The geographical status of land – whether it falls inside a township – will co-determine the rights of the owner to evict an occupier of the land.
Several different statutes may apply where eviction of an occupier from a residence is in issue, as discussed by the Supreme Court of Appeal in the case of Ndlovu v Ngcobo, Bekker and Another v Jika (1) (240/2001, 136/2002) [2002] ZASCA 87; [2002] 4 All SA 384 (SCA) (30 August 2002).
The statute with the most significant impact on “rural dwellers” is the Extension of Security of Tenure Act, 62 of 1997 (“ESTA”). The scope of application of ESTA depends on various factors, such as the geographical status of the land, the personal attributes of the occupier (i.e., the occupier’s income and the nature of the use of the property), and the legal nature of the rights to occupation (for instance express or tacit consent or for example a right deriving from contract).
The question discussed here is the geographical status of land as a determining factor for the application of ESTA.
Section 2 of ESTA deals with “Application and implementation of Act”. Sub-sections 2(1) and (2) determine whether property falls within the scope of the Act:
(1) Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including –
A)Any land within such a township which has been designated for agricultural purposes in terms of any law; and
B)Any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.
(2) Land in issue in any civil proceedings terms of this Act shall be presumed to fall within the scope of the ESTA Act unless the contrary is proved.
In many cases the question whether land falls within a township, as described in ESTA, could be a simple matter where the land clearly forms part of a township. But difficult issues can arise, as illustrated by the recent case of
Stellenbosch University v Retolla and Others (LCC63/2021) [2022] ZALCC 27 (16 August 2022) (“Retolla”), which involved a town founded in 1697 (Stellenbosch) and property on its urban edge. The applicant approached the Land Claims Court for a declarator order on the status of the property.
The problem was that ESTA does not contain a definition of what constitutes a “township”, other than to state that land will constitute a township if it is established, approved, proclaimed or otherwise recognised as such in terms of any law. The Act does not provide clarity on the “law” that could form the basis of the recognition of a township.
A further complication is that the procedure for the establishment of townships within the Republic differs from province to province. In most provinces townships are established by way of proclamation. In the Western Cape, townships are not established by way of proclamation, but by the process of subdivision of land. It follows that a township will not be established, approved or proclaimed in the Western Cape. In the Western Cape, the question to determine the application of ESTA will be whether a property falls within a township “otherwise recognised as such in terms of any law”.
In Retolla, the Land Claims Court issued a declarator order to the effect that the property in question was situated in the township of Stellenbosch, which, on the uncontested evidence before the court, was recognised in law as a township, at the latest in 1927, when the Townships Ordinance 13 of 1927 came into force. The property did therefore form part of a township recognised as such before and after 4 February 1997. The property in question was therefore excluded from the provisions of ESTA and the property owner could proceed with eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998.
Should you have any questions on eviction and the application of ESTA, please contact us at 021 808 5600.