THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 30/05
Reportable
In the matter between :
M DLAMINI AND ANOTHER APPELLANTS
and
P J JOOSTEN AND OTHERS RESPONDENTS
CORAM : HARMS, STREICHER, JAFTA, MLAMBO JJA
et CACHALIA AJA
HEARD : 10 NOVEMBER 2005
DELIVERED : 30 NOVEMBER 2005
Summary: In the Extension of Security of Tenure Act, 62 of 1997, meaning of ‘land’
determined by reference to its cadastral description ─
‘Established practice’ ─
- Once an ‘established practice’ for burials exists, a landowner or person in charge
may not unilaterally terminate the practice.
_________________________________________________________
JUDGMENT
CACHALIA AJA/
2
CACHALIA AJA:
[1] The first and second appellant s are the husb and (now widower)
and son of the deceased, Gertrude Ntombi Zondi. They sought an
urgent order in the Land Claims Court (LCC) that they be permitted to
bury the deceased at the Dlamini family burial site on the farm
Bockenhoud Fontein (Bockenhoud ), alternatively that they be permitted
to bury her at a burial site on the farm Sands pruit. They based their
cause of action on section 6(2)(dA) of the Extension of Security of
Tenure Act 62 of 1997 (the Act) 1. Introduced by amendment 2 in 2001,
the section permits an ‘occupier’ who resides on land, which belongs to
another person:
‘to bury a deceased member of his or her fam ily 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 section 1(1) of the Act 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
1 The appellants, in addition relied on section 6(5) of the Act, but eschewed any reliance thereon in
this appeal. In the founding papers the first appellant also made out a case that he was a labour
tenant in terms of the Land Reform (Labour Tenants) Act 3 of 1996. However as there were material
disputes of fact the appellants did not pursue this cause of action in the LCC. In the circumstances the
appellants did not persist with that case in the LCC.
2 Inserted by s 7(a) of Act 51 of 2001.
3
members of their family on that land in accordance with their religion or cultural
belief.’3
[2] The LCC (Bam JP) refused to permit the burial, but granted leave
to appeal against its decision to this court. In the interim, the deceased
was buried elsewhere. The appellants however reserved their right to
apply to the provincial authority for the exhumation of the deceased’s
remains for reburial shou ld the appeal succeed. 4 Accordingly, in these
proceedings, the appellants seek a declaratory order that they are
entitled to bury the deceased on eit her of the farms. The appeal has
crystallized around three issues:
(i) whether the word ‘land’ as used in s 6(2)(dA) is confined to its
cadastral description or has a different meaning because, unless it has a
wider meaning, the deceased cannot be buried on Bockenhoud;
(ii) if the deceased cannot be buried on Bock enhoud whether the
appellants had proved that it was ‘in accordance with their religion or
3 Section 1 of the Act Provides
Definition
‘…
‘occupier’ means a person residing on land which belongs to another person, and who has on 4
February 1997 or thereafter had consent or another right in law to do so, but excluding─
…
‘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 in 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.’
4 The application may be made in terms of s 20(3) of the KwaZulu-Natal Cemetries Act, 12 of 1996.
4
cultural beliefs’ for the deceased to be buried on the farm Sandspruit;
and if so
(iii) whether the respondents were entitled to terminate the appellants’
right to bury the de ceased on Sandspruit unilaterally, once burials had
become an established practice.
[3] Before dealing with these issues it is necessary to embark upon a
brief excursus of the relevant facts. Members of the Joosten family own
three farms adjacent to each other in the New Hanover area of KwaZulu-
Natal, and have so for generations. The farms are Bockenhoud,
Sandspruit and Mount Elias. Each farm is registered as a separate piece
of land. Bockenhoud is owned by H ogard Joosten, the father of three
sons, Philip, Andre and Manfred. He inherited the farm from his parents
in 1981, but had farmed it for his own account from 1965 until 1995.
[4] Sandspruit and Mount Elia s are owned by Andre and Philip
respectively, having been purchased from their father in 1995. The
brothers farm their respective farms each for his own account.
[5] The closely-knit family resi de in three family homes within a
kilometre of each other on two of th e three farms. The Joostens are not
only well aware of what takes place on each of their farms, but conduct
5
farming operations in consultation wi th each other. They also share the
same labour force.
[6] The first appellant’s late parents lived on Bockenhoud and worked
for Hogard. They are buri ed at a burial site on that farm. The first
appellant and the deceased were em ployed by Hogard and resided on
Bockenhoud since 1974. At the time Bockenhoud and Sandspruit were
farmed as a single unit. In about 1986, the first appellant and the
deceased, at Hogard’s instance, mo ved willingly from their homestead
on Bockenhoud to a new hom estead on Sandspruit. The first appellant’s
parents remained on Bockenhoud.
[7] Over the years Hogard allowed the Dlamini family to bury their
dead at a burial site on Bockenhoud, some 50 meters from their
homestead, where the first appellant’s parents are buried. There are
other burial spots on the farm where two other families have also buried
their deceased.
[8] The Joostens have also routi nely given permission for various
families living on Sandspruit to bury their dead on that farm. One
Dlamini, a child, is buried there and the last burial that took place here
was of an infant from the Mzizi family. In July 2002 Andre informed them
6
that the practice of allowing burials on Sandspruit would henceforth be
stopped. There have been no further burials on this farm since then.
[9] When the deceased died at the Dlamini homestead on 5 June
2004, Philip, who was temporarily in charge of the farm while Andre was
abroad, refused permission for the burial on the farm precipitating the
present dispute.
[10] I turn to a consideration of the first of the issues referred to above,
whether the word ‘land’ is confined to its cadastral description, as the
court a quo found, or whether, depending on the circumstances of a
particular case, it may have a differ ent meaning, as contended by the
appellants. The respondents’ case is that because the Dlamini burial site
is on Bockenhoud, the appellants are not entitled to bury the deceased
there because the deceased did not resi de on the farm; at the time of
her death she and her family resided on Sandspruit, which is adjacent to
Bockenhoud. The two farms have dist inct cadastral boundaries on the
Surveyor General’s map and are registered as separate farms.
[11] Having left their homestead in Bockenhoud in 1986, long before
the amending Act was passed in 2001, it is apparent that the Dlamini
family can claim no right to bury de ceased members of their family on
7
Bockenhoud if the respondents’ contention that Bockenhoud and
Sandspruit are distinct pieces of land is correct. This is because s
6(2)(dA) of the Act explicitly confers on people residing on land burial
rights in respect of a deceased family member who was an occupier of
the land, only on the land where the occupier and the deceased family
resided at the time of the deceased’ s death. The fact that the first
appellant and the deceased re sided on Bockenhoud before the
amending Act was passed does not avail them because the Act did not
create rights retrospectively.
[12] To overcome this hurdle, the appellants were driven to contend
that the word ‘land’, as it is used in the Act, need not be confined to its
cadastral description, but may be described differently, depending on the
facts of a particular case.
[13] In the instant matter the appe llants contend that considerations
other than the boundaries of the land registered in the deeds office must
be taken into account in deciding whether an occupier can claim any
rights on it. They submit that the three farms must be regarded as the
same land because they have effectiv ely been farmed by the father and
sons as a single unit; that it had not been apparent to the first appellant
8
which of the Joostens was responsib le for farming particular portions of
the farm; that the boundaries between the farms were neither material
nor apparent; and that the first appellant worked on the farms
Bockenhoud and Sandspruit never appreciating that they were different
parcels of land.
[14] The contention that the meaning of words in a statute may vary,
depending on the facts of a particular case, has no legal foundation. The
word ‘land’ is not defined in the Act. But it is apparent that in the context
within which it is used, it can refer on ly to land that is registered in the
name of an owner. This is because the Act regulates the relationship
between occupiers of land and owners of the same land.5
[15] A right of burial may be claimed by an occupier of land only where
a practice has been established by th e routine granting of permission for
such a practice by the owner or person in charge of the land (s 6(2)(dA)).
A person is quite clearly not lawfu lly entitled to grant permission for
burial on land which he does not own or is not ‘in charge of’. The fact
that the owners of adjacent land are rel ated to each other, as in this
case, is irrelevant, as is the fact th at the appellants subjectively believed
5 Chapter III (sections 5 – 7) sets out the ‘Rights and Duties of Occupiers and Owners.’
9
that the farms were on the same la nd, understandable though this belief
may have been.
[16] The burial right in s 6(2)(dA) of t he Act is an incidence of the right
of residence contained in s 6(1), which creates a real right in land. Such
a right is in principle registrable in a Deeds Registry because it
constitutes a ‘burden on the land’ by reducing the owner’s right of
ownership of the land and binds successors in title. 6 The burial right is in
the nature of a personal servitude which the occupier has over the
property on which he possesses a real ri ght of residence at death of a
family member who at the time of death was residing on the land. These
rights are claimable against the owners of registered land only. And the
only objective determinatio n of the extent of t he land which has been
registered by an owner is by reference to its cadastral description.
[17] It follows that the court a quo was correct in its view that
Bockenhoud and Sandspruit are separate pieces of ‘land’ for the
purposes of the Act. Accordingly the appellants have not established a
right to bury the deceased on Bockenhoud.
6 Section 24(1) of the Act provides that ‘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’.
See further G Budlender, J Latsky and T Roux ‘Juta’s New Land Law’ 1 ed 1998 p 7A-19, n2.
10
[18] In regard to the second issue, whether it was proved that it was in
accordance with the appellants’ relig ious and cultural belief for the
deceased to be buried on Sandspruit, the court a quo held that no such
case was made out in the papers as the Dlamini’s were buried at the
gravesite on Bockenhoud, not Sandspruit. And, so that court reasoned,
even though the practice was established for other families on
Sandspruit, the appellants could not rely on that established practice in
respect of the deceased.
[19] In so deciding the court a quo erroneously interpreted s 6(2)(dA) to
require the established practice to rela te to a particular family whereas
the section clearly links the ‘establish ed practice’ to ‘people residing on
the land’. It is not confined to part icular families. The respondents were
therefore correct in conceding that the court a quo’s interpretation of the
section is wrong.
[20] Nevertheless, they persisted wi th the submission that the case
made out in the appellants’ papers is that the deceased must be buried
at the site on Bockenhoud where the Dlamini ancestors are buried, and
not Sandspruit. I am unable to agree with this contention.
[21] The appellants’ case is that it is a religious or cultural belief that
11
deceased members of their family must be buried close to their
homestead so that the spirits of their ancestors might be close to them. 7
This belief is set out expressly in th e first appellant’s founding affidavit
where he states:
‘It was and is extremely important to my late wife and I that we were entitled to bury
our deceased family member s near our home on the farm, as it is a cultural
imperative for us that our ancestors and our family members are buried close to our
home.’
This the respondents admitted. Since th e Sandspruit burial site is closer
to the appellants’ homestead than the Bockenhoud site, the requirement
has clearly been met.
[22] I turn to the third and final i ssue, whether an owner is entitled to
terminate an established practice unilaterally as Andre purported to do in
July 2002. The respondents contended that because an established
practice can come into existence only after the owner or person in
charge has routinely given permission for burials to take place on the
property, it follows that such permission may be withdrawn by the owner.
Put another way, the contention was that the granting of permission,
being a unilateral act on the part of the owner, may likewise be
7 Cf. Nhlabathi and others v Fick [2003] 2 All SA 323 LCC at 336h-i.
12
unilaterally terminated.
[23] Prior to the introduction of s 6(2)(dA), landowners were not obliged
to permit occupiers to have furthe r graves on their land upon request.
The law as stated by this court in Nkosi and another v Bührmann 2002
(1) SA 372, (SCA) at 389A-B was that:
‘(D)espite 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 st opped short of obliging
owners to accept against their will the cr eation 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 creati on of that right was left to a matter of
obscure inference.’
[24] The Legislature int roduced s 6(2)(dA) to deal with this lacuna by
‘obliging owners to accept against t heir will the creation of further
graves’. The obligation however only arises if the owner has routinely
granted permission for burials, resulti ng in an established practice. But
once a practice has been established, a right is conferred on an occupier
to bury a deceased family member who, at the time of that person’s
death, as is the case in the instan t matter, was residing on the land on
13
which the occupier was residing. The respondents cannot be correct that
such a right may be withdrawn unilaterally, because, if this were so, the
entire purpose of the amendment would be rendered nugatory.
[25] As mentioned earlier, the Act grant s to an occupier a real right in
land that belongs to another person. And the right of an occupier to bury
a deceased family member on such land is an incidence of this right.
The withdrawal of consent by an owner for an occupier to bury a
deceased family member is therefore an unlawful deprivation of this
right.
[26] It follows that once it is ac cepted that an estab lished practice to
bury deceased persons on Sandspruit came into existence, and I do not
understand the respondents to contend otherwise, the appellants were
entitled to bury the deceased there.
[27] The court a quo made no costs order and neither party sought any
costs in this court. In the result t he appeal is upheld an d the order of the
court a quo amended accordingly. The following order is made:
(i) The appeal succeeds.
(ii) The order of the court below is set aside and substituted with the
following:
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It is declared that the applicants are entit led, in terms of section 6(2)(dA)
of the Extension of Security of Tenure Act 62 of 1997 to bury the body of
Gertrude Ntombi Zondi in the burial site on the remainder of the farm
Sandspruit No. 1920.
________________________
A CACHALIA
ACTING JUDGE OF APPEAL
Concur: Harms JA
Streicher JA
Jafta JA
Mlambo Ja