What is ESTA and how is it different from PIE?

South African rental housing legislation is highly protective of tenants, deliberately addressing some of the injustices that were commonplace under the apartheid regime. In addition to mass forced removals to effect racial segregation, individual tenants were often subjected to arbitrary evictions. Section 26 of the Constitution specifically enshrines the socioeconomic right of access to adequate housing and protection from unfair evictions. This right is enacted through various pieces of legislation. Rental housing law is complex and includes the Rental Housing Act, Consumer Protection Act, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and the Extension of Security of Tenure Act (ESTA). Of these, PIE and ESTA are expressly concerned with eviction rights. PIE is familiar to many, while ESTA is less understood. What is the difference between the two and what does ESTA specifically cover?

Urban vs. rural dwellers

Although both ESTA and PIE aim to protect occupants from unfair or unlawful eviction, they have different scopes and processes based on the contexts they serve.

· ESTA applies specifically to people living on rural or agricultural land with the landowner’s consent (e.g., farm workers and their families). Its focus is on occupiers who do not have a legal title but have long-term residential ties to rural land.

· PIE applies to urban and peri-urban dwellers and sets out the procedure to be followed in the case of eviction. It aims to protect occupants in informal settlements or other urban areas without formal consent from the landowner and also applies where the occupation was lawful to begin with but becomes unlawful later. Different procedures are set out under PIE for private owners, urgent applications and organs of state.

We’ve written extensively about PIE. This article focuses on ESTA.

Who is covered by ESTA?

ESTA was the government’s response to the constitutional provisions contained in Section 25 of the Constitution, which states that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled to either tenure which is legally secure or to comparable redress.”

ESTA describes an occupier as a person who has consent or another right in law to reside on land which belongs to another person, subject to certain exclusions, provided that such consent or right was acquired on 4 February 1997 or thereafter.

An occupier cannot rely on the protection of ESTA if they are:

· A labour tenant in terms of the Land Reform (Labour Tenants) Act 1996

· A person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land and does not employ any person who is not a member of their family

· A person who has an income in excess of the prescribed amount, currently R5,000 per month

Termination of consent

If at some stage a farm dweller had consent to be an occupier, before they can be lawfully evicted it must be shown that this consent has been withdrawn and when, why and how it was withdrawn. If the termination of consent complies with ESTA’s requirements, it will lead to the termination of the occupier’s right to residence.

The owner must undertake the termination process before they can seek the eviction of the occupants and the termination must be just and equitable. Four factors must be considered when determining whether the termination of a right to residence is just and equitable:

1. The fairness of the underlying agreement being withdrawn

2. The fairness of the procedure followed by the owner in terminating the occupier’s right to residence, including whether an “effective opportunity” has been provided to the occupier to make representations before the termination

3. The interest of the parties and “comparative hardship” on the owner, the occupier and any other occupiers if the right is terminated

4. The existence of a reasonable expectation of the renewal of the agreement

If the occupier is a “long-term occupier”, they are protected by sections 8(4)-(7) of ESTA, which indicate that the termination of their right of residence can only be made under particular circumstances.

Long-term occupiers are occupiers who have been in residence for 10 or more years, and:

· Are over the age of 60, or

· Are under 60 but due to ill health, disability or injury can no longer undertake the work

The right of residence of a long-term occupier may not be terminated unless there is a breach of the agreement or relationship. There are three potential breaches:

1. A material breach of the occupiers’ obligations in terms of section 6(3) of ESTA, e.g.:

· Intentionally and unlawfully harming a person occupying the land

· Intentionally and unlawfully causing material damage to the property of the owner or person in charge

· Engaging in conduct which is threatening or intimidating to others who lawfully occupy the land or other land in the vicinity

· Enabling or assisting unauthorised persons to establish new dwellings on the land in question

2. A breach of a “material” and “fair” term of an agreement between the occupier and the owner which has not been remedied despite notice given by the owner to do so:

· For a term to be material it must be “vital” and go “to the root of the contract” and “render it purposeless to carry on under the contract”

3. A fundamental breach of the relationship between the occupier and the owner that it is not “practically possible” to “reasonably restore”:

· The relationship referred to here is social rather than legal and refers to a relationship of mutual trust

ESTA’s general eviction provisions

A court may only order an eviction in terms of ESTA if an occupier has not vacated the premises within the notice period given by the owner. The occupier’s rights of residence can be terminated when an eviction notice is given. The notice must clearly stipulate that it is both notice for termination of the right to residence and an eviction notice.

After the termination of the occupier’s right to residence has taken place, the owner must give the occupier, the municipality and the provincial office of the Department of Rural Development and Land Reform two months’ written notice “of the intention to obtain an order for eviction”. If written notice of application to a court for an eviction order is given two months before the hearing commences, this requirement is met.

In addition to the protective measures ESTA provides against termination of rights, ESTA also protects against evictions. ESTA distinguishes between occupiers who were in occupation on 4 February 1997 and those who came into occupation after 4 February 1997.

Occupiers on 4 February 1997

The court will only grant an eviction against this group of occupiers under the following conditions:

· One of the conditions as contained above, or

· Voluntary resignation

A voluntary resignation will only qualify as a ground for eviction if:

· The occupier is an employee whose right of residence arises solely from that employment

· The resignation does not amount to “constructive dismissal”

In these circumstances, a court is likely to conclude that justice and equity favour granting the eviction because it is equitable: if the occupier’s right to occupation is linked to their employment and the occupier, of their own volition, resigns that employment, the employer/landowner cannot reasonably be expected to continue to provide accommodation.

Suitable alternative accommodation

The owner must be able to show that, unless an eviction is ordered from a specific dwelling, serious prejudice would be caused to the efficient operation of the owner’s business. It is not enough to suggest that the occupier has been retrenched and the house is now needed for another employee. The owner must prove a causal connection between the unavailability of the dwelling in question, occupied by the occupier, and serious prejudice. If serious prejudice can be proven, a court may grant an eviction despite the unavailability of alternative accommodation if and only if it is just and equitable to do so, taking into consideration the efforts both owner and occupier have made to secure suitable alternative accommodation and the comparative interests of both occupier and owner.

Occupiers after 4 February 1997

If the occupiers took occupation of the property after 4 February 1997, the court may grant an order for eviction in two circumstances:

· Based on an expressed, material and fair agreement made between the occupier and the owner, or

· If it is just and equitable to do so

In deciding whether it is just and equitable to grant an order for eviction in terms of this section the court considers the length of time the occupier has resided on the land, the fairness of the terms of any agreement between the parties, whether suitable alternative accommodation is available, the reason for the proposed eviction, and the balance of the interests of owner and occupier.

Courts are reluctant to grant an eviction order that will render occupiers homeless. Suitable alternative accommodation must be safe and not less favourable than the occupier’s previous situation.

The future for ESTA?

February 1997 is nearly 30 years ago, and many of the tenants originally protected under ESTA have passed on. ESTA doesn’t automatically grant rights to successive generations, but there are situations in which family members might inherit occupancy rights or secure continued occupation by establishing agreements with landowners. The number of individuals protected under ESTA may gradually diminish over time, as a result of rural-to-urban migration, the mechanisation of farming, and shifts in agricultural practices that require fewer resident farm workers. Equally, if legislation expands protections to include more occupiers, the law might sustain or even increase the number of protected tenants. However, land reform shifts that encourage land ownership or tenant resettlement may reduce the number of people falling under ESTA. Currently, it is impossible to predict the future role of ESTA in our rental housing legal framework. This will depend on legal adaptations and socio-economic developments.

For further information

Meanwhile, if you have any questions about your rights under ESTA or PIE, or any other questions about rental housing rights, contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban working hard to help landlords and tenants maintain healthy working relationships.

Some resources:

· PASSOP (People against Suffering, Oppression and Poverty)

· Lawyers for Human Rights

· Security of Farm Workers Project

Protection from eviction: Extension of Security of Tenure Act