Moladora Trust v Magalone Mereki and Others

The Moladora Trust owned a farm in the North West Province. The first to third respondents were children of the late Mrs Meriam Mereki, a former employee of the Trust. After their mother's death (before 2017), the respondents continued to reside on the farm. The Trust accepted the respondents were ESTA occupiers with residential rights but disputed their entitlement to graze 9 head of cattle on the farm. The Trust contended that only Mrs Mereki had consent to graze 5 cattle and this personal right did not transfer to her children upon her death. In January 2018, the Trust served notices demanding removal of cattle within 30 days. After no response and further engagement with the Department of Rural Development, the Trust served further notices in October 2020 purporting to terminate grazing rights on one month's notice at common law. The Trust then applied for an order directing removal of cattle. The respondents did not participate in proceedings despite service attempts that encountered hostility.

• Whether ESTA occupiers have rights to graze cattle on land they occupy and the source of such rights
• Whether the right to graze cattle forms part of security of tenure protected by ESTA
• Whether section 3(4) of ESTA creates a presumption of consent that extends beyond residential occupation to include use of land for grazing
• Whether termination of grazing rights requires compliance with sections 8 and 9 of ESTA or can be terminated on reasonable notice at common law
• Whether removal of cattle from land occupied under ESTA constitutes an eviction within the meaning of ESTA

The application was dismissed. No order was made as to costs. The Court declined to grant leave to supplement papers as there had been no attempt to comply with sections 8 or 9 of ESTA.

Once an ESTA occupier has obtained consent (express or tacit) to graze cattle on land they occupy, that right forms part of their security of tenure protected by ESTA, notwithstanding that the right is personal in nature and derives from consent rather than being an automatic incident of ESTA occupation. Section 3(1) of ESTA provides that consent to use land may only be terminated in accordance with section 8, which requires termination be just and equitable having regard to specified factors. Section 3(4)'s presumption of consent for continuous open residence for one year extends to connected land uses such as grazing, not merely residential occupation. The definition of 'eviction' in section 1 of ESTA includes deprivation of use of land linked to residence, meaning deprivation of grazing rights can constitute an eviction requiring compliance with section 9. An owner or person in charge cannot terminate grazing rights on reasonable notice at common law but must comply with ESTA's protective provisions in sections 8 and 9.

The Court made several important observations: (1) ESTA must be interpreted in light of the historical connection between land dispossession and cattle dispossession, including through impoundment laws (referencing Zondi and Sibanyoni). (2) Human dignity is an indispensable pivot to security of tenure, and there can be no true security of tenure under conditions devoid of human dignity (citing Daniels). (3) The generous interpretation better serves ESTA's remedial purposes and protects rights to participate in cultural life, enjoy one's culture, and access to sufficient food. (4) The Court's interpretation is consistent with the SCA decisions in Normandien and Loskop Landgoed Boerdery, which concerned different factual scenarios where the right to graze was not being terminated. (5) Property rights held under customary law operate in a family and communal setting and are not individualized as under common law, and cattle can be integral to cultural practices and family life. The Court made cautious assumptions favorable to the Trust regarding when the respondents became ESTA occupiers and the personal nature of the original consent, without finally deciding these issues given the application was unopposed.

This judgment is significant as it clarifies the scope of ESTA protections in relation to cattle grazing by occupiers. It establishes that while grazing rights derive from consent rather than being automatic ESTA rights, once consent exists (including tacit consent), those rights become part of the occupier's security of tenure and attract full ESTA protections. The decision interprets section 3(4)'s presumption of consent broadly to include land use connected to residence, not just housing. It confirms that termination of grazing rights requires compliance with the just and equitable requirements of section 8 and cannot be terminated on reasonable notice at common law. The judgment emphasizes the constitutional and historical context of ESTA, linking land dispossession to cattle dispossession, and requiring interpretation that protects occupier dignity and balances rights. It provides important guidance for land owners and occupiers in agricultural contexts about the procedural and substantive requirements for terminating grazing arrangements.