A woman’s dying wish that she should be buried in the Eastern Cape has been honoured by the Gauteng High Court (Johannesburg), reports the Pretoria News.

The father of her five children turned to court to have her buried in Johannesburg so that they could visit her grave at any time.

While the applicant, identified by the judge only as DM, was set on burying the deceased in Johannesburg, her family was set on removing her body from the funeral parlour to take it to the Eastern Cape.

Judge Stuart Wilson said it should not be up to the courts to decide a person’s final resting place as there were many emotional and cultural aspects involved.

The judge said sometimes people make detailed provision for the manner and location of their funeral in their wills. When they do not, and do not otherwise make their wishes clear, the common law provides that the right to bury accrues to their testate or intestate heirs or, failing that, to what have been called ‘legitimate children or blood relations’.

However, he added that judges have long been reluctant to be too rigid in these applications.

‘They have also, quite rightly, recognised that the common law ought not to be applied in disputes concerning a deceased individual who has arranged their affairs according to customary law and who expects customary law to apply after their death.’

According to Wilson, the wishes of the deceased person, where these are known, should play a role in determining the last resting place.

In this case, whether DM was the woman's customary law husband is hotly disputed, both factually and legally. It was not disputed, however, that DM and ZN were in a loving relationship for many years and that they had children together.

According to the Pretoria News, the judge said he did not need to determine whether the applicant and the deceased were, in fact, married.

‘DM was as close to ZN as any husband, and his wishes about where ZN should be laid to rest received as much weight in my decision-making as they would have done had I been able to conclude on the papers that he was ZN’S customary law spouse.’ 

The judge, referring to ZN’s wish, said she stated eight days before she died that she wanted her family to take her home with them to the Eastern Cape.

Her family understood that to mean that she wished to return to her familial home in the Eastern Cape to be buried.

The applicant, meanwhile, relied on what one of their children had told him, that she wanted to be buried in Johannesburg to be close to all of them.

The judge, in the end, ordered that she be taken to the Eastern Cape to be buried on the family plot.

Full Pretoria News report

Judgment