IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case No.: 1177/2004
In the matter between:
MATTHEWS THABO YONA Applicant and
ZANYIWE THELMA RAKOTSOANE
THABISO RAKOTSOANE
THEMBALETHU FUNERAL PARLOUR
First Respondent
Second Respondent
Third Respondent
_____________________________________________________________________
CORAM: RAMPAI, J
_____________________________________________________________________
HEARD ON: 6 MAY 2004
_____________________________________________________________________
DELIVERED ON: 5 AUGUSTUS 2004
_____________________________________________________________________
[1] The matter first came by way of an urgent application on Thursday,
22 April 2004, before Van der Merwe, J. He granted the rule nisi returnable on Thursday, 29 April 2004. On the return date the rule nisi was extended until Thursday 6 May 2004. On that day I heard argument for the confirmation and for the discharge of the rule nisi .
Having heard argument I discharged the rule nisi but gave no reasons. These then are my reasons for the order I gave.
[2] This case is about the burial of a deceased person. The deceased,
Nthabiseng Joyce Yona ex-Rakotsoane, was born at Philippolis on
23 October 1975. The applicant is the deceased’s widower. He

2 and Nthabiseng were married to each other in community of property in Bloemfontein on 2 December 1999. She was a housewife. He was a prison warder. Three dependent minor children were born of the couple’s marriage, namely Dimpho, a girl born on 3 May 1994, Noluthando, a girl born on 8 May 2000, and Luthando, a girl born on 28 November 2001. Nthabiseng took ill in December 2003. On 12 February 2004 she was admitted to the Medi-Clinic in Bloemfontein where she was diagnosed with cancer of the liver. She was hospitalised there until 21 February
2004. On that day it seems she was transferred to Willow Med-
Clinic also in Bloemfontein where she died on Tuesday, 13 April
2004.
[3] The first respondent is the mother to the deceased Nthabiseng whereas the second respondent is her brother. The first respondent is a pensioner. She lives at Philippolis. Her husband predeceased
Nthabiseng. The second respondent is a teacher. He lives in
Bloemfontein. Subsequent to Nthabiseng’s death these two respondents removed her corpse from Avbob Funeral Undertaker in Bloemfontein. The corpse was then delivered to the third respondent, Thembalethu Funeral Parlour at Philippolis. The funeral arrangements were made by the respondents to lay

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Nthabiseng to rest at Philippolis on Satursday, 24 April 2004. The applicant, on the other hand, was also planning to bury his deceased wife on the same day but in Bloemfontein and not
Philippolis. It was that conflict which led to the launching of these proceedings.
[4] There are two crucial questions the court is called upon to determine in these urgent proceedings. The first issue to be determined is the final place of rest for the deceased. The second issue to be determined is the person whose privilege it must be to bury the deceased.
[5] Mr Daffue, counsel for the applicant, on the one hand, submitted that the applicant had made out a proper case for the relief he sought which, positively stated, is that he be granted an order authorising him to bury the deceased here in Bloemfontein. He urged me to confirm the rule nisi . He then referred me to the following authorities in support of the various submissions he made:
Section 1(1)(c)(i) Intestate Succession Act No. 81/1987;
Boberg: The Law of Persons and Family 1977 at p.23;

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SAIID v SCHATZ 1972 (1) SA 491 )TPD) at 494E;
HUMAN v HUMAN 1975 (2) SA 251 (ECD) ;
GONSALVES & ANOTHER v GONSALVES & ANOTHER
1985 (3) SA 507 TPD ;
MBANJWA v MONA 1977 (4) SA 403 (Tk);
SEKELENI v SEKELENI & ANOTHER 1986 (2) SA 176 (Tk);
TSEOLA & ANOTHER v MAQUTU & ANOTHER 1976 (2)
SA 418 (Tk);
MANKAHLA v MATIWANE 1989 (2) SA 920 (Ck);
MNYAMA v GXALABA & ANOTHER 1990 (1) SA 650 (CPD)
MABULU v THYS & ANOTHER 1993 (4) SA 701 (SEC) at
703B;
Schäffer Family Law Service: Succession p.57;
De Wall et al : Law of Succession p.11-14.
[6] Mr Snellenburg, counsel for the respondents, on the other hand, submitted that the applicant had failed to make out a case for the final relief sought. He urged me to discharge the rule nisi so as to allow the first and second respondents to bury the deceased. He too referred me to the following authorities in support of the various submissions he made:

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CAPE TEX ENGINEERING WORKS (PTY) LTD v SAB
LINES (PTY) LTD 1968 (2) SA 528 (C) at 529 – 530;
STELLENBOSCH FARMERS’ WINERY LTD v
STELLENVALE WINERY (PTY) LTD 1957 (4) SA 234 CPD at 235D-G;
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK
PAINTS (PTY) LTD 1984 (3) SA 623 AD at 634E-635C;
TRIOMF KUNSMIS (EDMS) BPK v AE&CI BPK EN
ANDERE 1984 (2) SA 255 (WLD) at 269C-G;
BAYAT & OTHERS v HANSA & ANOTHER 1955 (3) SA 547
(NPD) at 553C-E;
DIE MEESTER v JOUBERT EN ANDERE 1981 (4) SA 211
AD at 226H;
POUNTA’S TRUSTEE v LAHANAS 1924 WLD 67 on 68;
SEKELENI v SEKELENI & ANOTHER 1986 (2) SA 176 (Tk) on 178;
MABULU v THYS & ANOTHER 1993 (4) SA 701 (SEC);
TROLLIP v DU PLESSIS EN ‘N ANDER 2002 (2) SA 242
(WLD) on 245 – 246;
PHASE ELECTRIC CO (PTY) LTD v ZINMANS
ELECTRICAL SALES (PTY) LTD 1973 (3) SA 914 (WLD);

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LEVINSONS MEAT PRODUCTS (EDMS) BPK v
ADDISIONELE LANDDROS KEIMOES EN ‘N ANDER 1981
(2) SA 562 (NCD).
[7] Before I examine the merits, let me first deal with a preliminary issue raised in the replying affidavit. The applicant also endeavoured to rely on indigenous customary rites. In
POUNTA’S TRUSTEE v LAHANAS 1924 WLD 67 on 68
Krause J stated the rule as follows:
“I think it has been laid down in this Court repeatedly, that an applicant must stand or fall by his petition and the facts alleged therein, and that, although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny.”
[8] The principle of our law of civil procedure is that all the essential averments must appears in the founding affidavit. See
SHEPHARD v TUCKERS LAND & DEVELOPMENT
CORPORATION (PTY) LTD 1978 () SA 173 (W) at 177G-H per Nestadt, J. See also TRIOMF KUNSMIS (EDMS) BPK v
AE&CI BPK EN ANDERE ( supra ), BAYAT & OTHERS v
HANSA AND ANOTHER ( supra ) and DIE MEESTER v

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JOUBERT EN ANDERE ( supra
). Therefore the applicant’s belated attempt to rely on cultural rites or customary right is impermissible. Seeing that the applicant seeks a final interdict in these proceedings, the affidavits have to be adjudicated on the basis that the averments of the respondents are true. The action has to be adjudicated on the strength of the respondents’ version together with the applicant’s version to the extent that it is admitted by the respondent.
[9] This is an inevitable consequence when the court is asked to grant a final relief on motion proceedings instead of action proceedings.
The court will not evaluate or balance the inherent probabilities of the conflicting versions. Instead it will proceed from the premise that the respondent’s exposition is accepted as the truth ( vide
STELLENBOSCH FARMERS’ WINERY LTD v
STELLENVALE WINERY (PTY) LTD supra, CAPE TEX
ENGINEERING WORKS (PTY) LTD v SAB LINES (PTY)
LTD at 529G-530C and PLASCON-EVANS PAINTS (PTY)
LTD v VAN RIEBEECK PAINTS (PTY) LTD supra at 634E-
635C ).
It follows from the above that the solution to this problem had to be sought by applying common law and not indigenous law. The

8 gravamen of the applicant’s cause of action based on common law is that he is the sole heir of the deceased’s estate. This contention, so argued Mr Daffue, is based on section 1 Intestate Succession
Act No. 81/1987 in particular sub-section (1)(c)(i) thereof which provides that if a person dies intestate and is survived by a spouse as well as a descendant such a surviving spouse shall inherit a child’s share or so much as does not exceed the ministerial statutory limit whichever is the greater. By virtue of this section, it was contended on behalf of the applicant that he was the sole heir ab intestato . Since there are three surviving minor children, the applicant cannot be treated as the sole heir of the deceased’s estate although he is the sole guardian of the deceased’s children. Subsection (1)(c)(i) relates to co-heirs and applies to the instant case because there are three surviving children. At best for the applicant, it may be said that he is the prime heir. The position of the sole heir is governed by sub-section (1)(a). Such a surviving spouse inherits the whole intestate estate, since there is no surviving descendants in such a scenario. But sub-section (1)(a) does not apply here, since there are three surviving dependants.
Section 1(1)(c)(i) is in effect an extension of the third rule of the burial principle. The third rule only refers to the blood relations of the deceased as the intestate heirs. Since this enactment the

9 surviving spouse is expressly included among the intestate heirs.
In fact, the section makes the surviving spouse the prime heir in the sense that the surviving spouse is now the only intestate heir who is entitled to inherit a greater share than the child’s share.
[10] To begin with, I proceed to examine the allegations of facts in an endeavour to find an answer to the first question. At the heart of the enquiry is a document described as Annexure “C” which appears on p.20 of the paginated court record. See p.69 for the original thereof. It is written in Sesotho. It reads as follows:
“NNA NTHABISENG JOYCE RAKOTSOANE (YONA)
Nka Thabela tse latelang ha nka hlokahala Bana ba ka ba Bararo eleng:
DIMPHO YONA
NOLUTHANDO YONA
LUTHANDO YONA ba fuwe motswadi wa ka eleng ZANYIWE THELMA
RAKOTSOANE hobane ntate wa bona ha, ana tlhokomelo e ntle baneng.
Sabobedi ke kopa hore boroko ba ka ba qetelo ke ilo bo robala haeso
Philippolis.
Dikopo tsena ke di etsa kopo e kgolo. Ho tswa ho nna Nthabiseng.
2004.03.16

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R. Bothma 16.03.2004
N.P. Rakotsoane 16.03.2004.”
[11] The English translation thereof by Mr B.B. Mncayi, our senior court interpreter, appears on p.70 of the paginated record. It reads as follows:
“I, Nthabiseng Joyce Rakotsoane (Yona)
I would be pleased if the following could happen should I die. I have three children namely, Dimpho Yona, Noluthando Yona and Luthando
Yona.
The custody of the children has been given to my parent (mother) whose name is Zanyiwe Thelma Rakotsoane because their father does not care properly for the children.
Secondly, my request is that should I die I must be laid to rest at my home town which is Philippolis.
I make these requests with great respect.
From
Nthabiseng. Signed 2004-03-16
Signed 16-03-2004
Signed 16-03-2004.”
[12] In his founding affidavit the applicant vehemently denied the authenticity of the aforesaid document on the following grounds:
That Nthabiseng was too ill on 16 March 2004 to execute the

11 document; that the handwriting was not hers; that her signature does not appear on the document; that she did not inform him about her wish to be buried at Philippolis; that she regarded
Bloemfontein as her permanent home and that neither the first nor the second respondent informed him about the document until they had removed the corpse from Avbob Funeral Undertaker. He believed, for these reasons, that the document was not authentic but a fake fabricated by the members of Nthabiseng’s family.
[13] In their answering affidavit the first two respondents deny that the document was not a genuine document. They deny that either of them or any member of their family was the author of the disputed document. In support of their contention, that Nthabiseng was the true author thereof, they annexed three sworn statements.
[14] In determining whether the disputed document is a dying declaration or not, the law commands that such a disputed document has to satisfy certain requirements. Those were set out in R v ABDULL OTHERS 1905 TSC 199 , where Innes, CJ had this to say about a dying declaration:

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“In order that the dying declaration may be admitted as evidence, the rule is that three things must have occurred: the person must have been in danger of impending death; he must have realised the extent of his danger so as to have given up all hope of life and death must have ensued.”
See also MADALA JIM NDLOVU v RAMOCOELA & 2
OTHERS , an unreported decision of this court, Case No.
4144/2000, per Rampai, J on p.32 – 36 which was delivered on 25
January 2001.
[15] As we now know Nthabiseng was hospitalised on 12 February
2004. Her condition gradually deteriorated. She was suffering from cancer, a deadly illness. She was in danger of eminent death.
There is no question about it. Her doctor probably advised her that her condition was terminal. She must have realised that the last chapter of her life was about to be closed. Eight weeks later she departed from this lower valley of tears. On 13 April 2004
Nthabiseng was declared dead.
[16] Four weeks after her hospitalisation and four weeks prior to her death, the disputed death-note came into existence. Put differently:

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Nthabiseng was four weeks in hospital when the disputed deathnote was apparently written. Four weeks later Nthabiseng died.
The disputed death-note was written on the printed letterheads of
Afrox Healthcare Hospitals. One of those group of hospitals was
Willow Med-Clinic where Nthabiseng was still hospitalised at the time the disputed death-note was apparently written. The note was written in Sesotho, which happened to be Nthabiseng’s mothertongue. The author foresaw and anticipated her death as eminent and inevitable. The note recorded the author’s express wish to be buried at Philippolis, which happened to be Nthabiseng’s place of birth. Though the note made no direct mention of the applicant’s name, it indirectly referred to the father of specific minor children.
Four weeks after the execution of the disputed note, Nthabiseng died in hospital. All these factors have moved me to conclude that the aforesaid requirements of a dying declaration have, on a balance of probabilities, been satisfied. Who then was the author of the dying declaration which has so much in common with
Nthabiseng?
[17] Ms Nokwenzani Rakotsoane, Nthabiseng’s sister-in-law stated on oath that she witnessed the writing of the note. Ms Rhona Bothma,
Nthabiseng’s friend, made precisely the same averment in her

14 supporting affidavit. These two supporting affidavits added a considerable amount of weight to the version of the respondents.
The applicant cried a foul play by Nthabiseng’s family. But could advance or suggest no reason at all why Ms Bothma, a neutral person with no interest in the matter, would fabricate such a story or support the alleged family conspiracy. In my view the applicant failed to rebut this crucial averment that Nthabiseng was the true author of the note. His repeated denial and allegations of conspiracy were not substantiated at all. They were indeed bald and wild allegations.
[18] I accept the veracity of the version of the respondents as backed up by the two ladies Ms Rakotsoane and Ms Bothma. Moreover, I have no reason to doubt the veracity of Dr J.D.E. Cronje that on 16
March 2004 Nthabiseng was mentis compos.
Therefore there is no room for the applicant’s unsubstantiated allegation that Nthabiseng was incapable of writing the note in question. It is not the applicant’s case that on 16 March 2004 he was with his terminally ill wife in hospital and that her condition was so weak that she could hardly write. Having considered all these various factors I have come to the conclusion that the aforesaid note was, on a balance of probability, a genuine death-note or dying declaration

15 executed by Nthabiseng. The cumulative impact of the circumstantial evidence and the direct evidence is compelling.
[19] Her wish was that she should be laid to rest at Philippolis, her birthplace. Such wish was legitimate and has to be honoured. Her mother, the first respondent, still lived there. Certainly she knew that she and her husband had been living together in Bloemfontein for about 10 years. Notwithstanding this fact, she made a conscious decision as regards her final place of rest. Philippolis where her mother lived was her preferred place for her burial and not Bloemfontein where her husband lived.
Nthabiseng made a compassionate plea that her mother be allowed to care for her three daughters and to bring them up. Her two little daughters were already staying with their maternal grandmother with the consent of their father.
In SAIID v SCHATZ ( supra
) the deceased woman’s brother alleged that his deceased sister wished to be buried in accordance with the Islamic rites. He alleged the deceased’s wish was contained in a letter. But he failed to prove the letter relied upon.
The surviving husband won. The brother lost out. The rule nisi

16 was discharged on that ground. In casu the deceased’s wish had been proven.
In HUMAN v HUMAN ( supra
) the deceased man’s daughter alleged that her deceased father wished to be buried at Queenstown and not Vereeniging where the deceased’s widow wanted to bury him. The daughter alleged that the deceased’s wish was orally expressed from his death-bed. Cloete, J in discharging the rule nisi and thereby rejecting the daughter’s reliance on an unproven oral wish said that the dying person’s desire as to where he must be buried was of a mere sentimental importance.
In TSEOLA & ANOTHER v MAQUTU ( supra ) Munnik CJ said that where the deceased had given no testamentary directions the heir had the duty and the right to bury the deceased wherever he wanted.
In GONSALVES & ANOTHER v GONSALVES &
ANOTHER ( supra ) the court said in pretty much a similar vein that it was the duty and therefore the right of the heir to decide upon the deceased’s last place of rest where no testamentary directions have been given.

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[20] In all these cases the emphasis was placed on the wishes of the deceased expressed in a formal instrument, the will. The impression was almost created in some cases that the wishes of the deceased expressed in an informal instrument such as a letter or dying declaration or word of mouth were of no legal significance.
The legal commentator Prof. T.W. Price also once wrote that in our law directions in the will as to the disposal of the body must be followed ( vide SALJ (?) vol 68 p.403).
The trend took another turn in SEKELENI v SEKELENI ( supra ) where Lombard, J elucidated the legal position succinctly as follows at p.
178:
“Our law would indeed seem to be defective if it cannot give effect to a person’s wishes regarding his burial, whether expressed formally or informally.”
This is in line with the exposition by VOET 11.7.7 of the first rule of the burial principle.

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In giving effect to the legitimate, practical and reasonable wishes of the deceased our courts should not be unduly influenced by the selfish wishes of the surviving spouse either as the sole heir or coheir. However, if the deceased spouse has left no last wishes enveloped in a formal instrument or informal instrument then the wishes of the surviving spouse are paramount and should prevail.
In the instant case they are not and should not. ( Vide Prof. Price supra ).
[21] It follows from the above that the first question must be answered in favour of the respondents. The corpse of Nthabiseng must be buried at Philippolis in accordance with her written dying declaration executed in Bloemfontein on 16 March 2004.
[22] I turn now to the second leg of the enquiry. Here the question is who must bury the deceased. Nthabiseng is survived by her husband and three dependent minor daughters. The burial principle of common law applies. The first three rules of the burial principle are worth reciting here. Voet: 11.7.7 Commentary on the Pandects gives an exposition of the principle as follows:
“ 1. Person chosen by the deceased must bury:

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2.
3.
“The funeral besides must be carried out by him whom the person departing this life has chosen.”
Who may bury if none chosen? If the deceased did not impose the duty of burial on anyone, the matter will affect those who have been named in the last will as the heirs.
Who may bury if none chosen? If no one has been so named, it affects the legitimate children or the blood relations each in their order of succession.”
[23] In the case of SEKELENI v SEKELENI supra the court held, per
Lombard J, that it was permissible for the deceased to nominate a person to bury him or her by way of a written albeit a nontestamentary document. In the instant case and in terms of the death-note the deceased did not nominate any specific person to bury her. Therefore, the first rule of the burial principle does not apply.
[24] Nthabiseng did not execute a valid will during her lifetime. She died intestate. Since she left no will behind, it follows without saying that there are no testamentary heirs or heiresses. Nobody can claim the privilege to bury her by virtue of any testamentary nomination. Therefore, the second rule of the burial principle does not apply.

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[25] Since the deceased died intestate it is the duty of her intestate heirs or heiresses to bury her. The deceased’s spouse is her chief intestate heir. See section 1(1)(c)(i) of the Succession Act. He and her children are entitled to share her estate. Nthabiseng has left behind three surviving children and their father who was her lawfully wedded husband is her prime heir.
All things being equal, the duty to bury her would have fallen upon him to bury her at her chosen place, Philippolis. Therefore the third rule would have applied.
[26] In his founding affidavit the applicant averred that the first and second respondents removed the corpse of his wife from
Bloemfontein to Philippolis in a clandestine manner. The removal constituted an injury to his right to bury his spouse. He was reasonably apprehensive that the respondents were planning to bury his deceased spouse at Philippolis contrary to his wish to bury her in Bloemfontein. He feared that he would suffer irreparable harm unless the respondents were interdicted as a matter of great urgency from proceeding with the funeral arrangements of his

21 spouse. He averred that he was remediless unless the relief he sought was granted.
[27] In the answering affidavits the first and second respondents answered that they took active steps to honour the last wish of the deceased. They admitted that they indeed removed her corpse from Bloemfontein to Philippolis in order to achieve that sacred objective. In addition to this they averred that they made the necessary funeral arrangements to have the deceased buried at her chosen and final place of rest with the expressed consent of the applicant. They averred that the applicant expressly consented that the deceased’s corpse be released by the first funeral service provider, Avbob Funeral Undertaker, to the respondents. They denied that they secretly removed the corpse to Philippolis.
[28] The requisite of a final interdict are well known. They are, firstly, that the applicant has a clear right which requires protection of the law. Secondly, that an injury to that right has actually been committed or that there is a reasonable apprehension or fear that irreparable harm to such a right is about to be committed, and, thirdly, that the applicant has no other ordinary and effective remedy to protect his right. Vide SETLOGELO v SETLOGELO

22 supra . All these requisites must be established. Failure to prove one of them is fatal to the applicant’s case.
[29] As regards the first requisite, the applicant’s case was that his right to bury the deceased was based on the following: his marriage to her; his status as her sole heir; his status as the father and natural guardian of her children; his economic position as the sole bread winner of the family unit; his view that Bloemfontein was her permanent place of residence; and his view that she had not expressed any genuine wish to be buried at any place other than
Bloemfontein. I deem it unnecessary to examine the content of the applicant’s right in depth. Suffice to say that I have already made a finding that the foundation of his right originates or stems from the third rule of the burial principle. The majority of these grounds on which the applicant relied are compatible to the third rule. I have already made a finding that Annexure “C” embodied an authentic written statement or declaration by the deceased and that it was indeed a genuine expression of her last wish of the place where she wanted to be laid to rest. The applicant’s strong challenge for the rejection of the deceased’s express wish did nothing to bolster the foundation of his right. On the contrary, it reflected negatively on his objectivity.

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[30] The burial principle makes it abundantly clear that the privilege or the right of the surviving spouse to bury his or her deceased spouse is subordinate to the written direction of the deceased spouse concerning all the matters pertaining to the final disposal of the corpse. The first rule lays down that the person nominated by the deceased must bury. The second rule lays down that a person nominated as an heir or heiress in terms of the deceased’s written will, must bury. It is only in a case where virtually nobody can be identified in terms of the first or the second rule that the surviving spouse comes into the spotlight for consideration. Where somebody can properly be identified in terms of either the first or the second rule, the surviving spouse remains dormant and ineligible to be considered. In such cases the wish of the deceased spouse overrides the wish of the surviving spouse.
[31] Mr Daffue, counsel for the applicant, submitted, and correctly so, that in the instant case the deceased did not nominate anyone to bury her. In such a situation the statutory provision as well as the third rule of the burial principle inform us that her surviving husband must carry the burden of her burial. However, Mr
Snellenburg, counsel for the respondents, submitted that

24 notwithstanding the third rule of the burial principle, the issue as to who must bury the deceased spouse, even in the absence of any directive wish by the deceased, must be adjudicated with due cognisance of the circumstances of the particular case and that due regard must be had to the considerations of what is reasonable and equitable. Vide TROLLIP v DU PLESSIS EN ANDER 2002 (2)
SA 242 (WLD) at 245I where Flemming, DJP observed that in this type of cases the approach to be adopted is to search for a solution which is the most equitable in the circumstances of each particular case.
[32] The version of the respondents that the applicant gave them permission to take possession of the corpse, to remove it from
Bloemfontein and to transport it to Philippolis has to be accepted as true and not the applicant’s version that the corpse was secretly taken away without his consent. ( PLACON-EVANS PAINTS
(PTY) LTD supra ). In my view the applicant’s denial is inherently unconvincing. Albert Coetzee, an employee of Avbob
Funeral Undertaker, had no interest whatsoever in the dispute. His account of the dealings he had with the applicant supported the version of the respondents. He confirmed that he released the deceased’s corpse to the second respondent with the knowledge

25 and the consent of the applicant. He denied the suggestion that he wrongly regarded a copy of Annexure “C” as a court order seeing that it had been certified by the magistrate of Philippolis.
[33] I am persuaded to find that, on a balance of probability, the applicant relinquished possession of the deceased’s corpse and authorised Avbob Funeral Undertaker to release the corpse to the second respondent’s family and allowed them to take the deceased’s corpse to Philippolis for burial. The first and second respondents acted in accordance with the consent of the applicant.
Their prime motive was to respect and to carry out the last wish of
Nthabiseng. It seems to me that the applicant’s prime motive is to disregard Nthabiseng’s wish. By attacking Annexure “C”, the deceased’s declared wish, the applicant made it clear that he had no respect for the last wish of his wife. His attitude was in sharp contrast to the attitudes of the first and second respondents. They were determined to see to it that the last wish of Nthabiseng was carried out. Nthabiseng’s last wish would certainly be undermined if her burial was left in the hands of the applicant. The insensitive attitude of the surviving spouse as evidenced by the selfish unsympathetic unwillingness to respect the last earthly wishes of his deceased spouse weighs heavily against the scale of equity.

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The unselfish and sympathetic willingness of the deceased’s mother to respect the last wish of her daughter is an honourable commitment which gives the moral edge over the surviving spouse.
[34] The applicant had not incurred any funeral expenses for the planned burial of Nthabiseng in Bloemfontein. The first and second respondents, on the other hand, had already incurred funeral expenses. It seems to me unreasonable, unfair and inequitable to undo what has already been done so far by those whose noble motive was to respect the last wish of their departed daughter and sister. I am of the view that the applicant surrendered the privilege or the right he had to bury his wife and that mighty considerations of equity demand that he be held to the decision he made. The consent he gave legally vitiated the very foundation of his right which stemmed from the third rule of the burial principle and section 1(1)(c)(i) Succession Act No. 81 of 1987. The considerations of justice, fairness and equity strongly militate against the idea of allowing the applicant to reclaim his lost privilege, call it a right if you will, at the expense of the respondents.

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[35] For the reasons enumerated above, I have come to the conclusion that the applicant has failed to make out a case for the final relief he sought. Since he has not proven the first requisite of a final interdict, namely a clear right which deserves the protection of the law, the application has to fail. It becomes unnecessary and academic to deal with the remaining requisites of the final interdict.
[36] The general rule is that the successful party is entitled to have the costs paid by the unsuccessful party. I can see no reason in the instant case why the general rule should not apply in favour of the successful respondents.
[37] Accordingly I make the following orders:
37.1 The rule nisi is hereby discharged.
37.2 The respondents are hereby authorised to bury the deceased,
Nthabiseng Joyce Yona ex-Rakotsoane, at Philippolis in accordance with her dying wish.
37.3 The applicant is ordered to pay the costs of this application including the cost of the postponement of 29 April 2004.
________________
M.H. RAMPAI, J

On behalf of Applicant:
On behalf of 1 st & 2 nd
Respondents:
/scd
Adv. J.P. Daffue instructed by
NW Phalatsi & Partners
Adv. N. Snellenburg instructed by
Qwelane, Theron & van Niekerk
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