It is important to remember that the origin of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997), or the ESTA, was the legislature’s response to the constitutional provisions contained in Sections 25(6) and 25(9) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996),or the Constitution.

Section 25(6) of the Constitution states that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices, is entitled to either tenure which is legally secure or to comparable redress.” Section 25(9) stipulates that Parliament must enact legislation guaranteeing tenure or compensation, hence the ESTA.

Protecting the occupier

The ESTA protects people who have permission to live on land belonging to another person. A person who has been granted permission to live on the land by the owner of the land or person in charge, is considered an occupier. The basis for such protection is that occupiers obtain their right of tenure by virtue of the consent of the owner or person in charge of the land.

However, the ESTA does not apply in instances where the compensation of the person living on the land exceeds R13 625.

Rights and obligations

An occupier with tenure has certain rights and specific duties towards the landowner or person in charge. The ESTA grants occupiers the right to occupy and utilise the land in question; it also protects them from certain restrictions pertaining to their right of tenancy and utilisation.

Occupiers have the right to security of tenure, to receive bona fide visitors, and to receive mail and other communication. They have the right to a family life, to bury a deceased member on the land in certain circumstances, as well as the right not to be deprived of or prohibited from accessing water, education, or health services.

In addition, owners, people in charge and occupiers have the right to human dignity, freedom and security of their person, privacy, freedom of religion, freedom of association and freedom of movement.

Nevertheless, occupiers also have certain obligations and, in terms of Section 6(3) of the ESTA, may not:

  • Wilfully and illegally harm another person living on the land.
  • Intentionally and illegally cause material damage to the property of the owner or person in charge.
  • Be involved in actions that intimidate or threaten other occupiers or occupiers in the area.
  • Enable or assist people in erecting new dwellings on the land in question.

Revoking tenure

As the occupier’s security of tenure and utilisation of land is based on consent, these rights can be revoked by withdrawing such consent.

However, the provisions set out in Section 8 of the ESTA limits the cancellation of consent; the general rule is that an occupier’s security of tenure can only be terminated on legal grounds and only if the process is fair and equitable.

Consent may be withdrawn if the occupier is guilty of the previously mentioned conduct. For example, if an occupier is guilty of theft, erecting structures without permission and/or the sub-letting thereof, arson or violating the fair conditions of tenure.

This list is incomplete and should not be regarded in isolation, as each case’s merits and considerations differ.

However, the owner or person in charge must grant the occupier the opportunity to make representations in certain instances before deciding on terminating the occupier’s security of tenure. If the owner summarily terminates tenure without granting the occupier the opportunity to make submissions, the termination of tenure will be invalid.

Eviction of occupiers

If the occupier, after his or her tenure in terms of Section 8 of the ESTA has been terminated, refuses or fails to vacate the land, the owner must give two months’ notice to the occupier, municipality and provincial office of the Department of Rural Development of his/her intention to request an eviction order.

Once the court has approved an eviction order, the court can determine a fair and equitable date on which the occupier must vacate the land. The court may also determine the date on which the sheriff of the Supreme Court must execute the eviction order if the occupier fails to vacate the land.

Compensation for improvements

In instances where the occupier has erected structures, made improvements to the dwelling or has any planted crops, the court may order the owner to pay fair and equitable compensation, provided that consent has been given for the aforementioned and that the improvements are still functional.

The court may also grant the occupier the opportunity to dismantle the structures and/or cultivate and harvest the planted crops.

For more information, contact Clarissa Pienaar on 018 297 8799 or send an email to clarissap@mmlaw.co.za or hj@mmlaw.co.za. – Clarissa Pienaar, Moolman & Pienaar Incorporated, FarmBiz