Dlamini and Another v Joosten and Others

The appellants, husband and son of the deceased Gertrude Ntombi Zondi, were occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA). They resided on the farm Sandspruit, having moved there in 1986 from the adjacent farm Bockenhoud, both owned by members of the Joosten family. The Dlamini family historically buried deceased family members on Bockenhoud, while Sandspruit also had a practice of permitting burials by resident families. When the deceased died in 2004 while residing on Sandspruit, the respondents refused permission for burial on either farm, contending that burials on Sandspruit had been terminated in 2002 and that burial on Bockenhoud was impermissible because the deceased did not reside there at death. The appellants sought declaratory relief under section 6(2)(dA) of ESTA.

The appeal was upheld. The order of the Land Claims Court was set aside and replaced with a declaratory order that the appellants are entitled, in terms of section 6(2)(dA) of ESTA, to bury the body of Gertrude Ntombi Zondi at the burial site on the remainder of the farm Sandspruit No. 1920.

The case clarifies the interpretation of 'land' in ESTA as being limited to cadastral boundaries and affirms that burial rights under section 6(2)(dA) are enforceable statutory rights once an established practice exists. It strengthens occupiers’ tenure-related cultural rights by holding that landowners cannot unilaterally terminate established burial practices, thereby giving substantive effect to the 2001 amendment to ESTA.