By Thabiso Mbhense

This is one of the thorny issues between the owners of farms and occupiers of farms in South Africa. On the one hand, land owners feel that as owners of land they have a right to enjoy undisturbed use and ownership of their land. On the other hand, occupiers feel that as occupiers of land they have a right of security of tenure including the right to bury their deceased family members on land where they reside.

Both the land owners and occupiers are protected by s 25 of the Constitution. As a result of s 25(9) of the Constitution, an Extension of Security of Tenure Act 62 of 1997 (ESTA), was promulgated in order to specify and regulate the rights and duties of occupiers and land owners.

In order for an ‘occupier’ to enjoy protection under s 6(2)(dA) of the ESTA, he or she must establish on the balance of probabilities that –

• he or she is an ‘occupier’ on the farm where he or she intends burying the deceased on;

• the deceased was a member of his or her family;

• the burial sought would be in accordance with his or her religious and/or cultural beliefs;

• the deceased was residing on land, which the occupier resided at the time of death of the deceased; and

• an established practice on land exists to bury deceased family members.

It is clear that in terms of s 6(2)(dA) of ESTA, the burial of the deceased on land must be done according to an occupier’s religion or culture. For example the direction that the deceased’s body must face on burial, the depth and size of the grave in the ground, the nature of the ceremony that accompanies the burial, and so on, must be in accordance with an occupier’s religious or cultural beliefs.

It is very important to note that the landowner (or person in charge of the land) may not restrict the nature of the burial including the ceremony to be something less than or different from what the religion and cultural demands. However, the qualification of the burial with regard to religion and culture offer protection to both land owner an occupier. The land owner is protected in the sense that an occupier has to practice his or her culture and religion in a reasonable manner.

Without having expressly decided the point, this interpretation is certainly in accordance with the interpretation adopted by the full Bench in Nhlabathi and Others v Fick [2003] 2 All SA 323 (LCC) para 36.

As explained above, one of the requirements that an occupier who intends burying the deceased on land must satisfy is that ‘an established practice in respect of the land exists’.

This requirement, however, is that the practice must exist for ‘people living on the land’. There is nothing in the wording of the definition to suggest that it must be peculiar to the particular family in question and or family of the deceased. This is supported by the Supreme Court of Appeal (SCA) in the case of Dlamini And Another v Joosten And Others 2006 (3) SA 342 (SCA). In para 19 the SCA stated that: ‘In so deciding, the court a quo erroneously interpreted s 6(2)(dA) to require the established practice to relate to a particular family, whereas the section clearly links the “established practice” to “people residing on the land”. It is not confined to particular families. The respondents were therefore correct in conceding that the court a quo’s interpretation of the section is wrong.’

But it must be taken into account that most people, including some of the presiding officers such as magistrates and judges, are of the opinion that an ‘established practice’ must be in respect of an occupier’s family who intends burying on land. This cannot be the intention of the legislature and is therefore wrong. Balancing the rights of the land owner and the rights of an occupier who intends burying the deceased on land is very important. Most of the land owners in denying occupiers rights to bury their deceased family members on land often say the water on the land would be contaminated or the value of their land would diminish should an occupier be permitted to bury his or her deceased family member on land. But this argument has no value due to the fact that, where there is an established practice on land, people have already buried their deceased family members on land and the water had already been contaminated. Furthermore the grave is permanent in nature. This is supported by the Dlamini case at para 16, where Cachalia AJA said: ‘The burial right is in the nature of a personal servitude which the occupier has over the property on which he possesses a real right of residence at death of a family member who at the time of death was residing on the land’.

Some of the land owners are of the opinion that they can terminate rights and an established practice of occupiers unilaterally as they wish. But this opinion is wrong and should be discontinued because once an established practice has developed, it cannot be unilaterally changed or terminated. This is also supported by the Dlamini case where the Supreme Court of Appeal has decided that an established practice cannot be withdrawn unilaterally.

There is also a special category of occupiers who enjoy special protection in terms of ESTA. In terms of s 6(5) of ESTA, an occupier who has been on the land for ten years or more and has reached the age of 60 years or was employed by the landowner or person in charge of the farm, but was unable to work due to ill health is entitled to be buried on land where he or she was residing at the time of his or her death.

• See also 2014 (Aug) DR 22.

Thabiso Mbhense BIur LLB (UKZN) is an attorney at the Legal Resources Centre in Johannesburg.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 42.