Protocol for Burial on Farms
South African farmers traditionally buried members of their own family on the farm. Farm workers and their family members were also often buried on the farm. There were strong cultural and religious reasons why people wanted to be buried near their families and ancestors. Times have changed, however, and the practice of burying people in family graveyards on the farm has to a large extent disappeared. However, for African people in particular, there are still very specific cultural and financial reasons for burying loved ones on the farm where they had lived or where, in some instances, their ancestors were laid to rest. In African culture it is very important that a person be buried according to the correct burial rites. If not, it is believed that the person’s status in the life hereafter could be affected and that they might even be punished by their ancestors. Such a person might also come back to haunt the living. These burials could take quite a long time and could include aspects such as a night vigil, the slaughter of a cow and, in some cases, bringing back to the home some soil taken from the grave site (home-bringing ritual).
Given issues such as security, production and international phyto-sanitary standards, it has become problematic to allow burials on farms. There are also land owners who fear that farm burials could later result in land claims in respect of the farm. This fear is however misplaced as the cut-off dates for both restitution and labour tenant claims have passed.
Legislation relating to burial on farms
The Act (Extension of Tenure Security Act, Act 62 of 1997) initially made no provision for burials on farms – only for visiting existing family graves. In 2002 the Act was amended to allow for burial on a farm in certain instances, namely where the deceased had been a long-term occupier or where the person had at the time of his/her death been an occupier on a farm where it was customary to allow burials. Under these circumstances the land owner is obliged to permit the burial although he/she may set reasonable conditions for such burial. The land owner is also free to allow burials even where the Act does not require it, in which case it would be his/her choice to do so.
Graves and burials are regulated in urban areas by municipal regulations, which could differ from one municipality to the next. The provisions of the Extension of Tenure Security Act must be read in conjunction with any municipal ordinance relating to burials where this is applicable to farm land. The Mogale City ordinance on graveyards, for instance, stipulates as follows: “Section 51: Burials on farms:
No further burials will be permitted on farms where the municipality has established rural cemeteries for such purpose.Existing farm cemeteries will be deemed as closed as from 1 January 2006 and all burial needs emanating from such farmlands will be directed to the public cemeteries that will be allocated by the Municipality”.
It is also important to note that in terms of the Registration of Births and Deaths Act (Act 51 of 1992), no body may be buried before a burial order had been issued by the Police or the Department of Home Affairs.
Conflict could arise with regard to burials and visiting of graves on farms due to the following:
1. Lack of information regarding the provisions of the land.
2. Fears regarding the relationship between graves and land claims.
3. Security considerations.
4. Cultural differences (including those relating to religion/faith).
5. Lack of communication between the land owner and the people who wish to bury someone or visit the graves.
6. A lack of clear rules as to access, numbers, duration of ceremony, etc.
To land owners:
1. Every farmer association should acquaint itself with the municipal ordinances relating to burials in their area;
2. Statutory provisions stipulating which occupiers have the right to be buried on a farm where they lived must once again be clearly communicated;
3. Land owners must determine whether, over time, an existing practice regarding farm burials had in fact been established on the particular farm;
4. Clear access and other arrangements must be in place, for example information as to how long in advance a land owner must be contacted, when and along which route people may access the farm, how many people would attend, how long the ceremony would take, where the burial will take place, etc. All these arrangements must be reasonable and preferably negotiated and reduced to writing.
To occupiers who wish to bury someone or visit graves:
5. Contact the land owners or person in charge as soon as possible to discuss the matter;
6. Make sure that there indeed exists an established practice of burial on the farm and that the person, at the time of his/her death, had in fact been an occupier or a long-term occupier (older than 60 years and living on the farm for longer than 10 years);
7. Be aware of the fact that, according to the law, an owner may set reasonable conditions, such as where the person would be buried, which access routes would be followed, approximately how many people would attend, etc.
8. Be aware that in the particular municipal area there may be laws that determine how and where burials must take place;
9. Ensure that the person’s death is reported in full accordance with the law.
This is one of the thorny issues between the owners of farms and occupiers of farms in South Africa. On the one hand, land owners feel that as owners of land they have a right to enjoy undisturbed use and ownership of their land. On the other hand, occupiers feel that as occupiers of land they have a right of security of tenure including the right to bury their deceased family members on land where they reside.
Both the land owners and occupiers are protected by s 25 of the Constitution. As a result of s 25(9) of the Constitution, an Extension of Security of Tenure Act 62 of 1997 (ESTA), was promulgated in order to specify and regulate the rights and duties of occupiers and land owners.
In order for an ‘occupier’ to enjoy protection under s 6(2)(dA) of the ESTA, he or she must establish on the balance of probabilities that –
• he or she is an ‘occupier’ on the farm where he or she intends burying the deceased on;
• the deceased was a member of his or her family;
• the burial sought would be in accordance with his or her religious and/or cultural beliefs;
• the deceased was residing on land, which the occupier resided at the time of death of the deceased; and
• an established practice on land exists to bury deceased family members.
It is clear that in terms of s 6(2)(dA) of ESTA, the burial of the deceased on land must be done according to an occupier’s religion or culture. For example the direction that the deceased’s body must face on burial, the depth and size of the grave in the ground, the nature of the ceremony that accompanies the burial, and so on, must be in accordance with an occupier’s religious or cultural beliefs.
It is very important to note that the landowner (or person in charge of the land) may not restrict the nature of the burial including the ceremony to be something less than or different from what the religion and cultural demands. However, the qualification of the burial with regard to religion and culture offer protection to both land owner an occupier. The land owner is protected in the sense that an occupier has to practice his or her culture and religion in a reasonable manner.
The most important decision to date on farm burials is the Appeal court judgement in the case of M Dhlamini and another v PJ Joosten and others, which was decided on 30 November 2005. In the judgement the Appeal Court overturned a finding by the Land Claims Court that the Dhlamini family were not entitled to bury their wife and mother on Mr Joosten’s farm. Although the deceased had already been buried elsewhere, the family wanted to exhume her body and rebury her on the farm. The previous landowner had allowed burials on the farm and the present owners had also on occasion allowed members of the families residing on the farm to be buried there. In 2002 however, the present owner informed the occupiers that no more burials would be allowed to take place on the farm. The deceased had at the time of her death resided on a neighbouring farm, belonging to the brother of the respondent. Although the farms had different title deeds, they were farmed as a unit and the deceased had at one stage resided on the Respondent’s farm. In this regard the Court found that the family had the right to bury the deceased on the farm of the Respondent’s brother where she had resided at the time of her death. The Court held that a landowner had no right to unilaterally stop an established practice of burial. Another important and more recent case is that of NJ Thwala v Greyling and Umfoyo (Pty) Ltd, which was decided in 2009 by the Land Claims Court. This was an urgent application to allow a night vigil and burial to go ahead on a farm in the Wakkerstroom district The deceased was the son of an occupier who resided on the farm Geluk. The son was at school in Wakkerstroom and only spent weekends on the farm. The Court had to decide whether or not the deceased resided on the farm at the time of his death. In this respect the Court found: “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.” The Court therefore held that the deceased did reside on the farm, even though he only spent weekends there and that his family did have the right to bury him on the farm.
Source: Thabiso Mbhense BIur LLB (UKZN) is an attorney at the Legal Resources Centre in Johannesburg.