Nhlabathi and others v Fick (LCC42/02)  ZALCC 9 (8 April 2003)
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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
Held at RANDBURG on 20-22 January 2003 CASE NUMBER: LCC 42/02
Before: BAM P and GILDENHUYS J
Decided on: 8 April 2003
In the case between:
NHLABATHI, MV First applicant
NHLABATHI, KL Second applicant
NHLABATHI, JP Third applicant
FICK, WJJ Respondent
BAM P and GILDENHUYS J:
This is an application for an order permitting the burial of a family member of the applicants on the farm Mooifontein (“the farm”). On 16 September 2002, sixty-five year old Kiti Elijah Nhlabathi (“the deceased”) died of illness at the Utrecht hospital in the Mpumalanga province. The second applicant is his widow. Eleven children were born out of this marriage, amongst them the first and third applicants. The first applicant is the eldest of the eleven children. The deceased had been living in the same household with the applicants on the farm. The respondent is the owner of the farm.
One week later, after monumental struggles with bureaucracy to obtain a burial order, the first applicant, on the advice of an official of the Department of Land Affairs (“the DLA”), approached the respondent, informed him of the death of the deceased and requested permission for his remains to be buried on the farm. The respondent firmly rejected the request and resisted further efforts at convincing him to relent.
Nonetheless, unbeknown to the respondent, on Friday 27 September the first applicant and some of his relatives went to fetch the body of the deceased from the hospital and brought it back to lie in state on the farm. Early the next morning, on Saturday 28 September, the applicant and his party went to the nearby town of Amersfoort to make funeral arrangements and to purchase the necessary groceries. When they later returned home, the respondent had locked them out and had put up a sign hanging from the gate, which read:
“Reg van toegang voorbehou. Privaat eiendom. Geen begrafnis toegelaat nie.”
However, following upon negotiations between an official of the the DLA and legal representatives of the respondent, the farm gates were later opened, but only for the purpose of allowing the first applicant and his party to congregate and discuss the different options open to them: whether to bury the deceased elsewhere or to apply urgently for a Court order compelling the respondent to allow the burial on his farm. They opted for the latter. In the meantime the body of the deceased was taken to the mortuary at Amersfoort and the funeral postponed until 13 October 2002.
The course of the litigation
On 10 October 2002 this Court received the present application as an urgent matter, and accepted it as such. The relevant part of the prayer reads as follows:
“That the Applicants be and hereby are authorised to bury the deceased KITI ELIJAH NHLABATHI, the father of the First and Third Applicants and the late husband of the Second Applicant, on the Farm Mooifontein, Amersfoort, on Sunday, 13 October 2002 commencing with the night vigil on Saturday, 12 October 2002 at 21h00 until the completion of the burial on Sunday at 16h00".1
This Court condoned the applicants' non-compliance with the normal rules relating to service requirements and time limits for the filing of affidavits. It issued directives of its own, which had the effect of substantially curtailing these time limits. Counsel for the applicants was taken by surprise with regard to the content and complexity of the respondent's answering affidavit. He found the time limits too constrictive to prepare a full reply. It also became evident that the one day allocated for the hearing before a single judge was inadequate, given the wide range of issues, both factual and legal, that the respondent had raised. In the end the matter was postponed sine die, the applicants having informed the Court that they would, in the meantime, bury the deceased elsewhere pending the decision on their application.
The date of the hearing was finally set for 13 November 2002. It became clear on that date that there would be a need to refer two issues to oral evidence. The first issue related to the locus standi of the applicants to decide where the remains of the deceased must be interred, and the second issue related to their status as “occupiers” as defined in ESTA. Since the urgency had fallen away, the two issues were duly referred to oral evidence and the case was postponed to 20 January 2003.
When the hearing resumed, Mr Tee, for the applicants, led viva voce evidence from the second and third applicants. They were duly cross-examined and re-examined. Mr Tee then commenced to lead evidence from the first applicant. During a break towards the end of his evidence in chief, Mr Tee informed the Court that the applicants would no longer rely on section 6(5), but only on section 6(2)(dA) of ESTA. The parties then agreed that no further oral evidence would be led, and that the evidence of the first applicant (who had not yet been cross-examined) would be disregarded.
Four issues remained at this stage of the proceedings. The first issue concerns the locus standi of the applicants. The respondent alleged that one Ephraim is the eldest son of the deceased, and that he (to the exclusion of the applicants) has the right to decide where the remains of the deceased must be interred. The second issue is whether the applicants (particularly the first applicant) are “occupiers” as defined in ESTA. Only an “occupier” of land is entitled (provided all other legal requirements are met) to bury a family member on that land. The third issue relates to the constitutional validity of section 6(2)(dA) of ESTA. The last issue is whether, if section 6(2)(dA) is constitutionally valid, its requirements have been met. We will deal with each of the issues in turn.
The locus standi of the applicants
The first applicant, as the eldest son born out of the customary law union of the deceased and the second applicant, appropriated to himself the right to decide where the remains of the deceased should be buried. The respondent rejected the assertion by the first applicant that he is the son with the requisite standing to make that decision. The respondent alleged that the deceased's eldest son is in fact a person by the name of Ephraim, who is alive and well and also living on the same farm. Ephraim, according to the respondent, is the one with locus standi in this matter, to the exclusion of any and all of the applicants.
The evidence shows that Ephraim resides on the farm, had lived for about a year with members of the deceased's family, and was in fact the first-born son of the deceased. It also emerged from the evidence that he was born out of wedlock and out of any form of customary union. According to prevailing custom, he has no voice in matters concerning the deceased. Children born from casual liaisons have neither rights nor duties in respect of their father's house, unless a penalty or intlawulo4 is paid,5 which in this case did not happen. The first applicant had not claimed to be the eldest son of the deceased but had stated that he was the eldest son born from the union between the deceased and his wife, the second applicant. Besides, he claimed to be acting in the present case with the consent of the Nhlabathi family and the elders of that family. In her oral evidence, the second respondent confirmed that the first applicant is the person who must decide on the burial of the deceased. We have no doubt that, in all the circumstances, the applicants, particularly the first applicant, have the requisite standing in law to decide and direct how the remains of the deceased are to be interred.
Is the first applicant an “occupier” as defined in ESTA
We now turn to the question of whether the applicants are “occupiers” as defined in ESTA. It will be sufficient, for purposes of this case, to determine whether the first applicant is an occupier. We will not concern ourselves with the status of the other applicants. An occupier is defined in section 1(1) of ESTA as:
“a person residing on land which belongs to another person, and who has or [sic] on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding-
(a) [Para. (a) deleted by s. 6 (a) of Act 51 of 2001.]
(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”.
The “prescribed amount” referred to in para (c) is R5 000 per month.6
The assertion by the first applicant that he is an occupier as defined is challenged by the respondent along the lines that the first applicant has not discharged the onus resting upon him to prove such status. That challenge cannot prevail. It is common cause that the necessary consent for the first applicant to reside on the land existed as at 4 February 1997. In this regard, a passage from the respondent's affidavit will suffice:
“Ek het die oorledene (ELIJAH LITJI NHLABATHI) (hierna genoem “die oorledene”) in diens geneem as 'n werknemer in terme van 'n mondelinge diensooreenkoms. In terme van gemelde ooreenkoms het die oorledene op die plaas gewoon. Ek het soortgelyke ooreenkomste met drie van die oorledene se seuns aangegaan.”
The first applicant is one of the three sons. It is indeed so that the respondent, due to the restructuring of his farming operations, has not employed the applicants on the farm Mooifontein since March 1998. But there is no evidence of anything happening since then that would disqualify the first applicant of his earlier acquired “occupier” status.
It was suggested that because the first applicant had, in terms of section 17(2) of the Land Reform (Labour Tenants) Act,7 served notices for the acquisition of ownership as labour tenants, he could not at the same time also be an occupier. That is not correct. The definition of “occupier” in section 1(1) of ESTA was amended during 2001.8 It is now possible for a person to be a “labour tenant” as defined in the Land Reform (Labour Tenants) Act and at the same time also be an “occupier” as defined in ESTA.
The first applicant, in his founding affidavit, declared that the collective income of the entire family is about R1 200 per month, earned from piece jobs and the transport of goods in a bakkie. The respondent suggested that the applicant, in all likelihood, earned more than R5 000 per month. The only support which the respondent could give for this suggestion is the high costs of fuel and maintenance of the bakkie, which the applicants seem to be able to afford. The applicants will know much better than the respondent what they earn. We accept the first Applicant’s ’s statement in this regard, and conclude that he is not disqualified by para (c) of the definition from being an “occupier”.
Burial rights contained in ESTA.
The first applicant relies on section 6(2)(dA) of ESTA for his prayer that he be allowed to bury the deceased on the farm. Section 6(2)(dA) reads:
“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 -
(dA) 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;”
The term “established practice” is defined in section 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;”
The amendment of ESTA followed upon two Court decisions concerning rights to burials which occupiers might have. The first is a decision of this Court in the case of Serole and Another v Pienaar,10 where it was held:
“The right to establish a grave is different in nature from the specific use rights listed in s 6(2). It is, in my view, not the kind of right which the Legislature intended to grant to occupiers under the Tenure Act. Such a right could constitute a significant inroad into the owner’s common-law property rights. A Court will not interpret a statute in a manner which will permit rights granted to a person under that statute to intrude upon the common-law rights of another, unless it is clear that such intrusion was intended.”11
The second decision is by the Supreme Court of Appeal in Nkosi and Another v Bührmann.12 In that case, Howie JA held that:
“. . . 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.”13
By enacting the new section 6(2)(dA), the Legislature set out to add the right to bury a family member to the rights which occupiers have against land owners. The following two attributes of the right are of particular importance:
the right is not absolute; it must be balanced with the rights of the owner or person in charge of the land; and
the right only exists if there is an established practice to allow burials on the land.
Simultaneous with enacting the new section 6(2)(dA), the legislature also enacted a new section 6(5). In terms of that subsection, the family members of an occupier contemplated in section 8(4) of ESTA (a so-called long term occupier) were given the right, on the death of the occupier, to bury him or her on the land on which he or she was residing at the time of his or her death. Although the applicants originally relied on the provisions of section 6(5), it was abandoned during the course of the hearing. That was probably done because the issue of the constitutional validity of section 6(5) was perceived to be more intricate than that of section 6(2)(dA). This judgment, therefore, only deals with the provisions of section 6(2)(dA).
Constitutional validity of section 6(2)(dA) of ESTA
The respondent argued that an order could not be granted in terms of section 6(2)(dA) of ESTA because the section is unconstitutional. The respondent attacked the constitutional validity of section 6(2)(dA) of ESTA on two grounds. One ground is that it falls foul of the protection given to property in section 25 of the Constitution.14 The other is that, because it deals with burial, it intrudes into a functional area of exclusive provincial legislative competence (as set out in Schedule 5 of the Constitution) and that, by virtue of section 44(1)(a)(iii) of the Constitution, the National Assembly has no power to pass section 6(2)(dA) into legislation. We shall commence by considering this latter ground.
Do the burial rights in ESTA intrude into exclusive provincial legislative competence?
The respondent attacked the constitutional validity of section 6(2)(dA) on the ground that, by legislating on burial rights, it intruded into a functional area of exclusive provincial legislative competence. Section 44(1)(a)15 of the Constitution gives the National Assembly the power to legislate on any matter except a matter within a functional area of exclusive provincial legislative competence as listed in Schedule 5, unless it is necessary to intervene for the reasons set out in section 44(2).16
“Cemeteries, funeral parlours and crematoria” are listed in Part B of Schedule 5 of the Constitution , which means that they are local government matters in respect of which provincial governments have the legislative competence contained in section 155(6)(a) and (7) of the Constitution.
Under the provisions of the Local Government: Municipal Structures Act,17 new municipalities may be established and existing municipalities may be dissolved. A new municipality under the name of Seme (previously Sechaba Sa-Majuba) was established under that Act for an area which includes both the farm Mooifontein and the previous area of jurisdiction of the Volksrust municipality. The Volksrust municipality was dissolved by Government Notice.18 It had by-laws prohibiting the burial of a body outside an approved cemetery. The respondent relied on these by-laws for the submission that the burial of the deceased on the farm Mooifontein would be illegal. Under para 10(1) of the said Government Notice
“All by-laws and resolutions of a disestablished municipality that are in force on the effective date, remain in force in the area in which they were applicable subject to any amendment or repeal by the newly established municipality.” (our underlining)
The by-laws of the erstwhile Volksrust municipality were never applicable to the farm Mooifontein. After the close of argument of the end of the hearing, we gave the respondent an opportunity to search for by-laws which might be applicable to the farm Mooifontein. His attorney informed the registrar by letter dated 14 February 2003 that no such by-laws could be found, and asked us to finalise the matter without them. It was therefore not established that a burial on Mooifontein would fall foul of any municipal by-laws.
There is potential for overlap between the exclusive provincial competences listed in Schedule 5 and the competences of the national legislature. The mere fact that a legal provision in a national law touches upon a matter listed in Schedule 5 does not mean that it will necessarily interfere with the exercise of powers by other spheres of government. In this regard, it was held in Western Cape Provincial Government and Others: in Re DVB Behuising (Pty) Ltd v North West Provincial Government and Another:19
“In the interpretation of those Schedules there is no presumption in favour of either the national Legislature or the provincial legislatures. The functional areas must be purposively interpreted in a manner which will enable the national Parliament and the provincial legislatures to exercise their respective legislative powers fully and effectively.”
Section 6(2) of ESTA, of which section 6(2)(dA) forms part, deals with the relationship between an occupier of land on the one hand and the owner or person in charge of the land on the other. The right given to an occupier to bury a deceased member of his or her family on the land is a right against the owner or person in charge of the land. It is not intended to override any other law regulating cemeteries or burials.
It is trite law that ESTA must be interpreted with a purposive approach.20 The impugned provision does not purport to regulate the establishment and use of cemeteries. It is not intended to interfere in the regulation of burial grounds and the prohibition of burials outside those grounds. The purpose of the legislation is to provide an opportunity for occupiers to follow their religious or cultural practices but always subject to such regulation. Section 6(2)(dA) goes no further than to prevent an owner or person in charge of land from restraining the burial of an occupier’s family member on the land, provided that such burial is not prevented by any other law. So interpreted, section 6(2)(dA) does not interfere in an area of exclusive provincial competence.
Does section 6(2)(dA) infringe the constitutional protection of property?
In the words of Howie JA in the case of Nkosi and Another v Bührmann:21
“. . . 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.”22
When the judgment in the Nkosi case was given, section 6(2)(dA) was not yet part of ESTA. As a result of this judgment, and probably also of the earlier judgment given by this Court in the case of Serole and Another v Pienaar,23 the legislature, through section 6(2)(dA), gave an occupier the right under certain circumstances to bury a deceased member of his or her family on the land where he or she is residing. No provision is made for any compensation to the landowner for the appropriation of the grave.
The following subsections of section 25 of the Constitution are relevant to this issue:
“(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application -
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, . . .
(4) For the purposes of this section -
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) . . .
(5) . . .
(6) 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.
(7) . . .
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).”
There can be no doubt that the appropriation of a grave by an occupier will deprive the land owner of property. The law permitting the appropriation is a law of general application. Unless the law is arbitrary, or unless it permits an expropriation which violates the requirements of section 25(2) of the Constitution, it will be valid.
Ackermann J in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance24 described the circumstances under which a deprivation would be arbitrary, as follows:
“Having regard to what has gone before, it is concluded that a deprivation of property is ‘arbitrary’ as meant by s 25 when the ‘law’ referred to in s 25(1) does not provide sufficient reason for the particular deprivation in question or is procedurally unfair. Sufficient reason is to be established as follows:
(a) It is to be determined by evaluating the relationship between means employed, namely the deprivation in question and ends sought to be achieved, namely the purpose of the law in question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the relationship between the purpose for the deprivation and the person whose property is affected.
(d) In addition, regard must be had to the relationship between the purpose of the deprivation and the nature of the property as well as the extent of the deprivation in respect of such property.
(e) . . .
(f) Generally speaking, when the deprivation in question embraces all the incidents of ownership, the purpose for the deprivation will have to be more compelling than when the deprivation embraces only some incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends, the nature of the property in question and the extent of its deprivation, there may be circumstances when sufficient reason is established by, in effect, no more than a mere rational relationship between means and ends; in others this might only be established by a proportionality evaluation closer to that required by s 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on all the relevant facts of each particular case, always bearing in mind that the enquiry is concerned with ‘arbitrary’ in relation to the deprivation of property under s 25.”25
In our view, section 6(2)(dA) does not authorise an arbitrary appropriation of a grave, for the following reasons:
(a) The right to appropriate a grave must be “balanced with the right of the owner or person in charge”. It is imaginable that factual situations could exist where the rights of the owner or person in charge could outweigh the right of an occupier to a grave.
(b) An occupier has the right to bury deceased family members on the land where they live only if there exists an established practice to permit such burial.26 Both the occupier’s right of residence and the practice to routinely give permission for burials must, in the past, have originated from some kind of consensus between the owner (or person in charge) and the occupier.
(c) The establishment of a grave (and the concomitant right to visit and maintain the grave) will, in most cases, constitute a relatively minor intrusion into the land owner’s property rights.27
(d) The right to bury a family member established by section 6(2)(dA) of ESTA was enacted to fulfill the state’s constitutional mandate to grant occupiers legally secure tenure.28 It is a religious or cultural imperative for many occupiers that their ancestors be buried close to where they live. The importance of that imperative would in most cases be sufficient reason to justify the deprivation of some incidents of ownership from the owner of the land.
Mr Güldenpfennig, for the respondent, submitted that the appropriation of a grave constitutes not only a deprivation of some of the landowner’s property rights, but also an expropriation of those rights. He further submitted that, because section 6(2)(dA) contains no provision for compensation, which under section 25(2) of the Constitution is an essential requirement for the validity of a right to expropriate, section 6(2)(dA) is unconstitutional and void. It was held by this Court in the Serole case that permission to establish a grave on a property might come to the granting of a servitude over that property.29 A servitude imposed upon a landowner without his consent could well constitute an expropriation. For purposes of considering Mr Güldenpfennig’s submission, let it be assumed, without so deciding, that the appropriation of a grave in terms of section 6(2)(dA) is a de facto expropriation of a servitude over the land concerned.30
If a statutory provision which allows expropriation does not provide for compensation, it can have several repercussions. It could be that the provision contains an implied right to compensation,31 or that a court might have to read such a right into the provision,32 or that sections 25(2) and (3) of the Constitution provide a right to compensation. Where an obligation to pay compensation is incompatible with the essence of the permitted expropriation, it could be that the authorizing statutory provision is invalid.33 It could also be that the absence of a right to compensation is justifiable under section 36 of the Constitution. Section 36(1) reads as follows:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
As Ackermann J stated in the First National Bank case,34 neither the text nor the purpose of section 36 suggests that any rights in the Bill of Rights are excluded from limitation under its provisions. On the contrary, section 25(8) of the Constitution is explicit in making section 36 applicable to land, water and related reform measures. Despite the dictum by Ackermann J, no final decision was taken by the Constitutional Court on the point to what extent an infringement of a right to property which is protected by section 25, can be justified under section 36.
Professor van der Walt, in his book on the property clause,35 argues convincingly that none of the limitations on the deprivation and expropriation of property contained in section 25, are immune from the provisions of section 36.36 Most South African authors accept that the general limitation provisions of section 36 and the specific limitation provisions of section 25 apply cumulatively.37 We share that view. The limitations on the right to expropriate which are contained in section 25(2) and (3), particularly with regard to the purpose of the expropriation and the payment of compensation, are important when deciding whether a statutory right to expropriate outside of those limits (in casu, to expropriate without compensation) can be justified under section 36. It is significant that not only section 36, but also section 25(3) and the preamble to section 6(2) of ESTA requires a balancing of interests between affected parties. There can be circumstances where the absence of a right to compensation on expropriation is reasonable and justifiable, and in the public interest (which includes the nation’s commitment to land reform).38
The statutory obligation of a land owner under section 6(2)(dA) of ESTA to allow an occupier to appropriate a grave site on his land without receiving compensation, is in our view, reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, having regard to the following circumstances:
(a) the right does not constitute a major intrusion into the property rights of the land owner;
(b) the right is subject to balancing with the rights of the land owner; in some circumstances, the rights of the land owner might override the right to appropriate the grave site;
(c) the right exists only where there is an established 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; and
(d) the right will, in many cases, enable occupiers to comply with a religious or cultural belief that deceased members of their family must be buried close to their homestead, so that the spirits of their ancestors might be close to them. Giving statutory recognition to that belief accords with the State’s constitutional mandate to institute land reform measures.
Appropriations of grave sites under section 6(2)(dA) will not always be permissible. The requirements of section 6(2)(dA) must be met. The existence of these requirements, particularly the balancing of interests and the necessity for an established practice, and also the restricted nature of the rights which are appropriated, justifies in our view the absence of a statutory right to compensation.
Requisites for a right to bury as contained in section 6(2)(dA) of ESTA
Having concluded that section 6(2)(dA) of ESTA is not unconstitutional, we must now determine whether its requisites for a right to bury have been met. These requisites are the following:
(a) the rights of the owner or person in charge must not outbalance the right of the first applicant (as occupier) to carry out the burial;
(b) the deceased must, at the time of his death, have been residing on the land; and
(c) there must be an established practice in terms of which the owner or person in charge of the farm routinely gave permission to people residing on the farm to bury deceased members of their family on the farm in accordance with their religion or cultural belief. This latter part of the requirement was not vigorously contested. The applicants stated that they belonged to the Christian Church in Zion. The burial would be conducted in accordance with the rites of that church, just as the burials of the two Nhlabathi children, Zandile and Albert.
Balancing the rights of an owner with those of an occupier
We now deal with the first of the above three requisites. Except for one consideration, nothing was put before us to substantiate a submission that the proprietary rights of the owner in this case might outbalance the burial rights of the first applicant. The single consideration is that the right of residence of the first applicant was cancelled during 1998. Mr Tee, for the applicants, submitted that it had not been shown that the termination was just and equitable, as required under section 8 of ESTA. No facts have been put before us which show that the termination might not be just and equitable. The respondent did not proceed with an eviction application against the applicants after the termination of their rights of residence, because the applicants claimed to be labour tenants, and have lodged a claim to acquire land on the farm under chapter III of the Land Reform (Labour Tenants) Act.39 In terms of section 14 of the Land Reform (Labour Tenants) Act, no labour tenant may be evicted while an application by him or her in terms of Chapter III is pending. In the first applicant’s founding affidavit, however, he departed from that position, and declared that the applicants are not labour tenants, but occupiers (as defined in ESTA).40 If the applicants are not labour tenants, section 14 of the Land Reform (Labour Tenants) Act might no longer protect them against eviction. The respondent made it clear that following upon a reorganisation of his farming activities, he no longer needs the services of the first and third applicants, and he no longer wants them on the farm. Should it be likely that an application for their eviction in terms of ESTA would succeed and that it is only a question of time before they have to leave the farm, that might be a factor to be taken into account when balancing the proprietary rights of the owner with the first applicant’s claim to bury his father on the farm.
Mr Tee pointed out that the denial by the first applicant in these proceedings that the applicants are “labour tenants” is contained in an affidavit which he as counsel prepared in great haste. He submitted that the first applicant does not understand the technical meaning of the term “labour tenant”, and that the denial is a legal conclusion which might not be merited on the facts. We accept that submission.41 The issue of whether the applicant’s right of residence was properly terminated was also not adequately dealt with. Because these issues remain largely unexplored, it would be unfair to conclude that the applicants will in all probability be evicted from the farm, and to assume their imminent departure as a fact when balancing the interests of the first applicant with those of the respondent.
Apart from the possibility that the applicant might be evicted from the farm in the near future, no factor was brought to our attention which could outbalance the right of the first applicant to bury his late father on the farm. That particular requirement of section 6(2)(dA) has, in our view, been fulfilled.
Did the deceased, at the time of his death, reside on the farm?
An occupier has the right under ESTA to bury a deceased member of his or her family on the land on which he or she was residing, provided that the deceased person, at the time of his or her death, was also residing on the same land. A person resides on land if he considers the land to be his permanent home.42 The deceased lived with his son on the farm Mooifontein. He left a few days before his death to seek medical assistance. It cannot be concluded that, by so doing, he gave up residence on the farm. Eventually the deceased ended up in the Amersfoort hospital, where he passed away. Although the respondent originally took the position that the deceased left the farm and was no longer resident there when he died, this was not persisted in during argument. We conclude that, at the time of his death, the deceased was residing on Mooifontein.
Was there an established practice to permit burials on the farm?
We now turn to the third requirement, namely that there must be an established practice to permit burials on the farm. The respondent admitted that he allowed the burial of two members of the Nhlabathi family on the farm, but denied that he had thereby created an established practice. Both cases, he stated, were special indulgences on his part due to exceptional circumstances surrounding the deaths of the family members - the one only 2 months old and the other having drowned. Although the two graves are close to the homesteads of the Nhlabathi family, the respondent has never set aside a plot of ground to be a burial site for the Nhlabathi family. The area surrounding the two graves is , however, considered by the Nhlabathi clan to be the graveyard of the Nhlabathi family.
It was common cause, on the other hand, that there existed burial plots on the farm for other families of farm workers. The respondent’s attitude was that the existence of these other burial sites was irrelevant to the present proceedings, since an established practice must be proved in respect of the Nhlabathi family only, regardless of other families. We do not agree. An established practice is required by the section to exist in respect of the land and not in respect of a particular family or occupier.
The approach adopted by Corbett CJ in the case Commissioner for Inland Revenue v SA Mutual Unit Trust Management Co Ltd43 was that the existence of a practice could be established by showing that it was “consistently allowed in a sufficient number of cases to lead to the inference that such a practice was authorised and generally prevailed”.44 In our view, there exists an established practice to permit the burial of deceased occupiers and members of their families on the farm Mooifontein.
It follows from the above that the application must succeed. Because the legislation concerned is social interest legislation, the applicant, very properly, did not ask for costs. Accordingly, no cost order will be made.
For the reasons contained in this judgment:
(a) It is ordered that the first applicant is entitled, in terms of section 6(2)(dA) of the Extension of Security of Tenure Act, 1997, to bury the body of his late father KITI ELIJAH NHLABATHI in the Nhlabathi graveyard on the farm Mooifontein No 497, Registration Division IS, Transvaal.
(b) The order in (a) does not override nor does it do away with any other laws or legal requirements pertaining to such burial.
(c) No order is made as to costs.
JUDGE FC BAM JUDGE A GILDENHUYS
For the applicant:
Ntuli Noble & Spoor Inc., Nelspruit
For the respondents:
Van Dyk and Theron, Ermelo
1 At page 5 of the pleadings bundle.
2 Act 62 of 1997, as amended.
3 There was also a third basis, viz that the Court must extend the rights of occupiers to allow the burial. This was not relied upon at the hearing.
4 Such a penalty is sometimes called isondlo.
5 See Olivier “Indigenous Law: Succession” in Joubert (ed) Law of South Africa, Vol 32 (Butterworths, Durban 1994), at para 146(a).
6 Regulations published in Regulation R1632 Government Gazette 19587, 18 December 1998, at para 2.
7 Act 3 of 1996, as amended.
8 The amendment was effected by section 6(a) of Act 51 of 2001.
9 Act 51 of 2001.
11 At para .
33 At para .
55 Section 44(1)(a) of the Constitution reads:
“The national legislative authority as vested in Parliament -
(a) confers on the National Assembly the power -
(i) . . .
(ii) to pass legislation with regard to any matter, . . . but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
(iii) . . .”
66 Section 44(2) of the Constitution reads:
“(2) Parliament may intervene, by passing legislation in accordance with section 76 (1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary-
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of services; or
(e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.”
88 GN 299, Mpumalanga Provincial Gazette 631, 01 October 2000.
00 Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC) at para ; Venter NO v Claasen en Andere 2001 (1) SA 720 (LCC) at para ; Hallé and Another v Downs 2001 (4) SA 913 (LCC) at para .
11 Above n.
22 At para .
33 Above n.
55 At para .
66 See the wording of section 6(2)(dA) and the definition of “established practice” contained in ESTA.
88 See section 25(6) of the Constitution, para above.
99 Above n, at para .
00 This is sometimes referred to as constructive expropriation.
33 Compare Cultura 2000 and Another v Government of the Republic of Namibia and Others 1993 (2) SA 12 (NM) at 25G-I and 26H-G. Other aspects of this judgment were set aside on appeal. See Government of the Republic of Namibia v Cultura 2000 and Another 1994 (1) SA 407 (NmS) at 426.
44 Above n at para .
55 The Constitutional Property Clause: a comparative analysis of section 25 of the South African Constitution of 1996 (Juta, Cape Town 1997).
66 At 94-95.
77 Van der Walt deals comprehensively with the views of South African authors on this issue at 92-100 of his book. It is not necessary to repeat all of them here.
88 Section 25(4)(a) of the Constitution, para above.
99 Above n.
00 Founding affidavit, 3 October 2003 at para .
11 In this connection, I must point out that legal representatives should be slow to put conclusions of law into the mouths of deponents, particularly where the correctness of such conclusions have not been fully investigated.
22 See Drumearn (Edms) Bpk v Wagner and Others 2002 (6) SA 500 (LCC) at para ; Robertson v Boss, LCC6R/98, 30 September 1998, available from www.law.wits.ac.za at para -; Van Rensburg and Another v De Bruin and Others, LCC93R/02, 27 January 2003, available from www.law.wits.ac.za at para .
33 1990 (4) SA 529 (A).
44 At 539A-B.