THE Land Claims Court has thrown out an application by a trust that sought to compel it to direct long term occupants of a North West farm to remove their herd of cattle within 30 days or have them impounded.
The Moladora Trust (the Trust) approached the court for an order directing the respondents, Magalone Mereki, Topies Mereki, Dikhotso Mereki and the Department of Rural Development and Land Reform to remove all of their grazing animals under their control from one of the Trust’s farms.
In their application, the Maladora Trust asked the court that if the respondents failed to act within 30 days; an order directing the sheriff with the assistance of the South African Police Services be issued to remove the cattle to the pound master for the district where the farm is situated.
The farm is known as the Remainder Wildebeeslaagte situated in the Dr Kenneth Kaunda district in North West province.
The court heard evidence that the Mereki are the children of the Trust’s former employee Meriam Mereki who passed away on an unspecified date, but ‘before 2017’.
The Mereki children continued to reside on the farm after their mother’s death and the Trust told the court it accepted that they are Extension of Security of Tenure Act 1997 (ESTA) occupiers.
The ESTA which was passed in 1997 and later amended had as its aims “to provide for measures with state assistance to facilitate long-term security of land tenure and to regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated.”
Its other aims are to regulate the conditions and circumstances under which persons, whose right of residence has been terminated, may be evicted from land.
The act was formulated in the wake of scores of cases of unlawful evictions of farm dwellers and tenants. Non-governmental organisations have estimated that more than two million people, the majority of them black and poor have been evicted from white owned farms since 1994.
The joint parliamentary Portfolio Committee on Rural Development, Agriculture and Land Reform, and the Portfolio Committee on Employment and Labour heard during a recent oversight visit in Limpopo that human rights violations against farm dwellers and tenants were continuing on farms.
It is estimated that approximately three million black South Africans who live on privately owned farms in formerly white commercial farming areas are among the poorest citizens, whose vulnerability is exacerbated by their “socio-economic marginality and geographical isolation.
In the Mereki judgment Judge Susannah Jane Cowen ruled that on the Trust’s own version, “there can be no real doubt that at least after a period, the respondents had tacit consent to keep and graze cattle and that a tacit agreement arose.”
“The Trust does not quibble with the respondents’ ownership of the cattle, which presumably one or more of the respondents acquired through succession if they did not already hold rights to the cattle. There is no cognisable evidence to suggest that the Trust took issue with the right to keep and graze cattle until the Trust sent the 2018 notices,” Judge Cowen said.
The judgment relied on previous such cases in which applicants had sought to deny occupants the right to graze their livestock on land which they resided.
Cowen said before “instituting proceedings, there was a known dispute about the respondents’ entitlement to graze cattle and, apparently, the number of cattle that, at least, Mrs Mereki was entitled to graze…”
The court heard that Mrs Mereki had a right to graze only five cattle, however there were nine head of cattle at the time of the dispute.
In her judgment Judge Cowen said Marius Nel, who is a trustee of the Trust and who deposed to the founding affidavit on its behalf, submitted that after Mrs Mereki passed away, “he made ‘some efforts to engage’ about the absence of consent to keep any livestock on the farm. He says that during these ‘incidents’ he was ‘verbally abused’ and informed that the livestock will not be removed.”
Judge Cowen further said “that in circumstances where ‘he’ had bought the farm from a previous owner and to afford a reasonable opportunity to make alternative arrangements for their livestock, he served formal notices in January 2018, calling on the first to third respondents to remove their livestock within 30 (thirty) days (the 2018 notices). The Trust has supplied the 2018 notices to the Court with proof of service.”
According to evidence led before the court the Trust acquired ownership of the farm on 5 November 2003 and that according to the trustees’ knowledge, the respondents occupy the farm ‘solely and by virtue of the employment of [their] parents on the farm.’
It also heard that “any agreement regarding grazing of livestock was a personal agreement entered into between the owner and the persons employed on the farm allowing the keeping of 5 (five) cattle, which rights were not transferrable to the respondents through succession” and that “the respondents’ keeping of cattle on the farm was said to be unlawful and the Trust demanded that the respondents remove all of the cattle within 30 days.”
But Cowen, in her judgment said “at best for the Trust, it sent the 2018 notices over a year after she passed away. The high water mark of the evidence during this period is wholly unsubstantiated claims that there were ‘some efforts to engage’ about the absence of consent.”
She further said “moreover, when the 2018 notices were sent, they centrally refer to a legal contention that the rights to keep and graze cattle are not transferrable.”
Cowen questioned why nothing was done for a further 19 months thereafter and why it was that only after at least 31 months after Mrs Mereki passed away, the Trust acted by sending the 2020 notices.
“Thereafter the Trust waited another 19 (nineteen) months before instituting these proceedings. In the result, over 4 (four) years and 2 two months passed before the Trust instituted these proceedings,” Cowen said.
The judge referred to section 3(4) of ESTA which she said creates a presumption that a person continuously and openly resided on land for a year has consent to do. He said although section 3(4) uses the language of openly residing, it cannot be interpreted narrowly to apply only to a consent to being housed, but must include a consent also to use the land connected to that residence, in this case the grazing of cattle.
In dismissing the application Cowen said he concluded “that the respondents had consent to graze cattle on the farm and there was a tacit agreement with the Trust to that effect. This state of affairs had probably arisen by February 2018, but at least before the October 2020 notices were sent or the proceedings instituted.”
No order for costs was made. – news@mukurukuru.co.za
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