The Pietermaritzburg High Court has ruled in favour of a customary wife, granting her the right to bury her late husband.
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The Pietermaritzburg High Court ruled on Friday in favour of Thokozile, the first wife of taxi boss Caiphus Mvana Zwane, granting her the right to bury her late husband.
This decision came after the court dismissed a will presented by his second wife, Hlengiwe, which suggested an alternative burial location. The court found that the will had been altered at the last minute.
“I regard the unnumbered penultimate paragraph, which purportedly contains the wishes of the deceased regarding his burial, as inconsistent with the language used in and the context of the rest of the document, and I regard it to be a recent insertion and it is therefore disregarded,” Acting Judge Senzo Luthuli said.
Thokozile, who has been married under customary law since December 1984, filed an urgent application on February 18 to prevent Hlengiwe, who is married under civil law, from burying their husband in Bergville.
Thokozile informed the court that they had lived in Johannesburg, where Zwane operated his taxi business. However, she had relocated to KwaZulu-Natal at his request to care for his aging parents in Burdford. In 1990, they moved to Ladysmith in the Mthondwane area, where Zwane’s parents are interred.
The judge acknowledged the urgency of Thokozile's application, noting that the need to intervene where constitutional rights are at stake, including the personal right to human dignity and the right to a dignified burial according to religion and culture, outweighed Hlengiwe's argument regarding a four-day delay.
In her defence, Hlengiwe sought to have the application dismissed, claiming that Thokozile lacked a clear right to bury Zwane. This prompted the court to scrutinise Thokozile's evidence, which included photographs confirming the validity of the customary marriage and showing no evidence of its dissolution.
Conversely, the court found no proof that Zwane had paid lobola for Hlengiwe prior to their civil union on June 28, 2011.
Judge Luthuli also pointed out inconsistencies in the joint will of Zwane and Hlengiwe, noting that the paragraph regarding burial wishes was unnumbered and referred to the deceased in the third person.
"There is an absence of the burial wishes of the first respondent (Hlengiwe). This signifies that the deceased or the writer knew that the deceased would die first," he said.
"I am satisfied that the applicant has established a prima facie right to interdict the respondents from burying the deceased, and a clear right to bury the deceased," said Judge Luthuli
The court subsequently ordered Makhubo Funeral Services to release Zwane’s remains to Thokozile for burial at Mathondwane.
Additionally, Thokozile was granted permission to supplement her papers if necessary regarding her further application to have Hlengiwe’s marriage declared null and void and to interdict her from changing ownership of the taxis.