Illustrative image | sources: The Constitutional Court. (Photo: Flickr / SouthAfricaSafari) | Judge Susannah Cowen. (Photo: Judges Matter) 
The Constitutional Court has handed down a unanimous judgment on an appeal seeking to overturn a ruling on the right to graze cattle under the Extension of Security of Tenure Act (Esta).
The matter, involving three brothers on a farm owned by the Moladora Trust in North West, first landed in the Land Claims Court (LCC) in 2022.
It began when the owners of the farm sought to remove siblings Magalone, Topies and Dikhotso Mereki from property once occupied by their late mother, who had been given permission to graze five cows. She died “sometime before 2017”.
Back then, the matter had served before Judge Susannah Cowen in the Land Claims Court. Judge Cowen has since been selected by the Judicial Service Commission to serve as deputy judge president of the newly established superior Land Court, which now oversees the work of the overburdened Land Claims Court.
This court is bound to play a significant role in land reform legislation over the next few decades.
Ripples
Judge Cowen’s judgment sent ripples through agricultural sectors as well as groups supporting farm workers’ rights.
AgriSA backed the Moladora Trust saying the issue posed a threat to commercial agriculture and food security, while activists, including Women on Farms, praised it.
On 1 August, the Constitutional Court, in a judgment authored by Justice Owen Rogers, held that the matter indeed did concern the interpretation of the Extension of Security of Tenure Act (Esta) as contemplated in that famous and burning section 25(6) of the Constitution.
This, said Justice Rogers, “raises several arguable points of general public importance, especially relating to whether consent to graze cattle is a right protected by Esta”.
The matter was referred to the Supreme Court of Appeal, which overturned Judge Cowen’s ruling rejecting the Land Claims Court’s legal approach to the matter and its order. However the ConCourt has ruled that it was “in the interest of justice” to grant the appeal.
Personal rights
What exactly was being appealed, you may ask?
In 2022 Judge Cowen found that grazing rights were “personal rights” that arose from the landowner’s consent rather than from the act. However, once consent had been granted, this became part of an occupier’s tenure rights.
There are, as is evident, deep nuances to each case and this was held in mind in the unanimous judgment by a coram of judges consisting of Acting Deputy Chief Justice Mbuyiseli Madlanga, acting justices Glen Goosen, Jody Kollapen and Ingrid Opperman and justices Steven Majiedt, Owen Rogers, Leona Theron and Zukisa Tshiqi.
The Mereki brothers had applied to the ConCourt seeking to appeal against the Supreme Court of Appeal ruling, with the Moladora Trust and the Department of Agriculture and Rural Land Reform as respondents in the matter.
Judge Cowen’s 2022 judgment about the grazing rights of the brothers and the application of the Extension of Security of Tenure Act was viewed as highly progressive by some, and as unworkable by others.
Besides, Judge Cowen had also tossed a reminder of “colonial dispossession” into her ruling and added that “a generous construction of Esta was to be preferred over a purely textual or legalistic one in this specific instance”.
That the Mereki’s mother had occupied the North West property prior to her death and had obtained permission to graze five cattle on the land was not in dispute. There are at present nine head of cattle.
The trust had argued that this matter did not raise constitutional issues but rather was “based on a dispute as to whether grazing rights had ever been granted to the brothers”.
It noted that “cattle” had since expanded to include goats, horses and sheep and stated that the siblings had not demonstrated any breach of their constitutional entitlements. It argued that grazing rights fell outside the act and that extending these would “unjustifiably deprive landowners of their property”.
Following legal steps
The ConCourt noted that “the matter had far-reaching implications for the rights of both owners and Esta occupiers and the Land Claims Court, as a specialist forum, was best placed to determine it at first instance”.
The court had considered the historical background of dispossession and noted that section 25(6) of the Constitution had been enacted “with the intention of securing tenure and guaranteeing rights associated with the use of land for cultivation or grazing”.
Section 39(1) of the Constitution required that tenure under Esta be given “a broad and generous interpretation, rather than a narrow one” noted Justice Rogers.
The nuance of ‘tacit consent’
With regard to whether the Merekis had consent to keep cattle on the farm, Judge Cowen had assumed in the Trust’s favour in 2022 that the siblings were not occupiers “in their own right at the time of their mother’s death and had derived their right of residence from their parents’ status as employees”.
She concurred with the trust that the consent which Mrs Mereki had to graze cattle was specific to her but found, however, “that tacit consent in favour of the Mereki siblings could be inferred from the lengthy period which passed before the first removal notices were given in January 2018 and from the further lengthy period which passed before the second removal notices were given in May 2020”.
A “tacit consent finding” could also be based, noted Judge Cowen, on the presumption in section 3(4), that “a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved”.
The Land Claims Court had concluded that the trust had not been entitled to rely on common law to terminate the Merekis’ right to graze cattle.
With regard to this the ConCourt ruled that on the facts of the matter tacit consent had to be presumed, unless the trust adduced evidence to rebut this.
“The mere say-so of the owner did not suffice”.
Since the trust had not claimed to have terminated the Merekis’ consent in accordance with section 8, the application had to be dismissed. However, the Land Claims Court had granted the trust leave to appeal to the Supreme Court of Appeal, which found in its favour.
Interpreting Esta
In its judgment the ConCourt highlighted provisions that not only referred to residence but also to “the use of land” in Esta. It held that law makers had not been consistent in their inclusion of “use of land” when referring to the right to “reside on land”.
This inconsistency, the court held, had to be resolved in favour of an interpretation that broadened rather than diminished the security of tenure afforded to occupiers.
It held that the farm owners “experienced no injustice when required to comply with section 8 in instances where they sought to terminate consent to graze cattle granted to persons residing on the farm with consent”.
On the question of whether the Merekis had consent to keep cattle, the court found that there had been no express consent, but that there had indeed been tacit consent.
The Land Claims Court had also been entitled to make its findings, and there had been no procedural unfairness in the manner in which Judge Cowen had arrived at her conclusions.
The order of the Supreme Court of Appeal was set aside and replaced with one dismissing the trust’s appeal in that court against the Land Claims Court’s order. The order was made with costs. DM