ConCourt broadens interpretation of grazing rights under ESTA
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'.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Eyewitness News
19 hours ago
- Eyewitness News
Edgar Lungu's family files papers for leave to appeal High Court judgement
JOHANNESBURG - The family of former Zambian President Edgar Lungu have filed papers for leave to appeal Friday's High Court judgement. Earlier on Friday, Gauteng Judge President Aubrey Ledwaba delivered an order that Lungu's remains be repatriated to Lusaka for burial. However, the family has filed papers on their intention to apply for leave to appeal the judgement in the supreme court. It has been two months since the former Zambian head of State died in Johannesburg while receiving medical attention. The court battle - which has taken place in the same time frame in South African courts - between the Zambian government and the Lungu family is far from over. ALSO READ: Court orders Edgar Lungu's remains be repatriated back to Zambia The Lungu family has approached the High Court for leave to appeal its judgement in the Supreme Court of Appeal (SCA). In its papers the family argues that the full bench, which heard the matter earlier this week, erred in granting the Zambian government its wish to repatriate president Lungu's body. On Friday, the court agreed with the Zambian government that an agreement was reached between the State and the family in meeting in June for Lungu's remains to be repatriated and for a State funeral to be held for him in Lusaka. But the family disputes this, saying the court failed to consider the full set of events between the parties in that meeting. The High Court will now consider the Lungu family's application for leave to appeal and if granted the matter will be heard in the SCA.
The Citizen
a day ago
- The Citizen
Ramaphosa responds to Zuma's letter of demands
The president would not meet Zuma's demands. President Cyril Ramaphosa has, through his legal representative, reportedly responded to former president Jacob Zuma's letter of demands sent to the president this week. In the letter, Zuma, through his legal representative, KMNS Attorneys, said he had acted in his capacity as a 'concerned citizen, voter, taxpayer and former president.' He sought answers from the resident on the processes followed when he placed Police minister Senzo Mchunu on leave of absence and appointed Wits law professor Firoz Cachalia as acting minister. 'When exactly (date and time) was your decision to appoint Professor Cachalia as Acting Minister of Police taken, communicated to him and communicated to the public?' 'What exactly is a 'Minister Designate', from a constitutional point of view? Immediately after the swearing-in ceremony (i.e. from around 9:30am on 1 August 2025), what was the exact correct description of Professor Cachalia? Was he a minister, acting minister or minister designate?' ALSO READ: Zuma demands Ramaphosa resign by Friday, or else… Another demand was for Ramaphosa to step down from the Presidency by Friday, 10am, or face legal action. The letter followed Zuma and the MK party's Constitutional Court loss regarding the same matter. The court said the two parties' application does not engage the court's jurisdiction and consequently, refused them direct access in their matter. Ramaphosa responds In a letter shared by broadcaster Newzroom Afrika on Friday, Ramaphosa responded, saying while some of the answers to their questions were already in the public domain, others needed Zuma to follow proper procedure for asking questions to the president. 'To the extent that your client seeks information that is not already available to him, he will be aware, as the leader of the Umkhonto weSizwe Party, of the procedure under Chapter 10 of the National Assembly Rules to address a request for oral or written questions to the president,' reads the letter. ALSO READ: MK party and Zuma suffer blow as ConCourt rules in Ramaphosa's favour [VIDEO] 'That is the appropriate manner for a political party, and its leader, to address questions to the president. When the president receives questions through those proper procedures, he deals with them in accordance with the requirements of the Rules.' Where he could have answered, he implied it would be a futile exercise as Zuma 'has already concluded that his conduct was unlawful.' The president would not meet Zuma's demands, it continued. 'Furthermore, the president shall not comply with the demands in paragraph five of your letter. He stands by the reasons for his decisions as recorded in his answering affidavit in the proceedings before the Constitutional Court. The decisions were lawful, rational and consistent with the president's constitutional duties.' If Zuma and the MK party do approach the courts over the president's decisions, their application will be opposed, reads the letter. Zuma is expected to hold a media briefing on Friday afternoon, 'on the outcomes of the latest meeting of the national officials and will share the [MK] party's latest developments.' READ NEXT: Zuma and MK party case should've started in High Court, ConCourt hears [VIDEOS]
Daily Maverick
a day ago
- Daily Maverick
AmaBhungane bids to challenge the Public Procurement Act
Procurement is the ground-zero of corruption and State Capture – that's why we are heading for the Constitutional Court. It's unlikely that you'll open any newspaper or scroll through a news website these days without seeing an article about corruption in a government tender process. Just this week, we read about how the CEO of Independent Development Trust tried to quash a story by promising Daily Maverick investigative journalist Pieter-Louis Myburgh that they could facilitate tenders for him and his contacts, and about how an ANC leader and KwaZulu-Natal Education MEC Sipho Hlomuka feels that criticisms about his wives benefiting from government tenders are an attempt to target him politically. Corruption has become endemic to South African public life, and procurement – the process by which government contracts for goods and services – is the abused cash-cow that feeds political and personal greed. We all know it. AmaBhungane has reported on procurement-related corruption since it was founded. We have highlighted everything from the Arms Deal payoffs to the pillaging of SOEs revealed by the #GuptaLeaks and Joburg's dodgy water tanker contracts. Every week, we receive tip-offs about irregular tenders and how certain people are benefiting from their proximity to those with political power and their largesse in awarding contracts big and small, or other benefits, such as funding. Advocate Andy Mothibi, head of the Special Investigating Unit, has said that up to 90% of the cases the SIU is investigating involve procurement-related corruption. Former Chief Justice Raymond Zondo dedicated much of his lengthy report on State Capture to procurement. He questioned how those responsible for creating and enforcing legislation and other systems to regulate procurement could have been so ineffective in curbing corruption. Was it because corruption is now embedded in the system – and both politicians and bureaucrats are positioned to distribute benefits not to the populace, but to the powerful? Because, despite it being impossible to ignore the scale of procurement-related corruption and the complete inability of our existing systems to stop it, South Africa's legislature and public administration were happy to sign off on a new procurement law that repeats the failings of the old system and does little to respond to the very real observations of former Chief Justice Zondo and others who painstakingly identified where those systems needed to be strengthened. Was it simply that Parliament and National Treasury could not be bothered to reimagine an effective procurement system that delivered efficiently and equitably and was structured to promote maximum transparency and accountability to expose and deter corruption? Or was it because any possibility of 'turning off the taps to tender corruption', as Judge Zondo so neatly put it, would hurt them all financially and politically? We have been following, participating in and writing on the development of the Public Procurement Act since 2020. At every possible stage, we have voiced our deep concerns that the system the Act creates does not contain sufficient safeguards. We fumed when Parliament rushed through the Bill before last year's elections, furious at the laughably short timeframes the MPs had to consider the draft Bill and the public submissions. We formally wrote to the President and asked him to consider sending the Bill back to the National Assembly to address what we (and our colleagues in the Procurement Reform Working Group) described as patently unconstitutional provisions. We were ignored. And now, supported by the Legal Resources Centre, we have applied to join the cases brought by the Premier of the Western Cape and the City of Cape Town to challenge the passing of the Act. This case is a narrow challenge, focusing on the procedure through which Parliament passed the Act and its failure to meaningfully facilitate public participation. As it concerns only whether Parliament acted constitutionally, it is a matter that can be heard only by the Constitutional Court. We still believe the content of the Act is flawed and unconstitutional – particularly in how it fails to create constitutionally compliant transparency and accountability systems – but in this case, our focus is on highlighting why Parliament's failings are fatal to the Act. In our founding affidavit, filed this week, we highlight our experience participating in the legislative process. We explain how representatives from National Treasury were responsible for collating the public submissions and presenting commentary on those submissions to Parliament – and how they admitted that they had considered only about 30% of the submissions received. We explain how one key chapter in the Bill – that on preferential procurement – was added after the submissions were received and so received no meaningful public engagement in the National Assembly. We explain how the MPs on the Standing Committee on Finance held oral hearings on the Bill only one day after receiving the written submissions from the public, and that even the Chair of the National Council of Provinces expressed concern that the Bill was being rushed through Parliament before the 2024 elections. We explain how key issues raised in the public submissions were merely 'noted' by MPs and never engaged with. We submit that the Bill should never have been passed in the way it was and that Parliament clearly violated its constitutional obligations to ensure the public has a meaningful opportunity to influence the content of legislation. To us, this is an existential fight. The country cannot accommodate the current level of corruption in our public administration and cannot allow these levels to become normal and unremarked on. The Public Procurement Act takes a 'business as usual' approach: granting officials excessive discretion, resisting the medicine of transparency and relying excessively on the Treasury to police the system – an approach that has demonstrably failed. Crucially, the Act fails to provide strong mechanisms for proactive disclosure of procurement information to enable monitoring for the public interest. This perpetuates the dark fog in government procurement, making it a ripe environment for abuse. We at amaBhungane refuse to accept that corruption is simply the route to doing business with the state, and we will continue to challenge the procurement frameworks that facilitate and legitimise this form of business. Our application to join the cases challenging the manner in which the Act was adopted is merely the next (big) step in our long journey.
