burial rights ito ESTA
Posted 1 July 2006

Section 6(2)(dA) of Extension of Security of Tenure Act [ESTA], 62 of 1997  confers upon an 'occupier' the right to bury a deceased family member on the 'land' on which both the deceased and the 'occupier' had been residing at the time of the death of the deceased. An occupier's burial rights in terms of this section cannot be unilaterally withdrawn because such an entitlement would defeat the purpose of the section.

An occupier has, by virtue of the provisions of s 6(1) of the Act, right of residence which is a real right in land. The occupier's burial rights is an incident of that real right or residence and is in the nature of a personal servitude over the land. These rights, the right of residence and burial rights, can be claimed only against the registered owner of the land. The court held that ‘land’, from the context in which the word 'land' is used, could only refer to land registered in the name of the owner.

The court also held that 'established practice' relates to 'people residing on the land' and not to ‘particular families’.

DLAMINI AND ANOTHER v JOOSTEN AND OTHERS 2006 (3) SA 342 (SCA)