Pretoria - A woman who claimed that she was the first customary wife of a now dead man failed for the second time in her legal bid to have a say as to where her “husband” should be buried.
Malepono Morwamakoto turned to the high court, sitting in Polokwane, for an order forcing the woman who claimed she was the true wife, as well as the funeral parlour involved in burying him in 2021, to exhume the body of Frans Mfana Radingwana.
He was buried at the Legolaneng cemetery, but Morwamakoto wanted him to be reburied at the local Ga-Mampuru cemetery in the Sekhukhune District.
She told the court that she was bringing the application on behalf of herself and with the blessing of her late husband’s children.
Following the death of the man in January 2021, he was buried by Martha Radingwana, who claimed to be the true wife.
Morwamakoto refutes that she was lawfully married to the dead man, while Radingwana in turn denied that the applicant was legally married to him.
To make matters even more complicated, it was alleged that the dead man was married to at least four women during his lifetime. The third wife was cited as a respondent in this application, but she had nothing to do with the burial.
The fourth wife did not partake in the proceedings.
Morwamakoto, meanwhile, said as head and first wife, she was entitled to choose where the man should be buried.
At the time of his death, she turned to the court for an urgent application to interdict Radingwana and the funeral parlour which handled the funeral from burying him. That application was, however, not successful.
She told the court that as first customary wife, she was the true widow of the deceased. They were married by customary union in March 1972 and never separated.
Morwamakoto also submitted a letter written by the tribal council to the court as “ proof” of her alleged marriage. However, when it came to the burial, she was not consulted and did not attend the funeral.
Acting Judge RP Mdhuli said Morwamakoto failed to prove she was married to the deceased in terms of customary law. Thus, she did not have the legal standing to ask for his body to be exhumed.
While she did issue a letter from the tribal authority to the effect that they were married, this was her only “proof”.
She did not call any family members to testify about the alleged marriage, nor did she ask the court to rule that this marriage was valid.
The judge said while the failure to register a customary marriage does not affect the validity of that marriage, there should have been evidence before him, apart from the letter by the tribal authority, that there was actually a marriage.
He pointed out that Morwamakoto also never bothered to register her marriage before or after the death of the deceased, which is an option or service available to her if she wanted to persist with her claim of being the first wife.
“This would have assisted her cause of action greatly,” the judge said.
He agreed with her counsel that customary practices evolve and develop to meet the changing needs, especially as she claimed she married the deceased 50 years ago.
“However, one thing that has not evolved since then is the involvement of families of the parties to the customary marriage who can bear testimony to the existence or lack thereof among others.”
The judge said in this case, there was no evidence from any family members in this regard.
Judge Mdhuli said the conduct of the applicants herein was disturbing, given the nature of the relief sought (exhuming of the body).
“Common sense dictates that losing a loved one, a provider like in this case, can be difficult for concerned families. I would like to believe that healing was reckoning for all concerned. Unfortunately, this is an emotive case. Matters could and should have been handled differently.”
The judge added that courts were to be the last forum to resolve disputes, especially those of this nature. He expressed the hope that the parties would find each other outside of the court.