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- An eviction order may only be granted if the owner or person in charge, or the occupier, has first attempted to resolve the dispute through mediation.
- Furthermore, the court must be satisfied that the dispute could not be resolved through those processes before granting an eviction order.
- A landowner or person in charge cannot rely solely on failed discussions with an occupier to meet the statutory mediation requirement.
- Landowners seeking an eviction order under sections 10 or 11 must initiate a formal mediation process facilitated by a qualified third party.
- Failure to do so is likely to result in the refusal of the eviction order.
On 1 April 2024, the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA) was amended to introduce, among others, mediation or conciliation as a formal dispute resolution mechanism in eviction proceedings. Shortly thereafter, the Land Court Act, 2023 (Act 6 of 2023) came into effect on 5 April 2024, further shaping the legal landscape of tenure-related disputes.
The amendments to sections 10(1) and 11(2) of ESTA address the eviction of individuals who were occupiers on 4 February 1997 (the so-called section 10 occupiers) and those who became occupiers on or after 4 February 1997 (the so-called section 11 occupiers), respectively. Among others, they provide that an eviction order may only be granted if the owner or person in charge, or the occupier, has first attempted to resolve the dispute through mediation in terms of section 21, or referred it to arbitration in terms of section 22. Furthermore, the court must be satisfied that the dispute could not be resolved through those processes before granting an eviction order.
A full bench of the Land Court recently considered several key questions arising from these amendments:
- Is the mediation requirement under sections 10(1) and 11(2) mandatory?
- Can good faith attempts at settlement or meaningful dialogue qualify as mediation?
- Does the mediation requirement apply to matters initiated prior to the amendments on 1 April 2024?
Mandatory mediation
Regarding the first question, the Land Court held that the mediation requirement is mandatory. Formal mediation therefore constitutes an additional prerequisite that must be fulfilled prior to the granting of an eviction order.
In practical terms, this means the Court may only issue an eviction order under these provisions if the landowner or person in charge has first attempted to resolve the dispute through formal mediation, and that mediation has been unsuccessful.
The Court emphasised that mediation serves as an essential mechanism through which stakeholders involved in ensuring security of tenure can work towards common ground. Stakeholders include the relevant municipality, the Department of Rural Development and Land Reform, and the MEC for Human Settlements. Importantly, the mediation process is available from the earliest stages of a dispute and should be utilised as soon as possible within the resolution process.
Mediation versus settlement
In addressing the second question, the Land Court drew a clear distinction between formal mediation and other informal settlement efforts.
The Court examined the defining features of formal mediation as set out in section 21 of ESTA. It identified three key characteristics:
- Mediation must be conducted by one or more individuals with expertise in dispute resolution.
- The mediator’s role is to convene meetings between the parties and to facilitate the resolution of any dispute arising under ESTA.
- All discussions, disclosures, and submissions made during mediation are privileged, unless the parties agree otherwise.
The Court held that these features distinguish formal mediation, as contemplated by the mediation requirement in ESTA, from mere good faith settlement negotiations between the parties.
Settlement negotiations, by contrast, are typically conducted directly between the landowner (or person in charge) and the occupier, without the involvement of an independent third party, the municipality, or the relevant government department. Such discussions are also not confidential. Accordingly, the Court found that genuine or good faith discussions alone do not amount to mediation as required by ESTA.
Therefore, a landowner or person in charge cannot rely solely on failed discussions with an occupier to meet the statutory mediation requirement. To obtain an eviction order, it must be demonstrated that a formal mediation process was undertaken in terms of section 21, and that the process was either unsuccessful or the dispute could not be resolved through mediation.
Retrospectivity and mediation
In relation to the third question, the Land Court held that the amendments do not have retrospective effect. However, the Court emphasised that a presiding officer retains the discretion to refer so-called ‘old’ cases for mediation if they consider mediation an appropriate means to determine whether an eviction would be just and equitable.
Accordingly, landowners seeking an eviction order under sections 10 or 11 must initiate a formal mediation process facilitated by a qualified third party. Failure to do so is likely to result in the refusal of the eviction order. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, send an email to the author at clarissap@mmlaw.co.za or phone 033 032 0241 (Pietermaritzburg) or 018 297 8799 (Potchefstroom).
