A judge turned down an urgent application by a father to have the body of his son exhumed and buried at his homestead, after the mother of the deceased had already buried him at her home.
The application before the Mthatha High Court in the Eastern Cape, launched by the father, was heard a few months after the son had already been buried.
The father, in asking for an order allowing the body to be exhumed and reburied, wanted the mother of the deceased to be saddled with these costs.
But Acting Judge N Cengani-Mbakaza said the body of the deceased should be left in peace and added that it is best for all to leave the deceased where he is now buried.
He was buried at his maternal home in January.
The father asked the court to urgently hear the matter as his son's spirit was wandering around without being accepted by his ancestors into the spiritual realm. He said that if the matter lingered on, by the time the matter it is heard, his spirit will have long been lost.
In his bid for an urgent hearing, the father also argued that if the matter is delayed, there is a possibility that the deceased’s body will decompose, making it impossible for him to be recognised by his ancestors.
The court heard that the delay in the exhumation of the body had caused his family great embarrassment and emotional turmoil. The applicant said that after the death of the deceased, there was an agreement that the deceased’s body would be buried at his home and the funeral ceremony would be held at his maternal home.
However, the funeral parlour released the body to the mother, who went ahead with the funeral.
The judge remarked that this dispute extends beyond legal issues. “It is a case that is deeply rooted in family tensions. Both the applicant and the first respondent passionately protect their social and cultural beliefs, a factor that I must swiftly consider,” he said.
The parents had four children, but they parted ways in 1995. Subsequently, the applicant married another woman and registered their marriage at Home Affairs.
He argued that his son’s body ought to have been buried at his home because he and the mother of the deceased were engaged in a customary marriage. According to him, the fact that his son’s initiation ceremony was performed at his paternal home also demonstrated his wishes to be buried there.
The respondent said they were never married and they only occasionally cohabitated.
She said over the years she was the one who single-handedly raised her children without any financial or emotional support from the applicant.
He was invited to her family home to discuss the arrangements, but he never pitched.
It is said that he never participated because he felt disrespected due to being invited to attend a meeting at the deceased’s maternal home. But the judge said it was about the applicant’s ego, rather than a genuine interest in ensuring that the deceased received a dignified funeral.
In turning down the application, the judge found that the evidence was clear that there was never a customary union between the mother and the father.
“It would be illogical and unreasonable to exhume the deceased’s body on the basis of the applicant’s personal wishes in the absence of credible evidence displaying the deceased’s actual wishes,” the judge said.
He further dismissed the father’s argument that the deceased would be unrecognised by his maternal ancestors in death, as being illogical.
“There is no reasonable basis to conclude that his spirit would be wandering,” the judge said.