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Farm dwellers: Eviction versus relocation

Estimated reading time: 5 minutes

  • The definition of ‘eviction’ as stipulated in the Extension of Security of Tenure Act. 1997 (Act 62 of 1997) or ESTA is to deprive a person against his or her will of residence on land or the use of land or access to water.
  • There is no definition for land in the ESTA, but numerous courts have proffered an interpretation of ‘land’, as per the intended definition of eviction.
  • Land is interpreted as the land registered in the name of the owner, as the ESTA regulates the relationship between farm dwellers occupying the land and the owner of the land. The word ‘land’ means the registered unit as it appears on the title deed.
  • Relocation of a farm dweller from a housing unit to another that is not located on the same land will amount to eviction.
  • An occupier’s right to oppose a proposed relocation is protected in instances where the relocation will infringe on his or her basic human dignity.

A question often posed is when the relocation of a farm dweller amounts to relocation and when to eviction as set out in the Extension of Security of Tenure Act, 1997 (Act 62 of 1997), or ESTA? In the latter case, the landowner must meet all substantive and procedural requirements for an eviction order before action can be taken.

The definition of ‘eviction’ as stipulated in the ESTA “is to deprive a person against his or her will of residence on land or the use of land or access to water which is linked to a right of residence in terms of this Act, and ‘eviction’ has a corresponding meaning”. The question of whether any proposed resettlement will amount to eviction will therefore depend on the interpretation of the word ‘land’ as contained in the definition of ‘eviction’.

Read more about eviction and emergency housing.

Definition of land

There is no definition for land in the ESTA, but numerous courts have proffered an interpretation of ‘land’, as per the intended definition of eviction. The following is a summary of the legal position:

  • Land is interpreted as the land registered in the name of the owner, as the ESTA regulates the relationship between farm dwellers occupying the land and the owner of the land.
  • The word ‘land’ means the registered unit as it appears on the title deed.
  • The definition clearly states that ‘land’ is the basis of the right of residence and not a dwelling.
  • Relocating from one dwelling to another on the same registered unit/piece of land will amount to relocation and/or move and not to an eviction as intended in the ESTA. The owner of the farm does not have to meet the requirements for an eviction before farm dwellers can be relocated.
  • Relocation of a farm dweller from a housing unit to another that is not located on the same land will amount to eviction.
  • The housing unit the farm dweller is to occupy must fit the framework of the ESTA definition. The ESTA defines suitable alternative accommodation as accommodation which is safe and generally not less favourable than the occupier’s previous situation.
  • An occupier’s right to oppose a proposed relocation is protected in instances where the relocation will infringe on his or her basic human dignity.
  • Where a proposed relocation has no impact on the human dignity of the occupier, the legal position is that the ESTA was not enacted to provide security of tenure to an occupier in the home of his or her choosing.

Find out whether eviction is the only option.

Study the title deed

During the case of Pieterse and Others vs Drumearn (Pty) Ltd and Others (LCC 135/2022; 3/2021) [2023] ZALCC 13 (19 April 2023) (the Pieterse case) a request was made for the Land Claims Court to expand the prevailing legal position to include shareholding of land (in this case, land owned by two different entities but with the same shareholders).

The question that arose in the Pieterse case was whether the relocation of a long-term occupier from one dwelling to another situated on land belonging to a different entity, but with clear cadastral descriptions, constitutes an eviction as intended by the ESTA. The court found, when granting the relocation order, that although the registered owners are different entities and the same shareholders own the farms, the relocation did not amount to eviction.

The appellants appealed against this decision and the court upheld, among other things, the following principles: As set out by legislation, the concept of ‘land’ in terms of the ESTA refers to land registered in the name of the owner, as legislation regulates the relationship between a farm dweller’s right of tenure and the owner’s property right in terms of the same land. As a result, relocation does not constitute eviction if an occupier is moved from one house to another on the same registered unit of land.

In this case, the intention was to move the farm dweller from one property to another belonging to a different legal entity. The court erred by accepting that the land, although registered in the names of two different entities, has only own owner and that the relocation would not amount to eviction, since the land is operated and managed as a unit. The land is owned by two different entities and has clear cadastral descriptions.

The court upheld the Supreme Court of Appeal’s previous rulings, which stated that relocation from one dwelling to another on the same land does not amount to eviction. However, relocation from that land to another piece of land registered in the name of another person or entity does amount to eviction. – Clarissa Pienaar, Moolman & Pienaar Incorporated

For more information, contact Clarissa Pienaar on 033 032 0241 or clarissap@mmlaw.co.za.

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