7. Evictions
7.1 In South Africa evictions are carried out in terms of
- the common law (for commercial properties)
- under PIE (this applies to all evictions where ESTA does not apply)
- ESTA and
- The Labour Tenants Act.
7.2 Common law evictions apply for any property (commercial, residential or agricultural land) where the use is for commercial purposes and not for occupation or residential purposes.
7.3 In order to establish if an eviction must be carried out under ESTA the following are required:
- The land from which the eviction must take place must be zoned as agricultural land (ESTA can therefore never apply to land within proclaimed townships).
- The person who stands to be evicted must at some stage have had consent to reside on the land.
- The person to be evicted must have an income of R 13,750-00 per month or less.
It suffices to say at this stage that the law with regard to evictions in terms of ESTA change frequently and so does the interpretation of the various principles and legislation. Eviction law is complex and evictions cannot be considered or attempted without expert advice
7.4 A labour tenant, in terms of the definition in the Labour Tenants Act, is a person who
- is residing or has the right to reside on a farm;
- who has or had the right to use cropping or grazing land on the farm and in consideration of such right provides or has previously provided labour to the owner or the lessee of the farm, and
- thirdly, who’s parent or grandparent resided or resides on the farm (but excluding a farm worker).
A farm worker in terms of the Act means a person employed on the farm in terms of contract of employment which personally provides labour to the owner or lessee of the farm, and where he or she is paid predominantly in cash or in some other form of remuneration and not predominantly the right to occupy and use the land.
7.5 There are a number of requirements to be complied with when evictions are carried out under ESTA, Pie or the Labour Tenants Act. In terms of ESTA (the most common principles used for evictions from farms) you need to :
- First terminate the occupier’s right of residence (Sec. 8);
- Give notice to the occupier, the Department of Rural Development and Land Reform as well as the local municipality at least two months prior to commencement of the action (Sec. 9) or before the application is heard;
- Obtain a probation officer’s reposrt (Sec 9(3));
- The action or application for eviction must be brought in terms of Section 10 (people who were occupiers on 04 February 1994) or Section 11.;
These are but a few factors which are considered and this list is all but conclusive. It suffices to say that all the relevant factors need to be taken into account; all t’s be crossed in i’s dotted.
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