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- An occupier, as defined by the Extension of Security of Tenure Act (Esta), is a person who resides on land owned by another with consent or legal right to do so.
- On 1 April, amendments to Esta defined ‘reside’ as ‘to live at a place permanently,’ impacting protection under the act.
- The definition of ‘reside’ and rights regarding livestock were tested in the Mtshali vs Bencor Eiendoms case by the Land Claims Court.
- The court ruled that the applicant voluntarily vacated the farm and established a permanent homestead elsewhere, thus no longer being an occupier under Esta.
- The court upheld that the right to keep livestock on someone else’s land is not a right under Esta, but a personal right based on consent, which had been revoked.
An occupier, as defined by Section 1 of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or Esta, is a person who resides on land owned by another person and who, as of 4 February 1997 or thereafter, has explicit or implied consent or another legal right to do so.
On 1 April this year several amendments were made to Esta, among them the definition of the term ‘reside’, a prerequisite for protection under Esta, which is now explicitly defined as ‘to live at a place permanently’, with ‘residence’ having a corresponding meaning.
Read more about Amendments in respect of tenure on farms.
New definition tested
The definition of ‘reside’ under Esta, along with the legal position concerning the keeping of livestock, as ratified by the Court of Appeal, was recently tested in the case of Mtshali vs Bencor Eiendoms (Pty) Ltd (LCC39/2024) (the Mtshali case) by theLand Claims Court. Among others, the applicant, Mr Mtshali, urgently sought the following legal assistance:
- A declaration that he is an occupier of Wagendrift (the farm) and that his rights are protected under Esta.
- An order declaring the removal or prohibition of the entry of 31 head of cattle from a designated camp to be wrong and unlawful, and that the cattle should be returned to the camp.
- An injunction preventing the respondents, or anyone acting on their behalf, from interfering with the applicant’s rights to let his cattle graze on the farm.
- An order requiring the respondents to take all necessary steps to ensure that the applicant’s cattle are returned to the designated grazing land on the farm.
Background of the case
The historical background is as follows: The applicant’s grandfather established a homestead on the farm. Some members of the Mtshali family worked for the previous farm owners. The farm was later sold to Mr Skead, a member of Lowlands Beef CC. Lowlands Beef CC employed the applicant, who resided at the Mtshali farmstead along with members of his family.
The applicant was authorised to keep cattle in a demarcated camp, for which he had to pay rent of R50 per head per month. However, his employment was terminated in 2020 or 2021 and, subsequently, the consent to keep cattle was withdrawn.
Following a feud with his younger brother, the applicant was prohibited from entering the homestead through a protection order. He requested alternative housing from Mr Skead, which was granted. The applicant later left the house and established his own homestead on Roode Poort Spruyt, a property owned by Transnet. During the appeal to the Land Claims Court, his cattle grazed on Roode Poort Spruyt. The farm was sold to the first respondent on 1 February 2024.
Land Claims Court rulings
The Land Claims Court had to address two main issues: whether the applicant was an occupier of the farm and therefore entitled to protection under Esta, and whether the applicant had the right to keep livestock on the farm, including the origin of that right.
Regarding the first issue, the Land Claims Court found that the applicant had voluntarily vacated the farm and subsequently established a permanent homestead at Roode Poort Spruyt, where he resided. He built a kraal on the property intended for cattle and the structures he erected indicated his intention to reside there permanently.
The Land Claims court rejected his appeal, concluding that he was not an occupier of the land as he claimed, but rather an occupier of Roode Poort Spruyt. In addition, the Land Claims Court found that he could not return to his parental home, due to a protection order preventing him from entering the Mtshali homestead.
In the matter pertaining to the keeping of livestock, the Land Claims Court upheld the existing legal position, referencing the Adendorff and Marge Property Holdings cases. The court stated that the right to keep livestock on someone else’s land is not a right under Esta, but a personal right arising from consent. Even if the applicant was an occupier on the farm, he would not be entitled to let his cattle graze there, as Mr Skead had revoked his permission.
For more information, contact Clarissa Pienaar on 033 032 0241 or at clarissap@mmlaw.co.za.
