Samuel Johannes Nortje v Martinus Prinsloo Maree

The Appellant and his family had been residents on a farm since 1989, working for the owners. In 1995, ownership changed and the Respondent became perceived as the new owner. The Appellant's wife died on 21 May 2011 and he requested permission from the Respondent to bury her on the farm, which was refused. The Appellant then approached the Klerksdorp Magistrate's Court with an urgent ex parte application. A rule nisi was granted on 1 June 2011 allowing the burial, and the Appellant buried his wife before the return date. On the return date (30 September 2011), the Respondent opposed the application, arguing he was neither the owner nor the person in charge of the farm, and that there was no established practice of burial on the farm. The Magistrate discharged the rule nisi. The Appellant appealed to the Land Claims Court.

• Whether the rule nisi granted on 1 June 2011 was an interim or final order
• Whether the Magistrate's Court became functus officio after granting the order on 1 June 2011 and thus lacked jurisdiction to discharge it on 30 September 2011
• Whether the Appellant had a right to bury his wife on the farm in terms of section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997
• Whether the requirements for a final interdict were met
• Whether the registered owner needed to be joined to the application
• Whether an established practice of burial existed on the farm

The appeal was upheld. The order of the Magistrate handed down on 1 June 2011 was confirmed as a final order. The Respondent was ordered to pay the costs.

Once a court has granted an order that is final in effect (disposing of all relief claimed, being definitive of the parties' rights, and not open to alteration), the court becomes functus officio and lacks jurisdiction to subsequently vary, alter, or discharge that order, regardless of whether the order was labeled as interim or included a return date. The effect of an order, not its form or label, determines whether it is final. An order allowing a burial that was executed before a return date is final in effect because it disposes of the entire relief claimed and definitively determines the rights of the parties.

The court made several non-binding observations regarding burial rights under ESTA: (1) To establish a right to bury under section 6(2)(dA) of ESTA, an applicant must prove an established practice on the land (not merely in a particular family), which requires facts showing a habitual way of acting by the owner in routinely granting permission for burials; (2) The applicant must demonstrate that burial on the farm accords with religious or cultural beliefs, which requires more than merely stating it is one's culture - there must be explanation of why burial must occur on that specific land; (3) Burial rights are in the nature of personal servitudes that create real rights in land and should be claimed against registered owners; (4) The word 'land' in section 6(2)(dA) is confined to its cadastral description, though genuine confusion about farm names where all parties understand which property is intended may not be fatal; (5) The rights of owners must be balanced against the rights of occupiers when considering burial applications.

This case is significant for establishing important principles regarding the finality of court orders in the context of ESTA burial rights. It clarifies that the effect of an order, rather than its label or form, determines whether it is final or interim. The judgment reinforces the functus officio doctrine in South African law - once a court has spoken its final word on a matter and granted a final order, it cannot revisit or alter that order except in specific limited circumstances. The case also provides guidance on the requirements for establishing burial rights under section 6(2)(dA) of ESTA, including the need to prove an established practice of burial on the land and that burial accords with religious or cultural beliefs. It clarifies that burial rights are claimable against registered owners and are in the nature of personal servitudes that burden the land.