Grace Chrissie Nkosi and Joseph Mandla Nkosi v Gideon Wilhelmus Bührmann

The first appellant, Grace Chrissie Nkosi, was an occupier residing on the respondent's farm in the Ermelo district. She and her family had first come to the farm in 1966 when it was owned by the respondent's father, working as farm laborers. In 1967, when their grandchild died, the respondent's father pointed out an area on the farm for family burials. The area was consecrated according to their custom and tradition as a home for their ancestors. Subsequently, seven more family members were buried in that area during the father's ownership. The appellant's husband died in 1986 and was buried on an adjacent farm (against their custom). The family returned to the respondent's farm in 1987 and resided there with the respondent's consent. When the appellant's son, Petros Nkosi, died in 1999, she wished to bury him on the farm in the designated burial area. The respondent, who became owner in 1970, refused consent for the burial. The respondent sought an interdict in the High Court to prevent the burial.

• Whether an occupier under the Extension of Security of Tenure Act 62 of 1997 has the right to bury a family member on the landowner's property without the owner's consent
• Whether the right to freedom of religion under section 15(1) of the Constitution and section 5(d) of the Act includes the right to establish graves on land occupied but not owned
• Whether the right to 'use' land under section 6(1) of the Act includes the right to establish burial sites
• Whether the rights to human dignity, culture, and family life under the Constitution and the Act confer burial rights on occupiers
• The proper interpretation and balance between occupiers' rights and landowners' property rights under the Act

The appeal was dismissed with costs. The Registrar was directed to bring to the attention of the Director of Local Government of Mpumalanga and the Chief Executive Officer of the relevant Local Authority the existence of offensive race classifications in the Ermelo Cemetery by-law that required immediate replacement.

An occupier under the Extension of Security of Tenure Act 62 of 1997 does not have the right to bury family members on land owned by another without the landowner's consent. The constitutional right to freedom of religion (section 15(1) of the Constitution and section 5(d) of the Act) has internal limits and does not confer the right to choose any burial site or to appropriate land for burial purposes without the owner's consent. The right to 'use' land under section 6(1) of the Act refers to residential and agricultural use in connection with residence, not the permanent appropriation of land through burial. The establishment of a grave effects a permanent diminution of ownership rights. If the legislature intended to grant occupiers burial rights without consent, it would have done so expressly, particularly given section 6(4)'s recognition of existing graves. Until occupiers acquire real rights in land through the Act's subsidy scheme, their tenure remains temporary (albeit protected), and they cannot unilaterally take land for burial purposes.

The Court made several non-binding observations: (1) Howie JA noted that it would be 'unacceptably contradictory' if the law barred communal religious practice from infringing property rights (under section 31 of the Constitution) but permitted individual religious practice to do so. (2) The Court observed that it would be incongruous that labour tenants under the Land Reform (Labour Tenants) Act 1996, who arguably have at least as close a link with the land as occupiers under the Act, have no right to take burial ground. (3) The Court noted that the right to bury one's dead could arguably be viewed as within the ambit of the right to human dignity, and resort could have been made to the constitutional right to culture and the statutory right to family life under section 6(2)(d), but these would offer even less scope for deducing a right to take burial land than the right to freedom of religion. (4) The Court expressed strong disapproval of the continued existence of race classifications in the Ermelo Cemetery by-law, describing them as 'greatly offensive' and 'frankly startling', and directed that they be replaced as soon as possible.

This case establishes important principles regarding the limits of occupiers' rights under the Extension of Security of Tenure Act 62 of 1997. It clarifies that: (1) The right to freedom of religion does not extend to appropriating another's property for burial purposes without consent; (2) The statutory right to 'use' land does not include burial rights; (3) Occupiers under the Act do not acquire proprietary rights in land until real rights are formally obtained through the subsidy scheme; (4) The Act balances occupiers' constitutional rights with landowners' property rights, but does not grant occupiers the right to permanently diminish ownership through burial appropriation. The case demonstrates the courts' approach to interpreting land reform legislation in a manner that protects vulnerable occupiers while respecting constitutional property rights. It also highlights the continued need to eliminate apartheid-era racial classifications in municipal legislation.