Resolution of burial disputes in Zimbabwe

Unfortunately, Zimbabwe does not have a law which deals with burial disputes. Resultantly, burial disputes in Zimbabwe are resolved in terms of the common law, which is the Roman - Dutch Law.

The common law of Zimbabwe provides that a deceased person's body should be disposed of with all proper respect and decency and, if possible, without delay. When it comes to the resolution of burial disputes in Zimbabwe, there is no single overriding factor. Neither the right of the heir or spouse in relation to burial rights, nor the right of the deceased's family, is exclusive. see Mhindu v Machokoto & Another 2016 (2) ZLR 20 (H).

The High Court of Zimbabwe in Zulu & Others v Nkomo & Another 2019 (3) ZLR 372 (H) set out the common law principles regarding the resolution of burial disputes in Zimbabwe as follows:

The wishes of the deceased whether expressed formally in writing or not are paramount.

A person chosen by the deceased, where one is chosen must bury the deceased.

It is not necessary for a deceased to leave a Will or other legally valid testamentary instrument expressing such wishes, for the wishes to be respected.

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.

The surviving spouse has the strongest right.

When there is proved to have been estrangement between the deceased and his/her spouse, the surviving spouse's right is weakened.

Equally so, where there is proved to have been estrangement between blood relations and the deceased, their rights are also weakened. The right of the children and blood relations are subsidiary to that of the surviving spouse.

The court will also, where necessary take into account the wishes of the broader, family and the principle of ubuntu.

The question of what customary law or customary practice, in relation to any tribe, clan or family is a question of fact to be determined by evidence.