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The law and outcomes contained in court orders may appear harsh at times, much like a sentence for an offence. This is the one instance in which government authority and power are mobilised to enforce a particular order of the court, once the court has been persuaded to grant a remedy in favour of one party.

Evictions are no exception. A residential eviction involves the physical removal of people and their belongings from the premises where they reside. This is perhaps also why the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) stipulates that evictions must remain a last resort and may only be granted once the court has taken all circumstances into account. In this regard, the legislation also provides for the rights of children, elderly people, and female-headed households to be considered.

Are evictions the only way out?

The question is whether evictions are the only option, specifically with regard to dispute resolution between landowners and occupiers of land within the regulated framework of the legal obligation and relationship between the parties involved in terms of the Security of Tenure Act, 1997 (Act 62 of 1997), or the ESTA.

The answer to this question is contained in the wording of Section 10 of the ESTA, which links the relationship between landowners and occupiers of their land to two elements, namely:

  • A contract with rights and obligations.
  • A relationship between people, which can be measured by values such as respect, trust, communication, and co-operation.

This is also why the breach of an oral or written contract, or the irreparable breakdown of the relationship between landowners and occupiers, would be legal grounds for eviction under the provisions and requirements of the ESTA.

Relationship conflict on the farm

Outside of the framework of politics and rhetoric over tenure on farms, the reality is that landowners and farm dwellers, or farm dwellers and other farm dwellers, must share a geographical space. This is even more complicated on farms, as natural resources such as water are linked to availability.

There is no doubt that conflict is inevitable when people share a geographical space which they use to carve out their day-to-day existence.

There is no doubt that conflict is inevitable when people share a geographical space which they use to carve out their day-to-day existence. At the same time, suitable and effective legal mechanisms should be in place to serve as a proverbial outlet for conflict, and eviction should be a last resort.

However, the harsh reality is that the ESTA, and the way it is enforced in practice, does not provide for an alternative dispute resolution mechanism. Eviction, and the arduous, costly process involved, is currently the only ‘outlet’ for these disputes.

Fuel on the fire

The negative effect of this lack of alternative dispute resolution mechanisms is exacerbated by the fact that various unregulated organisations are becoming increasingly involved in disputes between landowners and farm dwellers, and that their motives are fuelling conflict instead of finding solutions to it.

Efforts by the Department of Agriculture, Land Reform and Rural Development to resolve disputes are ineffective, as the officials are often perceived as subjective and, almost without exception, lack the necessary knowledge of legislation, applicable case law and mediation skills.

In rural communities, good on-farm work relationships are crucial for commercial farming success, but even more so in a climate where these people are often the targets of violent crime.

Possible alternatives to evictions

An objective view of the nature and extent of the legal and human relationship between landowners and farm dwellers should justify a new approach to this issue. This approach will require a concerted effort to incorporate alternative ways of dispute resolution (for example mediation) into conflict management.

An alternative method of dispute resolution needs to have enforceable outcomes in order to eliminate legal uncertainty between the parties.

Lastly, it makes sense to start regulating people or organisations, other than admitted attorneys who provide legal advice, as in the case of employers’ organisations and trade unions. This will ensure that people involved in these disputes are held accountable and will prevent people or institutions with ulterior motives from becoming involved.

A better and more positive approach to repairing relationships through conflict management will mean that evictions become a last resort in all cases. It is a solution in which less activism and more humanity is the driving force. – HJ Moolman, Moolman & Pienaar Incorporated

For more information, contact HJ Moolman on
018 297 8799, 018 297 0397 or hj@mmlaw.co.za.