Year: 2024
Type: article
Abstract: Burial disputes are becoming common in South African customary law.Customary law traditionally requires that the deceased person be buried in their ancestral land to maintain and preserve the relationship between the living and the ancestors.Although this is an important and legitimate purpose in customary law, it is often not considered in courts.The values of Roman-Dutch Law have traditionally influenced the courts since the system was implanted in South Africa.This resulted in their being the system trusted with the decision to bury the deceased.Nowadays, however, courts try to settle the matter by focusing on what is in line with ubuntu and fairness, as evidenced in Sengadi v Tsambo.Although it is welcomed that the court has allowed ubuntu to have a say in the outcome, it is still a concern that the court does not focus on the importance and value of the deceased person being buried in their ancestral land.It is further argued that formal courts are not best equipped to resolve these disputes because of their adversarial nature.Mediation is recommended as an alternative dispute resolution to address burial disputes in customary law.It is further submitted that there is a need to ensure that the mediation processes are binding and have legitimacy.Mediation outcomes must be made orders of courts and it must be considered compulsory by the law to approach mediation platforms before approaching court-based processes.
Authors: Tshepo Aubrey Manthwa, Ely Kodisang
Institution: University of South Africa
Language: English
Topic: Legal Issues in South Africa
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W4406779721