Mathebula and Another v Harry (LCC72/2015) [2015] ZALCC 6; 2016 (5) SA 534 (LCC) (2 June 2015)

Mathebula and Another v Harry (LCC72/2015) [2015] ZALCC 6; 2016 (5) SA 534 (LCC) (2 June 2015)

The court found that the first applicant is an occupier under ESTA, based on her residence, employment history, and circumstances indicating earnings below the statutory threshold. The deceased was considered to have resided on the farm, as his permanent home was there and his weekly absences for work did not negate his residence. The evidence, including affidavits and inspection in loco, established that the Mathebula family had a longstanding practice of burials on the farm, with at least 17 graves confirmed and tacit permission from previous owners. The respondent's evidence was inconsistent and unreliable, particularly regarding the number of residents and graves. The court held that...

Citation
[2015] ZALCC 6
Parties
Applicant: Lizzy Mathebula; Applicant: Lomanesi Mathebula; Respondent: Mr Harry
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
2 June 2015
Case Number
LCC72/2015
Procedural Posture
Urgent Application / Final Judgment After Inspection in Loco and Affidavits
Outcome
Application granted. Declaration of burial right and access ordered. No costs order.
Judges
Ngcukaitobi
Legal Topics
Extension of Security of Tenure Act, Burial Rights on Farms, Occupier Definition, Established Practice, Inspection in Loco
Land and Property Civil Procedure Extension of Security of Tenure Act Burial Rights on Farms Occupier Definition Established Practice Inspection in Loco

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Lizzy Mathebula

Applicant

Lomanesi Mathebula

Applicant

Mr Harry

Respondent

Procedural Posture

Urgent Application / Final Judgment After Inspection in Loco and Affidavits

Legal Issues

  1. 1 Whether the applicants are 'occupiers' as defined in ESTA and entitled to burial rights under section 6(2)(dA).
  2. 2 Whether the deceased was residing on the farm at the time of his death for purposes of ESTA.
  3. 3 Whether there is an established practice of granting permission for burials on the farm.

Ratio Decidendi

The court found that the first applicant is an occupier under ESTA, based on her residence, employment history, and circumstances indicating earnings below the statutory threshold. The deceased was considered to have resided on the farm, as his permanent home was there and his weekly absences for work did not negate his residence. The evidence, including affidavits and inspection in loco, established that the Mathebula family had a longstanding practice of burials on the farm, with at least 17 graves confirmed and tacit permission from previous owners. The respondent's evidence was inconsistent and unreliable, particularly regarding the number of residents and graves. The court held that...

Court Disposition

Application granted. Declaration of burial right and access ordered. No costs order.

Orders

  • It is declared that the applicants are entitled to bury the deceased, Mr Mfanyana Mathebula, at Sweet Home 3 Farm, Barberton, Mpumalanga, in terms of section 6(2)(dA) of ESTA.
  • The respondent and anyone acting under his direction are ordered to grant the applicants and any person under their direction access to the farm for the purposes of arranging and carrying out the funeral.