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Does Tradition Trump Spousal Rights in Burial Decisions? Insights from Simakuhle v Simakuhle and Another

In a recent judgment handed down by the North Gauteng High Court, Pretoria, in the case of Simakuhle v Simakuhle and Another (003632/2024), the court was faced with a poignant family dispute over the burial rights of Mkhululi Simakuhle, which pitted traditional customs against spousal rights under the South African Constitution. The case, decided on 19 January 2024, raised critical questions about gender equality, the application of customary law, and the rights of spouses within the context of South Africa’s constitutional democracy.

The Dispute

At the heart of this legal battle was a disagreement between the deceased’s elder brother, Masixole Simakuhle, who sought to enforce traditional Xhosa burial practices, and the deceased’s wife, Amukelani Simakuhle, who wished to bury her husband in Centurion, Gauteng. Masixole contended that according to Xhosa tradition, the deceased must be buried in his ancestral home in the Eastern Cape, and as the elder brother, he had the right to make this decision. On the other hand, Amukelani argued that as the deceased’s wife, she had the burial rights and could decide her late husband’s final resting place.

Court’s Decision

The court, in its judgment, underscored the paramountcy of the Constitution, which enshrines the principles of equality and non-discrimination. Acting Judge Phooko dismissed the application, affirming the wife’s right to decide on the burial arrangements for her late husband. The judgment emphasized that discrimination based on sex and gender has no place in South Africa’s constitutional order, stating that “Equality is at the core of our Constitution.”

Memorable Quotes from the Judgment

  1. “It is generally accepted that ‘the dead should be treated with dignity'” – Phooko AJ highlights the universal respect for the deceased.
  2. “Discrimination based on sex and gender no longer has a place in our constitutional democracy. Equality is at the core of our Constitution.” – This quote underlines the judgment’s foundation on the principles of equality and non-discrimination.
  3. “The Applicant’s case was largely premised on a wrong notion where ‘women were always subordinated to the authority of a patriarch’ and regarded as perpetual minors under the disguise of cultural practices.” – The court critically addresses the outdated and unconstitutional views on gender roles.
  4. “The First Respondent, as the wife to the deceased, has burial rights and may decide where her late husband should be buried.” – A clear statement affirming the spousal rights over traditional customs in burial decisions.



  1. What was the main legal issue in Simakuhle v Simakuhle and Another?
    • The main issue was whether traditional customs could override the spousal rights of a deceased’s wife in deciding the burial location.
  2. What does this judgment say about gender equality in South Africa?
    • It reaffirms the commitment to gender equality and non-discrimination, emphasizing that traditional practices must align with constitutional values.
  3. Can traditional customs dictate burial arrangements against a spouse’s wishes?
    • According to this judgment, traditional customs cannot override a spouse’s constitutional rights to decide burial arrangements.
  4. What implications does this case have for future disputes over burial rights?
    • It sets a precedent that in disputes over burial rights, constitutional principles, especially those related to equality and non-discrimination, will prevail.
  5. Does this case affect the status of customary law in South Africa?
    • It does not invalidate customary law but insists that customary practices must be interpreted and applied in a manner consistent with the Constitution.



The Simakuhle v Simakuhle and Another judgment is a landmark ruling that navigates the intricate balance between respecting traditional customs and upholding the constitutional rights of individuals, particularly concerning gender equality. It serves as a reminder that in the evolving landscape of South African law, the dignity, equality, and rights of individuals stand paramount.

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