[PRESS RELEASE] LAND CLAIMS COURT CONFIRMS THE RIGHT TO BURY ON FARMLAND
On 9 March 2017, LHR’s Land and Housing Programme approached the Land Claims Court in Randburg on an urgent basis seeking a declaratory order, on behalf of the Mampies family, for the right to bury their deceased family member at their ancestral gravesite located on Middel-Plaas, Groblershoop, Northern Cape, a farm different to which they currently reside.
The Mampies family have lived on a farm called Onder-Plaas in Groblershoop for generations. From the early 1980s, the Mampies family, together with over 30 families, worked for a landowner, Mr JP Engelbrecht, who owned three farms adjacent to each other, namely Onder-Plaas, Middel-Plaas and Bo-Plaas – collectively referred to as the Montina farms.
Before the ancestral gravesite was established Middel-Plaas, Mampies family used Onder-Plaas to bury their deceased. When the gravesite on Onder-Plaas reached full capacity, they began to bury deceased family members on Middel-Plaas, with the consent of the owner at the time. Since then Mrs Mampies has laid to rest her father, sister and two children on Middel-Plaas.
For over three (3) decades, the Mampies family and the various occupiers have used and occupied the Montina farms as a single unit. Put differently, the occupiers had the express and/or tacit permission of the landowners, and subsequent successors in title, to navigate between the farms; graze their livestock; and more significantly in this case, to bury their deceased family members on Middel-Plaas, despite not residing on that specific farm.
However, in 2015 Sandvliet Boerdery (Pty) Ltd, the Respondents in the urgent application, purchased two of the Montina farms – Middel-Plaas and Bo-Plaas. When the deceased passed away on 22 February 2017, who resided on Onder-Plaas at the time of her death, the Mampies family approached the Respondent and requested access to Middel-Plaas in order to bury the deceased. The Respondent refused and in fact threatened to make use of the South African Police Services in order to restrain the Mampies family from burying the deceased on Middel-Plaas.
The Respondent argued that the deceased at the time of her death did not reside on Middel-Plaas, and consequently, her family do not have the right to bury her at their ancestral graveyard. The Respondent based its argument on the Supreme Court of Appeal judgment of Dhlamini and Another v PJ Joosten and Others 2006 (3) 342 SCA, which adopted a strict interpretation of the right to bury in terms of section 6(2)(dA) of Extension of Security of Tenure Act 62 of 1997 (“ESTA”) and restricted the understanding of ‘land’ to its cadastral descriptions as formally registered.
As Applicants however, the Mampies family argued that in light of their historic and continued land usage and occupation on the Montina farms, a clear protectable rights exists in terms of ESTA and/or the common law of servitudes to continue to bury their family members at their ancestral grave site located on Middel-Plaas; and that these rights cannot be arbitrarily limited by their residence on Onder-Plaas. This is particularly the case when they have had the long-standing practice and permission of previous landowners and/or persons in charge to bury family members in Middel-Plaas in accordance with their religion, customs and/or established practice.
The Supreme Court of Appeal judgment in the Dhlamini matter has far-reaching consequences for farm occupiers and their rights to bury on land belonging to another; and exists in law as a stumbling block to the realisation of tenure security for farm occupiers in South Africa. The lived experience and narrative of farm occupiers, both present and past, cannot be ignored in light of a history that has fiercely said that their rights and dignity, simply, do not count.
However, we are pleased to announce that on the day of the hearing, Poswa-Lerotholi AJ found that the Mampies family had the right in terms of the provisions of ESTA to bury the deceased on Middel-Plaas.
After more than two weeks since her passing, Ms Madgelena De Wee, the deceased and mother of three, will finally be laid to rest on this Saturday, 11 March 2017 at her ancestral graveyard on Middel-Plaas.
For further information, please contact:
Louise du Plessis
Lawyers for Human Rights
Land and Housing Programme
012 320 2943 / 082 346 0744