MHINDU V MACHOKOTO & ANOR 2016 (2) ZLR 20 (H)

Flynote

Family law: " burial " right to determine place of burial " customary law c partially followed by deceased " no clear right of spouse " common sense must prevail

Headnote

The widow and the father of a deceased pastor were in dispute over the place of burial of the deceased. The widow was supported by her children and several pastors in demanding that the burial take place on a farm which they had occupied only a few months previously, and the father was supported by the rest of the extended family in claiming burial in a cemetery which would be accessible to the public.

Held, that when it comes to deciding burial rights over a deceased person, there is no single overriding factor. Neither the right of the heir or spouse in relation to burial rights, nor the right of the deceased's family, is exclusive. Where the surviving spouse is the heir, the family of the deceased must also participate in the decision, according to tradition and custom. Although the deceased was a Christian pastor and concluded a Christian marriage, there was sufficient evidence that he had also followed African custom in some aspects of his life. Where there is disagreement, common sense must be imposed by the court.

Held, further, that in this instance, burial in a public cemetery was more reasonable than burial on a farm allocated under the land reform, where there are no title deeds and no public access.