Supreme Court of Appeal secures the right to bury for the landless

Date: 08/07/2019

LHR welcomes the judgment handed down by Maya P in the Supreme Court of Appeal on Monday, 8 July 2019, where it confirmed the right of the Mampies family to bury their deceased in accordance with their religious and cultural beliefs.The court dismissed an appeal brought by Sandvliet Boerdery (Pty) Ltd, against a judgment by Poswa-Lerotholi AJ handed down in September 2017 in the Land Claims Court, Randburg (LCC).

In case dealt with the Mampies family, who had for generations, resided on three farms collectively known as Montina, outside Groblershoop in the Northern Cape. The farms were later subdivided into three areas colloquially known as “Bo-Plaas”, “Middel-Plaas” and “Onder-Plaas”, which were registered at the Deeds Registry as three distinct cadastral units – however, the occupiers continued to understand, use and reside on the property as if it was a single piece of land. In other words, the occupiers had the permission of the landowners, and successors in title to navigate between the farms, graze their livestock and of significance in this matter, bury their deceased at their ancestral graveyards located in Montina.

In 2015, Sandvliet Boerdery purchased one the Montina farms, namely “Middel-Plaas” where a portion thereof had an established grave site. When Mrs Mampies approached the new owners in September 2017 to arrange the burial of her deceased niece, she was refused permission and was threatened with the police. Sandvliet Boerdery based its decision on the section 6(2)(dA) of the Extension of Security of Tenure Act (ESTA), which states that an occupier only has the right to bury on land on which they live. The owners therefore argued that since the Mampies family, including the deceased, only reside on “Onder-Plaas”, they do not have the requisite right to bury on “Middel-Plaas”. This is despite the long-standing practice and permission by predecessors in title to do so.

With the help of LHR’s Land and Housing Unit, an urgent application was launched in the LCC, where the Mampies family was victorious as the Court held that occupiers in terms of ESTA have the right to bury their deceased family members on land which they do not currently occupy, provided that there exists an established practice of doing so. This is particularly the case since the Mampies family were practically impeded from burying where they live, as the gravesite on “Onder-Plaas” had reached capacity, thus necessitating the extension to Middel-Plaas with the necessary permission in hand.

Sandvliet Boerdery appealed to the SCA, where it argued that the SCA 2006 judgment of Dhlamini and Another v PJ Joosten and Others is binding on the Mampies family, as it adopted a strict interpretation of the right to bury in terms of section 6(2)(dA) of ESTA where the understanding of ‘land’ is restricted to its cadastral descriptions as formally registered.

LHR, however, argued that the Dhlamini judgment has far-reaching consequences for farm occupiers and their rights to bury on land belonging to another, particularly in this context. Perhaps at the heart of this matter is the concern that to maintain a formal and nominal understanding of ‘land’ will have absurd results and exist in law as a stumbling block to the realisation of tenure security for the landless. It is a constitutional imperative that the definition of ‘land’ also reflect the experiences of those who work and live on land they do not own.

However, the SCA in this recent judgment decided to focus its attention on the meaning of “reside”, which has no definition in ESTA. The Court found that it was necessary to adopt a contextual approach in the interpretation of section 6(2)(dA) of ESTA, wherein the rights of the occupier and the owner are balanced and the meaning of ‘reside’ includes the use of a graveyard in these circumstances. Further that once the owners, previous or successive, gave consent to the practice of burying in Middel-Plaas, such permissions cannot be unilaterally evoked.  Therefore, the appeal was dismissed.


For further information, please contact:

Louise du Plessis

Lawyers for Human Rights

Land and Housing Programme

012 320 2943/ 082 346 0744

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