THE APPLICATION OF ESTA IN EVICTIONS

All evictions in South African law (whether it be for a defaulting tenant or an unlawful occupier of land), are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (hereinafter referred to as “PIE”), unless the Extension of Security of Tenure Act 62 of 1997 (ESTA) applies.

Who is covered by ESTA?

ESTA sets out the process for the eviction of occupiers who reside on someone else’s (the owner’s) land with consent from and including 4 February 1997.

In terms of section 2, ESTA covers “all land, other than land in a township, established, approved, proclaimed or otherwise recognised”, and includes the following:

1. “Land in a township designated for agricultural purposes;
2. Land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.”

Who is an occupier in terms of ESTA?

An occupier in terms of ESTA is defined as “a person residing on land which belongs to another person and who has on 4 February 1997 or thereafter had consent or another right in law to reside on such land”.

An occupier however excludes the following people:

1.  Labour tenants;
2. People using the land for mining or industrial purposes, for businesses or commercial farming;
3. People who have an income in excess of R5 000 per month gross, (as per the ESTA Regulations which were published in GN R1632 GG19587/18-12-1998);
4. Unlawful occupiers and
5. People who live in a proclaimed township not designated for agricultural purposes.

The consent required by the occupier to reside on the land may be express or tacit consent of the owner of the land (meaning “the owner of the land at the time of the relevant act, omission or conduct…and includes the holder of mineral rights”) or person in charge of such land (meaning “person who at the time of the relevant act, omission or conduct had or has legal authority to give consent to a person to reside on the land in question”).

Either the owner of the land or the person in charge of the land will be able to bring an eviction application in terms of ESTA.

The rights of the occupier afforded in terms of ESTA

Chapter 3 of ESTA (sections 5, 6 and 7) pertains to the legal rights of the occupier and the land owner or person that is in charge of the land and states that, besides the fundamental Constitutional rights to human dignity; freedom and security of the person; privacy; freedom of religion, belief, opinion and expression; freedom of association; and freedom of movement, the occupier will also enjoy the following rights:

1. “a) a right to security of tenure;
2. b) a right to receive visitors at reasonable times (the land owner must however set out conditions for visitors and the occupier will be responsible for the actions of the visitors);
3. c) a right to receive postal communications in their own names;
4. d) the right to a family life with the culture of that family and
5. e) the rights to water and electricity”

Eviction proceedings in terms of ESTA

Notice of termination of the occupier’s rights to reside on the land must be given in terms of ESTA prior to any eviction proceedings commencing.

Section 8 of ESTA states that the occupier’s rights of residence may be terminated on any lawful ground, provided that such termination is just and equitable giving regard to the circumstances of the matter and having regard to the following factors:

1. “a) the fairness of the agreement between the occupier and the owner of land;
2. b) the conduct of the parties giving rise to the termination;
3. c) the interests of the parties;
4. d) the existence of a reasonable expectation of the renewal of the agreement and
5. e) the fairness of the procedure followed by the owner of land.”

The Act imposes a limitation on eviction of an occupier who has resided on the land for longer than 10 years and has reached the age of 60 and is in the employ of the land owner, however cannot work due to illness. Such occupier can only be evicted if the occupier has committed a breach that is material, the owner of the land has complied with all his obligations to the occupier and the occupier must have also fundamentally breached the relationship between himself/herself and the owner which breach cannot be remedied.

After the right to residence has been terminated in terms of section 8, written notice must be given to the occupier, the relevant municipality and the head of the provincial office of the Department of Land Affairs, providing the occupier with not less than 2 months within which to vacate the land as mentioned in section 9 of ESTA.

In addition to the factors mentioned above, in terms of section 10 of ESTA, the court will order eviction of a person who was an occupier on 4 February 1997, if alternative accommodation is available, and if not, if alternative accommodation is made available within a period of 9 months after the termination of residence.

In terms of Section 11 of ESTA, the court will order eviction of a person who was an occupier after 4 February 1997, if the consent provided to reside of the land was for a fixed, determinable date and such consent lapsed. The Court will however also have regard to

1. “(a) the period that the occupier has resided on the land in question;
2.   (b) the fairness of the terms of any agreement between the parties;
3.   (c) whether suitable alternative accommodation is available to the occupier;
4.   (d) the reason for the proposed eviction;
5.   (e) the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land.”

The eviction order must determine a just and equitable date on which the occupier shall vacate the land.

Furthermore, section 13 of ESTA provides that the occupier must be compensated for any any improvements to the land or property, including crops that have been planted with the consent of the owner, and any wages due to the occupier.

It is important from the outset to establish whether the evictions process in question is undertaken in terms of PIE or ESTA as the applicable legislation, which will necessarily have dramatic implications with respect to the time frames and costs involved.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)