Tsediso Phillip Tsotetsi and Others v Willem Jonathan Raubenheimer N.O. and Others

The Appellants are ESTA occupiers residing on the Remainder of the Farm Fairdale 1048, District Vrede, Free State Province, a property owned by the Mooihoek Boerdery Trust (the Trust). The Appellants collectively kept and grazed approximately 16 head of cattle on a 17.4-hectare area allocated to them. The Trustees alleged that the Appellants had severely overgrazed the allocated area, resulting in environmental degradation and breach of the Conservation of Agricultural Resources Act 43 of 1983 (CARA). A Grazing Report commissioned by the Trust in December 2018 recommended that livestock be removed from the allocated area for rehabilitation over an estimated period of two growing seasons. The Trustees sent the Grazing Report to the Appellants on 10 June 2019, calling on them to remove all cattle within thirty days. The Appellants did not respond. On 25 July 2019, the Trustees instituted an application in the Vrede Magistrates Court seeking orders requiring removal of the Appellants' cattle. The Appellants opposed the application. On 13 August 2020, Magistrate Van der Westhuizen granted orders requiring the removal of the Appellants' cattle from the property. The Appellants appealed to the Land Claims Court in terms of section 19(2) of ESTA.

• Whether the Magistrates Court had jurisdiction under section 19(1) of ESTA to grant interdicts requiring removal of cattle in circumstances not involving eviction or reinstatement
• Whether section 19(1)(b) of ESTA confers subject matter jurisdiction on Magistrates Courts to grant interdicts and declaratory orders beyond proceedings for eviction or reinstatement
• Whether the interdicts granted were 'in terms of' ESTA as required by section 19(1)(b)(i)
• Whether the Trustees were entitled to an order requiring removal of the Appellants' cattle to allow rehabilitation of the allocated area
• Whether the Magistrate was entitled to grant an order limiting the number of cattle that could be returned after the rehabilitation period when such relief was not specifically sought in the notice of motion
• Whether a costs order against the Appellants was warranted

The appeal was partially upheld. The first and second orders (requiring removal of cattle) were confirmed with the removal date varied to 15 February 2021. The third order (limiting the number of cattle to be returned) was varied to provide that only the number of livestock permitted by CARA and its Regulations applicable at the time (September 2023) may be returned. The costs order was set aside and replaced with an order that each party pay their own costs. Each party was ordered to pay their own costs in the appeal.

The binding legal principles established are: (1) Section 19(1)(b) of ESTA confers independent subject matter jurisdiction on Magistrates Courts to grant interdicts and declaratory orders 'in terms of' ESTA, not limited to proceedings for eviction or reinstatement under section 19(1)(a). (2) The phrase 'in terms of' ESTA in section 19(1)(b) should be interpreted broadly to include not only statutory rights conferred by ESTA but also sufficiently connected personal rights derived from agreements with ESTA occupiers, particularly where such rights are integrally connected to occupiers' statutory rights to reside on and use land. (3) The right of an ESTA occupier to keep and graze cattle is a personal right derived from agreement that is integrally connected to the occupier's statutory right to use land under section 6(1) of ESTA. (4) ESTA occupiers who keep cattle are 'land users' as defined in CARA and are jointly responsible with landowners for compliance with CARA Regulation 9 and other provisions protecting veld against deterioration and destruction. (5) A landowner may obtain an interdict against an ESTA occupier to compel removal of cattle to ensure compliance with CARA where overgrazing has occurred, even where the occupier has a personal right to keep cattle. (6) There is no general duty on landowners to provide alternative grazing areas unless such a duty is established by the terms of an agreement (express, tacit or implied) with the occupier.

The Court made several non-binding observations: (1) The history of cattle keeping and impoundment in South Africa is intimately linked with land dispossession, which the Constitution seeks to redress, and this context is important in ESTA cattle disputes. (2) Parties and their legal representatives in ESTA cattle disputes must plead their cases with sufficient clarity and particularity, including clearly pleading material terms of any cattle keeping and grazing agreement. Legal advisors have a serious duty to ascertain and engage with disputed facts and reflect such disputes fully and accurately in answering affidavits. (3) The Land Claims Court and Magistrates Courts do not have jurisdiction in any case involving an ESTA occupier; jurisdiction requires that the occupier invoke provisions of ESTA to establish a cause of action or defence. (4) Where a court makes an order regulating removal of cattle for rehabilitation purposes, it should carefully consider the appropriate terms for return of cattle and avoid imposing restrictions without adequate factual basis and proper procedural fairness. (5) Section 6(3)(b) of ESTA, which prohibits occupiers from intentionally and unlawfully causing material damage to property, may be breached where severe overgrazing in transgression of CARA occurs, though this was not pleaded in the present case.

This judgment significantly clarifies the jurisdictional scope of Magistrates Courts in ESTA matters under section 19(1). It establishes that Magistrates Courts have jurisdiction to grant interdicts and declaratory orders beyond proceedings for eviction or reinstatement, provided the relief is 'in terms of' ESTA, which includes matters sufficiently connected to ESTA occupiers' statutory rights. This interpretation enhances access to justice for ESTA occupiers and landowners in resolving disputes about land use and occupation. The judgment also confirms that ESTA occupiers who keep cattle as land users under CARA are jointly responsible with landowners for compliance with environmental and conservation legislation, and that landowners may obtain interdicts to compel compliance with CARA even where personal contractual rights are involved. The decision emphasizes the importance of pleading with clarity and particularity in ESTA cattle-keeping disputes.