Hlatshwako And Another v Makhathu And Another (41 of 2020) [2020] SZSC 31 (30 September 2020)

IN THE SUPREME COURT OF ESWATINI

HELD AT MBABANE Civil Appeal Case No: 41/2020

In the matter between:

INDVUNA GANGILE HLATSHWAKO N. O FIRST APPELLANT

KANDINDA ROYAL KRAAL SECOND APPELLANT

And

ANDREAS DINGANE MAKHATHU FIRST RESPONDENT ISAAC BHOLI MAKHATHU SECOND RESPONDENT

Neutral Citation : Indvuna Gangile Hlatshwako N. O v Andreas Dingane Makhathu and Another (41/2020) [2020] SZSC 31 (30 SEPTEMBER, 2020)

Coram : MCB MAPHALALA CJ

JP ANNANDALE JA

SJK MATSEBULA AJA

Heard : 04^th August, 2020

Delivered : 30^th September, 2020

SUMMARY:

Civil appeal – final interdict – requirements for the granting of a final interdict;

Court a quo granted a final interdict restraining and interdicting the appellants from barring the burial of the deceased in a place reserved for her at the family graveyard next to her late husband;

The appellant’s contention is that the deceased should be buried at the community graveyard pursuant to a directive issued by the Chief that all residents should be buried at the community graveyard in contemplation of possible future development in the area;

Held that the respondents had the right to bury the deceased next to her husband at the family graveyard on the basis that their homestead was not affected by the future development and that affected homesteads to be relocated had already been identified and informed;

Held further that prior to the Chief’s directive residents of the Chiefdom had the liberty to bury the deceased within their family graveyards and that the Chief’s directive related to the construction of a railway from South Africa through Eswatini to Mozambique;

Held further that nineteen family members were buried on the family graveyard and that upon the death of her husband, the deceased reserved a space for her own burial at the family graveyard next to her husband;

Held further that the deceased made a dying declaration that she wished to be buried next to her husband in the family graveyard;

Held further that the Court had discretion in determining a final interdict on the basis of the pre-requisites for the granting of the final interdict which are a clear right, injury actually committed or reasonably apprehended and the absence of similar protection by any other ordinary remedy;

Held further that in determining the right to bury the deceased the Court should be guided by what is just and fair in the circumstances of the particular matter;

Held further that the respondents have proved the requisites of a final interdict on a balance of probabilities, and, that they are entitled to the remedy sought;

Accordingly, the appeal is dismissed.

No order as to costs.

JUDGMENT

M. C. B. MAPHALALA, CJ

[1] The respondents lodged an urgent application before the Court a quo on the 19^th June, 2020 interdicting and restraining the appellants from barring the respondents in burying the deceased Minah Elizabeth Makhathu in the family gravesite. They further sought an order directing the Commissioner of Police to assist in the execution of the Court Order to be issued pursuant to this application. The Attorney General and National Commissioner of Police were cited as the third and fourth respondents respectively; however, they were omitted in the citation in respect of this appeal.

[2] The first respondent is the biological son of the deceased and the second respondent is the eldest son of the first respondent. The first respondent was born in 1940 to the deceased and his late father Kelios Makhathu. The deceased died on the 14^th June, 2020 at the age of ninety-two years and her husband died in 1999.

[3] It is common cause that the first respondent’s grandparents were buried in the family graveyard which is situated within the family yard about ten metres away from the family houses. Similarly, the first respondent’s father was buried within the family graveyard. The family graveyard has nineteen graves including graves of the deceased’s children, grandchildren and great-grandchildren. It is not disputed that upon the death and burial of her husband, the deceased reserved a space for her own burial next to the grave of her late husband. She had expressed an unequivocal wish to be buried next to her late husband when she died.

[4] It is further not disputed that the space reserved by the deceased for her own burial was observed and other family members who died subsequently were buried a distance away from the reserved space. It is apparent from the evidence that the deceased was born on the 15^th March, 1928 and that she was highly respected and regarded by her family as the matriarch of the family. It is further not disputed that during her last days she repeatedly reminded the family of her wish to be buried next to her husband.

[5] On the 16^th June, 2020 the deceased’s family led by the first respondent reported the death of the deceased to the appellants as the Traditional Authorities of the Chiefdom. The report was made to the first appellant as Indvuna of the Chiefdom, and he in turn reported the message to the Chief of kaNdinda Chiefdom Prince Lukhwabitsi II. The practice of reporting the death of a family member to the Traditional Leadership of the Chiefdom is meant to secure permission to bury the deceased within the Chiefdom. The first appellant advised the respondents’ family that deceased persons were now buried in the community gravesite in accordance with a directive issued by the second appellant. On the 17^th June, 2020 the first respondent and his family sought audience with the Chief and pleaded with him for permission to bury the deceased within the family graveyard in accordance with her wishes; however, the Chief refused and directed them to bury the deceased at the community graveyard.

[6] It is common cause that in 2015 the second appellant through the first appellant declared that all community members of KaNdinda Chiefdom would be buried at the community gravesite which had been identified. The basis for the decision was that in the event of future development in the Chiefdom there would be no graves scattered all over the community. It is common cause that the future development related to the construction of a railway from South Africa passing through the Chiefdom to Mozambique.

[7] It is not disputed that the family of the respondents are complying with the Chief’s directive to bury their deceased in the community graveyard. In 2017 and 2018 they lost two family members, and, in compliance with the Chief’s directive, they buried them in the community graveyard.

[8] The evidence of the respondents contained in their founding and supporting affidavits has not been denied that the first appellant instructed his children that upon his death they should cremate him and bury his ashes in his father’s grave and not at the community graveyard. It is common cause that the first appellant has since died and there is a great likelihood that he was buried in his family graveyard in accordance with his wishes. This disclosure shows that the Chief’s directive is discriminatory and not followed consistently by the appellants.

[9] The first respondent had this to say in his founding affidavit:¹

“I state that the directive of the first and second respondents seems to be unjust in the circumstances. To proof (i.e. prove) that the declaration is unjust, when we met the first respondent with my cousin Mbulawa Dlamini, he told us that he had already told his children that when he dies they should cremate him and bury his ashes in his father’s grave rather than be buried at the community gravesite. I am advised and verily believe that Section 233(9) of our Constitution which provides that: “In the exercise of the functions and duties of his office a Chief enforces a custom, tradition, practice or usage which is just and not discriminatory.” The burial of our late mother at the family gravesite would not cause any prejudice to the authorities in anyway whatsoever.”

[10] The first respondent’s cousin Mbulawa Simon Dlamini, a resident of KaNdinda Chiefdom deposed to a confirmatory affidavit in support of the first respondent’s founding affidavit and had this to say:²

“I wish to confirm that on the 16^th June when we reported the death of my aunt and seeking permission to bury her as per her wishes to the first respondent he told us that he was also personally not happy with this arrangement of being buried in the community gravesite hence he had already told his children that when he dies they should cremate him and bury his ashes in his father’s grave rather than be buried at the community gravesite. During one funeral of a certain Mr Simelane the headman once stated that the newly established homestead(s) have to be the ones conducting their burials in the community gravesite other than the old homestead(s) who have their gravesite within their compounds.”

[11] The evidence of the first respondent was confirmed by the second respondent who deposed to a confirmatory affidavit and had this to say:³

“I wish to confirm that the late Minah Elizabeth Makhathu has time and again reminded us that she wished to be buried next to her husband, such that she even reserved a site next to her husband’s grave. I further state that I am the eldest grandson whom my grandfather ordered that I remain within the family compound even if the other family members would establish their homes anywhere else other than at KaNdinda area. I have lived with my late grandmother ever since I was born.”

[12] The application for a final interdict before the court a quo was opposed by the appellants. In limine they argued that the High Court has no original jurisdiction to hear and determine the application on the basis that the matter related to the allocation of graveyards on Swazi Nation land. They supported their contention by quoting sections 233(8) and 233(9) of the Constitution read together with section 83(1) of the Constitution. Incidentally section 83(1) of the Constitution deals with the establishment of the office of the Regional Administrators and has no relevance to the allocation of graveyards on Swazi Nation land. Similarly sections 233(8) and (9) have no relevance to the present matter; they merely reiterate that the powers and functions of Chiefs are derived from SiSwati Law and Custom or conferred by Parliament or Ingwenyama, and that in the exercise of the functions and duties of their office, a Chief enforces a custom, tradition, practice or usage which is not discriminatory.

[13] The first appellant in his answering affidavit⁴ conceded meeting with the respondents and their family when they sought permission to bury the deceased at the family graveyard next to her late husband. He further conceded that he had personally expressed his displeasure as well with the Chief’s directive of burying residents of KaNdinda Chiefdom at the community graveyard. Similarly, he conceded having told his family not to bury him at the community graveyard when he died but to cremate him and bury his ashes at his father’s grave which is situated in his family compound.

[14] In a carefully considered judgment His Lordship Judge Maseko granted the application for the deceased to be buried in the space she had reserved in the family graveyard on the following basis: Firstly, that no prejudice would be suffered by the appellants if the application was granted owing to the fact that there are already nineteen graves in the family graveyard. Secondly, that there was no community development project that would be affected by the burial of the deceased next to her husband. It is common cause that the five homesteads and graves affected by the proposed railway development have been identified and the homestead belonging to the respondents has not been affected.

[15] The appellants were aggrieved by the judgment of the court a quo and they noted an appeal to this Court. The initial ground of appeal was that the court a quo erred and misdirected itself when interdicting and restraining the appellants from barring the burial of the deceased Minah Elizabeth Makhathu in a site other than the community gravesite.

[16] Subsequently, the appellants sought leave to file additional grounds of appeal and leave was accordingly granted by this Court. The additional grounds were the following: Firstly, the court a quo erred in holding that burying a widow next to her husband is Swazi law and custom in as much as such was not proved before Court and no expert evidence was produced. Secondly, the court a quo erred in holding that the deceased made a declaration concerning her place of burial as there is no admissible evidence about this allegation ex facie was supposed to be contained in a valid will. Thirdly, the court a quo erred in holding that a dominant factor which the respondents had to prove was the prejudice which the appellants had to suffer whereas the respondents had to prove they were entitled to the interdict. Fourthly, the court a quo erred in holding that it was necessary to file an affidavit of the first appellant as such evidence can be made by anyone who has personal knowledge of the facts, a deponent gives evidence in any capacity. Fifth, the court a quo erred in issuing a judgment which differs from the ex tempore judgment in as much as no order of costs in the ex tempore judgement and no order interdicting the respondents in the judgment. Sixth, the court a quo erred in law in exercising original jurisdiction on the matter in overruling the decision of a traditional authority instead of hearing the matter as a review of the decision of the Traditional Authority as per the dictates of sections 151 and 152 of the Constitution.

[17] In the court a quo the respondents sought and were granted a final interdict restraining the appellants from barring the burial of the deceased at the family graveyard. This matter does not deal with Siswati Customary law; it deals with a final interdict and the sole question for determination is whether the respondents have proved the existence of the requisites of a final interdict. Accordingly, the High Court had the necessary jurisdiction to hear and determine this matter in accordance with the provisions of section 151(1) of the Constitution.

[18] The Constitution provides for the jurisdiction of the High Court as follows:⁵

“151. (1) The High Court has:

(a) Unlimited original jurisdiction in civil and criminal matters as the High Court possesses at the date of commencement of this Constitution;

(b) Such appellate jurisdiction as may be prescribed by or under this Constitution or any law for the time being in force in Swaziland;

(c) Such additional revisional jurisdiction as may be prescribed by or under any law for the time being in force in Swaziland;

[19] The leading case dealing with the requisites of a final interdict is the South African Appellate Division case of Setlogelo v. Setlogelo⁶ where His Lordship Justice Innes JA, as he then was, had this to say:⁷

“The requisites for the right to claim an interdict are

well-known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

[20] The Setlogelo case was approved and adopted by the Supreme Court of Eswatini in Thokozile Dlamini v. Chief Mkhumbi Dlamini and Another⁸ where Ramodibedi CJ delivered a unanimous judgment of the Court and had this to say:⁹

“11. 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 Irrigation Farmers Association and Another, Civil Appeal Case No. 30/2000.”

[21] The deceased died intestate; however, it is not disputed that she made a dying declaration giving specific directions that she should be buried in the space she reserved next to the grave of her deceased husband. It is further not disputed that the first respondent is the biological child of the deceased and the second respondent is not only the eldest son to the first respondent but the eldest grandson who was appointed by his grandfather to reside permanently at the family homestead. Both respondents have the requisite locus standi to institute the present legal proceedings. They have the legal right to bury the deceased.

[22] The South African case of Saiid v. Schatz and Another¹⁰ has often been regarded in this country as strongly persuasive in matters dealing with the duty to attend to the burial of the deceased. The Saiid case was quoted with approval by Justice Dunn in the case of Dludlu v. Dludlu and Another¹¹ wherein Justice Moll J who presided over the Saiid case quoted with approval an article written by Professor T. W. Price in the South African Law Journal¹² entitled Legal Rights and Duties in regard to dead bodies, post mortem and dissections. At 405 of the Article the Learned Author had this to say:

“Matters affecting the disposal of a corpse are rarely subjects of litigation, with the result that there is very little modern guidance on the subject as a whole. But, applying general legal principles, it would seem reasonably clear that the primary duty of the executor, or failing him, the surviving spouse, child, parent or other near relative of the deceased in regard to his mortal remains is to dispose of them in accordance with the terms of his will, provided that this is not impossible, too expensive for the estate to bear or unlawful. It has been stated that in English law the executor is not bound to obey the terms of the will in this particular regard. Even if this proposition is correct for English law, it does not follow that it is correct for Roman-Dutch law.

Grotius specifically says that a Will besides disposing of the deceased’s property, may deal with other matters such as the guardianship of his children and directions as to his burial. It is taken for granted that the heir (or in the modern law the executor) must carry out all the terms of the Will as far as possible. It therefore follows that in our law directions in the Will as to the disposal of the body must if possible and lawful, be followed . . . .

In obeying the instructions of the deceased the Executor cannot be influenced by the wishes of the surviving spouse or other interested relative. But if the deceased has left no instructions then those wishes become paramount.”

[23] I am greatly persuaded by the judgment of Justice Ramodibedi JA as he then was, sitting in the Court of Appeal of Lesotho in the case of Ntloana and Another v. Rafiri¹³ where he dealt with the duty to attend to the burial of the deceased:

“ . . . . In my view each case must be decided on its own merits and the Court must not be bound by any inflexible rules when determining the question as to who has the right to bury. It is true the heir must always be given first preference whenever it is just to do so but there may well be cases where even the heir himself is unsuited to bury the deceased, for example, where he has not lived with the deceased for a very inordinate length of time and has actually killed the latter in circumstances repugnant to public morality such as for ritual purposes. This Court subscribes to the view that in determining the duty to bury, the Court must be guided by a sense of what is right as well as public policy.

This Courts adopts the principles laid down above and wishes to emphasise that consideration of the question of the right to bury cannot be divorced from equity and policy. A sense of what is right in each particular case should prevail. This includes the need for proper consultation with the deceased’s family members (including the person on whom the right to bury primary lies) aimed at giving deceased persons decent burials.”

[24] In Mfanyana Dlamini and Two Others v. Cetjiwe Jabulile Dlamini (nee Mdluli)¹⁴ Justice M. C. B. Maphalala JA, as he then was, delivered a unanimous judgment of the Supreme Court relating to the duty to attend to the burial of the deceased:¹⁵

“15. It is well-settled law in this jurisdiction that the duty to attend to the burial of the deceased lies with the surviving spouse in the absence of a Will providing otherwise. Where, however, the couple stays in separation, and the deceased has died interstate, in determining the right to bury the Court should be guided by what is just in the circumstances of the particular case.”

[25] The respondents have proved on a balance of probabilities that they have a clear right to bury the deceased at the space which she reserved for herself at the family graveyard on the following basis: Firstly, they have the locus standi to institute the present legal proceedings as well as to protect and enforce the wishes of the deceased to be buried next to her late husband at the family graveyard. Secondly, nineteen family members were buried in the family graveyard prior to the Chief’s directive. Thirdly, the deceased reserved a space for her burial on the family graveyard prior to the Chief’s directive to bury deceased persons in the community graveyard. Fourthly, the family graveyard is within the family compound about ten metres away from the family houses. Fifth, the family homestead has not been identified for community development. Sixth, that two family members who died subsequent to the directive by the Chief were buried in the community graveyard as a sign of respect to the Chief.

[26] In Maziya Ntombi v. Ndzimandze Thembinkosi¹⁶, the Supreme Court in a unanimous judgment approved and adopted the requisites of a final interdict as laid down in the Setlogelo case. The Court further stated that the requirement of a clear right is the most important of the three requirements of the final interdict and that the other two requirements are predicated on the presence of a clear right to the subject-matter of the dispute.¹⁷

[27] Herbstein and Van Winsen¹⁸ discusses the legal attributes of a litigant seeking a final interdict:

“The expression ‘locus standi’ is used in both its original meaning of the capacity to sue’ and in the wider meaning of an interest to sue’. At common law it is essential for a prospective litigant to have both these attributes of locus standi, or standing in law, when commencing proceeding. As stated by Devenish: ‘This requires that a litigant should be both endowed with the necessary capacity to sue, and have a legally recognized interest in the relevant action to seek relief.’

Thus at common law the applicant will have locus standi in judicio if the right on which the claim for an interdict is based is one that the applicant personally enjoys, or he has a sufficient interest in the person or persons whose rights are sought to be protected and it is impossible or impractical for those persons to approach the Court themselves.”

[28] The refusal by the appellants to allow the respondents to bury the deceased in the family graveyard constitutes a serious injury to the respondents. The respondents like other residents of the chiefdom have always been entitled to bury their dead within their family graveyards from time immemorial before the Chief’s directive to bury the dead in the community graveyard. Nineteen family members were buried on the family graveyard and the deceased had reserved a space next to her husband for her own burial, and, this was done many years before the Chief’s directive. Furthermore, the homestead of the respondents is not affected by the future development in respect of the construction of the railway from South Africa to this country.

[29] The respondents have no other alternative remedy. It is trite that the alternative remedy must be adequate in the circumstances, be ordinary and reasonable, be a legal remedy and grant similar protection to the affected litigant.¹⁹ In view of the circumstances of this case the burial of the deceased in the family graveyard is the only appropriate remedy open to this Court.

[30] Having come to the conclusion that the respondents have a clear legal right to bury the deceased on the reserved space in the family graveyard, the refusal by the appellants to have the deceased buried in the family graveyard constitutes an injury and an infringement of their rights to bury the deceased in the family graveyard. The respondents have no other adequate remedy than to bury the deceased at the space reserved for her in the family graveyard. Justice and fairness requires that the deceased should be buried in the family graveyard. The underlying purpose for burying residents in the community graveyard was to accommodate future development relating to the construction of a railway from South Africa through this country to Mozambique. Five homesteads and their graveyards were identified for relocation in preparation for the construction of the railway. The respondents’ homestead is not affected by the construction of the railway; hence, there is no legal justification for denying the respondents the right to bury the deceased in the family graveyard.

[31] It is not disputed that the deceased made a “dying declaration” before she died that she wanted to be buried in the space she reserved next to her husband’s grave. The principle of “dying declaration” is based on the Latin maxim “Nemo moriturus praesumitur mentiri,” literally translated to mean “a man will not meet his maker with a lie in his mouth”. This maxim originated from English law. The English Common Law was adopted as part of the Roman Dutch Law; and, the English Legal principles applicable to “dying declarations” became part of our law.

[32] The legal principles of a dying declaration are set out in State v. Gabatlwaelive²⁰, where the Court held that a dying declaration is a statement which may be oral or written or taken in the form of signs or gestures; and the statement does not need to be made with the deceased’s dying words or dying breath. The Court further held that a dying declaration is admissible provided that the following requirements are satisfied: First, the statement must be one, which the deceased could have repeated in Court had he or she lived. This implies that the deceased if she was alive could have been a competent witness and her evidence admissible. Secondly, the death of the deceased must be the subject-matter of the litigation. Thirdly, the statement must be made in the ‘settled, hopeless expectation of death’, meaning that death must be expected though not immediately.

[33] Generally, a dying declaration is a statement which constitute an exception to the hearsay rule. Section 233 of the Criminal Procedure and Evidence Act²¹ deals with hearsay evidence and provides the following:-

“No evidence which is in the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England.”

[34] Section 224 of the Criminal Procedure and Evidence Act²² provides the following:

“The declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case in which such declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature in England.”

[35] The Civil Evidence Act²³ also deals with hearsay evidence and provides the following:²⁴

“No evidence which is of the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature of England.”

[36] The Civil Evidence Act does not deal with dying declarations. However, it makes a general provision which could be used in all instances which are not provided in the Act.²⁵

“43. In any case not provided for in this Act, the law as to admissibility of evidence and the competency, examination and cross-examination of witnesses in force in the Supreme Court of Judicature in England shall be followed in like cases by the Courts of Swaziland.”

[37] The principal justification for the inadmissibility of hearsay evidence is that it is untrustworthy because it cannot be tested by cross-examination. Watermeyer JA in R v. Miller²⁶ said the following:

“Statements made by non-witnesses are not always hearsay. Whether or not they are hearsay depends upon the purpose for which they are tendered as evidence. If they are tendered for their testimonial value (i.e. as evidence of the truth of what they assert), they are hearsay and are excluded because their truth depends upon the credit of the asserter which can be tested only by his appearance in the witness-box. If on the other hand, they are tendered for their circumstantial value to prove something other than the truth of what is asserted, then they are admissible if what they are tendered to prove is relevant to the inquiry.”

[38] The English case of R. v. Woodcock²⁷ also deals with a dying declaration. The Court had this to say:

“The principle upon which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.”

[39] Innes CJ in R. v. Abdul²⁸ had this to say about a dying declaration:

“The rule is that three things must have occurred. The person must have been in danger of impending death; he must have realised the extent of his danger so as to have given up all hope of life; and death must have ensued.”

[40] However, in R v. Perry²⁹ the Court dealing with a dying declaration held that it was not necessary that the deceased should have expected to die immediately.

[41] Accordingly, the Court makes the following order:

1. The appeal is dismissed.

2. The judgment of the court a quo is upheld.

3. The appellants are interdicted and restrained from barring the respondents to bury the deceased Minah Elizabeth Makhathu in the family gravesite at KaNdinda Chiefdom next to her late husband.

4. No order as to costs is made, save that each party shall bear their own costs.

For the Appellants : Crown Counsel Zandile Nsimbini

For the Respondents : Attorney Machawe Dlamini