Estranged wife fails to establish a clear right to bury husband

September 1st, 2021

Mabulana v Mabulana and Others (LP) (unreported case no 5040/2021, 26-7-2021) (Kganyago J)

In a case of Mabulana, the Limpopo Division of the High Court in Polokwane dismissed Moyahabo Eugly Mabulana’s (the applicant) application with costs, after she had approached the court seeking an ex-parte urgent application that Gledies Mabulana (the first respondent) and Sophy Mabulana (the second respondent) be interdicted from burying Nakampe Wilard Mabulana (the deceased). The applicant wanted to be allowed to bury the deceased and she also wanted the first and second respondents or any other person be interdicted from misusing or taking the deceased assets pending the final determination of the matter.

According to the applicant, she and the deceased were married in 1996 in terms of civil rites, and from the said marriage they had three children who were all over the age of majority. The applicant averred that during 2018 the marriage between her and the deceased faced some challenges and difficulties, which led to the deceased moving out of their common matrimonial home. However, the applicant said during their separation they had continued to communicate with each other concerning their children and matrimonial home.

The respondents in their answering affidavit submitted that the deceased and the applicant were married to each other on 3 July 1996. On 9 January 2018 the applicant instituted divorce proceedings against the deceased, and in the papers she stated that she had lost her love and affection towards the deceased. In the particulars of claim in the divorce action, the applicant stated that there were no children born between her and the deceased. That the deceased had vigorously contested the divorce, but on 30 June 2021 the parties at court agreed that the applicant should obtain the decree of divorce on an unopposed basis, and that their joint estate be equally divided.

On that date, the matter was postponed to 28 July 2021 to enable the applicant to obtain the assistance of an interpreter. Had it not been for the postponement, the divorce would have been finalised on 30 June 2021. The respondents also submitted that the applicant had withdrawn her divorce action immediately after hearing that the deceased had passed away. The respondents further submitted that the applicant and her children were not prohibited from attending the deceased’s funeral. The court added that it was the respondent’s contention that the third respondent derived entitlement and the right to bury the deceased by virtue of the fact that they were named as one of the beneficiaries in the deceased’s will.

The applicant in her replying affidavit submitted that she had a clear right to bury the deceased as she was married to the deceased, and the will was silent on the issue of the person who had to prepare and arrange the deceased’s funeral. It was the applicant’s contention that the marriage relationship between her and the deceased was terminated by the death of the deceased and that the deceased’s death certificate stated that he was still married at the time of his death. The court held that family feuds in relation to who had the right to bury a deceased person had the potential for permanently dividing the family. The court pointed out that the dispute was sensitive, which is best suited to be mediated and resolved by the family’s elders rather than bringing the dispute to court.

The court added that during the period of a death of a loved one, it is a time when the family should be united more than ever, by preparing to give the loved one a dignified burial, rather than hang their dirty linen in court. The court pointed out that in applications of this nature, it is the duty of all parties to make a full disclosure of all the relevant and vital facts relating to the matter in dispute, which will enable the court to make a just and fair decision. The court said that the applicant was aware that at the time of the deceased’s death, she had instituted divorce proceedings against the deceased; that they had already agreed that she would obtain the decree of divorce on an uncontested basis; and they had agreed on how their estate would be divided and had already secured a date on which the divorce would be finalised, which was a few days before the deceased’s death.

The court added that all the facts above were vital and necessary information, which would assist the court in arriving at a just and fair decision, but the applicant – without justification – failed to disclose that, and even in her replying affidavit she admitted the contents of the paragraphs without giving an explanation as to why she had failed to disclose information in her founding affidavit. The court pointed out that the applicant had for a long period of time disassociated herself with the deceased and she had lost love, affection, and respect towards the deceased. She did not want to be with him anymore.

The court said all these facts had been expressly stated by the applicant in her divorce papers, and the applicant had 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 eve of obtaining permanent termination of the relationship, which she had with the deceased. The court referred to the matter of W and Others v S and Others (WCC) (unreported case no 360/16, 4-5-2016) (Mantame J), where Mantame J said:

‘[T]he deceased, by her actions disassociated herself from [the] first respondent whilst she was still alive. It is unheard of that a person who was severing ties with her husband would now [claim] to be the husband’s ancestor when she is no more. … [N]othing was left from his civil union with the deceased, as they were two (2) days away from divorce when the deceased met her death.’

The court said that the case at hand is not distinguishable from the W and Others case above, as the applicant was a few days away from obtaining a decree of divorce when the deceased passed away. The parties had separated from each other since 2018 and had already agreed on a divorce. The court added that what was still joining them together was a marriage certificate of which the actual marriage existed only on paper. The court pointed out that the deceased, in his will, did not give directions as to who would be responsible for arranging his funeral and he did not specify where he should be buried.

The applicant’s application was dismissed with costs on party and party scale.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2021 (Sept) DR 28.