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NC family wins burial rights fight


De Wee would also be buried among her deceased family members, as many of them had lived and worked on the farm all their lives

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A NORTHERN Cape family’s fight for the right to bury their aunt with the rest of her family on her ancestral land has ended in their favour.

Apprehension by the new landowner that a “real possibility will be created that its land will eventually turn into a graveyard” had no basis, the Supreme Court of Appeal (SCA) found.

In Groblershoop in the Northern Cape, Sandvliet Boerdery had challenged the burial of Magdalene de Wee on its Middel-Plaas.

The company in 2015 acquired various parcels of land, including Bo-Plaas and Middel-Plaas.

The land had formed part of a historic trilogy, referred to as the Montina Farms, which included Onder-Plaas, presently owned by SnyBar Developments.

When De Wee died in 2017, her relatives, Maria and Hendrik Mampies, wanted to bury her at the Middel-Plaas graveyard, which they considered their ancestral site, in accordance with their religion, cultural belief and practice.

De Wee would also be buried among her deceased family members, as many of them had lived and worked on the farm all their lives.

However, Sandvliet Boerdery refused to give permission for the burial, arguing that the Mampies lived on Onder-Plaas.

According to the SCA, permission to bury could not be unilaterally withdrawn by Sandvliet, which was aware of the existence of the graveyard when it purchased Middel-Plaas in June 2015.

“This graveyard was established for use by the occupiers of the Montina Farms, the respondents and 37 other families, including those who had no homes in Middel-Plaas, when the Onder-Plaas graveyard reached full capacity.

“The respondents and their family regard the graveyard as their ancestral burial site.

“When the deceased passed away, her parents, who did not reside on the Montina Farms, and the respondents, who regarded her as their own daughter, wished to bury her at the Middel-Plaas graveyard with the rest of her family.

“This was in accordance with their religion as members of the Dutch Reformed Church, cultural beliefs and established practice. In terms of these beliefs and practices, they bury kin nearby and in the same graveyard, so that the graves may be regularly visited and cleaned without difficulty and to enable the dead ‘to provide comfort’.

“The appellant, however, refused to allow the respondents and their family to bury the deceased in the Middel-Plaas graveyard because they live on Onder-Plaas and only the graveyard was situated on its land,” the SCA judgment read.

After arguing the constitutionality of denying the Mampies the right to bury De Wee at Middel-Plaas, the SCA found in the family’s favour.

“It is important to point out that there is already an area demarcated for burial, which the respondents are, in any event, allowed by the Extension of Security of Tenure Act, to visit as it houses the graves of their deceased family members.

“The area the appellant loses to the deceased’s grave is probably 1 metre by 2 metre, which does not constitute such a drastic curtailment of the appellant’s right to ownership as to justify denying the repondant the right to bury the deceased,” the SCA found.

No order was made as to costs.