My mother has right to live on a farm under ESTA, can I remain there after her death and would I be compensated for the house she built if I can't?

The long answer

Let’s take it question by question:

It is only your mother who has permission to stay out her lifetime under ESTA provisions. Her children do not inherit that right to stay. The landowner may allow you children to stay if it is not a problem for him, but in any case, the children cannot be evicted without a court order. In terms of ESTA, people who earn more than R5,000 per month are not protected by the Act.

We will return to the question of what procedures must be followed by the landowner to obtain an eviction order. 

In the 2013 case of Hattingh vs Juta, Mrs Hattingh, who was an occupier with rights under ESTA, lived with her two adult sons, one of whom was married, as well as her minor son. The landowner applied for a court order to evict the adult children because he needed the cottage that they occupied to house a foreman, who travelled long distances daily. 

The Stellenbosch Magistrate’s Court ruled that Mrs Hattingh’s family members had the right to live with her on the farm under section 6(2) of ESTA, which grants the occupier the right to “family life in accordance with the culture of that family”.  But the Land Claims Court overturned this judgment and granted the eviction. Mrs Hattingh appealed to the Supreme Court, which confirmed the Land Claims Court’s eviction. She then appealed to the Constitutional Court, which dismissed her appeal for the following reasons: 

Judge Zondo of the Concourt said that an occupier’s right to family life under section 6(2) of ESTA had to be balanced with the rights of the landowner. This meant that “a just and equitable balance between competing rights had to be struck.” In balancing the rights, the court held that the balance was in favour of the landowner and found that it would be just and equitable to evict the adult children and daughter-in-law.

One of the factors that the court considered was that the children had no right of their own to live in the cottage, but could only do so because of Mrs Hattingh’s right to family life. 

Cliffe Dekker Hoffmeyr said in an article in 2022 that the law does not allow the landowner to use physical force to evict an occupier or to prevent access to the property. “To lawfully evict an occupier in terms of ESTA, firstly a notice must be given to the occupier, to any adult person occupying the property, to the relevant municipality and to the Department of Land Affairs.” 

The individual occupying the property should be notified that if they fail to vacate the premises within two months of receiving this notice, eviction proceedings will be initiated. If the occupant fails to vacate within the stipulated period, the landowner will have the right to initiate legal proceedings for eviction of the individual from the premises.

ESTA says that no one can be evicted from a farm without a court order, which the court will only grant if it is just and equitable (i.e. fair). These are the factors a court must consider before granting an eviction order: 

• How long the occupier has been living there.

• Whether the procedure followed by the landowner was fair. This would include whether the occupier was given a chance to tell the landowner (make representations, in legal terms) why they should not be evicted. This is required by section 8(1)(e) of ESTA.

In the case of Snyders and others v De Jager, the Constitutional Court found that if a landowner didn’t give the occupiers a chance to state their case, it meant that the eviction would be unlawful and invalid, because an eviction under ESTA must be just and equitable. 

• Whether suitable alternative accommodation is available to the occupier. On the day of the court hearing, the municipality of the area must be present to indicate whether it has alternative accommodation. If the municipality doesn’t have alternative accommodation, the province or the national government must step in to provide access to emergency housing suitable for humans, with access to basic services. In Maqubela, the Land Claims Court found that the landowner is not responsible for providing alternative accommodation – the state is – whether that be the municipality, the province or the national government. 

Lawyers for Human Rights (LHR) says that in terms of ESTA, the court hearing an eviction application must request the local district office of the Department of Land Affairs to compile a report. This report must look at: 

1. whether appropriate alternative housing is available,

2. how an eviction order may impact the parties' constitutional rights, including the children's rights to an education and a safe home, and

3. the difficulties an occupier may experience as a result of an eviction.

In order to gather all of this information, the officer from the appropriate Department of Land Affairs office will visit the occupier's home. 

LHR says that this report is important and “can determine the decision the court can make to evict or not to order the eviction”.

To answer your question of whether the children will be compensated for the brick house that your mother built, if they are evicted: LHR says that the landowner may be required to compensate the occupier for any renovations or buildings they built to the house when the court issues an order for their eviction. Additionally, the occupier may receive payment for any crops that are planted.  

You can contact the LHR for more information:

Website: www.lhr.org.za

Tel: 012 320 2943

Email: [email protected]

Wishing you the best,
Athalie