Abstract
Burying deceased family members in familial gravesites close to the homestead of the living has been a well-established practice in Southern Africa for many centuries. In terms of indigenous cultural and religious norms proximate burials are essential for enabling ancestors to commune amongst themselves and with their living descendants. In the colonial and apartheid eras many African communities lost ownership of their land. One of the consequences was that they needed permission from white landowners to continue with burials in established gravesites. In the democratic era the legislature sought to reintroduce a burial right for rural black land occupiers. Section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 allowed occupiers to assert a right of familial burial as against landowners, provided certain conditions were met. In Selomo v Doman 2014 JDR 0780 (LCC) Spilg J permitted a burial despite the fact that the applicant and deceased had not been resident near their family gravesite for many years. In our analysis of the judgment we suggest that the court’s attempts to find justification in the Extension of Security of Tenure Act 62 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 were misconstrued. With proximate familial burials being essentially a matter of respect for dignity and indigenous culture, the court should have engaged in a deeper analysis of constitutional rights.
 
Highlights
This constitutes the holistic philosophy of Africans, to bury our loved ones so that we can always have reference to their resting places and to ensure continuity.1In Southern Africa, proximate burials of family members have for many centuries been an established indigenous cultural practice
In our analysis of the judgment we suggest that the court's attempts to find justification in the Extension of Security of Tenure Act 62 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 were misconstrued
The allegations of continued residence are challenged to a material degree and there is the issue of a waiver of rights, in consideration for being paid compensation.89. This implied strongly, it was not stated in as many words, that there would be a finding that the applicant and his daughter were no longer residing on the land as required by section 6(2)(dA) of ESTA and did not qualify as occupiers with burial rights in terms of that Act
Summary
This constitutes the holistic philosophy of Africans, to bury our loved ones so that we can always have reference to their resting places and to ensure continuity.. The legislature sought to ameliorate some of the numerous problems resulting from the fact that many members of the rural black population had been excluded from land ownership and left in the position of mere occupiers in places where their families had resided for centuries. Important in this regard is the Extension of Security of Tenure Act (hereafter ESTA). He supportively extended the law governing indigenous burial practices
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