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Eva Zulu (Nee Nkomo) and Others v Margaret Nkomo (Nee Tshuma) and Farley Funeral Services (Pvt) Ltd
HB 124/19HB 124/192019
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### Preamble 1 HB 124/19 EVA ZULU (NEE NKOMO) HC 585/19 --------- EVA ZULU (NEE NKOMO) HC 585/19 And RHODA NKOMO And ESNATH NKOMO Versus MARGARET NKOMO (NEE TSHUMA) And FARLEY FUNERAL SERVICES (PVT) LTD MARGARET NKOMO HC 819/19 And FARLEY FUNERAL SERVICES (PVT) LTD Versus EVA ZULU (NEE NKOMO) And RHODA NKOMO And ESNATH NKOMO IN THE HIGH COURT OF ZMBABWE TAKUVA J BULAWAYO 2 & 8 AUGUST 2019 Opposed Application M. Mangena for the applicants Advocate P. Dube for the respondents TAKUVA J: These two court applications were filed by the same parties over the same dispute. Later, the respondents under HC 585/19 filed an application under HC 1682/19 for the matter to be consolidated and enrolled as contested matters at the end of the 2nd term. The application was not opposed and I granted it by consent. I then directed that the two matters be set down for hearing on the same day. Both lawyers prepared heads of argument in respect of both applications. The two applications were then argued on the 2nd August 2019. For ease of reference, case number HC 585/19 shall be referred to as the “main matte”r while case number HC 819/19 shall be referred to as the “counter application”. Background facts The 1st respondent in the main matter was married to the late Amos Mali Nkomo in terms of the African Marriages Act Chapter 238 on 10 September 1982. The marriage was blessed with two children who are now adults, namely Mellissa Nkomo (female) born 14 March 1985 and Nqobizitha Melusi Nkomo (male) born 13 February 1988. The couple remained married for just over 36 years until the death of the 1st respondent’s husband on 31 December 2018. Prior to his death he had been diagnosed with lung cancer on 27 October 2018. The cancer had spread to the bones and liver. On 5 December 2018 he went for a biopsy but his health continued to deteriorate until his death on 31 December 2018. As per arrangement the 2nd respondent in the main matter collected the remains. A funeral service and body viewing was conducted at his home on 4 January 2019 pending cremation as per his wishes. The 1st to 3rd applicants in the main matter placed affidavits before the 2nd respondent opposing the cremation on the basis that it was against their cultural values. On 1 February 2019 the three applicants filed an urgent chamber application under HC 196/19 for an interdict barring the 1st respondent from cremating the remains of the late Amos Nkomo. This court per MOYO J declined to hear the matter on an urgent basis since the matter was not urgent. On 18 March 2019 the applicants filed a notice of withdrawal of the urgent chamber application and tendered wasted costs. However, on the same date, the applicants filed a court application under HC 585/19 on the same subject matter. The relief sought by the applicants is as follows: “1. The respondents be and are hereby ordered to release the body of the late Amos Nkomo to applicants within 7 days of granting this order. 2. Applicants be and are hereby jointly and severally ordered to bear all the costs associated with burial of the deceased. 3. The 1st respondent be and are (sic) hereby ordered to pay all the accumulated mortuary storage costs due to 2nd respondent up to date or release of the body. 4. 1st respondent be and are (sic) hereby ordered to pay for costs of suit at ordinary scale.” The 1st respondent filed a “counter application” under HC 1819/19 in which she sought an order in the following terms: “1. The 2nd respondent is hereby directed to proceed with the cremation of the late Mali Amos Nkomo. 2. The applicants be and are hereby jointly and severally ordered to pay all the accumulated costs due to the 2nd respondent up to the date of the cremation. 3. Applicants be and are hereby jointly and severally ordered to pay costs.” It should be noted that in this “counter application” Margaret Nkomo and Farley Funeral Services are referred to as 1st and 2nd respondents as per the main matter. The applicants’ case is simply that as family members and blood siblings with deceased. They have, in accordance with s85 (1) (c ) of the Constitution of Zimbabwe the right to approach this court to preserve values of the Nkomo family which does not recognize cremation but burial for all deceased family members. The Issues Applicants’ counsel put the issues thus: “1. Whether or not 1st respondent (surviving spouse) hold exclusive burial rights over the body of the deceased. 2. Whether or not 1st respondent (surviving spouse) is obliged to have due regard to the wishes of the deceased’s broader family when determining burial rights. 3. Whether or not deceased’s wishes should be considered in determining burial rights and to what extent. 4. Whether or not customs and cultural values or broader family or community should be taken into account.” At the hearing of this case, counsel agreed that there were material facts which are not common cause. It was also agreed that the court should adopt a robust approach in the resolution of these disputes of fact. Further it was agreed that at the heart of this matter are burial rights over deceased’s remains. As shall be further ventilated, the dispute crystalizes to whether or not deceased issued instructions regarding his remains to 1st respondent, his two children and his brother in law. The Law Both parties filed extensive heads of argument wherein numerous case law authorities are cited. The common law principles that evolve from these cases are: The wishes of the deceased whether expressed formally in writing or not are paramount – Yona [2004] ZAFSHC 84/(5 August 2004) A person chosen by the deceased, where one is chosen must bury the deceased Finlay and Another v Kutoane 1993 (4) SA 675 (W). It is not necessary for a deceased to leave a Will or other legally valid testamentary instrument expressing such wishes, for the wishes to be respected, Kgosietsile v Plaatjies and Another (2277/2015) [2015] ZANCHC 38 (25 Nov 2015), Gonsalves and Anor v Gonsalves and Anor 1985 (3) SA 507 (T) at 509H-I) In the absence of a Will with directions as to who should bury the deceased, the heirs to the deceased estate are entitled to arrange his/her burial – Mahala v Nkomnichu & Anor 2006 (S) SA 524/SE) at 528 para 11 Mankahla v Matiwane 1989 (2) SA 920 (CKGD) The surviving spouse has the strongest right – Ntombi Mhlanga v Alfred Mhlanga & 4 Ors (16/2014) [2014] SZSC 57/03; Shabangu & Anor v Sibandze & Ors (968/2018) [2018] SZHC 152 (1 July 2018). When there is proved to have been estrangement between the deceased and his/her spouse, the surviving spouse’s right is weakened – W and & Ors v S & Ors (360/16) [2016] ZANCHC 49 (4 May 2016) Equally so, where there is proved to have been estrangement between blood relations and the deceased, their rights are also weakened. The right of children and blood relations to bury deceased are subsidiary to that of the surviving spouse – Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (G) (3 Nov 2018). The court will also, where necessary take into account the wishes of the broader, family and the principle of ubuntu – Samkelo Mhindu (nee Ncube) v Zacharia Muzondiwa Machokoto & Nyaradzo Funeral Services (Pvt) Ltd HH-399-16. The question of what the customary law or customary practice, in relation to any tribe, clan or family is a question of fact to be determined by evidence, Moyo v Mkoba & Ors HB-94-11. It is trite that legal principles and precedents can only be applied clearly after factual findings are made on the issues in dispute. It should be pointed out that in casu, the disputes were well known to the applicants, who despite this knowledge forged ahead filing not one but two applications. It is settled law that a party who, being aware of material disputes of fact, still proceeds by way of motion proceedings stands the risk of having his application dismissed – see Adbro v Chadecombe Properties (Pvt) Ltd & Anor (HC 1800/10) [2010] ZAHHC 179 (17 August 2010). In Kgosietsile supra the court emphasised the urgency of a case such as the present and stated; “The issue before the court is a vexing one, both the applicant and first respondent wish to dispose of the body of their loved one, the deceased. This is understandable. It is a matter of regret that the parties could not have come to some agreement prior to coming to court. As appears from my summary of the affidavits, there is a dispute of fact on the papers. But, due to the urgency of the matter, there is clearly no time to refer these disputes to oral evidence for adjudication. The court must decide the matter on the affidavits before the court. In this regard, the general rule, as stated in Plascon Evans Paints (Pvt) Ltd v Van Reibeck Paints (Pty) Ltd [1984] ZASCA 57; 1984 (3) SA 623 (A) at 634 H operates. That rule has it that where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order may, generally speaking, only be granted if these facts averred in the applicant’s affidavits which have been admitted by the respondent, together with facts alleged by the respondent, justify such an order. That approach is possibly not entirely satisfactory for a matter as the present. As was pointed out in Trollip v Du Plessis en in andre 2002 (2) SA 242 (W) at 245E-F, a more robust approach is sometimes required, and the court should then grant the order if it is satisfied that there is sufficient clarity regarding the issues to be resolved for the court to make the order prayed for.” (my emphasis) In Plascon Evans case supra, the rule was stated thus: “It is correct that where in proceedings on notice of motion, disputes of fact have arisen on the affidavits, a final order, whether it be on interdict or some other form of relief may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a legal, genuine or bona fide dispute of fact. See in this regard Room Hire Co. (Pvt) Ltd v Jeppe Str Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at pp 1163-5; Damattar Otto NO 1972 (3) SA 585 (A) at p 882D-H)” Before resolving disputed facts in accordance with the famous Plascon Evans rule, let me dispose of one side issue relating to the choice of law. Applicants have opined that customary law and not the common law applies to this case for the sole reason that the parties were married under the Customary Marriages Act Chapter 238. This reasoning is flawed in that the court is not dealing with property or proprietary consequences of a marriage but with the burial of deceased’s remains which are not “property”. Also customary law is not a law of general application as it applies only when it is applicable. Despite its equal status and protection by the Constitution, customary law is a personal legal system which applies only to people living under a system of customary law. Be that as it may, the legal position was stated in Kusema v Shamva HH 46/2003 [2003] ZWHC 46 as follows: “The position that the courts in this jurisdiction may have to make a choice of law between general and customary law is reinforced by the provisions of s3 of the Customary Law and Local Courts Act [Chapter 7:03], that provides for the instances which customary law should apply in civil cases … It appears to me that in enacting the section the legislature was putting it expressly that in this jurisdiction, there are two legal systems that, in some cases, may apply to the same dispute. Thus, where for instance an issue presents to the court, seemingly capable of resolution by the application of either of the two laws, but with different results, the court deciding the dispute has to first make a determination as to the choice of law applicable. This in my view, is the situation that confronts me in this dispute.” In casu, notwithstanding the type of marriage, the parties did not live their daily lives under customary law. Rather they lived a westernized life in a low density area in Bulawayo. Their affairs were planned with a heavy dose of western life as evidenced by a funeral policy document instead of remaining a member of some burial society in Tshabalala. Also the subject matter of the dispute is one best decided by resort to the common law. I find for these reasons that customary law is inapplicable to resolve this matter. Coming back to the disputes of fact and the Plascon Eans rule, I need to state the summary of the affidavits. Applicants have made factual averments that have been totally denied by the 1st respondent. The most material amongst these were:- That the customary practices of the Nkomo family make cremation a taboo. That tradition and customary law in Zimbabwe make cremation a taboo. That the deceased and the respondent were estranged. The 1st respondent on her part pleaded the following disputed facts: That the deceased expressed more than once, a clear wish to be cremated. This was expressed to the 1st respondent, the couple’s two children and a brother of the 1st respondent who was visiting the deceased at home. That the deceased and the applicants were not close at all. That the deceased was sick for some time with cancer, during which time the applicants did not visit the residence, but only occasionally appointed to meet with respondent and deceased at doctors’ consultation rooms. As regards when the deceased’s wish was communicated, 1st respondent states in her affidavit: “10. On the 5th of December 2018 he went for a biopsy. It had been explained to him prior that there would be a possibility of him being operated on based on the results of the biopsy. He again told me that he wanted to be cremated. At his request we went that day to obtain quotations for the cremation in case he did not make it after the operation. This request to be cremated did not come as a surprise to me as throughout our marriage if ever we attended a funeral wake or burial he would always state that he wanted to be cremated. … After the biopsy at my late husband’s request we went to seek quotations for a cremation. We went to Bulawayo City Council at Tower Block where we were advised that their machine at the crematorium was down and we were referred to the 2nd respondent where we were advised of the cost of the cremation. I have attached hereto as annexure “B” the paper they scribbled on highlighting the cost. I later told the 1st applicant as we were communicating about my husband’s illness as she would sometimes visit or meet us at the doctors’ rooms whilst my husband was alive that he had told me that upon his death he wanted to be cremated. My husband’s health continued to deteriorate and on 26th of December 2018 he requested that our daughter be telephoned an asked to come to our home … Our daughter has deposed to a supporting affidavit. When she arrived he called us both and in my presence told her that he wanted to be cremated. He requested that I give her his funeral policy documents with First Mutual and Provident Fund … He explained that there was enough money to pay for the cremation as per the quotations we had received earlier that month as well as for other requirements for his funeral wake. After the conversation with our daughter he requested that our son be contacted through telephone as he resides in South Africa. In my presence and that of our daughter, the reiterated the instruction he had given to us and told our son that he wanted his request to be cremated to be adhered to. My son has also deposed to a supporting affidavit confirming this. On the 29th of December 2018, my brother MAKHULELA TSHUMA came to visit my husband and to enquire on his health. In my presence, the deceased told him that he did not wish to be buried and that he wanted to be cremated … My brother has also deposed to a supporting affidavit attached hereto. … … … My late husband and his sisters the 1st, 2nd and 3rd applicants were never close. They never visited each other. In fact, when my husband was sick, the 2nd and 3rd applicants only saw him once. My husband and his siblings never observed any cultural practices or traditions. In fact, their family has not placed much value on basic and cultural values relating to deaths and burials for instance when their brother who pre-deceased my husband passed away, 1st and 2nd applicants did not even attend the funeral or the burial. In addition when the 3rd applicant lost a child neither 1st nor 2nd applicants attended the funeral. I know not of any cultural position that the family held relating to cremation. I believe that the real reason for being against my late husband’s wishes that he be cremated is simply because it is an uncommon practice not that it is against any cultural values that are held by the family. I together with the children of the marriage want to carry out the last wishes of my late husband. In my view, I do not believe 1st applicant and her sisters would carry the same heavy burden throughout their lives if they conceded to the deceased’s wishes that he be cremated. More so, their family does not have any beliefs against cremation …” (my emphasis) Despite this detailed narration of events shortly prior to deceased’s death, applicants have offered nothing but a bare denial to the specific averment that the deceased made the wish to his wife and children that his remains should be cremated. They are content with saying he “could not have” because he did not tell them. However, they do not share with this court, details of any frequent visits they made to him during his final illness, and the conversations they held with him, and what these were about. Their silence on these crucial issues leads me to the conclusion that there were no such visits or conversations with the deceased during the last days of his life. While denying that it was ever made, the applicants attacked the deceased’s final wish on the grounds that it is not a valid oral Will or testamentary instrument. This attack is manifestly flawed in that it has been held in cases of precisely this nature that burial directions may be given informally without the execution of another Will, codicile or other written instrument. See Kgotsietsile’s case supra where the court expressed itself thus: “A deceased need not devise a testament (Will) to nominate a person to take charge of his/her burial. A mere letter or verbal declaration to witnesses would suffice. For example the following is recorded in LAWSA, second Ed. Vol 2 (part 2) at p 279 per 314 under “Burial rights and duties,” “failing such testamentary instructions, the wishes of the deceased person should be acceded to where there is clear proof of his or her wishes. (my emphasis) In Wand Others v S and Ors supra, the expressed wishes of the deceased coupled with her behaviour before her demise from cancer were given weight by the court above the wishes of her surviving spouse. The court stated inter alia that: “It might be so that there were no specific instructions or wishes that were reduced into writing by the deceased in the form of a Will or testament, therefore, all this information is hearsay evidence. I agree that this is hearsay evidence. The actions of the deceased when she was alive at least give credence to this hearsay evidence. In any event, African people in general are well known for not writing down their last Wills and testament. They always believe in their expressed dying wishes. This burial wish is not abstract from the members of this population – the dying wishes are said sometimes in jest all the time. But in this scenario, this court will therefore accept this hearsay evidence as admissible, given the totality of evidence presented to this court supporting the said hearsay evidence. Besides, the deceased, by her actions disassociated herself from first respondent whilst she was still alive. It is unheard of that a person who was severing her ties with her husband would now be claimed to be the husband’s ancestor when she is no more. In fact, the fact that first respondent agreed that applicants could bury the deceased when they met for the first time at the mortuary on the 11 January 2016, was a realization from his side that in any event, nothing was left from his civil union with the deceased as they were two (2) days away from divorce when the deceased met her death. It appears that he reneged from this stance after consideration with other members of his family.” In casu, this court cannot disregard the wishes of the deceased on the grounds that they were not written, or do not meet the requirements of oral Wills. The deceased took actions that confirmed his wish to be cremated by making enquiries about cremation, obtained quotations and checked his policy to ensure it would cover the cost. No possible motive for fabrication by the 1st respondent has been suggested by the applicants. It does not make sense to me that the 1st respondent a mature person, and her two adult children, and her brother, would suddenly out of the blue fabricate a thing of this nature. No clear benefit accrues to them from a cremation of the deceased which could be said to provide motivation for fabrication. It is also crucial to note that at the time the deceased issued his wish, he was gravely ill and under no illusions as to what would become of him. The 1st respondent lived with the deceased. She shared his home, nursed him during his final hour and was present when he passed on. Accordingly, her evidence on what the deceased did say is the best evidence on the subject. The denial by the applicants is, therefore, one that can easily be disregarded. This denial is based on the applicant’s beliefs and suppositions. It is one that, as stated in the Plascon Evans’ case, does not raise any real dispute over the issue of the deceased’s last wishes. In any event, I find, on the evidence before me that the dispute must be resolved in favour of the 1st respondent. I find as I must that the deceased did express a wish to be cremated. This wish is paramount. Once I so find, it becomes immaterial that the testamentary direction contradicts the wishes of the applicants as blood relations of the deceased or offends hallowed or traditional notions that the applicants hold about how human remains should be disposed of. Be that as it may, I proceed to consider the rest of the applicants’ objections. The 1st respondent alleged estrangement and lack of consensus between the applicants and the deceased in his final days. This is denied by the applicants. However, the denial is bland in that one would have expected that they would counter these allegations by demonstrating that they did frequently visit the home while the deceased was sick. The facts averred by the 1st respondent meeting no answer as they have in this case, do demonstrate a coolness in relations between the deceased and the applicants. Estrangement is a factor to be taken into account in such cases – See for example Kgosiestile case supra where, while dealing with a dispute between a customary law wife of the deceased and his mother, commented thus:- “As foreshadowed earlier Ms Lilian Plaatjies is as silent as the grave in which the deceased will find his final resting place concerning the deceased’s long and winding road from Namibia until he met his untimely death. When he was alive she never cared for or about him. Now that he has died she cares – strange. She was never part of the deceased’s life since she dumped him unceremoniously and has given no explanation to the court a quo why she did it and whether she apologised for her inhuman conduct. What would she be saying now if the deceased disappeared traceless at infancy which is what she seems to have sought.” In the present matter, I find that deceased’s wishes should take precedence by reason of the distance between him and his sisters. Also, the wish was proved by credible evidence to have been made to the 1st respondent whose evidence was sufficiently corroborated by her brother and her two children. The applicants also raised the issue that it is against their customs for people to be cremated. It may be true that nobody in their family has been cremated but this does not make cremation a taboo. Cremation is a modern development in the country as a whole not just to any one particular indigenous culture. It is an evolving facet of life and one in recent years, has been encouraged by local authorities faced with dire shortage of burial land. Customary law is dynamic in that it develops, changes and adapts to modern life. The courts have a duty to develop customary law to bring it in line with the Constitution – Nyandoro v Mukowamombe & Ors (HC 2852/08) [2010] ZWHHC 209 (22 Sept 2010); Njodzi v Matione HH-37-16. In casu, the court is unable to make a finding as to whether or not there is a cultural or customary bar to cremation for the simple reason that besides the bold averment by the 1st applicant that she knows the cultural beliefs of the family, and that she is culturally the patriarchal head of the family, she has placed no evidence of the cultural rites, tenets, or norms she and the other applicants seek to rely upon. The existence of a particular customary law or practice is a matter of fact and evidence. It must be proved by evidence unless it has by frequent proof becomes sufficiently well known to be judiciously noted.. For that reason, no finding on this issue may be made in favour of the applicants. In any event, the cultural practices advocated for by the applicants are not in consonance with the rights to equality in marriage between men and women, as provided for in the Constitution. The concept of a “patriarchal head” results in some kind of subjugation of widows to the wishes of the family of their deceased spouse. As Nwabueze Legal Approaches to Burial Rights Of A surviving Wife. Amicus Curiae 73/2008, opines: “Moreover, the familial approach in Africa has its roots in customary law whose patriarchal origins naturally render it less receptive to women’s rights. Sepulchral priority under customary law is open to abuse. It might provide an opportunity for disgruntled in-laws to “settle scores” with a widow. It is not uncommon in many African countries that when a man dies and is survived by his wife (or only female children), his relatives swoop on his property, under a claim of entitlement to his estate …” Applicants heavily relied on the judgment of this court per MAFUSIRE J in Mhindu’s case. The court made the following statement of law: “However, my synthesis of the case authorities above, the new constitutional dispensation, the present state of the law, and the arguments advanced by counsel in this matter, is that where burial rights are contested the following principles, considered cumulatively, should apply: “i. An heir to the estate of the deceased has some colour of right in the determination of the burial place for the deceased person. In terms of the Deceased Estates Succession Act [Chapter 6:02], the surviving spouse of every person who dies either wholly or partially intestate is the intestate heir. But this is only in relation to certain specified assets. The right of the heir in relation to burial rights, is not exclusive. ii. The voice of the surviving spouse of a deceased person in regards to the place of burial for the deceased carries greater weight than all other voices. However, regard must always be had to the wishes of the deceased’s broader family. iii. The wishes of the deceased during his life time, as to the choice of his or her burial place, if proved by cogent evidence, have to be taken into account but only in so far as it is practicable to do so. Otherwise they are not binding. iv. The customs, traditions and cultural practices or values of the broader family or community to which the deceased belonged should be taken into account in the burial arrangements of the deceased in so far as they are not in conflict with the general laws of the land, the Constitution and the values under it.” In my view the court fully recognized the precedence of the voice of the widow. The learned judge also acknowledged the role played by customs and cultural beliefs. As regards the approach, I agree with learned judges’ comments thus: “The above list is by no means exhaustive or prescriptive. If and when the relatives fail to agree and then surrender their fate and that of the body of the deceased to a court, I consider that as was said in Mahala, each case will have to be decided on its own set of facts. There can be no hard and fast rules. Common sense ought to prevail at the end of the day. A balance must be struck between or amongst the competing interests. In casu, my decision to dismiss the widow’s application in favour of burial at Glen Forest was informed largely by common sense …” The court then proceeded to make findings of fact, one of which was to the effect that on the evidence placed before it, the court could not ascertain what exactly deceased’s wish was. Claims by both parties seemed “manifestly contrived”. Hence the court made a decision it considered the “most expedient” under the circumstances. In casu, since I have already found that the deceased’s wish was proved on cogent evidence to have been communicated to the 1st respondent and her children, the former must be allowed to have the remains of her husband cremated. Should her counter application be dismissed, she and her family stand to suffer emotional trauma of knowing the deceased’s clearly expressed wishes were not carried out. As regards costs, the applicants acted with some degree of tardiness warranting an order of costs against them. In the totality of the circumstances, it is hereby ordered that: The main application under HC 585/19 be and is hereby dismissed.. The counter application under HC 819/19 be and is hereby granted. The 2nd respondent be and is hereby directed to proceed with the cremation of the late Mali Amos Nkomo. Applicants be and are hereby jointly and severally ordered to pay all the accumulated mortuary costs due to the 2nd respondent up to the date of the cremation. Applicants be and are hereby jointly and severally ordered to pay costs of this application. Coghlan & Welsh applicant’s legal practitioners Zimbabwe Women Lawyers Association 1st and 2nd respondent’s legal practitioners