Land owners with staff who live on premises, take note

Legal Brief

LAND is a contentious issue in South Africa. Our history, as well as that of our fellow African countries, suggests that the issue of land ownership is not going to be resolved in the near future.

Land owners who either consent to having their labourers live on their property for the period of their employ or have people living on their property without their consent need to take cognisance of the legislation that protects such individuals.

The Extension of Security of Tenure Act 62 of 1997 (Esta) is one of many acts promulgated to protect people who, under pre1994 legislation, had few rights to land.

Esta protects the rights of “occupiers”. An occupier is anyone living on land that belongs to another with the owner’s consent or in terms of another right in law, but excluding anyone who earns more than the prescribed amount (currently R5 000 a month).

The owner of the land may terminate an occupier’s right of residence on any lawful grounds. A court will take into account all relevant factors when determining whether an occupier’s right to reside has been terminated, including the interests of the parties, the comparative hardship to the owner and the occupier and their respective conduct.

Esta provides further protection to those who have lived on the land for 10 years or more and have either reached the age of 60 or, as a result of ill health or disability, are unable to supply labour (long-term occupiers).

Long-term occupiers’ right to reside may only be terminated if the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land, if they have committed a fundamental breach of their relationship with the owner or if they have breached section 6(3) of Esta.

Section 6(3) is a list of material breaches – namely, the occupier must have harmed another person occupying the land, caused material damage to the owner’s property, engaged in threatening or intimidating conduct or assisted any unauthorised people to establish new dwellings.

This is a finite list of material breaches and an owner will be hard-pressed to prove any of them in court.

It becomes even more difficult when the occupiers act in a group and the owner is unable to identify the occupiers who committed the breach.

Esta has gone further than merely protecting the rights of individuals living on land that does not belong to them.

The law is now firmly on the side of the occupiers.

With regard to employed labourers, our advice is that both an employment contract and a lease agreement be concluded between the owner and the labourer.

Both agreements will link the termination of their right to reside with the termination of employment.

For all other occupiers, a notice to terminate residency must be served on them.

Land owners are advised to take the above steps sooner rather than later to ensure that the occupiers’ rights to their land are not entrenched indefinitely.

• Wade Ogilvie is an associate at Cox Yeats Attorneys and practises in the commercial and natural resources law team, specialising in business law, land claims and commercial litigation. He can be contacted on 031 536 8500 or via e-mail: wogilvie@coxyeats.co.za