Enduring Legacy: The Impact of ESTA’s Burial Rights on the Property Rights of the Landowner

Abstract

This note examines the enduring nature of burial rights under the Extension of Security of Tenure Act (ESTA) for individuals who do not own the land where these rights are exercised. According to ESTA, an occupier has the right to bury a deceased relative on the farm if three conditions are met: the person requesting permission must be an occupier; the deceased must have lived on the farm with the occupier before death; and there must be a customary practice of farm dwellers being allowed to bury family members on the farm.

The note explores whether the establishment of such a customary practice can lead to burial rights existing independently of the occupier's right of occupation. Specifically, it investigates if these rights can persist long after the initial occupation rights have ceased, benefiting non-occupants who can demonstrably claim lineage to those buried on the land by right.
By exploring the potential for burial rights to exist independently of occupation rights, this note advocates for a broader and more inclusive interpretation of property rights within private law. It calls for an approach that balances the sanctity of the property rights regime with the cultural and social justice needs of communities.