Land Claims Court boosts farm occupiers' tenure rights

11 March 2017 - 11:00 By TMG Digital
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Madgelena de Wee will be laid to rest on Saturday at her family’s ancestral graveyard on Middel-Plaas in the Northern Cape.

There appears to be nothing unusual about this – except this decision‚ made by Acting Judge Siphokazi Poswa-Lerotholi in the Land Claims Court in Randburg on Thursday‚ is an important one for farm residents in terms of the realisation of tenure security.

Lawyers for Human Rights (LHR) sought a declaratory order on behalf of the Mampies family for the right to bury De Wee on Middel-Plaas‚ a farm on which the family does not live.

Since the early 1980s the Mampies and other families working for the landowner‚ JP Engelbrecht‚ who owned three farms adjacent to each other - Onder-Plaas‚ Middel-Plaas and Bo-Plaas – collectively called the Montina farms.

They used and occupied the Montina farms as a single unit‚ grazing their livestock and burying their dead. The Mampies family lived on Onder-Plaas for generations.

The Mampies used Onder-Plaas to bury their dead but when the ancestral graveyard was full‚ they established a gravesite on Middel-Plaas‚ with the consent of the owner.

Then in 2015 Sandvliet Boerdery‚ the respondents in the urgent application‚ bought Middel-Plaas and Bo-Plaas. When De Wee died on February 22 this year‚ the family asked Sandvliet Boerdery for access to Middel-Plaas‚ but the respondents threatened to bring in the police to stop the Mampies from burying her in their ancestral graveyard.

Sandvliet Boerdery argued that De Wee’s family did not have the right to bury her at the Middel-Plaas ancestral graveyard because she had not been living on that farm.

The Respondent based its argument on the Supreme Court of Appeal (SCA) judgment of Dhlamini and Another v PJ Joosten and Others‚ which adopted a strict interpretation of the right to bury in terms of section 6(2)(dA) of Extension of Security of Tenure Act 62 of 1997 (ESTA) and restricted the understanding of land to its cadastral descriptions‚ said an LHR statement.

The Mampies family argued that in light of their historic and continued land usage and occupation on the Montina farms‚ a right exists in terms of ESTA and the common law of servitudes to continue to bury their family members at their ancestral gravesite on Middel-Plaas and that the practice is a long-standing one with permission of previous landowners.

The SCA Dhlamini judgment had far-reaching consequences for farm residents and is a stumbling block to their realisation of tenure‚ said the LHR. The Mampies ruling by Poswa-Lerotholi in the Land Claims Court balances farm occupiers’ rights in terms of the provisions of ESTA.

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