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[2001] ZASCA 98
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Nkosi and Another v Buhrmann (1/2000) [2001] ZASCA 98; 2002 (1) SA 372 (SCA); 2002 (6) BCLR 574 (SCA) (25 September 2001)
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 1/2000
In the matter between:
GRACE CHRISSIE
NKOSI
First Appellant
JOSEPH MANDLA NKOSI
Second Appellant
and
GIDEON WILHELMUS BÜHRMANN
Respondent
___________________________________________________________________
CORAM:
HOWIE,
HARMS, STREICHER, MPATI JJA and
NUGENT
AJA
___________________________________________________________________
Date
of Hearing:
4 September 2001
Date Delivered:
25 September
2001
Occupier under Extension of Security of Tenure Act - whether has
right to bury family member on land of owner without owner's
consent.
___________________________________________________________________
J U D G M E N T
____________________________________________________________________________________________
HOWIE JA
The Background
[1]
This case raises a sensitive and emotionally contentious question
involving, on the one hand, the right to religious freedom, and
particularly the
right to practise one's religion, and, on the other hand, the right not to be
deprived of one's land except by law.
Central to the dispute are the
provisions of the Constitution (Act 108 of 1996) and the
Extension of Security
of Tenure Act 62 of 1997
("the
Act"). The
first appellant, who, by agreement
between the parties, is to be regarded for the purposes of this litigation as an
"occupier" within
the meaning of the
Act, and
as entitled to relief, if any,
from the High Court and not the Land Claims Court, wishes to have the body of
her late son, Petros
Nkosi, buried on a farm in the Ermelo district where she
resides as such an occupier. The respondent, who is the owner of the farm,
refuses consent for the burial.
[2]
Petros Nkosi died in
1999. When the first appellant indicated her intention to have him buried on
the farm the respondent sought
an order in the High Court at Pretoria
interdicting the burial. The application failed. An appeal to the Full Court
of the Transvaal
Provincial Division succeeded by a majority and an interdict
was granted. On appeal with the necessary leave, the first appellant
maintains
that she is, despite the respondent's refusal of consent, entitled as of right
to have her deceased son's body interred
on the farm.
[3]
The
judgments of the Full Court are reported as
Bührmann v Nkosi and
Another
(1999) 3 All SA 337
,
2000 (1) SA 1145
(T). The second
appellant is another son of the first appellant. While he supports her cause,
his involvement is of no greater
present significance than that and for
convenience I shall refer in what follows to the first appellant as "the
appellant".
[4]
The respondent having sought relief in final form,
it is trite law that the decisive facts where, as here, there are conflicts on
the papers, are those alleged or admitted by the appellant.
The
relevant facts
[5]
The appellant first came to the farm with her husband and family in
1966. It was then owned by the respondent's late father. Both
rural people,
the appellant and her husband had been farm workers from an early age. In
return for their labour they had been afforded
the right to live on the land, to
graze their stock in areas allocated by the land owner and to raise their own
crops. In precisely
the same way they continued to earn their livelihood when
they worked for the respondent's father. They established a homestead
on the
farm and while her husband was a tractor driver and general labourer the
appellant worked in the farmhouse as a domestic employee.
In due course Petros
Nkosi was born to them. That was in January
1968.
[6]
Shortly before that a grandchild of theirs died
and they reported this to the respondent's father. In that regard the
appellant
says the following in her opposing affidavit (referring to the
respondent's father):
"He then pointed out an area on the farm we could use to bury the child and that
area was subsequently set aside for our family burials.
Consistent with our
tradition and cultural beliefs, my husband and his mother (my mother-in-law)
performed the rituals necessary
to declare and introduce that piece of ground as
an official home for our ancestors. I must state that it is our custom and
religious
belief that when a member of our family passes away, he/she gets only
physically separated from us but spiritually that person will
always be with us
and is capable of sharing a day to day life with us though in a different form.
It is against this background
that a graveyard to us is not only a place to bury
our deceased, but a second home for those of us who live in the world of
spirits.
Once a certain piece of ground is declared a home to our ancestors,
it remains so until another ritual is accordingly performed
by the elders
clothed with the necessary capability. We then buried our grand-child. Since
the death of our first grandchild
we have buried seven more family members in
the area that was allocated to us by Mr Bührmann, the eldest being Jane
Nkosi (my
husband's mother) and Mjalimane Nkosi (my husband's younger brother)
and the rest are my grandchildren.
[7]
The respondent became the owner of the farm in 1970 and the appellant
and her husband worked for him until about 1981 when they moved
to an adjacent
farm. There, in 1986, the appellant's husband died and, with the consent of
the owner of that property, was buried.
The appellant says that that burial,
not being on the respondent's farm, was contrary to her custom and religious
beliefs.
[8]
In about 1987 the appellant and her family returned to the
respondent's farm and, with one or more of her sons, she has lived there
since
then with the respondent's consent, residing in what she refers to as the family
homestead and running their stock on a communal
grazing area.
[9]
In the context of the appellant's assertions quoted in paragraph [6]
above it would seem that all the burials in the area pointed
out by the
respondent's father took place during the latter's time as owner. She does not
allege that any of the burials she refers
to occurred after that or, if they
did, that the respondent either consented to them or knew of them but did not
object. It is
not clear, moreover, whether the respondent's father gave
consent for each burial or whether he gave consent at the outset which
covered
all future burials that there might be during his time as owner. Finally, she
fails to explain who "subsequently set aside"
the area for future burials and in
what circumstances that demarcation occurred.
[10]
There are indications in the appellant's opposing affidavit that in
view of the time constraints imposed by the respondent's interdict
application
she contemplated leading oral evidence relevant to her alleged right to bury her
son on the farm. However the litigation
proceeded without her having sought
that opportunity.
[11]
For the sake of completeness it should be mentioned that the
respondent's refusal of consent in the present case is, to judge from
his
replying affidavit, based on the attitude that the appellant and her sons,
including the deceased, were not his employees and
that not even employees or
their families are in his view entitled as of right to burial on the farm.
However, so he says, his
staff are aware that he will usually give favourable
consideration to any request from them for such burials. The papers also
indicate
that a labour dispute arose during 1995 between the respondent and some
of the appellant's sons (not involving the deceased) and
that this history may
have engendered some antipathy on both sides. However, as will emerge
presently, the issue before us is essentially
one of principle and statutory
construction.
The decisions of the Courts below
[12]
In the proceedings at first instance the Court (Cassim AJ) held
that although the
Act did
not afford the appellant the right she sought, she had
nonetheless acquired it by way of an unregistered servitude granted by the
respondent's father.
[13]
On appeal to the Full Court three judgments were handed down. Du
Plessis J held that in the absence of evidence that the respondent
took
ownership of the farm with the knowledge that his father had agreed that burials
could occur without the owner's consent, any
unregistered servitude did not bind
the respondent. The learned Judge also held that on a proper construction of
the
Act it
did not afford an occupier the right to bury without the owner's
consent. In a concurring judgment, Satchwell J concluded that
the right to
practise one's religion could not, as of right, be exercised in a manner which
permanently deprived a land owner of
the rights of ownership over portion of the
land.
[14]
In the minority judgment, Ngoepe JP referred to a number of
international instruments and to constitutional writers, stressing that
the
right to freedom of religion and belief included the freedom manifestly to
practise one's religion. That right having been
conferred upon occupiers
vis-a-vis
owners by
s 5(d)
of the
Act, a
balancing of their competing
rights warranted the conclusion that in this particular case the appellant had
the right to bury her
son even if its exercise would cause some curtailment of
the rights of ownership.
The Constitution
[15]
Under the Constitution's Bill of Rights everyone has, among other
rights, the respective rights to human dignity (s 10), privacy
(s 14), freedom
of religion, belief and opinion (s 15(1)), freedom of association (s 18) and
freedom of movement (s 21). All those
specific rights are, in
s 5
of the
Act,
conferred
on occupiers, owners and persons in charge of land. The provisions
of
s 5
will be reverted to later in this judgment.
[16]
In terms of s 25 of the Constitution no one may be deprived of
property except in terms of law of general application, no law may
permit
arbitrary deprivation of property and no expropriation may be without
compensation.
[17]
Under s 36 of the Constitution the rights entrenched by the Bill of
Rights may only be limited by a law of general application where
such limitation
is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom. A
limitation of the same import is contained in
s 5
of the
Act, to
be effected, not by another law but by the exercise of the
competing rights conferred upon the persons referred to in that section.
[18]
In construing the
Act the
courts are enjoined by s 29(2) of the
Constitution to promote the spirit, purport and objects of the Bill of
Rights.
The provisions of the
Act
[19
]
The
Act came
into operation on 28 November 1997. Its own spirit,
purport and objects are encapsulated by its long title and preamble. They
read
as follows:
"To provide for measures with State assistance to facilitate long-term security
of land tenure; to regulate the condition of residence
on certain land; to
regulate the conditions on and circumstances under which the right of persons to
reside on land may be terminated;
and to regulate the conditions and
circumstances under which persons, whose right of residence has been terminated,
may be evicted
from land; and to provide for matters connected
therewith.
WHEREAS many South Africans do not have secure tenure of their homes and the
land which they use and are therefore vulnerable to
unfair eviction;
WHEREAS this situation is in part the result of past discriminatory laws and
practices;
AND WHEREAS it is desirable -
that the law should promote the achievement of long-term security of tenure for
occupiers of land, where possible through the joint
efforts of occupiers, land
owners and government bodies.
that the law should extend the right of occupiers, while giving due recognition
to the rights, duties and legitimate interests of
owners;
that the law should regulate the eviction of vulnerable occupiers from land in a
fair manner, while recognising the right of land
owners to apply to court for an
eviction order in appropriate circumstances;
to ensure that occupiers are not further prejudiced;
[20]
Chapter I of the
Act comprises
three sections.
Section 1
is the
definition section. The relevant definitions are
these:
"
'consent'
means express or tacit consent of the owner or person in
charge of the land in question ...;
'evict'
means to deprive a person against his of her will of residence
on land or the use of land or access to water which is linked to a
right of
residence in terms of this
Act
, ...'
...
'occupier'
means a person residing on land which belongs to another
person, and who has or on 4 February 1997 or thereafter had consent or another
right in law to do so, but
excluding
(a) a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996 (Act
No. 3 of 1996);
(b) a person using or intending to use the land in question mainly for
industrial, mining, commercial or commercial farming purposes,
but including a
person who works the land himself or herself and does not employ any person who
is not a member of his or her family;
and
(c) a person who has an income in excess of the prescribed amount; ...
'off-site development'
means a development which provides the occupants
thereof with an independent tenure right on land owned by someone other than
the
owner of the land on which they resided immediately prior to such
development;
'on-site development'
means a development which provides the occupants
thereof with an independent tenure right on land on which they reside or
previously
resided;
'owner'
means the owner of the land at the time of the relevant act,
omission or conduct, and includes, in relation to the proposed termination
of a
right of residence by a holder of mineral rights, such holder in so far as such
holder is by law entitled to grant or terminate
a right of residence or any
associated rights in respect of such land, or to evict a person occupying such
land;
'person in charge'
means a person who at the time of the relevant act,
omission or conduct had or has legal authority to give consent to a person to
reside on the land in question;
'suitable alternative accommodation'
means alternative accommodation
which is safe and overall not less favourable than the occupiers' previous
situation, having regard
to the residential accommodation and land for
agricultural use available to them prior to eviction, and suitable having regard
to
-
(a) the reasonable needs and requirements of all of the occupiers in the
household in question for residential accommodation, land
for agricultural use,
and services;
(b) their joint earning abilities;
and
(c) the need to reside in proximity to opportunities for employment or other
economic activities if they intend to be economically
active;
'terminate'
includes to withdraw consent to a person to occupy or use
land;"
[21]
Under the provisions of s 2 read with s 1(2) the Act applies, with
one exception, to all land, including State land. The exception
is land in or
encircled by an area which by law is an established, approved, proclaimed or
recognised township. Despite that exception,
there are two instances in which
land even within a township falls within the sphere of application of the Act.
One is land legislatively
designated for agricultural purposes and the other is
land "occupied" under the Act and which is included within a township that
comes
into existence after 4 February 1997.
[22]
In terms of s 3, consent to an occupier to reside on or use land may
only be terminated in compliance with the requirements of s
8.
[23]
Chapter II is entitled "Measures to facilitate long-term security of
tenure for occupiers" and comprises s 4 of the Act. Section
4 empowers the
Minister of Land Affairs to grant applications for subsidies for the
establishment of on-site and off-site developments.
The subsidy monies have to
be appropriated by Parliament for this purpose and in the establishment of such
developments the Minister
may enlist the aid of provincial and municipal
authorities. The provisions of the section which are of particular present
relevance
are those of s 4(1)(b), in terms of which these subsidies will "enable
occupiers, former occupiers and other persons who need long-term
security of
tenure to acquire land or rights in land" and those of s
4(5):
"(5) No transfer duty shall be payable in respect of any transaction for the
acquisition of land in terms of this section or in respect
of any transaction
for the acquisition of land which is financed by a subsidy in terms of this
section."
[24]
Chapter III of the Act is entitled "Rights and Duties of Occupiers
and Owners". It contains three sections reading as
follows:
"5. Fundamental rights.
- Subject to limitations
which are reasonable and justifiable in an open and democratic society based on
human dignity, equality
and freedom, an occupier, an owner and a person in
charge shall have the right to –
(a) human dignity;
(b) freedom and security of the
person;
(c) privacy;
(d) freedom of religion, belief and opinion and of
expression;
(e) freedom of association; and
(f) freedom of movement,
with due regard to the objects of the Constitution and this Act.
6. Rights and duties of occupier.
– (1) Subject to the provisions
of this Act, an occupier shall have the right to reside on and use the land on
which he or
she resided and which he or she used on or after 4 February 1997,
and to have access to such services as had been agreed upon with
the owner or
person in charge, whether expressly or tacitly.
(2) Without prejudice to the generality of the provisions of section 5 and
subsection (1), and balanced with the rights of the owner
or person in charge,
an occupier shall have the right –
(a) to security of tenure;
(b) to receive
bona fide
visitors at reasonable times and for reasonable
periods:
Provided that –
(i) the owner or person in charge may impose reasonable conditions that are
normally applicable to visitors entering such land in
order to safeguard life or
property or to prevent the undue disruption of work on the land; and
(ii) the occupier shall be liable for any act, omission or conduct of any of his
or her visitors causing damage to others while such
a visitor is on the land if
the occupier, by taking reasonable steps, could have prevented such damage;
(c) to receive postal or other
communication;
(d) to family life in accordance with the culture of that family: Provided that
this right shall not apply in respect of single
sex accommodation provided in
hostels erected before 4 February
1997;
(e) not to be denied or deprived of access to water; and
(f) not to be denied or deprived of access to educational or health
services.
(3) An occupier may not –
(a) intentionally and unlawfully harm any other person occupying the
land;
(b) intentionally and unlawfully cause material damage to the property of the
owner or person in charge;
(c) engage in conduct which threatens or intimidates others who lawfully occupy
the land or other land in the vicinity; or
(d) enable or assist unauthorised persons to establish new dwellings on the land
in question.
(4) Any person shall have the right to visit and maintain his or her family
graves on land which belongs to another person, subject
to any reasonable
condition imposed by the owner or person in charge of such land in order to
safeguard life or property or to prevent
the undue disruption of work on the
land.
7. Rights and duties of owner.
- (1) The owner or person in charge may
have a trespassing animal usually or actually in the care of an occupier
impounded and
removed to a pound in accordance with the provisions of any
applicable law, if the owner or person in charge has given the occupier
at least
72 hours’ notice to remove the animal from the place where it is
trespassing and the occupier has failed to do so:
Provided that the owner or
person in charge may take reasonable steps to prevent the animal from causing
damage during those 72
hours.
(2) An owner or person in charge may not prejudice an occupier if one of the
reasons for the prejudice is the past, present or anticipated
exercise of any
legal right.
(3) If it is proved in any proceedings in terms of subsection (2), that the
effect of the conduct complained of is to prejudice
an occupier as set out in
that subsection, it shall be presumed, unless the contrary is proved, that such
prejudice was caused for
one of the reasons referred to in subsection (2)."
[25]
Chapter IV, comprising s 8 to s 15, contains detailed provisions
applicable to the termination of occupiers' rights and their eviction.
Demanding requirements are set before an occupier can, by due process, be
lawfully evicted. Of present relevance are certain terms
of s 8 and s 14.
[26]
Section 8 contains the
following:
"(4) The right of residence of an occupier who has resided on the land in
question or any other land belonging to the owner for
10 years and
-
(a) has reached the age of 60 years; or
(b) is an employee or former employee of the owner or person in charge, and as
a result of ill health, injury or disability is unable
to supply labour to the
owner or person in charge,
may not be terminated unless that occupier has committed a breach contemplated
in section 10(1) (a), (b) or (c): Provided that for
the purposes of this
subsection, the mere refusal or failure to provide labour shall not constitute
such a breach.
(5) On the death of an occupier contemplated in subsection (4), the right of
residence of an occupier who was his or her spouse
or dependant may be
terminated only on 12 calendar months' written notice to leave the land, unless
such a spouse or dependant has
committed a breach contemplated in section
10(1)"
[27]
In s 14 there appears the following in relation to the restoration
of an occupier's rights consequent upon unlawful
eviction:
"(3) In proceedings in terms of subsection (1) or (2) the court may, subject
to the conditions that it may impose, make an order
-
(a) for the restoration of residence on and use of land by the person
concerned, on such terms as it deems just;
(b) for the repair, reconstruction or replacement of any building, structure,
installation or thing that was peacefully occupied
or used by the person
immediately prior to his or her eviction, in so far as it was damaged,
demolished or destroyed during or after
such eviction;
(c) for the restoration of any service to which the person had a right in
terms of section 6;"
[28]
The last provision of the Act to which reference should be had is s
24. It reads:
"24.
Subsequent owners.
- (1) The rights of an occupier shall, subject to
the provisions of this Act, be binding on a successor in title of an owner or
person
in charge of the land concerned.
(2) Consent contemplated in this Act given by the owner or person in charge of
the land concerned shall be binding on his or her
successor in title as if he or
she or it had given it.
The argument for the appellant
[29]
Consideration was given to the question whether the appellant's
allegations provide a possible foundation for the inference that
the
respondent's father tacitly agreed or consented that subsequent burials of the
appellant's relatives could take place in the
allocated ground without reference
to him for permission (in which event the possible applicability of s 24(2)
could arise). However,
counsel for the appellant accepted that this was not her
case on the papers and he did not contend for such agreement or consent.
Counsel's approach in this regard was correct. The consent on which her
residence and her ancillary right depend is, in view
of the definition of
"occupier", the consent which prevailed on or after 4 February 1997 and that
consent was the consent of the
respondent, not his father. Consequently s
24(2) does not assist the appellant. The consent to which it binds a later
owner is
consent "contemplated in (the) Act" and the father's consent was not
such consent. Moreover the consent of the father, if given,
would probably
only have been effective up till the time the appellant left the farm in
1981.
[30]
In addition, although mindful of such impetus as the existence of
the established family graves might appear to give her case, counsel
made it
clear that his argument in support of the claimed burial right would have been
exactly the same even had there been no prior
graves and even had the appellant
been a new "occupier" whose first family bereavement this was. In essence his
argument was that,
simply as "occupier", the appellant was entitled in terms of
the provisions of the Act, properly construed, to bury as of right as
an adjunct
of the right of freedom of religion.
[31]
With regard to the limitations clause in the introductory word of s
5, counsel contended that s 5(d) and s 6(1) were by themselves
sufficient to
create the claimed right and he urged that the appeal should be upheld without
recourse to a limitations balancing
analysis. He pointed out that the
respondent had not in fact sought on the papers to establish any basis for a
limitations exercise.
[32]
In developing his argument, counsel contended that the fundamental
rights conferred by the Constitution, as enumerated in s 5 of the
Act, were
imported into that statute to ensure that occupiers can use and enjoy those
rights, not just in general or in the abstract,
but effectively and in the very
setting where they live and where they pursue their essential livelihood. The
section therefore
requires owners to tolerate the exercise of those rights on
their land. In this way content is given to the s 5 rights and those
rights in
turn give content to the s 6(1) rights of residence and land use. Basic to the
use of land by rural people is the association
between the land, the family and
the exercise of religious rights. This link is recognised by s 6(4). Central
to religious practice
are the rituals of burying the dead. It follows, so ran
the argument, that because the land they occupy is the only resource by
means of
which occupiers such as the appellant can exercise their religious right and
manifest its practice, such right must include
the right to bury their dead on
that land. To that right, therefore, the right of ownership has to yield. It
follows, said counsel,
that the majority in the Court below gave too narrow a
meaning to the right of use conferred by s 6(1). Use, he said, had
to
include use for burial purposes not only by reason of the submissions I have
already summarised, but also because the Legislature,
in aiming to provide for
long-term security of tenure, must necessarily have envisaged connections of
long duration between occupiers
and their families with the land. In the
lifetime of such occupiers family deaths are an inevitability and it was
intended that
the rights of occupation should accommodate and include the right
to bury the family's dead.
The respondent's argument
[33]
In the submission of the respondent's counsel s 5 of the Act did not
add anything to the content of the right of freedom of religion
that was not
already part of the right conferred by s 15(1) of the Constitution. The
purpose of s 5 was to effect horizontal application
of the constitutional right
as between the three categories of person referred to in the section.
Accordingly the legislative object
was not to confer rights of use in respect of
the land but to regulate the relationship of owners, persons in charge and
occupiers
as between themselves. It was s 6, said counsel, that conferred
rights in respect of the land itself. In s 6(1) those were limited
to
residence and to a degree of agricultural use of the land as was connected with
such residence, with s 6(2) adding certain subsidiary
residence-related rights.
In the circumstances the Act did not seek to deal with burial at all and the
legislature certainly cannot
be understood as having intended to deprive
landowners of rights in their property without compensation. Finally, it was
to be
borne in mind that burials were throughout the country regulated by
subordinate legislation. In the case of land within the jurisdiction
of the
Town Council of Ermelo, such legislation required that burials take place only
in a public cemetery set apart by the council
for such purpose and that the
council's written permission was necessary for burials elsewhere.
Laws concerning burials
[34]
Close legislative regulation of burials is obviously necessary both
in regard to considerations of public health and in order to
control and record
the incidence of burials, particularly when deaths due to unnatural causes may
be involved. In Mpumalanga Ordinance
17 of 1939 of the former province of
Transvaal authorises municipal councils to establish cemeteries and to compel
burials in a proper
burial-ground or cemetery both within their municipal areas
and even in outside areas held by such municipalities for cemetery purposes.
The relevant provision relating to Ermelo is contained in a by-law approved by
the erstwhile provincial Administrator and published
in Provincial Gazette of 4
June 1980 under Administrator's Notice 658. This was handed up by the
respondent's counsel as being
the currently operative provision.
[35]
It is nowhere suggested on the papers that the respondent's farm is
within any area of municipal jurisdiction but it is also not
alleged by the
appellant that for monetary or practical reasons it would have been impossible
or even difficult to have Petros buried
in a cemetery lawfully established.
The nature and property implications of a grave
[36]
Apart from a variety of legislative provisions which criminalise
violations of graves it is an offence at common law to desecrate
a grave. In
addition, establishment of a grave could also involve a servitude over the land
in which it is sited. Nonetheless
the common law does entitle an owner, in the
absence of a breach of contract or a servitude, to remove a grave's railing and
tombstone
as long as no violation of the grave occurs. In these respects see
Lawsa
, First Reissue, vol 20, part 2, 279, paras 324 and 325.
[37]
Section 6(4) alters the common law position in that everyone may
now, as of right, visit and maintain family graves on land belonging
to someone
else. Subject to reasonable conditions imposed by the owner or person in
charge as to safeguarding life or minimising
work disruption on the land
concerned, this subsection, apart from imposing what is in effect a right of way
over the land, entitles
family of the buried deceased to maintain graves
indefinitely, including tombstones and railings, if any.
[38]
The impact of all these provisions is that a grave, practically and
legally, effects a permanent diminution of the right of ownership
of the land.
If a grave site could be taken by an occupier as of right this would amount to
an appropriation.
Interpretation of the Act's relevant provisions
[39]
Counsel for the appellant presented his case on the basis that s 15
of the Constitution did not afford the appellant the right she
claimed and that
she was necessarily dependent on the terms of s 5(d) of the Act. Nevertheless
he did not contend that the right
conferred by s 5(d) was any different in scope
and content form the right granted by s 15(1) of the Constitution.
[40]
It seems to me to be convenient to undertake the interpretative
exercise by starting with a discussion of the s 5(d) right to religious
freedom.
If that right includes the right to effect burials on the land without the
owner's consent then "use" in s 6(1) will obviously
have to be interpreted as
including that entitlement. On the other hand, if the right claimed by the
appellant is not included
within the ambit of s 5(d) then one will have to
enquire whether the other provisions of the Act nevertheless confer that right.
Of course, dividing up the exercise in this way is purely a matter of discursory
convenience. The required analysis must in the
end cover all the relevant
statutory provisions read as a whole particularly when, conceivably, s 5(d) may
bear on the rest or the
rest may bear on s 5(d).
[41]
Of the right to freedom of religion the following was said in
S v
Lawrence; S v Negal; S v Solberg
1997 (4) SA 1176
(CC) at 1208 in the
judgment of Chaskalson P [para 92]:
"In the
Big M Drug Mart
case [
R v Big M Drug Mart Ltd
(1985) 13
CRR 64
at 97, a decision of the Supreme Court of Canada] Dickson CJC
said:
'The essence of the concept of freedom of religion is the right to entertain
such religious beliefs as a person chooses, the right
to declare religious
beliefs openly and without fear of hindrance or reprisal, and the right to
manifest religious belief by worship
and practice or by teaching and
dissemination."
I cannot offer a better definition than this of the main attributes of freedom
of religion. But, as Dickson CJC went on to say,
freedom of religion means
more than this. In particular he stressed that freedom implies an absence of
coercion or constraint and
that freedom of religion may be impaired by measures
that force people to act or refrain from acting in a manner contrary to their
religious beliefs."
[42]
And at 1216 [para 122] O'Regan J, in a passage relied on by the
appellant's counsel, said this:
"Requiring that the government act even-handedly does not demand a commitment to
a scrupulous secularism, or a commitment to complete
neutrality. Indeed, at
times giving full protection to freedom of religion will require specific
provisions to protect the adherents
of particular religions, as has been
recognised in both Canada and the United States of America. The requirement of
even-handedness
too may produce different results depending upon the context
which is under scrutiny,"
[43]
The right of religious freedom and practice came under consideration
again in
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC) where the focus was on the freedom to manifest one's religion
not just individually but in community with others as allowed
by the rights
conferred by s 31(1) of the Constitution. Appellant's counsel did not rely on
s 31(1) and the appellant laid no claim
to be one of a religious community as
such but it is not without significance that when s 31(1) allows persons
belonging to a religious
community to practise their religion s 32(2) requires
that the exercise of that right be not inconsistent with any provision of the
Bill of Rights. Although tension between different entrenched rights is
sometimes unavoidable the law would be unacceptably contradictory
if it barred
communal religious practice from infringing property rights but permitted
individual religious practice to do so.
[44]
Both in
Lawrence
and
Christian Education
the
Constitutional Court was concerned with the application of the Bill of Rights in
so far as it affected, or was affected by,
the rights and obligations of the
State. In neither case was it necessary or relevant to consider the horizontal
application of
the entrenched rights as between fellow citizens.
[45]
Apart from that, in neither case was it said or suggested that for
the practice of one's religion one may demand assistance, whether
financial or
patrimonial, from another, much less that one may actively diminish another's
patrimony by way of appropriation. True,
one is entitled to freedom from
conduct which forces one to act contrary to one's beliefs. And it could be
argued that interdicting
the proposed burial in this case was a measure aimed at
constraining the appellant's practice of her religious beliefs. However,
that
was not argued by the appellant's counsel and the argument would in any case not
have assisted her cause. That is because
the very question under consideration
is whether the right to freedom of religion does in law entitle her to take some
of the respondent's
land for a grave.
[46]
It is undeniable that funeral and graveside rites, rituals and
ceremonies are very much part of religious beliefs and practice.
What the
evidence in this case shows is that the appellant's beliefs are that the
existing family graves constitute a spiritual home
for her ancestors and
therefore the site where subsequent family dead should be buried. What renders
this particular land appropriate
for the burial (apart form its convenience) is
that it has been consecrated for family burials. She does not, and cannot,
claim
that this grave site comprises the only place where her religious burial
dictates could possibly be satisfied. Obviously that was
not the position
before she lived on the farm or when her residence there was interrupted for
some six years. Nor does she allege,
as I have said, that burial of Petros's
body anywhere else would pose problems from the point of view of expense or
logistics.
In other words she is able to bury her son. It is not the case
that all possible burial has been denied her. And she does not
claim that
funeral and graveside rituals could not be observed in the case of a burial
elsewhere. In those circumstances it cannot
be said, without more, that the
appellant's constitutional rights to practise her religious and cultural beliefs
(that are protected
by s 15 and s 31) will be denied to her if the burial is not
permitted. That does not exclude the possibility, however, that where
religious or cultural beliefs are so inherently attached to particular land that
the right to hold and practise them would be denied
if the rights of ownership
are asserted, the latter rights might be required to give way. That does not
arise in the present case.
[47]
It is the right of all citizens to observe and carry out their
religious practices when burying their dead. But the Court was referred
to no
legal provision or authority for the proposition that everyone is totally free
to choose where such burials are to be effected.
A burial requires an
appropriately-sized piece of ground to be available. Everyone living within a
municipal area can only acquire
the necessary ground in a lawfully established
cemetery. Burial elsewhere requires not only the necessary acquisition of a
site
but special permission as well. Outside the jurisdiction of a local
authority one is necessarily dependent on the consent of the
land owner, be it
the State, a juristic person or an individual. These are legal constraints
that bind everyone. No one religion
can demand more than another. Although
the Act aims to treat occupiers specially, the right of religious freedom is the
right of
all.
[48]
As far as concerns the comment quoted above from the judgment of
O'Regan J in
Lawrence
, the learned Judge was referring to situations in
which the State might constitutionally be obliged to be more than neutral itself
in coming to the assistance of lesser known or less prevalent religions in order
to secure their equality of opportunity and treatment
compared with the major
religions. That being so, I do not think that the appellant can derive support
for her case from that statement.
What her counsel's submission amounts to is
that the Act should be construed as obliging an owner to provide burial land
where
the occupier's religious beliefs prompt the wish to have a burial on the
owner's land and to take land for that purpose. The Act
in the present case,
however, aims, subject to its territorial application, to deal with all
occupiers and all owners, including
those of different religious persuasions and
those who have no religious beliefs or practices at all. This is not to
overlook that
the Act aims to redress past inequities burdening an entire class
that was, and still is, seriously disadvantaged economically, educationally
and
residentially. Nevertheless to benefit some occupiers and not others would be
inconsistent with the Constitution and the objectives
of the Act. To the
possible rejoinder that the right to bury without the owner's consent is
something available to all occupiers
which some can simply waive, the answer is,
as will become plain when considering the other provisions of the Act, that it
is simply
not possible to deduce the legislative intention to confer that right.
On the appellant's argument an owner would be at risk of diminution
of the
rights of ownership depending on the religious belief of the occupier. That is
an arbitrary situation in conflict with s
25(1).
[49]
My conclusion, therefore, is that the right to freedom of religion
and religious practice has internal limits. It does not confer
unfettered
liberty to choose a grave site nor does it include the right to take a grave
site without the consent of the owner of
the land concerned. It follows that s
5(d) of the Act does not, when viewed in isolation, confer the right which the
appellant
claims.
[50]
As far as s 6(1) is concerned, it confers the rights of residence,
"use" and services, subject to the owner's consent or agreement.
Making
residential accommodation available to people at the lowest end of the national
income scale who otherwise have no security
of tenure is the prime and
understandable objective of the Act. To secure their residential tenure as far
as possible without their
having acquired real rights in the land itself,
stringent eviction requirements are set. But the fact is that until real
rights
are obtained, residence and use must be understood as having, subject to
proper eviction by due process, a temporary quality. "Use"
in any event
suggests land use in connection with residence and the definition of "suitable
alternative accommodation" reveals what
it is for which an alternative must be
found, namely, residential accommodation and agricultural land. In ordinary
parlance agricultural
involves cultivation and stock farming.
[51]
Nothing in that scheme of things conveys expressly or even impliedly
that occupiers have the additional right to bury their dead
on the land and to
take ground for that purpose even against the owner's will. To uphold the
argument for the appellant would be
tantamount to saying that residence and the
use of land and services (none of which detracts permanently from the substance
of the
land) require consent, but burials (involving diminution of the owner's
land rights) do not require consent. Apart from the lack
of logic which such a
construction involves there is simply no wording in the Act which, on either a
literal or a purposive approach,
renders such an interpretation tenable.
Accordingly the land use intended is use in association with the right of
residence and
the latter does not confer any right to, or in, the land
itself.
[52]
This conclusion is reinforced when it is borne in mind that
occupiers do not and cannot acquire land or rights in land until the
subsidy
scheme outlined in s 4 of the Act is implemented. That such rights, once
obtained, will be real rights, or equatable with
real rights, seems clear,
particularly from s 4(5), which does away with the transfer duty that
acquisition transactions would otherwise
attract. Until then, however, the
tenure of an occupier will not have the envisaged long-term security. Armed
with real rights
in future, occupiers may well be able to take burial land (that
may still depend on the provision of the acquisition transaction)
but on a
proper construction of the Act they cannot do so at present.
[53]
It remains to point out that were the argument for the appellant
correct it would lead to certain anomalies. The first is that
as occupier one
has no right
oneself to be buried on the land. This the appellant's counsel conceded. The
legislature was mindful of an occupier dying while
in residence (see s 8(5) )
but any indication that burial there was an acquired or obtainable right is
conspicuously absent. In
the second place it is incongruous that labour
tenants under the Land Reform (Labour Tenants) Act, 1996, who arguably have at
least
as close a link with the land on which they live as occupiers under the
Act, have no right to take burial ground on that land.
[54]
A further feature militating against acceptance of the appellant's
argument is that despite the recognition in s 6(4) of the sanctity
of existing
family graves and despite the reduction of the rights of ownership to the extent
demanded by the exercise of the rights
conferred in s 6, the legislature stopped
short of obliging owners to accept against their will the creation of further
graves.
Had
it been the legislature's intention to impose that burden by granting occupiers
the corresponding right it would not have occasioned
any real drafting problem
to say so expressly. It is improbable that the creation of that right was left
to a matter of obscure
inference.
[55]
I have not lost sight of the possible reliance that the appellant
could have placed on the consideration that the right to bury one's
dead is a
matter within the ambit of the right to human dignity. Funeral and burial
rituals, after all, serve to express final acknowledgment
by the bereaved of the
human dignity of the deceased. Resort could also arguably have been had to the
constitutional right to one's
own culture and the statutory right to family life
in s 6(2)(d) of the Act. However, those rights seem to me to offer even less
scope for deducing a right to take burial land than the right to freedom of
religion. That was possibly
why counsel for the appellant limited his submission as he did. In addition,
the argument may have been influenced by the case
of
Serole and Another v
Pienaar
2000 (1) SA 28
(LCC) in which it was held, in a case very similar to
this one and under the same Act, where the pro-burial right argument was founded
not upon s 5(d) and s 6(1), but on s 5(a) and s 6(2), that the right to
establish a grave was not one of the rights conferred by
the statute. The
reasons for that conclusion appear at 335 B-G . That decision was not debated
in this Court but, with respect,
it appears to me to be correct.
[56]
To sum up, whether one construes s 5(d) separately from the Act's
other provisions or all together the result is the same: the appellant's
rights
as occupier do not entitle her to take burial land without the respondent's
consent. It follows that the appeal cannot succeed.
[57]
It remains to mention that the Ermelo Cemetery by-law, to which I
have
referred, contains race classifications and racial constraints which are greatly
offensive. Given the abundance of such provisions
that once existed it is
perhaps realistic to think that their elimination would have taken some time.
It is nevertheless frankly
startling to see that these still exist. They must
be replaced as soon as possible. The Registrar will accordingly be directed
to
draw this situation to the attention of the relevant provincial and municipal
authorities.
[58]
The following order is made:
1. The appeal is dismissed with
costs.
2. The Registrar is directed to bring the contents of para [57] above to the
attention of the Director of Local Government of Mpumalanga
and the Chief
Executive Officer of the Local Authority in which Ermelo is
situated.
CT HOWIE
JUDGE OF APPEAL
CONCURRED:
Harms JA
Streicher JA
Mpati JA
Nugent AJA