Gauteng Smallholder February 2018 | Page 37

From page 33 ancestors of the bereaved family. Workers are still claiming the right to bury their family members on farms. According to the Extension of Security of Tenure Act (ESTA) they have this right if they can show that they are an “occupier” on the farm where they intend burying the deceased; that the deceased was a member of their family and was also living on that land at the time of her or his death; that the burial sought would be in accordance with his or her imposed by the owner or person in charge of such land in order to safeguard life or property or to prevent the undue disrup- tion of work on the land. ESTA also allows the family of the buried deceased to maintain religious and/or cultural graves indefi- beliefs and that an established nitely, including tombstones practice on that farm exists to and railings. bury deceased family However, in most cases the members. new owners of a smallholding In the case of the farm having will not know the families been sold and subdivided, and might feel that they can even if the members of the dispose of the evidence that family no longer live on that people had been buried land, ESTA ensures that they there. have the right to visit and Apart from a variety of maintain their family graves legislative provisions which on land which belongs to criminalise violations of another person, subject to graves, it is an offence in any reasonable condition 35 www.sasmallholder.co.za LAND USE common law to desecrate a grave. Nonetheless the common law does entitle an owner who has no agreement with bereaved families to remove a grave's railing and tombstone as long as no violation of the grave occurs. Should you need to relocate a grave or cemetary you will find yourself facing a number of legal challenges, as well as the ancestral issues outlined above. However, leaving the graves undisturbed will provide you and your family with a constant reminder that death is part of life.