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- The Land Claims Court of South Africa recently delivered a controversial judgment in the matter of Moladora Trust vs Mareki and Others LCC 70/2022 regarding the nature of farm dwellers’ rights when it comes to keeping livestock on farms.
- The new case occurs against the backdrop of the declaration of a national state of disaster in March 2020 following the global Covid-19 pandemic.
- In the absence of any witnesses or a claim of tacit consent, the Land Claims Court found that, as a result of the passage of time and despite the content of the notices to the contrary, the farm dwellers enjoyed tacit consent from the landowner to keep livestock on the farm.
- The Land Claims Court finds that, by virtue of the finding pertaining to tacit consent, the right to keep livestock should also offer protection to the farm dwellers in terms of sections 6(1) and 6(2)(a) of the ESTA.
The Land Claims Court of South Africa recently delivered a controversial judgment in the matter of Moladora Trust vs Mareki and Others LCC 70/2022 regarding the nature of farm dwellers’ rights when it comes to keeping livestock on farms. Based on the judgment, such rights should henceforth be considered part of the rights that must be legally protected by the Extension of Security of Tenure Act, 1977 (Act 62 of 1997), or the ESTA.
Concurrently, the Land Claims Court ruled that revoking the right to keep livestock and any legal process to have livestock removed from a farm, be made subject to the same requirements that must be met when evicting people occupying the land.
In terms of the ESTA, the occupier’s rights are of a personal nature and in such an occupier’s absence (e.g. due to death) it will be impossible to regulate a matter such as the grazing of livestock.
The judgment is controversial as the Court of Appeal in Bloemfontein and the Constitutional Court, in a successive attempt to appeal to this court, already ruled on this issue. The case law clarified that an occupier’s rights regarding grazing are not contained in the ESTA. In terms of the ESTA, the occupier’s rights are of a personal nature and in such an occupier’s absence (e.g. due to death) it will be impossible to regulate a matter such as the grazing of livestock.
The facts of the case
The new case occurs against the backdrop of the declaration of a national state of disaster in March 2020 following the global Covid-19 pandemic.
The landowner acquired a farm on which one of the farm’s former employees resided. Her children remained on the farm after her death; the landowner did not press them to vacate the farm. In her lifetime the deceased had the right to keep a certain number of livestock on the farm. During the case before the Land Claims Court, the landowner held that no other person or persons had reached an agreement with the landowner regarding the keeping of livestock.
The landowner argued that the deceased alone had the right to keep livestock and that it was non-transferable. Consequently, the landowner informed the remaining next of kin on two separate occasions that there was no agreement in place that allowed them to continue keeping livestock. The sheriff served written notices on behalf of the owner during January 2018 and on 5 October 2020. The farm dwellers were given one month’s notice to remove from the farm the livestock they kept without an agreement.
The farm dwellers did not heed the notices, resulting in the landowner approaching the Land Claims Court for an order to have the livestock removed with the help of the sheriff.
Land Claims Court’s finding
Against this backdrop, the Land Claims Court described the issues on which judgment had to be rendered as (a) whether the deceased farm dweller’s children had any rights to keep livestock; and (b) if so, whether the ESTA protects a farm dweller(s) when the owner or person in charge of land wishes to revoke such a right, and whether the right to keep livestock can be exercised with reasonable knowledge.
In the absence of any witnesses or a claim of tacit consent, the Land Claims Court found that, as a result of the passage of time and despite the content of the notices to the contrary, the farm dwellers enjoyed tacit consent from the landowner to keep livestock on the farm. In addition, it is important to note that the finding on tacit consent did not determine the nature and extent of the right to keep livestock.
The Land Claims Court bases its findings pertaining to tacit consent on an extended interpretation of section 3(4) and 3(5) of the ESTA. However, these provisions in the ESTA refer to the occupation of land, not other land uses. Along with this, the occupation of land is part of the rights protected by section 6(2) of the ESTA, while the right to keep livestock, with reference to the aforesaid case law, is not considered to be part of such rights.
The Land Claims Court finds that, by virtue of the finding pertaining to tacit consent, the right to keep livestock should also offer protection to the farm dwellers in terms of sections 6(1) and 6(2)(a) of the ESTA and that landowners must comply with the requirements of section 8 and 9 of the ESTA before the right to keep livestock can be revoked. Sections 8 and 9 deal with tenure and the requirements for eviction proceedings where tenure is to be revoked.
The way forward
The landowner has already applied for leave to appeal the judgment. – Hans-Jurie Moolman, Moolman & Pienaar Incorporated
For more information, contact Hans-Jurie Moolman on 018 297 8799 or email hj@mmlaw.co.za.
