Dlamini and Another v Joosten and Others (30/05) [2005] ZASCA 138; [2006] 3 All SA 1 (SCA); 2006 (3) SA 342 (SCA) (30 November 2005)

Dlamini and Another v Joosten and Others (30/05) [2005] ZASCA 138; [2006] 3 All SA 1 (SCA); 2006 (3) SA 342 (SCA) (30 November 2005)

The Supreme Court of Appeal held that the term 'land' in section 6(2)(dA) of the Extension of Security of Tenure Act must be interpreted according to its cadastral description, referring to land registered in the name of an owner. The appellants could not claim burial rights on Bockenhoud, as the deceased resided on Sandspruit at the time of death. However, the court found that the established practice of burials on Sandspruit was not limited to particular families but applied to all people residing on the land. The appellants' religious and cultural beliefs were satisfied by burial on Sandspruit, as it was close to their homestead. The court further held that once an established practice...

Citation
[2005] ZASCA 138
Parties
Appellant: M Dlamini and Another; Respondent: P J Joosten and Others
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2005
Case Number
30/05
Procedural Posture
Civil Appeal / Appeal From Land Claims Court
Outcome
Appeal upheld. Declaratory order granted in favour of the appellants.
Judges
Harms, Streicher, Jafta, Mlambo, Cachalia
Legal Topics
Extension of Security of Tenure Act, Burial Rights, Cadastral Description, Established Practice, Real Rights, Personal Servitude
Land and Property Extension of Security of Tenure Act Burial Rights Cadastral Description Established Practice Real Rights Personal Servitude

Case Brief

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Parties

M Dlamini and Another

Appellant

P J Joosten and Others

Respondent

Procedural Posture

Civil Appeal / Appeal From Land Claims Court

Legal Issues

  1. 1 Whether the word 'land' in section 6(2)(dA) of the Extension of Security of Tenure Act is confined to its cadastral description.
  2. 2 Whether the appellants proved that it was in accordance with their religion or cultural beliefs for the deceased to be buried on Sandspruit.
  3. 3 Whether the respondents were entitled to unilaterally terminate the established burial practice on Sandspruit.

Ratio Decidendi

The Supreme Court of Appeal held that the term 'land' in section 6(2)(dA) of the Extension of Security of Tenure Act must be interpreted according to its cadastral description, referring to land registered in the name of an owner. The appellants could not claim burial rights on Bockenhoud, as the deceased resided on Sandspruit at the time of death. However, the court found that the established practice of burials on Sandspruit was not limited to particular families but applied to all people residing on the land. The appellants' religious and cultural beliefs were satisfied by burial on Sandspruit, as it was close to their homestead. The court further held that once an established practice...

Court Disposition

Appeal upheld. Declaratory order granted in favour of the appellants.

Orders

  • The appeal succeeds.
  • The order of the court below is set aside and substituted with: It is declared that the applicants are entitled, in terms of section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997, to bury the body of Gertrude Ntombi Zondi in the burial site on the remainder of the farm Sandspruit No. 1920.