NAVIGATING OCCUPATION RIGHTS ON SOUTH AFRICAN FARMS: UNDERSTANDING ESTA

The South African landscape, with its rich agricultural heritage, is also shaped by the crucial Extension of Security of Tenure Act, commonly known as ESTA. This legislation plays a significant role in regulating the occupation rights of individuals residing on farms, aiming to strike a balance between the rights of landowners and the security of tenure for occupiers. Rooted in the principles of the ANC's Freedom Charter, ESTA acknowledges the need for certain individuals to "share in the land" by granting them specific rights to occupy property belonging to another.

However, understanding the intricacies of ESTA is vital for both landowners and those residing on agricultural land. This article unpacks the key aspects of occupation rights under ESTA.

Who Qualifies as an "Occupier" Under ESTA?

ESTA defines an "occupier" based on several specific criteria:

1. A Natural Person: Only individuals, not companies, trusts, close corporations, or other legal entities, can qualify as occupiers.

2. Permanent Residence: The individual must reside on the land on a permanent basis.

3. Someone Else's Agricultural Land: ESTA applies specifically to land zoned for agriculture and does not extend to urban properties. Crucially, an individual cannot be an occupier on their own land.

4. With Permission: The occupation must be based on consent granted by the landowner, their authorized representative, or the person in charge of the farm (such as a farm manager, tenant, or usufructuary). This permission can be in writing, verbal, or even implied through conduct.

5. Income Threshold: The individual's monthly income must be less than R13,625. Those earning above this threshold do not qualify as occupiers under ESTA and their residency would be governed by other legislation and common law.

The Distinction Between an Occupier and a Farm Employee

It's important to note that an employee residing on a farm is also considered an occupier under ESTA. In such cases, the individual is protected by both relevant labour legislation governing their employment and the provisions of ESTA regarding their right to reside on the property.

The Genesis of an Occupation Right: The Power of Consent

An occupation right comes into being the moment permission is granted for an individual to live on a farm. This consent is the cornerstone of the right. For instance, entering into a lease agreement not only establishes the lease itself but simultaneously creates an occupation right for the lessee.

Who Holds the Authority to Grant Consent?

Legally, the power to grant consent for someone to reside on a farm rests with:

• The landowner.

• The landowner's duly authorized representative.

• The person in charge of the farm, such as a farm manager.

• In certain circumstances, a tenant or a usufructuary may also grant consent.

This last point underscores the importance for landlords to exercise caution when entering into lease agreements for farmland.

Safeguarding Landowner Rights in Lease Agreements

To mitigate potential complications, it is crucial for landlords of farmland to include a specific provision in their lease agreements stipulating that the lessee is prohibited from granting permission for any other individuals to reside on the farm. Furthermore, the lease should clearly state that if the tenant does grant such permission, it is the tenant's sole responsibility and expense to remove these occupiers upon the termination of the lease.

Failure to include such a clause can leave the landowner in a precarious position, potentially facing costly and protracted eviction proceedings to remove unauthorized occupiers after the lease period expires.

Modifying and Terminating Occupation Rights

Once established, an occupation right is not immutable. It can be altered either through a mutual agreement between the landowner and the occupier or by an order issued by a court of law.

Similarly, ESTA outlines specific conditions under which an occupation right can be terminated. Importantly, there are also circumstances where termination is not permissible under the Act, highlighting the protective nature of the legislation.

Implications for Contracts of Sale: Transparency is Key

In the realm of property transactions, sellers of farmland have a fundamental duty to provide the purchaser with undisturbed possession upon transfer. This necessitates complete transparency regarding any existing occupation rights on the property.

Regrettably, experience reveals that many landowners or sellers may be unaware of what constitutes an occupation right or the extent of such rights on their land. Consequently, sellers may unknowingly provide guarantees in the deed of sale stating that no occupation rights exist, when in fact they do.

This oversight can lead to significant disputes and even litigation between sellers and buyers. The purchaser may find themselves unable to utilize a portion of the farm due to the presence of an undisclosed occupier.

Therefore, it is paramount that all tenure rights present on a farm are accurately and comprehensively described in the deed of sale. This ensures that the purchaser is fully informed of the risks and knows exactly what they are acquiring.

Conclusion: Navigating the Complexities of ESTA

The Extension of Security of Tenure Act is a critical piece of legislation that shapes the relationship between landowners and occupiers on agricultural land in South Africa. Understanding the definition of an occupier, how occupation rights are established, and the responsibilities of both parties is essential for avoiding potential disputes and ensuring compliance with the law. For both landowners and prospective purchasers of farmland, a thorough understanding of ESTA and the accurate disclosure of all tenure rights are indispensable for informed decision-making and the prevention of costly legal battles.

For further information or legal assistance regarding occupation rights under ESTA, please contact:

Tiaan van Dyk Van Dyk Theron Attorneys 082 825 8876 tiaan@vdtreg.co.za