Njokweni v Luthuli Ranches CC and Others (LCC22/2008) [2008] ZALCC 12 (14 March 2008)

IN THE LAND CLAIMS COURT OF

SOUTH AFRICA

In East London CASE NUMBER: LCC22/2008

Before Bam JP

Decided on: 14 March 2008

In the case of:

ESTHER NOMILILE NJOKWENI Applicant

and

LUTHULI RANCHES CC 1st Respondent

ROBIN

VIVIAN WOOD 2nd Respondent

THE STATION COMMISSIONER, KEI MOUTH (SAPS) 3rd Respondent

JUDGMENT

BAM JP:

[1] On the 22 of February 2008 the applicant launched an urgent application to compel 1st and 2nd respondents to permit her to bury her deceased husband, the late Desmond Fumbathile Njokweni, on their property Rocky Ridge Farm, Keimouth, Komga. Her application was based on section 6(2) (d A) of the Extension of Security of Tenure Act 62 of 1997 (‘the Act’) which allows an ‘occupier’ resident on another person’s land, to bury a deceased family member on such land if the deceased, at the time of his death, was also residing on the land and where an established practice to bury on that land existed.

[2] Although it was not common cause that the applicant and the deceased were ‘occupiers’ who resided on the farm at the time of death of the deceased, the 1st and 2nd respondents did not oppose the application on those grounds but only on several others to be set out presently in the paragraphs to follow.

[3] On the 14 March 2008 the matter was argued before me in East London and, having heard counsel and studied the papers I, granted

the application immediately so as not to further delay funeral arrangements. I promised, in due course, to supply written reasons

and do so now.

[4] The first ground upon which the application was challenged was the failure, on the part of the applicant, to have joined or cited the owner of the farm as the respondent once it had been established that neither the 1st nor the 2nd respondent was the currently registered owner of the land. It was further denied by both the 1st and 2nd respondents that they were the person in charge on the farm.

[5] The argument seemed to suggest that the failure, for whatever reason, to cite or join the owner of the land was fatal to an

application in terms of section 6 2(d A) of the Act. This is not correct even though, in terms of the rules and the common law, it is salutary and often obligatory practice to join persons interested in the subject matter of a dispute and whose rights maybe affected by the judgment1.

[6] In this Act, however, particularly in the relevant section 6 and 7, the words ‘owner’ and the ‘person in charge’ are

consistently juxtaposed disjunctively as referring to the individual to whom, in the first instance, obligations are owed by an ‘occupier’ and vice versa. Either may, with or without recourse to the other, grant or terminate a right of residence or any associated rights in respect of the land including the obligation to allow burial of an occupier on the land. It is clear to me this was done precisely to accommodate an ‘occupier’ who, as in this case, might not be aware that ownership of the land has since changed hands or even that the land belongs to an absentee owner living abroad. It is generally not within the means of the contemplated occupiers to access the Deeds Registry or to effect service by edictal citation.

[7] In this particular case, the applicant states that on the day following the death of her husband, her family went to inform Mrs Jeniffer Claire Miles, the widow of the former owner, of the death of the applicant’s husband in the belief that she was the owner of the farm. It does not appear that she disabused them of the mistaken idea but may have re-inforced it by informing them that the deceased had signed an agreement that he should not be buried on Rocky Ridge Farm. More about the agreement later.

[8] The applicant eventually established that the farm was being run/operated/administered and managed by the 2nd Respondent being the sole member of the 1st respondent. Indeed, the 2nd respondent conceded in his opposing affidavit to being involved in the day to day running of the farm but denied having authority to grant permission for burial. The Act, clearly by implication and by logic, precludes such a plea to a person in charge. Furthermore, on a previous but unrelated occasion, the 2nd respondent had written a letter to the Department of Land Affairs wherein he stated that, as per agreement with the owner of the farm, Luthuli Ranches (1st Respondent) have total jurisdiction (my emphasis) over the farm since February 2007. An official of the Department of Land Affairs, Mr Siphiwo Xeliso, has stated in an affidavit to this matter that he negotiated with the 2nd respondent as well as with the 2nd respondent’s attorneys and was advised by them that they would not allow the burial on the farm. All these are pointers that the 2nd respondent was effectively the person in charge of the land and the citation of him and of the 1st respondent suffices for purposes of ‘the Act’. The purpose of joinder of parties is, in any event, to afford interested parties to participate which the owner has done in this case and has submitted an affidavit confirming ownership.

[9] The second ground upon which the application was challenged was to maintain that there was no longer an established practice of burial on the property as of the date of death of the deceased. In her founding affidavit the applicant stated that several burials of occupiers had been permitted on the land since 1971 and that the most recent were during 2006 and 2007 respectively.

[10] The opposing affidavit of Mrs Jeniffer Miles confirms that fact but with some qualifications. Firstly, she states that she and her late husband had for some time prior to 2003 been reluctant to agree to further burials on the farm due to the increasing frequency thereof and to attendant health risks.

[11] Secondly, she states that such burials were not an invariable practice as some people chose to bury their relatives elsewhere.

Finally, she states that the burials that

took place during 2006 and 2007 were carried out without their consent and after objections thereto were overruled by the Department

of Land Affairs.

[12] Mr Mc Connachie, on behalf of the 1st and 2nd respondents submits that the sets of facts outlined in the above scenario do not constitute an established practice as defined in ‘the Act’ i.e. a practice in terms of which the owner or person in charge routinely gave permission to people residing on the land to bury on the land.2 In the alternative, he submitted that the practice had, in any event, been discontinued even before section 6(2) (d A) of ‘the Act’ was enacted.3

[13] Once it is conceded that there is a burial site in existence, though perhaps not utilized with the frequency or regularity of an urban cemetery and even intermittently, an established practice exists in the context and intention of the Act. The Legislature

introduced section 6(2) (d A) precisely in order to oblige owners and persons in charge, in the circumstances of the present case, the creation of further graves4. The mere fact of irregularity or inconsistency does not suffice to negate such an obligation.5 Furthermore, a right is conferred on the occupier by the section to bury which may not be wiped out by temporary non usage or be

withdrawn unilaterally without rendering the entire purpose of the section nugatory.6

[14] It is, perhaps, the appreciation of last mentioned hurdle that compelled the respondents to rely heavily on the third ground of their challenge to the effect that the deceased had entered into an agreement with the former owner of the farm not to be buried on Rocky Ridge. Annexture RYW2 was included in the respondents’ papers purporting be a document signed by the deceased and two witnesses on the 12 March 2003 in which he affirmed that neither he nor his descendants would demand to be buried on Rocky Ridge. This was on the occasion when deceased sought permission from the owner to bury his own parents on the farm and the ‘waiver’ of his own right was in exchange for being granted that permission.

[15] There is a material factual dispute emanating from the applicant’s replying affidavit and supported by one of the witnesses who signed the document. It is to the effect that the true meaning of the document was not explained to the deceased. All that was stated by the owner of the farm was that it was an agreement, on his part, to permit the burial of the deceased’s parents on Rocky Ridge. Suffice to state I am of the view there is an inherent improbability that the deceased would condemn himself and his descendants to be buried in strange lands having been fully informed of his rights in terms of the Act.

[16] I have not attempted to resolve the above factual dispute on the papers and only address the argument pursued by both counsel on whether the waiver was hit by section 25 of the Act.

[17] Section 25 is simple and straight forward and states:

“25 Legal status of agreements. - (1) The waiver by an occupier of

his or her rights in terms of this Act shall be void, unless it is permitted

by this Act or incorporated in an order of court. (2) A court shall have

regard to, but not be bound by, any agreement in so far as that

agreement seeks to limit any of the rights of an occupier in terms of

this Act.”

[18] Mr Mc Mconnachie has argued that to the extent that the right conferred on the occupier to bury is premised on section15 of the Constitution which guarantees inter alia, freedom of religious belief, it can be exercised both positively and negatively. Therefore, quoting the case of Garden Cities Inc v Northpine Islamic Society7, he submits a contractual undertaking to waive a constitutional right is permissible.

[19] The point at issue in the Garden City case was in regards to the inability or otherwise to waive the fundamental right to freedom of religion in terms of an agreement concluded in the pre- constitutional period. It was accepted that where strong public policy considerations are involved a purported waiver would not be valid or enforceable.8 In other words the importance of the right that is constitutionally protected must outweigh the importance attached to the principle

pucta sunt servada.9 The decision in that case is authority only for the proposition that a non essential aspect of the religious practice is permissible.

[20] The Act takes matters even further and requires that the waiver be actually sanctioned by a court and that such court be not bound by it in so far as it seeks to limit any of the rights of an occupier.10

[21] The historical background and motivation for the Act requiring that waiver agreements be sanctioned under careful scrutiny by a court is succinctly stated by Heher J A in Agrico Masjinerie (Edms) BPK v Swiers.11

“The Legislature, in enacting ESTA, recognized the land on which

they live. It intended to provide ample protection to such occupiers

who would in all probability be disadvantaged by lack of means and

inadequacy of education and thus constitute an easy prey to a

landowner seeking to take advantage of them.”

[22] It follows that, in my judgment, the applicant, as an occupier, has established that the 1st and 2nd respondents, being persons in charge of Rocky Ridge farm, were legally bound to allow the burial of her husband on the farm.

[23] It must be recorded that Mr Malusi, who appeared on behalf of the applicant, correctly did not pursue an assertion that the

application was based on section 6(5) of the Act but confined himself in terms of section 6(2) (d A) of the Act.

[24] The application was granted with no order as to costs.

____

JUDGE PRESIDENT F C BAM

For the applicant:

Adv Malusi Instructed by Malusi Attorneys in East London

For the respondent:

Adv Mcconnachie Instructed by Elliot Attorneys in Stuterheim

1 Erasmus: Superior Court Practice B1-95 Ploughmann NO v Pauw and Another 2006[6] SA 334 @ 341 E-F

1 Erasmus: Superior Court Practice B1-95

Ploughmann NO v Pauw and Another 2006[6] SA 334 @ 341 E-F

2 Section 1(1)

3 Both section 6(2) (d A) and the definition of ‘established practice’ were inserted into the Act by the Land Affairs General Amendment Act of 2001 93) section 1 of the Act

4 Nhlabathi v Fick 2003 [2] All SA 323 LCC para 24p 7

5 Mahlangu v Koos Dyker- unreported lcc97/06 para 16 p5

6 Dlamini and Another v Joosten and Others 2006[3] 7@par 24(SCA)

7 1999 [2] SA 268

8 ibid p 271 A-B

9 ibid p 271 D

10 Section 25

11 Agrico Masjinerie (Edms) BPK v Swiers 2006 [6] SA 334 (C) @ 341 E F