Stop troubling your mom who’s resting in peace, court tells Makoni woman

A MAKONI woman who petitioned the High Court to have her deceased mother exhumed and reburied next to her husband (the father of the woman), who died during the war of liberation, has been dismissed.

Susan Masvinge nee Sakarombe had cited Benard Sakarombe, Anna Mukambachaza nee Sakarombe, Jane Chireka nee Sakarombe, Bothwell Chikuruwo, Makoni Rural District Council, Zimbabwe Republic Police, Police Commissioner-General, Minister of Home Affairs and Minister of Local Government as respondents in the application.

In her application for leave to exhume the remains of her late mother Idah Sakarombe nee Chikuruwo, who died on November 25, 2014 and was buried in a designated Catholic Cemetery under Headman Chikuruwo, Chief Makoni in Rusape, Masvinge had argued that her mother’s true wish, though never formally recorded, was to be buried beside her husband, the late Enock Sakarombe, who died in 1976 during the war of liberation.

She maintained that local family members prevented her from fulfilling that wish at the time of burial.

Masvinge had submitted that respondents Benard, Annah, Jane and Bothwell, who are close relatives of the deceased, strongly opposed the application.

The other respondents are cited as interested or statutory parties whose involvement is required in the event that exhumation and reburial are sanctioned.

The respondents had argued that the application is defective and fatally affected by prescription owing to the nearly 10-year delay.

However, that point in limine was abandoned at the hearing as there is no strict statutory bar preventing an exhumation claim on the basis of time lapse alone, though the court acknowledges that delay is always a critical factor in burial disputes.

A clash ensued between Masvinge’s insistence on honouring her mother’s alleged oral wish and the respondents’ view that the deceased’s burial was lawfully and properly undertaken in accordance with local practice and that disturbing a grave is both culturally taboo and legally unwarranted in the absence of compelling reasons.

At the hearing, Masvinge raised the issue that the affidavits of the close relatives were not signed and commissioned and that there was, therefore, no proper opposition to the application.

After hearing the arguments from both parties, High Court judge Justice Joel Mambara said Masvinge’s case rests on an alleged oral wish of the deceased, but the assertion is not corroborated by any formal documentation or testament, and it is contested by the respondents, who were also close to the deceased.

“There is no contention that the wrong body was buried nor is there evidence of an official mistake or procedural irregularity,” the judge said.

“Indeed, the deceased’s grave lies in a recognised community cemetery overseen by local religious and traditional authorities, who have not endorsed exhumation.”

Justice Mambara further said Masvinge lodged this application nearly a decade after the burial, during which period local practices, health regulations and the general presumption of finality have become entrenched.

The judge further said the length of time between interment and an application for exhumation amplifies the need for caution, lest courts unwittingly violate cultural norms and open floodgates for disputed claims of unrecorded final wishes.

“Although this court is sensitive to the applicant’s emotional motivation, it finds no legal, factual or customary basis strong enough to justify exhuming a deceased person who, according to the uncontested evidence, was buried lawfully and with knowledge of the majority of her family,” Justice Mambara ruled.

“The local and national legal framework — set out in the Cemeteries Act, the Traditional Leaders Act, and the Rural District Councils Act — was observed.

“Accordingly, the court is compelled to deny the substantive relief.

“The finality of the deceased’s resting place should not be disturbed under circumstances lacking clear consensus or a compelling demonstration of the deceased’s wishes documented or otherwise incontrovertibly established.

“The application for leave to exhume and rebury the remains of the late Idah Sakarombe (nee Chikuruwo) is dismissed and each party shall bear its own costs.” Newsday