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- 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 tacit consent or another legal right to do so.
- In the case of Goedverwachting Farm (Pty) Ltd vs Roux and Others 2024 JDR 2279 (A) (the Goedverwachting case), the Court of Appeal had to consider whether the Land Claims Court was correct in finding that it lacked the required jurisdiction to consider an eviction application and grant an order.
- The Land Claims Court dismissed an eviction application for the removal of the respondents (occupiers) from the farm, as the presiding officer believed that, based on the so-called probation officer’s report, the respondents were operating a commercial farming enterprise on the land.
- The question therefore is at which point a person must meet the definition of an occupier to be eligible for protection under ESTA. In the Hallè and Another vs Downs 2001 JDR 0279 (LCC) case, the Land Claims Court ruled that ESTA requires evaluating a person’s circumstances at the time when eviction steps are being considered.
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 tacit consent or another legal right to do so.
This definition does, however, exclude two categories of people:
- People using or intending to use the land in question mainly for industrial, mining, commercial, or commercial farming purposes. However, this does not include people who work the land themselves or employ family members only.
- People earning incomes exceeding the prescribed amount of R13 625.
Based on the first category, in the case of Goedverwachting Farm (Pty) Ltd vs Roux and Others 2024 JDR 2279 (A) (the Goedverwachting case), the Court of Appeal had to consider whether the Land Claims Court was correct in finding that it lacked the required jurisdiction to consider an eviction application and grant an order.
The Land Claims Court dismissed an eviction application for the removal of the respondents (occupiers) from the farm, as the presiding officer believed that, based on the so-called probation officer’s report, the respondents were operating a commercial farming enterprise on the land.
In the application for leave to appeal, the applicant (landowner) alleged that the first respondent was indeed an occupier under ESTA, since the first respondent merely engaged in farming activities on the farm but did not run a commercial farming enterprise; even if it was assumed that the first respondent did indeed operate a commercial farming enterprise, this respondent was working the land himself and only employed family members.
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The Court of Appeal upheld the appeal by the landowner and found the following:
- The Land Claims Court’s finding that the respondents do not fall within the scope of ESTA was solely based on the probation officer’s report.
- The probation officer’s report was not made under oath and therefore could not be used in court. Thus, the report could not substitute evidence and testimony.
- The presiding officer in the Land Claims Court erred by determining that the respondents were excluded from the definition of ‘occupier’ according to Section 1 of ESTA.
- The respondents did indeed meet the definition of an ‘occupier’, and it is fair and just to grant an eviction order against the first respondent and all those residing on the farm because of him.
Regarding the second category, in the case of Lebowa Platinum Mines Ltd vs Viljoen 2009 (3) SA 511 A (the Lebowa Platinum Mines case), the Court of Appeal had to determine whether the respondent met the definition of an occupier. The following was found:
- While vulnerable individuals were the primary concern when ESTA was enacted, the courts are nevertheless obligated to consider the provisions stipulated in Section 26(3) of the Constitution of the Republic of South Africa, 1997 (Act 108 of 1996) in interpreting ESTA.
- The respondent did not qualify as an occupier during his tenure, as he was employed and earned an income exceeding the prescribed income threshold.
- After termination of his service and him no longer earning an income, the respondent continued to reside on the farm with the applicant’s permission, the nature of which placed him within the scope of an occupier. He also did not use the farm for industrial, mining, commercial, or agricultural purposes.
The question therefore is at which point a person must meet the definition of an occupier to be eligible for protection under ESTA. In the Hallè and Another vs Downs 2001 JDR 0279 (LCC) case, the Land Claims Court ruled that (which ruling was quoted and approved by the Court of Appeal in the Lebowa Platinum Mines case) ESTA requires evaluating a person’s circumstances at the time when eviction steps are being considered. This assessment determines whether the person qualifies as an occupier according to ESTA.
The court acknowledged that a person’s circumstances can change during legal proceedings, potentially affecting his or her occupier status.
For more information, contact the author on 033 032 0241 or at clarissap@mmlaw.co.za. – Clarissa Pienaar, Moolman & Pienaar Incorporated
