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[2019] ZASCA 100
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Sandvliet Boerdery (Pty) Ltd v Mampies and Another (107/2018) [2019] ZASCA 100; [2019] 3 All SA 709 (SCA); 2019 (6) SA 409 (SCA) (8 July 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 107/2018
In
the matter between:
SANDVLIET
BOERDERY (PTY)
LTD APPELLANT
and
MARIA
MAMPIES FIRST
RESPONDENT
HENDRIK
MAMPIES SECOND
RESPONDENT
Neutral
citation
:
Sandvliet Boerdery
(Pty) Ltd v Maria Mampies & another
(107/2018)
[2019] ZASCA 100
(8 July 2019)
Coram:
Maya P, Zondi, Dambuza, and Makgoka JJA and Rogers AJA
Heard:
23 November 2018
Delivered:
8 July 2019
Summary:
Extension
of Security of Tenure Act 62 of 1997
–
s 6(2)
(dA)
–
meaning of ‘reside’ – depends on facts of each case
and includes use of a graveyard – burial right
may be invoked
against landowner in respect of ancestral graveyard situated on
registered land on which neither an occupier who
seeks to bury a
deceased family member nor the deceased had a dwelling at deceased’s
death where they routinely performed
sufficient
acts
in relation to land to regard it as part of land on which they
‘reside’.
ORDER
On
appeal from:
Land
Claims Court, Randburg (Poswa-Lerotholi AJ sitting as a court of
first instance):
The
appeal is dismissed with no order as to costs.
JUDGMENT
Maya
P
(Zondi,
Dambuza and Makgoka JJA and Rogers AJA concurring):
[1]
The crisp issue in this appeal is whether the respondents had the
right to bury a deceased family member on registered land
owned by
the appellant, in terms of s 6(2)
(dA)
of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The
Land Claims Court (the LCC) held that they did and the appellant
challenges this decision with leave of this Court.
[2]
The material, background facts are not in dispute. The appellant,
Sandvliet Boerdery (Pty) Ltd, is the owner
[1]
of various, adjacent parcels of registered land commonly known as
Bo-Plaas and Middel-Plaas. They form part of a historic trilogy
collectively referred to as the Montina farms, which includes
Onder-Plaas, presently owned by another entity, the relevance of
which will shortly become apparent. The farms are situated in
Groblershoop in the Northern Cape Province. Their cadastral
descriptions
are the following: (a) Remaining extent of the Farm
Number 292, district Hay, Northern Cape Province, Portion 5 of the
Farm Oranje
Noord Number 360, Portion 6 of the Farm Oranje Noord
Number 360 and Portion 7 of the Farm Oranje Noord Number 360 in
district Hay,
Northern Cape Province, which constitute Bo-Plaas; and
(b) Portion 2 of the Farm Oranje Noord Number 360, Portion 3 of the
Farm
Oranje Noord Number 360 and Portion 4 of the Farm Oranje Noord
Number 360 in district Hay, Northern Cape Province, which constitute
Middel-Plaas. Onder-Plaas, which is owned by Snybar Developments
(Pty) Ltd, is constituted by remaining extent of the Farm
Kheis-Dewitt
Number 603, Remaining extent of the Farm Landgoed,
Number 359, Portion 3 of the Farm Landgoed Number 359, and Portion 4
of the
Farm Landgoed Number 359 which are also in district Hay,
Northern Cape Province.
[3]
The respondents, Mrs Maria Mampies and Mr Hendrik Mampies, are a
retired, married couple. They were close relatives of the subject
of
the burial site dispute, the late Ms Magdalene de Wee (the deceased),
who was the daughter of Mrs Mampies’ biological
brother, Mr
Petrus de Wee, and Mrs Katriena de Wee. The respondents are
occupiers
[2]
on the portion of
Onder-Plaas with cadastral description Portion 4 of the Farm
Landgoed, Number 359.
Mrs
Mampies was born on this land in 1963 and has resided on it her
entire life. She worked at the farms as a seasonal employee
of Mr Jan
Pieter Engelbrecht, who owned all the farms and operated them as a
single unit at the material time, until her retirement.
Mr Mampies
moved to Onder-Plaas in 1997 to work for Mr Engelbrecht as a
permanent employee and has continued residing there even
after his
retirement in 2011. The deceased started working at Onder-Plaas in
2009 and resided there (on Portion 4 of the Farm Landgoed)
with her
four young children after her retrenchment from work in 2014, until
her death on 22 February 2017.
[4]
Mrs Mampies’ maiden family has resided and worked at
Onder-Plaas and, likely the other Montina farms as they were not
aware of the farms’ boundaries, for generations. They regarded
the Montina farms as one unit, as there were no discernible
boundaries between them and Mr Engelbrecht operated them as such.
They were allowed use of and unrestricted movement across these
farms, living as families, rearing and grazing their livestock and
burying their dead on them. Mrs Mampies’ father also worked
for
Mr Engelbrecht during his lifetime. His wife, Mrs Mampies’
mother, predeceased him and was buried in a graveyard next
to their
home at Onder-Plaas. He, another daughter and Mrs Mampies’ two
children, respectively died in 2000, 2008, 2001 and
2006. They,
together with other members of their extended family, were buried
in another graveyard
situated on the portion of Middel-Plaas with cadastral description
Portion 2 of the
Farm Oranje Noord Number 360.
This
graveyard was established for use by the occupiers of the Montina
farms, the respondents and 37 other families, including those
who had
no homes in Middel-Plaas, when the Onder-Plaas graveyard reached full
capacity. The respondents and their family regard
the graveyard as
their ancestral burial site.
[5]
Ownership of the farms passed from Mr Engelbrecht, in 1991, to
several successive owners over the years. Thus, Bo-Plaas and
Middel-Plaas are now owned by the appellant and Onder-Plaas is owned
by SnyBar Developments (Pty) Ltd as indicated above. Despite
these
changes, the occupiers’ living and employment conditions
remained unchanged in the beginning and they continued to
have
unfettered access to the Middel-Plaas graveyard. However, in 2014 the
successive owners of the farms at the time, Groblershoop
Trust, sold
them to the Genade, Trisa and Vickie Trusts.
[6]
According to the respondents, the latter change in ownership brought
new, strict and unreasonable rules for the occupiers. They
were not
allowed to conceive children whilst living on the farms. Many
families were forced to sell their livestock. They were
prohibited
from receiving visitors at their homes. They were also denied
access to the Middel-Plaas graveyard. After numerous
failed
negotiations, the new successive owners launched eviction proceedings
in 2015 against 30 families among the occupiers.
[3]
The respondents were, however, not included in that group. It is
during this conflict that the farms were sold to the current owners.
[7]
When the deceased passed away her parents, who did not reside on the
Montina farms, and the respondents, who regarded her as
their own
daughter, wished to bury her at the Middel-Plaas graveyard with the
rest of her family. This was in accordance with their
religion as
members of the Dutch Reformed Church, cultural beliefs and
established practice. In terms of these beliefs and practice,
they
bury kin nearby and in the same graveyard so that the graves may be
regularly visited and cleaned without difficulty and to
enable the
dead ‘to provide comfort’. The appellant, however,
refused to allow the respondents and their family to
bury the
deceased in the Middel-Plaas graveyard because they lived on
Onder-Plaas and only the graveyard was situated on its land.
That
decision prompted this litigation.
[8]
The respondents launched urgent proceedings in the LCC seeking,
mainly, (a) the declaration of their rights under ESTA, including
the
right to bury the deceased in the Middel-Plaas graveyard in terms of
s 6(2)
(dA)
thereof and, or, any law in terms of which the
respondent acquired rights through their historic and continued
practices on
the
farm; and (b) an order interdicting the appellant from interfering
with their right to bury on Middel-Plaas.
[9]
The respondents subsequently brought an application in terms of
Uniform rule 16A in which they challenged the constitutionality
of s
6(2)
(dA)
.
They contended that they have, ‘through their long-term and
uninterrupted use of the portion of the [appellant]’s
land for
religious and/ or cultural purposes, acquired a real right in the
form of a private servitude to bury deceased members
of their family
in accordance with their religion or cultural belief, as an
established practice in respect of the land’.
They asked the
LCC to recognise ‘through the development of the common law of
acquisition of real rights in terms of s 39(2)
of the Constitution or
through a creation of a special constitutional remedy through section
38 of the Constitution, that real
rights to land may be acquired
through long-term use under these circumstances’.
[10]
As I have mentioned, the LCC decided the matter in the respondent’s
favour. The court found that the respondents complied
with the
provisions of s 6(2)
(dA)
of ESTA as they were family members of the deceased and had
established that it was in accordance with their religious and
cultural
beliefs for the deceased to be buried in the Middel-Plaas
graveyard. The court held that a purposive interpretation of the
provisions,
which are meant to protect the vulnerable occupiers’
religious and cultural rights, tipped the scales in the respondents’
favour. They had acquired a servitude from their routine practice of
burying their deceased family members on that land with the
landowner’s consent, which could not be revoked unilaterally.
And the boundaries between the farms were artificial as the
owners
treated them as one and allowed the occupiers to do likewise; a
position which was not affected by the change in ownership.
The court
concluded that there would be no further intrusion into the
appellant’s ownership rights than was already permissible
under
s 6(4) of ESTA, which allowed the visitation of the Middel-Plaas
graveyard. The court, however, rejected the legal points
raised in
the alternative, in the Uniform rule 16A application, on the basis
that they were made belatedly and had no foundation
in the
respondents’ founding affidavits.
[11]
On appeal before us, the appellant contended that the LCC’s
judgment divested s 6(2)
(dA)
of legal effect because it allowed a burial without compliance with
the provision’s clear requirements. This was so, it was
argued,
because the places where the respondents were occupiers, the deceased
resided when she died ie Onder-Plaas, and where the
respondents
wanted to bury her ie Middel-Plaas, are separately registered
cadastral units of land of which the appellant owns only
one, ie the
land with the proposed burial site. Therefore, the respondents could
not claim a burial right, which is an incidence
of the occupier’s
right of residence contained in s 6(1) of ESTA, against it. Were that
allowed occupiers would obtain a
burial right based merely ‘on
ancestral lineage and burials irrespective of their residency or that
of the deceased’
and s 6(2)
(dA)
would be rendered inconsequential, so went the argument.
[12]
Reliance for this contention was placed on this Court’s
decision, in
Dlamini
& another v Joosten & others
2006
(3) SA 342
(SCA). In that matter, which the appellant argued is
dispositive of this appeal, it was held that as ESTA regulates the
relationship
between occupiers of land and owners of the same land,
the burial right in s 6(2)
(dA)
was claimable by an occupier against the owner of registered land,
the extent of which could be objectively determined only by
reference
to its cadastral description.
[13]
The respondents, on the other hand, properly conceded that the LCC
was right to dismiss the alternative argument placing reliance
on a
servitude or development of the common law for failure to comply with
Uniform rule 16(1)
(a)
.
[4]
However, it was contended on their behalf that the main relief was
properly granted as they had met the jurisdictional factors
set out
in s 6(2)
(dA)
.
The
Dlamini
decision, which the LCC distinguished on its facts and lamented that
it laid emphasis on the meaning of ‘land’ instead
of
‘reside’, was criticised for ‘construing the term
“land” narrowly’. We were accordingly
urged to
rather purposively interpret ‘occupy’ which, it was
argued, denotes a wider concept than the word ‘reside’
and must be construed to include the right to bury.
[14]
In terms of s 25(6) of the Constitution ‘[a] person or
community whose tenure of land is legally insecure as a result
of
past racially discriminatory laws or practices is entitled, to the
extent provided by an Act of Parliament, either to tenure
which is
legally secure or to comparable redress’. ESTA, which forms
part of the legislative instruments intended to facilitate
the land
reform and redistribution programme, is the statute envisaged in
these provisions in the circumstances of this case. It
provides
long-term security of land tenure to persons who reside on land that
does not belong to them and extends their rights
while giving due
recognition to the rights, duties and legitimate interests of owners
as well. Section 5 of ESTA vests occupiers,
owners and persons
in charge with a compendium of fundamental rights, ‘[s]ubject
to limitations which are reasonable and
justifiable in an open and
democratic society based on human dignity, equality and freedom’.
These rights include ‘human
dignity and freedom of religion,
belief and opinion and of expression’.
[15]
Prior to the amendment of ESTA to introduce s 6(2)
(dA)
,
[5]
the courts interpreted the protection of occupiers’
religious and
cultural rights under ESTA as excluding the right to bury deceased
family members on land owned by others.
[6]
This
Court expressed that view as follows in
Nkosi
& another v Bührmann
:
[7]
‘…
[T]he
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.
…
[D]espite
the recognition 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 [of ESTA], 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.’
[16]
This interpretation obviously conflicted with the legislative
intention and ESTA’s objects. Section 6(2)
(dA)
was,
therefore, enacted to cure this anomaly and extend the rights of
occupiers further by including the right to bury deceased
family
members on land owned by others. The provisions read:
‘
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 to bury a deceased member
of his or her family who, at the time of that person’s
death,
was residing on the land on which the occupier is residing, in
accordance with their religion or cultural belief, if an
established
practice in respect of the land exists.’
An
‘established practice’ is defined in s 1(1) of ESTA to
mean ‘a practice in terms of which the owner or person
in
charge or his or her predecessor in title routinely gave permission
to people residing on the land to bury deceased members
of their
family on that land in accordance with their religion or cultural
belief.’
[17]
The approach to be adopted in ascertaining the meaning of ESTA is
established. Regard must be had to its purpose and the mischief
it
seeks to remedy ie securing the tenure of occupiers of land and
granting them the dignity of which they were deprived under
the
apartheid system. Its provisions must be accorded a generous
interpretation, in a manner that is consistent with the Constitution,
so as to afford this vulnerable class of people the fullest
protection intended by the Constitution and ESTA. The Constitutional
Court, dealing with a related statute, the
Restitution of Land Rights
Act 22 of 1994
, neatly articulated this exercise as follows in
Department
of Land Affairs & Others v Goedgelegen Tropical Fruits (Pty)
Ltd
:
[8]
‘
It is by now
trite that not only the empowering provision of the Constitution but
also of the Restitution Act must be understood
purposively because it
is remedial legislation umbilically linked to the Constitution.
Therefore, in construing “as a result
of past racially
discriminatory laws or practices” in its setting of s 2(1) of
the Restitution Act, we are obliged to scrutinise
its purpose. As we
do so, we must seek to promote the spirit, purport and objects of the
Bill of Rights. We must prefer a generous
construction over a merely
textual or legalistic one in order to afford claimants the fullest
possible protection of their constitutional
guarantees. In searching
for the purpose, it is legitimate to seek to identify the mischief
sought to be remedied. In part, that
is why it is helpful, where
appropriate, to pay due attention to the social and historical
background of the legislation. We must
understand the provision
within the context of the grid, if any, of related provisions and of
the statute as a whole including
its underlying values.
Although
the text is often the starting point of any statutory construction,
the meaning it bears must pay due regard to the context.
This is so
even when the ordinary meaning of the provision to be construed is
clear and unambiguous
.’
(Emphasis
added.)
[18]
It is against this backdrop that it must be determined whether the
respondents met the requisites for the right to bury envisaged
by s
6(2)
(dA)
, ie (a) they are
occupiers
within the definition of ESTA; (b) the deceased resided on the land
at the time of her death; and (c) there was an established
practice
in terms of which the owner or person in charge or his or her
predecessors routinely gave permission to people residing
on the land
to bury deceased members of their family on that land in accordance
with their religion or cultural belief. The existence
of the latter
requirement was not seriously disputed. This was to be expected in
light of the respondents’ uncontested allegations
that over two
decades they and the other occupiers on Montina farms routinely
buried their deceased kin in the Middel-Plaas graveyard
in accordance
with their religious beliefs and practice, with the consent of Mr
Engelbrecht and his successors-in title after he
sold the farms in
1991, until 2015. The only point of contention was the one indicated
at the outset – whether s 6(2)(
dA)
conferred
on the respondents a right to bury the deceased in the Middel-Plaas
graveyard on a proper interpretation of these provisions.
[19]
To my mind, the answer to this question depends simply on whether it
can be said that the respondents and the deceased at her
death
resided on the land in which it was sought to bury her.
ESTA does not define
the term
‘
reside’.
(This is the term used in s 6(2)
(dA)
and
not the term ‘occupy’ which the respondents fallaciously
contended we should construe.) There is, however, a statute
assented
to by the President on 18 November 2018 – the Extension of
Security of Tenure Amendment Act 2 of 2018 – which
was
published in
Government
Gazette
42046
dated 20 November 2018. The statute’s date of commencement has
yet to be proclaimed. But it bears some relevance as
it contains a
definition of ‘reside’ and ‘residence’, which
offers a glimpse into the legislature’s
intention in this
regard. Section 1
(h)
thereof defines ‘reside’ to mean ‘to live at a
place permanently’, and deems ‘residence’ to
have a
corresponding meaning.
The
intended definition fortifies a view already adopted by the courts in
relation to land reform matters – that ‘the
essence of
the term is the notion of a permanent home’.
[9]
But, it too would still have to be given meaning within the relevant
context, having regard to ESTA’s purpose, if the Amendment
Act
came into force.
[20]
So what meaning is to be ascribed to the term ‘reside’
here? It bears mention that our courts have grappled with
this
question since the turn of the last century and determined that the
term is capable of bearing more than one meaning, depending
on the
object and intention of the statute in which it is used.
[10]
I
agree with this view as it dovetails neatly with the interpretive
approach advocated in
Goedgelegen
and its ilk.
[21]
I should mention at this juncture that I have no objection to the
meaning that
Dlamini
ascribed to the term ‘land’ in s 6(2)
(dA),
which
the Court derived from the fact that ESTA regulates the relationship
between occupiers of land and owners of the same land.
[11]
And as the Court further pointed out, the burial right provided by
these provisions is an incidence of the occupier’s right
of
residence contained in s 6(1) of ESTA, which is in the nature of a
registrable real right possessed by the occupier over the
land at
death of a family member, who at the time of death resided on that
land.
[12]
I also agree that because the burial right is a registrable real
right in land which reduces an owner’s dominium over his
or her
land, it is claimable only against that owner and his or her
successors-in-title under s 24 of ESTA.
[13]
[22]
But do these principles lead to a conclusion that the respondents
have no right to bury members of their family in their ancestral
burial site at Middel-Plaas since Onder-Plaas and Middel-Plaas are
aggregations of separately registered pieces of land, each
aggregation currently owned by different entities where: (a) in
recognition of the respondents’ statutory burial right under
s
6(2)(
dA
),
the landowner granted them permission to bury their family members
next to their home in Onder-Plaas, in accordance with their
religious
and cultural beliefs, and subsequently allocated them another burial
site on the adjacent, unbounded Middel-Plaas to
which they always had
free access in their daily lives when the Onder-Plaas graveyard
reached full capacity; and (b) an established
practice developed over
many years, in terms of which the respondents and other occupiers
were routinely given permission by Mr
Engelbrecht and later,
successive owners, to bury their deceased family members on
Middel-Plaas in accordance with their religious
and cultural beliefs?
[23]
It is clear from the respondents’ affidavits that their burial
practices and the location of their family graves near
where they
live form a vital part of their religion and their day-to-day lives.
A question must be asked: Where and how did the
legislature
contemplate that occupiers in the respondents’ position would
meaningfully exercise their s 6(2)
(dA)
right if they were excluded from invoking it against a landowner who,
as here, allowed them to bury their dead and establish an
ancestral
burial site, not where their homes are built, but on nearby
land that he also owned and which has historically
been used by the
respondents, the deceased herself and their forebears in their daily
lives; traversing it, working on it, grazing
their livestock on it
and burying their loved ones on it?
[24]
It seems to me inconceivable that the legislature would have intended
to deprive this small category of vulnerable occupiers
of a critical
right, which was specifically enacted to formally attach the right to
bury to an occupier’s right to residence
and thus fortify her
right of security of tenure. It certainly does not strengthen the
security of tenure of persons residing on
farms to leave them without
the means to bury their dead in accordance with their religion and
customs. A contextual interpretation
of ‘reside’ that
takes into account the peculiar circumstances of the present case and
the purpose of ESTA must include
the respondents’ ancestral
burial site which the Middel-Plaas graveyard constitutes for the
respondents. I am satisfied that
they established a clear,
protectable right under ESTA, which allows them to bury the deceased
at their ancestral burial site in
Middel-Plaas. Any other
interpretation of s 6(2)
(dA)
would render the burial right it bestows upon them nugatory.
[25]
To return to
Dlamini
,
on which the appellant unsurprisingly placed great reliance, the
court in that case was not invited to find that the appellants
(a
widower and son who wished to bury the deceased – their late
wife and mother, respectively – on a particular farm)
had
‘resided’ on the farm on which they wished to bury the
deceased. The latter farm was adjacent to the one on which
their
dwelling was situated and the two farms were separately registered
pieces of land. If in that case the appellants resided
only on the
farm on which their dwelling was situated (and this court was not
invited to decide otherwise), the conclusion was
correct. It is
clearly possible, however, for a person to ‘reside’ on
land which is made up of more than one registered
portion of land. To
take a straightforward example, a family might have the exclusive use
of a fenced area containing their dwelling
and a field for crops. I
do not think anyone would doubt that the fenced area was the land on
which the family ‘resided’.
Yet it might be situated
partly on one registered piece of land and partly on another. The
question whether a person has routinely
performed sufficient acts in
relation to land to regard it as part of the land on which he or she
‘resides’ is necessarily
fact-specific.
[26]
Ngoepe JP’s comments in his minority judgment in
Buhrmann
v Nkosi & another
,
[14]
even
before s 6(2)
(dA)
was introduced, are instructive. He said:
[15]
‘
It is well
known that there is a strong relationship between peoples’
religion and the way in which, in the manifestation
of such a belief,
they would want their dead to be buried . . .
To
acknowledge the respondent’s right to practice and manifest her
religion, but bar her from interring her son at a place
and in a
manner that would give meaning to her right of religion and belief
could amount to no more than paying mere lip service
to such right.’
(Emphasis
added.)
[27]
In
Daniels
v Scribante
,
[16]
the Constitutional Court expressed itself against interpreting ESTA
in the narrow manner of old that may leave occupiers with hollow
rights. The matter implicated two of the rights at issue here –
the right to security of tenure and the right to human dignity
–
albeit in a different context. The Court considered whether an
occupier has a right to make improvements to her or his
dwelling to
make it suitable for human habitation which ESTA does not expressly
provide. Madlanga J said in his seminal judgment,
at paras 27-29:
‘
. . . Whether
the right exists must depend on what an interpretive exercise yields
. . . The question is whether – on
a proper
interpretation of ESTA – the right contended for by Ms Daniels
indeed does not exist. The respondents’ argument
[that s 25(6)
of the Constitution affords an occupier rights to the extent provided
by ESTA and that an occupier’s rights
are listed in s 6
typifies the “blinkered peering at an isolated provision”
of a statute that Nienaber JA cautions
against in
Thoroughbred
Breeders Association
. . . .
[It] places focus
only on the rights of an occupier that s 6 of ESTA specifically
itemises. It disregards all else: context counts
for nothing; nor
does the purpose for which ESTA was enacted; and s 39(2) of the
Constitution is not taken into account at all.
This reading of s 6 is
unduly narrow. Part of the context is s 5 of ESTA which the
respondents’ interpretation ignores. That
section decrees that
occupiers enjoy certain fundamental rights, including the right to
human dignity. On the respondents’
interpretation, occupiers
have a right that could well be empty. They could live in conditions
that infringe their right to dignity
with no remedy available to
them. That simply cannot be. How does the respondents’
interpretation factor in the need for
an occupier to live in
conditions that conduce to human dignity? It does not. That
immediately infringes an occupier’s right
under s 5.’
In
my view, this sentiment applies with equal force in the present case.
[28]
The apprehension expressed by the appellant that ‘[i]f the
LCC’s order stands, a real possibility will be created
that the
appellant’s land will eventually turn into a graveyard and that
the appellant will lose the use thereof
in
toto
’
has no basis. The burial right is not absolute and must be weighed
against the property rights of the landowner or the person
in charge
of the land.
[17]
[29]
In terms of s 6(2) of ESTA, the occupier’s right to security of
tenure must be balanced with the rights of the owner
or the person in
charge. Zondo J succinctly explained this requirement in
Hattingh
& others v Juta
:
[18]
‘
In my view
the part of s 6(2) that says: “balanced with the rights of the
owner or person in charge” calls for the striking
of a balance
between the rights of the occupier, on the one side, and those of the
owner of the land, on the other. This part enjoins
that a just and
equitable balance be struck between the rights of the occupier and
those of the owner. The effect of this is to
infuse justice and
equity in the enquiry . . . .’
Therefore,
an occupier may not willy-nilly invoke the right. Its exercise
evidently depends on the specific circumstances of each
case and the
satisfaction of s 6(2)
(dA)
’s
built-in requirements of standing and ‘an established
practice’.
[19]
[30]
It is important to point out as Ngoepe JP did in
Nkosi
,
[20]
that there is here, as was the case in that matter, already an area
demarcated for burial, which the respondents are, in any event,
allowed by ESTA to visit as it houses the graves of their deceased
family members. And ‘the area the appellant loses to the
deceased’s grave is probably 1m x 2m’ which does [not]
constitute such a drastic curtailment of the appellant’s
right
of ownership as to justify denying the respondent[s] the right’
to bury the deceased in terms of s 6(2)
(dA)
.
[21]
[31]
Needless
to say, once granted the permission to bury could not be unilaterally
withdrawn either by the original grantor of the permission
or his
successors in title,including the appellant, which was aware of the
existence of the graveyard when it purchased Middel-Plaas
in June
2015.
[22]
That
result does not conflict with the Constitution in the context of this
case having regard to all relevant factors.
[32]
The last aspect relates to mootness ie whether the issues raised in
the appeal are of such a nature that the decision sought
will have no
practical effect or result thus warranting its dismissal on this
ground alone.
[23]
The
deceased was ultimately buried on Middel-Plaas directly after
delivery of the LCC’s judgment. Despite this fact, the parties
agreed when the appellant subsequently moved to challenge the
decision on appeal that the matter was not moot. The appellant
contended
that a finding of mootness would deprive it of its right to
appeal and right of access to court because the deceased was buried
in a matter of hours after an order, which was not accompanied by
reasons, before it had an opportunity to consider its options.
Furthermore, the LCC’s judgment ‘opens the door for all
people residing in the area to bury more deceased on [its]
land only
because other deceased family members are already buried there’.
[33]
I am persuaded that the appeal warrants adjudication even though its
outcome will have no practical effect or result as between
the
parties. It involves ‘a discrete legal issue of public
importance’ that affect matters in the future’ as
the
interpretation of ‘reside’ in s 6(2)
(dA)
of ESTA will undoubtedly have profound implications for occupiers and
landowners alike.
[24]
[34]
The appeal must accordingly fail. Regarding the question of costs, on
the basis of the
Biowatch
principle I am not inclined to mulct the appellant with the costs of
the appeal despite its failure.
[25]
[35]
The appeal is dismissed with no order as to costs.
______________________________________________
MML
MAYA
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES
APPELLANT:
J J Botha
Instructed
by:
Thomas
& Swanepoel Inc, Tzaneen
Symington
& De Kok Attorneys, Bloemfontein
RESPONDENTS:
A De Vos SC
Instructed
by:
Lawyers
for Human Rights, Pretoria
Webbers
Attorneys, Bloemfontein
[1]
‘
Owner’
for purposes of ESTA is defined in s 1(1) thereof to mean ‘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’.
[2]
In terms of ESTA which
defines ‘occupier; in s 1(1)
(x)
as ‘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) 1996; (Act No. 3 of 1996)
and
(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 family; and
(c) a person who has an
income in excess of the prescribed amount’.
[3]
In
Trisa
Trust & others v Gert Vries & others
LCC Case number 136/15.
[4]
Which, inter alia,
requires ‘[a]ny person raising a constitutional issue in an
application or action shall give notice thereof
to the registrar at
the time of filing the relevant affidavit or pleading’. See,
also,
Shaik v Minister
of Justice and Constitutional Development & others
[2003] ZACC 24
;
2004
(3) SA 599
(CC) at 610H (para 24) in which the Constitutional Court
described the purpose of rule 16(1) to be ‘to bring to the
attention
of persons (who may be affected by or have a legitimate
interest in the case) the particularity of the constitutional
challenge,
in order that they may take steps to protect their
interests’.
[5]
Inserted by
s 7
(a)
of the
Land Affairs
General Amendment Act 51 of 2001
.
[6]
See,
for example,
Bührmann
v Nkosi & another
2000
(1) SA 1145
(T) paras 49 and 54;
Serole
& another v Pienaar
2000
(1) SA 328
(LCC) at 335B-G.
[7]
Nkosi
& another
v
Bührmann
2002
(1) SA 372 (SCA).
[8]
Department
of Land Affairs & Others v Goedgelegen Tropical Fruits (Pty) Ltd
(CCT69/06)
[2007] ZACC 12
;
2007 (10) BCLR 1027
(CC);
2007 (6) SA 199
(CC)
para 53. See
also
Thoroughbred
Breeders’ Association v Price Waterhouse
2001
(4) SA 551
(SCA);
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC);
Daniels
v Scribante
[2017]
ZACC 13
;
2017
(4) SA 341 (CC); 2017 (8) BCLR 949 (CC).
[9]
See
Barrie NO v
Ferris & another
1987
(2) SA 709
(C) at 714F;
Mkwanazi
v Bivane Bosbou (Pty) Ltd & another and Three Similar Cases
1999
(1) SA 765
(LCC) para 8;
Kiepersol
Poultry Farm (Pty) Ltd v Phasiya
[2009] ZASCA 119
;
2010 (3) SA 152
(SCA) paras 8 and 9.
[10]
See
Ex
Parte Minister of Native Affairs
1941
AD 53
at 58, which followed the dictum in
Buck
v Parker
1908
TS at p1104;
Kiepersol
ibid.
[11]
Para 16.
[12]
Ibid.
[13]
In terms of
s
24
of ESTA:
‘
(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
had given it.’
[14]
Bührmann
v Nkosi & another
2000
(1) SA 1145 (T).
[15]
A
t
1161 C-G.
[16]
Footnote 8.
[17]
G
J
van Niekerk ‘
Death
and sacred spaces in South Africa and America: a
legal-anthropological perspective of conflicting values’
CILSA
vol 40 No 1 (March 2007) 30 at 48;
J
Pienaar and H Mostert ‘
The
balance between burial rights and landownership in South Africa:
Issues of content, nature and Constitutionality
’
2005 (3)
SALJ
633
- 660.
[18]
Hattingh &
others v Juta
[2013]
ZACC 5
;
2013 (3) SA 275
(CC);
2013 (5) BCLR 509
(CC) para 63. See
also
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 23
which described the
judicial function in these cases (albeit dealing with the
protections provided by the Prevention of Illegal
Eviction from and
Unlawful Occupation of Land Act 19 of 1998), as balancing out and
reconciling the opposed claims in as just
a manner as possible,
taking account of all the interests involved and the specific
factors relevant in each particular case.
[19]
Bührmann
at 1161H.
[20]
Footnote
14 at 1161H.
[21]
At 1161G.
[22]
Dlamini &
another v Joosten & others
2006
(3) SA 342
(SCA
)
para 24.
[23]
In terms of s 16(2)
(a)(
i)
of the
Superior Courts Act 10 of 2013
.
[24]
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
[2012]
ZASCA 166
;
2013 (3) SA 315
(SCA) para 5. See also
Pheko
v Ekurhuleni Metropolitan Municipality
2012 (2) SA 598
(CC);
(2012 (4) BCLR 388
;
[2011] ZACC 34)
para 32.
[25]
Biowatch
Trust v Registrar, Genetic Resources & Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).