Majola v Mortimer NO and Others (LCC137/2009) [2009] ZALCC 7 (14 August 2009)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

IN RANDBURG

CASE NUMBER: LCC137/2009

Decided on: 14 August 2009

In the matter between:

MBUYISELWA MAJOLA Applicant

And

CHRISTOPHER NATTLE MORTIMER N.O First Respondent

CAROLINE ANNE ELIZABETH OVENSTON N.O Second Respondent

PHILLIPA JANE RICHARDS N.O Third Respondent

CHRISTOPHER JOHN RUSSELL TURNER N.O Fourth Respondent

ANDREW JOHN CLIVE TURNER N.O Fifth Respondent

JUDGEMENT

MIA AJ:

[1] The above matter came before me as an urgent application on 4 August 2009. The applicant sought an order to bury his deceased relative on the Majola burial site on the farm, Boschkloof, Dargle Kwazulu-Natal. The matter was referred, by agreement, for oral evidence to determine whether the deceased had been residing on the farm. On the 14 August 2009 I granted an order in favor of the applicant to permit the burial of the deceased on the Majola burial site on the farm Boschkloof, Dargle, Kwazulu-Natal. The full reasons for my order appear from this judgement.

[2] The applicant is the uncle of the deceased. The applicant is an occupier on the farm Boschkloof and currently resides on the farm. The deceased aged 69 years old, was an occupier on the farm at the time of his death. He was employed by the previous owner who is now deceased, Mr. Jeremy Turner. The deceased resided on the farm for at least 10 years, according to the third respondent. It appears that the deceased then went on pension in 2007 and had since this date received a state pension. According to the applicant the deceased had resided on the farm with him and their family.

[3] It appears that prior to his death, the deceased spent time away from the farm visiting an aunt. According to the applicant the deceased would return to the farm for a day and would then go off to visit a relative or friend again. The applicant and other occupiers on the farm were not informed by the deceased about where he would travel to or who he would visit. They were thus not in a position to indicate where the deceased was when an enquiry was made by the respondents. The deceased could however be traced with time and would return to the farm if he was called back or required for work or an errand, as occurred when the third respondent required him to prune the roses. According to the applicant, the deceased was away from the farm, visiting a relative when he died.

[4] The respondents, the trustees of the farm, indicated they visited the farm regularly and often enquired about the deceased. They were told on each occasion that the deceased had gone off and was not on the farm. According to the fourth respondent it was a standing joke between the occupiers and the respondents that the deceased was off the farm so often. It was also known to the applicant and the respondents that the deceased enjoyed alcohol and would visit relatives and friends to enjoy alcohol. According to the applicant the deceased went to his aunt as he was familiar with the family and there was always alcohol served. The respondents were aware of the deceased’s enjoyment of alcohol and the third respondent indicated that her parents viewed it as a problem and sought to assist the deceased in this regard.

[5] The deceased was thus an occupier aged 69 years old who had been residing on the farm for at least 10 years and was no longer employed due to him being on pension. His right of residence is determined as per section 6(2) (a) of ESTA which provides as follows:

Section 6 Rights and duties of occupier

(1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly.

(2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right-

(a) to security of tenure;

(b)…

(c)…

(d) to family life in accordance with the culture of that family: Provided that this right shall not apply in respect of single sex accommodation provided that hostels are erected before 4 February 1997.

(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;

(e)…

(f)…

(3)…

(4)…

(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 any reasonable conditions which are not more onerous than those prescribed and that may be imposed by the owner or person in charge. (My emphasis)

[6] This right of residence is further secured in that the deceased is a person described in section 8(4) of ESTA which provides that:

[doja62y1997s8] 8 Termination of right of residence

(1)…..

(2)….

(3) ….(4) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10

years and-

(a)

has reached the age of 60 years; or

(b)

is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge,

may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) (a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach.

[7] The occupier’s right of residence can only be terminated if a breach is committed as contemplated in section 10 (1) (a), (b) or (c). ESTA does not define the word residence. Thus the intention of the legislature is instructive in its determination in the present case.

[8] In the unreported case of John Ernest Robertson v Nicolaas Boss LCC 6R/1998 Gildenhuys J, notes as follows at paragraph 5 of the judgement:

“ Die word “woon” ( In Engels, “reside”) kan verskeie betekenisse he. Waar die word in ‘n wet gebruik word, hang die betekenis af van die bedoeling van die Wetgewer1. Regter Galgut stel dit in Tick v Broude and Another2 soos volg:

“The word ‘residence has not acquired any technical meaning and is used in law with many shades of meaning ranging from mere physical presence to domicile… All the above cases show that ‘residence’ is a word which varies in meaning according to the circumstances under which it is used. In most cases it will be a question of degree.”

[9] The difficulty in defining residence is recognized in Zwyssig v Zwyssig 1997(2) SA 467 at 471 C-E where Van Schalkwyk J noted that

“It has repeatedly been emphasized that it is impossible to lay down a definition of the concept of residence. There are a number of factors which must be taken into account, each of which may go some way towards proving that residence has been established. In a particular case, the absence of one or more of these factors may be more than compensated by the presence of others. Some factors are more important than others. The duration of the stay, the acquisition of property and the procurement of employment are each obviously more significant than, for instance, the frequency of visits, the number of friends or acquaintances resident within the area, or the amount of money spent on each visit,….”

[10] From the above it follows that the question of residence is a factual determination made having regard to the particular facts before the court and having regard to the intention of the legislature. It is not required that a person be physically present at the residence each day.

[11] The preamble to ESTA reads as follow:

To provide for measures with State assistance to facilitate long term security of land tenure; to regulate the conditions of residence on certain land; to regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated; and to regulate the conditions and circumstances under which persons, whose right of residence has been terminated, may be evicted from land; and to provide for matters connected therewith.

The rights of occupiers as specified in section 6 of ESTA elaborates on the above intention and reflects the desire of the legislature to provide for security of tenure and conditions under which residence may be terminated.

[12] In the present case, it was not disputed that the deceased was an occupier in terms of section 6 of ESTA. The respondent’s evidence that the deceased was not on the farm when they visited the farm on alternate weekends does not detract from the deceased’s rights as an occupier nor does it lead to the conclusion that the deceased was not residing on the farm.

[13] In view of the all the above I come to the conclusion that the deceased resided on the farm and is entitled both in terms of the established practice on the farm and certainly in terms of section 6(5) of ESTA to be buried on the farm. I accordingly order as follows:

ORDER:

[14] 1. That the applicant is permitted to bury the deceased at the Majola family burial site on the farm Boschkloof, Dargle, KwaZulu-Natal.

2. No order as to costs.

____

Shanaaz Mia

Acting Judge of the Land Claims Court

APPEARANCES:

Counsel for Applicant: Mr. Malowa

Instructed by : Mbili Attorneys

Counsel for Respondents: Mr. De Wet

Instructed : Forster Attorneys

1 See Buck v Parker 1908 TS 1100 on 1104

2 1973 (1) SA (T) at 469E