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

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

IN RANDBURG

CASE NUMBER: LCC124/2009

Decided on: 17 August 2009

In the matter between:

NSIZWANA JOSHUA THWALA Applicant

And

GREYLING First Respondent

UMFUYO (PTY) LTD Second Respondent

JUDGEMENT

MIA AJ:

[1] The above matter came before me as an urgent application on 14 July 2009. The applicant sought an order to bury his deceased son on the farm Geluk, Wakkerstroom in the Mpumalanga province and to allow the mortuary vehicles and mourners to attend the night vigil on the farm. By agreement the matter was referred for oral evidence to determine firstly, whether the deceased had been residing on the farm and secondly, whether there had been an agreement not to bury the deceased on the farm. On the 22 May 2009 I granted an order in favor of the applicants to permit the burial of the deceased. The reasons for my order appear from this judgement.

[2] The applicant, Mr. Nsizwana Joshua Thwala, is the father of the deceased, Duma Phillip Thwala (hereafter the deceased). The applicant currently resides on the farm Geluk which is owned by the first and second respondents. The applicant testified that the deceased had resided on the farm with him and that he had secured temporary accommodation for the deceased while he was schooling in Wakkerstroom as there was no senior secondary school close to the farm Geluk. He attended school in Wakkerstroom during the week and returned to the applicant’s house on Fridays. The deceased was enrolled and completed tuition for his grade 12 exams in 2007 and wrote supplementary grade 12 exams in 2008 for subjects he had failed. The applicant testified that the deceased then took driving lessons in Wakkerstroom in May or June 2009. The applicant testified that the deceased’s music system, his wardrobe

and clothes were still on the farm.

[3] Further details about the deceased furnished by the applicant were that he took driving lessons in Wakkerstroom in May or June 2009. He kept his music system, his wardrobe and clothes at home on the farm and would come home on weekends to do his laundry and collect money for rent. The applicant had been ill and received treatment at Volksrus hospital. Upon his discharge he returned home to the farm. He died shortly thereafter. The applicant approached the farm manager to request permission to bury the deceased on the farm, Geluk. The farm manager advised that the deceased could not be buried on the farm. According to the applicant, there was never an agreement not to bury his son on the farm. As there was a refusal to permit the burial, he approached this court to seek an order permitting him to bury the deceased on the farm.

[4] Mr. Edison Thatana and Mr. Sifiso Ntanzi, from the Department of Land Affairs corroborated the applicant’s version that there was no agreement and that they were called in to assist as there was no permission given to bury the deceased. Neither of these witnesses were present when the applicant initially approached the farm manager for permission to bury the deceased.

[5] Mr. Ambrose Ngwenya, the first witness for the respondent testified that he had worked for the Greyling family for 23 years and is currently employed as a farm manager. He supervises the foremen on the respondent’s farms. He testified that he knew the deceased having seen him on the farm and he also met the deceased whilst he was studying in Wakkerstroom. He indicated that it was a number of years since he had seen the deceased.

[6] Mr. Ngwenya testified that he believed the deceased wanted to obtain a license to enable him to drive taxis according to the foreman, Mr. Mabuza. He believed the deceased would have been seen by persons doing patrols and watching over the livestock and they would have seen the deceased enter the farm if he had come on foot or per motor vehicle. He testified that the deceased was on the farm for his grandmother’s funeral but he did not return thereafter. Mr. Ngwenya testified that Mr. Mabuza the foreman on the farm Geluk commented that he had not seen the deceased on the farm.

[7] According to Mr. Ngwenya, the agreement was that the applicant would hold the night vigil on the farm and bury the deceased elsewhere. The applicant then returned the following day and was again informed that the owner was not present and the deceased could not be buried on the farm. He was requested to hand a letter to Mr. Thwala to this effect.

[8] Regarding the discussion at the police station Mr. Ngwenya testified he met Mr. Ntanzi at the police station, who enquired about the burial. He informed Mr. Ntanzi about the agreement where after Mr. Ntanzi insisted that the burial would not be prevented from occurring on the farm. He, Mr. Ngwenya then handed over the letter to the applicant. He testified that there were no policemen present as indicated by Mr. Ntanzi. He only observed sergeant Mthembu nearby.

[9] The second witness for the respondent, Mr. Simon Mabuza is a foreman on the farm Geluk. He testified that the deceased, known to him as “Swelani”, as well as the rest of the Thwala family were known to him. The deceased attended school until standard 5 and then went to another school. The deceased has been away from the farm for some time and he last recalls seeing him in December 2007.

[10] Mr. Mabuza testified that they live the length of six football fields, 600 meters, away from him and despite the distance he could see onto the property of the applicant and knew what was happening at the Thwala homestead. If the deceased was standing on the farm around the applicant’s home he would have seen him from his homestead.

[11] He testified that he had many people who worked under him, reporting to him regarding the activity on the farm at the meetings with the patrols and persons working on the farm and regular reports were made. According to Mr. Mabuza, Mr. Ngwenya informed him that the deceased was no longer on the farm and there were reports that the deceased was in Johannesburg looking for work. Mr. Mabuza was not able to comment on why the deceased’s belongings including his clothes and bed was still at the applicant’s homestead. He denied the suggestion that the deceased was dependant on his father but could not support his view with evidence.

[12] The third witness, sergeant Mthembu, testified that she was present when Mr. Ntanzi spoke to Mr. Ngwenya as she was close to where they were talking. She overheard Mr. Ngwenya say they had reached an agreement and that the applicant confirmed that there was an agreement. She also testified that Mr. Ntanzi insisted that the burial will take place on the farm.

[13] Counsel for the applicant averred that the applicant made out a case for burial in that there was an established practice of burial on the farm and that the deceased was proved to be residing on the farm as reflected in the applicant’s papers and the evidence of the applicant. He argued that the applicant’s version be accepted with regard to the residence of the deceased and that the applicant approaching the Department of Land Affairs for assistance herein and the launching of the present application indicates that there was no agreement.

[14] Counsel for the respondent argued that there were material contradictions in the applicant‘s evidence and that it should be rejected and the evidence of the respondent’s witnesses be accepted. Mr. Dreyer argued that the evidence of the farm manager and the foreman showed the deceased was not residing on the farm when he died as he was in Wakkerstroom seeking a driver’s license so as to seek employment in Johannesburg. Mr. Dreyer also argued that there was an agreement which the applicant and the farm manager had concluded which allowed the last rites to be performed on the farm but that the burial would be elsewhere. He referred to the evidence of sergeant Mthembu as an independent witness with no interest in the matter to support the view that there was an agreement.

THE

AGREEMENT

[15] The applicant approached the farm manager to request permission to bury the deceased. The farm manger’s response that he could perform the night vigil on the farm and see where to bury the deceased on the Sunday reflects only that it was agreed that the night vigil be held on the farm. The applicant’s return the following day with Mr. Ntanzi supports the version that there was no agreement that the deceased be buried on the farm or not.

[16] Sergeant Mthembu’s evidence that the applicant agreed that there was an agreement in response to a question posed by Mr. Ntanzi does not give an indication as to what the content of the agreement was. It appears that there was an agreement regarding the night vigil, however the applicant returning the following day to seek permission for the burial indicates an absence of an agreement about where the deceased be buried.

[17] In the event that there was an agreement, the applicant would then be waiving his right to bury a deceased member of his family as he is entitled to do in terms of section 6(2)(dA) of ESTA. The applicant’s waiver of this right is void as provided by section 25 of ESTA which reads as follows:

[doja62y1997s25] s25 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 a 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.

(3)…

If there was an agreement this court is not bound by the agreement in so far as it seeks to limit the rights of the applicant as provided in section 6(2)(dA) of ESTA. The agreement if there was one is void as provided by section 25(1) and has not been incorporated into any order of court.

RESIDENCE OF THE

DECEASED

[18] The legislation does not define the word residence and regard is thus had to the case law. In Zwyssig v Zwyssig 1997(2) SA 467 @471 C-E Van Schalkwyk J noted that

“It has repeatedly been emphasized that it is impossible to lay down a definition of the concept of residence. There are a number of factors which must be taken into account, each of which may go some way towards proving that residence has been established. In a particular case, the absence of one or more of these factors may be more than compensated by the presence of others. Some factors are more important than others. The duration of the stay, the acquisition of property and the procurement of employment are each obviously more significant than, for instance, the frequency of visits, the number of friends or acquaintances resident within the area, or the amount of money spent on each visit,….”

[19] Van Schalkwyk J refers in the above matter to the definition of Bristowe J in Robinson v Commission of Taxes 1917 TPD 542 at 547-8 where the meaning “residence” is discussed as follows:

“There are…certain considerations which may afford a guide to its interpretation. In the first place, it is not synonymous with

domicile. Nor is it necessarily permanent. Nor is it exclusive. But on the other hand a mere passer-by or casual visitor is not a resident, although in a sense he may be said to reside during the period of his visit. Perhaps the best general description of what is imported by residence is that it means a man’s home or one of his homes for the time being, though exactly what period or what circumstances constitute home is a point on which it is impossible to lay down any clearly defined rule. Clearly physical presence for a prolonged period would constitute residence. And conversely if physical presence is entirely wanting even though an establishment is maintained for a man’s family, residence would as a rule be negatived… Again the maintenance of an establishment coupled with intermittent or occasional dwelling is sufficient to constitute residence… It appears therefore that if a man sets up an establishment in a country and lives there at intervals he is resident in that country, however many similar residences he may have elsewhere.”

[20] In the unreported case of John Ernest Robertson v Nicolaas Boss LCC 6R/1998 Gildenhuys J, notes as follows at paragraph 5 of the judgement:

“ Die word “woon” ( In Engels, “reside”) kan verskeie betekenisse he. Waar die word in ‘n wet gebruik word, hang die betekenis af van die bedoeling van die Wetgewer1. Regter Galgut stel dit in Tick v Broude and Another2 soos volg:

“The word ‘residence has not acquired any technical meaning and is used in law with many shades of meaning ranging from mere physical prescence to domicile… All the above cases show that ‘residence’ is a word which varies in meaning according to the circumstances under which it is used. In most cases it will be a question of degree.”

[21] In Barrie NO v Ferris and Another3 Baker J at page 714F attaches the following meaning to the word ‘reside”:

“Reside means that a person has his home at the place mentioned. It is his place of abode, the place where he sleeps after the work of the day is done… It does not include one’s weekend cottage unless one is residing there…The essence of the word is the notion of a “permanent home”

[22] In the area of tax law a definition of the word “ordinarily resident” is discussed in relation to tax payable. In Cohen v CIR (13 SATC 362) at 365, Schreiner JA refers to the English case I.R.C. v Lysaght (1928, A.C. 234 at p. 249), where Lord Warrington of Clyffe said:

“I have reluctantly come to the conclusion that it is now settled by authority

that the question of residence or ordinary residence is one of degree, that there is no technical or special meaning attached to either expression for the purpose of the Income Tax Act, and accordingly a decision of the Commissioners on the question is a finding of fact and cannot be reviewed unless it is made out to be based on some error in law, including the absence of evidence on which such a decision could properly be founded.”

[23] In the CIR v Kuttel 54 SATC 298 at 304 -305, Goldstone JA referred to the English case R v Barnet London Borough Council: Ex parte Shah and Other Appeals [1982] 1 All ER 698(CA) (at 704c-d), where Lord Denning MR said that the natural and ordinary meaning of ‘ordinarily resident’ was,

‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’.

[24] The above view of the natural and ordinary meaning of “residence” was approved by the House of Lords on appeal in Shah v Barnet London Borough Council and Other Appeals [1983] 1 All ER 226(HL) at 234d-f, where Lord Scarman said the following:

“I agree with Lord Denning MR that in their natural and ordinary meaning the words mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’ ”.

[25] It follows from the above that the question of residence is a determination which is made having regard to the particular facts before the court and having regard to the intention of the legislature. It is not necessary to be physically present at the residence all day each day to be residing in the particular premises. The location of the persons belongings, where their social engagements occur, frequency of visits or absences are all indicative of a whether a person is residing in a particular property.

[26] In the present case, it was not disputed that the deceased was residing on the farm and accommodated in Wakkerstroom whilst he was attending secondary school as it was convenient in terms of travel and distance or that the deceased’s belongings are still at the applicant’s homestead. The deceased returned home to attend the funerals of family members and was supported by the applicant.

[27] The purpose of ESTA as indicated in the preamble is to provide security of tenure to occupiers and to regulate the conditions of residence on certain land. The rights of occupiers are listed in section 6 of ESTA, which provides:

Section 6 Rights and duties of occupier

(1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly.

(2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right-

(a) to security of tenure;

(b)…

(c)…

(d) to family life in accordance with the culture of that family: Provided that this right shall not apply in respect of single sex accommodation provided that hostels are erected before 4 February 1997.

(dA) to bury a deceased member of his or her family who, at the time of that person's death, was residing on the land on which the occupier is residing, in accordance with their religion or cultural belief, if an established practice in respect of the land exists;

(e)…

(f)…

(4)…

(5) The family members of an occupier contemplated in section 8 (4) of this Act shall on his or her death have a right to bury that occupier on the land on which he or she was residing at the time of his or her death, in accordance with their religion or cultural belief, subject to any reasonable conditions which are not more onerous than those prescribed and that may be imposed by the owner or person in charge.

[28] The above section provides for security of tenure of the applicant as well as the right to family life as per sections 6(2) (a) and 6(2) (d) of ESTA. The applicant is at present an occupier on the farm and the deceased derived his occupation on the farm from the applicant. It was not averred that the applicant’s or the deceased’s residence was lawfully terminated.

[29] The deceased was residing on the farm and was temporarily in Wakkerstroom during his secondary school career and returned home regularly on weekends. The deceased wrote supplementary examinations early in 2008 and then enlisted for driving lessons and driving examinations in Wakkerstroom and Volksrus respectively. According to the applicant, the deceased was still residing on the farm and was temporarily accommodated in Wakkerstroom to attend driving lessons. The deceased’s music centre, wardrobe, his bed and his clothes were still on the farm.

[30] According to the respondent the deceased was not residing on the farm. He had been seen at a house in Wakkerstroom and that is where he resided. He had not been seen on the farm by the manager, the foreman or the night patrol or herdsmen for the past year except for the attendance of his grandmother’s funeral. The community believed that the deceased was looking for employment in Johannesburg with his uncle in the taxi industry and that he no longer resided on the farm.

[31] It is possible that the deceased was seeking employment to supplement the money he received from the applicant on whom he relied for accommodation, food and tuition expenses. The respondent’s evidence that the deceased was not seen on the farm does not detract from the security of tenure he enjoyed through the applicant nor lead to the conclusion that the deceased was not residing on the farm, having regard to the intention of the legislature and the definition of residence discussed in the case law above.

[32] The evidence tendered that the deceased was taken from Wakkerstroom to the hospital in Volksrus does not prove the deceased’s was not residing on the farm Geluk. The fact that a person is on holiday or visiting a different town and is transported to the nearest hospital does not change the fact of the person’s permanent residence. The fact that a student resides in Johannesburg but is studying in Cape Town and is taken to Groote Schuur hospital rather than Johannesburg General Hospital does not change the fact of the student’s permanent residence in Johannesburg.

[33] In view of the all the above I come to the conclusion that the probabilities favor a finding that the deceased resided on the farm and is entitled both in terms of the established practice on the farm and indeed in terms of section 6(2)(dA) to be buried on the farm Geluk. The reliance placed on an agreement not to bury the deceased on the farm is void in terms of section 25 of “ESTA” and this court cannot be bound by such an agreement. The applicant is thus entitled in terms of the rights he enjoys in terms of section 6(2)9dA), as an occupier to bury his deceased son on the farm, Geluk. I accordingly order as follows:

ORDER:

[34] 1. That the applicant is permitted to bury his deceased son, Duma Phillip Thwala at

his family cemetery on the farm Geluk, Wakkerstroom, Mpumalanga Province.

2. The first respondent and second respondents are ordered to allow the necessary vehicles including that of mortuary, and mourners to attend the night vigil and burial of Duma Phillip Thwala.

3. No order as to costs.

____

Shanaaz Mia

Acting Judge of the Land Claims Court

APPEARANCES:

Counsel for Applicant: Mr. Mmolawa

Instructed by Manzini Madlala Attorneys

Counsel for Respondents: Mr. Dreyer

Instructed Cox & Partners Attorneys

1 See Buck v Parker 1908 TS 1100 on 1104

2 1973 (1) SA (T) at 469E

3 1987 (2) SA 709 ( C )

1