JOHANNESBURG - The widely reported clash over veteran actor Seputla Sebogodi’s final resting place has sparked renewed debate about who has the legal right to decide where a loved one is buried.
At the centre of the dispute is Sebogodi’s customary marriage wife of six months, who wants him to be buried in Polokwane, while his family believes he should be laid to rest elsewhere; this is according to a report on Daily Sun.
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Attorney and funder of Sitter in Law, Tebello Motshwane, says South African courts recognise that the surviving spouse has the strongest claim to make decisions regarding the funeral and burial of the deceased spouse.
This, she said, is because the spouse is regarded as the deceased’s closest legal next of kin.
“Courts have consistently held that the surviving spouse’s wishes ordinarily carry greater weight than those of parents or extended family members, unless there are compelling reasons to decide otherwise,” Motshwane said.
According to Motshwane, each case is determined on its own facts.
This includes determining if the dispute is about whether a valid marriage existed or whether the deceased expressed contrary wishes.
Turning to the legal requirements for a customary marriage to be recognised, Motshwane listed three factors.
She said both parties must be 18 years or older, the couple must have consented to be married to each other under customary law, and finally, the marriage was negotiated and entered into or celebrated in accordance with customary law.
“Although customs differ between communities, this generally includes negotiations between families and the handing over or integration of the bride into the groom’s family. Payment of lobolo alone is not necessarily sufficient to establish a valid customary marriage,” she explained.
She said failure to register a customary marriage does not invalidate it.
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This, she said, the surviving spouse may, however, have to prove that a valid customary marriage existed if the marriage is disputed.
“Evidence may include but is not limited to lobolo negotiations, witness testimony, photographs or videos of ceremonies and conduct of the parties and recognition by their families.”
Disputes of such nature often cause rifts between families as cultural tradition and law sit on opposite ends.
In some cultures, elders would fight to have a deceased person buried at their ancestral home.
Motshwane, the Constitution recognises the right to practice one’s culture, but cultural rights must be exercised consistently with the Constitution and other laws.
“The courts seek to strike a balance by considering the deceased’s wishes vs the rights of the spouse. The family’s cultural traditions vs the dignity of the deceased, and ultimately the interests of justice. However, cultural practices do not automatically override the legal rights of a surviving spouse,” she said.
Questions may then arise as to whether the family of the deceased can challenge the surviving spouse and the answer, according to Motshwane, is yes.
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She said the family can approach the High Court on an urgent basis seeking an order determining who has the right to control the burial.
But it is up to the court to consider the following factors.
- Whether there was a valid customary marriage
- The deceased’s expressed wishes, if known
- The nature of the relationship between the deceased and the competing parties
- Cultural considerations
- The interests of justice and fairness.
"There is no single statute that specifically regulates burial disputes. Courts rely on common law principles together with constitutional values and the facts of each case,” Motshwane said.
If the deceased had children from the previous marriage, they also have rights in relation to the deceased’s estate, including inheritance where applicable.
However, Motshwane argues that they do not automatically have a superior right to decide where or how the deceased is buried simply because they are children of the deceased.
“A surviving spouse in a valid customary marriage enjoys the same legal recognition and protection as a spouse in a civil marriage. The Recognition of Customary Marriages Act 120 of 1998 (RCMA) places customary marriages on equal footing with civil marriages.”
These rights include and are not limited to the right to participate in decisions relating to the funeral and burial, subject to the circumstances of each case and any wishes expressed by the deceased, and even inheritance.
Sebogodi’s case is not new, as there have been widely reported cases where there are family feuds over who has the final say.
This is why Motshwane provides steps couples should take to ensure their marriages are recognised and to avoid disputes.
Ensure all the legal requirements for a valid customary marriage have been met.
Register the customary marriage with the Department of Home Affairs.
Keep documentary evidence of lobolo negotiations and ceremonies, and for purposes of effective estate planning.
Prepare a valid Will setting out burial wishes and the distribution of the estate.