Appeal court allows family to bury relative with ancestors... even though it's not on the family's land
The Supreme Court of Appeal has ruled that a Northern Cape family has a right to bury a relative on a farm the deceased did not live on.
Madgelena de Wee was buried two years ago after the Land Claims Court ruled that her family had a right to bury her at her family’s ancestral graveyard on Middel-Plaas. However Sandvliet Boerdery (Pty) Ltd, the owner of the land, argued that she did not live on the farm the family eventually buried her on.
De Wee’s relative Maria Mampies and her husband Hendrick Mampies approached the Land Claims Court seeking the declaration of their rights under the Extension of Security of Tenure Act (Esta) 62 of 1997, which deals with the right to bury.
The Land Claims Court found that the Mampies family had complied with the provisions of Esta as they were family members of the deceased and “had established that it was in accordance with their religious and cultural beliefs for the deceased to be buried in the Middel-Plaas graveyard”.
The Mampies family lived on the portion of Onder-Plaas, which forms part and parcel of registered land known as Bo-Plaas and Middel-Plaas. The three are collectively known as Montina farms.
The family, according to court papers, regarded the Montina farms as one unit, as the previous owner Peter Engelbrecht had allowed them unrestricted movement across the three farms, including the right to bury their loved ones.
When she died, De Wee’s parents, who did not live on the Montina farms, and the Mampies family, who treated her like their daughter, wished to bury her at the Middel-Plaas graveyard with the rest of her family.
Sandvliet Boerdery (Pty) Ltd, however, refused to allow the Mampies family to bury De Wee, arguing that they lived on Onder-Plaas and not on Middel-Plaas.
At the SCA, the company argued that the Land Claims Court had divested a section of Esta because it allowed a burial without compliance with the provisions’ clear requirements. This was because the land on which the family wanted to bury De Wee and the one the family resided on were separately registered pieces of land, one of which the company owned.
In the SCA judgment, the court found that “it is clear from the respondents’ affidavits that their burial practices and the location of their family graves near where they live form a vital part of their religion and their day-to-day lives”.
“Once granted, the permission to bury could not be unilaterally withdrawn, either by the original grantor of the permission or his successors in title, including the appellant which was aware of the existence of the graveyard when it purchased Middel-Plaas in June 2015,” the SCA ruled.
The court contended that despite the fact that De Wee had been buried two years ago, the appeal involved "a discreet legal issue of public importance that affects matters in the future".
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