Sandvliet Boerdery (Pty) Ltd v Maria Mampies & another

The appellant owned parcels of registered land known as Bo-Plaas and Middel-Plaas, which together with Onder-Plaas (owned by another entity) historically formed the Montina farms in Groblershoop, Northern Cape Province. The respondents were a married couple residing on Onder-Plaas, where they had lived and worked their entire lives as occupiers. Mrs Mampies' extended family had resided and worked on the Montina farms for generations. The farms were historically operated as a single unit and occupiers had unrestricted movement and use across them. When a graveyard on Onder-Plaas reached capacity, occupiers established a graveyard on Middel-Plaas where they routinely buried deceased family members in accordance with their religious and cultural beliefs with the landowner's consent. Over time the farms were sold to successive owners. In 2014, new owners imposed strict rules and denied occupiers access to the Middel-Plaas graveyard. When the deceased, a close relative of the respondents who resided on Onder-Plaas, died in 2017, the appellant (current owner of Middel-Plaas) refused to allow burial in the Middel-Plaas graveyard because the respondents and deceased resided on Onder-Plaas, not Middel-Plaas.

• Whether s 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) conferred on the respondents a right to bury the deceased in the Middel-Plaas graveyard
• Whether the respondents and the deceased 'resided' on the land on which burial was sought within the meaning of s 6(2)(dA) of ESTA
• The proper interpretation of 'reside' in s 6(2)(dA) of ESTA
• Whether burial rights under ESTA can be invoked against a landowner in respect of land separate from the registered land on which the occupier's dwelling is situated
• Whether the appeal was moot after the deceased had already been buried

The appeal was dismissed with no order as to costs.

The meaning of 'reside' in s 6(2)(dA) of ESTA depends on the facts of each case and is not limited to the cadastral boundaries of registered land on which an occupier's dwelling is situated. An occupier may 'reside' on land comprising more than one registered portion where the occupier has routinely performed sufficient acts in relation to that land to regard it as part of the land on which they reside. A burial right under s 6(2)(dA) may be invoked against a landowner in respect of an ancestral graveyard situated on registered land even where neither the occupier seeking to bury a deceased family member nor the deceased had a dwelling on that land at the deceased's death, provided: (a) the occupier and deceased routinely performed sufficient acts in relation to the land to regard it as part of the land on which they 'reside'; (b) an established practice existed whereby the landowner or predecessors routinely gave permission to bury deceased family members on that land in accordance with religious or cultural beliefs; and (c) the burial right is balanced against the landowner's property rights as required by s 6(2) of ESTA. ESTA must be interpreted purposively and generously to afford occupiers the fullest constitutional protection and to avoid rendering their rights nugatory or hollow.

The Court noted that the burial right under s 6(2)(dA) is not absolute and must be balanced against the property rights of the landowner or person in charge as required by s 6(2) of ESTA. The Court observed that such balancing requires striking a just and equitable balance taking into account the specific circumstances of each case. The Court commented that in this case the intrusion was minimal as the graveyard was already demarcated and accessible under s 6(4) of ESTA, and the area lost to a single grave was approximately 1m x 2m, which did not constitute such drastic curtailment of ownership rights as to justify denying the burial right. The Court observed that once permission to bury is granted establishing a practice, it cannot be unilaterally withdrawn by the original grantor or successors in title. The Court applied the Biowatch principle in declining to award costs against the unsuccessful appellant.

This judgment is significant for interpreting the burial rights of occupiers under s 6(2)(dA) of ESTA in a manner consistent with constitutional values of human dignity, security of tenure, and protection of religious and cultural rights. It establishes that 'reside' must be interpreted contextually and purposively rather than narrowly based on cadastral boundaries, and that occupiers may 'reside' on land comprising multiple registered portions where they routinely perform sufficient acts in relation to it. The judgment affirms that ESTA must be interpreted generously to afford vulnerable occupiers the fullest constitutional protection intended by the legislature, and that rights cannot be rendered hollow or nugatory by technical interpretations. It recognizes the importance of ancestral burial sites to farm occupiers' religious, cultural and daily lives, and clarifies that burial rights established through historic practice with landowner consent cannot be unilaterally withdrawn. The decision reinforces the land reform objectives of the Constitution and ESTA in protecting the tenure security and dignity of previously disadvantaged farm occupiers.