Estimated reading time: 4 minutes
- The Supreme Court of Appeal recently overturned the controversial ruling of the Land Claims Court in the Moladora case.
- The late Meriam Mereki, who used to be employed by the farm, was given permission to keep five head of cattle on the farm.
- After her death the respondents, her children (who were not employed by the farm), continued to keep nine head of cattle on the farm.
- A question that arose during the Land Claims Court proceedings was whether the respondents had the right to keep livestock.
The Supreme Court of Appeal recently overturned the controversial ruling of the Land Claims Court in the Moladora case. In the February 2023 issue of Stockfarm, we discussed the ruling of the Land Claims Court of South Africa (as it was known at the time) in the matter of Moladora Trust vs Mereki and Others 2023 (3) SA 209 (LCC) (the Moladora case) regarding the nature of farm dwellers’ rights when it comes to keeping livestock on farms.
Read about the controversial court ruling pertaining to the keeping of livestock.
Background of the case
The late Meriam Mereki, who used to be employed by the farm, was given permission by the trust to keep five head of cattle on the farm. After her death the respondents, her children (who were not employed by the farm), continued to keep nine head of cattle on the farm. The trust’s representative made many fruitless attempts to engage with the respondents, and finally informed them that seeing as they had no permission to keep livestock on the farm, they had one month in which to remove the livestock.
They failed to comply with the trust’s request and the trust subsequently approached the Land Claims Court for an order directing the respondents to remove all livestock from the farm. The respondents did not oppose the application and the Land Claims Court adjudicated the application on an uncontested basis.
A question that arose during the Land Claims Court proceedings was whether the respondents had the right to keep livestock and, if so, whether this right was protected in terms of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA). This gave rise to another question, namely whether the termination of the right to keep livestock is subject to the provisions stipulated in section 8 of the ESTA, which specifically pertains to the termination of security of tenure.
The Land Claims Court found that, among other things, and after having considered the facts before the court and by applying section 3(4), the respondents obtained tacit permission to keep cattle on the farm after a certain period. The court found that, although section 3(4) specifically refers to “a person who has continuously and openly resided on land”, this concept must enjoy a broader interpretation to also include ‘consent to use the land connected to that residence, in this case, to graze cattle’.
Appeal proceedings about keeping of livestock
The trust appealed against the ruling of the Land Claims Court. The Supreme Court of Appeal (the Court of Appeal) heard the application and unanimously upheld the trust’s application for appeal.
The Court of Appeal found that the Land Claims Court had taken it upon itself to consider whether a tacit agreement or consent existed, despite attempts by the trust’s representative to communicate with the respondents, or the fact that no agreement existed between the trust and respondents, and that they had not been granted permission to keep livestock.
According to the Court of Appeal, the Land Claims Court’s ruling that the trust granted tacit permission to the respondents to keep livestock, and that a tacit agreement indeed existed, was therefore not based on any proper factual foundation.
The Court of Appeal held that, to test whether tacit consent or an agreement exists, the party alleging the existence of the tacit contract must show on a balance of probabilities unequivocal conduct that the other party (the trust) had intended to enter into a contract with the respondent. The Court of Appeal ruled that this issue did not arise in this case, as the trust’s version was undisputed.
In conclusion
According to the Court of Appeal, the conclusion the Land Claims Court reached was based on a foundation that was purely conjectural, that was not evident from the documents before the court, and in respect of which the trust received no prior warning. The Court of Appeal rejected both the approach and conclusion of the Land Claims Court and upheld the trust’s appeal.
The legal position as it currently stands regarding occupiers’ right to keep livestock therefore remains (for now) unchanged. This right does not arise from the ESTA, but is a personal right allowing the use of an agreed upon portion of the farm for grazing. It involves an agreement between the landowner or person in charge of the land, and the occupier. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, contact the author at clarissap@mmlaw.co.za or 033 032 0241.
