Justice Pisirayi Kwenda has delivered the judgment he had reserved in the case in which Moana Mitchell Amuli‘s mother Yolanda Kuvaoga was seeking an interdict to stop the deceased’s father from burying her at Warren Hills Cemetery.
In the ruling Justice Kwenda against Moana’s mother’s application and upheld the burial order that was issued by the registrar’s office which states that Moana will be buried at Warren Hills Cemetary.
This was revealed by a thread by H Metro on Twitter which stated that the judge read his judgment and said he didn’t find an legal basis for cancelling the burial order.
According to H Metro, the judge delivered the following ruling:
Applicant filed the urgent chamber applicant seeking an interdict. Applicant is the biological mother and the first respondent is the biological father. Second respondent is the registrar of deaths and births.
On Nov 18 2020 issued a burial order and the applicant approached this court seeking to have the burial order set aside, that the registrar issue a second order to have the deceased buried at Zororo and she be in charge of the burial proceedings
She told the court that she was customarily married to Amuli and he unilaterally acquired the burial order to exclude her and her relatives from the burial proceedings by burying her according to the Muslim rights.
She feels she’ll be excluded from the burial rites which is discriminatory against her & said the deceased was remote from the Muslim religion as seen by her circular life. She also said deceased was popular and its unfair to exclude people who knew her personally and followed her.
She also said the first respondent hadn’t seen the deceased in over the year and that he reverted from their initial agreement to have the deceased buried according to Christian rights to allow her followers and fans to be part of the proceedings Application was opposed by the first respondent Amuli, he accepted that a dignified burial must be accorded to the deceased. He argued that a court cannot interdict a lawful document.
He argued that the deceased was a Muslim and he raised her in the religion from 1994-2013 without the help of the mother and the fact that he hadn’t seen her for over the year changed the fact that he was the father. He had the privilege to choose a religion for her and she hadn’t renounced the religion at the time of her death. He submitted that she would partake alcohol and parties but that doesn’t mean she had relinquished the religion. She never converted to Christianity
He also said the parties agreed that they would bury their daughter at Warren Hills but pass through applicant’s place briefly before proceeding to the burial place. He said Muslim Faith doesn’t bar women from participating in burial rites and that women play key roles in dressing and clothing the body. So no one will be left out as claimed by the applicant. At the hearing I asked the applicant to set the material facts she relied on as well as the cause of action and the law relied on
her application fell short on that aspect the application seemed to lean on customary law sometimes in general law.
With regards to civil disputes are at par but they differ and very often are in conflict. When the conduct arises, the applicant must choose one to support their application. In the courts view burial rites differ depending on beliefs and culture etc. I called them to the stand because I felt the written applications were inadequate. I’ll summarize their evidence, applicant said Amuli’s beliefs weren’t supposed to apply over their child’s burial because he didn’t pay roora and the observance of Islam would not allow mourners to drink beer and eat pork.
She also said her daughter was living a circular life and the people she would party and drink with had to be present at the funeral. She said after collecting the burial order Amuli changed and said the body would now spend the night at the mosque which was in contrary of what they had agreed on and that was reason for filing the application. She said he wants to bury her daughter in a special section for Muslims and that would result in her being denied access to the grave
She said the body was burnt beyond recognition and there was no need to wash it. Respondent said the applicants fears are ill conceived because if applicants relatives so with they can partake in the dressing and washing of the body. No one will be excluded but the body doesn’t lie in state, her male relatives are allowed to take part in the lowering of the grave. After listening to oral evidence the applicants lawyer conceded that this court can order the cancellation of the issues burial order through and application of review. Issuance of a burial order is administrative action and can only be set aside by review.
In this case the burial order was issued according to section 3 of the administrative justice act. In this particular case the applicant hasn’t set out any points for review. She chose to apply an application for an interdict. She was supposed to set out her application by first showing the cause of action. I find NO legal basis for cancelling the burial order. I also observe that this court cannot usurp the powers of the registrar and this application fails to lay a legal basis for the interference of this court with the registrar.
The validity of the burial order stands because it was acquired legally applicant failed to lay a legal basis for the replacement of the burial order issued. …she made it clear she doesn’t want Muslim religion to be applied in the burial of deceased because it would neglect & discriminate while respondent said she was one who was being discriminatory against Muslim religion. Those two statements captured the nature of the dispute between these two parents.
Moana died in the accident that claimed the life of Genius Kadungure on 8 November.
– HMetro Twitter