Stopping cattle grazing ‘is eviction’

The Land Claims Court has ruled removing grazing rights can amount to an eviction.

Sitting in Randburg, the court has given a broader interpretation of the Extension of Security and Tenure Act (ESTA), holding that ESTA occupiers also have rights to graze their livestock.

Previously, courts, including the Supreme Court of Appeal (SCA), held that the Act was for housing rights and that grazing was only permitted with the consent, tacit or otherwise, of the landowner.

But Judge Susannah Cowen, in a ruling handed down earlier this month, said the Act demands a more generous interpretation.

“It will frequently be the case, at least in cattle grazing country, as in this case, that the use of the land for grazing will be linked to a right of residence in terms of ESTA.

“If an occupier is deprived against his or her will of the right to use grazing linked to such right of residence, it will amount to an eviction and, in turn, it will be subject to the protections of ESTA,” said Cowen.

Cowen found that the occupiers had “tacit consent” because the farm owners had taken four years to approach the court.

In the matter before her, the Moladora Trust, which owns a farm in North West, brought an application against the children of Meriam Mereki, a former farm employee who died on an unspecified date “before 2017”.

The trust accepted that the family were occupiers in terms of ESTA, but said their rights of occupation were only for residential purposes and they had never obtained consent to graze cattle on the farm.

The trust served “eviction notices”, demanding the removal of the cattle in 2018 and in 2020. The sheriff said the notices could not be served because the occupiers were aggressive and “extremely violent”. The application came before Cowen unopposed.

The judge said she was required to consider whether security of tenure protected by the constitution and ESTA included the right to graze cattle. The Constitutional Court has yet to pronounce on the issue, she noted.

However, the SCA had determined that occupiers’ rights to grazing do not derive from ESTA, “but are personal in nature and derive from consent” because such a right would intrude upon the common law rights of a farm owner.

But, said Cowen, the eviction provisions in ESTA defined evict to mean “to deprive a person against his or her will of residence on land or use of land”. “This definition clearly indicates the ambit is not restricted to deprivation of residence on land.”