Moladora Trust v Mereki and Others (LCC70/2022) [2022] ZALCC 32; 2023 (3) SA 209 (LCC) (11 November 2022)

Moladora Trust v Mereki and Others (LCC70/2022) [2022] ZALCC 32; 2023 (3) SA 209 (LCC) (11 November 2022)

The Court found that, although grazing rights for ESTA occupiers are personal and derive from consent, the respondents had acquired tacit consent to graze cattle on the farm after their mother's death. This was inferred from their continued open residence and use of the land for grazing over several years without objection from the applicant, and the presumption of consent under section 3(4) of ESTA. The Court held that once such consent is established, the right to graze cattle forms part of the tenure protected by ESTA and is subject to its procedural safeguards. The applicant failed to comply with the requirements of sections 8 and 9 of ESTA for termination of use rights, as no just...

Citation
[2022] ZALCC 32
Parties
Applicant: Moladora Trust; Respondent: Magalone Mereki; Respondent: Topies Mereki; Respondent: Dikhotso Mereki; Respondent: Department of Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
11 November 2022
Case Number
LCC70/2022
Procedural Posture
Civil Application / Unopposed Motion for Removal of Livestock; Application for Eviction Related Relief
Outcome
Application dismissed; no order for costs.
Judges
SJ Cowen
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Consent to Graze Livestock, Security of Tenure, Tacit Agreement, Constitutional Right to Dignity
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Eviction Proceedings Consent to Graze Livestock Security of Tenure Tacit Agreement +1 more

Case Brief

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Parties

Moladora Trust

Applicant

Magalone Mereki

Respondent

Topies Mereki

Respondent

Dikhotso Mereki

Respondent

Department of Rural Development and Land Reform

Respondent

Procedural Posture

Civil Application / Unopposed Motion for Removal of Livestock; Application for Eviction Related Relief

Legal Issues

  1. 1 Whether the respondents enjoyed any right to graze cattle on the farm.
  2. 2 If so, whether the protections of ESTA apply when an owner or person in charge seeks to terminate the right or whether the applicants may terminate the right on reasonable notice.

Ratio Decidendi

The Court found that, although grazing rights for ESTA occupiers are personal and derive from consent, the respondents had acquired tacit consent to graze cattle on the farm after their mother's death. This was inferred from their continued open residence and use of the land for grazing over several years without objection from the applicant, and the presumption of consent under section 3(4) of ESTA. The Court held that once such consent is established, the right to graze cattle forms part of the tenure protected by ESTA and is subject to its procedural safeguards. The applicant failed to comply with the requirements of sections 8 and 9 of ESTA for termination of use rights, as no just...

Court Disposition

Application dismissed; no order for costs.

Orders

  • The application is dismissed.
  • There is no order for costs.