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

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

The court found that the deceased was an occupier as defined by ESTA, having resided on the farm for at least ten years and being over sixty years old. The deceased's periodic absences did not negate his residence, as residence is determined by factual circumstances and intention, not daily physical presence. The established practice on the farm and the statutory rights under section 6(5) of ESTA entitled the applicant to bury the deceased at the Majola family burial site. The respondents' evidence of the deceased's absence during their visits was insufficient to rebut the applicant's claim of residence. The court concluded that both the statutory and factual requirements for burial on...

Citation
[2009] ZALCC 7
Parties
Applicant: Mbuyiselwa Majola; Respondent: Christopher Nattle Mortimer N.O; Respondent: Caroline Anne Elizabeth Ovenston N.O; Respondent: Phillipa Jane Richards N.O; Respondent: Christopher John Russell Turner N.O; Respondent: Andrew John Clive Turner N.O
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
14 August 2009
Case Number
LCC137/2009
Procedural Posture
Urgent Application / Final Order After Oral Evidence
Outcome
Application granted; burial on the farm permitted.
Judges
S Mia
Legal Topics
Extension of Security of Tenure Act, Right of Burial, Security of Tenure, Definition of Residence
Land and Property Extension of Security of Tenure Act Right of Burial Security of Tenure Definition of Residence

Case Brief

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Parties

Mbuyiselwa Majola

Applicant

Christopher Nattle Mortimer N.O

Respondent

Caroline Anne Elizabeth Ovenston N.O

Respondent

Phillipa Jane Richards N.O

Respondent

Christopher John Russell Turner N.O

Respondent

Andrew John Clive Turner N.O

Respondent

Procedural Posture

Urgent Application / Final Order After Oral Evidence

Legal Issues

  1. 1 Whether the deceased was residing on the farm at the time of death for purposes of burial rights under ESTA.
  2. 2 Whether established practice and statutory rights entitled the applicant to bury the deceased on the farm burial site.

Ratio Decidendi

The court found that the deceased was an occupier as defined by ESTA, having resided on the farm for at least ten years and being over sixty years old. The deceased's periodic absences did not negate his residence, as residence is determined by factual circumstances and intention, not daily physical presence. The established practice on the farm and the statutory rights under section 6(5) of ESTA entitled the applicant to bury the deceased at the Majola family burial site. The respondents' evidence of the deceased's absence during their visits was insufficient to rebut the applicant's claim of residence. The court concluded that both the statutory and factual requirements for burial on...

Court Disposition

Application granted; burial on the farm permitted.

Orders

  • The applicant is permitted to bury the deceased at the Majola family burial site on the farm Boschkloof, Dargle, KwaZulu-Natal.
  • No order as to costs.