ConCourt broadens interpretation of grazing rights under ESTA

IOL News

10 hours ago

The Constitutional Court ruled in favour of three brothers for their cattle to graze on the land belonging to a Trust.
Image: Nicola Mawson
THE Constitutional Court has afforded a broader interpretation to the Extension of Security of Tenure Act (ESTA) to include not only the right to reside on land, but also associated uses such as grazing and cultivation.
This followed an appeal before the apex court by three brothers against a Supreme Court of Appeal judgment which denied them the right to graze cattle on the land they are staying on. The SCA judgment followed an earlier Land Claims Court (LCC) judgment, which ruled in favour of the Mereki brothers. They are occupiers in terms of ESTA and reside on a farm owned by a trust in the North West Province.
The trust bought the farm in 2003 and the mother of the brothers previously occupied the farm and used it to graze cattle, but she had meanwhile died. According to the trust, the late Mrs Mereki derived consent to graze five heads of cattle due to her employment at the farm.
According to the trust, the right was personal to Mrs Mereki and was not transferrable to her children upon her death. However, after her death, her sons continued to live on the farm and continued to use the land to graze their nine heads of cattle.
They had never sought or obtained express consent to keep cattle on the farm. The Moladora Trust earlier turned to the LCC where they initially lost their legal bid for the brothers to remove their cattle.
Video Player is loading.
Play Video
Play
Unmute
Current Time
0:00
/
Duration
-:-
Loaded :
0%
Stream Type LIVE
Seek to live, currently behind live
LIVE
Remaining Time
-
0:00
This is a modal window.
Beginning of dialog window. Escape will cancel and close the window.
Text Color White Black Red Green Blue Yellow Magenta Cyan
Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan
Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan
Transparency Transparent Semi-Transparent Opaque
Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps
Reset
restore all settings to the default values Done
Close Modal Dialog
End of dialog window.
Advertisement
Next
Stay
Close ✕
Ad loading
The LCC ruled that terminating grazing rights without engagement may constitute an eviction under ESTA. On appeal, the SCA held that the applicants never obtained explicit consent to graze livestock and that Mrs Mereki's right to do so did not automatically transfer to them upon her death.
The brothers argued before the Constitutional Court that ESTA occupiers who had consent to reside on a farm acquired an automatic right to keep and graze cattle. Judge Owen Rodgers, who wrote the consenting ConCourt judgment, said this argument had far-reaching implications for the rights of both owners and ESTA occupiers, and the LCC, as a specialist forum, was best placed to determine it at first instance.
The Court considered the historical background of dispossession and noted that the Constitution had been enacted with the intention of securing tenure and guaranteeing rights associated with the use of land for cultivation and grazing. It found that section 39(1) of the Constitution required that tenure under ESTA be given a broad and generous interpretation, rather than a narrow one.
In interpreting ESTA, the court highlighted several provisions that referred not only to residence but also to the use of land. Particularly instructive were the definitions of 'evict' and 'terminate', along with other provisions envisaging that an occupier might have consent to cultivate crops or graze animals. The court held that the legislature had inconsistently included 'use of land' when referring to the right to 'reside on land'.