Thwala v Greyling and Another (LCC124/2009) [2009] ZALCC 8 (17 August 2009)

Thwala v Greyling and Another (LCC124/2009) [2009] ZALCC 8 (17 August 2009)

The court found that the deceased was residing on the farm Geluk at the time of his death, based on the presence of his belongings, regular weekend visits, and support from the applicant. The alleged agreement not to bury the deceased on the farm was void under section 25 of ESTA and not incorporated into any court order. The applicant, as an occupier, was entitled under section 6(2)(dA) of ESTA and established practice to bury his son on the farm. The respondents' evidence did not sufficiently rebut the applicant's claim of residence, and the statutory rights of occupiers prevailed.

Citation
[2009] ZALCC 8
Parties
Applicant: Nsizwana Joshua Thwala; Respondent: Greyling; Respondent: Umfuyo (Pty) Ltd
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
17 August 2009
Case Number
LCC124/2009
Procedural Posture
Urgent Application / Oral Evidence Following Urgent Application for Burial Order
Outcome
Application granted; burial on the farm permitted.
Judges
MIA
Legal Topics
Extension of Security of Tenure Act, Right of Burial on Land, Definition of Residence, Family Rights of Occupiers
Land and Property Civil Procedure Extension of Security of Tenure Act Right of Burial on Land Definition of Residence Family Rights of Occupiers

Case Brief

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Parties

Nsizwana Joshua Thwala

Applicant

Greyling

Respondent

Umfuyo (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Oral Evidence Following Urgent Application for Burial Order

Legal Issues

  1. 1 Whether the deceased was residing on the farm Geluk at the time of his death.
  2. 2 Whether there was a valid agreement not to bury the deceased on the farm.
  3. 3 Whether the applicant is entitled under ESTA to bury his son on the farm.

Ratio Decidendi

The court found that the deceased was residing on the farm Geluk at the time of his death, based on the presence of his belongings, regular weekend visits, and support from the applicant. The alleged agreement not to bury the deceased on the farm was void under section 25 of ESTA and not incorporated into any court order. The applicant, as an occupier, was entitled under section 6(2)(dA) of ESTA and established practice to bury his son on the farm. The respondents' evidence did not sufficiently rebut the applicant's claim of residence, and the statutory rights of occupiers prevailed.

Court Disposition

Application granted; burial on the farm permitted.

Orders

  • The applicant is permitted to bury his deceased son, Duma Phillip Thwala, at his family cemetery on the farm Geluk, Wakkerstroom, Mpumalanga Province.
  • The respondents are ordered to allow necessary vehicles, including mortuary vehicles, and mourners to attend the night vigil and burial.