Authored By: Hunadi Sonia-Rose Legoabe
Regenesys Business School
I.Introduction
The Republic of South Africa has a prominent history of diversity; it is encompassed by the cultural and religious backgrounds of its citizens. So naturally, certain cultural and religious beliefs are embedded in our laws. However, this was not always the case; for example, the Recognition of the Customary Marriages Act came into effect in the year 2000, which regulates customary marriages and elaborates on the African ancestral beliefs in relation to marriage, divorce, and its customs, including rituals that are legally recognised. The main difference between South Africa and the Western world is that marriages and divorces are practiced differently because of the inclusivity of the various religions and cultures within the law.
Most of the Bantu-speaking population in South Africa practices African customs, which state that for a marriage to be recognised, some relevant rituals and customs must be done before, which differ from each ethnic group. After their respective customs and rituals are completed, the couple must register their marriage with a registering officer within their jurisdiction. In terms of a divorce, it can only be dissolved by the decree of divorce that is granted by the court. So, in a marriage, spouses have certain rights and responsibilities for each other, including their children.
However, this begs the question of what happens to these rights when a couple is going through a divorce, but the other passes away before they can finalise it? And what constitutes a fair and concise judgment that acknowledges African ancestral beliefs, various cultures, and religions without defying the law or the deceased’s final wishes? Although the legislature addresses regulations on exhumation and acknowledges the purpose of exhumation for ancestral and cultural beliefs, the issue becomes apparent when families are in dispute and cannot decide on the final resting place. Especially in circumstances where the legality of the marriage is questioned by relatives or if the spouses were estranged or in the process of finalising their divorce before the untimely death of one of the spouses.
This article explores exhumation and marital rights and obligations for married spouses and soon-to-be-divorced spouses. Section II explores a brief understanding of exhumation in South Africa. Section III: Comparative Perspective. Section IV Critical Analysis.
II. Brief understanding of Exhumation in South Africa
Exhumation refers to the process of removing a deceased individual’s remains and burying them elsewhere, or taking the deceased individual’s remains and disposing of them in an alternative manner. Exhumation is not merely an administrative procedure. It is a deeply symbolic and emotional process for families. Regardless of whether it was their choice or just of necessity, the process involves confronting memories, managing expectations, and making sensitive decisions. Although exhumation is not a common procedure, there are different reasons for an exhumation to be done, but the most common reasons are for
- forensic pathology investigations
- Cemetery renovations
- Conversion to cremation
- Family reunification
In what situations is the exhumation of a deceased person carried out?
- Court order: The court may grant the application for exhumation only if the immediate families are involved in the application. In cases where there is a legal investigation, a court may authorise the exhumation of a deceased person to conduct further analysis.
- Repatriations: Family members who are buried abroad can be repatriated if the family prefers to have their remains in their home country. Exhumation is the first step to this process and must follow the international health, legal, and diplomatic protocols.
What is the exhumation process?
- Consulting family and relevant parties
- Obtaining permits and permissions
- Assessing and preparing the burial location
- Excavating the burial grounds
- Remove the remains from the burial container
- Disinfect the area
- Bury the remains in a new and approved vessel
In South Africa, the Common law derives from Roman-Dutch law, and according to Roman-Dutch law, desecrating or disturbing a grave or corpse is seen as a violation and acknowledged as a crime. The common-law crimes of violating a dead body and violating a grave are dealt with in the article Criminalisation of the Violation of a Grave and the Violation of a Dead Body[1] and case law like the [2]Morwamakoto and Others v Radingwana and Others (2023), and [3]Mafube Coal Mining Proprietary Limited v Buta and Others (2024) is not directly relevant to this discussion because, although they are similar cases.
In the Republic of South Africa, Bantu-speaking people follow rituals and customs that they practice in their respective families whenever there is a death in the family. The reality is that Ancestral beliefs form the background to the legal questions surrounding exhumations in South Africa[4] “No man can outwit their ancestors.” Is a phrase largely used by African people, which contributes to the cultural belief that ancestors play a part in life on earth.
Legislation and relevant laws surrounding exhumation
The National Health Act 61 of 2003 does not address exhumation or reburials directly, but it is the foundation for the “uniform health system in the Republic.” The Minister of Health is authorised to make regulations regarding, among others, the disposal of human bodies[5]. The Regulations relating to the management of Human Remains [6] Addresses the exhumation and reburial of human remains directly. Regulation 26 of the regulations determines that permission should be granted by the local government within that jurisdiction in the location where the exhumation and reburial will take place.
The mentioned regulations require the involvement of the local government in whose jurisdiction the exhumation takes place. A notice should be taken of the by-laws of the specific municipal areas, for example, the big cities.
III. Comparative perspective on Exhumation cases
A Brief Case Analysis of Exhumation Cases
M.M.M and Others v L.N.M and Others (2023)
Take the M.M.M and Others v L.N.M and Others (2023) [10] The matter is also an exhumation case, but the main difference is that this couple had a civil marriage and not a customary one, and Civil marriages are regulated by the Marriage Act 25 of 1961 and not the Customary Marriages Act, 1998, which is more relevant to the African beliefs, customs, and rituals.
Handling this kind of matter is easier for a judgment to be made, rather than the complexities of customarily married couples and the application for exhumation for cultural and religious reasons, as it makes it more complicated if there was a divorce or separation period, which would cause family disputes.
Facts:
Dr M, whom we refer to as the deceased, passed on 16 August 2023, and the cause of death was due to natural causes. The immediate family of the deceased, who are the applicants, discussed the funeral preparations on the 17th of August 2023. Whilst this was happening, the respective families had a dispute over determining the deceased’s final resting place. The 1st Respondent, who was the husband of the deceased, decided that Ga-Marishane, Limpopo, would be her final resting place; however, the applicants contested this decision, stating that it was the alleged wish of the deceased to be buried in her hometown in Midrand, Johannesburg North.
The deceased’s family had a memorial on the 24th of August 2023 and had initially planned to adhere to the wishes of the deceased and bury her in Midrand, Johannesburg, on the 27th of August 2023; but on the day of the memorial, the 1st respondent allegedly revealed that the deceased was arranged to be buried at Ga-Marishane, Limpopo, on the 26th of August 2023. On the 25th of August 2023, a letter was written by the 1st respondent’s lawyer to the 2nd respondent, which was the funeral parlour for which the deceased was paying life cover before her death. The letter stated that the 1st respondent had the legal right to make the funeral decisions and arrangements and threatened legal action against them if they refused to release her body.
The 2nd respondent refused to release her body, and the 1st respondent brought the police to assist him. The 2nd respondent reluctantly agreed and released the body. On the 26th, the deceased was buried at Ga-Marishane, Limpopo, without the presence of the applicants.
The Applicants made an application to the court for an urgent order for exhumation and reburial because they alleged that they did not get the opportunity to say their last farewells to their loved one, and the decision the 1st respondent made to bury her in Limpopo was not her wish.
Issue in dispute
Clear right: Applicants submitted an urgent order for exhumation and reburial, stating they have a clear right to be authorised to bury the deceased because the deceased shared their wish to be buried in Midrand, Johannesburg North. They informed the 1st respondent of this wish; however, he disputed it and did not believe it because the deceased had never informed him of this wish.
Courts judgement
The court noted that it is common knowledge and accepted practice that the decision to bury a family member is a family decision that is made by the head of the family, the 1st respondent stressed that he had the right and authority to make decisions about the funeral because he was married to the deceased. They had a civil marriage, which gives him the legal right to decide on the funeral arrangements and plans unless the court has reason to believe that the 1st respondent does not have the right to. The court also found that it was not necessary to exhume and rebury the deceased because the applicants did not provide evidence to their application, and the circumstances surrounding the death of the deceased were not out of the ordinary, and the court had no reason to suspect foul play. After careful consideration, the court did not find that an exhumation or reburial was necessary and struck out the urgent application.
S.E.W and Others v Z.P.S and Others (2016)
Take the S.E.W and Others v Z.P.S and Others (2016) is also an exhumation case; the couple initiated the “lobola”[i] negotiations in 2003, preceding their civil union.[11] However, they were estranged and in the process of finalising their divorce when the death occurred. This matter is slightly more complicated because a question is brought up of whether the surviving spouse has the right to bury the deceased, or if, due to the final stage of the divorce, that right is revoked because the deceased intended to finalise the divorce?
Facts
The deceased and the 1st respondent initiated the lobola negotiations process, and the 1st respondent paid a sum of money, which in isiXhosa culture is referred to as “imvulamlomo,”[ii] which does not equate to the actual “lobola”, which was witnessed and confirmed by the applicants. Once the “imvulamlomo” was paid, the families had an introductory meeting in accordance with the isiXhosa tradition, which was not an intended agreement of the customary marriage being concluded, but to acknowledge the willingness of the deceased’s family in furthering discussions of “lobola” from that point going forward. Then, in 2005, the couple decided to get married in community of property. This matter is about an urgent application for an interdict; the relatives of the deceased alleged that they had a legal right to bury the deceased and not the 1st respondent, because they were estranged and finalising their divorce.
The 1st respondent opposed the application. After all, he believed that the right to bury was his alone, because in the isiXhosa culture, he was the head of the family. The spouses shared 2 children, of whom tragically passed away alongside the mother (deceased) in a motor vehicle collision on the 9th of January 2016. The deceased’s siblings had locus standi to bring these proceedings as they were her only surviving blood relatives. The deceased and the 1st respondent were estranged and not living together since 2014, and in that same year, the deceased decided to file for divorce.
The 1st respondent defended the divorce action but failed to file a plea. After various attempts to settle the divorce action, the deceased instructed their lawyer to enrol the matter on an unopposed roll; however, 2 days later, the tragic death occurred. The 1st respondent denied the estrangement and alleged that the reason he failed to file a plea was that negotiations were happening that led him to believe that there was a solution that would save his marriage.
The 1st respondent alleged that he was customarily married to the deceased and had done the relevant rituals and ceremonies, in accordance with isiXhosa culture. Once they got married, the deceased left her family to join his. This is shown by her surname change to his family’s surname, and even if they ever separated, the deceased would remain in his family because his ancestors recognised her as a part of his family. The applicants alleged that the “imvulamlomo” was paid, but there were no negotiations, rituals, or agreements that the families reached regarding the “lobola.”
It was stated that the 1st respondent and the deceased were never married in accordance with customary law because none of the customs and rituals were fully committed. They then decided to get married civilly due to the breakdown in the initial negotiations with their respective families.
Issue in dispute
Clear right: Applicants submitted that they have the right to bury the deceased and that the deceased shared her wish for the applicants to handle her funeral arrangements and her desire to be buried at Alice in the Eastern Cape before her death. The deceased was determined to finalise her divorce and did not show any attempt to reconcile with the 1st respondent before her death. The 1st respondent argues that no evidence can confirm the deceased’s wish, and that he was never informed about it.
Courts judgement
Although the court notes that, according to cultural beliefs, once a man and woman marry and she takes the last name of the man, the woman becomes acknowledged by his ancestors as part of his family, even if they were to separate, and African tradition states that when they die, they will be buried close to each other. According to the 1st respondents’ culture, if the deceased is not buried at the appropriate location, there would be “bad luck”. In isiXhosa culture is also seen as a bad omen and does not honour the ancestors. However, the court decided that the argument that the applicants made was satisfactory and granted them the interdict.
The court ordered that the respondents must release the body of the deceased and pay the fees for the entire process, as well as provide the applicants with all the deceased’s personal documents and information. The respondents are to pay for the cost of the application as well. The 1st applicant is to arrange the process for the deceased’s body to be interred at Alice in the Eastern Cape.
IV. Critical Analysis/ Legal Opinion
The comparative perspectives of exhumations in relation to deceased spouses and the question of the right to bury show how differently the courts make their judgments for similar cases; however, it shows that context determines the legal outcome of the case, and that although customary marriages are legally recognised in South Africa, if the rituals or customs do not follow the legal requirements of the Recognition of Customary Marriages Act 120 of 1998 will be considered void and not a valid marriage. Therefore, a spouse who has not adhered to the correct cultural customs of their spouse has no legal right to bury them because their marriage is not recognised. In the Lemaku v Simunye and Others (2022)[12] Matter, Mr N Snellenburg SC said, “The right to bury a deceased is sometimes controversial, and the courts did not always follow a similar approach in solving the problem before the court. Some courts took customary law practice into account, while others applied the Roman – Dutch law principle that the heir has the right to decide on the issue of burial of the deceased. The Transvaal courts, on the other hand, followed the principle of fairness.” So, the question is, do we prioritise the feelings of the surviving spouse and grant them the right to bury the deceased even though they were finalising their divorce? Or do we respect the deceased and their wish and will to finalise their divorce before death? The final wishes of the deceased outweigh the feelings of the surviving spouse, especially when there was a final effort (that is proven) to grant a decree of divorce.
Conclusion
Exhumation and reburial are difficult processes, and South African laws ensure that the movement of a corpse or remains to another location is for valid reasons. The court prioritises context and rights when deciding on whether to grant the application to exhume and rebury the remains. This article argues that the final wishes of the deceased outweigh the feelings of other relevant individuals, and it gives a comparable perspective on similar cases and the final judgment made by the courts. It proves that similar matters may result in different legal outcomes, given the circumstances surrounding the case.
Reference(S):
Legislation
Recognition of the Customary Marriages Act 120 of 1998 (RSA).
National Health Act 61 of 2003 (RSA).
The City of Tshwane Metropolitan Municipality Cemetery and Crematorium By-Law 2005 (RSA)
The City of Johannesburg Metropolitan Municipality Cemeteries and Crematorium By-Law 2004 (RSA)
The City of Cape Town: Cemeteries, Crematoria and Funeral Undertakers By-Law 2011
Marriage Act 25 of 1961 (RSA)
Internet sources
LexsisNexsis South Africa LAWSA, Volume 32 (2nd edition) at paragraph 221
[1] Christison and Hoctor, “Criminalisation of the Violation of a Grave and the Violation of a Dead Body” (2007 28(1) Obiter 23-43) <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjpm4LOhraUAxXeX0EAHRsmBgAQFnoECBkQAQ&url=https%3A%2F%2Fjournals.co.za%2Fdoi%2Fpdf%2F10.10520%2FEJC85219&usg=AOvVaw0hgPx3MlsR-nAuaYi12EDw&opi=89978449> accessed 10 May 2026
[2] Morwamakoto and Others v Radingwana and Others (7767/2021) [2023] ZALMPPHC 11 (14 March 2023) < https://www.saflii.org/za/cases/ZALMPPHC/2023/11.pdf > accessed 10 May 2026
[3] Mafube Coal Mining Proprietary Limited v Buta and Others (LCC40/2024) [2024] ZALCC 23 (18 July 2024)
<https://www.saflii.org/za/cases/ZALCC/2024/23.pdf> accessed 10 May 2026
[4] MKE Community Journal “Some wisdom to live by” (2023) Milwaukee Community Journal <https://communityjournal.net/some-wisdom-to-live-by/ > accessed 10 May 2026
[5] ‘National Health Act (2003) Government Gazette 26595 (Vol 469), p 90 <https://www.gov.za/sites/default/files/gcis_document/201409/a61-03.pdf > accessed 10 May 2026
[6] ‘Regulations relating to the Management of Human Remains (2013) Government Gazette 36473 (Vol 575), Government Notice R363 of 2013 < https://lawlibrary.org.za/akn/za/act/gn/2013/r363/eng@2013-05-22 >
[7] ‘The City of Tshwane Metropolitan Municipality Cemetery and Crematorium.’ (9-02-2005) Provincial Gazette Extraordinary (Vol 42), Local Authority Notice 266
[8] ‘The City of Cape Town: Cemeteries, Crematoria and Funeral Undertakers’ (12-08-2011) Provincial Gazette 6898
[9] ‘The City of Johannesburg Metropolitan Municipality Cemeteries and Crematoria (21-05-2004) Provincial Gazette Extraordinary (NO 179), Published under Notice 824
[10] M.M.M and Others v L.N.M and Others (86457/2023) [2023] ZAGPJHC 1032 (7 September 2023) <https://www.saflii.org/za/cases/ZAGPJHC/2023/1032.pdf > accessed 10 May 2026
[11] S.E.W and Others v Z.P.S and Others (360/16) [2016] ZAWCHC 49 (4 May 2016) <https://www.saflii.org/za/cases/ZAWCHC/2016/49.pdf > accessed 11 May 2026
[12] Lemaku v Simunye and Others (1887/2022) [2022] ZAFSHC 114 (25 May 2022) <https://www.saflii.org/za/cases/ZAFSHC/2022/114.pdf > accessed 12 May 2026
[ii] In isiXhosa culture, if a man wants to marry a woman, he must first pay a certain amount of money to get the woman’s family to engage in the marriage negotiations.
