AgriSA CoE Land Access to Graves Protocol

To: AgriSA members

AgriSA submitted comments to the proposed Access to Graves Protocol in April 2023.

In December 2023 the CLR Commission Chairperson signed an amended version of the Access to Graves Protocol.

We compared the original version whereupon we submitted comments and the signed version. Kindly find a copy of the signed Access to Graves Protocol attached hereto for your attention. The changes between the original version and the signed version have been highlighted.  

The most important amendments are:

  1. the owner to provide safety or PPE to visitors as required in terms of OHSA;
  2. family members to stay within the vicinity of the graves and not wander off into other parts of the property;
  3. family must provide veterinarian certificates certifying the animal to be free of diseases that might be contagious;
  4. owner and family may agree on the time and duration of the visit and stay at the graves. That might include a night visit to perform rituals at the graves;
  5. owner must take reasonable measure to ensure safety of the visitors while on the property, from attack by dogs and wild animals on the property;
  6. pictures of the family proceedings should not be taken without their consent, as that will contravene the Protection of Personal Information Act;
  7. all health and safety protocols in place on the property must be adhered to by the visiting family members;
  8. moving graves or exhumed bodies without permission of the family is regarded as a contravention of section 36 of the NHRA and punishable in terms of section 51;
  9. Proof of relations to the deceased family must be provided i.e. commissioned affidavits in the absence of a death certificate;
  10. A SAHRA permit must be obtained for the erection of tombstone on grave(s) protected in terms of section 36 of the NHRA;
  11. If a grave’s location is known but no surface evidence of such a grave exists, SAHRA must be contacted to advice on suitable mitigation measure to assist the landowner/ family. Where a GRP survey or Test excavation may be required, an Archaeologist must be appointed at the cost of the person wishing to identify/confirm the existence of such a grave;
  12. disputes to be referred to SAHRA for guidance in terms of NHRA;
  13. family consent is required to exhume and relocate to a cemetery and owner using the relevant specialists reporting it to SAHRA in terms of section 36 of NHRA;
  14. if the family wish to relocate the grave, then they shall bear the costs of such relocation; and
  15. CRL Rights Commission to facilitate dispute resolution in relation to relocations, cultural rituals such as slaughtering of cows, goats, sheep, and the costs of traditional beers, incense, cleansing etc. However, CRL Commission shall not facilitate the resolution of conflict regarding compensation by owner to the family for any reason whatsoever, which is not related to the observance and performance of cultural and religious rituals.

AgriSA urges members to enter into written agreements where the family and owner of the property know of existing graves before a request to perform a religious or cultural ceremony is made. Due to the nature of agreements reduced to writing it is essential that the services of an attorney be utilised and those of a translator to ensure the family understand the contents of the agreement. AgriSA suggests that the translator attests to an affidavit that the family understand the contents of the agreement and agrees to the content contained therein. The provision of a template agreement by AgriSA cannot ensure that the content will meet the requirements of each individual set of facts and compliance with translation requirements. The use of a template of this nature will not provide sufficient protection to the owner, nor will it prevent claims that the family did not understand the content of the written agreement.

The the protocol is available on the CRL Commission website.
Enquiries
Amy Barclay, Land
amy@agrisa.org.za