ESTA Series: Rights and Duties of Land Owners and Occupiers

The Security of Tenure Act establishes the rights and obligations of both the owners and occupiers of land.

Our previous blog titled “Application of the Extention of Security of Tenure Act (ESTA)” may prove helpful in determining whether ESTA or the Prevention of Illegal Eviction Act applies to any specific matter.

As a precursor to the specific obligations and rights of all stakeholders, Section 8 of ESTA bolsters the general Constitutional Rights of owners and occupiers alike, which include the right to human dignity, the freedom and security of a person, the right to privacy, freedom of religion and association and the right to freedom of movement.

ESTA – The rights of land occupiers:

  • reside on and use the land
  • access such services as had been agreed upon
  • security of tenure
  • receive bona fide visitors at reasonable times and for reasonable periods
  • receive postal or other communication;
  • family life in accordance with the culture of that family
  • access to water
  • access to educational or health services

ESTA – The obligations of land occupiers:

  • be liable for any act, omission or conduct of any of his or her visitors causing damage to others if the occupier, by taking reasonable steps, could have prevented such damage
  • not intentionally and unlawfully harm any other person occupying the land
  • not intentionally and unlawfully cause material damage to the property of the owner or person in charge
  • not engage in conduct which, threatens or intimidates others who lawfully occupy the land or other land in the vicinity
  • not enable or assist unauthorised persons to establish new dwellings on the land in question

In short, these are the rights and obligations of the land occupiers. There are also rights and obligations of the land owner or the person in charge of the land, set out as follows:

ESTA – The rights of lands owners/persons in charge:

  • may impose reasonable conditions that are normally applicable to visitors entering such land to safeguard life or property or to prevent the undue disruption of work on the land
  • may have a trespassing animal usually or actually in the care of an occupier impounded and removed to a pound per the provisions of any applicable law, if the owner or person in charge has given the occupier at least 72 hours’ notice to remove the animal from the place where it is trespassing and the occupier has failed to do so

ESTA – The land owners/persons in charge may NOT:

  • be prejudiced an occupier if one of the reasons for the prejudice is the past, present or anticipated exercise of any legal right

Burial rights – lands owners and land occupiers

Burial rights and the concomitant right to maintain and visit family graves require special mention as we are quite regularly confronted with these issues.

Occupiers have the right to buy a deceased member of his/her family on the land, but only if such a family member has been residing on the land at the time f his/her death and if it was an established practice on the land in question. Occupiers, similarly, has the right to be buried on the land if the occupier resided on the land at the time of his/her death

The family members of an occupier contemplated in Section 8(4) of this Act shall on his or her death have a right to bury that occupier on the land on which he or she was residing at the time of his or her death, by their religion or cultural belief, subject to any reasonable conditions which are not more onerous than those prescribed and that may be imposed by the owner or person in charge.

Any person shall have the right to visit and maintain his or her family graves on land which belongs to another person, subject to any reasonable condition imposed by the owner or person in charge of such land to safeguard life or property or to prevent the undue disruption of work on the land. We developed suitable consent application forms for our clients, which provide for, amongst others, indemnities for injuries.

if you are experiencing problems or you need advice regarding ESTA and the rights and obligations of land owners and land occupiers or squatters, contact our team for assistance and advice.