- The ESTA mediation requirement is now a legal step before any eviction.
- The court says casual settlement talks are not enough.
- The ruling protects vulnerable farm dwellers and promotes fairness.
Before a farmer can evict anyone living on their land, they must first engage in proper mediation. The Land Court in Randburg ruled that this mediation requirement is mandatory under South Africa’s Extension of Security of Tenure Act (ESTA).
The court reviewed eight eviction cases, including Marais NO v Daniels, Capespan Agri v Daniels, and Lodsworth Investments v Opperman. All involved farm owners attempting to remove long-term occupiers from rural land.
The Full Bench, which includes Judge President Zukisa Carelse, Deputy Judge President Shirley Cowen, and Judge Brian Spilg, made it clear that eviction cannot happen unless both parties first try proper mediation under Section 21 of ESTA.
“The Land Court Act did not repeal the mediation requirement,” the judges said. “Mediation is not optional. It is a mandatory step that must be attempted before eviction.”
Formal mediation, not friendly talks
The judges pointed out that the law requires a structured mediation process led by an independent mediator. They distinguished between mediation and informal discussions. Attempts at settlement that lack structure do not qualify as mediation, according to the judgment. A simple chat between a farmer and a family about leaving the land is not sufficient.
Legal Aid South Africa, which represented the occupiers, argued that mediation levels the playing field. Occupiers often lack legal help or resources, while landowners typically have lawyers. The court agreed, stating that mediation ensures fairness and dignity in a process that has historically favored property owners.
“Mediation offers a way for these often competing interests to be respected in ways that litigation can overlook,” the judges wrote.
History of dispossession still shapes today
The judgment examined South Africa’s long history of land dispossession and forced removals under apartheid. The court cited the 1913 Native Land Act, which left millions without land and forced them onto white-owned farms and into towns.
Quoting from the Constitutional Court case Daniels v Scribante, the Land Court reminded us that this legacy persists: “Victims were made strangers in their own country. Their residence was precarious, and they were often subjected to arbitrary evictions. This was a life without human dignity.”
“This history is not past,” the court said. “It lives on in the vulnerable lives of rural occupiers today.” The judges noted that the ESTA mediation requirement is part of South Africa’s ongoing effort to achieve land justice.
What the ruling means now
The Land Court established that ESTA mediation under sections 10(1)(e) and 11(2)(b) is mandatory for new cases. It confirmed that informal talks do not constitute mediation and that this rule does not apply to eviction cases already before the court before April 2024.
This means that before any new eviction can occur, both the landowner and the occupier must participate in a proper mediation process. The court must also be assured that the dispute could not be resolved through mediation or arbitration.
Judge President Carelse summed it up clearly: “Unless there is an effective way to secure tenure for those vulnerable to eviction, we fail to address the deeply unjust historical wrongs that ESTA was meant to fix.”
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