The applicant, Piet Risenga Masingi, sought an urgent order to bury his deceased son, Jim Shibereki, on Kaallegte Farm 283 KR. The deceased was born on the farm in 1976 and resided there until 1979. In 1979, the applicant and his entire family left the farm and settled at Ga-Pila Village in Mokopane, Limpopo, where they had resided for 45 years. The farm was previously owned by Paul Earls, and previous owners had allowed families to bury their deceased members on the farm. In June 2020, the applicant's wife was buried on the farm with the consent of the previous owners, despite the family no longer residing there. In November 2023, the applicant's brother Joseph was denied burial on the farm by the current owners and was buried at an alternative cemetery. When the applicant's son died, he sought permission from the current farm owners to bury him on the farm but received no response. The applicant then approached the Land Claims Court for a mandamus. The matter was heard on an urgent basis on 6 January 2024, one day before the scheduled funeral on 7 January 2024. The respondents did not file answering papers or appear at the hearing.
The application was dismissed. No order as to costs was made.
Section 6(2)(dA) of ESTA requires that for an occupier to have the right to bury a deceased family member on land, both the occupier and the deceased must have been residing on that land at the time of the deceased's death. The provision is framed in the present tense and does not extend burial rights to persons who previously resided on the land but left decades earlier. A person who has not resided on a farm for 45 years cannot claim occupier status for purposes of exercising burial rights under section 6(2)(dA) of ESTA.
The court observed that ESTA requires a balancing of the rights of occupiers against the rights of landowners. The court noted that there can be no justification for a person to continue burying family members on a farm where they do not reside and have not resided for 45 years. The court also noted that it does not award costs unless there are special circumstances warranting such an award, and that no such circumstances existed in this matter despite it being unopposed.
This case clarifies the interpretation of section 6(2)(dA) of the Extension of Security of Tenure Act (ESTA) regarding burial rights of occupiers. It establishes that burial rights under ESTA are contingent on current occupation and residence, not historical residence. The judgment is significant for defining the temporal requirements of 'occupier' status under ESTA and emphasizes that the Act's burial rights provisions cannot be extended indefinitely to former occupiers who have not resided on the land for extended periods. The case also demonstrates the court's approach to balancing occupiers' customary and religious burial rights against landowners' property rights under ESTA.