Does ESTA still protect occupiers of farm land in South Africa?

By Thabiso Mbhense

Is para (c) of the definition of ‘occupier’ under the Extension of Security of Tenure Act 62 of 1997 (ESTA) consistent with the provisions of the Constitution, especially ss 9, 10, 22, 25, 29, 30 and 31?

ESTA came into force on 28 November 1997. According to its long title, the purpose of ESTA is to ‘provide for measures with State assistance to facilitate long-term security of land tenure; to regulate the conditions of residence on certain land; to regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated; and to regulate the conditions and circumstances under which persons, whose right of residence has been terminated, may be evicted from land; and to provide for matters connected therewith’.

The preamble of ESTA recognises that ‘many South Africans do not have secure tenure of their homes and the land which they use and are therefore vulnerable to unfair eviction’. According to the preamble, ‘it is desirable [to ensure] that the law should promote the achievement of long-term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, land owners, and government bodies; that the law should extend the rights of occupiers, while giving due recognition to the rights, duties and legitimate interests of owners; that the law should regulate the eviction of vulnerable occupiers from land in a fair manner, while recognising the right of land owners to apply to court for an eviction order in appropriate circumstances; to ensure that occupiers are not further prejudiced’.

As the title and the preamble demonstrate, ESTA is an Act of Parliament envisaged in s 25(6) of the Constitution to improve security of tenure for those ‘whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices’.

ESTA has a definition of an ‘occupier’ that limits the potential scope of the Act’s protection. To qualify as an ‘occupier’ a person must be ‘residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding –
(a) …
(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount’.

On 18 December 1998, the ESTA Regulations were published in GN R1632 GG19587/18-12-1998. In terms of clause 2(1) of the regulations ‘the prescribed amount for the purposes of paragraph (c) of the definition of “occupier” in section 1(1) of the Act shall be an income of R 5 000 per month’.

ESTA protects the rights of occupiers in two ways. Firstly, Chapter III protects their right to occupy and use land. Secondly, Chapter IV limits the ability of the owner to evict them from the land. 

It is clear from Chapter III, especially s 6(1) of ESTA, that a person has the ‘right to reside on and use the land’ only if he or she qualifies to be an ‘occupier’ as defined in s 1 of ESTA.

It is evident from the above that, as the law stands, a person who has an income in excess of R 5 000 per month does not enjoy any rights and protection in terms of ESTA. I submit that this is not consistent with the provisions of s 25(6) of the Constitution, which inspired the enactment of ESTA.

As a result, it is likely that para (c) of the definition of ‘occupier’ is inconsistent with the provisions of the Constitution, especially, ss 9, 10, 22, 25, 29, 30 and 31.

Security of tenure is vital for the exercise and enjoyment of a number of other constitutional rights. Occupiers’ rights to equality (s 9) and to human dignity (s 10) are violated by the continued denial of their right to more secure tenure and the perpetuation of their current tenuous position. 

The perverse outcome of the impugned provision is that if an occupier seeks a living wage in excess of the prescribed amount, and secures it, then he or she will lose his or her status as an occupier. That produces an undesirable outcome: It makes occupiers reluctant to attempt any form of bargain for higher wages with their employers. If they do engage in a bargain and in fact receive the higher wages, they can be evicted without the protection of the statute. 

This dynamic – where one cannot ask for higher wages without the risk of losing statutory protection – entrenches the vulnerability of farmworkers, whose tenure is in any event insecure.

Right to culture

Occupiers’ insecure tenure also affects their right to culture. For instance, to some cattle are a vital part of the culture of the majority of occupiers. They represent wealth and property and are used for a variety of ceremonies. Should they lose the right to use land which is linked to right of residence, they will also lose their cattle. This would not be the case if they had stronger rights in the land and their security of tenure was protected. The Constitution protects the right to culture in ss 30 and 31. Section 30 grants everyone ‘the right … to participate in the cultural life of their choice’. In terms of s 31 persons who, like occupiers, belong to a cultural community ‘may not be denied the right, with other members of that community … to enjoy their culture’. They cannot fully participate or enjoy their culture when their access to land, and, therefore, their right to use land for keeping their cattle, is lost.

Right to access to food

Occupiers’ insecure tenure also affects their right to access to food. The Constitution protects the right to food in s 27(1)(b). The occupiers depend on their rights to own cattle and produce other food. Cattle are not only an important cultural asset – they are a source of nutrition. The continued insecure tenure of the occupiers affects the security of their access to food. Once evicted, occupiers lose their access to food.

Right to freedom of occupation, profession and education

This situation symbolises the plight of occupiers in South Africa. When ESTA was promulgated in 1997, many occupiers were earning less than R 5 000. They are possibly earning above this amount because of annual escalations of salaries, and as a result, they are no longer protected by ESTA. There may be occupiers who are reluctant to pursue their careers because of the risk of losing the protection conferred by the Act. 

Conclusion 

I submit that para (c) of the definition of ‘occupier’ is inconsistent with the provisions of the Constitution, especially, ss 9, 10, 22, 25, 27(1)(b)  29, 30 and 31.

Thabiso Mbhense BIur LLB (UKZN) is an attorney at the Legal Resources Centre in Johannesburg.