The Extension of Security of Tenure Amendment Act (2018) came into force on 1 April 2024.

WHO IS COVERED BY ESTA?

ESTA covers people living in rural areas, on farms and undeveloped land. It also protects people living on land encircled by a township or land within a township marked for agricultural purposes. The Act specifically gives women occupiers the same rights as male occupiers. However, the Act does not cover:

• People who live in a proclaimed or recognised township
• Land invaders
• Labour tenants
• People using the land for mining or industrial purposes, for businesses or commercial farming
• People who earn more than R13 625 per month gross (before tax deductions)

WHAT DOES ESTA SAY?

ESTA says that if you have lived on someone else’s land – with permission of the owner – on or before 4 February 1997, you have a secure legal right to live on the land. An owner cannot change or cancel these rights without your consent unless there is a good reason for doing so, or until you have had a chance to answer any allegations made against you.

It sets out the steps you can follow to strengthen your land rights. You can apply for a state grant that can be used to secure tenure rights – either in the form of a development on the land where you are living, or on another piece of land. (See Land Acquisition or Settlement grants)

ESTA says you have the right to receive visitors, have your family live with you, access to water, health and education services, and receive post and other forms of communication. The Act also gives people the right to visit and maintain family graves in rural and peri-urban areas. This right must be balanced with the owner’s right to privacy. The owner or person in charge can set reasonable conditions on how this right is exercised.

The Act gives special rights to long-term occupiers. If you are older than 60 years, and you have lived on the land for 10 years, or if you become disabled while you were employed by the owner, you can stay on that land for the rest of your life. The rights of long-term occupiers can only be terminated if they intentionally harm or threaten anyone else occupying the land or deliberately damage property. The Act protects you against unfair and arbitrary evictions and sets out how disputes over land rights can be resolved with mediation, arbitration or the courts.

RIGHTS AND DUTIES OF OCCUPIERS AND OWNERS UNDER ESTA

The Act spells out clearly what are the rights and duties of occupiers and owners.

Occupiers must respect the fundamental rights of the owner, prevent visitors from causing damage and comply with the important and fair terms of the agreement with the owner. This is very important. If occupiers do not fulfil the agreement, they can be evicted without the option of alternative land.

The Act says that occupiers may not harm or threaten other people on the land, damage property or help others to build shelters unlawfully on the land.

Occupiers are protected against unfair and arbitrary evictions. People who have the right to security of tenure have a right to legal representation or legal aid if they cannot reasonably afford the legal costs and injustice would otherwise result.

Owners must respect the fundamental rights of occupiers, acknowledge the rights that this Act gives to occupiers and follow the provisions of the Act when they consider ending the rights of occupiers to stay on the land. The Act says owners or persons in charge have the right to:

• Set reasonable conditions regarding visits to occupiers’ homes and family graves
• Terminate an occupier’s right to stay on the land, if this is just and fair
• Apply for an eviction order Make an urgent application for eviction in certain circumstances

EVICTIONS IN TERMS OF ESTA

The following actions are all forms of evictions:

• Where the contract of employment is terminated and the person agrees to leave
• Taking away somebody’s right to live on land
• Taking away somebody’s right to use land
• Taking away somebody’s access to water and electricity if they live on the land
• Threatening occupiers so that they leave
• Stopping them from coming back onto land if they left but planned to come back, for example, they went away for a family visit

The Act protects you against unfair and arbitrary evictions. An eviction may be fair and occupiers may be evicted from land if they do something seriously wrong or refuse to honour agreements with the owner, such as not paying rent if they agreed that they would pay.

In cases where the eviction is fair, a landlord must follow the requirements of the law in getting an occupier to leave the property, for example, by giving the required notice (See When is an eviction lawful?). However, if the occupier refuses to leave, the landlord must then get a court order to enforce the eviction. If the occupier disputes the eviction then the reasons for this must be raised in court. The Act protects people who believe they have been unfairly evicted.

The Extension of Security of Tenure Amendment Act makes provision for occupiers and former occupiers to acquire suitable alternative accommodation. The Act mandates that a tenure grant would be paid to the provincial government or a municipality to enable it to facilitate, implement, undertake or contract with a third party for the provision of alternative accommodation for former occupiers.

When is an eviction lawful?

An eviction is lawful if the following requirements have been met:

• The occupier must get two months written notice that the owner intends to apply for an eviction order. An eviction will not be lawful if the correct notices have not been given. It is only lawful if there is an eviction order from a court.
• The owner must send a copy of this notice letter to the local authority and the provincial office of the Department of Agriculture. This must be done to warn the municipality and the department that they might need to make arrangements for alternative accommodation for the occupiers, and for mediation, where possible.

The eviction must also be just and equitable. The court will look at the following questions to decide whether it is just and equitable:

• Was the original agreement between the occupier and the owner fair?
• How did the parties conduct themselves?
• How much is each party going to suffer if this eviction does or does not happen?
• Did the occupiers expect to stay on the land for a longer period?
• Was there a fair procedure to end the right to stay on the land? To decide if it was fair, the court will ask:
  • Are there valid grounds for ending the right?
  • Did the owner inform the occupiers of allegations against them in a way they could understand?
  • Did the occupiers have a chance to reply to the allegations?
  • Did the occupiers have enough time to reply?
  • If there is an enquiry, another occupier or person from an organisation that the occupier belongs to, must be allowed to help the occupier state their case
  • If there is an enquiry, the owner must inform the occupier of their decision after the enquiry in writing
  • if the right to stay on the land is threatened, the owner has to remind the occupier that the occupier has the right to take the matter to court if they disagree about the outcome of the enquiry

What the court can decide

The court may or may not grant an eviction order, based on the following conditions:

• If the occupier has been on the land on or before 4 February 1997 and has done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where the occupiers can enjoy the same quality of life.
• If the occupier has been on the land on or before 4 February 1997 and has done something seriously wrong, the court may grant an eviction order even if there is nowhere else to stay.
• Even if an occupier arrived after 4 February 1997, the owner must still end the right to stay lawfully and fairly, give written notice of two months, and get an eviction order before the occupier can be evicted. The court must also believe that the eviction was just and equitable, and the owner and the occupier have attempted mediation to settle the dispute or referred the dispute to arbitration and it could not be settled.

An eviction order given by a magistrate’s court must go to the Land Claims Court for automatic review of the magistrate’s decision. In other words, the eviction order issued by the Magistrate’s court must be confirmed by the Land Claims Court before it can be enforced.

Urgent evictions

The court can give a provisional order for an urgent eviction when:

• There is a real and immediate danger that the occupier might harm someone or something
• There is nothing else that can be done to prevent this harm from happening
• The owner or any other person will suffer more if the eviction does not happen than the occupier will suffer if the eviction does take place

Compensation if you get evicted

If the court grants an eviction order, the court must order the owner to compensate you for any improvements to the land or property, or for crops you planted which you have not harvested yet. If you were employed by the owner, you must get all your wages that are due to you.

When can the eviction order be carried out?

The eviction can only take place once:

• Your compensation has been paid
• The court has set a date by which you must leave. If you do not leave by the due date, you can be removed.

Who can remove you?

Only the Sheriff of the Court or someone under their supervision can carry out an eviction. If at any time the owner or the person in charge forces you off the land, it is a criminal offence. They can be jailed or fined for this. You will be compensated for any losses, and have the right to return to the land on terms and conditions decided by the court.

EXAMPLE

Frank was ordered to leave his house on a wine farm after he was fired from his job because of repeatedly being absent from work without a valid reason. The farmer gave Frank one month’s notice to vacate his house. Frank hasn’t been able to find a place to stay. The farmer says he will throw him out at the end of the month if he doesn’t leave voluntarily.

WHAT ARE FRANK’S RIGHTS?

(a) A landlord/employer must take certain steps before evicting an occupier. Section 9(2) of ESTA says: A person’s right to stay in a house ends if they are fairly dismissed (in terms of the Labour Relations Act No 66 of 1995), if they resign or are retrenched. (See Dismissals)

(b) The land owner must give the occupier, the municipality and the provincial Department of Rural Development and Land Reform 2 months’ notice of the intention to evict. In the case of family members of deceased employees (employees who have died), the notice period must be 12 months.

(c) The land owner cannot evict a person without a court order. A court can order an eviction to be stopped, a person allowed back into the house and/or the payment of damages to the person.

(d) The occupiers must be given a chance to defend themselves in court against the eviction.

(e) Unless the occupiers have committed a serious offence, the landlord must find alternative, suitable accommodation before the eviction.

(f) The court’s decision to grant an eviction order must be based on just and fair reasons, taking into account, for example, how long the person has lived there, is there is alternative accommodation, whether the occupier complied with the duties, etc.

In the first place, if Frank thinks his dismissal was unfair he can challenge this in the CCMA (See Solving disputes under the LRA). While the case is being challenged in the CCMA, he has a right to remain in the house. However, if the CCMA upholds the dismissal, then Frank will have to leave the house so long as the farmer has followed the steps prescribed in ESTA. The farmer cannot evict Frank without a court order.

Land Rights Management Board and Committees

The ESTA Amendment Act regulates the eviction of occupiers by enforcing alternative resolution mechanisms. The Act provides for the establishment and operation of a land rights management board and land rights management committees. The purpose of a Land Rights Committee is to identify, monitor and settle land rights disputes. They are also required to establish and maintain a database of occupiers, land rights disputes and evictions.