ESTA Farm Evictions: Statutory Procedure Under Act 62 of 1997

1. When Does ESTA Apply Instead of the PIE Act?

A critical jurisdictional distinction in South African property litigation is whether an eviction falls under the PIE Act or ESTA. ESTA applies if two conditions are met:

1. The land in question is agricultural land, rural land, or land not proclaimed as an approved formal township.
2. The occupier entered the land or resided upon it with the express or tacit consent of the owner or person in charge (or another right in law).

If someone enters agricultural land without any initial consent (e.g. an unlawful land invasion), the matter is governed by Section 4 or Section 5 of the PIE Act. If they initially had consent—for instance, as an agricultural employee or farm worker—ESTA applies exclusively.

2. The Two-Stage Requirement: Termination of Right of Residence

Under Section 8 of ESTA, an eviction order can never be granted until the occupier’s underlying right of residence has been lawfully and substantively terminated. Where the right of residence arose solely from an employment contract:

• The employment must be terminated in accordance with the Labour Relations Act 66 of 1995 (LRA).
• Any dispute referred by the worker to the CCMA (Commission for Conciliation, Mediation and Arbitration) or Bargaining Council must be finalized before eviction proceedings commence.
• The termination of residence must be just and equitable having regard to the fairness of the procedure and the balance of interests between the landowner and the worker.

3. Special Protections for Long-Term Occupiers (Section 8(4))

ESTA creates an almost insurmountable statutory protection for "Long-Term Occupiers" under Section 8(4). An occupier’s right of residence cannot be terminated if:

Such long-term occupiers can only be evicted if they commit a serious breach under Section 10(1)—such as causing intentional physical damage to property, threatening employees, or assisting unauthorized third parties to erect informal dwellings.

4. Mandatory Statutory Two-Month Notices (Section 9(2)(d))

Before lodging the eviction application at court, the landowner’s attorney must deliver a statutory two calendar months' notice of intention to apply for an eviction order to three separate parties:

5. Automatic Review by the Land Claims Court (Section 19(3))

Even if the Magistrates Court grants an eviction order against a farm occupier, the order is automatically suspended by law.

Under Section 19(3) of ESTA, the Magistrates Court record must be forwarded within days to the Land Claims Court of South Africa (Randburg). A Judge of the Land Claims Court reviews the entire record to confirm that all statutory preconditions, constitutional safeguards, and probation officer reports have been met. Only once the Land Claims Court confirms the order may the Sheriff execute the eviction.