South African court orders Zimbabwean man buried in Cape Town

The High Court of South Africa Gauteng Division has ruled that a man at the centre of a cross-border family dispute, Collen Kumalo-Dube, must be buried in Cape Town despite attempts by relatives to repatriate his body to Zimbabwe.

In a judgment delivered by Justice Mokate Victor Noko, the court held that the wishes of the deceased and his children outweighed disputes over citizenship, surname and marital status.

The urgent application was filed by the deceased's wife and son against Kings and Queens Funeral Parlour and the deceased's brother, Johnson Mahoka Dube, after the body - also recorded under the name Collen Dube - was released from Tygerberg Hospital to the brother.

Court papers showed that Kumalo-Dube sustained burn injuries on February 26 and was transported to hospital by ambulance accompanied by his son. During the journey, the applicants said, the deceased expressed his wish to be buried in Cape Town should he die from his injuries.

He later died at Tygerberg Hospital.

The applicants argued that the deceased had lived in South Africa for many years and had made his burial wishes clear to his family.

However, the brother opposed the application, maintaining that the deceased was a Zimbabwean citizen named Collen Dube and should be buried in Zimbabwe according to family and customary arrangements. He also challenged the validity of the customary marriage between the deceased and his wife.

The court heard conflicting evidence from both sides, including photographs, affidavits and letters from Zimbabwean authorities and the Zimbabwean consulate supporting the respondents' claims that the deceased was Zimbabwean.

In response, the applicants produced documentation from South Africa's Department of Home Affairs indicating that the deceased was recognised as a South African citizen.

Justice Noko ruled that the court could not conclusively determine the citizenship or marriage disputes without oral evidence, but found that those issues were ultimately not decisive in determining burial rights.

The court noted that under South African law, burial rights generally vest in the surviving spouse and, in some circumstances, the children, adding that the traditional principle of primogeniture no longer applied.

"I am also persuaded that, in this case, the right to bury the deceased belongs to the children," Justice Noko ruled.

"Of paramount importance are the deceased's expressed wishes, which in this case were communicated to the second applicant."

The judge further rejected the suggestion that the deceased could later be exhumed and reburied in Zimbabwe, describing such a remedy as impractical and unsatisfactory.

The court found that the deceased had built his life in Cape Town, where his children reside, and that his burial wishes should therefore be respected.

Justice Noko ordered the funeral parlour and the deceased's brother to release the body to the applicants for burial in Cape Town and directed the brother to pay the legal costs of the application.