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- The challenges posed by people already residing on a farm that was recently purchased by a new landowner are on the increase.
- Cases of a more serious nature have already resulted in successive new owners of land being unable to take their land into possession.
- It is important to take note of the fact that the rights of the occupier are binding on the legal successor or subsequent owner or person in charge of the land.
- It is necessary to meet with the people occupying the land to introduce the new landowner and begin building a collaborative relationship.
- All issues must be managed carefully as it lays the foundation for the peaceful habitation of people who will occupy and use the same geographical land.
The challenges posed by people already residing on a farm that was recently purchased by a new landowner are on the increase. This is attributable to the fact that legislation does not explicitly address ways of resolving these issues if they do arise, leaving the door open for unnecessary conflict.
Cases of a more serious nature have already resulted in successive new owners of land being unable to take their land into possession and then, very often, due to the failure to proactively manage very manageable misunderstandings, having to turn to the court to address the issue.
Gather background information
Firstly, it needs to be understood that people residing on agricultural land (occupiers) with the consent of the owner or a person in charge of the land enjoy protection under the provisions of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA) against unlawful (other than those specified in the Act) eviction. The definition of ‘eviction’ in ESTA has a broader meaning than is usually applied to evictions. Eviction is the act of depriving a person of the occupation or land use or water access related to his or her tenure rights under ESTA, against his or her will.
It is important to take note of the fact that the rights of the occupier are binding on the legal successor or subsequent owner or person in charge of the land. It is therefore essential for any prospective buyer of land occupied by people who will not be vacating the land upon its purchase, to obtain all background information pertaining to the people occupying the land in question.
This may, inter alia, include:
- The name(s) of the person(s) who have permission to occupy the land.
- The history of those persons’ occupation of the farm.
- Copies of any written agreements that have historically regulated terms of service and/or land occupancy.
- Details of any historical litigation and/or labour disputes and/or land claims against the land.
- Details of family members and/or other people occupying the same dwellings as the person with permission.
- Contact details of the person(s).
Start on a good footing
Once the information has been obtained, all background information has been verified and the purchase transaction is on track, it is necessary to meet with the people occupying the land to introduce the new landowner and begin building a collaborative relationship. In a bid to promote stability, it would also be prudent to employ, where possible or necessary, occupiers who were also reliable former workers.
A request can be made for representatives of the National Department of Land Reform and Rural Development, via the nearest regional office, to act as facilitators during this discussion. This ensures that any new agreement reached between the new landowner and farm occupiers is fair and can henceforth be mutually enforced.
An agreement should ideally be put in writing to prevent future disputes and ensure legal certainty for both parties. A draft agreement is proposed and it will also be prudent to have legal representation or expert assistance during any discussion on tenure issues. This way, all interests are properly considered, addressed, and protected.
Possible alternatives
In addition to the continuation of occupiers’ tenure, alternatives will also be explored with the assistance of the department. These include:
- The subdivision or sale of a portion of the farm on which people reside to those people, through government funding.
- The subdivision and donation of a portion of a farm on which people reside to those people, assisted and funded by the department.
- Payment of compensation for the relocation of people.
All issues must be managed carefully as it lays the foundation for the peaceful habitation of people who will occupy and use the same geographical land. If people are to remain on land, it is equally important to manage the relationship and cooperation to the benefit of all involved. If no effort is made in this regard, the best alternative is to acquire land that is not exposed to such complications. – Hans-Jurie Moolman, Moolman & Pienaar Incorporated
For more information, contact Hans-Jurie Moolman at hj@mmlaw.co.za or phone the Potchefstroom office at 018 297 8799 or the Pietermaritzburg office at 033 032 0241.
