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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

Reportable:                                                  YES / NO

Circulate to Judges:                                     YES / NO

Circulate to Magistrates:                             YES / NO

Circulate to Regional Magistrates:              YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

 

                                                                                  Case no:                            54/2018

                                                                                                       Date heard:             18 MAY 2020

                                                                                                       Date delivered:       22 MAY 2020

In the matter between:

 

REKATHUSA FUNERAL PARLOUR                                         Applicant / 2^nd Respondent a quo

 

And

 

MPHIKI, MMACOWE MARTHA                                               1^st Respondent / Applicant a quo

MPHIKI, KEROTSE LILLIAN                                           2^nd Respondent / 1^st Respondent a quo

 

Coram: Olivier J et Mamosebo J et Nxumalo AJ

 

 

FULL BENCH APPEAL

                                                                        

OLIVIER J

 

[1.]         This appeal is basically the result of a dispute that arose between the first respondent, Mrs M M Mphiki, and Mrs K L Mphiki, the second respondent, when the deceased, Mr M J Mphiki, passed away on 1 January 2018.  His funeral was scheduled to take place on 6 January 2018, at the home of the second respondent.  Both respondents claimed to have been married to the deceased and to have the right to have the deceased buried.

[2.]         On the day of the deceased’s passing the second respondent was paid a visit by the children and sister of the first respondent, with a request to let the first respondent have the deceased buried at the Itireleng cemetery.  The request was refused, and the first respondent then approached Adv. WAF Strydom, who she referred to in her affidavits as her counsel, legal representative and legal adviser, to “make an application”.

[3.]         On 5 January 2018 the first respondent lodged an application in the Magistrates’ Court, citing as respondents the second respondent and also the appellant, Rekathusa Funeral Parlour, where the body of the deceased was being held.  She applied for an interdict against the removal of the body from the premises of the appellant and for an order that the body be released to her for burial at the Itireleng cemetery.  The Magistrate refused the application on the ground of a lack of jurisdiction.

[4.]         That same day the first respondent and her children then went to the premises of the appellant.  They were accompanied by Mr Strydom.  There they came across the second respondent and her relatives.   Attempts to settle the dispute amicably failed, despite mediation by a certain Mr Bloem.  During those negotiations Mr Bubbles Dada and Ms M E S Dada of the appellant were present. 

[5.]         When the dispute could not be settled Mr Strydom approached Mr S J L Hoff, who was also a member of the appellant close corporation, but who had not been present during the settlement negotiations.  Mr Strydom requested Mr Hoff to agree that the body of the deceased would not be released until the dispute between the two respondents had been resolved by this court.

[6.]         Whether or not Mr Hoff acceded to that request, or created the impression that he did, are issues in dispute, to which I will revert.  It is not in dispute, however, that the second respondent was present during that discussion.

[7.]         On the very same day, 5 January 2018, the second respondent furnished Mr Hoff with a written instruction to proceed with the funeral. The contents of the instruction will be reverted to in due course.  The body of the deceased was then released to the second respondent and he was buried on 6 January 2018. 

[8.]         The first respondent then approached this court, again citing the second respondent and the appellant as respondents.  She claimed orders declaring her to have been the deceased’s lawful wife and declaring the marriage to the second respondent to have been unlawful, and she claimed an order that the body of the deceased be exhumed.

[9.]          In paragraph b) of the notice of motion she claimed an order that the appellant pay the expenses of the exhumation, and of the reburial of the deceased at the Itireleng cemetery.

[10.]       On 24 May 2019 the court a quo granted the declaratory orders, and also ordered the appellant to bear the expenses of the exhumation and the reburial.  The appellant was also ordered to pay the costs of the application.  No order, even as to costs, was made against the first respondent.

[11.]         On 20 September 2019 the court a quo granted the appellant leave to appeal against the order that it had to pay the expenses of the exhumation and the reburial.  It was found that there was no merit in the grounds of appeal against the costs order itself, but if the appeal is successful as regards the order regarding the expenses of the exhumation and the reburial, the costs order in the application would of course have to be revisited[1].

[12.]      Although the application for leave to appeal was opposed by the first respondent, there is at present no opposition to this appeal.  No heads of argument were filed on behalf of the first respondent and there is no appearance on her behalf today. 

[13.]       It is clear that the appellant had been made aware of the dispute between the respondents.  At the very latest the existence of the dispute would have become clear to the appellant’s representatives during the events of 5 January 2018.  In my view it can also be accepted that they knew that both the respondents claimed to have been legally married to the deceased, and that both respondents claimed the right to have the deceased buried.

[14.]      This does not, however and as the first respondent only claimed in reply, mean that any of the representatives of the appellant would have known what the correct legal position was.  The fact is that both respondents had marriage certificates evidencing their marriages to the deceased, and that the deceased had apparently managed to achieve this deception by using different dates of birth. 

[15.]       There is no evidence that any of the representatives of the appellant had the legal knowledge to know what the legal position and the result of all of this was, or that any of them was ever advised in this regard.

[16.]       The finding of the court a quo that the appellant was responsible for the expenses is based on the evidence about the conversation between Mr Strydom and Mr Hoff, and on the evidence about the written instruction.

[17.]       I will firstly deal with the conversation between Mr Strydom and Mr Hoff, with whether it had led to an agreement or had created the impression that the appellant would not release the body before the dispute was settled, and with whether the appellant could be held liable for the expenses of the exhumation and the reburial on the basis of what had transpired there.

[18.]       The case made out in the founding affidavit in this regard was that, when Mr Strydom made the request not to release the body, Mr Hoff was “willing” to do so, but that the second respondent, however, “was not cooperative in this regard”, and the first respondent stated that she was left “under the impression” that the appellant would not in the meantime release the body of the deceased.  It is inconceivable that the first respondent, could in those circumstances, have ended up being under the “impression” that the appellant would, despite the attitude of what he clearly regarded to be his client, comply with the request.

[19.]      The version of the appellant was indeed that Mr Hoff’s response to the request was to tell Mr Strydom that he “did not have a problem with his request”, but that it would depend on the second respondent and that he would have to discuss it with her first.  According to Mr Hoff he did then discuss the request with the second respondent, and she refused to agree to it.

[20.]       The version in the founding affidavit left no room for Mr Hoff having expressed the qualification that it would depend on the second respondent.  There was therefore a clear dispute about the conversation between Mr Strydom and Mr Hoff, and because the application was for final relief, the version of the appellant should have been accepted[2].  There was certainly nothing far-fetched or untenable about the version of the appellant.  The court a quo, however, found that Mr Hoff had “conceded” to the request and had agreed not to release the body, which finding was irreconcilable with Mr Hoff’s version, and in fact also difficult to reconcile with the version of the first respondent herself. 

[21.]       No affidavit by Mr Strydom was furnished, despite his somewhat unusual level of involvement in the events as an advocate. 

[22.]       On the face of it the court a quo also disregarded the fact that the first respondent did not in her replying affidavit (to the answering affidavit of the appellant) dispute Mr Hoff’s version in this regard. 

[23.]        This brings me to the written instruction of the second respondent to the appellant.  It was quoted in full in the judgment of the court a quo and reads as follows:

 

“I, Kerotse Lillian Mphiki, ID Number: [….], hereto referred to as the legal wife to Modisakgosi John Mphiki, hereby as a bona fide Policy Holder of Rekathusa, in which the Husband is the Policy Holder.

 

I now have made all necessary arrangements for the funeral, set for tomorrow the 6^th January 2018.

 

I hereby instruct that Rekathusa carries the funeral forward as planned, as there stand nothing prohibiting me to bury my husband.

 

Should there be any legal challenge, I exonerate Rekathusa from any liability.

 

Regards

Kerotse Lillian Mphiki

05-01-2018”

 

[24.]              The court a quo found, in the first place, that Mr Hoff’s statement that he had acted on this instruction, was a “clear contradiction” of the second respondent’s statement that the appellant’s Mr Bubbles Dada released the body to her “due to the fact that he had known (her) for years as the only lawful wife of the deceased and as the one who had for many years been paying for the funeral of the deceased”, presumably referring to the payment of premiums on the policy.

 

[25.]              I can, with respect, see nothing contradictory in this.  In her replying affidavit (to the second respondent’s answering affidavit) the first respondent simply denied the allegation by the second respondent regarding Mr Dada’s prior knowledge of her marriage to the deceased and regarding her payments.  The first respondent did not, apart from claiming to be “confident that this policy was paid by the deceased”, offer any version of her own on this aspect.  On the papers there is no indication at all that Mr Dada had not known the second respondent before, that he had not, just like everyone else, been labouring under the impression that the second respondent was the legal wife of the deceased or that the second respondent did not in fact make the payments as alleged.  There is therefore not really a genuine factual dispute about this particular statement by the second respondent, or about the existence of the written instruction, and there is no reason why Mr Dada could not, while indeed holding the written instruction, have held the belief alluded to by the second respondent.

 

[26.]              The court a quo also found that the statement by the second respondent, in the written instruction, that she was the “legal wife” of the deceased, should have alerted Mr Dada “that there was something wrong with the legality of that marriage”.  This finding is, with respect, difficult to understand.  What the second respondent said in the instruction about her being the legal wife of the deceased, is exactly the same as what she had said during the failed negotiations with Mr Strydom. 

 

[27.]       The court a quo also found that the second respondent had stated in the instruction that “she was the policy holder”, and the court a quo found that Mr Dada had known this to be incorrect, because the “lawful policy holder” was in fact the deceased.

[28.]       This finding seems to somehow attribute knowledge to both Mr Dada and the second respondent herself about what the term “policy holder” actually meant from a legal point of view.  In any event, this finding is an over-simplification of what was actually stated in the instruction in this regard.  The second respondent in fact stated that she was the “bona fide Policy Holder of Rekathusa, in which the husband is the Policy Holder”.  This statement recognised the deceased as the policy holder, and made it clear, in my view, that the second respondent regarded herself as the bona fide holder in her capacity as the lawful wife of the deceased, after his passing away.  There is no reason why Mr Dada, a layman in law, would not also have seen it like that.

[29.]       The court a quo blamed both the appellant and the second respondent for not disclosing a copy of the policy in their papers.  I respectfully disagree.  The appellant had no duty to provide a copy of the policy to the court.  It did not rely on the provisions of the policy in its opposition of the application, or as justification for releasing the body. 

[30.]       Moreover, the policy was mentioned in the answering papers and the first respondent never availed herself of the provisions of Uniform Rule 35(12) to request discovery of the policy.

31.]         Most telling of all, however, as regards the mindset of the appellant’s representatives when releasing the body of the deceased to the second respondent, is the following statement that the first respondent herself made in her replying affidavit (to the appellant’s answering affidavit), and to which no mention at all was made in the judgment of the court a quo:

“It is my respectful submission that (the appellant) erroneously handed over the body … under the belief that (the second respondent) was the legal wife and the legal policy holder of the funeral.”[3]

 

[32.]       This statement fits in with what the appellant’s version is as regards why it released the body to the second respondent.

[33.]       The court a quo apparently accepted the first respondent’s allegation that Mr Hoff had remarked that the appellant had also on a previous occasion been involved in a similar dispute and that the appellant then had to pay the expenses of the exhumation and reburial of that body, and the court a quo found that under those circumstances the appellant had accepted the risk of costs when it released the body of the deceased in this matter.

[34.]        This allegation was only made in the first respondent’s replying affidavit (to the answering affidavit of the appellant).  Insofar as such a remark might have been indicative of an element of recklessness on the part of the appellant, this allegation should of course have been made in the founding affidavit, as part of the case of the first respondent[4].  Not only was it not, but what was said in the founding affidavit as regards the attempt by Mr Strydom after the failed negotiations, was in any event clearly inconsistent with this allegation in the replying affidavit.  In the founding affidavit the version of the first respondent was that it was in fact Mr Bubbles Dada whom Mr Strydom had approached and had made the request to.  In fact, she also said this in her replying affidavit to the second respondent’s answering affidavit.  That version left no room for any remark at all by MR Hoff.

[35.]       The first respondent never claimed to have been personally present during that conversation. 

[36.]       It was, with respect, not equitable to hold the appellant responsible for the expenses of the exhumation and reburial on the basis of an allegation in respect of which the first respondent had contradicted herself and which Mr Hoff was denied the opportunity of responding to. 

[37.]       There clearly was no contractual basis for holding the appellant responsible for the expenses. 

[38.]       In view of what I have said before, there was also in my view no delictual basis for that finding.  The first respondent did not show that the release of the body had in the circumstances been wrongful or negligent.

[39.]       The version of the first respondent is that Mr Strydom’s request was that the body not be released until this court made a ruling.  Mr Hoff said that the request was that they wait until the “dispute was put to rest”.  What is clear, however, is that Mr Hoff was not even given any timeline.  There is no evidence that he was told when the court would be approached.  On the papers the representatives of the appellant would not have had any idea of how long the wishes of their client, the second respondent, should be placed on hold.

[40.]       On the first respondent’s own version the representatives of the appellant would have known that the previous court application had already failed. 

[41.]       In the circumstances the release of the body would not, in my view, have been wrongful in the eyes of the community, certainly not to the extent that it should attract liability for damages.

[42.]       Even if a delictual basis for liability had been shown, the order that the appellant should pay the expenses of the exhumation and reburial would, as it reads now, in my respectful view have been wrong.  The first respondent made no attempt at all to make out a case as to what the amount of those expenses could be.  The particular prayer in the notice of motion was not qualified, for example, by the word “reasonable”, and as the order reads now it is open-ended and would not place any restriction on the expenses.

[43.]       It follows that I am of the view that the application for the order in paragraph d) of the notice of motion against the appellant should have been dismissed.

[44.]       This brings me to the issue of costs.  The appellant’s heads of argument were filed with the attorneys of the first respondent, and she would in this way have been made aware of the fact that, in the event of a successful challenge of the order in respect of the expenses, the appellant was also going to challenge the costs order that was made against it as a result of that order being granted.

[45.]       It is trite that costs would normally follow the result.  It must be kept in mind, however, that the last part of the written instruction referred to would have made it clear to the appellant’s representatives that, at the time when the instruction was given to the appellant, there was still a dispute about who the body of the deceased should be released to.  The second respondent had in the written application stated that, in the event of a legal challenge, she would exonerate the appellant, by which she presumably meant that she would indemnify the appellant.

[46.]       Furthermore, the first respondent never sought a costs order against the appellant in the notice of motion.  It was only in the heads of argument in the application, and once the appellant had already opposed the application for the relief sought against it in the notice of motion, that it was indicated that a costs order would be sought against the appellant.

[47.]       In the circumstances I am of the view that the fair result would have been if, as was done in respect of the second respondent, the first respondent and the appellant was left to carry their own legal costs in the application.  Mr Hitge, counsel for the appellant, indicated that this would be acceptable.  The second respondent was represented at the trial on a pro bono basis. 

[48.]       There is, however, no reason why the costs of the appeal, which would include the costs of the application for leave to appeal, should not follow the result. However, the first respondent opposed only the application for leave to appeal, but not the appeal, and therefore the costs of the appeal should be limited to unopposed costs.  This was conceded by Mr Hitge.

[49.]       In the premises the following orders are made:

 

1.           THE APPEAL SUCCEEDS AND PARAGRAPH 2 OF THE ORDER OF 24 MAY 2019 IS SUBSTITUTED BY THE FOLLOWING ORDER:

“THE APPLICATION AGAINST THE SECOND RESPONDENT, REKATHUSA FUNERAL PARLOUR, FOR THE RELIEF IN PARAGRAPH d) OF THE NOTICE OF MOTION DATED 11 JANUARY 2018, IS DISMISSED.”

 

2.           PARAGRAPH 5 OF THE ORDER OF 24 MAY 2019 IS SUBSTITUTED WITH THE FOLLOWING ORDER:

“NO ORDER AS TO COSTS IS MADE AGAINST EITHER THE APPLICANT OR THE SECOND RESPONDENT AND THEY WILL EACH BEAR THEIR OWN LEGAL COSTS.”

 

3.           THE FIRST RESPONDENT IS ORDERED TO PAY THE COSTS OF THE APPLICATION FOR LEAVE TO APPEAL, AS WELL AS THE UNOPPOSED COSTS OF THE APPEAL.

 

 

OLIVIER J

NORTHERN CAPE DIVISION

 

 

I concur.

 

 

MAMOSEBO J

NORTHERN CAPE DIVISION

 

 

I concur.

 

 

NXUMALO AJ

NORTHERN CAPE DIVISION

 

           

For the applicant:                ADV. M G HITGE                                                 (oio Duncan & Rothman Inc.)   No appearance for the first and second respondents.

 

 

 

 

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