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- The Supreme Court of Appeal has upheld a Land Court ruling in Sibanyoni family vs Van der Merwe namely that farm dwellers’ right to improve their dwellings includes the right to have electricity installed.
- The occupier claimed that the previous farm owner’s son-in-law had signed and submitted a form to the local municipality consenting to the installation of electricity at the dwelling.
- Eskom officials arrived at the farm to carry out the installation but were denied access by the farm owner, who argued that she had not been consulted.
- The dispute was referred to the Land Court, which held that electricity was a necessary improvement to make the dwelling habitable.
- The landowner appealed, upon which the Court of Appeal had to consider whether electricity is a reasonably necessary improvement to make a dwelling habitable, and whether an occupier requires the landowner’s consent to install or connect electricity to a farm dwelling.
The Supreme Court of Appeal has upheld a Land Court ruling in Sibanyoni family vs Van der Merwe (the Sibanyoni case) namely that farm dwellers’ right – as defined in the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA) – to improve their dwellings includes the right to have electricity installed.
The occupier and his family (the occupiers) have resided on the farm since 2011 in a dwelling they built themselves. The occupier claimed that the previous farm owner’s son-in-law had signed and submitted a form to the local municipality consenting to the installation of electricity at the dwelling. This allegation was, however, denied.
In September 2020, Eskom officials arrived at the farm to carry out the installation but were denied access by the farm owner, who argued that she had not been consulted. The dispute was referred to the Land Court, which held that electricity was a necessary improvement to make the dwelling habitable.
The landowner appealed, upon which the Court of Appeal had to consider two issues: whether electricity is a reasonably necessary improvement to make a dwelling habitable, and whether an occupier requires the landowner’s consent to install or connect electricity to a farm dwelling.
The right to human dignity
Regarding the first issue, the Court of Appeal held that, although neither ESTA nor the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) expressly grants occupiers the right to make improvements to their houses, such as installing electricity, this right can nevertheless be deduced. Occupiers, along with landowners and people in charge of land, are entitled to the fundamental rights set out in Section 5 of ESTA, particularly the right to human dignity. This right extends to improvements that ensure dignified living conditions, including access to electricity.
ESTA was amended on 1 April 2024 (after the Sibanyone judgment but before the Court of Appeal’s ruling). The amendment explicitly grants occupiers the right to take reasonable measures to maintain the houses they and their families occupy.
On the second issue, the Court of Appeal found, inter alia, that no such consent was necessary for the installation of electricity. Instead, occupiers, landowners, and people in charge of the land are expected to engage in meaningful dialogue.
However, such dialogue does not amount to an agreement; its purpose is to seek common ground. In this case, the occupiers did engage in such discussions and were entitled to the legal aid they had requested.
The issue of tenure grants
The landowner was concerned that she might be held liable for fees or levies owed by the occupiers. The Court of Appeal deemed these fears to be unfounded. Section 4(1)(e) of ESTA, as amended, places an obligation on the minister of land reform and rural development to provide tenure grants to landowners or people in charge, compensating them for the provision of dwellings and services to occupiers and their families.
However, a new area of concern arises from the regulations and guidelines that took effect on 1 April 2024, namely the conditions attached to the payment of tenure grants. Applications for tenure grants may only be made if a competent court has granted an eviction order against an occupier, former occupier, or family member, or where eviction is threatened and/or the occupier, former occupier or family member’s right of residence is uncertain.
In addition, the applicant must provide a written undertaking that the land on which the dwelling and/or services are provided will be transferred in full ownership to the occupiers, former occupiers, or their family members before the grant will be paid.
In short, tenure grants are not automatically available. They will only be paid where eviction proceedings are pending or contemplated, and if the owner commits in writing to transfer ownership of the land on which the dwelling and services (such as electricity) are located.
How Section 4(1)(e) of ESTA, read together with these regulations and the Court of Appeal’s judgment, will be applied in practice remains to be seen. For now, landowners and farm dwellers are encouraged to engage constructively to find common ground.
– Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, email the author at clarissap@mmlaw.co.za or phone 033 032 0241 (Pietermaritzburg) or 018 297 8799 (Potchefstroom).
