Mediation and not “good faith negotiations” is mandatory before landowners can approach courts seeking evictions under the Extension of Security of Tenure Act (ESTA).
This is the ruling of a full bench of the Land Court after litigants raised concerns about ambiguities between amendments to ESTA, and the introduction of the Land Court Act, which both came into effect in April 2024.
In their ruling this week, Land Court Judge President Zeenat Carelse, deputy Judge President Susannah Cowen and Judge Brian Spilg said while mediation might limit the right of landowners to access to court, any such limitation would be reasonable and justified, given the underlying intention of the legislation.
Moreover, they said, this limitation was not extensive as mediation was intended to be, and should be, conducted speedily and effectively, and court process could be pursued if mediation failed.
Importance of land reform mediation
The issue came before the court on the back of eight eviction applications in terms of ESTA.
The judges said those matters would be dealt with separately.
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The issue before them was whether the amendments to ESTA requiring mediation were in force, whether the amendments applied retrospectively, and whether “good faith attempts or meaningful engagements” constituted mediation.
The judges said ESTA was intended to protect tenure rights of individuals and families residing on rural land who had historically been vulnerable to arbitrary evictions.
“It seeks to strike a fair and constitutional balance between the rights of landowners and those of occupiers, thereby promoting justice and secure and equitable land relations in post-apartment South Africa.”
The 2024 amendments, they said, introduced mediation as a requirement for the granting of certain eviction orders.
They said the Land Court Act was “ambitious legislation” intended, amongst other things, to ensure that land reform accelerated in a lawful and equitable manner, guided by progressive jurisprudence.
It introduced far reaching changes to the legal landscape and entrenched mediation as a central means to resolve disputes.
“As matters transpired, these legislative developments introduced a level of uncertainty among litigants,” they said.
Litigants had questioned whether, in view of the new Land Court Act, mediation was still necessary under ESTA. But, the judges said, looking at the purpose of both Acts, it was clear that Parliament had not intended to repeal the mediation requirements in ESTA.
“The benefits of mediation are compelling. By encouraging amicable settlements, it relieves the burden on the overextended courts, offers a more cost effective alternative to prolonged litigation and enables swift resolution of disputes.
“It encourages constructive dialogue and mutual understanding, often preserving long-standing relationships between parties.”
“In enacting the Land Court Act, the conclusion is inescapable that the legislature intended to entrench mediation as a central means of resolving land disputes where this is possible.”
“It would squarely defeat these objectives if the Land Court Act were interpreted to repeal the mediation requirements of ESTA.”
“As a consequence, the law as it stands is that mediation requirements introduced to both subsections by the amendment Act are in force.”
Mutual agreement
Turning to whether mediation was mandatory or if good faith settlement attempts would suffice, the judges said a contextual reading of the amendments supported the conclusion that mediation was mandatory.
Mediation, they said, should be pursued as early as possible in the dispute resolution process and both parties should be legally represented, to ensure equality of arms.
ESTA set out that mediation must be conducted by one or more persons with expertise in dispute resolution who must facilitate a meeting of all interested parties. Discussions, disclosures and submissions would be “privileged” unless otherwise agreed.
This, the judges said, distinguished mediation from good faith attempts to settle a matter, which would usually only involve the landowner and occupier, without the assistance of an independent third party and without the involvement of the relevant municipality or government department.
“Meaningful engagement is not conducted with the assistance of independent third parties, it may not include all interested parties and it is not confidential,” they said.
“There may be an undesirable inequality of arms between the parties during the process.”
They said while their ruling meant that parties would have to go to mediation before approaching the court, this would not apply retrospectively.
“What that would mean is that an applicant, who has in good faith, pursued an eviction would, at the eleventh hour, be told to resolve their dispute in a wholly different way.”
They ruled that the mediation requirements of ESTA would not apply to pending proceedings instituted in the Land Court or magistrates’ courts before 1 April 2024.
- This story was first published on GroundUp.
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