- A father asked the High Court to stop his daughter’s husband from burying her at his family homestead in Shaleng Village, Taung.
- The couple had separated and were involved in divorce proceedings when the woman died on 25 September 2026.
- The judge dismissed the father’s application, discharged the order stopping the burial and left the husband free to proceed with the burial at Shaleng.
The High Court in Mahikeng has cleared the way for a woman’s husband to bury her at his family homestead after her father failed to establish a clear right to stop the burial.
Judge J Reddy dismissed the father’s application, discharged an interim order that had prevented the burial from going ahead and ordered each side to pay its own costs.
The woman died on 25 September 2026. She and her husband had married in community of property on 2 December 2017. They had a daughter, born on 27 February 2014, who was 12 when her mother died.
The couple had separated, and the woman began divorce proceedings in the Regional Court in Mmabatho in 2023. Her husband opposed the divorce but admitted the marriage had broken down completely. The divorce trial had started but was postponed to 22 January 2027. No divorce decree was granted before her death.
Father challenges burial arrangements
After the woman’s death, her husband registered the death, paid the undertaker and arranged for her burial at his family homestead in Shaleng Village, Taung. Her father objected and wanted the funeral to take place at the family home in Pudumoe, with her burial at the Myra graveyard where relatives were buried.
A family meeting on 27 September failed to resolve the dispute. On 30 September, the father approached the High Court, asking for an urgent order to prevent the burial at Shaleng and to give him the right to bury his daughter at Pudumoe.
On 2 October, Judge Reddy granted an interim order stopping the burial and directed both sides to file affidavits addressing the separation and related issues.
The father argued that the marriage was “dead in all but name,” that the couple had lived apart for years and that his daughter had returned to her own family. He also said she wanted her funeral at Pudumoe and her burial at Myra.
The husband disputed abandoning his wife. He said the separation was initially due to work, that he continued to support their daughter, stayed in contact with the deceased and had given her his car.
Husband remained a legal heir
Judge Reddy found that while the spouses had lived apart for a significant time, the father had not proved there was an eight-year separation as claimed. The evidence showed the deceased had lived away from the matrimonial home from early 2020 and that the spouses had lived apart at least from July 2022 until her death.
However, the husband continued to support their daughter, making school payments and transfers described as maintenance. He also claimed to have provided the deceased with a vehicle, which the father did not dispute.
The judge found this undermined the claim that the husband had completely abandoned his responsibilities or become a stranger to the deceased. The pending divorce did not end the marriage. The woman remained legally married to her husband at the time of her death.
Judge Reddy considered the Intestate Succession Act, which decides who inherits if someone dies without a will. As the woman left behind both a husband and a child, they were her heirs. Her father was not, as a parent only inherits if the deceased leaves neither a spouse nor a child.
The husband’s position as surviving spouse and heir was important, but it did not automatically grant him the exclusive right to decide where his wife should be buried.
No reliable burial instruction
The father said his daughter wanted to be buried at Pudumoe and Myra, but he did not specify when or under what circumstances she had said this. The husband’s sister gave a different account, saying the deceased had told her during the June school holidays, in the presence of the child, that she wanted to be buried at Shaleng.
The court also heard the deceased may have left the choice to her daughter. Judge Reddy found that these competing accounts did not amount to a reliable or clear burial instruction.
“The opposing statements … do not permit a secure finding of a settled burial direction on these papers,” Judge Reddy said.
The court also considered the deceased’s decision to leave the matrimonial home and begin divorce proceedings. Judge Reddy found these were important evidence about the state of the marriage, but they did not amount to a direction that excluded her husband from her burial.
The judge also considered Setswana customs. The husband said R30,000 in bogadi had been paid and that a customary handover had taken place.
But Judge Reddy found that paying bogadi did not create an absolute right to decide the burial. The decision had to be made based on the specific circumstances, not on any compulsory customary rule.
Daughter’s interests also considered
The couple’s 12-year-old daughter had her own interest in her mother’s burial. Judge Reddy found that her being a minor did not mean that interest passed to her grandfather. The Children’s Act requires that a child who is mature enough should have the opportunity to participate in matters concerning her.
However, the judge decided not to interview the girl, as she had lost her mother only about a week before the hearing. An interview at that stage could have placed her in the middle of the family dispute while she was grieving.
Judge Reddy also found there was no evidence showing that either burial location would prevent the child from visiting her mother’s grave or maintaining a relationship with her maternal family.
The husband had said the deceased’s maternal relatives could attend the funeral. The judge said the child’s interests had to be considered, but she should not be made responsible for resolving the adult dispute.
Father fails to stop burial
Judge Reddy found that the father had raised important considerations, including the breakdown of the marriage, the pending divorce and the deceased’s return to her own family.
But these had to be weighed against the fact that the marriage still legally existed when she died, the husband’s position as an heir, his continued support for their daughter, evidence of ongoing contact, and his willingness to allow the maternal family to attend the funeral.
“Neither total abandonment nor a reliable direction entrusting burial to the applicant is established,” Judge Reddy said. The father therefore failed to establish the clear right required to stop the burial.
The ruling was not based simply on the husband being an heir. Judge Reddy considered all the circumstances, including the deceased’s wishes, family relationships, fairness, the child’s interests and cultural considerations.
The judge discharged the interim order that had stopped the burial. The husband was free to proceed with the burial he had arranged at the family homestead in Shaleng Village.
However, the judge did not declare that the husband had an exclusive right to decide on the burial against the couple’s daughter or anyone else who was not part of the case.
The application was dismissed, and each party was ordered to pay their own costs, including those reserved on 2 October.
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