Selomo v Doman (43/2013) [2014] ZALCC 1 (3 April 2014)

Selomo v Doman (43/2013) [2014] ZALCC 1 (3 April 2014)

The court found that, although the applicant had left the farm and his daughter's residence at the time of death was in Steilloop, the historic rights as a labour tenant and the continued occupation of his children on the farm, together with the established practice of family burials at the ancestral gravesite, entitled the applicant to bury his daughter on the respondent's farm. The court weighed the limited inconvenience to the respondent against the applicant's constitutionally protected rights to dignity, religious and cultural freedom, and found that the balance of justice and equity favoured granting the burial right. The court also noted that previous burials had been permitted...

Citation
[2014] ZALCC 1
Parties
Applicant: Elias Selomo; Respondent: Desmond Ettiene Doman
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
3 April 2014
Case Number
43/2013
Procedural Posture
Urgent Application / Final Determination After Urgent Hearing
Outcome
Application granted. The applicant is entitled to bury his daughter at the ancestral gravesite on the respondent's farm.
Judges
Spilg
Legal Topics
Extension of Security of Tenure Act, Burial Rights on Private Land, Labour Tenants Act, Constitutional Right to Dignity, Religious and Cultural Freedom, Waiver of Occupancy Rights
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Burial Rights on Private Land Labour Tenants Act Constitutional Right to Dignity Religious and Cultural Freedom +1 more

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Parties

Elias Selomo

Applicant

Desmond Ettiene Doman

Respondent

Procedural Posture

Urgent Application / Final Determination After Urgent Hearing

Legal Issues

  1. 1 Whether the applicant retains occupancy rights under ESTA sufficient to claim burial rights on the respondent's farm.
  2. 2 Whether the deceased daughter was residing on the land at the time of her death for purposes of section 6(2)(dA) of ESTA.
  3. 3 Whether historic rights as a labour tenant or associate under the Labour Tenants Act bolster the burial claim.

Ratio Decidendi

The court found that, although the applicant had left the farm and his daughter's residence at the time of death was in Steilloop, the historic rights as a labour tenant and the continued occupation of his children on the farm, together with the established practice of family burials at the ancestral gravesite, entitled the applicant to bury his daughter on the respondent's farm. The court weighed the limited inconvenience to the respondent against the applicant's constitutionally protected rights to dignity, religious and cultural freedom, and found that the balance of justice and equity favoured granting the burial right. The court also noted that previous burials had been permitted...

Court Disposition

Application granted. The applicant is entitled to bury his daughter at the ancestral gravesite on the respondent's farm.

Orders

  • The applicant is entitled to bury his daughter Caroline Celia in the burial site on the farm Pennsylvania 336, registration division LR in Limpopo Province on Saturday 23 March 2013.
  • No order as to costs.