Basic law

The circle of life is completed by the expiration and death. This is your ultimate fate and what happens to you after you have left the physical world should still be respectful of your dignity and protect the rights of your loved ones.

You have the right to a dignified burial and there are laws that have been put in place to protect your deceased body and regulate its disposal. These laws protect both public interest, such as health and environmental considerations, and private interest such as protecting your family and community.

Your family is left with the responsibility of deciding what to do with your remains. Should your body be buried or cremated? This can a daunting decision to make for any loved one. The National Health Act sets out the standards of compliance and the rules in relation to all matters related to the disposal of dead bodies including transportation, autopsies burials, and cremations. As your companion, we can assist in helping you understand these standards and ensure your loved one’s funeral is what you wanted it to be.

Who has the legal right to make decisions about the deceased’s body?

If there is a dispute amongst the family members, whether cremation or burial should take place, the funeral director has no legal guidelines as to who has the final say.

If your family cannot agree on where to bury you or whether to decide if you’ll be buried or cremated, the person who has the legal power to make these decisions will be the executor named in your will.

If you didn’t leave a will behind, or if the will is invalid or doesn’t name an executor, then this decision-making power is usually left with your closest family member.

Another factor that will influence how your family chooses to lay you to rest is dependent on your cultural and religious beliefs. There are many cultural norms that are prevalent in our country and you have the right to a traditional burial practice according to your faith or beliefs.

Types of human body disposal and rights and obligations:

Burial

A burial is when the deceased is buried in a coffin. All burials must be registered with your local authority. It is illegal to bury human remains outside a lawfully established cemetery or approved natural burial ground. By law, the standard size of a grave is as follows:

• An adult's grave must measure 2 300 mm in length and 900 mm in width and 2000 mm in depth.
• A child's grave must measure 1 500 mm in length and 700 mm in width and 1 500 mm in depth.

Cremation

Cremation is the process of burning a dead body at very high temperatures until there are only brittle, calcified bones left, which are then pulverized into 'ashes'. These remains can then be kept in an urn, buried, scattered or even incorporated into objects as part of the last wishes of the deceased.

The issues surrounding cremation are intricate because once a body has been burnt, there is no turning back - unlike a burial where the body can be exhumed.

Autopsy

The South African law requires for a post mortem to be performed on the deceased when a person dies of unnatural causes in order to determine the cause of death. The permission of the family is not needed to perform the autopsy and the next of kin cannot deny this process.

Transportation

You can’t transport a dead body on your own, you’ll need to contract a funeral undertaker or specialised transport company. The remains must be embalmed and placed in a non-transparent coffin or airtight container. The body must be transported in a respectful and dignified manner.

Health issues and directions on the management of COVID-19 human remains

COVID-19 has changed the way we bury our loved ones with more people opting for cremations or grave recycling. In the case of the latter, more than two bodies may be buried in one single grave at the discretion of the municipality; provided that not more than two coffins shall be used; provided further that the lid of the second coffin placed in the grave under no circumstances be less than 900 mm from the surface.

The human remains should only be taken to the deceased’s home on the day of the burial and viewing is only allowed under a controlled environment within a mortuary or funeral undertakers premises. These measures are necessary to control the spread of COVID-19 amongst mourners.

The funeral directors and families should handle deceased bodies with Personal Protection Equipment (PPE) and human remains that died of COVID-19 should be buried in a body bag.

With Legal&Tax you’re not alone

Remember, we are your companion to ensuring dignity in death. Choose one of our funeral policiesor speak to our experts for advice on a funeral plan to bring peace of mind to loved ones left behind.

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