ESTA Series: Application of the Extention of Security of Tenure Act (ESTA) – Overview

The Extention of Security of Tenure Act commenced on 28 November 1997 and seeks to protect the occupation, and conditions relating to the occupation of land, by certain occupiers. The Act, in essence, attempts to strike a balance between the rights of these occupiers as well as the landowners.

As ESTA governs and regulates the rights, obligations, and even evictions of certain occupiers from certain land, care should be taken in establishing whether ESTA or the Prevention of Illegal Eviction (PIE) Act applies to a specific case, as any mistakes in doing so may result in costly consequences.

To establish whether ESTA will apply to any specific matter, the type of land, as well as the type of occupier, will have to be investigated.

The Act applies to all land, except land in a township or encircled by a township, with the exception that land in a township that has been designated for agricultural purposes is included. In practice, ESTA is usually applied to agricultural land, although the reach of the Act also includes other types of land, for instance, unalienated or unsurveyed state land.

An “occupier”, in turn, is defined in the act to refer to a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so.

It should be noted that a person, using or intending to use, the land for industrial, mining, commercial, or commercial farming purposes are excluded from this definition. Although, a person who works the land himself or herself and does not employ any person who is not a member of his or her family is specifically included. As the Act intends to protect vulnerable occupiers, persons earning more than a certain threshold are also excluded from the definition of occupier for purposes of the Act.

The matter of consent

Consent to occupy the land is a prerequisite for the protection afforded to an occupier and squatters are subsequently excluded from the protection of ESTA. Consent to occupy land will be effective irrespective of whether the owner or person in charge, required the official authority required by law to grant such consent.

Occupiers who continuously and openly resided on land for 1 year shall be presumed to have consent unless the contrary is proved, whilst a person who has continuously and openly resided on land for 3 years shall be deemed to have done so with the knowledge of the owner or person in charge.