THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No.: 107/2018

In the matter between:

SANDVLIET BOERDERY (PTY) LTD
APPELLANT

and

MARIA MAMPIES

FIRST RESPONDENT

HENDRIK MAMPIES

SECOND RESPONDENT

Neutral citation: Sandvliet Boerdery (Pty) Ltd v Maria Mampies & another
(107/2018) [2019] ZASCA 100 (8 July 2019)

Coram:

Maya P, Zondi, Dambuza, and Makgoka JJA and Rogers AJA

Heard:

23 November 2018

Delivered:

8 July 2019

Summary:
Extension of Security of Tenure Act 62 of 1997 – s 6(2)(dA) –
meaning of ‘reside’ – depends on facts of each case and includes use of a graveyard –
burial right may be invoked against landowner in respect of ancestral graveyard
situated on registered land on which neither an occupier who seeks to bury a deceased
family member nor the deceased had a dwelling at deceased’s death where they
routinely performed sufficient acts in relation to land to regard it as part of land on
which they ‘reside’.

___________________________________________________________________
ORDER
____________________________________________________________________________________

On appeal from: Land Claims Court, Randburg (Poswa-Lerotholi AJ sitting as a
court of first instance):

The appeal is dismissed with no order as to costs.
__________________________________________________________________

JUDGMENT
__________________________________________________________________

Maya P (Zondi, Dambuza and Makgoka JJA and Rogers AJA concurring):

[1] The crisp issue in this appeal is whether the respondents had the right to bury a
deceased family member on registered land owned by the appellant, in terms of s
6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The Land
Claims Court (the LCC) held that they did and the appellant challenges this decision
with leave of this Court.

[2] The material, background facts are not in dispute. The appellant, Sandvliet
Boerdery (Pty) Ltd, is the owner1 of various, adjacent parcels of registered land
commonly known as Bo-Plaas and Middel-Plaas. They form part of a historic trilogy
collectively referred to as the Montina farms, which includes Onder-Plaas, presently
owned by another entity, the relevance of which will shortly become apparent. The
farms are situated in Groblershoop in the Northern Cape Province. Their cadastral
descriptions are the following: (a) Remaining extent of the Farm Number 292, district

1 ‘Owner’ for purposes of ESTA is defined in s 1(1) thereof to mean ‘the owner of the land at the time of the relevant act,
omission or conduct, and includes, in relation to the proposed termination of a right of residence by a holder of mineral
rights, such holder in so far as such holder is by law entitled to grant or terminate a right of residence or any associated
rights in respect of such land, or to evict a person occupying such land’.

Hay, Northern Cape Province, Portion 5 of the Farm Oranje Noord Number 360,
Portion 6 of the Farm Oranje Noord Number 360 and Portion 7 of the Farm Oranje
Noord Number 360 in district Hay, Northern Cape Province, which constitute Bo-
Plaas; and (b) Portion 2 of the Farm Oranje Noord Number 360, Portion 3 of the Farm
Oranje Noord Number 360 and Portion 4 of the Farm Oranje Noord Number 360 in
district Hay, Northern Cape Province, which constitute Middel-Plaas. Onder-Plaas,
which is owned by Snybar Developments (Pty) Ltd, is constituted by remaining extent
of the Farm Kheis-Dewitt Number 603, Remaining extent of the Farm Landgoed,
Number 359, Portion 3 of the Farm Landgoed Number 359, and Portion 4 of the Farm
Landgoed Number 359 which are also in district Hay, Northern Cape Province.

[3] The respondents, Mrs Maria Mampies and Mr Hendrik Mampies, are a retired,
married couple. They were close relatives of the subject of the burial site dispute, the
late Ms Magdalene de Wee (the deceased), who was the daughter of Mrs Mampies’
biological brother, Mr Petrus de Wee, and Mrs Katriena de Wee. The respondents are
occupiers2 on the portion of Onder-Plaas with cadastral description Portion 4 of the
Farm Landgoed, Number 359. Mrs Mampies was born on this land in 1963 and has
resided on it her entire life. She worked at the farms as a seasonal employee of Mr Jan
Pieter Engelbrecht, who owned all the farms and operated them as a single unit at the
material time, until her retirement. Mr Mampies moved to Onder-Plaas in 1997 to
work for Mr Engelbrecht as a permanent employee and has continued residing there
even after his retirement in 2011. The deceased started working at Onder-Plaas in

2 In terms of ESTA which defines ‘occupier; in s 1(1)(x) as ‘a person residing on land which belongs to another person
and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding–
(a)  a labour tenant in terms of the Land Reform (Labour Tenants) 1996; (Act No. 3 of 1996) and
(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 family; and
(c)  a person who has an income in excess of the prescribed amount’.

2009 and resided there (on Portion 4 of the Farm Landgoed) with her four young
children after her retrenchment from work in 2014, until her death on 22 February
2017.

[4] Mrs Mampies’ maiden family has resided and worked at Onder-Plaas and,
likely the other Montina farms as they were not aware of the farms’ boundaries, for
generations. They regarded the Montina farms as one unit, as there were no
discernible boundaries between them and Mr Engelbrecht operated them as such. They
were allowed use of and unrestricted movement across these farms, living as families,
rearing and grazing their livestock and burying their dead on them. Mrs Mampies’
father also worked for Mr Engelbrecht during his lifetime. His wife, Mrs Mampies’
mother, predeceased him and was buried in a graveyard next to their home at Onder-
Plaas. He, another daughter and Mrs Mampies’ two children, respectively died in
2000, 2008, 2001 and 2006. They, together with other members of their extended
family, were buried in another graveyard situated on the portion of Middel-Plaas with
cadastral description Portion 2 of the Farm Oranje Noord Number 360. This graveyard
was established for use by the occupiers of the Montina farms, the respondents and 37
other families, including those who had no homes in Middel-Plaas, when the Onder-
Plaas graveyard reached full capacity. The respondents and their family regard the
graveyard as their ancestral burial site.

[5] Ownership of the farms passed from Mr Engelbrecht, in 1991, to several
successive owners over the years. Thus, Bo-Plaas and Middel-Plaas are now owned by
the appellant and Onder-Plaas is owned by SnyBar Developments (Pty) Ltd as
indicated above. Despite these changes, the occupiers’ living and employment
conditions remained unchanged in the beginning and they continued to have
unfettered access to the Middel-Plaas graveyard. However, in 2014 the successive

owners of the farms at the time, Groblershoop Trust, sold them to the Genade, Trisa
and Vickie Trusts.

[6] According to the respondents, the latter change in ownership brought new, strict
and unreasonable rules for the occupiers. They were not allowed to conceive children
whilst living on the farms. Many families were forced to sell their livestock. They
were prohibited from receiving visitors at their homes.  They were also denied access
to the Middel-Plaas graveyard. After numerous failed negotiations, the new successive
owners launched eviction proceedings in 2015 against 30 families among the
occupiers.3 The respondents were, however, not included in that group. It is during
this conflict that the farms were sold to the current owners.

[7] When the deceased passed away her parents, who did not reside on the Montina
farms, and the respondents, who regarded her as their own daughter, wished to bury
her at the Middel-Plaas graveyard with the rest of her family. This was in accordance
with their religion as members of the Dutch Reformed Church, cultural beliefs and
established practice. In terms of these beliefs and practice, they bury kin nearby and in
the same graveyard so that the graves may be regularly visited and cleaned without
difficulty and to enable the dead ‘to provide comfort’. The appellant, however, refused
to allow the respondents and their family to bury the deceased in the Middel-Plaas
graveyard because they lived on Onder-Plaas and only the graveyard was situated on
its land. That decision prompted this litigation.

[8] The respondents launched urgent proceedings in the LCC seeking, mainly, (a)
the declaration of their rights under ESTA, including the right to bury the deceased in
the Middel-Plaas graveyard in terms of s 6(2)(dA) thereof and, or, any law in terms of

3  In Trisa Trust & others v Gert Vries & others LCC Case number 136/15.

which the respondent acquired rights through their historic and continued practices on
the farm; and (b) an order interdicting the appellant from interfering with their right to
bury on Middel-Plaas.

[9] The respondents subsequently brought an application in terms of Uniform rule
16A in which they challenged the constitutionality of s 6(2)(dA). They contended that
they have, ‘through their long-term and uninterrupted use of the portion of the
[appellant]’s land for religious and/ or cultural purposes, acquired a real right in the
form of a private servitude to bury deceased members of their family in accordance
with their religion or cultural belief, as an established practice in respect of the land’.
They asked the LCC to recognise ‘through the development of the common law of
acquisition of real rights in terms of s 39(2) of the Constitution or through a creation
of a special constitutional remedy through section 38 of the Constitution, that real
rights to land may be acquired through long-term use under these circumstances’.

[10] As I have mentioned, the LCC decided the matter in the respondent’s favour.
The court found that the respondents complied with the provisions of s 6(2)(dA) of
ESTA as they were family members of the deceased and had established that it was in
accordance with their religious and cultural beliefs for the deceased to be buried in the
Middel-Plaas graveyard. The court held that a purposive interpretation of the
provisions, which are meant to protect the vulnerable occupiers’ religious and cultural
rights, tipped the scales in the respondents’ favour. They had acquired a servitude
from their routine practice of burying their deceased family members on that land with
the landowner’s consent, which could not be revoked unilaterally. And the boundaries
between the farms were artificial as the owners treated them as one and allowed the
occupiers to do likewise; a position which was not affected by the change in
ownership. The court concluded that there would be no further intrusion into the

appellant’s ownership rights than was already permissible under s 6(4) of ESTA,
which allowed the visitation of the Middel-Plaas graveyard. The court, however,
rejected the legal points raised in the alternative, in the Uniform rule 16A application,
on the basis that they were made belatedly and had no foundation in the respondents’
founding affidavits.

[11] On appeal before us, the appellant contended that the LCC’s judgment divested
s 6(2)(dA) of legal effect because it allowed a burial without compliance with the
provision’s clear requirements. This was so, it was argued, because the places where
the respondents were occupiers, the deceased resided when she died ie Onder-Plaas,
and where the respondents wanted to bury her ie Middel-Plaas, are separately
registered cadastral units of land of which the appellant owns only one, ie the land
with the proposed burial site. Therefore, the respondents could not claim a burial right,
which is an incidence of the occupier’s right of residence contained in s 6(1) of ESTA,
against it. Were that allowed occupiers would obtain a burial right based merely ‘on
ancestral lineage and burials irrespective of their residency or that of the deceased’ and
s 6(2)(dA) would be rendered inconsequential, so went the argument.

[12] Reliance for this contention was placed on this Court’s decision, in Dlamini &
another v Joosten & others 2006 (3) SA 342 (SCA). In that matter, which the
appellant argued is dispositive of this appeal, it was held that as ESTA regulates the
relationship between occupiers of land and owners of the same land, the burial right in
s 6(2)(dA) was claimable by an occupier against the owner of registered land, the
extent of which could be objectively determined only by reference to its cadastral
description.

[13] The respondents, on the other hand, properly conceded that the LCC was right
to dismiss the alternative argument placing reliance on a servitude or development of
the common law for failure to comply with Uniform rule 16(1)(a).4 However, it was
contended on their behalf that the main relief was properly granted as they had met the
jurisdictional factors set out in s 6(2)(dA). The Dlamini decision, which the LCC
distinguished on its facts and lamented that it laid emphasis on the meaning of ‘land’
instead of ‘reside’, was criticised for ‘construing the term “land” narrowly’. We were
accordingly urged to rather purposively interpret ‘occupy’ which, it was argued,
denotes a wider concept than the word ‘reside’ and must be construed to include the
right to bury.

[14] In terms of s 25(6) of the Constitution ‘[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’. ESTA, which forms part of the legislative
instruments intended to facilitate the land reform and redistribution programme, is the
statute envisaged in these provisions in the circumstances of this case. It provides
long-term security of land tenure to persons who reside on land that does not belong to
them and extends their rights while giving due recognition to the rights, duties and
legitimate interests of owners as well.  Section 5 of ESTA vests occupiers, owners and
persons in charge with a compendium of fundamental rights, ‘[s]ubject to limitations
which are reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom’. These rights include ‘human dignity and

4 Which, inter alia, requires ‘[a]ny person raising a constitutional issue in an application or action shall give notice
thereof to the registrar at the time of filing the relevant affidavit or pleading’. See, also, Shaik v Minister of Justice and
Constitutional Development & others 2004 (3) SA 599 (CC) at 610H (para 24) in which the Constitutional Court
described the purpose of rule 16(1) to be ‘to bring to the attention of persons (who may be affected by or have a
legitimate interest in the case) the particularity of the constitutional challenge, in order that they may take steps to protect
their interests’.

freedom of religion, belief and opinion and of expression’.

[15] Prior to the amendment of ESTA to introduce s 6(2)(dA),5 the courts interpreted
the protection of occupiers’ religious and cultural rights under ESTA as excluding the
right to bury deceased family members on land owned by others.6 This Court
expressed that view as follows in Nkosi & another v Bührmann:7
‘… [T]he right to freedom of religion and religious practice has internal limits. It does not confer
unfettered liberty to choose a grave site nor does it include the right to take a grave site without the
consent of the owner of the land concerned.
…[D]espite the recognition of the sanctity of existing family graves and despite the reduction of the
rights of ownership to the extent demanded by the exercise of the rights conferred in s 6 [of ESTA],
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.’

[16] This interpretation obviously conflicted with the legislative intention and
ESTA’s objects. Section 6(2)(dA) was, therefore, enacted to cure this anomaly and
extend the rights of occupiers further by including the right to bury deceased family
members on land owned by others. The provisions read:
‘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 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.’
An ‘established practice’ is defined in s 1(1) of ESTA to mean ‘a practice in terms of

5 Inserted by s 7(a) of the Land Affairs General Amendment Act 51 of 2001.
6  See, for example, Bührmann v Nkosi & another 2000 (1) SA 1145 (T) paras 49 and 54; Serole & another v Pienaar
2000 (1) SA 328 (LCC) at 335B-G.
7  Nkosi & another v Bührmann 2002 (1) SA 372 (SCA).

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.’

[17] The approach to be adopted in ascertaining the meaning of ESTA is established.
Regard must be had to its purpose and the mischief it seeks to remedy ie securing the
tenure of occupiers of land and granting them the dignity of which they were deprived
under the apartheid system. Its provisions must be accorded a generous interpretation,
in a manner that is consistent with the Constitution, so as to afford this vulnerable
class of people the fullest protection intended by the Constitution and ESTA. The
Constitutional Court, dealing with a related statute, the Restitution of Land Rights Act
22 of 1994, neatly articulated this exercise as follows in Department of Land Affairs &
Others v Goedgelegen Tropical Fruits (Pty) Ltd:8
‘It is by now trite that not only the empowering provision of the Constitution but also of the
Restitution Act must be understood purposively because it is remedial legislation umbilically linked
to the Constitution. Therefore, in construing “as a result of past racially discriminatory laws or
practices” in its setting of s 2(1) of the Restitution Act, we are obliged to scrutinise its purpose. As
we do so, we must seek to promote the spirit, purport and objects of the Bill of Rights. We must
prefer a generous construction over a merely textual or legalistic one in order to afford claimants the
fullest possible protection of their constitutional guarantees. In searching for the purpose, it is
legitimate to seek to identify the mischief sought to be remedied. In part, that is why it is helpful,
where appropriate, to pay due attention to the social and historical background of the legislation. We
must understand the provision within the context of the grid, if any, of related provisions and of the
statute as a whole including its underlying values. Although the text is often the starting point of any
statutory construction, the meaning it bears must pay due regard to the context. This is so even
when the ordinary meaning of the provision to be construed is clear and unambiguous.’

8 Department of Land Affairs & Others v Goedgelegen Tropical Fruits (Pty) Ltd (CCT69/06) [2007] ZACC 12; 2007
(10) BCLR 1027 (CC); 2007 (6) SA 199 (CC) para 53. See also Thoroughbred Breeders’ Association v Price
Waterhouse 2001 (4) SA 551 (SCA); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others 2004 (4)
SA 490 (CC); 2004 (7) BCLR 687 (CC); Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR
949 (CC).

(Emphasis added.)

[18] It is against this backdrop that it must be determined whether the respondents
met the requisites for the right to bury envisaged by s 6(2)(dA), ie (a) they
areoccupiers within the definition of ESTA; (b) the deceased resided on the land at the
time of her death; and (c) there was an established practice in terms of which the
owner or person in charge or his or her predecessors 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 existence of the latter
requirement was not seriously disputed. This was to be expected in light of the
respondents’ uncontested allegations that over two decades they and the other
occupiers on Montina farms routinely buried their deceased kin in the Middel-Plaas
graveyard in accordance with their religious beliefs and practice, with the consent of
Mr Engelbrecht and his successors-in title after he sold the farms in 1991, until 2015.
The only point of contention was the one indicated at the outset – whether s 6(2)(dA)
conferred on the respondents a right to bury the deceased in the Middel-Plaas
graveyard on a proper interpretation of these provisions.

[19] To my mind, the answer to this question depends simply on whether it can be
said that the respondents and the deceased at her death resided on the land in which it
was sought to bury her. ESTA does not define the term ‘reside’. (This is the term used
in s 6(2)(dA) and not the term ‘occupy’ which the respondents fallaciously contended
we should construe.) There is, however, a statute assented to by the President on 18
November 2018 – the Extension of Security of Tenure Amendment Act 2 of 2018 –
which was published in Government Gazette 42046 dated 20 November 2018. The
statute’s date of commencement has yet to be proclaimed. But it bears some relevance
as it contains a definition of ‘reside’ and ‘residence’, which offers a glimpse into the

legislature’s intention in this regard. Section 1(h) thereof defines ‘reside’ to mean ‘to
live at a place permanently’, and deems ‘residence’ to have a corresponding meaning.
The intended definition fortifies a view already adopted by the courts in relation to
land reform matters – that ‘the essence of the term is the notion of a permanent
home’.9 But, it too would still have to be given meaning within the relevant context,
having regard to ESTA’s purpose, if the Amendment Act came into force.

[20] So what meaning is to be ascribed to the term ‘reside’ here? It bears mention
that our courts have grappled with this question since the turn of the last century and
determined that the term is capable of bearing more than one meaning, depending on
the object and intention of the statute in which it is used.10 I agree with this view as it
dovetails neatly with the interpretive approach advocated in Goedgelegen and its ilk.

[21] I should mention at this juncture that I have no objection to the meaning that
Dlamini ascribed to the term ‘land’ in s 6(2)(dA), which the Court derived from the
fact that ESTA regulates the relationship between occupiers of land and owners of the
same land.11 And as the Court further pointed out, the burial right provided by these
provisions is an incidence of the occupier’s right of residence contained in s 6(1) of
ESTA, which is in the nature of a registrable real right possessed by the occupier over
the land at death of a family member, who at the time of death resided on that land.12 I
also agree that because the burial right is a registrable real right in land which reduces
an owner’s dominium over his or her land, it is claimable only against that owner and

9 See Barrie NO v Ferris & another 1987 (2) SA 709 (C) at 714F; Mkwanazi v Bivane Bosbou (Pty) Ltd & another and
Three Similar Cases 1999 (1) SA 765 (LCC) para 8; Kiepersol Poultry Farm (Pty) Ltd v Phasiya [2009] ZASCA 119;
2010 (3) SA 152 (SCA) paras 8 and 9.
10 See Ex Parte Minister of Native Affairs 1941 AD 53 at 58, which followed the dictum in Buck v Parker 1908 TS
at p1104; Kiepersol ibid.
11 Para 16.
12 Ibid.

his or her successors-in-title under s 24 of ESTA.13

[22] But do these principles lead to a conclusion that the respondents have no right
to bury members of their family in their ancestral burial site at Middel-Plaas since
Onder-Plaas and Middel-Plaas are aggregations of separately registered pieces of land,
each aggregation currently owned by different entities where: (a) in recognition of the
respondents’ statutory burial right under s 6(2)(dA), the landowner granted them
permission to bury their family members next to their home in Onder-Plaas, in
accordance with their religious and cultural beliefs, and subsequently allocated them
another burial site on the adjacent, unbounded Middel-Plaas to which they always had
free access in their daily lives when the Onder-Plaas graveyard reached full capacity;
and (b) an established practice developed over many years, in terms of which the
respondents and other occupiers were routinely given permission by Mr Engelbrecht
and later, successive owners, to bury their deceased family members on Middel-Plaas
in accordance with their religious and cultural beliefs?

[23] It is clear from the respondents’ affidavits that their burial practices and the
location of their family graves near where they live form a vital part of their religion
and their day-to-day lives. A question must be asked: Where and how did the
legislature contemplate that occupiers in the respondents’ position would meaningfully
exercise their s 6(2)(dA) right if they were excluded from invoking it against a
landowner who, as here, allowed them to bury their dead and establish an ancestral

13  In terms of s 24 of ESTA:
‘(1) The rights of an occupier shall, subject to the provisions of this Act, be binding on a successor in title of an
owner or person in charge of the land concerned.
(2) Consent contemplated in this Act given by the owner or person in charge of the land concerned shall be binding
on his or her successor in title as if he or she had given it.’

burial site,  not where their homes are built, but on nearby land that he also owned and
which has historically been used by the respondents, the deceased herself and their
forebears in their daily lives; traversing it, working on it, grazing their livestock on it
and burying their loved ones on it?

[24] It seems to me inconceivable that the legislature would have intended to deprive
this small category of vulnerable occupiers of a critical right, which was specifically
enacted to formally attach the right to bury to an occupier’s right to residence and thus
fortify her right of security of tenure. It certainly does not strengthen the security of
tenure of persons residing on farms to leave them without the means to bury their dead
in accordance with their religion and customs. A contextual interpretation of ‘reside’
that takes into account the peculiar circumstances of the present case and the purpose
of ESTA must include the respondents’ ancestral burial site which the Middel-Plaas
graveyard constitutes for the respondents. I am satisfied that they established a clear,
protectable right under ESTA, which allows them to bury the deceased at their
ancestral burial site in Middel-Plaas. Any other interpretation of s 6(2)(dA) would
render the burial right it bestows upon them nugatory.

[25] To return to Dlamini, on which the appellant unsurprisingly placed great
reliance, the court in that case was not invited to find that the appellants (a widower
and son who wished to bury the deceased – their late wife and mother, respectively –
on a particular farm) had ‘resided’ on the farm on which they wished to bury the
deceased. The latter farm was adjacent to the one on which their dwelling was situated
and the two farms were separately registered pieces of land. If in that case the
appellants resided only on the farm on which their dwelling was situated (and this
court was not invited to decide otherwise), the conclusion was correct. It is clearly

possible, however, for a person to ‘reside’ on land which is made up of more than one
registered portion of land. To take a straightforward example, a family might have the
exclusive use of a fenced area containing their dwelling and a field for crops. I do not
think anyone would doubt that the fenced area was the land on which the family
‘resided’. Yet it might be situated partly on one registered piece of land and partly on
another. The question whether a person has routinely performed sufficient acts in
relation to land to regard it as part of the land on which he or she ‘resides’ is
necessarily fact-specific.

[26] Ngoepe JP’s comments in his minority judgment in Buhrmann v Nkosi &
another,14 even before s 6(2)(dA) was introduced, are instructive. He said:15
‘It is well known that there is a strong relationship between peoples’ religion and the way in which,
in the manifestation of such a belief, they would want their dead to be buried . . . To acknowledge
the respondent’s right to practice and manifest her religion, but bar her from interring her son at a
place and in a manner that would give meaning to her right of religion and belief could amount to
no more than paying mere lip service to such right.’ (Emphasis added.)

[27]  In Daniels v Scribante,16 the Constitutional Court expressed itself against
interpreting ESTA in the narrow manner of old that may leave occupiers with hollow
rights. The matter implicated two of the rights at issue here – the right to security of
tenure and the right to human dignity – albeit in a different context. The Court
considered whether an occupier has a right to make improvements to her or his
dwelling to make it suitable for human habitation which ESTA does not expressly

14 Bührmann v Nkosi & another 2000 (1) SA 1145 (T).
15 At 1161 C-G.
16 Footnote 8.

provide. Madlanga J said in his seminal judgment, at paras 27-29:
‘. . . Whether the right exists must depend on what an interpretive exercise yields . . .  The question
is whether – on a proper interpretation of ESTA – the right contended for by Ms Daniels indeed
does not exist. The respondents’ argument [that s 25(6) of the Constitution affords an occupier
rights to the extent provided by ESTA and that an occupier’s rights are listed in s 6 typifies the
“blinkered peering at an isolated provision” of a statute that Nienaber JA cautions against in
Thoroughbred Breeders Association . . . .
[It] places focus only on the rights of an occupier that s 6 of ESTA specifically itemises. It
disregards all else: context counts for nothing; nor does the purpose for which ESTA was enacted;
and s 39(2) of the Constitution is not taken into account at all. This reading of s 6 is unduly narrow.
Part of the context is s 5 of ESTA which the respondents’ interpretation ignores. That section
decrees that occupiers enjoy certain fundamental rights, including the right to human dignity. On the
respondents’ interpretation, occupiers have a right that could well be empty. They could live in
conditions that infringe their right to dignity with no remedy available to them. That simply cannot
be. How does the respondents’ interpretation factor in the need for an occupier to live in conditions
that conduce to human dignity? It does not. That immediately infringes an occupier’s right under s
5.’
In my view, this sentiment applies with equal force in the present case.

[28] The apprehension expressed by the appellant that ‘[i]f the LCC’s order stands, a
real possibility will be created that the appellant’s land will eventually turn into a
graveyard and that the appellant will lose the use thereof in toto’ has no basis. The
burial right is not absolute and must be weighed against the property rights of the
landowner or the person in charge of the land.17

[29] In terms of s 6(2) of ESTA, the occupier’s right to security of tenure must be
balanced with the rights of the owner or the person in charge. Zondo J succinctly

17 GJ van Niekerk ‘Death and sacred spaces in South Africa and America: a legal-anthropological perspective of
conflicting values’ CILSA vol 40 No 1 (March 2007) 30 at 48; J Pienaar and H Mostert ‘The balance between burial
rights and landownership in South Africa: Issues of content, nature and Constitutionality’ 2005 (3) SALJ 633 - 660.

explained this requirement in Hattingh & others v Juta:18
‘In my view the part of s 6(2) that says: “balanced with the rights of the owner or person in charge”
calls for the striking of a balance between the rights of the occupier, on the one side, and those of
the owner of the land, on the other. This part enjoins that a just and equitable balance be struck
between the rights of the occupier and those of the owner. The effect of this is to infuse justice and
equity in the enquiry . . . .’
Therefore, an occupier may not willy-nilly invoke the right. Its exercise evidently
depends on the specific circumstances of each case and the satisfaction of s 6(2)(dA)’s
built-in requirements of standing and ‘an established practice’.19

[30] It is important to point out as Ngoepe JP did in Nkosi,20 that there is here, as
was the case in that matter, already an area demarcated for burial, which the
respondents are, in any event, allowed by ESTA to visit as it houses the graves of their
deceased family members. And ‘the area the appellant loses to the deceased’s grave is
probably 1m x 2m’ which does [not] constitute such a drastic curtailment of the
appellant’s right of ownership as to justify denying the respondent[s] the right’ to bury
the deceased in terms of s 6(2)(dA).21

[31] Needless to say, once granted the permission to bury could not be unilaterally
withdrawn either by the original grantor of the permission or his successors in
title,including the appellant, which was aware of the existence of the graveyard when
it purchased Middel-Plaas in June 2015.22 That result does not conflict with the

18  Hattingh & others v Juta [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5) BCLR 509 (CC) para 63. See also Port
Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 23 which described the judicial function in
these cases (albeit dealing with the protections provided by the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998), as balancing out and reconciling the opposed claims in as just a manner as
possible, taking account of all the interests involved and the specific factors relevant in each particular case.
19 Bührmann at 1161H.
20 Footnote 14 at 1161H.
21 At 1161G.
22 Dlamini & another v Joosten & others 2006 (3) SA 342 (SCA) para 24.

Constitution in the context of this case having regard to all relevant factors.

[32] The last aspect relates to mootness ie whether the issues raised in the appeal are
of such a nature that the decision sought will have no practical effect or result thus
warranting its dismissal on this ground alone.23 The deceased was ultimately buried on
Middel-Plaas directly after delivery of the LCC’s judgment. Despite this fact, the
parties agreed when the appellant subsequently moved to challenge the decision on
appeal that the matter was not moot. The appellant contended that a finding of
mootness would deprive it of its right to appeal and right of access to court because
the deceased was buried in a matter of hours after an order, which was not
accompanied by reasons, before it had an opportunity to consider its options.
Furthermore, the LCC’s judgment ‘opens the door for all people residing in the area to
bury more deceased on [its] land only because other deceased family members are
already buried there’.

[33] I am persuaded that the appeal warrants adjudication even though its outcome
will have no practical effect or result as between the parties. It involves ‘a discrete
legal issue of public importance’ that affect matters in the future’ as the interpretation
of ‘reside’ in s 6(2)(dA) of ESTA will undoubtedly have profound implications for
occupiers and landowners alike.24

23 In terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013.
24 Qoboshiyane NO & others v Avusa Publishing Eastern Cape (Pty) Ltd & others [2012] ZASCA 166; 2013 (3) SA 315
(SCA) para 5.  See also Pheko v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC); (2012 (4) BCLR 388;
[2011] ZACC 34) para 32.

[34] The appeal must accordingly fail. Regarding the question of costs, on the basis
of the Biowatch principle I am not inclined to mulct the appellant with the costs of the
appeal despite its failure.25
[35] The appeal is dismissed with no order as to costs.

______________________________________________
MML MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL

25  Biowatch Trust v Registrar, Genetic Resources & Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10)
BCLR 1014 (CC).

APPEARANCES

APPELLANT:
J J Botha

Instructed by:
Thomas & Swanepoel Inc, Tzaneen

Symington & De Kok Attorneys, Bloemfontein

RESPONDENTS:
A De Vos SC

Instructed by:

Lawyers for Human Rights, Pretoria

Webbers Attorneys, Bloemfontein