It is important to adopt a proactive approach to farm relationships. The reality is that people who live on farms often have close ties. They should therefore tap into the resources at their disposal and join forces to create a sustainable future.
The law has not yet succeeded in defining this relationship to give it proper effect. Existing legislation that regulates the relationships between landowners and farm dwellers has, however, addressed certain aspects of the relationship and it is imperative that it is well understood.
Fundamental and tenure rights
In legal terms, the relationship between people is defined as a system of rights and obligations. Where it pertains to tenure on farms, the Extension of Security of Tenure Act, 1997 (Act 62 of 1997, or the ESTA) recognises the fundamental rights of landowners and farm dwellers – rights that also apply to citizens and the state, and to relationships between citizens.
This includes, inter alia, rights such as freedom of movement, freedom of association and the right not to be deprived of access to water. Most South Africans are aware of these rights and there are very few disputes that arise due to their infringement or deprivation.
In addition to fundamental rights, the ESTA recognises certain rights that are directly related to tenure, as well as instances where problems – both with the interpretation and practical application of these rights on a farm’s unique circumstances – arise that may end in the courts.
These include issues such as the right of farm dwellers to receive visitors, the right to bury deceased family members and the right to visit graves after the farm has been vacated. Each of these rights has its own practical application in the rulings made by the courts. Proper and expert advice is consequently required in cases where a dispute arises.
Services to farm dwellers
In addition to the rights defined in the ESTA, provision is also made for rights that are unique and which may result from an agreement with the owner, in which certain rights will be provided to farm dwellers. This includes access to electricity, the right to keep livestock and to cultivate a piece of land.
The courts lawfully regard these rights as rights arising from an ordinary agreement and the legal principles applicable to ordinary agreements therefore apply. These rights, however, must be exercised in equilibrium and cannot exclude the rights of the owner.
It is difficult at times to define this type of equilibrium, but due to the absence of any other practical measure, reasonable actions by both the landowner and the farm dweller serve as a measure by which the pursuit or restriction of these rights is considered.
Lastly the ESTA implicitly, and not explicitly, acknowledges a relationship between the landowner and farm dwellers. It is extremely difficult to define this relationship legally.
One of the few areas in which the law deals with relationships and their nature is in marriage law. Although it is not legally possible to limit the marital relationship between spouses to one ideal set of principles, a workable relationship can be measured against some basic principles or values.
These values or principles should not be regarded as comprehensive, but issues such as trust, meaningful communication, mutual respect, consideration and cooperation should be a clear indication of the existence of a workable and sustainable relationship.
When the relationship between landowners and farm dwellers lacks these principles and values – using the same geographical space people live in, work in and build in as context – it will reflect an irreparable breakdown of the relationship between landowner and farm dweller.
It is essential that landowners and farm dwellers are aware of these rules that can be used to measure their mutual relationship. It is of even greater importance to understand that each farm or piece of land has unique circumstances, and that the relationship between the particular landowner and farm dweller must be approached from its own specific and different angle. – HJ Moolman, Moolman & Pienaar Incorporated
For more information, contact HJ Moolman on 018 297 8799, 018 297 0397 or firstname.lastname@example.org.