Moladora Trust v Mereki and Others

The Moladora Trust was the owner of the farm Wildebeeslaagte number 282 in the North West Province. The first, second and third respondents (the Mereki children) were occupiers of a portion of the farm by virtue of their late mother Mrs Mereki's right to occupy under section 3(4) of ESTA. Mrs Mereki had been employed on the farm and died in or before 2017. The children continued to reside on the farm after her death. The Trust sought an order to remove the Mereki children's livestock from the farm, alleging they had never obtained express consent to keep livestock or graze animals on the farm. No relief was sought to evict the Mereki children themselves. Between 2017 and 2020, Mr Nel on behalf of the Trust repeatedly wrote to and attempted to engage with the Mereki children to inform them they had no permission to keep livestock, but the children were allegedly abusive and aggressive. The letters dated 31 October 2017 and 23 September 2020 gave notice to remove livestock. The Mereki children did not respond to the application, file affidavits, or appear at the hearing in the Land Claims Court.

• Whether the Mereki children had express or tacit consent to graze livestock on the farm
• Whether a tacit agreement existed between the Trust and the Mereki children for grazing rights
• Whether the Land Claims Court was correct to find tacit consent/agreement in the absence of such a defence being raised by the respondents
• Whether section 8 of ESTA needed to be invoked to terminate grazing rights
• Whether grazing rights are derived from ESTA or from consent/agreement between parties

The appeal was upheld with no order as to costs. The Land Claims Court order was set aside and replaced with an order: (a) directing the first, second and third respondents to forthwith remove all their livestock from the farm; (b) authorizing the Sheriff, with assistance of the police and Pound Master, to remove and impound the livestock if the respondents failed to comply within 30 days; and (c) interdicting the respondents from returning and keeping livestock on the farm without the prior consent of the Trust.

The binding principles established are: (1) The right of an occupier to keep or graze livestock on another person's farm is a personal right which derives from consent or agreement between the occupier and the landowner or person in charge, not from ESTA itself; (2) Such grazing rights do not automatically devolve upon the death of the original occupier to their children or family members; (3) A court cannot make findings on the existence of a tacit agreement or tacit consent where such a defence has not been advanced by the party relying on it and where the opposing party's uncontested version denies any such agreement; (4) The test for establishing a tacit agreement requires the party alleging its existence to prove on a balance of probabilities unequivocal conduct by the other party demonstrating an intention to enter into such contract.

The Court noted that the South African Human Rights Commission and the Association of Rural Advancement were admitted as amici curiae, but stated that in view of the decision on the facts, it was not necessary to deal with the legal issues raised by the amici. The Court also observed that Mr Nel's concerns about the impact of livestock on available grazing, potential damage to natural vegetation, unclear ownership of livestock, and uncertainty about the health of the animals were relevant contextual factors, though not determinative of the legal issues.

This case clarifies important principles regarding grazing rights under ESTA. It confirms that the right to keep or graze livestock on another person's farm is a personal right deriving from consent or agreement between the occupier and landowner, not a right that flows automatically from ESTA. Such rights do not automatically transfer to family members upon the death of the original occupier. The case also emphasizes procedural fairness principles: a court cannot make findings on defences (such as tacit agreement) that were not pleaded or advanced by the parties, particularly where the applicant's uncontested version denies the existence of such agreement. The judgment reinforces that while ESTA protects occupation rights, it does not automatically confer additional rights such as grazing rights without proper consent or agreement.