Court name
High Court of eSwatini
Case number
648 of 2011

Mahlalela v Mahlalela and Others, in re: Mahlalela v Mahlalela and Another (648 of 2011) [2011] SZHC 104 (11 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 104













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



Civ.
Case No. 648/2011







In
the matter between











KHISIMUSI
CLEMENT MAHLALELA
…...................................................Applicant



And



SANELISO
SABELO MAHLALELA
…............................................1st
Respondent



DUPS
FUNERAL PARLOUR
….....................................................2nd
Respondent



COMMISSIONER
OF POLICE

…...................................................
3rd
Respondent



In
re:



SANELISO
S. MAHLALELA
….................................................................
Applicant



vs



KHISIMUSI
CLEMENT MAHLALELA
….........................................1st
Respondent



MALUNGISA
MAHLALELA
….......................................................2nd
Respondent







CORAM:
Mamba J



FOR
APPLICANT: Ms. S. Masuku



FOR
1
st
RESPONDENT: Mr. S. Madau







JUDGMENT



11th
April, 2011











[1]
The late Duma Msimisi Mahlalela died on 16 February, 2011. Following
his death, some of his family members, including the 1
st
respondent herein who is the
deceased's brother started making the necessary arrangements for his
funeral and interment. Whilst this was going on, it became public
knowledge, and this was published in the print media circulating in
this country, that some members of the Mahlalela family, including
the applicant, who is the grandfather of the deceased and one
Malungisa Mahlalela, an uncle to the deceased, wanted the deceased to
be buried at Mkhuzweni area in the Hhohho Region, contrary to the
wishes and intentions of the 1
st
respondent who
wanted the deceased to be buried at Sigombeni area in the Manzini
Region. When one side could not yield to the demands of the other the
stage was set for a legal battle.







[2]
On 23
rd
February, 2011, the 1st
respondent filed an urgent
application against the applicant and Malungisa Mahlalela herein
seeking an order:







"restraining
and interdicting the respondents or anyone else holding title under
them from in anyway disturbing, interfering or influencing the
applicant in the preparation of the funeral and subsequent burial of
Duma Msimisi Mahlalela scheduled for the 26
th
February 2011 or any other date
that may be arranged." The application was set-down for hearing
at 9.30 in the forenoon on 24
th
February 2011 and service
thereof was made or effected on both Malungisa and the applicant on
23 February 2011. Neither of these men opposed this application.











[3]
In support of the application, the 1
st
respondent inter alia, made the
following allegations; which have not been denied or disputed by any
one:



3.1.
Both his parents died pre-deceasing him and the deceased.



3.2.
Since the death of the said parents, he and the deceased lived and
were under the care and custody of their maternal parents at Sgombeni
and have always regarded this as their permanent home.



3.3.
The relationship between the Mahlalela family and the deceased's
mother was strained such that when she died she was buried at
Sgombeni and not at Mkhuzweni where her husband is buried.



3.4.
In her last Will and Testament, the mother of the deceased willed
that she and her children, (including the deceased), should be buried
at Sgombeni.



3.5.
The first respondent wants to bury the deceased at Sgombeni.



3.6.
After the death of the deceased, a delegation, allegedly sent by the
applicant approached the deceased's mother's people at Sgombeni
requesting that the funeral and burial should be at Mkhuzweni. On
being approached on this and the publication in the print media, the
applicant denied knowledge of it, whilst Malungisa threatened to take
legal action to have the deceased buried at Mkhuzweni.















[4]
In his application aforesaid, the 1
st
respondent also made the
allegation that "..as a close surviving relative [of the
deceased] I have a clear right to determine where and how the
deceased should be buried. Besides no one else and in particular the
respondents do [sic] have the rights to determine where the deceased
should be buried as they long disowned us ... .



[5]
On 24
th
February 2011, after going
through the papers filed and hearing submissions by 1
st
respondents attorneys and there
being no opposition to the application, I granted it against
Malungisa Mahlalela only. I refused to grant an order against the
applicant in view of the insufficiency of the allegations against him
warranting such an order. The 1
st
respondent had himself stated in
his founding affidavit that the applicant had specifically
disassociated himself from what was contained in the press and what
was relayed to the 1
st
respondent's mother's people by
a group of people allegedly sent by the applicant, that the burial
should take place at Mkhuzweni.







[6]
The order referred to above was served on Malungisa Mahlalela on the
24
th
February 2011 and he apparently
brought it to the knowledge of the applicant on the same day.







[7]
The above order prompted the applicant to file this application
wherein he claims
inter
alia
, for an interim
order interdicting and restraining the 1
st
respondent or any other person
acting in concert with him from proceeding with the burial of the
deceased on the 26
th
February, 2011. He also seeks an
order declaring that he is "...the one vested with the power and
authority of determining and directing the burial of the deceased.
Like the application filed by the 1
st
respondent two days before him,
the applicant stated that his application was urgent in view of the
fact that the burial was due to take place on 26
th
February 2011. He set it down
for hearing on 25
th
February, 2011 at
3.00 in the afternoon and served it on the 1
st
respondent's
attorneys at 14.27 that day. The application is opposed.











[8]
From the above facts, it is abundantly plain that the interdict
sought by the applicant and the grounds thereof, is the same as that
sought and obtained by the 1
st
respondent. They both allege
that they are the rightful persons to determine where the deceased
should be buried and that, each to the exclusion of the other, should
be allowed to conduct the burial at their chosen sites. The applicant
alleges that, he is a staunch observer of Swazi custom and tradition.
He alleges further that Swazi law and tradition empowers him, as the
head of the Mahlalela family, to determine where the deceased should
be buried and that he has determined that this should be at Mkhuzweni
where the father of the deceased is buried. He is opposed to the
burial taking place at Sgombeni.











[9]
The question that immediately announces itself is: in view of the
applicant's stance or view herein, why did he not oppose the
application filed by the 1
st
respondent? He answers this
crucial or vital question in this manner:







"Due
to my advanced age, I could not instruct attorneys to oppose the
application and more particularly because I had not been made aware
that some other person was taking away my right to direct and
determine the deceased's burial". But he immediately states
that: "From annexure KCM2 it is stated under oath that first
Respondent intends to bury the deceased at Sigombeni area being their
maternal home which is something I am opposed to as both the first
respondent and the deceased are domiciled at Mkhuzweni area in the
District of Hhohho and all their forebears, save their mother, are
buried thereat." Applicant concedes therefore that the 1
st
respondent clearly stated in his
founding affidavit that he wants the burial of the deceased to be at
Sgombeni and that he, the applicant, is opposed to this. This is a
startling concession to make and it does not answer the question
posed above. Above all, the order sought and obtained by the 1
st
respondent was clear and
unambiguous. He wanted a free and unencumbered say on the preparation
for the funeral and the location of the burial site. The Applicant
has not said he did not understand the terms of the interdict sought.
He has not said that this was not explained to him when he was served
with the court papers. He has, again not explained how his "advanced
age" prohibited him from instructing his attorneys to oppose the
application on 23
rd
February, 2011 but a day
thereafter permitted him to instruct his attorneys to file this, his
own application.







[10]
The dispute over the burial of the deceased came into the public
domain at the latest on 21
st
February 2011 as per the annexed
newspaper article. When contacted by the 1
st
respondent, the
applicant denied his involvement with those who were advocating that
the deceased should be buried at Mkhuzweni. Even if he had not sent
this delegation to the Dlamini's, the delegation's presence and its
agenda should have been and in fact was enough notification to him
that some people, unauthorized by him, were bent on determining and
conducting the burial of the deceased. He set back and did nothing to
assert his claim or rights. Again, and this is common ground, the
deceased died on 16
th
February, 2011 and the applicant
did nothing at all in preparation for the burial, other than filing
this application. This application has been filed at the eleventh
hour. No satisfactory explanation has been forthcoming from the
applicant for this delay or in particular, his failure to oppose the
application filed by the 1
st
respondent which was served on
him. He was a liberty then, to file a counter application to the
application. This is what he should have done. He did not do so. He
erred in his failure, fatally so.







[11]
It is not in the interests of the administration of justice that
there should be multiple legal proceedings, each litigant filing his
own application, on one and the same issue. This is understandable
and excusable where a party who has a direct and substantial interest
in a matter that is the subject of the litigation that is not already
pending in court or has been concluded by the court is or was not
aware of such proceedings. Different and or multiple proceedings
between the same parties and over the same cause of action or subject
matter are undesirable. They unnecessarily clog or choke up the court
roll. It is with this in mind that, in appropriate or deserving case,
the court will order joinder of the parties or a consolidation of the
cases or that certain proceedings be struck off the roll, with an
appropriate order for costs, as the case may be. Where a litigant has
been given the chance to oppose a matter, he should do so rather than
sit back and only to file his own application on the same issue. This
is what the applicant did herein. He erred.











[12]
In view of the above insurmountable shortcomings or deficiencies in
the applicant's papers, the fact that an order has already been
competently issued by this court in favour of the 1
st
respondent on the same issue and
there being no application for the rescission of that order; and the
filing of this application at the eleventh hour by the applicant,
when virtually all the preparations for the burial have been made; it
is my considered judgment that even if the applicant had satisfied or
established all the requisites for an interim interdict, I should not
exercise my discretion in favour of granting the application. There
can be no two deferring orders on the same matter.











[13]
There is no rherit in this application and it is dismissed with
costs.











MAMBA J



Ex
tempore judgment delivered on 25 February 2011).