In a previous article, we discussed the legal obligations that rest on landowners and farm dwellers regarding the keeping of livestock. However, what if farm dwellers allow their cattle to overgraze agricultural land? Do landowners need to provide alternative grazing to these farm dwellers?
In terms of Section 24 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), everyone has the right to an environment that is not harmful to their health or well-being, as well as to have the environment protected for the benefit of present and future generations. The Conservation of Agricultural Resources Act, 1983 (Act 43 of 1983), or CARA, aims to ensure that everyone’s right to a healthy, protected environment is realised.
What does the law state?
The provisions of the CARA apply to both the landowner and the farm dweller as a land user. Landowners and farm dwellers therefore have certain legal obligations to prevent land from being overgrazed. Specific control measures must be put in place to prevent erosion, as well as to conserve and improve vegetation.
These control measures may relate, inter alia, to the grazing capacity of the soil, the number and type of animals that may be kept on the veld, and the rehabilitation or recovery of eroded soil, or soil that has been disturbed or exposed. The CARA also stipulates that land users – whether the landowner or farm dweller – who refuse to comply with a binding control measure are guilty of an offence.
Practical steps
If farmland is being overgrazed the livestock must be removed from the land to prevent further overgrazing. The next step is to rehabilitate the overgrazed land.
The landowner can appoint a grazing expert to investigate the current condition of the grazing. This will assist in assessing whether the particular camp has been overgrazed or not. The grazing expert will then prepare a report containing his or her remarks. If the grazing expert believes the land to be overgrazed, he or she will recommend a suitable course of action to rehabilitate the land.
If the recommendation entails resting the land and removing the livestock, the owner will, in a bid to fulfil his or her duty of protecting the environment and preserving the land, be able to file a court application and request the granting of an order to force the farm dweller to remove the livestock from the land for the period recommended by the grazing expert. The grazing expert’s report serves as evidence that allows for the issuing of an appropriate order by the Court.
Who is responsible?
The next question is whether the landowner is responsible for providing alternative grazing if the Court finds the land to be overgrazed and rules that livestock must be removed from the overgrazed areas. The short answer is no.
In the case of Adendorffs Boerderye (Pty) Ltd vs Shabalala and Three Others (LCC04/2014), the Land Claims Court, after considering a grazing expert’s report that found the area to be overgrazed and in need of rehabilitation, ordered the landowner to make alternative grazing available to the farm dwellers’ livestock.
As an alternative, the Land Claims Court ordered the minister of rural development and land reform (as it was known at the time) to make suitable grazing available to the farm dwellers’ livestock.
In the ruling of the Land Claims Court, the landowner was also liable for the transport and relocation costs of the farm dwellers’ livestock to the alternative grazing, and the landowner, along with the farm dweller, was responsible for paying the rent of the alternative grazing.
The landowner and the minister, however, successfully appealed this decision, and it was overturned by the Court of Appeal. The Court of Appeal ruled that neither the landowner nor the minister could be held responsible for making alternative grazing available or for bearing the transport and relocation costs of the farm dwellers’ livestock.
The ruling of the Court of Appeal also stipulated that the landowner could not be held responsible for the cost of renting the alternative grazing.
For more information, send an email to Clarissa Pienaar at clarissap@mmlaw.co.za or hj@mmlaw.co.za. – Clarissa Pienaar, Moolman & Pienaar Incorporated
