The court has ruled in favour of the surviving wife of a man who was shot and killed at Kwa Mai Mai Traditional Market, a food joint in Johannesburg earlier in September.
This came about as a result of the deceased’s mother issuing an instant interdict to stop the wife, who had burial rights, from utilising her husband’s corpse in the manner that the deceased would have desired.
The surviving spouse of the deceased reportedly told the Johannesburg High Court that the deceased had expressed a preference for cremation over burial.
The mother and the deceased’s young children did not concur with the surviving spouse’s wish.
The family of the deceased contended that the burial method accords with Zulu customs and culture, and the deceased was allegedly a staunch supporter of Zulu customs and traditions.
According to the restated intestate legal standards, the surviving spouse is legally entitled to greater rights than the deceased’s parents and children.
Judge Graham Moshoana stated in his ruling that since the law is clear, no rights need to be declared.
Spouse not behaving unlawfully
“An interdict as a specific remedy is not available, and the surviving spouse is not behaving unlawfully in seeking to dispose of the remains by cremation,” ruled Moshoane.
According to the applicants, the deceased had informed his mother, uncle, and record counsel before his death that he planned to file for divorce from the surviving spouse.
Despite the absence of a copy of the issued summons to the court, the applicants made it clear that they believed a divorce summons had been issued but the surviving spouse had refused to accept it.
Quoting the Bible, the judge said the Holy Scripture states: “By the sweat of your brow you will eat food until you return to the ground since from it you were taken; for dust you are and to dust you will return.”
“Seemingly, the phrase return to the ground supports the burial, and to dust you will return supports the cremation method. Having said that, this judgment will not seek to elevate one method over another.
“It is not concerned with the question of which of the methods is morally acceptable and defensible. This judgment will concern itself with who has the right to choose a method.”
Deceased and spouse lived together
On or around February 11, 2017, the deceased was married to the surviving spouse and by civil rights.
“The deceased and the surviving spouse lived together as husband and wife at their matrimonial home.
“It is undisputed that the deceased and the surviving spouse lived under the same roof as husband and wife until the demise of the deceased.
“The applicants conveniently labelled the surviving spouse as the estranged wife. I interpose to mention that a person is estranged if their wife or husband is no longer living with their spouse.”
Moshoane further dismissed the application.
“The first and second applicants are ordered to pay the costs of the respondent jointly and severally, the one paying absolving the other, to be taxed or settled on a party and party scale B.”
