Court upholds right of farm residents to bury their loved ones

First published by GroundUp

Farmworkers who have lived on Montina farms in Groblershoop, Northern Cape, for generations have always treated the farms as a single piece of property. But, legally speaking, the Montina Farms consist of separately registered pieces of land: Onder-Plaas, Middel-Plaas and Bo-Plaas. This has implications for where the residents may bury their loved ones.

Maria and Hendrik Mampies are a retired couple who live on Onder-Plaas. Maria was born on Onder-Plaas and worked and lived there her whole life. Hendrik was not born on Onder-Plaas, but he has lived and worked there since 1997.

Maria’s father, mother, and siblings all lived and worked on Onder-Plaas their entire lives. Their livestock were reared on Onder-Plaas and grazed freely.

When Maria’s family members died, they were buried on Middel-Plaas. This is because for generations, the Mampies family regarded the graveyard at Middel-Plaas as their ancestral burial site.

Jan Pieter Engelbrecht was Maria’s employer and owned all of the Montina farms until Maria retired. Her family members also worked for Engelbrecht.

In 1991, ownership of the farms over the years changed from Engelbrecht to several different owners. At present, Sandvliet Boerdery (Pty) Ltd owns Middel-Plaas and Bo-Plaas. Onder-Plaas is owned by SnyBar Developments (Pty) Ltd.

The dispute around burial rights arose when the Mampies’ niece, Magdalene de Wee, died on 22 February 2014.

De Wee worked and lived on Onder-Plaas. When she died, the Mampies wanted to bury her at the family graveyard at Middel-Plaas in accordance with their family tradition and religious beliefs.

Sandvliet, however, refused to let the Mampies bury De Wee on Middel-Plaas. It argued that the Mampies do not reside on their land (Middel-Plaas) and therefore have no right to bury their loved ones there.

Proceedings in the Land Claims Court

The Land Claims Court (LCC) had to decide whether the Mampies were entitled to bury their niece on Middel-Plaas although they lived on Onder-Plaas.

The Extension of Security of Tenure Act (ESTA) determines the burial rights of occupiers. The Act was established to protect the land rights of farm workers, rights that are insecure as a result of racist laws enacted in the past.

ESTA entitles an occupier to bury their loved one on land where (1) it is in accordance with their religious and cultural beliefs and (2) there is an established practice for doing so. The court found that there was a “routine practice” for the Mampies burying loved ones at the Middel-Plaas graveyard. This practice had been done with the consent of the previous landowner, Engelbrecht. The new landowner could not unilaterally revoke this right, the court said.

Proceedings in the Supreme Court of Appeal

Sandvliet appealed the LCC’s decision to the Supreme Court of Appeal (SCA). It argued that this judgment was wrong because the place where the Mampies and the De Wee lived (Onder-Plaas) and where they buried De Wee (Middel-Plaas) were separately registered pieces of land. This means they did not “reside” on the land in question.

Sandvliet argued that if the LCC’s approach was taken this would mean that a burial right could be invoked against a landowner based merely on ancestral lineage and previous burials irrespective of the occupiers’ residency or that of the deceased. This would undermine the clear provisions of ESTA, the company said.

The SCA pointed out that the starting point for interpreting ESTA was the Constitution. The Constitution aims to provide redress and security of tenure to those whose land rights were infringed by racist laws in the past. The purpose of ESTA is to provide for security of tenure and restore dignity to those who were denied their rights during apartheid.

Also, ESTA protects the rights to freedom of religion, belief and expression. The provisions of ESTA must be interpreted generously to give maximum protection to occupiers, the court said.

The SCA said that before the amendments to ESTA, courts interpreted the religious and cultural rights of occupiers narrowly. Previously, courts had ruled that occupiers do not have the right to bury on land owned by another person. The purpose of the amendment was to change the law in this regard.

In terms of the amendment, there are three requirements to exercise burial rights. First, the Mampies must qualify as occupiers in terms of of ESTA. Second, the deceased must have resided on the land at the time of death. Third, there must be “an established practice in terms of which the owner … 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 beliefs.”

The court said that it was clear that most of these requirements had been met. The only point of contention was whether the Mampies and the deceased “resided” on the land in question. The current version of ESTA does not provide a definition for the word “reside”. Parliament, however, intended to amend ESTA yet again and had published a new version of ESTA in the government gazette. This new law had not come into effect yet.

The new law defines the word “reside” to mean “to live permanently”. Previous SCA decisions had found that the right to bury is an incidence of the right to occupy which stems from the relationship between the occupier and the land owner. Burials rights, therefore, can only be exercised against the land owner and his or her successors.

But did this mean that because the Mampies lived on Onder-Plaas and not Middel-Plaas they were not entitled to bury the deceased there? The court said no.

The judges said that because ESTA aims to protect an occupier’s security of tenure, it must aim to protect their burial rights as well. This is because protecting an occupier’s religious and cultural rights is consistent with treating them with respect and dignity.

The court also said that it is possible for a person to “reside” on land which is made up of several different pieces of registered land. Because, the Mampies had always treated the Montina farms as one unit, this meant they “resided” on Middel-Plaas.

Lastly, the court pointed out that its decision does not mean that burial rights are now absolute. The right must be weighed against other interests and determined on a case by case basis. Also, the right can only exist if there is an established practice, as in this case. The court confirmed the LCC’s finding that the right to bury cannot be revoked unilaterally by subsequent landowners.

The SCA dismissed the appeal and made no costs order. You can read the SCA’s judgment here. DM