Greyling and Another v Nkosi and Others (LCC 71/2022 B) [2022] ZALCC 17 (9 June 2022)

Greyling and Another v Nkosi and Others (LCC 71/2022 B) [2022] ZALCC 17 (9 June 2022)

The Land Claims Court has jurisdiction to grant an exhumation order as the matter is incidental to burial rights under ESTA and falls within the court's powers under section 22(2)(c) of the Restitution of Land Rights Act. The relevant regulation does not oust this jurisdiction, as subordinate legislation cannot limit the powers of the High Court or the Land Claims Court. The burial of the deceased on the applicant's farm was unlawful, having been conducted in direct defiance of a court order and without meeting the statutory requirement of residence. Urgency was established due to the ongoing decomposition of the body and the need to prevent a sense of permanency. The respondents' conduct...

Citation
[2022] ZALCC 17
Parties
Applicant: Barend Petrus Greyling; Applicant: Barend Petrus Greyling N.O; Respondent: Busisiwe Gloria Nkosi; Respondent: Nkosingiphile Grace Nkosi; Respondent: Dr. Pixley ka Isaka Seme Local Municipality; Respondent: Gert Sibande District Municipality; Respondent: The Provincial Commissioner South African Police Services; Respondent: MEC, Mpumalanga Department of Health
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
9 June 2022
Case Number
LCC 71/2022 B
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted. Exhumation of the deceased ordered. Costs awarded against the first and second respondents.
Judges
Y S Meer
Legal Topics
Exhumation Order, Burial Rights, Contempt of Court, Jurisdiction of High Court, Extension of Security of Tenure Act
Land and Property Civil Procedure Exhumation Order Burial Rights Contempt of Court Jurisdiction of High Court Extension of Security of Tenure Act

Case Brief

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Parties

Barend Petrus Greyling

Applicant

Barend Petrus Greyling N.O

Applicant

Busisiwe Gloria Nkosi

Respondent

Nkosingiphile Grace Nkosi

Respondent

Dr. Pixley ka Isaka Seme Local Municipality

Respondent

Gert Sibande District Municipality

Respondent

The Provincial Commissioner South African Police Services

Respondent

MEC, Mpumalanga Department of Health

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the Land Claims Court has jurisdiction to grant an exhumation order under the circumstances.
  2. 2 Whether the burial of the deceased on the applicant's farm was lawful given the previous court order and statutory requirements.
  3. 3 Whether urgency is established for the exhumation application.

Ratio Decidendi

The Land Claims Court has jurisdiction to grant an exhumation order as the matter is incidental to burial rights under ESTA and falls within the court's powers under section 22(2)(c) of the Restitution of Land Rights Act. The relevant regulation does not oust this jurisdiction, as subordinate legislation cannot limit the powers of the High Court or the Land Claims Court. The burial of the deceased on the applicant's farm was unlawful, having been conducted in direct defiance of a court order and without meeting the statutory requirement of residence. Urgency was established due to the ongoing decomposition of the body and the need to prevent a sense of permanency. The respondents' conduct...

Court Disposition

Application granted. Exhumation of the deceased ordered. Costs awarded against the first and second respondents.

Orders

  • The exhumation of the deceased, Richard Bonginkosi Mabasa, from the Remaining Extent of Farm Buitenzorg 114 HT, Mpumalanga, for reburial at Esizameleni Graveyard, Wakkerstroom, is ordered, subject to compliance with Regulation 26 of the Regulations relating to the Management of Human Remains under the National...
  • The Third and/or Fourth and/or Sixth Respondents are ordered to issue a reburial permit for the deceased at Esizameleni Graveyard, Wakkerstroom.