The short answer
They must make representations under Section 8(1)E of the Extension of Security of Tenure Act (ESTA).
The whole question
My father was one of multiple farm workers who were made BEE shareholders in a company, for which they did not receive a single cent in 12 years. They lived on the farm where they were working, and the company paid rent to the landowner. My father and the other farm workers were evicted from the land when they stopped working for the company. Is this fair? What can we do?
The long answer
If your father was living there before 1997 and had permission to live there from the owner and was earning below the minimum wage, he would have acquired some rights to stay there under the Extension of Security of Tenure Act (ESTA). The proof of eviction letter that you sent says that because your father stopped being employed by the company, there was no further agreement for him and his family to continue living on the farm.
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”. This consent can be explicit or tacit. Tacit consent means that in terms of what had been the case previously, the occupiers had a reasonable expectation that the agreement would be renewed.
Adriaans Attorneys explains how ESTA is applied in evictions (text is quoted):
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:
a) the fairness of the agreement between the occupier and the owner of land;
b) the conduct of the parties giving rise to the termination;
c) the interests of the parties;
d) the existence of a reasonable expectation of the renewal of the agreement and
e) the fairness of the procedure followed by the owner of land.
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
(a) the period that the occupier has resided on the land in question;
(b) the fairness of the terms of any agreement between the parties;
(c) whether suitable alternative accommodation is available to the occupier;
(d) the reason for the proposed eviction;
(e) the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land.
You don’t say whether your father and the farm workers made representations under ESTA to be allowed to stay there. You also don’t explain how they came to be BEE shareholders of a company.
A Harbour & Associates article says the following about where you find details of shareholders:
Shareholders are not registered anywhere, except in the share register.
The share register is usually an Excel sheet filed on the server at the registered office of the company. There’s the only place you will find the shareholders.
A share certificate is issued by the company secretaries to the shareholder and that is proof of ownership.
Share certificates must be signed by the company secretary and one director or by just two directors.
Common shareholders are granted six rights: voting power, ownership, the right to transfer ownership, a claim to dividends, the right to inspect corporate documents, and the right to sue for wrongful acts.
If you have any proof of your father and others being shareholders in a BEE company, you should take it to one of the following organisations that assist people who are being evicted from land and ask them to advise on your rights.
Social Change Assistance Trust - This organisation started out assisting people who were being evicted in the Stellenbosch area, so they may be a useful place to start:
Tel/Cell: 0606243215, 0673350607
People against Suffering, Oppression and Poverty - PASSOP:
PASSOP encourages everyone to make an appointment with prior to visiting the office. They offer walk-in services every day from 10am until 4pm.
Tel: 021 418 2838
3 Hans Strijdom Avenue Lane
Tulbagh Centre Building (Room 413)
Cape Town 8001
Wishing you the best,
Answered on Dec. 6, 2023, 2:25 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.