The Law and an Ancestral Request For Exhumation

Magda Slabbert Magda Slabbert

doi:10.17159/obiter.v41i4.10494

Abstract

Exhumation is the removal of the remains of a dead body from its initial resting place – in other words, when a corpse is removed from a coffin, either to be re-buried at another place, or to dispose of the remains in a different manner as in cremation. A corpse could be the remains of a deceased person or a stillborn child or a fetus. An exhumation may also be undertaken to ascertain the cause of death or to ascertain the identity of the deceased. A court or the immediate family of the deceased may request an exhumation for any of the mentioned reasons. If the family is asked by the ancestors to exhume a grave, certain legal questions may come to the fore. It is the purpose of this note to discuss the legal requirements for exhumations and briefly to address the traditional African cultural belief in which ancestors play a part in life on earth. It is not a complete analysis or an opinion on African culture or beliefs. Ancestral beliefs simply form the background to the real legal questions surrounding exhumations in South Africa.

Highlights

Exhumation is the removal of the remains of a dead body from its initial resting place – in other words, when a corpse is removed from a coffin, either to be re-buried at another place, or to dispose of the remains in a different manner as in cremation
If the family is asked by the ancestors to exhume a grave, certain legal questions may come to the fore
It is the purpose of this note to discuss the legal requirements for exhumations and briefly to address the traditional African cultural belief in which ancestors play a part in life on earth

Summary

Introduction

Exhumation is the removal of the remains of a dead body from its initial resting place – in other words, when a corpse is removed from a coffin, either to be re-buried at another place, or to dispose of the remains in a different manner as in cremation. Ancestral beliefs form the background to the real legal questions surrounding exhumations in South Africa These notes focus on a recent request put to a funeral undertaker. The immediate family of a deceased woman contacted the funeral undertaker with a request for the exhumation of the grave of their relative buried quite a few years ago. The grave of the deceased would need to be opened, the remains of the fetus removed and cremated, and the corpse re-buried. Sephuma 1948 (3) SA 982 (T); Gillespie v Toplis 1951 (1) SA 290 (C); Dibley v Furter 1951 (4) SA 73 (C); Mphiki v Mphiki (54/2018) [2019] ZANCHC 43 (24 May 2019); Bukula v Nkosi (41333/11) [2014] ZAGPJHC (20 October 2014); see Christison and Hoctor 2007 Obiter 23 for the long history of the crimes comprising violation of a grave and violation of a dead body)

Historical background concerning burials

Ancestral beliefs

2 4 Summary

The fetus

Conclusion