For time in memorial farmers traditionally buried members of their family on the family farm, and similarly farm workers and their family members were also buried on farms on which they worked and resided. This custom changed over the years, but in respect of black people there are specific cultural and financial reasons for burying loved ones on the farms where they lived or where their ancestors were laid to rest. It is now trite law that once an established practice for burials exist, as well as in respect of visitation rights, such rights cannot be unilaterally terminated by the land owner.
Given the security issues, the burials on farms as well as the visitation of graves have become problematic and a much uncertainty prevails at present in this regard.
The Extension of Tenure Security Act No. 62 of 1997 as amended (the Act), also known as ESTA, affords the legislative authorization for the burial on farms in certain instances, namely where the deceased was a long time occupier and where it was customary to allow burials.
Section 6(2) of the Act provides that an owner in such circumstances will be obliged to permit the burial, but may set reasonable conditions for the burial. A farm owner also has a choice to allow for such burials, irrespective of whether the Act allows for it or not.
In urban areas burials are regulated by the Municipal regulations and the Act must be read in conjunction with any such Municipal regulation. An example of such Municipal regulation is contained in the Mogale City Ordinance on Graveyards, and section 51 of the said Ordinance which reads as follows:
"51. No further burials will be permitted on farms where the municipality has established rural cemeteries for such purpose. Existing farm cemeteries will be deemed as closed as from 1 January 2006 and all burial needs emanating from such farmlands will be directed to the public cemeteries that will be allocated by the Municipality".
Our courts have clearly expressed themselves on the burials on farms. In the case of Dlamini and Another v Joosten and Others (30/05)  ZASCA the court found as follows:
"The burial right in s 6(2) (dA) of the Act is an incidence of the right of residence contained in s6 (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. The burial right is in the nature of a personal servitude which the occupier has over the property on which he possesses a real right 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."
The Court also found that the family had the right to bury the deceased on the farm of the Respondent's brother where she had resided at the time of her death. The Court held that a landowner had no right to unilaterally stop an establishment practice of burial. The Court stated:
"As mentioned earlier, the Act grants 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."
Another important and more recent unreported case is that of NJ Thwala v Greyling and Umfoyo (Pty) Ltd, which was decided in 2009 by the Land Claims Court. This was an urgent application to allow a night vigil and burial to go ahead on a farm in the Wakkerstroom district. The deceased was the son of an occupier who resides on the farm Geluk. The son was at school in Wakkerstroom and only spent weekends on the farm. The Court had to decide whether or not the deceased resided on the farm at the time of his death. In this respect the Court found:
"It is not necessary to be physically present at the residence all day each day to be residing in the particular premises. The location of the person's belongings, where their social engagements occur, frequency of visits or absence are all indicative of whether a person is residing in a particular property".
The Court therefore held that the deceased did reside on the farm, even though he only spent weekends there and that his family did have the right to bury him on the farm.
From the aforesaid Act and the case law referred to, burial and visitation rights are real rights which are capable of being registered against the title deeds of farms. To protect the interests of all parties it is strongly advised to have such rites registered as personal servitudes. The withholding of a consent by an owner to bury a deceased family member is thus an unlawful deprivation of this right, whether registered as a personal servitude or not.
Property Law Specialist
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