address that allegation”.
Wilson noted the deceased woman’s “strong connections to the Eastern Cape”, including her family’s plot, her broader family being based there, and so on.
DM did not indicate difficulty in travelling to the Eastern Cape but expressed concerns the deceased’s family would exclude him. But they denied this, indicating they would accept his full participation in the funeral and access to the gravesite.
As a result, Wilson ordered the funeral take place in the Eastern Cape. He also ordered the funeral occur as though DM were her customary-law husband.
Legal analyst and Nelson Mandela University law lecturer Tina Hokwana says: “In terms of the Recognition of Customary Marriages Act, all customary marriages, whether registered or not, are recognised as valid. However, parties at times only register the customary marriage after their spouse dies.” That is what happened here.
“An important lesson for couples in customary marriages to take from this ruling,” she says, “would be to register the marriage as soon as they can — a registration/marriage certificate will be issued as proof of the existence of a customary marriage.”
She says two things would have helped: first, a will “would have prevented the dispute”, and, second, an earlier court order, before her death, declaring the existence of a customary marriage.
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