Bashe v Meyer and Another (2098/2008) [2008] ZAECHC 187 (6 November 2008)

Bashe v Meyer and Another (2098/2008) [2008] ZAECHC 187 (6 November 2008)

The applicant failed to establish, in her founding papers, the existence of an established practice of permitting burials on the farm as required by s 6(2)(dA) of the Extension of Security of Tenure Act. She also did not allege facts showing that the burial was in accordance with her religion or cultural beliefs. The absence of these essential averments meant she did not make out a cause of action. Even if she had, the dispute of fact raised by the respondent's denials would have precluded relief on the papers, and the urgency and nature of the dispute made referral to oral evidence impractical. Accordingly, the application was dismissed.

Citation
[2008] ZAECHC 187
Parties
Applicant: Khanyelwa Bashe; Respondent: Johan Meyer; Respondent: Shweme & Shweme
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 November 2008
Case Number
2098/2008
Procedural Posture
Urgent Application / Final Judgment
Outcome
Application dismissed.
Judges
Plasket
Legal Topics
Extension of Security of Tenure Act, Burial Rights, Urgent Interdict, Cause of Action Requirements
Land and Property Civil Procedure Extension of Security of Tenure Act Burial Rights Urgent Interdict Cause of Action Requirements

Case Brief

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Parties

Khanyelwa Bashe

Applicant

Johan Meyer

Respondent

Shweme & Shweme

Respondent

Procedural Posture

Urgent Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant, as an occupier, has the right under s 6(2)(dA) of ESTA to bury her deceased son on the farm.
  2. 2 Whether the applicant established an 'established practice' of burials on the farm as required by ESTA.
  3. 3 Whether the burial sought is in accordance with the applicant's religion or cultural beliefs.

Ratio Decidendi

The applicant failed to establish, in her founding papers, the existence of an established practice of permitting burials on the farm as required by s 6(2)(dA) of the Extension of Security of Tenure Act. She also did not allege facts showing that the burial was in accordance with her religion or cultural beliefs. The absence of these essential averments meant she did not make out a cause of action. Even if she had, the dispute of fact raised by the respondent's denials would have precluded relief on the papers, and the urgency and nature of the dispute made referral to oral evidence impractical. Accordingly, the application was dismissed.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.