Desmond Ettienne Döman v Kgabo Gabriel Selomo

Dr Desmond Ettienne Döman was the registered owner of the farm Pennsylvania in Limpopo Province. On 23 February 2013, Caroline Celia Selomo, daughter of Mr Kgabo Gabriel Selomo, passed away. Mr Selomo requested permission from Dr Döman to bury his daughter on the farm in an area where other family members, including his parents, sister and three of his children, were buried. Dr Döman refused the request. Mr Selomo claimed he had been resident on the farm from 7 October 1948 until 2013, initially with his parents and later with his own family. He alleged he was entitled to bury his daughter as an occupier under s 6(2)(dA) of the Extension of Security of Tenure Act, 1997 (ESTA). Dr Döman contended that Mr Selomo had left the farm in 2005 pursuant to an agreement with the previous owner's estate representative, receiving R8,000 compensation, and had since resided 35 kilometres away in Steilloop. Mr Selomo denied entering into such an agreement, claiming he thought he was signing an acknowledgment of receipt of an annual bonus. On 22 March 2013, Spilg J granted Mr Selomo's urgent application in the Land Claims Court. On 23 March 2013, the deceased was buried on the farm. Dr Döman appealed the decision.

• Whether the Supreme Court of Appeal should exercise its power under s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 to dismiss an appeal where the judgment or order sought would have no practical effect or result
• Whether an appeal is moot when the subject matter (the burial) has already occurred more than 2½ years prior to the appeal hearing
• Whether exhumation would be an appropriate remedy in circumstances where a burial has already taken place

The appeal was dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, with no order as to costs.

An appeal will be dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 where the decision sought will have no practical effect or result. Where a burial has already occurred and substantial time has elapsed (in this case more than 2½ years), an appeal challenging the right to conduct that burial becomes moot, as the practical relief that might flow from a successful appeal (exhumation) would be highly offensive and impractical. Courts will not entertain appeals where there is no realistic prospect of granting effective relief.

The Supreme Court of Appeal observed that the practice of persisting with appeals that have no prospect of being heard on the merits, as noted in Radio Pretoria v Chairman, ICASA, was ongoing and illustrated by the present matter. The court specifically stated that it refrained from endorsing the reasoning of the Land Claims Court, which had based its decision on the Land Reform (Labour Tenants) Act 3 of 1996 despite this Act not being raised in the papers or submissions, and despite the court having found that the applicant had failed to prove entitlement under s 6(2)(dA) of ESTA, which was the basis relied upon. The court noted that exhumation, particularly given the time lapse, would be highly offensive, indicating judicial recognition of the sensitivity and importance of respecting burial sites and the deceased.

This case illustrates the application of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013, the successor to s 21A of the Supreme Court Act 59 of 1959, which allows courts to dismiss appeals where the judgment sought would have no practical effect or result. The case demonstrates that South African courts will not entertain appeals that have become moot, particularly where the relief sought (in this case, potentially exhumation and reburial) would be highly offensive and impractical. The judgment serves as a reminder to litigants not to persist with appeals that have no prospect of producing a practical outcome, consistent with the Supreme Court of Appeal's concern expressed in Radio Pretoria v Chairman, ICASA about appeals with no practical merit being pursued. The case also highlights issues regarding burial rights under ESTA and the Land Reform (Labour Tenants) Act, though the substantive legal issues were not determined on appeal due to mootness.