Page 31 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL 106
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This is is is one of of of the the the thorny issues between the the the owners of of of farms farms and occupiers of of of farms farms in South Africa On the the the one hand land land owners owners owners feel that as owners owners owners of land land they have a a a a a a a a right to enjoy undisturbed use and and and and ownership of of their their land land 44 On the the the the the other hand occupiers occupiers feel that as occupiers occupiers of of land land they have a a a a a a a right to bury their their deceased family members on land where they reside Both the the landowners and and and occupiers are protected by s s s s s s s s 25 25 of of the the Constitution As a a a a a result of of ss 25(6) and and and (9) of of the the Constitution s s s s s 6(2)(dA) of of ESTA was promulgated in order to specify and and regulate the the rights and and duties of occupiers and and land owners in relation to burials In order for an ‘occupier’ to enjoy protection under s s s s s 6(2)(dA) of ESTA he he he or or or she must establish on on the balance of probabilities that:
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1 1 he he he he he he he or or she she is an ‘occupier’ on the the farm where he he he he he he he or or she she intends burying the the deceased 108
2 the deceased was a a a a member of his or her family 108
3 the burial sought would be be in accordance with his or or or her religious and/or cultural beliefs 108
4 the the the the deceased was residing on on land which the the the the occupier resided on on at at the the the the time of of death of of the the the the deceased and an an an established practice on on land land exists to bury deceased family members on on the land land 108
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The burial of the deceased on on on land must be done according to an an occupier’s religion or or or culture For example the the the the the direction that the the the the the deceased’s body must face upon burial the the the the the depth and size of the the the the the grave the the the the the nature of the the the ceremony that accompanies the the the burial and other cultural practices must be in accordance with an an an an occupier’s religious or cultural beliefs It is important to note that the the the the landowner (or person in charge of of the the the the land) may not not restrict the the the the nature of of the the the the burial burial including the the ceremony The landowner cannot reduce the the burial burial to something less than or different from what the the religion and and and culture demands The landowner is protected in the the sense that an an an an occupier must practice his or her culture and religion in a a a a a a reasonable manner 45
As explained above one of the the requirements that an an occupier who intends burying the the deceased on on land must satisfy is is is is is is that that “an established practice in respect of the land exists” This requirement however is is is is is is that that De Rebus in in 2015 (Jan/Feb) DR 42 http://www derebus org za/rest-in-peace-the-occupiers-right-to-bury-on-farmland Nhlabathi and Others v Fick [2003] 2 2 2 All SA 323 (LCC) para 36 VI BURIAL RIGHTS UNDER ESTA PAGE PAGE 31