The common law right of a wife can never be taken away from her by virtue of municipal by-laws, says a judge.
Besides, the court said, the wife paid the prescribed burial fees and was entitled to erect the tombstone.
The judge’s comments were made during a legal battle over the erection of a tombstone in which the family of the deceased and the City of Johannesburg are opposing the widow’s rights to erect the tombstone.
The City of Johannesburg appealed an earlier order in which the Gauteng High Court, Johannesburg, ruled that the City’s parks and zoo division had to recognise the widow Z’s rights as the holder over the grave site at Westpark Cemetery where the deceased had been buried.
Unhappy with the ruling, the City appealed it before three judges.
The widow earlier approached the court and was successful after the official in charge of the cemetery had refused her to allow her to erect a tombstone on the grave site in memory of her late husband.
Judge Motsamai Makume, who wrote the concurring judgement, remarked that the right to bury a loved one or a close member of one’s family has always been a contested territory in our communities, especially where a deceased person had not directed otherwise in a written will or openly expressed a wish.
The right was further exacerbated when married parties were living separately and contemplating a divorce or in the event where there was no communication between family members when such an estranged party died and was not living with their married partner at the time, as in the case of the respondent (the widow) and her husband.
They married in November 1993. In 2011, the respondent vacated the matrimonial home. Two years later, the deceased obtained, by default, a divorce decree without having informed the respondent. The decree of divorce was later set aside by this court and thus at the time of his death, they were married.
Despite that, the family of the deceased, including his sister, refused the respondent the right to participate in the burial of her husband as they were under the impression that the parties were divorced.
Notwithstanding the attitude of some of the family, the respondent made available funds to enable them to bury the deceased. The respondent submitted a claim against her funeral policy and paid R4 500 for the grave site at Westpark.
The sister of the deceased made arrangements for the burial with the undertakers. A year after the burial, the widow approached officials at Westpark Cemetery to ask permission to erect a tombstone on the grave site of her late husband.
She was told that the only person allowed to do that was her sister-in-law whom the husband had lived with at the time of his death. City officials maintained that the widow was not the owner of the grave site as her sister-in-law’s name was on the city’s books.
The city said it was not personal but, under the by-laws, it could not allow someone who was not on its books to erect the tombstone.
Although the court had earlier ruled in her favour, the erection of the tombstone was put on hold, as the city appealed the ruling.
Judge Makume said case law confirmed that the right to bury fell on the heirs of the deceased in the absence of specific instructions from the deceased while alive.
“That right extends, in my view, to the right to erect a memorial tombstone in remembrance of the deceased.”
He noted that the widow was not only the interstate heir but also the executrix of the estate. She had chosen the grave site and had paid for it.
The city argued that it had acted under its by-laws. It said the widow should have asked her sister-in-law for permission, rather than rush to court.
“It is common cause that the respondent automatically became owner of the contents of the grave by virtue of her marriage in community of property to the deceased. That common law right could never be taken away from her by virtue of a municipal by-law,” the judge said.