The body of a Mpumalanga farm labourer has been kept on ice for three weeks while the Department of Land Affairs defends its contentious legislation on burial rights in the Land Claims Court.
The provincial land affairs department hastily hired a law firm last week to try to force a farmer to allow Elijah Nhlabathi (65) to be buried on the farm he and his family had lived on for 12 years.
Wessel Fick of Mooifontein Farm near Amersfoort successfully disrupted the arrangements for Nhlabathi’s funeral on September 27 despite a new clause in the Extension of Security of Tenure Act that affords workers burial rights on farms.
”The [burial] clause in the Act is unconstitutional,” said Fick’s lawyer, Tiaan van Dyk. ”It infringes on property rights of farmers, and we’ll argue this matter in court.”
Land affairs lawyer Obed Ntuli said the Nhlabathis had previously buried two relatives on the farm. He argued that workers’ burials do not diminish the property rights of farmers ”that much. [For workers to] live on a farm encroaches more on property rights than for them to be buried there.”
The case was to be heard in the Randburg Land Claims Court on Thursday.
Nhlabathi died on September 23 and the family has been forced to postpone the funeral until the burial dispute is resolved.
Workers’ burial rights on farms have been a contentious issue since the Act was passed in 1996.
The Act initially said nothing on burial rights until an Ermelo farmer got a court ruling that forbade the burial of a former labourer on his farm about three years ago.
The Supreme Court of Appeal in Bloemfontein ruled in favour of Gideon Buhrmann of De Emigratie farm and prohibited relatives from burying Petros Nkosi (31) on the farm without the landowner’s consent.
The land affairs department subsequently approached Parliament to amend the Act and the burial rights clause was added last year.
Farmers complained that graves strengthened claims on their land and undermined their property rights.
Some farmers in Limpopo even forced families and a land rights NGO, Nkuzi Development Association, to sign contracts stipulating that graves wouldn’t be used as a basis for laying claim to their land.
One farmer was Gert Smith of Levuvhu near Louis Trichardt who refused to allow a 105-year-old Zimbabwean-born cattle herder, Majoni Nkube, to be buried on his farm in 1999.
Nkuzi put pressure on him but Smith refused to allow the burial until the NGO and Nkube’s wife Mampho Muravha signed the contract.
Muravha (74) died last week and Smith tried to prevent her burial on his farm, until Nkuzi intervened again. No contract was signed and Muravha was buried on October 5.
The case was postponed on Thursday because there was no judge available. No new date was set.
The family were to decide on Thursday night what to do with Nhlabathi’s body. — African Eye News Service