Answer to a question from a reader

Can my elderly father be evicted from the farm my grandfather bought in 1990 because he doesn't have a title deed?

The short answer

No one can be evicted without a court order, but it will be very difficult to prove that your father is legally occupying the land.

The whole question

Dear Athalie

My late grandfather bought a farm in 1990. He was unable to change the title deed because there were five other people with shares in the farm, so the title deed was still in the name of the seller until he passed. My grandfather never took the matter seriously because the other owners and their neighbours knew about the arrangement. He built a house on the farm and encouraged my father to do the same. 

Other neighbours knew that the title deed was never transferred, and used it to threaten him. In 2007, my grandfather's mental state began to deteriorate, and he moved to live in peace elsewhere while my father remained on the farm. One of the neighbours came with a fake eviction letter. Because he didn't know any better, my father left the farm. When he later found out the truth, my father returned to the farm. The children of the person who sold the farm to my grandfather in 1990 threatened my father because they knew that the title deed was still in the seller's name despite the sale having taken place. 

Does my father have rights to claim the property? He built his house there and has lived on the farm for over 10 years. He is 60 years old. Does the Extension of Security of Tenure Act or any other act apply?


The long answer

This is a sad and difficult situation, as the title deeds are the only legal proof of ownership, and it would probably be very difficult to prove that your late grandfather had bought the farm many years ago. 

Of course, no one can be evicted without a court order in South Africa, and the court may not issue an eviction order without being satisfied that it is right and just to issue that order. This means the court has to take into account the circumstances of the person who may be evicted, and balance the rights of the owner against the rights of the person occupying the land.

There are two laws that deal with eviction: the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the Extension of Security of Tenure 62 of 1997 (ESTA). 

PIE deals with all land throughout South Africa except where ESTA applies. ESTA applies to a lawful occupier of agricultural land: this is a person who occupies the land with the consent of the landowner or "has another right in law to occupy" (such as being the widow of an occupier) and earns less than R13,625 a month. The reason for the establishment of ESTA was to promote long-term security of tenure for occupiers of land who had been vulnerable to unfair eviction from their homes and land during apartheid. 

Anyone who occupies agricultural land with the consent of the owner or with some other right in law is an ESTA occupier. To have built a house on the land does not qualify a person to be an ESTA occupier. An ESTA occupier has the right to long-term secure tenure if they have the landowner’s permission to occupy.  

In terms of what consent by the owner for an occupier to occupy land is, the Constitutional Court has found that consent can be "express" or "tacit". Express consent means that the owner has specifically and directly given permission, while tacit consent means that although consent was not given specifically and directly, it could be assumed by the owner’s actions (or lack of action) that the owner was aware of the situation and was in agreement with it. 

The courts have also found that as long as the person who has the consent to occupy has not had that consent terminated by the landowner, that person’s family members may not be evicted. This is because Section 6(2)(d) of ESTA gives an occupier the right to family life in accordance with the culture of that family. 

A long-term occupier is someone who has stayed on the land for over ten years, is over 60 or unable to work due to ill health or disability. A long-term occupier can only be evicted if they materially breach the agreement with the owner, or damage the property or represent a danger to other people on the property or assist others to build dwellings on the land without permission. Even then, the landowner has to follow the correct ESTA eviction procedures, which involve giving two months’ notice of the intention to evict, to "engage meaningfully" with the occupier and give them the right to make representations, before seeking an eviction order.

The courts have also found that in order to be an ESTA occupier, the person must have lived "continuously and openly" on the land. "Continuously" does not mean the person could never leave the farm to look for work etc, but it does mean that they could not have gone to live for a longer period elsewhere. "Openly" means that they did not hide the fact of their occupation from the landowner.

In terms of PIE, an unlawful occupier may be evicted with a court order granted by the High Court, even if the land is agricultural. In terms of ESTA, it is the Land Claims Court that must automatically review any eviction order granted by a magistrate’s court, to see that all the ESTA protections have been observed, before granting an eviction order against lawful occupiers. The landowner who wants to evict an occupier has to work out if the occupier is a legal occupier or an illegal occupier: if the occupier is illegal, the owner must get an eviction order from the High court under PIE. If the occupier is legal, it is the Land Claims Court that can grant an eviction order. 

An illegal eviction under ESTA is any eviction where the occupier has moved off the land against their will and without an eviction order. A "constructive eviction", which is also illegal, is where the occupier has left because they have been intimidated by threats of violence, or conditions have been made intolerable, for example, cutting off electricity supply. It seems your father was threatened by violence from the late title holder’s children to induce him to leave. 

In terms of your father’s right to the land his father bought, this may well be very difficult to prove. But it may still be worth trying to get the neighbours who were also shareholders in the farm when your late grandfather bought it, to make sworn affidavits about the buying of the land, and to try and accumulate evidence that could prove the sale did take place, in case of giving evidence in court and perhaps receiving compensation from the title owner for improvements to the land, like the house. 

In terms of whether your father could claim secure tenure of the land under ESTA in terms of continuously living there, there may well be a problem in that he left in 2007, and only returned some twelve years later, in 2019. 

But all these questions should be explored. Perhaps you could approach an organisation like Lawyers for Human Rights for advice and assistance. They are operating remotely during the pandemic and you can make an appointment to speak to them. They can be reached at these contact numbers:

Pretoria: 064 647 4719

Johannesburg: 066 076 8845

Durban: 078 315 1269

Musina: 076 766 7782

Wishing you the best,

Answered on Jan. 10, 2022, 12:06 p.m.

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