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Daily Maverick
5 days ago
- Politics
- Daily Maverick
Constitutional Court ruling a victory for farm dwellers' grazing rights
In a unanimous judgment that has been hailed by some as a progressive step for farm dwellers and opposed by others as a threat to commercial agriculture, the Constitutional Court has set a powerful precedent on the interpretation of grazing rights under the Extension of Security of Tenure Act. The Constitutional Court has handed down a unanimous judgment on an appeal seeking to overturn a ruling on the right to graze cattle under the Extension of Security of Tenure Act (Esta). matter, involving three brothers on a farm owned by the Moladora Trust in North West, first landed in the Land Claims Court (LCC) in 2022. It began when the owners of the farm sought to remove siblings Magalone, Topies and Dikhotso Mereki from property once occupied by their late mother, who had been given permission to graze five cows. She died 'sometime before 2017'. Back then, the matter had served before Judge Susannah Cowen in the Land Claims Court. Judge Cowen has since been selected by the Judicial Service Commission to serve as deputy judge president of the newly established superior Land Court, which now oversees the work of the overburdened Land Claims Court. This court is bound to play a significant role in land reform legislation over the next few decades. Ripples Judge Cowen's judgment sent ripples through agricultural sectors as well as groups supporting farm workers' rights. AgriSA backed the Moladora Trust saying the issue posed a threat to commercial agriculture and food security, while activists, including Women on Farms, praised it. On 1 August, the Constitutional Court, in a judgment authored by Justice Owen Rogers, held that the matter indeed did concern the interpretation of the Extension of Security of Tenure Act (Esta) as contemplated in that famous and burning section 25(6) of the Constitution. This, said Justice Rogers, 'raises several arguable points of general public importance, especially relating to whether consent to graze cattle is a right protected by Esta'. The matter was referred to the Supreme Court of Appeal, which overturned Judge Cowen's ruling rejecting the Land Claims Court's legal approach to the matter and its order. However the ConCourt has ruled that it was 'in the interest of justice' to grant the appeal. Personal rights What exactly was being appealed, you may ask? In 2022 Judge Cowen found that grazing rights were 'personal rights' that arose from the landowner's consent rather than from the act. However, once consent had been granted, this became part of an occupier's tenure rights. There are, as is evident, deep nuances to each case and this was held in mind in the unanimous judgment by a coram of judges consisting of Acting Deputy Chief Justice Mbuyiseli Madlanga, acting justices Glen Goosen, Jody Kollapen and Ingrid Opperman and justices Steven Majiedt, Owen Rogers, Leona Theron and Zukisa Tshiqi. The Mereki brothers had applied to the ConCourt seeking to appeal against the Supreme Court of Appeal ruling, with the Moladora Trust and the Department of Agriculture and Rural Land Reform as respondents in the matter. Judge Cowen's 2022 judgment about the grazing rights of the brothers and the application of the Extension of Security of Tenure Act was viewed as highly progressive by some, and as unworkable by others. Besides, Judge Cowen had also tossed a reminder of 'colonial dispossession' into her ruling and added that 'a generous construction of Esta was to be preferred over a purely textual or legalistic one in this specific instance'. That the Mereki's mother had occupied the North West property prior to her death and had obtained permission to graze five cattle on the land was not in dispute. There are at present nine head of cattle. The trust had argued that this matter did not raise constitutional issues but rather was 'based on a dispute as to whether grazing rights had ever been granted to the brothers'. It noted that 'cattle' had since expanded to include goats, horses and sheep and stated that the siblings had not demonstrated any breach of their constitutional entitlements. It argued that grazing rights fell outside the act and that extending these would 'unjustifiably deprive landowners of their property'. Following legal steps The ConCourt noted that 'the matter had far-reaching implications for the rights of both owners and Esta occupiers and the Land Claims Court, as a specialist forum, was best placed to determine it at first instance'. The court had considered the historical background of dispossession and noted that section 25(6) of the Constitution had been enacted 'with the intention of securing tenure and guaranteeing rights associated with the use of land for cultivation or grazing'. Section 39(1) of the Constitution required that tenure under Esta be given 'a broad and generous interpretation, rather than a narrow one' noted Justice Rogers. The nuance of 'tacit consent' With regard to whether the Merekis had consent to keep cattle on the farm, Judge Cowen had assumed in the Trust's favour in 2022 that the siblings were not occupiers 'in their own right at the time of their mother's death and had derived their right of residence from their parents' status as employees'. She concurred with the trust that the consent which Mrs Mereki had to graze cattle was specific to her but found, however, 'that tacit consent in favour of the Mereki siblings could be inferred from the lengthy period which passed before the first removal notices were given in January 2018 and from the further lengthy period which passed before the second removal notices were given in May 2020'. A 'tacit consent finding' could also be based, noted Judge Cowen, on the presumption in section 3(4), that 'a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved'. The Land Claims Court had concluded that the trust had not been entitled to rely on common law to terminate the Merekis' right to graze cattle. With regard to this the ConCourt ruled that on the facts of the matter tacit consent had to be presumed, unless the trust adduced evidence to rebut this. 'The mere say-so of the owner did not suffice'. Since the trust had not claimed to have terminated the Merekis' consent in accordance with section 8, the application had to be dismissed. However, the Land Claims Court had granted the trust leave to appeal to the Supreme Court of Appeal, which found in its favour. Interpreting Esta In its judgment the ConCourt highlighted provisions that not only referred to residence but also to 'the use of land' in Esta. It held that law makers had not been consistent in their inclusion of 'use of land' when referring to the right to 'reside on land'. This inconsistency, the court held, had to be resolved in favour of an interpretation that broadened rather than diminished the security of tenure afforded to occupiers. It held that the farm owners 'experienced no injustice when required to comply with section 8 in instances where they sought to terminate consent to graze cattle granted to persons residing on the farm with consent'. On the question of whether the Merekis had consent to keep cattle, the court found that there had been no express consent, but that there had indeed been tacit consent. The Land Claims Court had also been entitled to make its findings, and there had been no procedural unfairness in the manner in which Judge Cowen had arrived at her conclusions. The order of the Supreme Court of Appeal was set aside and replaced with one dismissing the trust's appeal in that court against the Land Claims Court's order. The order was made with costs. DM
IOL News
04-08-2025
- Politics
- IOL News
Constitutional Court broadens interpretation of grazing rights under ESTA
The Constitutional Court ruled in favour of three brothers for their cattle to graze on the land belonging to a Trust. Image: File In deciding whether the right to graze cattle is afforded protection under the Extension of Security of Tenure Act (ESTA), the Constitutional Court has afforded a broader interpretation to the Act to include not only the right to reside on land, but also includes 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 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 Land Claims Court (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 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. Next Stay Close ✕ 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, he said. 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'.
