Where should he /she be buried?:
Legal issues surrounding burial rights unpacked
The mainstream and social media has been awash with speculations over the actual place that the remains of Robert Gabriel Mugabe will be interred. Whilst awaiting an official announcement on the icon’s final resting place, and acknowledging that there is no dispute over the icon’s place of burial, it is essential to analyse the laws applicable over burial rights disputes.
Loosing a beloved one is a heart wrenching event. The pain is made worse when a dispute arise on whether or not the deceased is to be cremated or buried and worse when the family is fighting over where the deceased is to be buried. These disagreements usually arise when the family is still grieving and while emotions are still raw and running high.
Disputes over burial rights are not a common place in Zimbabwe as there are a few reported cases on the issue. Disputes over how to dispose of a deceased’s body arise due to numerous reasons. From the cases that we have perused, it appears that legal battles over burial rights are usually stoked by egos. Often times the family members are not united over the decision as to where a deceased is to be buried. In African customs and traditions the extended family usually usurp the role to decide on where the remains of the deceased are to be interred. In some instances, a surviving spouse is pitted against the extended family and where the parties fail to reach a compromise, they approach the court for redress. These disputes are not confined to surviving spouse and extended family relationships only
A reading of the cases cited and summarised in the case of Samukelo Mhindu (nee Ncube) vs Zacharia Muzondiwa Machokoto and Nyaradzo Funeral Services (Pvt) Ltd HH 399-16 show that disputes over burial rights can be sparked by several factors. These include the need to conform with local customs and traditions, the wishes of the surviving spouse and the extended family and the need to fulfil the deceased’s wishes in respect of the place at which he/she wants to be buried.
In the Samukelo Mhindu case, the surviving spouse approached the court claiming relief that the deceased be buried at their Chegutu farm. On the other hand, the deceased’s father was opposed to such an application citing that the deceased be buried at Glen Forest Cemetery.
The surviving spouse argued that she had exclusive rights to decide on the place that the deceased was to be buried and further argued that the deceased had expressed his will to be buried at the Chegutu farm. The deceased’s father on the other hand, placed reliance on African customary laws and traditions and argued that these traditions entitled the deceased’s family to determine the place at which the deceased’s remains were to be interred. The deceased’s father also argued that Glen Forest was convenient and accessible to both the deceased’s nuclear and broader family. He also averred that the deceased had always desired to be buried at Glen Forest where his mother had been buried and where a grave had been reserved for the deceased’s father. It was further argued that the Chegutu farm was leased from government and there was no assurance that the deceased’s family would remain on the farm in perpetuity. As such the deceased’s remains were not supposed to be buried there.
In arriving at its decision, the court considered constitutional provisions, case law from other African jurisdictions and oral arguments presented. It has to be highlighted that the constitutional provisions take precedence in the resolution of the burial rights disputes. The court then outlined the principles to be considered where there is a dispute over burial of a deceased person. When a dispute arise over burial rights, the wishes of the deceased, customs, traditions and cultural practices of the deceased’s family, the wishes of the surviving spouse and the wishes of the heir are taken into account. These factors should be cumulatively considered and are not exhaustive as the court ought to strike a balance between the interests of the conflicting parties. Whilst the surviving spouse is accorded a weightier consideration, regard also has to be given to the desires of the broader family. Further, the deceased’s wishes are taken into consideration albeit not binding. They are only considered in so far as it is practicable to execute them. In simple terms, if a person expresses how they are to be buried, the family is not bound to follow the request.
“Contrary to common belief, the wishes (on disposal of remains) contained in a Will are not legally binding on the testator’s executor or enforceable at law.”
Contrary to common belief, the wishes (on disposal of remains) contained in a Will are not legally binding on the testator’s executor or enforceable at law. They are a mere guideline to the executor and the family and are only morally binding. Despite the non-binding nature of expression of one’s wishes in a Will, it is prudent for one to express his or her own wish as regards burial as this might minimise conflict upon demise.
In the matter of Eva Zulu (Nee Nkomo) and 2 Others v Margaret Nkomo (nee Tshuma) and Another HB 124/19, the court granted an order for the cremation of the deceased’s remains. A dispute arose between the Applicants (deceased’s relatives) and the 1st Respondent over the manner in which the deceased’s remains were to be disposed of. The surviving spouse moved for the body’s cremation in line with the deceased’s wishes. On the other hand the Applicant claimed relief for the burial of the deceased’s body. The court was satisfied ,on evidence adduced by the surviving spouse, that the deceased desired his body to be cremated upon his death. The deceased had communicated his wishes to his wife, children and brother in law. Deceased further obtained a quotation about the costs of cremation and further ascertained if his policy would cover the costs of cremation. The court discarded the broader family’s argument that cremation was contrary to cultural rites and traditions of their family. No evidence was adduced to outline the practices and traditions that were observed in the Applicants’ family and as such the court was not swayed in favour of the Applicants. The estrangement between the deceased and the Applicants also weighed in favour of the granting of the order for the deceased’s cremation. The honourable judge distinguished this case from the Samukelo Mhindu case and made a decision based on the application of the legal principles applicable to the case before him.
In conclusion, it is clear that burial rights disputes are driven by personal interests, grief and differences in values and belief systems. The courts have a final say in instances where the parties are divided over place of burial or mode of disposal of the deceased’s remains. No principle is considered in isolation in the determination of burial rights disputes. It is a judicial exercise requiring an evaluation of various principles. These principles are weighed against each other to arrive at an informed decision as the right to burial of a deceased person is determined by legal, ethical and practical considerations. Above all, each case will depend on its circumstances. Asante sana.