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Tshivhula v Koedoepan Boerdery CC and Another (LCC15/07) [2007] ZALCC 4 (6 March 2007)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC15/07

In RANDBURG: Bam JP

Decided: 06 March 2007

In the case between:

AIFHELI SAMUEL TSHIVHULA Applicant

and

KOEDOEPAN BOERDERY CC 1^stRespondent

ROELOF JACOBUS VENTER 2^ndRespondent

Application for Burial

JUDGMENT

BAM JP:

1. On the 02 March 2007, I issued an order dismissing an urgent application to compel one or another of two farm owners to permit the burial on either of their adjacent properties of the applicant’s elderly mother Mukumela Tshivula. Written reasons for the order, as well as for a cost order, were to be supplied on a later date so as not to delay funeral arrangements.

2. It is common cause that the applicant and his wife reside on portion 4of the farm Corningston 699 in Limpopo whose current owners are the second respondent, Roelof Venter and his wife. It is also common cause that the first respondent (a close corporation of the Breytenbach family) owns adjoining portion 3of the farm Coniston 699 on which is situated the burial site which was the main and principal target of the applicant to have his mother laid to rest next to her deceased husband, his father.

3. When the applicant’s mother died on 27 January 2007, the applicant took the obvious and, in my view, only correct step and approached Breytenbach senior of the first respondent to negotiate permission for the burial to take place at the burial site on portion 3. Although his initial attempt on 30 January was repulsed, it appears that after interventions from various quarters, including their present legal representatives, the first respondent relented and granted permission but on certain conditions. The conditions could not be met and negotiations broke down hence these proceedings.

4. There was no attempt on the part of the applicant to enter into any negotiations with the second respondent to bury on portion 4. It is, however, reasonable to speculate that it was not the applicant’s primary target to bury on portion 4but only a fall back position. Also, it is clear from the papers that their personal relations were strained and, in any event, was advised that the prospects of success on legal grounds to bury on portion 4were stronger.

5. Negotiations having broken down in the attempts to bury amicably on portion 3 applicant resorted to the law. The submissions by Ms Prinsloo, his counsel, were that since the first respondent had over a long period of time, and even after Coniston 699 had been subdivided, allowed burials of the applicant’s family on portion 3to take place an established practice came into being. This established practice was indeed confirmed by him when he relented during negotiations and allowed the burial to take place subject to conditions. She then seemed to suggest that, in these circumstances, the court could hold the first respondent to the legitimate expectation he created in the applicant’s mind and compel the Breytenbachs to accede to the request.

6. The authorities Ms Prinsloo quoted¹ did not, in my view, support her submissions. In Barloworld the point being made is that while a trade practice once established assumes the consent of interested parties, nonetheless it cannot be decisive in the face of a contrary agreement². In Nkosi and Another v Buhrmann on the other hand, the emphasis was on the need to acquire the special permission of the owner.

“Burial elsewhere requires not only the necessary acquisition of a site but special permission as

well. Outside the jurisdiction of a local authority one is necessarily dependent on the consent

of the land owner, be it the State, a juristic person or an individual. These are legal constraints

that bind anyone.”³

[7] I do not know of any common law principle to compel a land owner to give permission against his will and would be surprised if such existed since the law cannot request or enforce indulgencies but commands and enforces compliance. However, the Extension of Security of Tenure Act 62 of 1997 (the Act), in terms of which the present applications have been lodged, ‘occupiers’ are accorded various rights to bury deceased family members on the land with or without the permission of the owner. In this particular case it was common cause that neither the applicant nor deceased fell within the definition of ‘occupier’ in terms of the Act and no further statutory remedy was available to pursue the burial on portion 3.

[8] I therefore find that the application to bury on portion 3cannot be sustained and stands to be dismissed. The applicant is not entitled as of right to have his deceased mother’s body interred on portion 3unless with the first respondent’s consent.

[9] The application, in the alternative, to bury on portion 4of the farm Coniston stands on firmer ground in terms of the ‘Act’. Section 6(5) of the Act, in terms of which the application is launched, reads as follows:

“The family members of an occupier contemplated in section 8(4) of this Act shall on his or her death have a right to bury that occupier on the land on which she or he was residing at the time of his death or her death, in accordance with their religion or cultural belief, subject to any reasonable conditions which are not more onerous than those prescribed and that may be imposed by the owner or person in charge.”

[10] Section 8(4) of the Act, on the other hand, is as follows:

“The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and-

1. has reached the age of 60 years;

may not be terminated unless that occupier has committed a breach contemplated in section 10(1)(a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach.”

[11] It will be clear from the above that the applicant need not himself qualify as an ‘occupier’ in terms of the Act in order to bring an application in terms of section 6(5).

[12] Mr Kruger, counsel for the second respondent has, in the final analysis, contested the application on two grounds. The first is that the applicant has not made out a case that the deceased was an ‘occupier’ as defined in the ‘Act’. The second is that, not only is there no proof that the deceased was residing on the farm at the timeof her death(my emphasis), but that there is ample evidence to the contrary, viz that the deceased was not residing on the farm when she died.

[13] It is true that the founding affidavit of the applicant made no averments or assertions in regard to her status as an ‘occupier’ or regarding the place where she died. It is trite law that appropriate and relevant allegations regarding the fundamental elements of establishing a cause of action should be made in the launching affidavits. In the present case this means that the applicant should have alleged (with annextures where possible) that she was residing on the land for a certain period with the express or tacit consent of the owner and that her status had not changed until her death.

[14] This court in not unduly technical in its general approach but seeks, in one way or another, to elicit the facts relevant to an enquiry. And so the mere failure to deal with these matters in the launching affidavits would not be treated as fatal to the application if they could be supplied in either supplementary or even replying affidavits. The second respondent indicated very clearly in his answering affidavit that he challenged the status of the deceased as an occupier and particularly that she was residing on the farm when she died.

[15] One would then have expected more detail on these aspects in the applicant’s replying affidavit but, unfortunately, only bare denials and bare assertions were filed. I say unfortunately because I firmly believe that more concrete evidence could have been provided with a little more exertion and effort. The disclosure, for instance in the replying affidavit, that the deceased’s personal belongings were still on the farm was a powerful indication that she must have been resident there at some time, but would have been reinforced if the personal belongings had been itemized. More importantly, even as Mr Kruger points out, an undertaker’s report, a death certificate and confirmatory affidavits would have certainly carried considerable weight in bolstering the assertion.

[16] In the absence of all these the balance of probabilities shifted considerably in favour of the second respondent’s version that, in all of four years on the farm, he was not ever made aware of the presence of the deceased residing on the farm.

[17] The court is aware that the phrase ‘residing on the land at the time of her death’ does not have the literal meaning of expiring within the precincts of a given farm because many die in hospital away from home and others die during a trip to a neighbouring state. But it does mean sustained presence in a place without any present intention of leaving it.⁴ Also, that a person may have more than one place of residence. What the court requires is more flesh to substantiate the legal requirements. One thing is for sure, even if the deceased had more than one residence, she could only have been residing on one of them at the time of her death.

[18] The applicant has not succeeded in making out a clear case as to where and when the deceased died or the circumstances of her death to enable the court to make a finding on whether or not she was residing at portion 3at the time of her death. Even though the court is convinced, on a balance of probabilities, that she was an occupier in terms of section 8(4) of the Act, this is insufficient for granting the application in the alternative. It is true that the second respondent also had no conclusive evidence that the deceased left the farm at a certain stage without the intention to return; but the onus was upon the applicant and not upon the second respondent. It follows then that, in my judgment, the applicant was not entitled to be granted the order he sought in the alternative against the second respondent.

[19] Mr Kruger, counsel for both respondents strongly urged me to deviate from the usual practice in this court of not awarding costs. He particularly pressed me for a punitive order against the Department of Land Affairs as it was common cause that the Department had taken an interest in these proceedings. While I agree with his criticism of the role and style of the Department’s activities in the matter, I cannot concede that my discretion in the awarding of costs stretches beyond the parties that have participated officially in the proceedings. The Department was neither joined nor did they intervene or admitted as amicus curae terms of the rules of this court⁵.

Accordingly the following cost order is issued:

The application against the first respondent is dismissed with costs. In the application against the second respondent, no order as to costs is made.

[20] In consequence of all the above, the following order was issued on 02 March 2007.

Order:

1. The application in this matter is dismissed in its entirety save in respect of paragraph 1 of the Notice of Motion relating to urgency.

2. Accordingly, the applicant is not entitled to bury Mukumela Tshivhula on any portion of farm Conistom 699 without the consent and co-operation of the respondents.

3. Costs as in paragraph 19

_________________________

JUDGE PRESIDENT F C BAM

For the Applicants:

Adv Prinsloo instructed by Pratt Lyut & De Lange Attorneys

For the Respondents:

Adv Kruger instructed by Charles Pieterse Attorneys