Tshivhula v Koedoepan Boerdery CC and Another (LCC15/07) [2007] ZALCC 4 (6 March 2007)

Tshivhula v Koedoepan Boerdery CC and Another (LCC15/07) [2007] ZALCC 4 (6 March 2007)

The court found that the applicant was not entitled to compel the respondents to permit burial on either portion of the farm. There is no common law principle to force a landowner to grant burial rights against their will. The Extension of Security of Tenure Act provides burial rights only to family members of an occupier who resided on the land at the time of death. The applicant failed to provide sufficient evidence that the deceased was residing on the farm at the time of her death, and thus did not meet the statutory requirements. The application was dismissed in its entirety, except for the urgency aspect, and costs were awarded against the applicant in respect of the first respondent.

Citation
[2007] ZALCC 4
Parties
Applicant: Aifheli Samuel Tshivhula; Respondent: Koedoepan Boerdery CC; Respondent: Roelof Jacobus Venter
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
6 March 2007
Case Number
LCC15/07
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed in its entirety except for the urgency aspect; costs awarded against the applicant in respect of the first respondent.
Judges
F C Bam
Legal Topics
Burial Rights, Extension of Security of Tenure Act, Occupier Definition, Urgent Application Procedure
Land and Property Civil Procedure Burial Rights Extension of Security of Tenure Act Occupier Definition Urgent Application Procedure

Case Brief

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Parties

Aifheli Samuel Tshivhula

Applicant

Koedoepan Boerdery CC

Respondent

Roelof Jacobus Venter

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to compel the respondents to permit the burial of his mother on either portion 3 or 4 of farm Coniston 699.
  2. 2 Whether an established practice or legitimate expectation can override the owner's refusal to permit burial.
  3. 3 Whether the deceased qualified as an 'occupier' under the Extension of Security of Tenure Act and was residing on the land at the time of her death.

Ratio Decidendi

The court found that the applicant was not entitled to compel the respondents to permit burial on either portion of the farm. There is no common law principle to force a landowner to grant burial rights against their will. The Extension of Security of Tenure Act provides burial rights only to family members of an occupier who resided on the land at the time of death. The applicant failed to provide sufficient evidence that the deceased was residing on the farm at the time of her death, and thus did not meet the statutory requirements. The application was dismissed in its entirety, except for the urgency aspect, and costs were awarded against the applicant in respect of the first respondent.

Court Disposition

Application dismissed in its entirety except for the urgency aspect; costs awarded against the applicant in respect of the first respondent.

Orders

  • The application against the first respondent is dismissed with costs.
  • No order as to costs is made in the application against the second respondent.