Maria Mampies and Another v Sandvliet (Pty) Ltd

The First and Second Applicants (Maria and Hendrik Mampies) were occupiers residing on Onder-Plaas farm. The First Applicant had lived on the farm since birth in 1963, and the Second Applicant worked on the farm before 4 February 1997. The deceased, Magdelena de Wees (the First Applicant's niece), came to reside on the farm in 2009 with her four children, worked as a labourer until retrenchment in 2014, and continued living there until her death on 22 February 2017. For generations, occupiers of Onder-Plaas had been granted permission by successive farm owners to bury their deceased family members on the adjacent farm, Middel-Plaas, which was owned by the Respondent. The Applicants' family had several relatives buried there, including the First Applicant's father (2000), sister (2008), daughter (2006), and son (2001). When the deceased died, the Applicants sought to bury her on Middel-Plaas in accordance with this established practice and their religious and cultural beliefs as members of the Dutch Reformed Church, but the Respondent refused permission.

• Whether the Applicants had the right to bury the deceased on Middel-Plaas under section 6(2)(dA) of ESTA when they resided on a different cadastral property (Onder-Plaas)
• Whether the proposed burial was in accordance with the Applicants' religion or cultural belief
• Whether an 'established practice' existed in respect of the land as required by section 6(2)(dA)
• Whether permission granted by previous owners to bury on the land bound successor owners
• Whether section 6(2)(dA) should be interpreted to require both residence and burial on the same cadastral land
• Whether prior consent to burial created a servitude over the property

The court declared that the Applicants were entitled to bury the deceased on Middel-Plaas in terms of section 6(2)(dA) of ESTA. The Respondents were ordered to grant the Applicants access to the farm for the purposes of arranging and carrying out the funeral. The Station Commander of the SAPS was authorized to ensure implementation if the Respondents prevented or frustrated the order. There was no order as to costs.

Section 6(2)(dA) of ESTA must be interpreted purposively and contextually in accordance with section 39(2) of the Constitution to give effect to its purpose of protecting occupiers' tenure security and cultural burial rights. Where an established practice exists of successive owners granting permission to occupiers residing on one cadastral property to bury deceased family members on an adjacent property, this amounts to a servitude that binds successor owners and satisfies the requirements of section 6(2)(dA), even though the occupiers do not reside on the same cadastral land where burial occurs. The term "residing on the land" in section 6(2)(dA) should not be interpreted in an unduly narrow manner focusing solely on cadastral boundaries where the historical and social context demonstrates that occupiers treated adjacent farms as one unit with artificial boundaries. Established burial practices granted by previous owners are protected by section 24(1) of ESTA and cannot be unilaterally withdrawn by new owners. In balancing occupier and owner rights under section 6(2) of ESTA, courts must consider the vulnerability of occupiers and avoid interpretations that would result in tenuous security of tenure and defeat the constitutional purpose of the legislation.

The court made several obiter observations: (1) The court noted that the social and economic context of South Africa, characterized by inequality and the legacy of apartheid, must inform interpretation of land reform legislation, citing Mohlomi v Minister of Defence on the "prevailing state of affairs in South Africa" characterized by poverty, illiteracy, and cultural differences. (2) The court observed that the term "reside" can have different meanings for different people depending on social context, and in some instances could include the family graveyard. (3) The court noted that legislation cannot predict all vicissitudes that may arise, and it is for courts to interpret and apply the Legislature's intention according to the statute's objectives. (4) The court commented that claims raised for the first time in reply (servitude) or only in heads of argument (development of common law) without compliance with Rule 16A cannot succeed, as litigants must stand or fall by their founding affidavits. (5) The court emphasized that Rule 16A serves an important purpose in constitutional litigation by bringing constitutional challenges to the attention of affected persons so they may protect their interests.

This case is significant for its interpretation of section 6(2)(dA) of ESTA, particularly regarding the requirement that the deceased must have been "residing on the land" at the time of death. The judgment adopts a purposive and contextual approach to interpreting ESTA rather than a rigid, legalistic approach based solely on cadastral boundaries. It recognizes that established burial practices can create servitudes binding on successor owners, and that the social and historical context of apartheid and inequality must inform interpretation of land reform legislation. The case demonstrates the court's willingness to balance property rights of landowners against the tenure security and cultural rights of occupiers, particularly in circumstances where artificial cadastral boundaries do not reflect the lived reality of occupiers who treated adjacent farms as one unit. The judgment contributes to the development of jurisprudence on how courts should interpret ESTA to fulfill constitutional obligations under section 25(6) while respecting the dignity and cultural rights of vulnerable rural occupiers. It also confirms that benefits enjoyed by occupiers under previous owners are protected by section 24(1) of ESTA and cannot be unilaterally withdrawn by new owners.