Amendments in respect of tenure on farms

Estimated reading time: 4 minutes

• The Extension of Security of Tenure Amendment Act, 2018 (Act 2 of 2018) or the Amendment Act, as well as the regulations issued in terms of the Act, comes into effect on 1 April 2024 and will introduce several amendments.
• A dependant is defined as “a family member whom the farm dweller/occupier has a legal duty to support”.
• An occupier has the right to take reasonable measures to maintain the dwelling occupied by him/her or members of his/her family.
• An occupier may be evicted from land only if a court order has been issued.
• Before an eviction order can be granted, the parties must have attempted mediation to settle the dispute or referred it for arbitration. The regulations are very specific on this subject.

The Extension of Security of Tenure Amendment Act, 2018 (Act 2 of 2018) or the Amendment Act, as well as the regulations issued in terms of the Act, comes into effect on 1 April 2024 and will introduce several amendments to the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or the ESTA. Among other things, this involves amending certain definitions and adding others.

New definitions

A dependant is defined as “a family member whom the farm dweller/occupier has a legal duty to support”.

Family means:

• A spouse in a customary marriage, whether or not the marriage is registered.
• A child, including an adopted child or foster care child.
• A grandchild.
• A parent.
• A grandparent.

‘Reside’ means to live at a place permanently, and ‘residence’ has a corresponding meaning.

In another amendment, development subsidies are replaced with the provision of tenure grants, with a view to promoting long-term security of tenure. This enables occupiers (and former occupiers) to acquire suitable alternative accommodation and to compensate owners and/or persons in charge for the provision of accommodation and services to occupiers and their families.

Other amendments

An occupier has the right to take reasonable measures to maintain the dwelling occupied by him/her or members of his/her family.

Any person has the right to erect a tombstone on, mark, place symbols or perform rites on his/her family graves. However, this is subject to any reasonable condition imposed by the owner or person in charge of such land in order to safeguard life or property or to prevent the undue disruption of work on the land.

An occupier may be evicted from land only if a court order has been issued. Such an occupier must have had legal representation at the eviction proceedings, unless the occupier expressly waived his/her right to obtain state-funded legal representation, and the court determined that the interests of justice would not be harmed by the lack of legal representation.

Before an eviction order can be granted, the parties must have attempted mediation to settle the dispute or referred it for arbitration. The regulations are very specific on this subject. The court that orders the eviction of the occupier will also take into account reasonable weather conditions under which the eviction order may be carried out.

Click here to learn more about the eviction vs relocation of farm dwellers.

Application for a tenure grant

An application for a tenure grant must be submitted in person, by registered post or electronically (on the Department’s official website) to the director-general of the Department of Agriculture, Land Reform and Rural Development.

A crucial point to note is that applications for tenure grants in terms of the Amendment Act can only be submitted if a competent court has granted an eviction order, or if there is a threat of eviction and/or the occupier or former occupier or his/her family members’ right of tenure is uncertain.

A person applying for a grant in terms of the Amendment Act must confirm in writing that the land on which the accommodation and or services will be provided will be transferred (full title) to the occupiers or former occupiers or family members before grants are paid.

Specific conditions apply to the alienation of land acquired through a tenure grant. Beneficiaries of the tenure grant are also prohibited from selling or disposing of the land within a period of ten years from the date of having acquired the property, unless the land is first presented to the director-general. The latter must either accept or reject the offer in writing within 90 calendar days.

Guidelines for handling disputes

A person involved in a dispute that concerns the administration of the Amendment Act can report the dispute to the nearest department offices and request them to resolve it. The office concerned must attempt to resolve the dispute and if they are unsuccessful, the office must refer the matter to the director-general so that mediation or arbitration under the Amendment Act can be facilitated.

If mediation or arbitration is unsuccessful, the department must assist the person in obtaining representation through Legal Aid South Africa and have the case referred to the court. – By Clarissa Pienaar, Moolman & Pienaar Incorporated

For more information, contact the author at clarissap@mmlaw.co.za or 033 032 0241.