A National Survey on Evictions conducted in 2005 showed that more people living on farms had been evicted in the 10 years of democracy (1994-2003) than in the 10 years prior.
The breakdown of an employment relationship, through dismissal or retrenchment, is often a precursor to eviction.
The general failure to prosecute and convict transgressors of ESTA has been a
major shortcoming. Many farm dwellers are not aware that they have tenure rights at all, and those that know their rights may not be familiar with remedies and support available to them should they be evicted
Who is covered by ESTA?
In sum, ESTA gives people who lived on someone else’s land on or after 4 February 1997 with permission from the owner, a secure legal right to carry on living on and using that land. It specifies clearly what the landlord must do before he or she can evict a tenant.
ESTA covers people who live in rural areas, on farms and on undeveloped land. It also protects people living on land that is encircled by a township or land within a township that is marked for agricultural purposes. The Act specifically gives women occupiers the same rights as men occupiers. However, the Act does not cover:
- people who live in a proclaimed or recognised township
- land invaders
- labour tenants
- people using the land for mining or industrial purposes, for businesses or commercial farming
- people who earn more than R5 000 per month gross (before tax deductions)
What does ESTA say?
- The Act says that if you have lived on someone else’s land – with permission of the owner – on or after 4 February 1997, you have a secure legal right to live on the land.
- An owner cannot change or cancel these rights without your consent unless there is a good reason for doing so, or until you have had a chance to answer any allegations made against you.
- It sets out the steps you can follow to strengthen your land rights. You can apply for a state grant that can be used to secure tenure rights – either in the form of a development on the land where you are living, or on another piece of land.
- The Act says you have the right to receive visitors, to have your family live with you, to have access to water, health and education services, to receive post and other forms of communication.
- the Act also gives people the right to visit and maintain family graves in rural and peri-urban areas. This right must be balanced with the owner’s right to privacy. The owner or person in charge can set reasonable conditions on how this right is exercised.
- The Act gives special rights to long-term occupiers. If you are older than 60 years, and you have lived on the land for 10 years, or if you become disabled or sick while you were employed by the owner, you can stay on that land for the rest of your life.These ‘long-term occupiers’ may not normally be evicted unless they commit a violation of their obligations
- The Act protects you against unfair and arbitrary evictions and sets out how disputes over land rights can be resolved with mediation, arbitration or the courts.
What are the rights and duties of occupiers and owners?
- respect the fundamental rights of the owner
- prevent visitors from causing damage
- comply with the important and fair terms of the agreement with the owner. (This is very important. If occupiers do not fulfill the agreement, they can be evicted without the option of alternative land)
Occupiers may not:
- harm or threaten other people on the land
- damage property
- help others to build shelters unlawfully on the land
- respect the fundamental rights of occupiers
- acknowledge the rights that this Act gives to occupiers
- follow the provisions of the Act when they consider ending the rights of occupiers to stay on the land
The Act says owners or persons in charge have the right to:
- set reasonable conditions regarding visits to occupiers’ homes and family graves
- terminate an occupier’s right to stay on the land, if this is just and fair
- apply for an eviction order
- make an urgent application for eviction in certain circumstances
EVICTIONS IN TERMS OF ESTA
The following actions are all forms of evictions:
- where the contract of employment is terminated and the person agrees to leave
- taking away somebody’s right to live on land
- taking away somebody’s right to use land
- taking away somebody’s access to water ad electricity, if they are staying on the land
- threatening occupiers so that they leave
- stopping them from coming back onto land if they left but planned to come back, for example, they went away for a family visit
The Act protects you against unfair and arbitrary evictions.
An eviction may be fair and occupiers may be evicted from land if they:
- do something seriously wrong
- refuse to honour agreements with the owner, such as not paying rent if they agreed that they would pay.
In cases where the eviction is fair:
- a landlord must follow the requirements of the law in getting an occupier to leave the property, for example, by giving the required notice.
- However, if the occupier refuses to leave, the landlord must then get a court order to enforce the eviction. If the occupier disputes the eviction then the reasons for this must be raised in the court.
The Act protects people who believe they have been unfairly evicted.
When is an eviction lawful?
An eviction is lawful if the following requirements have been met:
- The occupier must get two months written notice that the owner intends to apply for an eviction order. An eviction will not be lawful if the correct notices have not been given.
- The owner must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs. This must be done in order to warn the municipality and the Department that they might need to make arrangements for alternative accommodation for the occupiers, and for mediation, where possible.
- An eviction is only lawful if there is an eviction order from a court.
- The eviction must also be just and equitable.
The court will look at the following questions to decide whether it is just and equitable:
- Was the original agreement between the occupier and the owner fair?
- How did the parties conduct themselves?
- How much is each party going to suffer if this eviction happens or does not happen?
- Did the occupiers expect to stay on the land for a longer period?
- Was there a fair procedure to end the right to stay on the land? To decide if it was fair, the court will ask:
- are there valid grounds for ending the right?
- did the owner inform the occupiers of allegations against them in a way they could understand it?
- did the occupiers have a chance to reply to the allegations?
- did the occupiers have enough time to reply?
- if there is an enquiry, another occupier, or person from an organisation that the occupier belongs to, must be allowed to help the occupier to state his or her case
- if there is an enquiry, the owner must inform the occupier of his or her decision after the enquiry in writing
- if the right to stay on the land is threatened, the owner has to remind the occupier that the occupier has the right to take the matter to court if they disagree about the outcome of the enquiry
What the court can decide
The court may or may not grant an eviction order, based on the following conditions:
- If the occupier has been on the land on or before 4 February 1997, and has done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where the occupiers can enjoy the same quality of life.
- If the occupier has been on the land on or before 4 February 1997, and has done something seriously wrong, the court may grant an eviction order even if there is nowhere else to stay.
- Even if an occupier arrived after 4 February 1997, the owner must still end the right to stay lawfully and fairly, give written notice of two months, and get an eviction order before the occupier can be evicted.
- An eviction order given by a magistrate’s court must go to the Land Claims Court for automatic review of the magistrate’s decision. In other words, the eviction order issued by the Magistrates Court must be confirmed by the Land Claims Court before it can be enforced.
The court can give a provisional order for an urgent eviction when:
- there is a real and immediate danger that the occupier might harm someone or something
- there is nothing else that can be done to prevent this harm from happening
- the owner or any other person will suffer more if the eviction does not happen, than the occupier will suffer if the eviction does take place
Compensation if you get evicted:
- If the court grants an eviction order, the court must order the owner to compensate you for any improvements to the land or property, or for crops you planted which you have not harvested yet.
- If you were employed by the owner, you must get all your wages that are due to you.
When can the eviction order be carried out?
The eviction can only take place once:
- your compensation has been paid
- the court has set a date by when you must leave.
- If you do not leave by the due date, you can be removed.
Who can remove you?
- Only the sheriff of the court or someone under their supervision, can carry out an eviction.
- If at any time, the owner or the person in charge forces you off the land, it is criminal offence. They can be jailed or fined for this.
- You will be compensated for any losses, and have the right to return to the land on terms and conditions decided by the court.
When is the eviction unlawful?
- Illegal evictions include all situations in which ESTA occupiers have moved off farms against their will and in the absence of a court order for their eviction.
- The most obvious form of illegal eviction is where occupiers are removed by force, for example when the landowner changes the locks, erects a high fence around the home, or bulldozes or sets fire to the dwelling to prevent the occupiers from continuing to stay on the farm.
- ‘Constructive evictions’ are instances where ESTA occupiers leave the farm because conditions have been made intolerable, often through intimidation.
- Constructive evictions are also illegal. Examples include cases where occupiers have had their electricity or water supplies cut off, have had their privacy repeatedly invaded or have been threatened with violence.