Law not clear about graves upkeep

Lawyers believe act should permit erection of tombstones on farm graves

North West-based lawyer Thabiso Matsimela said the farmer who denied Mapalo Morake access to her loved ones’ grave site had no right to do so.

He said in terms of the Extension of Security of Tenure Act (Esta) 62 of 1997, the family must have a portion of land to farm and to bury loved ones.

“What the farm owner did was wrong, he is not complying with Esta law,” Matsimela said.

He said the family might approach the high court and apply for a court interdict to erect their tombstone there.

He said the constitution’s Bill of Rights also states that everyone has, among others, the right to human dignity, freedom of religion, belief and opinion.

Legal Resources Centre lawyer Thabiso Mbhense said the act was not clear on whether the erection of a tombstone or headstone was also covered under the maintenance of ancestral graves.

He said section 6 (4) of the act states that: “Any person shall have the right to visit and maintain his or her 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.”

He said the issue of whether the erection of memorials was covered under maintenance had not yet been tested in our courts of law, particularly in the Land Claims Court.

“I am of the opinion that the erection of the headstone or tombstone is part of maintenance.

“Balancing the rights of the landowner and the rights of the elderly granny who wants to erect a tombstone on her ancestral graves is very important,” he said. – Boitumelo Tshehle