Estimated reading time: 5 minutes
On Friday, 1 August 2025, ten Constitutional Court judges unanimously ruled in favour of three brothers who were denied access to grazing after their mother’s passing.
In essence, the court found that the landowner, the Moladora Trust, was wrong to deny Magalone, Topies, and Dikhotso Mereki grazing access and that this boiled down to eviction under the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA).
Judge Owen Lloyd Rogers said in his ruling the key question was whether the Mereki siblings were entitled to keep cattle on the farm, and if so, whether the termination of that right had to comply with ESTA. “The Land Claims Court (LCC) and Supreme Court of Appeal (SCA) gave opposite answers: The LCC answered ‘yes’ to both questions, the SCA answered ‘no’ to the first question and so did not reach the second.”
Long legal battle
Moladora Trust became the owner of the farm in May 2004. According to Marius Nel, a Moladora-trustee, the Merekis’ mother, Meriam Mereki, passed away prior to 2017. While Meriam, an employee of the farm, had permission to keep five head of cattle on the farm, the three sons did not seek nor get express consent to keep cattle on the farm. Yet, they continued to keep nine head of cattle on the farm after her death.
“After the late Mrs Mereki died, Mr Nel ‘made some efforts to engage’ the Merekis on the fact that he had not given them consent to keep livestock on the farm,” Judge Rogers said, adding that the Merekis allegedly abused Nel and told him that they would not remove their cattle.
Subsequently the Trust’s attorneys caused the sheriff to serve letters on the Merekis in January 2018 to remove the cattle within 30 days. The letters stated that the Merekis lived on the farm solely by virtue of the employment of their late parents. While their parents had had permission to keep five head of cattle, this was personal to them as employees, the letters stated.
The cattle were not removed and in September 2020 the Trust’s attorneys caused the sheriff to serve further letters on the Merekis for the removal of the cattle. According to the sheriff the Merekis’ aggressive behaviour made it impossible to personally deliver the letters, so he left the notices with another person living at the Merekis’ homestead.
Still the cattle were not removed. In May 2022, after the lapse of another 20 months, the Trust launched proceedings in the LCC for orders that the Merekis forthwith remove their animals and that the sheriff would get the help of the South African Police Service (SAPS) and the district’s pound master to do so if they did not comply. This letter not only pertained to the cattle, but also included horses and sheep kept by the brothers.
The matter was subsequently served before the LCC in 2022. On 11 November 2022, the LCC dismissed the application with no order as to costs. The Judge said that a generous construction of ESTA was to be preferred over a purely textual or legalistic one. The Act was legislation giving effect to section 25(6) of the Constitution. The history of colonial dispossession had to be borne in mind when interpreting and applying ESTA, the LCC court ruled at the time.
The Moladora Trust, however, appealed to the Supreme Court of Appeal where the South African Human Rights Commission (SAHRC) and the Association for Rural Advancement (Afra) were granted leave to make written and oral submissions as friends of the court. In 2024 the SCA upheld the appeal with no order as to costs. It substituted the LCC’s order with one granting the relief the Trust had sought originally.
Read more about the SCA ruling here.
However, on Friday the Constitutional Court overruled the SCA’s ruling.
Takeaway lessons
Hans-Jurie Moolman, a land reform legal specialist and director of Moolman & Pienaar Inc., said there are a few critical takeaways that farmers needed to keep in mind.
“The court did not rule that keeping livestock is an automatic right, but worryingly, found that the door is open for someone to raise it in the future,” Moolman said, adding that this was refused because the argument was raised for the first time in the Constitutional Court. “This does not mean that such a point will succeed, but it still leaves risk and legal uncertainty on the issue.”
To keep livestock is not an automatic right of farm dwellers, but as soon as a landowner gives permission, it immediately becomes a right that is protected under ESTA legislation.
“Landowners also need to take note that permission can be given silently if action is not taken against people keeping livestock on the land without permission,” Moolman said, adding that there might be an assumption of permission after a farm dweller has kept an animal on the land for longer than 12 months, but this can still be refuted by the owner.
However, if animals are kept for a period of longer than three years, it will be deemed as though the person has consent to keep the animals. As soon as consent has been given – either directly or silently – the landowner will need to comply in terms of section 8 of ESTA legislation to have the livestock removed from the land.
Landowner check list
Moolman said landowners should follow this checklist if someone keeps livestock on their land:
- Do not ignore it. If someone is keeping livestock on your land, you must act.
- Know the rights of people living on the land if you are considering buying a farm.
- Try to obtain a written contract for those living on the land with regard to keeping livestock on the land.
- Try to contain the livestock of farm dwellers to a camped-off area of the land.
- Manage livestock numbers and growth of farm dwellers.
- Ensure that all livestock owners have a registered cattle brand and that all animals are branded correctly and legibly.
- Ensure that all cattle are properly treated for animal disease.
- Ensure that the animals do not contribute to overgrazing.
“In short, producers need to ensure that all livestock on their property is managed properly.” – Susan Marais, Plaas Media
For more information, readers can contact Hans-Jurie Moolman at 018 297 8799.
