Woman's body to be exhumed and buried next to husband's remains after court rules on family feud

Sylvia Zitshu would have shocked guests at her wedding had she expressed her dying wish. And as weird as that would have been, it would have probably saved the trouble of her being buried twice.

This week, the high court in Makhanda ordered that her body be exhumed from the town’s cemetery and be reburied next to that of her late husband 48km away — almost a year after her death.

The saga over her final resting place involved customs, money - and someone claiming that he was her adopted son.

Zitshu died on July 2 2019, without a child, interstate and “without expressing a wish as to where she would prefer to be buried”.

Anathi Ntshate, who claimed to be Zitshu’s adopted son, and “the only rightful person to bury” her, and Luvuyo Zitshu, her husband’s cousin, sued her two biological sisters and her niece for burying her in Makhanda, where she was born.

Ntshate and Luvuyo asked the court to grant them permission to exhume her from the town’s Waainek municipal graveyard.

According to Ntshate and Luvuyo, it is custom for  women married to the Zitshu family to be buried at the marital home. They said Zitshu was supposed to be buried at their rural home in Peddie.

Luvuyo also told the court that he was Zitshu’s brother-in-law because “in the African culture he is simply regarded as a brother to the deceased’s husband as opposed to his cousin”.

The impasse between the families has its roots in the merciless handmaid: money. Zitshu’s family agreed that she should have been buried next to “her husband” but told the court that her in-laws had “disowned her” during a meeting to discuss the funeral arrangements.

“As could be expected, and in keeping with the Xhosa adage ‘ingcwaba lomfazi lisemzini’ (the grave of a married woman is at her marriage home) all present at the meeting were on the same page as to where deceased should be buried, namely at Peddie,” the judgment reads.

“During the course of the discussions the Zitshu family required that the deceased’s bank card be handed over to them. This apparently did not go down well with the Nqikela [Zitshu’s maiden name] family who felt that the Zitshus were only interested in the deceased’s money. That is when things came to a head. According to [Zitshu’s sisters and niece], it is at that stage that [her in-laws] suggested they should take ‘the daughter of Nqikela’ and bury her in Makhanda.”

Zitshu’s family then made arrangements for her funeral “at a considerable expense to their family”. According to the judgment, Zitshu’s in-laws tried to make amends and acknowledged that suggesting that she be buried in Makhanda “was a mistake”. 

“[Zitshu’s family] suggest that by then they had made funeral arrangements,” the judgment reads.

“Those included buying a plot at the graveyard, buying a tombstone, paying an undertaker, hiring chairs, funeral venue, transport, etc. That many of these expenses would not have been recoverable were the funeral to be cancelled or moved to Peddie.”  

Zitshu’s family acknowledged that it “was Xhosa custom or widely accepted practice, the deceased being a married woman, her funeral was supposed to take place at her marital home conducted by her family, the Zitshus in this case.”

“They however deny that [Ntshate] was adopted in terms of customary law or otherwise by the deceased and her husband,” the judgment reads.

“In support of this assertion, they state that they were never invited of heard about a ceremony to mark the adoption ... That the deceased would have told them about the adoption during her lifetime it being alleged that the adoption took place as far back as 1995. Instead, she always referred to [Ntshate] as the child who lives with her.”

Judge Nomathamsanqa Beshe on Thursday granted the order for Zitshu’s exhumation but dismissed Ntshate’s application to be declared “the only rightful person to bury Zitshu”.

“The process of the exhumation and reburial of the mortal remains of a person from their resting place is unusual, drastic and traumatic to the loved ones of the departed. And as far as I understand not uncomplicated,” Beshe said in the judgment.

“The parties agree that the deceased was supposed to have been buried at her marital home next to her late husband. Had it not been for the applicants’ family suggesting that the deceased’s biological family should bury the deceased — ‘should do whatever they want’ in the words of [Ntshate] — she would have been buried at her marital home in Peddie.

“It could not have been expected of the deceased’s biological family to let one of their own, a sister, aunt etc, their flesh and blood, to remain in a mortuary indefinitely without a proper burial. Be that as it may, in my view the applicants have made out a case for the exhumation of the body of the deceased for purposes of reburial at Peddie.”