Rights and practices as they relate to burial on private land has long been a source of tension between occupiers and land owners. While legislation, provincial and municipal ordinances and regulations have been amended to assist all parties to manage these rights in an orderly fashion, conflict continues to occur from time to time. The Courts have also been required from time to time to step and clarify the provisions of the law and the various interpretations given to them by occupiers and land owners.
According to section 6(2)(dA) of Extension of Security of Tenure Act [ESTA], 62 of 1997 confers upon an ‘occupier’ the right to bury a deceased family member on the ‘land’ on which both the deceased and the ‘occupier’ had been residing at the time of the death of the deceased:
‘‘(dA) to bury a deceased member of his or her family who, at the time of that person’s death, was residing on the land on which the occupier is residing, in accordance with their religion or cultural belief, if an established practice in respect of the land exists;’’;
‘‘(5) The family members of an occupier contemplated in section 8(4) of this Act shall on his or her death have a right to bury that occupier on the land on which he or she was residing at the time of his or her death, in accordance with their religion or cultural belief, subject to the conditions that may be imposed by the owner or person in charge.’’
An occupier’s burial rights in terms of this section cannot be unilaterally withdrawn because such an entitlement would defeat the purpose of the section.
An occupier has, by virtue of the provisions of s 6(1) of the Act, right of residence which is a real right in land. The occupier’s burial rights is an incident of that real right or residence and is in the nature of a personal servitude over the land. These rights, the right of residence and burial rights, can be claimed only against the registered owner of the land. The court held that ‘land’, from the context in which the word ‘land’ is used, could only refer to land registered in the name of the owner. The court also held that ‘established practice’ relates to ‘people residing on the land’, further to the following provision of the Act:
- ‘‘ ‘established practice’ means a practice in terms of which the owner or person in charge or his or her predecessor in title routinely gave permission to people residing on the land to bury deceased members of their family on that land in accordance with their religion or cultural belief;’’.
Provincial Ordinances and Municipal Regulations
The KwaZulu-Natal Cemeteries and Cremtoria Amendment Act No.2 of 2005 sets out the process by which burials are allowed in line with the provisions of ESTA and guidelines for such by local municipalities in the province.