Factors considered by the Zimbabwean courts in deciding burial rights of a deceased person

The High Court of Zimbabwe in Mhindu v Machokoto & Another 2016 (2) ZLR 20 (H) held that when it comes to deciding burial rights over a deceased person, there is no single overriding factor. When a person dies, whether male or female, ideally the relatives, comprising the nucleus family, the extended family and close clan members, should sit down and agree on how best to give their departed relative a befitting and dignified send off. Fighting over burial rights is a negation of everything decent. It demeans the dignity of the deceased.

The courts in deciding burial rights over a deceased, the right to bury a deceased person and the place to burial of a deceased person will generally consider the following factors:

• The wishes of the deceased, during his life time, as to the choice of his or her burial place, if proved by cogent evidence, have to be taken into account, but only in so far as it is practicable to do so. Otherwise, they are not binding
• A person chosen by the deceased in a Will or other legally valid testamentary, must bury the deceased
• In the absence of a Will or other legally valid testamentary instrument or directions as to who should bury a deceased, the heirs to the deceased are entitled to arrange his / her burial
• An heir to the estate of the deceased has some colour of right in the determination of the burial place for the deceased person. In terms of the Deceased Estates Succession Act, [Chapter 6: 02], the surviving spouse of every person who dies either wholly or partially intestate is the intestate heir. But this is only in relation to certain specified assets. The right of the heir in relation to burial rights, is not exclusive
• The voice of the surviving spouse of a deceased person in regards to the place of burial for the deceased carries greater weight than all other voices. However, regard must always be had to the wishes of the deceased's broader family
• The customs, traditions and cultural practices or values of the broader family or community to which the deceased belonged, should be taken into account in the burial arrangements of the deceased in so far as they are not in conflict with the general laws of the land, the Constitution and the values under it

It is important to note that the above list is by no means exhaustive or prescriptive. If and when the relatives fail to agree, the court does not apply any hard and fast rules and will determine the dispute on its own set of facts of circumstances and arrive at a decision which balances the parties' competing interests.