The Extension of Security of Tenure Act, 1997 (Act 62 of 1997, i.e. the ESTA Act) was put in place to regulate the legal relationship between landowners and people residing on farms. The ESTA Act contains a set of complicated provisions, which at times pose major challenges to the legal profession and the courts.

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Fundamental to the challenges caused by the ESTA Act is that in some cases the rights which the owner can exercise, and the rights which farm dwellers can exercise, are often centred around one geographically limited piece of land and often leads to conflict and rivalry. The ESTA Act does not always provide clear solutions when practical challenges such as these emerge.

A balance between rights

A landowner was recently confronted with an urgent Land Claims Court application after the landowner expanded the activities on the farm, which included some practical steps to utilise more of the land – the main access route to the farm, which gave the farm dwellers access to the nearest public road, was replaced with an alternative route.

Access to graves on farms: Putting the issue to rest.

As part of the expansion activities, a portion of the farm that was cut off from the rest of the farm due to the flow of the nearby river and a side stream, was reclaimed. This meant that the farm dwellers had to draw water from the main stream of the river instead of the side stream, which had been drained to reclaim the land.

The new access route to the farm ran along its northern border instead of through the centre, where plantings and new pivot lines were planned. The new access route, for the purposes of farm worker access, would effectively be four metres longer than the previous access route they used.

In the interdict, among others, the court was asked to order the landowner to terminate all expansion activities and to fully restore the status quo, thus returning the farm to its previous state before any modifications were made. The interdict’s legal argument was based on the fact that the farm dwellers were allegedly deprived from accessing water and the public road.

In this instance, the owner’s right to utilise the farm, as a result of ownership of the land, was in direct conflict with the alleged rights of the farm dwellers. The court therefore had to practically consider the ESTA Act to resolve the problem.

Restrictive qualification

In addition to certain fundamental rights for landowners and farm dwellers stipulated in Section 5 of the ESTA Act, Section 6(2) contains certain defined rights for farm dwellers, which include access to water, access to and from the farm, and the right to receive bona fide visitors. However, the legislature included a restrictive qualification in Section 6(2) for the way in which farm dwellers can exercise the rights they are afforded by the ESTA Act – it stipulates that the action taken must be in balance with the rights of the owner.

In the case mentioned, the landowner, within the framework of comparing the rights of the landowner with that of the farm dwellers, successfully indicated that the modifications made on the farm were based on the effective utilisation of the land and were part of the bona fide exercise of the owner’s rights.

Extent of ownership rights

The following two phrases from a judgement and legal literature submitted to the court are relevant in describing the extent of ownership rights and the manner in which the rights of owners need to be restricted.

“According to this prescription ownership is the real right that potentially confers the most complete or comprehensive control over a thing, which means that the right of ownership empowers the owner to do with his thing as he deems fit, subject to the limitations imposed by public and private law.” Silberberg and Schoeman – The Law of Property, Third Edition, p161.

“A court will not interpret a statute in a manner which will permit rights granted to a person under that statute to intrude upon the common law rights of another, unless it is clear that such intrusion was intended.” Serole and another v Pienaar 2000 (1) SA 328 (LCC), paragraph 16.

It is clear that the ESTA Act, within the scope of granting protection to farm dwellers, also allows landowners to exercise their rights in respect of their land in a bona fide manner.

Realistically this means that for owners to exercise their rights, which may result in changes to the way land is used, their decisions should always be based on reasonable, practical and commercial considerations. No action aimed at deliberately and exclusively restricting the rights of farm dwellers will be upheld by the courts.

It is also advised to communicate to farm dwellers any practical modifications that may be implemented on the farm, and which can have a possible impact on the rights exercised by farm dwellers. This will largely eliminate the unpleasantness of a lawsuit and associated legal costs.

For more information, contact HJ Moolman on 018 297 8799 or send an email to – HJ Moolman, Farmbiz

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