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- The ESTA provides protection to people who have permission (expressly or tacitly) to reside on land owned by another person.
- Land surrounded by a town or towns falls outside the scope of ESTA, unless designated for agricultural purposes under a specific law.
- In the case of Pieters and Another vs Stemmet and Another 2025 JDR 2028 (SCA) (the Stemmet case), the Supreme Court of Appeal was tasked with determining whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act 19 of 1998), or the PIE, would apply.
- The court ruled that the eviction of the appellants is governed by PIE.
- Landowners should take note of this judgment to ensure that any eviction proceedings comply with the appropriate legislation.
The Extension of Security of Tenure Act, 1997 (Act 62 of 1997), or ESTA, provides protection to people who have permission (expressly or tacitly) to reside on land owned by another person.
Section 2 of ESTA stipulates that the Act applies to all land, except to land within a town that has been established, approved, proclaimed or otherwise recognised under a law, or surrounded by such a town or towns, but including, inter alia, land in such a town that has been designated for agricultural purposes under a specific law.
Therefore, land surrounded by a town or towns falls outside the scope of ESTA, unless designated for agricultural purposes under a specific law. In such cases, a person who resides on the land enjoys substantive protection under ESTA, and any attempt to terminate their right of occupancy must strictly adhere to the provisions of the Act.
The Stemmet case
In the case of Pieters and Another vs Stemmet and Another 2025 JDR 2028 (SCA) (the Stemmet case), the Supreme Court of Appeal was tasked with determining whether the property occupied by the appellants does fall within an urban area and is not designated for agricultural purposes under any law. If so, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act 19 of 1998), or the PIE, would apply.
The appellants reside on one of several smallholdings in the Joostenberg district, which belongs to the first respondent (the landowner). The landowner took over the land from his father on 18 September 2014. The appellants have lived on the land with permission since 1988 (a period spanning approximately 30 years).
The appellants opposed the application for their eviction under PIE on several grounds, including their claim of qualifying as occupiers under the ESTA. On 29 May 2019, they submitted an application to confirm and enforce their rights under the ESTA.
On 4 April 2022, the Bellville Magistrate’s Court dismissed their application and granted an eviction order under the PIE. The landowner subsequently instructed the appellants to vacate the property. In response, they approached the Western Cape High Court to appeal the Magistrate’s Court ruling. Subsequently, on 3 February 2023, the Land Claims Court dismissed the ESTA appeal, determining that the property does fall within the boundaries of an urban area and is not designated for agricultural purposes. The court ruled that the eviction of the appellants is governed by PIE.
Read more about eviction under ESTA.
Rural vs agricultural
The appellants subsequently approached the Court of Appeal. The respondents argued that the property is located in an urban area and, by the time the appellants moved there in January 1988 (prior to the implementation of the ESTA), it had already been converted from being agricultural land and was subdivided into plots. According to the Court of Appeal, the zoning of the property is a key factor in determining whether it was designated for agricultural purposes.
The fact that the property was zoned as ‘rural’ under the City of Cape Town’s Development Management Scheme (DMS) was not disputed. A rural zoning grants specific usage rights, including a residence, agriculture and additional usage rights such as a bed-and-breakfast establishment and home childcare. In Mkangeli vs Joubert 2002 (4) SA 36, the Court of Appeal affirmed that land designated as rural is not automatically excluded from the scope of the ESTA.
Applying established principles of interpretation to the relevant DMS provisions makes it clear that the distinction drawn by the respondents (and the Land Claims Court) between rural and agricultural zoning is artificial and unsustainable. Whether the property is currently used for agriculture or intended for non-agricultural purposes is irrelevant in determining whether the property falls within the scope of the ESTA.
The evidence in this case demonstrated that the property was designated for agricultural purposes, a classification typically implied by ‘rural’ zoning. The Land Claims Court has, according to the Court of Appeal, erred in differentiating between rural and agricultural zoning in its assessment of the ESTA’s scope.
The Court of Appeal upheld the appeal and ruled that the property indeed falls within the scope of the ESTA, despite the property being located within an urban area. Given that the appellants have lived on the property with the respondents’ knowledge and consent since 1988, they qualify as ‘occupiers’ under the ESTA and are entitled to its legal protections.
Landowners should take note of this judgment to ensure that any eviction proceedings comply with the appropriate legislation.
– Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, contact Clarissa Pienaar at clarissap@mmlaw.co.za or contact the Pietermaritzburg office at 033 032 0241 or the Potchefstroom office at 018 297 8799.
