Jakobus Petrus Marais N.O. and Others v Jacques Daniels and Others (and related cases)

This case arose from eight eviction matters brought under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The Extension of Security of Tenure Amendment Act 2 of 2018 (ESTA Amendment Act) introduced mediation requirements into sections 10(1) and 11(2) of ESTA and came into force on 1 April 2024. Four days later, on 5 April 2024, the Land Court Act 6 of 2023 came into force, which established the Land Court to replace the Land Claims Court and introduced various amendments to ESTA. Legislative uncertainty arose as to whether the Land Court Act repealed the mediation requirement in section 11(2) introduced by the ESTA Amendment Act. The Full Court was constituted to determine related legal issues arising from pending ESTA eviction proceedings. The applicants were landowners/persons in charge seeking eviction; the respondents were occupiers represented by Legal Aid South Africa (LASA); and the Minister of Land Reform and Rural Development participated as an interested party.

• Did the Land Court Act 6 of 2023 repeal the mediation requirement introduced in section 11(2) of ESTA by the Extension of Security of Tenure Amendment Act 2 of 2018?
• Are the mediation requirements introduced to sections 10(1) and 11(2) of ESTA mandatory or voluntary?
• Do good faith attempts at settlement or meaningful engagement constitute mediation for purposes of the mediation requirements in sections 10(1) and 11(2) of ESTA?
• Do the mediation requirements in sections 10(1) and 11(2) of ESTA apply to eviction proceedings that were pending before 1 April 2024?

The Court declared that: (1) The Land Court Act did not repeal the amendment to section 11(2) of ESTA effected by the ESTA Amendment Act; (2) Following commencement of the ESTA Amendment Act, section 11(2) requires both that the Court find eviction just and equitable AND that the mediation requirement be met; (3) The mediation requirements in sections 10(1)(e) and 11(2)(b) are mandatory; (4) Good faith settlement efforts and meaningful engagement do not constitute mediation for purposes of sections 10(1)(e) and 11(2)(b); (5) The mediation requirements do not apply to eviction proceedings instituted and pending before the Land Court or Magistrates Court before 1 April 2024, or to eviction proceedings under automatic review pending before the Land Court on 1 April 2024. There was no order as to costs.

The binding legal principles established are: (1) The Land Court Act 6 of 2023 did not repeal the mediation requirement introduced into section 11(2) of ESTA by the Extension of Security of Tenure Amendment Act 2 of 2018; the Land Court Act only substituted references to 'a court' with 'the Court'; (2) The mediation requirements introduced by the ESTA Amendment Act to sections 10(1)(e) and 11(2)(b) of ESTA are mandatory prerequisites for the grant of eviction orders under those sections; (3) In section 10(1), the word 'or' between subsections (d) and (e) must be read as 'and' to avoid absurd and unconstitutional results; one of the requirements in (a) to (d) must be met AND the mediation requirement must be satisfied; (4) 'Mediation' for purposes of sections 10(1)(e) and 11(2)(b) means mediation 'in terms of section 21' of ESTA, which requires an independent mediator with expertise in dispute resolution and involves privileged communications; good faith settlement attempts and meaningful engagement do not satisfy this requirement; (5) The mediation requirements do not apply retrospectively to eviction proceedings that were instituted and pending before the Land Court or Magistrates Court before 1 April 2024, or to eviction proceedings under automatic review pending before the Land Court on 1 April 2024; (6) ESTA is remedial legislation umbilically linked to the Constitution and must be interpreted generously and purposively to afford occupiers the fullest protection of their constitutional guarantees to tenure security and access to adequate housing.

The Court made several non-binding observations: (1) It emphasized the historical context of land dispossession in South Africa from colonialism through apartheid, describing the apartheid resettlement policy as 'the cornerstone of the whole edifice of apartheid'; (2) It noted that ESTA occupiers remain 'a vulnerable group susceptible to untold mistreatment' especially women; (3) It highlighted that mediation provides a vehicle through which multiple stakeholders including municipalities and government departments can participate in securing tenure; (4) It observed that while the duty to provide access to housing ordinarily resides with the State, landowners sometimes voluntarily contribute generously to this end; (5) It noted that mediation may facilitate consideration of expropriation for ESTA developments; (6) It emphasized the undesirable inequality of arms that often exists between legally represented landowners and unrepresented occupiers in settlement negotiations and meaningful engagement processes; (7) It stressed the desirability of occupiers having access to legal representation at early stages including during section 8 termination processes, meaningful engagement and mediation; (8) It noted that courts retain powers under PE Municipality and under sections 13(2), 26(2) and 29 of the Land Court Act to order mediation in pending proceedings where appropriate; (9) It indicated that parameters for fair process, meaningful engagement and mediation will be developed as cases arise; (10) It acknowledged that its findings on pending proceedings may not provide guidance on every related issue, such as cases where leave to supplement papers is granted or matters are remitted on review.

This landmark judgment is significant for several reasons: (1) It clarifies the interaction between the ESTA Amendment Act and the Land Court Act, resolving uncertainty about the status of mediation requirements; (2) It entrenches mandatory mediation as central to ESTA eviction proceedings under sections 10(1) and 11(2), promoting alternative dispute resolution in land reform disputes; (3) It emphasizes the remedial and transformative purposes of ESTA as constitutionally-infused legislation designed to redress historical land dispossession and secure tenure for vulnerable occupiers; (4) It provides authoritative guidance on when mediation requirements apply and what constitutes mediation under ESTA; (5) It demonstrates the Land Court's approach to purposive and contextual statutory interpretation in land reform matters; (6) It balances access to courts with the constitutional imperatives of tenure security and equitable land relations; (7) It addresses the practical application of mediation requirements to pending proceedings, providing transitional clarity; (8) It highlights the importance of early legal representation for occupiers to ensure equality of arms in mediation and settlement processes.