The restoration of human dignity, security of tenure and land dispossession are intertwined with the Extension of Security of Tenure Act (ESTA), say land law experts.
The act deals with “the eviction of lawful occupiers of rural, peri-rural and underdeveloped land and farms.”
While ESTA was amended in 2018 and signed by President Cyril Ramaphosa a year later, it is yet to be implemented. This now increasingly hampers relationships between farmers and farm dwellers.
A Constitutional law expert, Professor Elmien du Plessis of North-West University, explains that ESTA plays an instrumental role in many of the controversial cases that have recently made headlines.
Besides being a law lecturer, Du Plessis has previously advised Ramaphosa’s advisory panel on land reform and agriculture.
Recent examples of where ESTA has come into play, include the case of an Eastern Cape tenant farmer family who are being evicted from a farm bought by the husband of a high-profile politician.
When are farm evictions legal?
Furthermore, many people seem to have misconceptions about what constitutes legal farm evictions.
This is also covered by the ESTA with Du Plessis clarifying that evictions do not apply to those who have become “long-term occupiers.”
“People over 60 who have resided on the farm for at least ten years, may only be evicted if they have alternative accommodation or have violated terms of their occupation,” says Du Plessis.
Meanwhile Siya Sithole, programmes manager for the Association for Rural Advancement (AFRA), says their land rights NGO had first-hand experience of the skewed power balance between landowners and occupiers.
AFRA works with both occupiers and farm dwellers, and have seen an increase in unlawful evictions.
Noluthando Ngcakani: How would you explain ESTA to an ordinary South African?
Sithole: ESTA was enacted in 1997. It intended to specify and protect the rights of occupiers and landowners, particularly on farms.
Before its enactment, farm occupiers did not have steady dwelling rights. Their rights were not in the precipice of law. They found themselves being abused. They found themselves mistreated.
The act lists that an occupier has the right to dignity, while in the same breath the landowner has the right to run their commercial enterprise without interruption.
Du Plessis: ESTA applies to all people living on farms with the consent of the owner property zoned agriculture. The person must have the consent of the owner (or person in charge). If the person no longer has consent and refuses to leave, the owner must apply to the courts for an eviction order.
What constitutes as consent within the legal framework of ESTA? Food For Mzansi has seen a number of recent evictions where land occupiers only had a verbal agreement with the landowner.
Sithole: This consent can either be complicit or implicit. If it is complicit, it will be an arrangement where the owner will allocate a portion of land and give you permission to live there.
It is implicit when the occupier lives there but has no consent from the landowner and they do not remove you in a period of 12 months. The owner has then given you implicit consent.
How can you protect yourself within the legal framework, both as a landowner and occupier?
Sithole: Farm landowners have abused ESTA to reflect what seems like a lawful eviction when it is not. ESTA prescribes how you institute and how you proceed with evictions. As the landowner, you must give notice.
You must approach the court, and there must be a report conducted by a probation officer from the department of agriculture, land reform and rural development. It provides a procedure on how evictions must take place.
Often landowners have access to lawyers who follow the procedures within the legal framework of eviction. By the time an occupier is informed of their eviction, it is too late. They should have never been evicted, and they had a fighting chance, it’s too late.
What happens to occupiers when farm owners change their address? Can they be evicted according to ESTA?
Sithole: You find some occupiers who have been on the farm longer than the landowner. Those evictions are unlawful. When a farm exchanges hands in terms of ownership, it does not alter the rights of those who are occupiers on the farm.
It is lack of knowledge and unawareness of rights where an occupier allows a new landowner to come and evict them. Those are what we call unlawful evictions.
When can an occupier then be legally evicted from the land? What kind of protocols must be observed?
Du Plessis: Rights that have vested in terms of the act can only be terminated in terms of the act. And owners cannot try by other means to make living deplorable for people, for them to leave – that would be a constructive eviction.
The right of residency may only be terminated on legal grounds, such as:
- If the occupier breached the provisions in the act, for instance by causing harm or damage.
- If the occupier breached a material and fair term of the agreement reached between the occupier and the owner and the owner has kept his or her part of the agreement and it’s not possible practically to remedy it.
- Where the occupier was an employee whose right of residence arose solidly from that employment and has voluntarily resigned in circumstances that do not amount to constructive dismissal in terms of the Labour Relations Act.