Page 32 - 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 the the the the practice must exist for “people living on on the the the the land” There is is nothing in in in in fin the the the the wording of the the the the definition to suggest that it must be peculiar to the the family family in question and or family family of the the deceased 46
112 Presiding officers such as magistrates and judges are sometimes of of the opinion that an an “established practice” must be in in in in respect of an an occupier’s family who intends burying on on land This is is not the intention of of of the the the the legislature Balancing the the the the rights rights of of of the the the the landowner and and the the the the rights rights of of of an an an an occupier who intends burying the the deceased on on on on land is is important Landowners often raise concerns such as as the the contamination of of water or or a a a a a a reduction in the the value of the the land should an an occupier be permitted to bury his or or her deceased family member These arguments cannot be be sustained Where there is is an an an established practice on land people have already buried their deceased family members on on the the the land These concerns cannot therefore be be raised anew and only in in in in respect of a a a a a a a a a a particular burial As Cachalia AJA explained in in in in Dlamini:
“The burial right is in the the the nature of a a a a a personal servitude which the the the occupier has over the the the property on on which he he possesses a a a a a a a a a real right of of of residence at at at at death death of of of a a a a a a a a a family member who at at at at the time of of of death death was residing on the land ”47
113 There is also a a a a a special special category of of of occupiers who enjoy special special protection in terms terms of of of ESTA In terms terms of of of section 6(5) of ESTA an an an occupier who has has been on on the the land for ten years or or or more and and has has reached the the age of of 60 years or or or was was employed by the the landowner or or or person in charge of of the the farm but was was unable to work due to to ill health is is entitled to to be buried on land where he he he he he he or or she was residing at at the time of his or or her her death 114 The term “reside” is currently not defined fin in in in ESTA but it has been interpreted fin in in in several judgments In the recent judgment of of the the the the LCC in the the the the case of of Lizzy Mathebula and Another v Mr Harry Ngcukaitobi AJ stated that:
“The meaning of the the “reside” as as used in in section 6(2)(dA) should not depend on on mathematical formulas such as how many days in in a a a a a a a a a week does a a a a a a a a a person spend in in a a a a a a a a a particular farm Nor should it depend on on the subjective views of of the the the the owner of of the the the the land or the the the the occupier In determining whether a a person is resident there should at least be be a a a a a degree of physical presence But this need not necessarily be be continuous Importantly the Court should accept that actual physical presence may be interrupted by economic factors such as as as employment Where this is is the the case there must at least be an intention – exhibited by conduct – to to to return on on on on a a a a a a a permanent basis to to to one’s residence It is is wrong to to to assume in in all instances that simply because one lives elsewhere out of economic necessity that fact fact should ipso facto exclude their residence of a a a a particular farm ”48
115 In this judgment the term “reside” is is broadly interpreted It covers “an intention – – exhibited by conduct – – to return on on a a a a a a a permanent basis to one’s residence ” It recognises that it is is is not always possible for an an occupier to be on on the farm on on a a a a daily basis 46
Dlamini And And Another v Joosten And And Others 2006 (3) SA 342 (SCA) at para 19 47
Dlamini And Another v Joosten and Others at paragraph 16
48
Mathebula and Another v Harry (LCC72/2015) [2015] ZALCC 6
6
2016 (5) SA 534 (LCC) (2 June 2015) 2015) at at para 21
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