In Johannesburg City Parks & Zoo and Another v G.Z, a full bench of the Gauteng Division of the High Court of South Africa, Johannesburg, dealt with who holds the rights to erect a tombstone on a gravesite.
Background
The late husband of G.Z ("the deceased") obtained by default a divorce decree which was subsequently set aside. As such, G.Z and the deceased remained married. The deceased was then killed in a shooting incident. The family of the deceased, specifically T.M., the deceased's sister, refused G.Z the right to participate in the burial of her husband. The deceased was buried at Westpark Cemetery. Despite the attitude of the deceased's family, G.Z covered the burial costs which amounted to ZAR4 500.00, and G.Z was appointed as the executrix of the deceased's intestate estate.
In 2020, G.Z approached the officials of Johannesburg City Parks & Zoo ("the City") where she sought permission to erect a tombstone on the gravesite of the deceased. The officials informed her that she required permission from the deceased's sister to erect the tombstone. The officials explained that this was not a refusal, but rather a procedural matter based on the City of Johannesburg Cemetery & Crematoria By-Laws ("the By-Laws"). This was because G.Z was allegedly not the owner of the gravesite rights.
Prior proceedings
G.Z then launched urgent proceedings in the Johannesburg High Court against the City. She sought to be granted permission to erect a tombstone and to be recorded as having gravesite rights. She was successful and the City appealed against the court a quo's decision.
The Court's findings
The court reiterated the principle that the right to bury falls on the heirs of the deceased, in the absence of specific instructions from the deceased whilst alive. In the court's view, this extends to the right to erect a tombstone on the grave site of the deceased. G.Z was not only the intestate heir but also the executrix of the estate.
The officials of the City expressly stated that there was no refusal to grant permission and that everything was about procedure. The court found that this did not amount to administrative action. Additionally, the court found the By-Laws to be clear. Since G.Z paid for the prescribed burial fees, she acquired rights over the grave, as per the By-Laws. T.M. did not lead any evidence to contradict the fact that G.Z paid for the burial fees, the court saw this silence as consent to T.M. and G.Z being coholders of the gravesite rights.
Conclusion
The City's appeal was dismissed. The court took the view that the City's argument was based on a rigid and inflexible approach with the appeal resulting in increased expenses. In consequence, the City's attorneys were not entitled to charge any fees in relation to the appeal.
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