The Latest Developments
Occupiers' Rights to Graze Cattle on Farms in South Africa
AfrikaansAFHere are some key updates of the ongoing legal challenges and evolving interpretations of land rights legislation regarding grazing rights
Constitutional Court Hearing (March 2025)
The Constitutional Court recently heard arguments in a case challenging the Supreme Court of Appeal's (SCA) ruling in Moladora Trust v Mereki and Others (2024), which overturned a Land Court decision allowing farm dwellers to graze cattle without explicit consent. The applicants argue that "blocking occupiers from grazing livestock constitutes an eviction" under the Extension of Security of Tenure Act (ESTA), which requires court oversight for evictions. They contend that grazing rights are integral to occupiers' security of tenure and should be constitutionally protected — an issue closely related to labour tenant claims under Act 3 of 1996.
Key Legal Precedents
Court of Appeal ruling in Moladora Trust vs Mereki
The SCA upheld the Moladora Trust's appeal, ruling that "grazing rights are personal and require explicit consent" from landowners. The court rejected the Land Court's interpretation of ESTA, which had expanded occupiers' rights to include tacit grazing permissions.
ESTA and Grazing Rights
The present legal position is that ESTA occupiers' rights to graze cattle are not derived from the Act itself but depend on prior consent from, or agreement with, a landowner. The SCA emphasized that such rights are contractual, not statutory which were not even relied upon by the occupiers.
Implications of the Constitutional Court Case
- •Upholding the SCA's stance would confirm the need for explicit consent or agreement between landowners and occupiers regarding grazing rights.
- •Conversely, if the Constitutional Court rules in favour of the occupiers it in effect means the landowner / farmer potentially loses control over the use of his land to a great extent, if not completely.
- •Such a decision could regard grazing rights as a protected right under ESTA as part of occupiers' tenure, requiring formal eviction processes to terminate grazing rights at huge legal cost and protracted litigation — which is why a proactive land rights audit is so important.
- •Occupiers are supported by the Department of Agriculture Land Reform and Rural Development (DALRRD) at taxpayers' expense, while Legal Aid SA (LASA) mostly pay the occupiers legal costs.
- •Landowners, as a general rule, cannot claim their legal costs even if they win the case (except in exceptional circumstances) as such litigation is regarded as social justice litigation by nature. It means that occupiers have very deep taxpayers' pockets.
- •Landowners are not supported by the state in litigation of this nature. The whole land distribution process is a very unequal process putting landowners in an exceedingly difficult position – by design!
The claim for grazing flows from the ANC's Freedom Charter wherein the aim is to "share in the land..."
The Constitutional Court judgment remains pending as of March 2025. Where the relationship between landowner and occupier is not yet broken, mediation is often the fastest and most cost-effective path to resolution.
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