Widow, brother in battle over where to bury deceased
DISCRIMINATION based on sex and gender no longer has a place in our constitutional democracy, a judge said in turning down an application where the eldest brother of a deceased man said he had the final say as to where his brother should be buried.
The brother (the applicant) turned urgently to the Gauteng High Court, Pretoria, to interdict the widow from burying her husband in Centurion.
The brother said in terms of the Xhosa tradition, his brother had to be buried in the Eastern Cape.
The brother said the widow, as a woman, did not have any say over where her husband should be buried.
In the opening to this judgment, Acting Judge M R Phooko remarked that “it is generally accepted that ‘the dead should be treated with dignity’ and be given a dignified send-off.“
The deceased was married to his now widow in terms of Xhosa customary law and later by civil rite, which marriage still subsisted at the time of the deceased death.
Upon his death on January 12, the brother sought burial rights of the deceased on the basis that he is the deceased elder brother.
He averred that he had the exclusive right to decide where the deceased to be buried.
This is regardless of whether the deceased was married to the Respondent (wife). He stated that in terms of Xhosa tradition, the deceased had to be buried in his ancestral home at Zwide, Gqeberha, Eastern Cape.
The widow disputed this on the ground that as the wife of the deceased, she has a right to bury the deceased.
She planned on burying him in Centurion and the brother said this is contrary to the deceased’s Xhosa traditions, culture, customs, and his wishes to return to the ancestral home in the Eastern Cape.
In addition, his counsel argued that once the body was buried in Centurion, it cannot “be undone” except that there is a tedious and possible route of exhumation, something that the brother sought to avoid.
To this end, counsel argued that the estranged wife should not decide where the deceased should be buried but the deceased’s family should do so.
The basis for this was that the deceased and the widow were experiencing marital problems and that they were eventually going to divorce.
Furthermore, counsel submitted that when the lobola was fully paid and the now widow became a wife, she belonged to the family of the deceased and could not make decisions on the part of the family.
According to counsel, the wife became “the property” of the deceased family and occupied a “low-ranking position” that barred her from making decisions related to the burial related matters.
Ultimately, counsel averred that the deceased cannot be buried anywhere save for the Eastern Cape because burying him elsewhere will cause the deceased’s family to suffer curses and bad luck in the future.
Counsel for the widow in turn argued that she was being discriminated against because of her gender and classified as someone incapable of arranging a funeral for her late husband.
The court was told that the widow, as the wife to the deceased, was entitled to decide where he should be buried.
According to counsel, the deceased and the widow were still in love and she was there for him when the deceased fell ill.
Judge Phooko commented that the case of the brother was largely premised on a wrong notion where “women were always subordinated to the authority of a patriarch” and regarded as perpetual minors under the guise of cultural practices.
“This is no longer the position under our new constitutional dispensation,” the judge said.
The court also pointed out that the family of the deceased left all the hospital-related decisions to her, as his wife.
Judge Phooko questioned that if this was the case, why can she not also decide his last resting place.