Pretoria - A widow’s dream to erect a tombstone for her late husband on his grave at the Westpark Cemetery in Johannesburg came true – but only after a court helped her negotiate her way through by-laws.
Gladys Zwane went to the high court in Johannesburg to obtain the go-ahead to remove a plaque which her sister–in–law earlier erected on the grave. She was, however, refused permission to take down the plaque and replace it with a tombstone of her choice.
The final resting place already had what could best be described as a “grave marker”, a basic plaque on which was printed, in a rather rudimentary manner, the name of the deceased, his date of birth and the date on which he died, Judge Leicester Adams said.
The City of Johannesburg was not prepared to agree to the erection of the tombstone, because it argued to do so would offend the principle of legality in that it would amount to a contravention of the Cemeteries and Crematoria By-Laws.
These provide that a “memorial work” on a grave can only be dismantled and removed by the registered “holder of private rights” in respect of the grave, who in this case is the sister of the deceased.
The judge said by all accounts, and having regard to the fact that the applicant is the surviving spouse, she has every right to erect a tombstone on the grave of her deceased husband.
While there was an acrimonious relationship between the widow and her in-laws, they did not oppose her application.
“Applying common sense and some basic logic, it has to be accepted that the applicant should not have been prevented from erecting the tombstone upon her request to do so,” the judge said.
The City of Johannesburg, however, opted for a legal and overly technical approach. They took the stance that the widow did not seek to review and set aside the registration of her sister-in-law as the rights holder in respect of the grave of the deceased, and therefore she was precluded from erecting the tombstone.
The City was adamant it could not change its by-laws and the widow thus could not be permitted to erect the tombstone until she was registered as the “rights holder” of the grave.
It argued that in terms of its by-laws, the current gravestone could not be removed by anyone other than the sister-in-law as the holder of private rights, and in any event, not without her consent.
This “rigid and inflexible approach” on the part of the City persisted, notwithstanding the fact that the sister-in-law opted to play no part in these proceedings, the judge remarked.
“The question is simply this: Why was the City so reluctant to take it upon itself, upon request of the applicant, to register the applicant as the ‘holder of private rights’? She clearly qualified to replace the third respondent (sister-in-law) as such,” the judge said.
According to Judge Adams, the City, through its officer-in-charge, retains an absolute discretion to grant permission to any person to erect a memorial on a grave.
“The fact that the applicant is not the ‘holder of private rights’, although a relevant consideration, is not the be all and the end all of the matter.
“It therefore, in my view, does not avail the City to rely on the provision that only a holder of private rights can remove an existing memorial and to refuse the applicant permission to erect the new tombstone.”
The judge, in granting an order in favour of the widow, said the City should therefore have acceded to the applicant’s request.
Pretoria News