Can I be evicted from the farm I have been living on for decades?

The long answer

No one in South Africa can be evicted without a court order. A new owner cannot evict you without a court order and the court must find that the eviction is fair and just before granting an eviction order.

As a person living on a farm, you are covered by the Extension of Security of Tenure Act of 1997 (ESTA) if you do not earn more than R5,000 a month and you are not a labour tenant.

The organisation PASSOP points out that under ESTA you have special rights if you are a long-term occupier. If you are older than 60 and have lived on the farm for ten years, you can stay on the farm for the rest of your life. The only way that you can be evicted is if you do not honour agreements that you have made with the owners, or if you do something seriously wrong. An eviction is only lawful if there is an eviction order from a court, and the eviction must also be just and equitable.

If you are younger than 60, but have lived on the farm since before 4 February 1997 (when the new Constitution came into effect), and you have done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where you can enjoy the same quality of life. As you have lived on the farm for 31 years, that protection would apply to you. 

ESTA protects farm dwellers against unfair evictions and sets out how disputes over rights to the land can be resolved with mediation, arbitration or the courts. The decisions that the courts make must strike a balance between the constitutional right of a person to a home and the rights of the landowner. 

The Constitutional Court emphasized in a 2016 case, that security of tenure and provision of adequate housing must be at the centre of the eviction process in terms of ESTA.

If the new owner wants you all to leave, these are the procedures he must follow:

• He must give you a notice that if you do not vacate the premises within two months of the notice, he will go to court for an eviction order. (The owner is not allowed to remove you by physical force or by blocking access to the property.)

• He must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs, to warn the municipality and the Department that they might need to make arrangements for alternative accommodation for you, and for mediation, if this is possible.

• The application for eviction through ESTA must be brought either to the Land Claims Court or to the Magistrate’s Court.  

In an ESTA application for eviction, the court will look at the following questions to decide whether it is just and fair to evict you:

• 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 you expect to stay on the land for a longer period?

• Are there valid grounds for evicting you?

In the court enquiry, you have the right to have another person or a lawyer there to help you state your case. After the enquiry, if the eviction order is granted, the owners must inform you of their decision in writing, and remind you that you have the right to take the matter to court if you disagree with the outcome of the enquiry.

The eviction order also has to be sent to the Land Claims Court to be confirmed before it can be enforced.

If you need help and advice, you could contact the following organisations:

• PASSOP (People against Suffering, Oppression and Poverty)

3 Hans Strijdom Avenue Lane

Tulbagh Centre Building (Room 413)

Cape Town 8001

Office Telephone: 0214182838

Office E-mail: office@passop.co.za

• Lawyers for Human Rights

Link to Programme: Security of Farm Workers Project

Telephone number:  021 424 8561

Physical address: 

4th floor, Vunani Chambers,

33 Church Street,

City Centre,

Cape Town

Wishing you the best,
Athalie