M Dlamini and Another v P J Joosten and Others

The first and second appellants (husband and son of the deceased Gertrude Ntombi Zondi) sought to bury her at the Dlamini family burial site on the farm Bockenhoud Fontein, or alternatively at a burial site on the farm Sandspruit. The first appellant and the deceased had lived on Bockenhoud since 1974, employed by Hogard Joosten. In 1986, they moved to Sandspruit at Hogard's request. The Dlamini family burial site was on Bockenhoud (50 meters from their original homestead), where the first appellant's parents were buried. The Joostens owned three adjacent farms (Bockenhoud, Sandspruit, and Mount Elias), farmed by the father and sons. There had been an established practice of allowing burials on both Bockenhoud and Sandspruit for various families. In July 2002, Andre Joosten informed residents that burials on Sandspruit would cease. When the deceased died on 5 June 2004, Philip Joosten refused permission for burial on Sandspruit. The appellants based their claim on section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997.

• Whether the word 'land' in section 6(2)(dA) of the Extension of Security of Tenure Act is confined to its cadastral description or has a wider meaning
• Whether it was proved that burial on Sandspruit was in accordance with the appellants' religious or cultural beliefs
• Whether a landowner may unilaterally terminate an 'established practice' of burials once such practice exists

The appeal succeeded. The order of the Land Claims Court was set aside and substituted with a declaratory order that the applicants are entitled, in terms of section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997, to bury the body of Gertrude Ntombi Zondi in the burial site on the remainder of the farm Sandspruit No. 1920. No costs order was made.

The binding principles established are: (1) The word 'land' in the Extension of Security of Tenure Act 62 of 1997 is determined by its cadastral description as registered in the deeds office, not by subjective perceptions or farming practices; (2) The burial right in section 6(2)(dA) is an incidence of the right of residence in section 6(1), which creates a real right in land that is registrable and binds successors in title; (3) 'Established practice' in section 6(2)(dA) relates to people residing on the land generally, not to particular families; (4) Once an established practice exists through routine granting of permission for burials by the owner or person in charge, it creates a right in the occupier to bury deceased family members that cannot be unilaterally withdrawn or terminated by the landowner, as such withdrawal would constitute an unlawful deprivation of the occupier's real right in land.

The court noted that the burial right is in the nature of a personal servitude which the occupier has over the property on which he possesses a real right of residence. The court observed that prior to the introduction of section 6(2)(dA), as stated in Nkosi v Bührmann 2002 (1) SA 372 (SCA), landowners were not obliged to permit occupiers to have further graves on their land, and the Legislature had stopped short of imposing that burden. The court commented that the 2001 amendment was introduced specifically to deal with this lacuna by 'obliging owners to accept against their will the creation of further graves' where an established practice exists. The court also noted that the fact that owners of adjacent land are related to each other is irrelevant to the determination of what constitutes 'land' for purposes of the Act.

This case is significant for establishing the interpretation of key provisions of the Extension of Security of Tenure Act 62 of 1997, particularly section 6(2)(dA) introduced by amendment in 2001. It clarified that: (1) 'land' in the Act means land according to its cadastral/registered description, not based on subjective perceptions or farming practices; (2) burial rights are real rights in land, registrable and binding on successors in title; (3) 'established practice' relates to people residing on land generally, not particular families; (4) once an established practice exists, it creates enforceable rights that cannot be unilaterally withdrawn by landowners. The case affirms the protection of cultural and religious burial practices of occupiers while balancing this with the property rights framework. It demonstrates how the Act creates real rights that limit ownership and how the 2001 amendment filled the lacuna identified in Nkosi v Bührmann by obliging owners to accept further graves where an established practice exists.