Automated Summary
Key Facts
The High Court of Eswatini granted an interdict to the Makhathu family allowing burial of their deceased mother next to her husband's grave per SiSwati custom. The family's graveyard has 19 existing graves with reserved space for her, and no current community development projects (e.g., railway line) affect their homestead. The family previously complied with community graveyard directives in 2017 and 2018, demonstrating loyalty to the Chief's authority.
Issues
- The court evaluated whether the Applicants met the legal prerequisites for an interdict: (1) a clear right to bury the deceased next to her husband based on Swati custom, (2) injury caused by the refusal to honor the deceased's wishes, and (3) absence of alternative remedies. The judgment confirms these criteria were satisfied.
- The court analyzed if allowing the burial in the family graveyard would prejudice the kaNdinda community's development, particularly the South Africa-Mozambique railway project. It concluded no current projects affect the Makhathu homestead, and the family has previously complied with relocation directives for community development.
- The judgment highlighted procedural flaws in the 1st Respondent's affidavit, including failure to clarify his authority as Indvuna of the kaNdinda Royal Kraal, absence of a confirmatory affidavit from the Chief, and misidentification of the Second Respondent. This undermined his standing to oppose the interdict.
Holdings
- The Applicants satisfied the prerequisites for an interdict by establishing a clear right to bury the deceased next to her husband, demonstrating injury from her death, and showing no alternative remedy exists. The court emphasized the importance of respecting the deceased's wishes in accordance with SiSwati customs.
- The burial of the deceased in the family graveyard would not hinder community development projects, as the Makhathu homestead is not currently earmarked for such projects. The court noted that the community graveyard already has 19 graves, and adding one more would cause minimal impact.
- The 1st Respondent's affidavit was found irregular due to incorrect identification of the Chief and failure to establish his authority as Indvuna. The court emphasized the need for proper procedural descriptions of official roles in affidavits.
- The Makhathu family demonstrated loyalty to the Chief by burying two of their brothers in the community graveyard in 2017 and 2018, aligning with the Chief's directives. This compliance supports the court's view that the family would not resist future relocations.
- The court granted the interdict, concluding that the 1st and 2nd Respondents would suffer no prejudice from the burial. The ruling was based on the family's compliance history and the lack of evidence for alleged community disruption.
Remedies
The court granted an interdict allowing the Applicants to bury their deceased mother next to her husband's grave in the family graveyard, as per her wishes and SiSwati customary law. The order was issued in response to the Applicants' motion prayers dated 19th June 2020, which sought urgent relief and procedural dispensations. The interdict was deemed justified based on the deceased's prior reservation of burial space and the absence of prejudice to community development projects.
Legal Principles
- The court applied the prerequisites for granting an interdict (clear right, injury actually committed or reasonably apprehended, and absence of similar protection by another remedy), citing THOKOZILE DLAMINI v CHIEF MKHUMBI DLAMINI (2010) and V.I.F LIMITED v VUVULANE.
- The judgment recognizes and applies SiSwati customary law regarding burial practices, specifically the tradition of burying spouses together in a family graveyard, as demonstrated by the deceased's lifetime declaration and the Applicants' adherence to this custom.
Precedent Name
- THOKOZILE DLAMINI v CHIEF MKHUMBI DLAMINI & ANOTHER
- SETLOGELO v SETLOGELO
Cited Statute
Constitution of the Kingdom of Eswatini Act No. 001/2005
Judge Name
N.M. Maseko
Passage Text
- Now, following the celebrated case of SETLOGELO v SETLOGELO 1914 AD 221 at 227, it is well established that the pre-requisites for an interdict are a clear right, injury actually committed or reasonably apprehended and the absence of similar protection by another ordinary remedy. See also V.I.F LIMITED v VUVULANE
- The evidence adduced before Court by the Applicants is more credible than the evidence adduced by the 1st Respondent.
- The interdict sought by the Applicants is not in any way a sign of disrespect to the Chief and Royal Kraal of kaNdinda and should also not be perceived by the 1st Respondent as sowing seeds of division amongst members of the community in general. All what is required is a reasonable and justifiable narrowing down of the SiSwati customary practice and tradition, that a wife is buried next to her husband.