Jade Hermanus, a junior consultant at Katika Consultancy, explores the clash of traditions, rights, and regulations in South Africa’s agricultural heartland, unravelling a compelling narrative of struggle and resolution.
Recent events left a farmer in grave trouble when the exhumation of graves stood in his way of complying with regulations and conditions set out in the National Water Act 36 of 1998 (NWA). The trouble began when an illegal dam was built near the gravesite of former farmworkers.
According to Section 22 of the NWA, water may only be used without a license if that water use is permissible under Schedule 1, meaning that it falls within the ambit of domestic use.
Secondly, if that water use is permissible as a continuation of an existing lawful use (ELU), the water use should have been used before the Act was passed. Lastly, if that water use is permissible in terms of general authorisation issued under Section 39.
The dam being referred to does not fall within the ambit of the requirements mentioned above; additionally, it was not licensed and therefore unlawful. The dam overflowed and submerged the graves in water.
A sacred place
According to family members of the deceased, they were being tormented by their ancestors, demanding to be moved to another sacred place.
The department of water and sanitation was made aware of the illegal dam and the threat it posed to the graves. Legal proceedings were instituted against the farmer for the illegal dam and a settlement agreement had to be reached between the family of the deceased and the farmer.
The family demanded compensation in terms of constitutional damages because their right to religion, belief, opinion and dignity was violated as set out in Sections 15 and 10 of the Constitution, respectively.
They asserted that their ancestors were angry because the graves were submerged in water, and they were getting cold. Therefore, they need to be exhumed and reburied at the homestead.
The request to exhume is constitutionally valid seeing that it is a cultural belief that the dead can communicate with the living, therefore more and more exhumations have been taking place because of religious beliefs. Individuals’ cultural/traditional rights are being protected by the constitution in this instance; however, this is tricky because what about the farmer’s rights?
It is the farmer’s land; why can they not decide against it? Unfortunately, deciding against the exhumation of a loved one might infringe on the constitutional rights of the one requesting it.
Balancing tradition and landowner rights
Additionally, according to the Extension of Security of Tenure Act 62 of 1997 (ESTA), an occupier on a farm has the right to bury or bury a loved one on a farm. The landowner may not interfere with the burial of the deceased; however, the landowner is protected in the sense that the occupier should practice their religion and culture in a reasonable manner.
So even though it is the farmer’s land, occupiers do enjoy certain rights.
In South Africa, the agricultural sector is predominantly made up of previously advantaged individuals. This makes it tricky, as they do not fully understand the culture or traditions of those seeking the exhumations.
This may cause conflict between the two parties as one might feel that the other is being prejudiced towards them, especially when the party seeking the exhumation wants the other party to pay for the exhumation costs, the beer, meat and other things needed to perform the relevant rituals.
Other remedies
The problem this creates is the family of the deceased is demanding outrageous amounts of money to compensate for the violation of their constitutional rights. It should be noted that before resorting to constitutional damages, other remedies should be utilised.
In conclusion, the cultural and traditional rights of individuals are protected by the Constitution, and a request to exhume because of religious beliefs is valid. Therefore, it is very important to license all water uses that are not permitted under Section 22 of the NWA.
As seen above, not licensing the water uses can result in more problems being created. Do not dig a grave for yourself!
- Jade Hermanus is a junior consultant at Katika Consultancy in Paarl, Western Cape. The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or positions of Food For Mzansi.
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