Begrafnisregte in die konteks van die Afrika Gewoontereg

Abstract

Religious and cultural practices and values play an important role in funerals and how funerals should be conducted. This creates considerable conflict in the African customary law among heirs and family members when someone dies and where there must be decided who should bury the deceased and where the deceased must be buried. The whole issue can be brought under the term "burial right". This "right" to bury a deceased family member can be problematic and can be divided into two aspects. The first aspect deals with the question of who should bury the deceased and the second with where the deceased must be buried. These two questions give rise to considerable confusion in the courts and there is no agreement on the exact principles that must be applied. The where aspect is partially regulated by the Extension of Security of Tenure Act 62 of 1997. There is no law that regulates the who aspect and the courts follow different approaches to find a solution. The courts' decisions are sometimes based on common law and the position of Voet, while other decisions are based on African customary law. The courts sometimes apply a combination of the principles of common law and customary law to ensure a fair result. The different approaches lead to a significant degree of legal uncertainty. The uncertainty in the legal position on burial rights can pose significant problems for the estate planner. The estate planner must be able to give effect to a person's wishes, as well as advise his or her client about the prevention of conflict between family members. Burial rights are one of the causes of conflict and the estate planner must be able to give advice to a person living according to the customs and habits of African customary law burial rights. It is therefore important that the estate planner should have knowledge of the legal position in respect of burial rights in the context of African customary law, and of the steps they can take to prevent potential conflict situations in this regard. One way to resolve the conflict between family members would be to make funeral arrangements by recording funeral wishes in a will.