'n Regshistoriese ondersoek na die juridiese aard en ordening van begraafplase in die Suid-Afrikaanse reg

[摘要] English: In Roman law things like burial grounds or tombs were classified as res nullius or things that belong to nobody. These things were not susceptible to human ownership and were also known as res divini iuris or things subject to divine law. They were also referred to as res religiosae as opposed to res profanae or profane things since they were endowed with special religious significance. These attributes res religiosae shared with the human body as such which was regarded as an object that was incapable of being owned or subjected to legal and commercial transactions. They were res extra commercium. Res religiosae were also exempt from the ordinary principles and rules of private law and were governed by the ius sacrum or sacred law, which formed part of the ius publicum or public law.Under influence of the Protestant Reformation the Roman-Dutch jurists of the sixteenth century and thereafter introduced a partial secularisation into the law relating to burial places and tombs. Some wrote that the classification of these places as res religiosae had fallen into desuetude and that in Roman-Dutch law all things are susceptible to human ownership, and liable to legal and commercial transactions. Nevertheless they were virtually unanimous in maintaining that despite this relative secularisation respect and reverence had to be shown to the human body and the human tomb or burial place on the ground of the scripturally based believes and doctrines of the resurrection of the glorified human body and eternal life.In the early South African case of Cape Town and District Waterworks v Executor of Elders1 the court held that the Roman classification of things as res religiosae had fallen into disuse, that these things were fully susceptible to ownership and that they could be subjected to legal and commercial transactions. Nothing was said about basic human respect for the human body and its final resting place except that the continued existence of the crime of violatio sepulchri or violation of a tomb was recognised.The court reached this conclusion as a result of a controversial and wrong reading and interpretation of the Roman-Dutch sources. Groenewegen and Van Leeuwen were pitted against Voet, found to have better reflected the contemporary law of their times, and authoritatively applied. Voet on the other hand was held not to have expressed himself on his contemporary law but rather on Roman law and on that basis rejected.Groenewegen and Van Leeuwen were found by the court to have stated without any doubt that the Roman classification of things as res religiosae had fallen into disuse, and that graveyards and other burial places were fully susceptible of ownership and commercial transactions.In this study it is argued that the court strayed and that Groenewegen and Van Leeuwen's writings never justified such an absolutistic secularisation of the law relating to burial places. When the said two jurists attributed full susceptibility to ownership and commercial transactions to res religiosae they only had the so-called ius sepulchri or the right to bury a body in a particular tomb in mind and not the tomb or place of burial as such.This absolutized secularisation of landownership caused hardship for certain categories of persons such as lessees in terms of a long lease or occupiers of rural and farm land. Land owners were loath to grant burial rights since they believed that the granting of such rights was tantamount to the granting of a servitude over their land with long term consequences and implications. A conservative judiciary endorsed such absolutized ownership of landowners with the result that occupiers could not freely practise their religious and cultural believes in regard to the burial places of their dead.The Extension of Security of Tenure Act2 of 1997 (ESTA) as amended by the Land Affairs General Amendment Act of 20013 brought some relief for occupiers of land since it accords statutory burial rights to them. These rights are original, constitutional and statutory by nature. They exist as rights in their own right independent of any consent from the landowner. They are regarded as original for it is the first time in South African legal history that burial rights are conferred without the consent of the landowner. They are therefore not to be seen as derivative rights derived from the landowner. These rights are also constitutional rights since they find their origin in the Constitution which grants a mandate to the state for the reform of land ownership and for securing security of tenure for allpersons. Lastly these rights are statutory by nature since they areembodied in and protected by the ESTA and the Land Affairs GeneralAmendment Act4 which give expression to the state's constitutionalmandate relating to land reform.Despite the obvious benefits brought about by the ESTA it has to be bornein mind that such benefits extend only to a relatively small category ofpersons, namely occupiers as defined in the ESTA itself. Persons such aslong term lessees, bona fide possessors and others are excluded and it istherefore recommended that the legislature should widen the scope of theAct so as to ensure that a broader group of persons qualify for burialrights.

[发布机构] University of the Free State