Does ESTA allow for the eviction of unlawful occupants?

In simple terms, South African law requires residential evictions of long-term land occupants and labour tenants to comply with the Extension of Security of Tenure Act 62 of 1997 (‘ESTA’). However, whether the Act is applicable is a complex question. Generally, ESTA applies to anyone who has lived on certain land since the 4^th of February 1997, with either the consent of the landowner or person in charge, or any other right in law. Consent is assumed if occupants have openly lived on the land for a year or more.

Although section 8 of ESTA allows for the termination of an occupier’s right of occupation on lawful grounds and when it is just and equitable to do so, ESTA imposes significant limitations on evictions. The purpose of ESTA is to protect the occupier’s right of occupation, meaning it makes evictions more challenging for landowners.

So, what can a landlord do if they need vacant possession of their property, which often happens with agricultural land in ESTA cases? It’s not a hopeless situation but usually requires the services of expert eviction attorneys. Depending on the circumstances, the process should start with serious attempts to engage with the occupiers with the help of various parties, such as the Municipality, the Department of Agriculture, Land Reform and Rural Development, community members and leaders, interpreters, ward councillors, traditional leaders, and accredited alternative dispute resolution officers, among others. This is to try to mediate the issues and reach a suitable outcome, whether it’s relocating the occupiers off-site or on-site, or establishing rules for the occupiers’ continued tenure if applicable.

The success of evicting an ESTA occupier under the Act largely depends on the landlord conducting an extensive fact-finding mission to present all relevant information about the occupiers to the Court.

The South African Courts, and the Constitution of the Republic of South Africa, do not require landlords to provide free accommodation or secure alternative accommodation. It remains the duty and Constitutional mandate of the State to promote and provide safe and affordable housing for its people.

Given South Africa’s history, it is unlikely that the position of ESTA will be amended soon. In most cases, an ESTA eviction is necessary because individuals have moved onto the property without permission, and landlords have only taken action years later when the problem becomes serious or circumstances change. Therefore, the best advice for all landlords is to act proactively by taking appropriate measures to prevent land invasion or squatting and to act promptly if it does occur.