IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Before GILDENHUYS J

ALPHEUS MATLOU                                                                     Applicant
and
BEN COHEN                                                                                   Respondent

JUDGMENT

GILDENHUYS J:

[1] The applicant in this matter resides on the farm Leeuwpoort, in the Limpopo Province. The farm is owned by the respondent. The applicant is an "occupier", as defined in the Extension of Security of Tenure Act, Act 62 of 1997 (herein referred to as "ESTA").

"3. That the applicant be allowed to bury his daughter, Christinah Matlou on Respondent's farm, Leeuwpoort 554 KQ, Limpopo Province on the farm graves; and
4.	That the Respondent be ordered to open access gates to the grave site on the farm Leeuwpoort 554KQ; and
5.	

"(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;"

It is an essential requirement for the right to bury a deceased family member on the farm that the family member must, at the time of her death, have been residing on the farm.

[4] The only indication that the deceased, at the time of her death, was residing on the farm is contained in the founding affidavit of the applicant. It reads as follows:

"I am presently staying on Respondent's farm, in a house allocated to my family by him, together with my wife and eight children; 4 (four) of which are still schoolgoing children."

The respondent, in his affidavit, answered as follows;

[5] In support of his denial that the deceased lived on the farm, the respondent filed an affidavit by one Mr J Nawai. Mr Nawai seems to be an employee of the Rooiberg municipality. The affidavit reads as follows:

"Hiermee verklaar ek dat ek bekend is met Alpheus Phiri Matlou (die applikant) en sy dogter Christinah Matlou wat (nou oorlede is).

Ek is in beheer van al die mense te Rooiberg Lokasie en ek is bekend met almal wat daar woon of gewoon net.”

[7] The applicant delivered no replying affidavit. He did not utilise the opportunity to deal with the respondent's allegation that the deceased resided in Rooiberg at the time of her death. The respondent's answering affidavits, particularly in the absence of replying affidavits, raise real disputes of fact.

[9]   The applicant alleged in his founding affidavit:

In the light of this statement, it would have been prudent for the applicant to have replied to the respondent's answering allegation that he has a house in the Rooiberg location.

[ 10] The respondent answered the allegation that the applicant has nowhere where he can bury his daughter, as follows:

The applicant did not reply to these allegations.

[11] The offer by the respondent to contribute R350.00 towards funeral expenses is not. as suggested by Mr Shirinda, an indication that the deceased resided on the farm or that the applicant is entitled to bury her on the farm.

[12] Lastly, on this issue, Mr Shirinda submitted that the entire drift of the applicant's founding affidavit is to the effect that the deceased resided on the farm. I do not find that to be the position. Even if it was, the premise is explicitly denied by the respondent.

[13] I conclude that the applicant did not establish that his deceased daughter resided on the farm at the time of her death. For that reason, section 6(2)(dA) of ESTA does not entitle the applicant to bury her on the farm. Consequently, the first of the applicant's three prayers cannot be granted. The respondent submitted several other grounds on which that prayer must be dismissed. By reason of my conclusion on the residence issue, I need not consider the other grounds.

[14] The second of the applicant's three prayers concerns access to the grave site on the farm. If the applicant wants access to the site in order to dig a new grave for the deceased, he is not entitled to it, because he is not entitled to bury her there. If the applicant wants access to the existing graves, section 6(4) of ESTA is relevant. It reads:

"Any person shall have the right to visit and maintain his or her family graves on land which belongs to another person, subject to any reasonable condition imposed by the owner or person in charge of such land in order to safeguard life or property or to prevent the undue disruption of work on the land."

JUDGE A GILDENHUYS
For the applicant:
Nkuzi Land Right Development

For the respondent:
MacRobert