Nkosi and Another v Buhrmann (1/2000) [2001] ZASCA 98; 2002 (1) SA 372 (SCA); 2002 (6) BCLR 574 (SCA) (25 September 2001)

Nkosi and Another v Buhrmann (1/2000) [2001] ZASCA 98; 2002 (1) SA 372 (SCA); 2002 (6) BCLR 574 (SCA) (25 September 2001)

The Supreme Court of Appeal held that the Extension of Security of Tenure Act does not confer on occupiers the right to bury family members on the owner's land without the owner's consent. The right to freedom of religion, as protected by the Constitution and the Act, does not include the right to appropriate burial land on another's property. The Act provides for rights of residence and use in connection with residence and agriculture, but burial rights would constitute a permanent diminution of ownership and amount to appropriation, which is not permitted. The Act recognises the sanctity of existing family graves and allows for their maintenance, but stops short of granting occupiers...

Citation
[2001] ZASCA 98
Parties
Appellant: Grace Chrissie Nkosi; Appellant: Joseph Mandla Nkosi; Respondent: Gideon Wilhelmus Buhrmann
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 2001
Case Number
1/2000
Procedural Posture
Civil Appeal / Appeal From Full Court of the Transvaal Provincial Division
Outcome
Appeal dismissed with costs.
Judges
Howie, Harms, Streicher, Mpati, Nugent
Legal Topics
Extension of Security of Tenure Act, Freedom of Religion, Property Rights, Burial Rights, Servitude, Bill of Rights Limitation
Land and Property Constitutional Law Extension of Security of Tenure Act Freedom of Religion Property Rights Burial Rights Servitude Bill of Rights Limitation

Case Brief

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Parties

Grace Chrissie Nkosi

Appellant

Joseph Mandla Nkosi

Appellant

Gideon Wilhelmus Buhrmann

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court of the Transvaal Provincial Division

Legal Issues

  1. 1 Whether an occupier under the Extension of Security of Tenure Act has the right to bury a family member on the owner's land without the owner's consent.
  2. 2 Whether the right to freedom of religion includes the right to appropriate burial land on another's property.
  3. 3 Whether the Act or the Constitution confers a right to burial on the land occupied without the owner's consent.

Ratio Decidendi

The Supreme Court of Appeal held that the Extension of Security of Tenure Act does not confer on occupiers the right to bury family members on the owner's land without the owner's consent. The right to freedom of religion, as protected by the Constitution and the Act, does not include the right to appropriate burial land on another's property. The Act provides for rights of residence and use in connection with residence and agriculture, but burial rights would constitute a permanent diminution of ownership and amount to appropriation, which is not permitted. The Act recognises the sanctity of existing family graves and allows for their maintenance, but stops short of granting occupiers...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The Registrar is directed to bring the contents of paragraph [57] regarding offensive race classifications in the Ermelo Cemetery by-law to the attention of the Director of Local Government of Mpumalanga and the Chief Executive Officer of the Local Authority in which Ermelo is situated.