A closer look at the anticipated ESTA Amendment Act

On the 20 November 2018 the anticipated amendment to the Extension of Security of Tenure Act ("ESTA") was enacted and is due to come into operation within the next year. Our courts have already, even before the amendments, adopted the an approach to give effect to the intention of the legislature. The most important amendments and/or insertions to the act are as follows:

• the definition of an "occupier" is narrowed and/or clarified through the inclusion of the definitions of "dependent", "family" and "resident";
• the rights and duties of occupiers/family are extended in respect of the duty to maintain housing, and an extension of rights relating to grave sites;
• the implementation of mandatory legal representation in eviction proceedings
• the implementation of Alternative Dispute Resolution mechanisms as a procedural preliminary requirement before eviction orders can be granted; the establishment of a Land Rights Management Board and/or Committee to facilitate the above and to perform regulatory functions, and implement ADR mechanisms to identify and resolve security of tenure disputes;
• the substitution of the provision dealing with Tenure Grant Subsidies to facilitate alternative accommodation solutions through various role players;

In this article I will focus on the impact of the insertion of the definitions of "family member" and "dependent" on the scope of the definition of an "occupier" in terms of ESTA, and the compliance implications thereof on housing policy and agreements

The definition of an "occupier" in terms of ESTA is currently interpreted by our courts in the wide sense to include spouses, other family members and dependents. The reason for this may very well be accredited to the fact that the ESTA Act was previously silent on defining further categories of occupants who are dependent and/or residing with or under the occupier who enjoys actual consent from the land owner.

The above view was catalysed by the majority's decision in the Klaase[1] judgement, where the Constitutional Court rejected the narrow construction of the definition, as well as the previous distinction between "occupiers" and residents (usually family members). The minority however did caution against ignoring the distinction, which may have given way to the legislatures intention to insert the definitions of what constitutes a "family" and a "dependent" into the amendment act.

What is however evident in Klaase is that an occupant's status, which is solely dependent on an occupier with actual consent, should be determined on a case by case bases. There are specific circumstances, like in Klaase, where an occupier's dependents/family members have lived on the land longer than the prescribed period, thus acquiring a presumption of tacit/actual consent, in terms of section 3 of the act. In these instances where the land owner has taken no positive steps to evict or interrupt consent, residents will acquire status as "occupiers" in terms of ESTA.

How then does the specific insertion of the definitions of a "family member" and a "dependent" narrow the definition of an "occupier", and why is this important for land owners?

The act now clearly defines an occupier as well as his family and dependents which may result in the courts recognizing the distinction between occupiers and mere residents, who do not enjoy direct nexus to the land and land owner. The amendment act defines a "dependent" as a family member whom the occupier has a legal duty to support;' and "family" as the occupier's spouse, and includes a spouse in a customary marriage, whether or not the marriage is registered; a child, including an adopted child, or foster care child, a grandchild; a parent; and a grandparent, who are dependants of the occupier and who reside on the land with the occupier;'';

The aforementioned dependents and family will not enjoy status as occupiers in terms of ESTA if the land owner takes positive steps to define the nature of their consent, and accordingly will enjoy less protection from the act. In instances where it is necessary to evict occupiers and their family members/dependents the process should be less onerous. Technically if an occupier is dismissed from the employ of the farm, the rights of residence of family members and dependents will terminate automatically upon the termination of the occupiers' consent. The above being the likely effect of the insertion, however taking into consideration the weight the courts currently place on just and equitable factors it is advisable to still specifically terminate all adult occupants' rights of residence. Where the insertion is positive is that the courts may be less inclined to insist that the requirements be applied broadly and blanketly to all adult occupants, as is currently the position post the Klaase judgement.

The amendment act further inserts the definition of a "resident" to mean: to live at a place permanently, and 'residence' has a corresponding meaning.''. This is welcomed especially in instances where occupiers interrupt their occupation. Examples of this include where occupants who enjoy status as protected occupiers in terms of section 8(4) (Life rights) acquire suitable alternative accommodation yet retain possession of the farm premises for the sake of accommodating adult children/family members. These occupants will no longer be considered to be resident on the farm as the degree of non-permanence will affect their status as occupiers.

The insertions clearly narrow the definition and scope of an occupier in terms of ESTA and therefore raise certain compliance implications. Land owners should ensure that the definitions are included in housing agreements and occupants should be categorized accordingly. The nature and scope of an occupants' status and rights should be incorporated into the agreement. It is advisable that a clear distinction be made between occupants who enjoy direct consent and/or those who enjoy consent indirectly through or under an occupier. It is also important that land owners revise their policy and housing rules and regulations, including the reciprocal rights ad duties of land owners and occupant to ensure compliance with the act and the current case law.

To summarize land owners should ensure that their housing agreements are amended and include at the least the following:

• Revised definitions ito the ESTA Amendment Act;
• Distinguishing between general labour and management contracts;
• Distinguishing between single heads of households, double heads of households and protected occupier agreements;
• Recognition of the independent occupation rights of female occupants;
• Consequences of dismissal/divorce when other occupants are resident in the household and employed by the land owner;
• The right to family life;
• The reciprocal duty to maintain and the revision of grievance procedures;
• Revised rights and duties of land owners and occupants;
• Revised consequences of breach;
• Legal process and consequences in line with act and case law;
• Legal compliance in line with audit norms and standard (WIETA; SIZA);