Constitutional Court judgment on grazing rights for occupiers of agricultural land under ESTA

The Constitutional Court recently handed down a significant judgment in Mereki and Others v Moladora Trust and Another (2025) ZACC 16 ("Mereki v Moladora Trust"). The gist of the matter related to the application of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), which regulates the conditions and rights of people living on agricultural land owned by a third party (often the employer), and whether these rights extend to grazing rights.

The judgment extends far beyond just livestock and grass. For occupiers, this strengthens security of tenure, but for landowners, it raises the stakes: consent for someone living on your farm to keep livestock can unintentionally create enforceable grazing rights for them, even if the consent is silent of implied.

The history of the matter in our Courts:

The matter was initially instituted in the Land Claims Court, a court which specialises in dealing with disputes arising out of South Africa’s land reform laws (including ESTA). The Land Claims Court found that grazing rights are protected under ESTA. This decision was appealed to the Supreme Court of Appeal (“SCA”), which disagreed with the Land Claims Court and overturned the decision. The matter ultimately reached the Constitutional Court after the SCA decision was also appealed.

The Constitutional Court, being the supreme court in all matters, handed down the final judgment where the decision of the Land Claims Court was reinstated, confirming that livestock grazing by farm occupiers falls within the protection of ESTA.

The implication of the Constitutional Court judgment:

Saying that the Constitutional Court confirmed the protection of grazing rights under ESTA is one thing, but what does it actually mean, and how does it work?

Essentially, if employees or their families live on farmland and keep livestock with the landowner’s express or tacit consent (‘tacit’ meaning understood or implied without being stated), this is treated as a protected use of land under ESTA. It is not regarded as a personal favour that the landowner can revoke at will once the right has been granted. Once consent exists, ESTA governs both the continuation and the termination of the grazing rights.

The Constitutional Court reached this decision by interpreting section 8 of ESTA. Section 8 speaks of a “right to residence”, which, if interpreted properly, according to the Court, also covers the termination of consent to use land for associated purposes such as grazing or cultivation.

The next pivotal question is “how is this right terminated?” and the short answer is, only with careful compliance with ESTA. Self-help measures, such as impounding, removing livestock or the use of sheriff’s notices in terms of common law, may amount to an unlawful eviction.

The following sections of ESTA apply to the termination of rights of occupiers:

• Section 8 of ESTA requires any withdrawal of consent to be “just and equitable”.

  
  

• Section 9 requires a court order before eviction can occur, which will only be granted if the court is satisfied that section 8 was complied with, i.e., if proper notices were given, and the granting of eviction is just and equitable.

  
  

• Section 7 deals specifically with instances where livestock are trespassing, and requires the landowner to give at least 72 hours’ notice before impoundment.

ESTA further deliberately excludes reliance on common law and other legislation (such as pound ordinances or environmental statutes) to bypass its procedures, meaning that tacit consent and statutory presumptions strongly favour occupiers.

It is therefore important to understand what constitutes consent in these circumstances.

When considering ESTA, section 3(4) provides that if a person has resided openly on the land for more than a year, consent is presumed, and after 3 years, section 5(3) stipulates this presumption becomes irrebuttable.

The Constitutional Court confirmed in its decision that these presumptions also apply to grazing rights. In other words, once livestock have openly grazed for a year, consent will be presumed, and after 3 years, it cannot be denied.

It is important to note that silence, tolerance, or failure to object to someone keeping livestock on your land timeously will be treated as tacit consent to allow livestock to graze.

What should landowners do?

• Act promptly and keep meticulous records.

• If livestock are introduced without permission, immediately deliver a written objection (ideally with an acknowledgement of receipt).

• If consent is given, document it clearly with limits on numbers and grazing areas.

• If the landowner later wishes to terminate the grazing rights, the process must strictly comply with ESTA, and clear evidence is crucial.

  
  

• Seek legal assistance before initiating any of the processes.

Conclusion

From a South African landowner’s perspective, one assumes significant risk by allowing ESTA occupiers to keep livestock on one’s land without strict rules and parameters, or even at all.

The Constitutional Court in Mereki v Moladora Trust, by confirming the extension of the protection under ESTA to grazing rights for occupiers, has reinforced occupiers’ rights while simultaneously significantly increasing the risks for landowners.

Landowners are therefore advised to be cautious before merely giving consent to someone to keep livestock on their land, even if just for one or two animals. When in doubt, always put any form of consent in writing, with strict conditions.

At Van Zyl Scheepers Attorneys, we stay on top of the latest legal developments to ensure your interests are protected. Contact us today to protect your rights with confidence.