THE High Court of South Africa’s Gauteng Division in Johannesburg has ruled that a man at the centre of a cross-border family dispute, Collen Kumalo-Dube, must be buried in Cape Town, despite efforts by relatives to take his body to Zimbabwe.
In the case between his wife and son and Kings and Queens Funeral Parlour and his brother, Johnson Mahoka Dube, judge Justice Mokate Victor Noko held that the deceased’s children and his expressed wishes carried greater weight than disputes over citizenship, surname or marital status.
The urgent application was brought by Kumalo’s wife and son after the body, also recorded as Collen Dube, was released from Tygerberg Hospital to his Zimbabwean brother.
The deceased sustained burn injuries on February 26 and was transported to Tygerberg Hospital by ambulance, accompanied by his son.
The applicants said that during the journey to hospital, the deceased told his son that if he died, he wished to be buried in Cape Town. He later died at Tygerberg Hospital.
The applicants argued that he had lived in South Africa for many years and had expressed a clear wish to be buried in Cape Town.
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However, the brother opposed the application, arguing that the deceased was a Zimbabwean citizen, Collen Dube and should be buried in Zimbabwe under family and customary arrangements. He also disputed the validity of the customary marriage between the deceased and his wife.
The court heard conflicting evidence from both sides.
The respondents submitted photographs, affidavits and letters from Zimbabwean authorities and the Zimbabwean consulate supporting their claim that the deceased was Zimbabwean. The applicants, however, produced evidence from South Africa’s Department of Home Affairs indicating that he was recognised as a South African citizen.
Justice Noko said the court could not resolve the dispute over citizenship or marriage validity without oral evidence, and in any event, those issues were not decisive in determining burial rights.
The court noted that under South African law, burial rights generally belong first to a surviving spouse and, failing that, to the children. It further noted that the principle of primogeniture no longer applies.
The judge ruled that the wishes of the deceased’s son, together with the deceased’s expressed wish to be buried in Cape Town, were the decisive factors.
The court also rejected the suggestion of exhumation as a later remedy, calling it impractical and unsatisfactory.
“I find that the decision regarding the burial rights would, in this case, not relate to the citizenship of the deceased and/or the first applicant, nor to the validity of the customary marriage.
“Based on these premises, I am convinced that a proper case has been made for an order instructing the first and second respondents to release the mortal remains of Collen Kumalo, whose surname is recorded as Collen Dube, to the applicants for burial.
“I am also persuaded that, in this case, the right to bury the deceased belongs to the children. The harm would be irreparable and there is no other satisfactory redress available for the deceased's children. Of paramount importance are the deceased's expressed wishes, which in this case were communicated to the second applicant.
The court ruled that the deceased had built his life in Cape Town, where his children live and that his wishes should be respected.
It ordered the funeral parlour and the deceased’s brother to release the body to the applicants for burial in Cape Town and directed the brother to pay legal costs.