{"id":243518,"date":"2022-11-21T12:48:52","date_gmt":"2022-11-21T10:48:52","guid":{"rendered":"https:\/\/www.groundup.org.za\/article\/cows-come-home-as-judge-links-grazing-rights-to-security-of-tenure\/"},"modified":"2022-11-21T12:48:52","modified_gmt":"2022-11-21T10:48:52","slug":"stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge\/","title":{"rendered":"Stopping people from letting their cattle graze amounts to eviction, says judge"},"content":{"rendered":"<div id=\"article_body\">\n<p><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/photographers\/Kimberly%20Mutandiro\/Herdsman.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt class=\"warn_big\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/11\/stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge.jpg\"><\/a><\/p>\n<p class=\"caption\">Archive photo of cattle in Brakpan: Kimberly Mutandiro<\/p>\n<ul>\n<li>The Land Claims Court has ruled that removing grazing rights can amount to an eviction.<\/li>\n<li>Courts have previously ruled that grazing is only permitted by consent of the landowner.<\/li>\n<li>The Constitutional Court has said that a \u201cblinkered\u201d approach must be avoided when interpreting a remedial act such as the Extension of Security and Tenure Act (ESTA).<\/li>\n<li>The judge said a \u201cgenerous interpretation\u201d is therefore required when looking at ESTA and its purpose.<\/li>\n<\/ul>\n<p>The Land Claims Court, sitting in Randburg, has given a broader interpretation of the Extension of Security and Tenure Act (ESTA), holding that ESTA occupiers also have rights to graze their livestock.<img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/11\/stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge.gif\" width=\"1\"><\/p>\n<p>Previously, courts in South Africa, including the Supreme Court of Appeal (SCA), held that the Act was for housing rights, and that grazing was only permitted with the consent, tacit or otherwise, of the landowner.<\/p>\n<p>But Judge Susannah Cowen, in a ruling handed down earlier this month, said the Act demands a more generous interpretation.<\/p>\n<p>\u201cIt will frequently be the case, at least in cattle grazing country, as in this case, that the use of the land for grazing will be linked to a right of residence in terms of ESTA.<\/p>\n<p>\u201cIf an occupier is deprived against his or her will of the right to use grazing linked to such right of residence, it will amount to an eviction and, in turn, it will be subject to the protections of ESTA,\u201d said Judge Cowen.<\/p>\n<p>\u201cThe interpretation I set out above better serves the remedial purpose of ESTA, including its protection of security of tenure and the right to dignity than an interpretation that seeks wholly to disaggregate rights to graze cattle from ESTA occupation rights.\u201d<\/p>\n<p>Judge Cowen found that, in any event, the occupiers had \u201ctacit consent\u201d because the farm owners had taken four years to approach the court to remove the cattle.<\/p>\n<p>In the matter before her, the Moladora Trust, which owns a farm in North West Province, brought an application against the children of Meriam Mereki, a former farm employee who died on an unspecified date \u201cbefore 2017\u201d.<\/p>\n<p>The trust accepted that the family were occupiers in terms of ESTA, but said their rights of occupation were only for residential or housing purposes and that they had never sought nor obtained consent to graze cattle on the farm.<\/p>\n<p>The trust served \u201ceviction notices\u201d, demanding the removal of the cattle in 2018 and in 2020.<\/p>\n<p>The Sheriff, however, said the notices could not be served because the occupiers were aggressive and \u201cextremely violent\u201d.<\/p>\n<p>The application came before Judge Cowen unopposed.<\/p>\n<div class=\"editor-summary\"><strong>Read the full judgment <a href=\"https:\/\/www.groundup.org.za\/media\/uploads\/documents\/moladora_trust_v_mereki_and_others_-1.pdf\">here<\/a>.<\/strong><\/div>\n<p>Judge Cowen said she was required to consider whether security of tenure protected by the Constitution and ESTA included the right to graze cattle.<\/p>\n<p>The Constitutional Court has yet to pronounce on the issue, she noted.<\/p>\n<p>However, the SCA had determined that occupiers\u2019 rights to grazing do not derive from ESTA, \u201cbut are personal in nature and derive from consent\u201d because such a right would intrude upon the common law rights of a farm owner.<\/p>\n<p>But, said Judge Cowen, the eviction provisions in ESTA defined evict to mean \u201cto deprive a person against his or her will of residence on land or the use of land or access to water\u201d.<\/p>\n<p>\u201cThis definition clearly indicates that the ambit is not restricted to deprivation of residence on land, but includes the use of land which is linked to the right of residence,\u201d she said.<\/p>\n<p>Judge Cowen said this interpretation balanced the rights of an owner or person in charge with those of an occupier.<\/p>\n<p>\u201cESTA protections are designed to ensure balance between those rights. The generous interpretation gives fuller protection to other rights such as the right to participate in the cultural life of one\u2019s choice. And to enjoy one\u2019s culture and maintain cultural associations with other members of a cultural community.<\/p>\n<p>\u201cIt recognises the dignity of ESTA occupiers, whose lives and livelihoods will, at times, be bound with their cattle holdings.\u201d<\/p>\n<p>The Trust had argued that on the death of Mereki, the right to graze cattle had terminated. But Judge Cowen said on the Trust\u2019s own version there could not be no real doubt that the occupiers had tacit consent to keep and graze cattle, given that it had not taken any real action against them for four years.<\/p>\n<p>She said this conclusion was also reached by applying ESTA, which presumes that a person who has continuously and openly resided on land for a year has consent to do so.<\/p>\n<p>\u201cThis cannot be interpreted narrowly to apply only to a consent to being housed, but must include a consent to use the land. This generous interpretation gives effect to ESTA\u2019s remedial purposes and acknowledges that, at least in cattle grazing areas, there will often be a connection between land and cattle possession.<\/p>\n<p>\u201cA narrow interpretation would reflect the \u2018blinkered peering\u2019 that the Constitutional Court tells us to avoid and would ignore the grid of related provisions in ESTA,\u201d said Judge Cowen.<\/p>\n<p>\u201cOn these facts, the occupiers have not only openly resided on the farm but had used the land for purposes of grazing their cattle. It is then presumed that they had consent to do so.<\/p>\n<p>\u201cI conclude that respondents had consent to graze cattle on the farm and there was a tacit agreement with the trust to that effect,\u201d Judge Cowen said, dismissing the application.<\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2022 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/11\/stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Archive photo of cattle in Brakpan: Kimberly Mutandiro The Land Claims Court has ruled that removing grazing rights can amount to an eviction. Courts have previously ruled that grazing is only permitted by consent of the landowner. The Constitutional Court has said that a \u201cblinkered\u201d approach must be avoided when interpreting a remedial act such [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":243519,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-243518","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/11\/stopping-people-from-letting-their-cattle-graze-amounts-to-eviction-says-judge.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/243518","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=243518"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/243518\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/243519"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=243518"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=243518"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=243518"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}