Held at R A N D BURG on 18 August 2003                                     C A S E N U M B E R : LCC 63/03
Before G I L D E N H U Y S J

In the case between:

ALPHEUS MATLOU                                                                                       Applicant


BEN COHEN                                                                                         Respondent


G I L D E N H U Y S J:

[ 1]   The applicant in this matter resides on the farm Leeuwpoort, in the Limpopo Province. The

farm is owned by the respondent. The applicant is an "occupier", as defined in the Extension of

Security of Tenure Act, Act 62 of 1997 (herein referred to as "ESTA").

[2]    The applicant's daughter recently passed away. She was an adult at the time o f her death.

The applicant applied, on an urgent basis, for inter alia the following relief:

        ''3.    That the applicant be allowed to bury his daughter, Christinah Matlou on Respondent's farm,
                Leeuwpoort 554KQ, Limpopo Province on the farm graves; and

        4.      That the Respondent be ordered to open access gates to the grave site on the farm Leeuwpoort
                554KQ; and

        5.      That the respondent is ordered to pay funeral costs to Saffas Funeral Supplies for storage of the
                corpse of the deceased, Christinah Matlou from the 2 of August 2003 to the date when same will
                be released therefrom.

I will refer to the above prayers as the applicant's three prayers.

[3]     The applicant claims the right to bury his daughter on the farm by virtue of section

6{ 2)(dA) of ESTA. In terms of that subsection the applicant has the right, balanced with the rights

of the owner of the farm -

        "(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;"

It is an essential requirement for the right to bury a deceased family member on the farm that the

family member must, at the time of her death, have been residing on the farm.

[4]   The only indication that the deceased, at the time of her death, was residing on the farm is

contained in the founding affidavit of the applicant. It reads as follows:

        "I am presently staying on Respondent's farm, in a house allocated to my family by him, together with my
        wife and eight children; 4 (four) of which are still schoolgoing children/'

The respondent, in his affidavit, answered as follows:

        "Dit is korrek dat die Applikant se 4 skoolgaande kinders by horn woon. Die ooriedende het nie ten tye
        van haar dood, of voor dit, by die Applikant gewoon nie, maar wel in die Rooiberg lokasie."
        (Verbatim quote)

[5]   In support o f his denial that the deceased lived on the farm, the respondent filed an affidavit

by one Mr J Nawai. Mr Nawai seems to be an employee o f the Rooiberg municipality. The

affidavit reads as follows:

        "Hiermee verklaar ek dat ek bekend is met Alpheus Phiri Matlou (die applikant) en sy dogter Christinah
        Matlou wat (nou oorlede is).

        Hulle het te Rooiberg Lokasie gewoon omtrent twee jaar. Hulle is nog steeds (sic) woonagtig in Rooiberg
        en dat hulle huis nog steeds (sic) tn Rooiberg is.

        Ek is in beheer van al die mense te Rooiberg Lokasie en ek is bekend met almal wat daar woon of gewoon
        {Verbatim quote)

The applicant seems to have two dwellings: the one on the farm and the other at Rooiberg. The

deceased, according to the respondent and Mr Nawai, resided in the Rooiberg house.

[6]    The respondent filed a further supporting affidavit by his farm foreman. Mr S Madupe.

According to Mr Madupe's affidavit, the applicant owns a house in the Rooiberg location; the

deceased took ill at Rooiberg, whereafter she died in hospital. The affidavit does not take the

matter much further.

[7]       The applicant delivered no replying affidavit. He did not utilise the opportunity to deal with

the respondent's allegation that the deceased resided in Rooiberg at the time of her death. The

respondent's answering affidavits, particularly in the absence of replying affidavits, raise real

disputes of fact.

[8]       In terms o f the well-known case of Plascon-Evans Paims Ltd v Van Riebeeck Paints (Pty)
Ltd the Court must, in motion proceeding where there are conflicting factual allegations, decide

the issues on the facts alleged by the respondent, together with the facts alleged by the applicant

which the respondent did not deny. The applicant did not request that the issue o f where the

deceased resided at the time of her death, be referred to evidence. Mr Shirinda, for the applicant,

submitted that there is enough on the papers before m e to enable m e to find that the deceased

resided on the farm.

[9]       The applicant alleged in his founding affidavit:

            "The Respondent is fully aware that I have no other place to stay except on his farm, hence, I have
           nowhere where I can bury my daughter."

In the light o f this statement, it would have been prudent for the applicant to have replied to the

respondent's answering allegation that he has a house in the Rooiberg location.

[ 10]      The respondent answered the allegation that the applicant has nowhere where he can bury

his daughter, as follows:

           "3.2     Daar is 2 plekke waar die Applikant sy dogter kan begrawe. Eerstens is daar 'n staatsbegraafplaas
                    by Kromdraai (sowat 30 kilometer vanaf Leeuwpoort) waar die Applikant sy dogter gratis, op
                    staatsonkoste, kan begrawe. Tweedens, kan die Applikant haar by Lebotwane begrawe maar
                    aldaarmoet *n bedrag van R350.00 om n persoon te begrawe aan die stamhoof betaal word. Die
                    stamhoof sien dan om tot instandhouding van die grafte van persone wat aldaar begrawe is,

           3.3      'n Paar maande gelede is die oorledende (Christinah Matlou) se eie kind ook oorlede. Die
                    oorledende (en die Applikant) het daardie kind by Lebotwane begrawe.

1           19S4 (3)SA 623 (A) at 634H-I.

        3.4      Ek het gedink dat die Applikant sy dogter by haar eie kind sal vvil begrawe. Om daardie rede en
                 omrede ek die Applikant as 'n goeie en bevredigende werker beskou het, het ek die Applikant
                 aangebied om R350.00 aan horn te betaal sodat hy sy dogter by haar wy le kind by Lebotwane kan

The applicant did not reply to these allegations.

[11]    The offer by the respondent to contribute R350.00 towards funeral expenses is not, as

suggested by Mr Shirinda, an indication that the deceased resided on the farm or that the

applicant is entitled to bury her on the farm.

[12]       Lastly, on this issue, Mr Shirinda submitted that the entire drift of the applicant's

founding affidavit is to the effect that the deceased resided on the farm. I do not find that to be

the position. Even if it was, the premise is explicitly denied by the respondent.

[13]    I conclude that the applicant did not establish that his deceased daughter resided on the

farm at the time of her death. For that reason, section 6(2)(dA) o f ESTA does not entitle the

applicant to bury her on the farm. Consequently, the first of the applicant's three prayers cannot

be granted. The respondent submitted several other grounds on which that prayer must be

dismissed. By reason o f my conclusion on the residence issue, I need not consider the other


[14]   The second of the applicant's three prayers concerns access to the grave site on the farm.

If the applicant wants access to the site in order to dig a new grave for the deceased, he is not

entitled to it, because he is not entitled to bury her there. If the applicant wants access to the

existing graves, section 6(4) of ESTA is relevant. It reads:

       "Any person shall have the right to visit and maintain his or her family graves on land which belongs to
       another person, subject to any reasonable condition imposed by the owner or person in charge of such land
       in order to safeguard life or property or to prevent the undue disruption of work on the land"

There is no allegation in the founding affidavit that the other graves on the farm are family graves

of the applicant. Accordingly, the second prayer cannot succeed.

[ 15]   In the last of his three prayers, the applicant asked for an order that the respondent must

pay the funeral parlour costs for the storage of the corpse of the deceased until it gets released for

burial. There is no basis for such an order. Apart from anything else, it is in essence a prayer for

damages. A court cannot gram damages in motion proceedings.

[16]    There are no reasons why the court should, in this instance, depart from its usual practice

of not making cost orders.

[ 17]   For the reasons set out above, the application is dismissed. N o order is made as to costs.

For the applicant:

Nkuzi Land Right Development

For the respondent:


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