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.

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”.

On the question of whether the Merekis had consent to keep cattle, the court found that there had been no express consent. The court, however, said it must be presumed that the Mereki brothers had tacit consent to graze cattle, as the trust did not prove otherwise.

The Court concluded that the LCC had been entitled to find that the Trust had failed to prove the absence of consent. The order of the SCA was set aside and replaced with one dismissing the Trust’s appeal in that court against the LCC’s order.

zelda.venter@inl.co.za

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