Farmers traditionally buried their family members on the farm. Farm workers who happened to live on the farm often had permission from the farm owner to do the same.
Nowadays the practice of burying someone on a farm can be a source of underlying tension and uncertainty between farm owners and farm workers. Farm owners are often worried about graves on the farm, as their existence may not only threaten the safety and security of the farm owner and his or her family, but also the security of the land, labour relations and the day-to-day continuation of farming activities.
This article explains what farm owners should do to manage this in an appropriate manner.
Requests to visit graves
In terms of Section 6(4) of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or the ESTA, a farm owner cannot deny a request to visit a grave on the farm as any person has the right to visit and maintain the grave of a family member on land which belongs to someone else.
However, such visits are subject to any reasonable conditions imposed by the farm owner in order to protect his or her life and property, or to prevent any undue disruption of farming activities on the land.
Reasonable conditions would, for example, stipulate that:
- Graves may only be visited on Saturdays, Sundays or public holidays.
- Visits may only take place between 9:00 and 15:00.
- Visitors may only visit the graves and should not wander around on the farm.
- All visits should be conducted in a quiet and orderly manner; the farm owner may report any rowdy behaviour or misconduct to the South African Police Service (SAPS).
An access agreement is used to regulate visits to graves and to administer reasonable conditions. Furthermore, farm owners may require a person to identify him- or herself and to provide further information regarding:
- The person’s identity.
- Details of the deceased.
- The person’s relationship with the deceased.
- The deceased’s date of death.
- The location of the grave on the farm.
- Whether the person can tender any evidence that there are graves on the farm.
The discovery of graves
In terms of Section 36(6) of the National Heritage Resources Act, 1999 (Act 25 of 1999), a farm owner who discovers graves on a farm is required to cease all activity in the immediate vicinity of the graves.
It is the farmer’s responsibility to contact the South African Heritage Resources Agency (SAHRA) and the SAPS. These organisations must investigate the graves to determine whether they should be protected and whether arrangements for the relocation of the graves should be made.
If the farm owner is aware of the fact that the graves are those of victims of conflict or if it is determined that the graves are older than 60 years and if they fall outside of the area of administration of the local authority, the graves may only be disturbed, exhumed or moved with the authorisation and permission of the SAHRA.
The SAHRA will only issue a permit for the relocation of any graves older than 60 years if the applicant has made a deliberate effort to contact the local community who may have an interest in the graves, in order to consult with them about the future of the graves.
A farm owner who wilfully ploughs over graves and deliberately ignores their presence is guilty of an infringement in terms of the National Heritage Resources Act. Such an infringement is punishable with a fine, imprisonment of up to three years, or both.
Established practice of burials
Section 6(2)(dA) of the ESTA determines that farm workers who reside on a farm may bury a member of their family, who also resides there, on the farm if it is an established practice.
Section 24 of the ESTA determines that any consent given by the previous farm owner to farm workers will be binding on the subsequent owner of the farm.
If the previous farm owner thus gave consent for farm workers to reside on the farm, and if there is an established practice that members of their family may be buried on the farm, the new owner may not unilaterally put a stop to the practice.
This article is intended for information purposes only and is a brief exposition of the aforementioned legal position. The finer nuances as set out in the aforementioned legislation are not necessarily mentioned. This article should under no circumstances be construed as formal legal advice.