The High Court judge Justice Pisirai Kwenda has deferred the ruling on the dispute between the late socialite Michelle “Moana” Amuli’s parents over her burial to Wednesday after an urgent chamber application by the deceased mother Yolanda Kuvaoga to nullify a burial order issued last week.
Moana’s mother, Kuvaoga is seeking to stop Moana’s father, Ishmael Amuli from proceeding with a burial that would have taken place on Friday at Warren Hills in line with his Islamic beliefs.
Under the Islamic way, women are not allowed during the burial process. Yolanda is seeking to have Zororo Cemetery along Seke Road as the burial place.
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| Moana's Court Proceedings: High Court Set Aside Ruling On Moana’s Burial! |
Judge: Your first complaint is that the father obtained the order. Is there a constitutional law that makes that illegal? Is there anything wrong with the second respondent (registra) to issue a burial order when he is approached by the father?
Makore: The actual order in itself designates a location, in this case, warren hills cemetery, the parties hadn’t agreed that shell be buried there,
Judge: Are you seeking to have the burial order amended to read Zororo? Tell me why Makore: because there was an arrangement and the reason to have her buried at warren hills is that they want to be buried according to Islamic rites which will exclude her
Judge: Is the application for the burial order a review application.
Makore: The actual order in itself designates a location, in this case, warren hills cemetery, the parties hadn’t agreed that shell be buried there,
Judge: Are you seeking to have the burial order amended to read Zororo? Tell me why Makore: because there was an arrangement and the reason to have her buried at warren hills is that they want to be buried according to Islamic rites which will exclude her
Makore: The issues that have been laid before this court do show that there’s indeed been a misunderstanding between the parties. I’d call this court to look at the broader issues that have been laid on affidavit, it’s not true that Moana was still a Muslim.
The first respondent and his family insist she was and want to bury her according to the Muslim faith when there’s evidence points that she no longer was, the circumstances of her death. We are seeking an order that she be buried at Zororo where it is accessible to everyone
Both parties, they aren’t able to entirely participate in the burial proceedings.
The first respondent and his family insist she was and want to bury her according to the Muslim faith when there’s evidence points that she no longer was, the circumstances of her death. We are seeking an order that she be buried at Zororo where it is accessible to everyone
Both parties, they aren’t able to entirely participate in the burial proceedings.
Judge: Is the application for the burial order a review application.
Because it doesn’t get what is being sought.
Makore: The decision to issue a burial order would yield a state of affairs that would be discriminatory to the mother of the child.
Judge: I’m not the registrar of births and deaths. If it is a review state that it’s a review of the decision that was made by the registrar or by Amuli. I can only make an order when you make submissions before me that such a decision was made, I cannot set aside anything.
Makore: The order was made by registrar but goes against their previous agreements &goes against common law. The family doesn’t have exclusive rights over burial &have been going back and forth & a reasonable officer would not have issued a burial order. We don’t have a burial order
Judge: I don’t have the burial order and I don’t have the substance of the matter. A representative of the registrar also doesn’t have the copy of the burial order.
Judge: You are asking for an interdict, the purpose of an interdict is to set aside something, but in this case you haven’t seen.
Judge: Is the cancellation of the burial order an interdict? Tell me what an interdict is. Are you asking me to cancel the order acquired by Amuli and order the registrar to give another one?
Makore: Yes.
Judge: In terms of which law? There has to be a law that applies to this dispute but you just don’t want to apply it, we have agreed that general law doesn’t apply especially in burials because people have different customs
Judge: You really have to tell me the law that you’re applying. I have to really understand the case from you before I hear from Amuli because he’s a respondent.
Judge: Your first complaint is that the father obtained the order. Is there a constitutional law that makes that illegal? Is there anything wrong with the second respondent (registra) to issue a burial order when he is approached by the father?
Mugiya: The real dispute is that she doesn’t want the deceased to be buried in the Muslim way and is speculating that she will be barred from participating in the burial arrangements up to the actual burial
Amuli says she will be there at the burial to bath and dress Moana and concedes that the body can be taken to her place of residence and it’s unfair to say that Moana had abandoned Muslim because he raised her in the Muslim religion and she hadn’t taken up any religion that he is aware of
Judge invokes rule 239 to hear oral evidence from disputing parents to hear what’s troubling them and to get what the real dispute is. They will not be cross-examined. The papers have very little information and I want to get the basics of the dispute from the two parents who are expected to cooperate.
Yolanda Kuvaoga (Moana’s mother) takes the witness stand.
Judge: Can you tell us briefly what your grievance is?
Yolanda: My complaints are that when my daughter died we sat down with the Amuli family and we agreed that if someone hadn’t paid lobola and their child dies, the funeral will be held at the mothers parents.
They agreed and said their religion doesn’t allow that the funeral be held at the place be held at a place where there are people who eat pork and drink beer.
They then said their pastor wasn’t coming because Moana was now hanging out with drunkards and she was now an alcoholic and was always partying.
We agreed that since she was now a celebrity many people would want to pay their last respects we found it fit that the funeral be held at my place.
Amuli paid (mari yechoto) according to my customs so that the funeral can be held at my parent's place.
After three days we were going about the funeral processes together, going to identify the child Amuli started asking me where Moana’s belongings were From all her cars, properties and I told him that we should first bury the child and discuss the properties
On 12 Nov we went to the doctors and they took DNAs from me which they said are required for DNA tests and when we went home he called me and my brother then his brother told me that our time of working together was up and told me not to question why they had come to such a decision.
He then told me that someone had told them that Moana was not his daughter so I should do the whole process alone.
My brother tried to negotiate with them but they left. Parirenyatwa called me and I went to get DNa samples and they called me to collect the results. The police officer who was dealing with the matter called me to the police post where I was to collect a burial order.
Judge asks if all these are her grievances?
Yolanda: When I returned to the “burial orders” office the next day I found Amuli and his relatives there, his wife was at the forefront shouting that I wanted to steal Moana’s body.
They were shouting that I hadn’t notified them that the DNA results were out. Then they took the letter from me (the letter to get the burial order)
We then sat down and they said they would take the body and go to doves then from there we would go with the body to my parents' house then would go for burial from there.
They then went to collect the burial order and changed everything and said Moanas corpse wasn’t going to be moved from Parirenyatwa and would then be taken to their church and go for burial.
That is where my grievances arose.
We then called the police officer who was dealing the matter and they indicated that They hadn’t changed so I called doves to collect the body and as we were going to the mortuary they ran away with the burial order.
I explained to the police and they called the mortuary and indicated that the corpse wouldn’t be taken away until the parents had agreed and that resulted in me in making the urgent chamber application.
They returned later that night wanting to collect the body but the police barred them from taking the corpse
When I went the next day the police advised me that they had returned to collect the corpse
He wanted to bury my daughter in my absence that is why I want the court to intervene so that the body will be taken to my place and burial at Zororo with everyone present I’m now afraid that he will change as usual.
Judge: What's wrong with Warren Hills?
Yolanda: They want to take her where Moslems are buried I won’t even be able to visit and place flowers or to place a tombstone.
They are saying that they want her to be washed. The bowels and intestines they want to clean were burnt beyond recognition.
Judge: The first respondent Amuli got the burial order in your knowledge?
Judge: So what you want isn’t to cancel the burial order you are concerned with someone else.
Exit Yolanda, Enter Amuli ...
Closing Remarks from Yolanda's Lawyer.
Source: H-Metro
Makore: The decision to issue a burial order would yield a state of affairs that would be discriminatory to the mother of the child.
Judge: I’m not the registrar of births and deaths. If it is a review state that it’s a review of the decision that was made by the registrar or by Amuli. I can only make an order when you make submissions before me that such a decision was made, I cannot set aside anything.
Makore: The order was made by registrar but goes against their previous agreements &goes against common law. The family doesn’t have exclusive rights over burial &have been going back and forth & a reasonable officer would not have issued a burial order. We don’t have a burial order
Judge: I don’t have the burial order and I don’t have the substance of the matter. A representative of the registrar also doesn’t have the copy of the burial order.
Judge: You are asking for an interdict, the purpose of an interdict is to set aside something, but in this case you haven’t seen.
Judge: Is the cancellation of the burial order an interdict? Tell me what an interdict is. Are you asking me to cancel the order acquired by Amuli and order the registrar to give another one?
Makore: Yes.
Judge: In terms of which law? There has to be a law that applies to this dispute but you just don’t want to apply it, we have agreed that general law doesn’t apply especially in burials because people have different customs
Judge: You really have to tell me the law that you’re applying. I have to really understand the case from you before I hear from Amuli because he’s a respondent.
Judge: Your first complaint is that the father obtained the order. Is there a constitutional law that makes that illegal? Is there anything wrong with the second respondent (registra) to issue a burial order when he is approached by the father?
Amuli says she will be there at the burial to bath and dress Moana and concedes that the body can be taken to her place of residence and it’s unfair to say that Moana had abandoned Muslim because he raised her in the Muslim religion and she hadn’t taken up any religion that he is aware of
Judge invokes rule 239 to hear oral evidence from disputing parents to hear what’s troubling them and to get what the real dispute is. They will not be cross-examined. The papers have very little information and I want to get the basics of the dispute from the two parents who are expected to cooperate.
Yolanda Kuvaoga (Moana’s mother) takes the witness stand.
Judge: Can you tell us briefly what your grievance is?
Yolanda: My complaints are that when my daughter died we sat down with the Amuli family and we agreed that if someone hadn’t paid lobola and their child dies, the funeral will be held at the mothers parents.
They agreed and said their religion doesn’t allow that the funeral be held at the place be held at a place where there are people who eat pork and drink beer.
They then said their pastor wasn’t coming because Moana was now hanging out with drunkards and she was now an alcoholic and was always partying.
We agreed that since she was now a celebrity many people would want to pay their last respects we found it fit that the funeral be held at my place.
Amuli paid (mari yechoto) according to my customs so that the funeral can be held at my parent's place.
After three days we were going about the funeral processes together, going to identify the child Amuli started asking me where Moana’s belongings were From all her cars, properties and I told him that we should first bury the child and discuss the properties
On 12 Nov we went to the doctors and they took DNAs from me which they said are required for DNA tests and when we went home he called me and my brother then his brother told me that our time of working together was up and told me not to question why they had come to such a decision.
He then told me that someone had told them that Moana was not his daughter so I should do the whole process alone.
My brother tried to negotiate with them but they left. Parirenyatwa called me and I went to get DNa samples and they called me to collect the results. The police officer who was dealing with the matter called me to the police post where I was to collect a burial order.
Judge asks if all these are her grievances?
Yolanda: When I returned to the “burial orders” office the next day I found Amuli and his relatives there, his wife was at the forefront shouting that I wanted to steal Moana’s body.
They were shouting that I hadn’t notified them that the DNA results were out. Then they took the letter from me (the letter to get the burial order)
We then sat down and they said they would take the body and go to doves then from there we would go with the body to my parents' house then would go for burial from there.
They then went to collect the burial order and changed everything and said Moanas corpse wasn’t going to be moved from Parirenyatwa and would then be taken to their church and go for burial.
That is where my grievances arose.
We then called the police officer who was dealing the matter and they indicated that They hadn’t changed so I called doves to collect the body and as we were going to the mortuary they ran away with the burial order.
I explained to the police and they called the mortuary and indicated that the corpse wouldn’t be taken away until the parents had agreed and that resulted in me in making the urgent chamber application.
They returned later that night wanting to collect the body but the police barred them from taking the corpse
When I went the next day the police advised me that they had returned to collect the corpse
He wanted to bury my daughter in my absence that is why I want the court to intervene so that the body will be taken to my place and burial at Zororo with everyone present I’m now afraid that he will change as usual.
Judge: What's wrong with Warren Hills?
Yolanda: They want to take her where Moslems are buried I won’t even be able to visit and place flowers or to place a tombstone.
They are saying that they want her to be washed. The bowels and intestines they want to clean were burnt beyond recognition.
Judge: The first respondent Amuli got the burial order in your knowledge?
Judge: So what you want isn’t to cancel the burial order you are concerned with someone else.
Exit Yolanda, Enter Amuli ...
Amuli Takes the Stand.
Amuli takes an oath.
Judge: You have heard what the applicant has said we have called you to clarify issues not to tell the whole story. You have heard the applicant explaining what her grievance is. What is your response to that?
Amuli: From the first day that my daughter died, I went to the scene then went to the hospital and found them crying at the vehicle that was carrying Moana’s body. They never greeted us so when we saw that we weren’t greeted my daughter Lucy who works there started signing papers.
They never approached me and the bodies were taken to the mortuary.
I never refused what they wanted I only argued that According to the Muslim tradition the deceased’s corpse doesn’t spend the night in the home so she would spend the night at doves and go her house.
My main argument is that I don’t want the body to be placed in the house and I also want a specific coffin that would carry.
From the mortuary to doves, then from doves to the church, the body would be dressed at church from church to home
Judge: Do you expect that the applicant would be excluded from all those processes?
Amuli: NO, From the church, we will go to wherever they want to take us for two to three hours.
Judge: Will she be excluded from the graveyards?
Amuli: They may be allowed but will be at a distance because noise is not allowed. At the actual interment, only men are allowed meaning her male relatives are allowed.
Judge: Why does she think you’ll bar her from the burial?
Why have you changed the burial place to Warren Hills?
Amuli: My daughter is a Muslim. They are only buried at Warren Hills where we have a site set aside for Muslims.
Judge: Why did you agree in the first place? She says she won’t be able to visit the grave.
Amuli: I never agreed to that, we were arguing? She will not be barred from doing whatever they want at the grave.
END of Amuli.
Judge invites lawyers to give closing submissions.
Amuli takes an oath.
Judge: You have heard what the applicant has said we have called you to clarify issues not to tell the whole story. You have heard the applicant explaining what her grievance is. What is your response to that?
Amuli: From the first day that my daughter died, I went to the scene then went to the hospital and found them crying at the vehicle that was carrying Moana’s body. They never greeted us so when we saw that we weren’t greeted my daughter Lucy who works there started signing papers.
They never approached me and the bodies were taken to the mortuary.
I never refused what they wanted I only argued that According to the Muslim tradition the deceased’s corpse doesn’t spend the night in the home so she would spend the night at doves and go her house.
My main argument is that I don’t want the body to be placed in the house and I also want a specific coffin that would carry.
From the mortuary to doves, then from doves to the church, the body would be dressed at church from church to home
Judge: Do you expect that the applicant would be excluded from all those processes?
Amuli: NO, From the church, we will go to wherever they want to take us for two to three hours.
Judge: Will she be excluded from the graveyards?
Amuli: They may be allowed but will be at a distance because noise is not allowed. At the actual interment, only men are allowed meaning her male relatives are allowed.
Judge: Why does she think you’ll bar her from the burial?
Why have you changed the burial place to Warren Hills?
Amuli: My daughter is a Muslim. They are only buried at Warren Hills where we have a site set aside for Muslims.
Judge: Why did you agree in the first place? She says she won’t be able to visit the grave.
Amuli: I never agreed to that, we were arguing? She will not be barred from doing whatever they want at the grave.
END of Amuli.
Judge invites lawyers to give closing submissions.
Judge: Do you want me to order that they change their burial rites, do I have jurisdiction to order how they should do it? That would be too much.
Makore: There’s an issue that was raised that there was no marriage between the two parties the family only received damages. That’s why the paid mari yechoto to allow the maternal family to deal with the issues of the burial.
Judge: Are you now invoking the customary law?
Makore: The application with peculiar facts so the court can use an array of principles to come up with a conclusion of the matter not necessary to stick to one law
Judge: I have problems when you shift positions thats why I wanted to know the legal framework. Who’s the accused
Judge: She uses the Amuli family name and the issue of whether or not he paid lobola doesn’t arise. At law, one doesn’t need to have paid lobola to belong to a family
You needed to make a choice of law either I asked you which legal framework so that I can know which law you’re using between general law and customary you can’t straddle the two laws and you can’t be in two camps.
Judge Asks: Who raised her?
Makore: I notice that there’s the issue of who raised her was omitted in the affidavit.
Judge: The family’s choices should be respected that’s why I’m asking you who raised because she doesn’t belong to the family of the mother. She said the burial order was acquired with her knowledge so what order do you want me to give? Motivate your application.
There has to be a basis and I can not impose my preferences on the family. If Amuli is being unreasonable tell me so that I can intervene.
Makore: She wants to be present throughout the burial!
Court ADJOURNS for Makore to get further instructions ...
Makore: There’s an issue that was raised that there was no marriage between the two parties the family only received damages. That’s why the paid mari yechoto to allow the maternal family to deal with the issues of the burial.
Judge: Are you now invoking the customary law?
Makore: The application with peculiar facts so the court can use an array of principles to come up with a conclusion of the matter not necessary to stick to one law
Judge: I have problems when you shift positions thats why I wanted to know the legal framework. Who’s the accused
Judge: She uses the Amuli family name and the issue of whether or not he paid lobola doesn’t arise. At law, one doesn’t need to have paid lobola to belong to a family
You needed to make a choice of law either I asked you which legal framework so that I can know which law you’re using between general law and customary you can’t straddle the two laws and you can’t be in two camps.
Judge Asks: Who raised her?
Makore: I notice that there’s the issue of who raised her was omitted in the affidavit.
Judge: The family’s choices should be respected that’s why I’m asking you who raised because she doesn’t belong to the family of the mother. She said the burial order was acquired with her knowledge so what order do you want me to give? Motivate your application.
There has to be a basis and I can not impose my preferences on the family. If Amuli is being unreasonable tell me so that I can intervene.
Makore: She wants to be present throughout the burial!
Court ADJOURNS for Makore to get further instructions ...
Yolanda's Lawyers Closes without adding anything more. In comes Amuli's Lawyer with his closing remarks.
Mugiya: My colleagues for the applicant blow hot and cold and cannot stand by any decision in this matter. There’s some fear from the applicant that she may be excluded from the funeral arrangements and that is the real dispute before you...
What’s clear is that the first respondent has rebutted the fears of the applicant. When the Muslims bury their dead they don’t discriminate against women. When the deceased is a female, females have a huge role to play they aren’t barring her from attending the funeral at all
There’s nothing unusual he’s saying, he has dismissed fears she will be barred from visiting the grave or placing flowers. I wish to Highlight on the point the parties weren’t married, but they made a submission in the founding affidavit that they were customarily married in 1993-94.
Mugiya: Our prayer is that the application be dismissed it’s not only bad in facts it’s also incurably bad in the application of the law and it must be dismissed
Judge: You will appreciate that this matter came as an urgent application and because of the urgency of the matter at hand we had to expedite the matter. We have expedited the arguments on the merits and I’m mindful of the fact that I must make a ruling quickly...
Judge: We spent the whole afternoon although the factual arguments were narrow, I need time to write the judgement.
Judge: The judgement will be ready on Wednesday I need a whole day to look at the issues raised it’s a matter of sentimental value.
Judge: I will therefore take time to consider I will reserve it but it will be available on Wednesday at 2.30pm & if it’s not typed I will read it in court and if it’s typed I will hand it down in an open court so that the reasons can be handed down to the explained to the parties
COURT ADJOURNS!
Mugiya: My colleagues for the applicant blow hot and cold and cannot stand by any decision in this matter. There’s some fear from the applicant that she may be excluded from the funeral arrangements and that is the real dispute before you...
What’s clear is that the first respondent has rebutted the fears of the applicant. When the Muslims bury their dead they don’t discriminate against women. When the deceased is a female, females have a huge role to play they aren’t barring her from attending the funeral at all
There’s nothing unusual he’s saying, he has dismissed fears she will be barred from visiting the grave or placing flowers. I wish to Highlight on the point the parties weren’t married, but they made a submission in the founding affidavit that they were customarily married in 1993-94.
Mugiya: Our prayer is that the application be dismissed it’s not only bad in facts it’s also incurably bad in the application of the law and it must be dismissed
Judge: You will appreciate that this matter came as an urgent application and because of the urgency of the matter at hand we had to expedite the matter. We have expedited the arguments on the merits and I’m mindful of the fact that I must make a ruling quickly...
Judge: We spent the whole afternoon although the factual arguments were narrow, I need time to write the judgement.
Judge: The judgement will be ready on Wednesday I need a whole day to look at the issues raised it’s a matter of sentimental value.
Judge: I will therefore take time to consider I will reserve it but it will be available on Wednesday at 2.30pm & if it’s not typed I will read it in court and if it’s typed I will hand it down in an open court so that the reasons can be handed down to the explained to the parties
COURT ADJOURNS!
Source: H-Metro
