Death And Sacred Spaces In South Africa And America: A Legal-Anthropological Perspective Of Conflicting Values

The conflict of Western and indigenous values again came to the fore in a series of cases dealing with death and burial in indigenous society. A similar conflict has been experienced in cases dealing with the rights of American Indians, as non-owners, to sacred sites situated on land belonging to the Federal Government or on private land. In these cases the American courts have invariably found in favour of the property rights of the owners. Prior to the amendment of the Extension of Security of Tenure Act, our courts have, like their American counterparts, followed an almost absolutist view of the property rights of the landowners when balanced against the religious rights of indigenous peoples. The Act was amended to include a right to bury family members on land belonging to another. The amended legislation improved the rights of non-owners, but still did not provide sufficient protection of indigenous values. It still gives preference to the rights of land owners. The sections affording the right to bury have internal limitations, which means that in some instances the right to bury may be negated. The recent decisions in Nhlabathi and Others v Fick and Dlamini and Another v Joosten and Others evidence a move towards greater sensitivity for indigenous cultural values.