In the case of Sengadi v Tsambo; In Re: Tsambo [2019] 1 All SA 569 (GJ), the Supreme Court of Appeal made an incorrect application of the ubuntu principle, which violated the right of a grieving widow, her right to dignity and the right to bury her deceased husband.
In this case, the applicant and the deceased mutually decided to marry under customary law. Families gathered to negotiate lobola, which was agreed on and a partial payment was made. Following the negotiations, the deceased and the applicant were dressed in bridal attire. The deceased’s family planned to conclude the wedding on the same day as the lobola negotiations. The applicant was presented as the deceased’s wife and welcomed into their family. The applicant moved out of the marital residence because of the deceased’s infidelity and substance abuse, and she said she would not move back in until the deceased received treatment. The applicant returned to their marital residence after the deceased passed away in order for her to grieve, but she was told that she was not welcome there, that the family did not acknowledge her as the deceased’s customary law wife and that she was not entitled to arrange the burial of the deceased. The urgent application was brought by the deceased’s (appellant) father that ‘a valid customary marriage had not been concluded between the respondent, Ms Sengadi, and the deceased because all formalities for the conclusion of a valid customary marriage had not been concluded (Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020) para 10)’ (Keneilwe Martha Radebe ‘Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020); Sengadi v Tsambo; In Re: Tsambo (40344/2018) [2018] ZAGPJHC 666; [2019] 1 All SA 569 (GJ) (8 November 2018) Assessing the insurmountable challenge in proving the existence of a customary marriage in terms of section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 and the misplacing of gender inequality’ (2022) 55 De Jure 77). The court decided that Ms Sengadi was indeed the deceased’s wife according to customary law, however, the court denied her the right to bury her deceased husband on the basis of ubuntu.
Ubuntu is a multicultural term which has its origins in the indigenous African people and refers to their communal spirit. ‘The principles of ubuntu resonate with universal values of human worth and dignity’ (Archbishop Desmond Tutu as quoted in J Eliastam ‘Exploring ubuntu discourse in South Africa: Loss, liminality and hope’ (2015) 36 Verbum et Ecclesia). In the context of South African human rights jurisprudence, the ubuntu principle refers to the interrelationship and interdependence of people. This principle has resulted in the concept of African human rights which takes cognizance of both the individual rights and the group rights of the citizens of this country. While the ubuntu principle has its origins in customary law, it is increasingly finding a place in the jurisprudence of South Africa due to the explicit provisions found in the 1996 Constitution. These provisions require that customary law be recognised, thus equalising it to the Bill of Rights contained in the Constitution (ss 9 and 10 of the Constitution). Ubuntu has been described as a foundational value in the Constitution itself, which recognises the injustice of our past based on the material poverty of black people. Ubuntu is thus identified as playing a useful role in the framework for the redistribution and restitution of rights and inequalities in a democratic society.
In African societies, the long-term struggle for fundamental rights and dignity exacerbates the tragic loss of a spouse for women. Encountering and obtaining justice can be difficult for widows, who are a vulnerable and disadvantaged group of people. A widow’s vulnerability can be identified through the stages of grief she goes through at the time the loss of her deceased spouse, such as denial, guilt, depression, bargaining, anger and ultimately acceptance which can fluctuate throughout the period of widowhood (E Kubler-Ross On Death and Dying (Scribner 2014)). In South Africa, official statistics on widows are few, and neither national nor international forums provide them with a voice. However, widows have been acknowledged as a group under international law by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (articles 19 and 20 also known as the Maputo Protocol) and the United Nations (UN) observes 23 June as International Widows’ Day, since 2011 to draw the attention to their voices. Widows face little success in court owing to corruption, gender prejudice, and bureaucratic barriers (‘Submission to [Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)] General Discussion on ‘Access to Justice’ from Widows for Peace through Democracy (WPD) Recommendations with reference to WIDOWS accessing justice’ (www.ohchr.org, accessed 6-8-2024)).
According to the Constitution, the state is required to respect, protect, promote and fulfil the rights in the Bill of Rights and s 1(a) of the Constitution states that the democratic state was founded on ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’, and s 10 states that everyone has the right to human dignity. South Africa, as a state party to international instruments such as the Maputo Protocol and CEDAW, must take action and uphold their commitments to ensure the rights of widows are protected and enjoyed as enshrined in the international instruments. Article 19(a) of Maputo Protocol states ‘that widows are not subjected to inhuman, humiliating or degrading treatment’, therefore, it is the obligation of South Africa to take appropriate legal measures to protect the rights of the widows. Article 2(d) of CEDAW states that States Parties must condemn all forms of discrimination against women and commit to eliminating it through appropriate means, because they are committed to refraining from engaging in discriminatory acts or practices and to ensuring that public authorities and institutions follow this obligation. However, the weakness in the judicial system of South Africa (which is a state member of the international instruments) ‘compromise how widows’ rights are defended in practice and should be addressed’ (UN ‘International Widows’ Day 23 June’ (www.un.org, accessed 6-8-2024). ‘Lack of awareness and discrimination … can cause widows to avoid turning to the justice system to seek reparations’ (UN (op cit)).
According to the law of succession, ‘in the absence of testamentary direction by the deceased as to his burial, the duty of burying him and the corresponding right to do so is that of the heirs’ (N Cassim ‘The right to bury a deceased person principle versus public policy, morality, custom and “a sense of what is right”’ 1993 (June) DR 533). This principle was confirmed in the cases of Khumalo and Others v Khumalo and Another 1984 (2) SA 229 (D) and in Gonsalves and Another v Gonsalves and Another 1985 (3) SA 507 (T), therefore, Ms Sengadi being the heir and surviving spouse of the deceased, has the duty and corresponding right to bury her deceased husband and the wishes of the widow must be considered before a final decision on the question of burial is reached (WC Maqutu ‘Duty to bury’ (1987) 3 Lesotho Law Journal as cited in Cassim (op cit)). However, it is evident from the court’s decision, that the North West Provincial Government, the Tsambo family and Supreme Court of Appeal failed to consider Sengadi’s wishes on the question of the burial of her deceased husband.
Whether ubuntu is understood narrowly or ethnically, it gets abused and reduced to the use of one’s power to benefit oneself, leaving the weak and vulnerable behind, while ‘tax money … is spent on sport stadiums and airports for the rich and benefits for the ruling elite’ (P Naudé ‘Am I my brothers’ keeper? An African reflection on humanisation’ (2013) 54 NGTT). It is argue that history has shown that aggressively promoting ubuntu to promote black identity has always resulted in failure and that through misuse and overuse of the principle, it has ‘become anything to anyone who so wishes to deploy it’, leading them to conclude that the principle is unsuitable for the social and ethical challenges of today (B Matolino and W Kwindingwi ‘The end of ubuntu’ (2013) 32 South African Journal of Philosophy 197 at 201).
‘It is concerning that advocates of ubuntu do not seem to have given much attention to the impact that all of these forces have had on indigenous African culture’ (Eliastam (op cit)). The court in Sengadi exercised a practical common-sense approach basing it on the principle of ubuntu, by denying the grieving widow her right to human dignity by exercising her right to bury her deceased husband as a customary law wife, on the basis that the deceased was a public figure of national importance, the North West Provincial Government was funding the cost of the funeral, the venue was already booked, and the ubuntu principle was used as a blanket to justify this approach.
It is impossible to ignore the difficulties women encounter when their customary marriages dissolve. A widow’s rights are disregarded during the most trying period of widowhood, and she may endure severe abuse during this bewildering period of her life. It is humiliating and degrading to be denied the right to bury your spouse in the manner of your choosing, particularly when the court orders it. The ubuntu principle, a magnificent African idea intended to uplift a community to its maximum potential without marginalising anyone, was misused by the court in Sengadi, exposing the infringement of a vulnerable widow’s right to dignity when she was refused the opportunity to bury her late husband. Since there is no judicial guidance on how to interpret and apply the term when resolving legal disputes properly, there is a risk that this morally complex principle will be misused and contested, even though it is a cornerstone of African thought both inside and outside of African society. Rather than misinterpreting and misusing ubuntu, the courts need to be more sympathetic and advocate for the preservation of the vulnerable class.
Moyagabo Molebogeng Seerane LLB (Unisa) is a legal practitioner and lecturer at Unisa.
This article was first published in De Rebus in 2024 (Sept) DR 54.
