• Law Reports
  • Pieters and Another v Stemmet and Another (079/2024) …

Pieters and Another v Stemmet and Another (079/2024) [2025] ZASCA 60 (14 May 2025)

81 Reportability
Land and Property Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Extension of Security of Tenure Act — Applicability to property within township — Appellants, long-term occupiers, contested eviction based on ESTA — Land Claims Court found property within township and not designated for agricultural purposes, thus applying PIE — Supreme Court of Appeal held property designated for agricultural purposes under zoning laws, qualifying for ESTA protections — Appeal upheld, confirming appellants' rights as occupiers under ESTA.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an appeal to the Supreme Court of Appeal of South Africa (SCA) concerning the proper statutory framework governing the eviction of long-term residents from privately owned land, specifically whether the Extension of Security of Tenure Act 62 of 1997 (ESTA) applied to the land they occupied or whether the matter fell under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).


The parties were Jacob Pieters and Catherina Pieters (the appellants), who had lived on the property for decades, and Stephan Corne Stemmet and Peter Gabriel Stemmet (the respondents), being the current and former registered owners respectively.


The procedural history began when the respondents instituted eviction proceedings in 2018 in the Magistrates’ Court under PIE. The appellants opposed, contending that ESTA applied and that they were ESTA “occupiers”. The appellants also launched a separate application in 2019 seeking confirmation and enforcement of their rights under ESTA. Both matters were heard together in the Bellville Magistrates’ Court in 2022, where the Magistrate dismissed the ESTA application and granted eviction under PIE. The appellants appealed: the PIE ruling to the Western Cape High Court, and the ESTA dismissal to the Land Claims Court (LCC). By agreement, the PIE appeal was postponed pending the outcome of the ESTA appeal. The LCC dismissed the ESTA appeal in February 2023, holding that ESTA did not apply because the property was within a township and not designated for agricultural purposes. The SCA appeal was brought with leave of the LCC.


The general subject-matter of the dispute was the scope of ESTA’s application under section 2, particularly the statutory exclusion for land in a township and the statutory inclusion for township land designated for agricultural purposes, and the consequent implications for the appellants’ tenure security and eviction protections.


2. Material Facts


It was undisputed that the appellants had resided on the relevant property since 1988, after the first appellant commenced employment with the second respondent as a gardener. The first appellant retired in 2012 due to ill health, but the appellants continued residing on the property with consent. Ownership was transferred from the second respondent to the first respondent in September 2014, and the appellants continued living there after the transfer.


It was also undisputed that the appellants lived on the property with two minor grandchildren placed in their foster care; that their dwelling was modest (two-room dwelling with an additional prefabricated kitchen structure and an outdoor pit toilet); that they paid no rent but paid electricity; and that their income was limited (a SASSA pension was mentioned as their sole income at the time proceedings were instituted). The court accepted that their occupation had been long-term and open.


As to the property’s land status and planning context, it was not in dispute that the land had not been formally registered as a township nor proclaimed in the Provincial Gazette as such. However, the property’s history reflected that it formed part of the original farm Joostenberg Vlakte 728, and that a 1955 survey subdivided the farm into several erven. The specific property was registered as Portion 81 of the Farm Joostenberg Vlakte 728, and had been assigned both an erf number and a street address.


The court treated as established, on the evidence placed before it (including a locality map and the Surveyor General diagram), that the property was situated among subdivided erven and integrated with roads/public places (including a street depicted as “Road” on the Surveyor General diagram), and that this supported the conclusion that the land fell within the boundaries of a township for purposes of ESTA section 2(1).


It was not disputed that, in terms of the City of Cape Town planning scheme (the Development Management Scheme under the City of Cape Town Municipal Planning By-Law of 2015), the property was zoned “rural” (RU).


A point of contention—resolved as a matter of statutory interpretation rather than factual dispute—was whether rural zoning amounted to designation for agricultural purposes for purposes of ESTA section 2(1)(a), and whether the land’s current or intended use for agriculture was relevant.


3. Legal Issues


The central legal questions were whether the property fell within the application of ESTA under section 2, notwithstanding its location within a township area. This required the court to determine two sequential statutory questions derived from section 2(1):


First, whether the property was land “in a township established, approved, proclaimed or otherwise recognised as such in terms of any law”, or encircled by a township, such that it would ordinarily be excluded from ESTA.


Second, if it was within such a township, whether the land was nonetheless “designated for agricultural purposes in terms of any law” (section 2(1)(a)), which would bring it back within ESTA’s scope.


The dispute therefore concerned a combination of fact (whether the land qualified as being in a township as contemplated by ESTA) and law and application of law to fact (the interpretation of “designated for agricultural purposes in terms of any law”, and whether rural zoning satisfied that requirement). The interpretive component required a purposive approach consistent with constitutional interpretive obligations, as recognised in the judgment.


A further issue embedded in the statutory analysis was the operation of ESTA’s evidentiary framework: under section 2(2) (as described by the court) the land is presumed to fall within ESTA’s scope in ESTA proceedings unless the opposing party proves otherwise, affecting how the evidentiary burden and presumption operated in the case.


4. Court’s Reasoning


The SCA began by reaffirming ESTA’s constitutional and remedial purpose: it is intended to protect vulnerable occupiers on land within its ambit from unjustified eviction and homelessness, and must be interpreted to promote constitutional values and afford the fullest possible protection to those within its scope. Against this background, the court framed the statutory enquiry mandated by section 2 as a two-stage assessment: township status first, and agricultural designation second.


On the first enquiry—whether the land fell within a “township” for purposes of ESTA—the court adopted the approach articulated in Droomer NO and Another v Snyders and Others [2020] ZAWCHC 72; 2020 JDR 1555 (WCC), namely that a township in ESTA context requires formal recognition “in terms of any law” and is not merely a developed area. While it was common cause that there was no formal township proclamation or registration as such, the SCA emphasised that section 2’s exclusion is not limited to “established, approved or proclaimed” townships but extends to a township “otherwise recognised as such in terms of any law”.


The respondents argued that subdivision into erven and registration in the land register resulted in township incorporation by operation of law, relying on Grobler v Phillips and Others [2021] ZASCA 100 (confirmed by Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC)). The SCA accepted, on the evidence of subdivision history, erf designation, a street address, and the presence of public roads/public places reflected in mapping and diagrams, that the property satisfied definitional indicators of a township found in relevant planning and surveying legislation. The court referred to definitions of township in SPLUMA and the Land Survey Act 8 of 1997, and noted the significance of public places/roads. Applying these definitions and the approach in Grobler, the SCA held that the LCC was correct to conclude that the property fell within the boundaries of a township for purposes of ESTA section 2(1).


The second enquiry—whether the land was nevertheless “designated for agricultural purposes in terms of any law”—was decisive. The court approached the interpretive task purposively, invoking section 39(2) of the Constitution and relying on Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) for the proposition that ESTA is remedial legislation closely tied to constitutional rights and should not be construed narrowly in a way that diminishes occupiers’ protections.


The court interpreted “designated” as meaning officially given a specified status, and treated zoning as a central indicator of such official designation because zoning allocates legally recognised land-use status to land. It accepted that the City of Cape Town Development Management Scheme, as part of the municipal planning by-law framework, has legal effect by virtue of section 26 of SPLUMA, and (in line with Droomer) qualifies as “law” for purposes of ESTA’s reference to designation “in terms of any law”.


The respondents’ case was that rural zoning was not determinative; that the land was not zoned “agricultural”; and that actual agricultural use, intended use, and economic viability for agriculture did not support agricultural designation. The SCA rejected the distinction between rural and agricultural zoning as applied by the respondents and accepted by the LCC, describing it as artificial when tested against the relevant provisions of the Development Management Scheme. The court analysed the scheme provisions dealing with permissible uses for agricultural-zoned and rural-zoned properties, noting that both allow agriculture as a primary use, and that both also permit residential use, while agricultural zoning may even allow a range of non-agricultural uses. In the court’s view, the LCC’s reasoning—treating rural zoning as inherently more flexible and as capable of losing agricultural character through residential use alone—was not supported by the scheme’s text and risked undermining ESTA’s statutory protections by effectively removing land from ESTA’s ambit without a proper legal basis.


The SCA further held that the property’s lack of current agricultural use, and the owner’s intention not to use it for agriculture, were not relevant to the statutory question. It relied on Mkangeli v Joubert 2002 (4) SA 36 (SCA) for the broader proposition that ESTA protects certain classes of occupiers on rural and semi-rural land and imposes extensive limitations on eviction. It also relied on Lebowa Platinum Mines Ltd v Viljoen 2009 (3) SA 511 (SCA) (as cited in the judgment) to support the proposition that ESTA may apply even where neither the property nor the occupier is engaged in agricultural activities, because the enquiry turns on statutory criteria such as land designation rather than actual agricultural activity.


On this basis, the SCA concluded that the evidence clearly established that the property was designated for agricultural purposes, which the court considered ordinarily implied by rural zoning. Consequently, the land fell within ESTA by virtue of section 2(1)(a), notwithstanding its being within a township. Since the appellants had resided on the property with the respondents’ knowledge and consent since 1988, the court held they qualified as ESTA occupiers and were entitled to ESTA’s protections. The respondents were accordingly required to terminate the appellants’ right of residence in accordance with ESTA before seeking eviction.


5. Outcome and Relief


The SCA upheld the appeal with costs.


It set aside the order of the Land Claims Court and substituted it with an order upholding the appeal to the LCC with costs, setting aside the Magistrates’ Court order, and replacing it with declaratory relief that the property (Portion 81 of the Farm Joostenberg Vlakte 728) is subject to ESTA and that the appellants, as long-term ESTA occupiers, are entitled to ESTA protections. The substituted order provided for no order as to costs in the court a quo.


Cases Cited


Molusi and Others v Voges NO and Others [2016] ZACC 6; 2016 (3) SA 370 (CC)


Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC)


Droomer NO and Another v Snyders and Others [2020] ZAWCHC 72; 2020 JDR 1555 (WCC)


Frannero Property Investments 202 (Pty) Ltd v Selapa and Others (University of the Free State Law Clinic as amicus curiae) [2022] ZASCA 61; 2022 (5) SA 361 (SCA)


Greeff and 21 Others v Eskom Holdings SOC Ltd and Others [2021] ZALCC 22


Grobler v Phillips and Others [2021] ZASCA 100


Grobler v Phillips and Others [2022] ZACC 32; 2023 (1) SA 321 (CC)


Mkangeli v Joubert 2002 (4) SA 36 (SCA)


Lebowa Platinum Mines Ltd v Viljoen 2009 (3) SA 511 (SCA)


Legislation Cited


Extension of Security of Tenure Act 62 of 1997


Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998


Spatial Planning and Land Use Management Act 15 of 2013


Land Survey Act 8 of 1997


Interpretation Act 33 of 1957


Constitution of the Republic of South Africa, 1996


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Supreme Court of Appeal held that, although the property was situated within the boundaries of a township for purposes of section 2(1) of ESTA, it was nevertheless designated for agricultural purposes in terms of law because it was zoned “rural” under the applicable municipal planning scheme, which permits agriculture as a primary use and constitutes “law” for purposes of ESTA.


It further held that the Land Claims Court erred by treating rural zoning as materially distinct from agricultural designation in a manner not supported by the Development Management Scheme, and by allowing considerations such as current or intended agricultural use to influence the statutory designation enquiry.


The court held that the appellants therefore fell within ESTA’s protections as long-term occupiers, and that eviction could not proceed under PIE without compliance with ESTA’s termination and eviction requirements.


LEGAL PRINCIPLES


ESTA is remedial legislation enacted to protect vulnerable occupiers and must be interpreted purposively and consistently with section 39(2) of the Constitution, in a manner that promotes the spirit, purport, and objects of the Bill of Rights and affords occupiers the fullest possible protection within the statute’s scope.


The application of ESTA under section 2(1) requires a structured enquiry: first, whether the land is within (or encircled by) a township “established, approved, proclaimed or otherwise recognised as such in terms of any law”; second, if so, whether the land is nevertheless included because it has been designated for agricultural purposes in terms of any law under section 2(1)(a).


A township for ESTA purposes is not limited to formally proclaimed townships; land may qualify as being in a township if it is otherwise recognised as such in terms of any law, which may be established by reference to subdivision into erven, registration status, and integration with public places such as roads, consistent with applicable statutory definitions and relevant case law.


The question whether land is “designated for agricultural purposes” under section 2(1)(a) is primarily a matter of whether an official legal instrument confers such status. Zoning under a legally effective land use scheme may constitute designation “in terms of any law” for ESTA purposes, and such zoning instruments have legal effect through enabling legislation (including section 26 of SPLUMA).


The land’s actual current use, intended use, or agricultural economic viability is not determinative of whether it is designated for agricultural purposes; the enquiry turns on legal designation rather than factual agricultural activity.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 079/2024

In the matter between:
JACOB PIETERS FIRST APPELLANT
CATHERINA PIETERS SECOND APPELLANT
and
STEPHAN CORNE STEMMET FIRST RESPONDENT
PETER GABRIEL STEMMET SECOND RESPONDENT

Neutral Citation: Pieters and Another v Stemmet and Another (079/24) [2025]
ZASCA 60 (14 May 2025)
Coram: MEYER, MATOJANE, UNTERHALTER and KEIGHTLEY JJA and
WINDELL AJA
Heard: 13 M arch 2025
Delivered: 14 May 2025
Summary: Extension of Security of Tenure Act 62 of 1997 – Section 2 (1)(a) –
property within a township but designated for agricultural purposes – occupiers entitled
to protections afforded under the Act.
2
_____________________________________________________________________
_

ORDER
______________________________________________________________________

On appeal from: Land Claims Court , held at Randburg (Spilg J and Meer AJP sitting as
court of appeal )
1 The appeal is upheld with costs .
2 The order of the Land Claims Court is set aside and replaced with the following:
a. The appeal is upheld with costs.
b. The order of the court a quo is set aside and replaced with the following:
i. The property registered in the Deeds Registry as Portion 81 of the
Farm Joostenberg Vlakte 728 is subject to the Extension of
Security of Tenure Act 62 of 1997 (ESTA) .
ii. The appellants as long -term ESTA occupiers are entitled to the
protections under ESTA .
iii. No order as to costs .

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Windell AJA ( Meyer, Matojane, Unterhalter and Keightley JJA concurring):

Introduction
[1] The Extension of Security of Tenure Act 62 of 1997 (ESTA) was enacted by
Parliament to give effect to key constitutional rights , including the right to security of
tenure, the right not to be arbitrarily evicted, and the right of access to adequate
housing . It seeks to protect vulnerable occupiers living on land falling within the ambit of
ESTA from unjustified evictions and the risk of homelessness. In line with its purpose,
ESTA must be interpreted in a manner that promotes these constitutional values and
3
ensures that those who fall within its scope are afforded the fullest possible protection.
Any termination of such occupiers’ right of occupation must therefore comply strictly
with the provisions of ESTA.1

[2] This appeal centres on the interpretation of s 2 of ESTA, which provides, as a
general rule, that land situated within or entirely surrounded by a township is excluded
from the application of ESTA .2 However, ss 2(1)(a) and (b) of ESTA qualify this general
exclusion and provide specific criteria for determining whether ESTA applies:
‘(1) Subject to the provisions of section 4, this Act shall apply to all land other than land in a
township established, approved, proclaimed or otherwise recognised as such in terms of any
law, or encircled by such a township or townships, but including -
(a) any land within such a township which has been designated for agricultural purposes in
terms of any law; and
(b) any land within such a township which has been established, approved, proclaimed or
otherwise recognised after 4 February 1997, in respect only of a person who was an occupier
immediately prior to such establishment, approval, proclamation or recognition .’

[3] In terms of ESTA an occupier residing on land falling within the ambi t of s 2 is
afforded substantive protection . The protection goes beyond what the common law
provides.3 The key issue before the L and Claims Court , Spilg J and Meer AJP (LCC ),
and now this Court , is whether the property occupied by the appellants is situated within
a township or on land not ‘designated for agricultural purposes in terms of any law ’. If
so, the matter would fall under the scope of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE), not ESTA.

[4] The appellants , Mr and Mrs Pieterse, reside on the property of the first
respondent , Mr Stephan Stemmet ( Mr Stemmet) . The property is one of several
smallholdings in the Joostenberg Vlakte Smallholdings , a rural community just outside
Cape Town in the Western Cape. Mr Stemmet has been the registered owner of the

1 Molusi and Others v Voges NO and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 7; Department of
Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) para 53 (Goedgelegen).
2 Droomer NO and Another v Snyders and Others [2020] ZAWCHC 72 ; 2020 JDR 1555 (WCC) (Droomer )
para 12.
3 Chapter IV of ESTA (ss 8 -15).
4
property since 18 September 2014 , having acquired it from the previous owner, his
father , who is the second respondent.

[5] The appellants began residing on the property in 1988, following the first
appellant ’s employment by the second respondent as a gardener. The first appellant
retired in 2012 due to ill health , however, both appellants continued to reside on the
property with the consent of the second respondent. In 2014, ownership of the property
was transferred from the second respondent to Stemmet .
[6] The appellants live on the property with their two minor grandchildren, who h ave
been placed in their foster care. They occupy a modest two-room dwelling , with one
room serving as a bedroom. An additional prefabricated structure is used as a kitchen ,
and s anitation is provided by an outdoor pit toilet. The appellants have never paid rent
but do cover the cost of electricity. Their home is located in a corner of the property,
surrounded by blue gum trees . At the time legal proceedings were instituted, their sole
source of income was a SASSA pension of R1700. They had been living on the
property for approximately 30 years.
[7] On 13 September 2018, Mr Stemmet and the second respondent instituted
eviction proceedings against the appellants in terms of PIE . The appellants opposed the
application on several grounds, including that ESTA was applicable to the property , and
that they qualify as ‘occupiers’ as defined by ESTA. Additionally , on 29 May 2019, the
appellants launched an application to confirm and enforce their rights in terms of ESTA .

[8] Both applications were heard together in the Bellville Magistrates ’ Court on 4
April 2022. The Magistrate dismissed the ESTA application and granted an eviction
order in terms of PIE, directing the appellants to vacate the property (the PIE ruling) .
The appellants appealed the PIE ruling to the Western Cape High Court and the
dismissal of the ESTA application to the LCC. By agreement between the parties , the
hearing of the PIE appeal was postponed pending the outcome of the ESTA appeal.

[9] Section 3(5) of ESTA provides that for the purposes of civil proceedings in terms
of ESTA, a person who has continuously and openly resided on land for a period of
5
three years shall be deemed to have done so with the knowledge of the owner or
person in charge. The appellants qualify as occupiers in terms of s 1 of ESTA , having
resided on the property on (and before) 4 February 1997 with the consent of the
respondents and earning incomes below the threshold prescribed by the Act.4 However,
if the property is not situated on land that falls within the ambit of ESTA, the appellants
cannot claim the benefit of being ‘occupiers’ under ESTA, regardless of the consent
granted for their occupation or their income level.

[10] The LCC dismissed the ESTA appeal on 3 February 2023 . The court found that
the property falls within the boundaries of a township and that it was not land
designated for agricultural purposes . Accordingly, the court held that the eviction of the
appellants was not governed by ESTA, but rather by the PIE. It is this order that is the
subject of the appeal before this Court. The appeal is with leave of the LCC.

The application of ESTA
[11] The first enquiry is whether the property qualifies as land situated within a
township that has been ‘established, approved, proclaimed, or otherwise recognised as
such in terms of any law ’, or is surrounded by such a township or townships. If the land
does not fall within this category, the enquiry ends, and the provisions of ESTA will
apply. However, if the land does fall within this category, a second enquiry arises:
whether the land within such a township has been ‘designated for agricultural purposes
in terms of any law ’. If it does, ESTA will apply notwithstanding the property’s location
within the defined township area.

[12] In terms of s 2(2) of ESTA, in proceedings brought in terms of ESTA it is
presumed that the land in question falls within the scope of ESTA. What this means is
that a lthough the overall burden to prove that ESTA applies in relation to a specific
occupier rest s on the occupier who invokes the application of ESTA, the land in

4 Regulations under ESTA , Government Notice R1632 in Government Gazette 19587 of 18 December
1998.
6
question w ill be presumed to fall within the scope of ESTA unless the respondents
proved the contrary.5

Does the property fall within the definition of a township?
[13] The answer to this question is factual. The concept of a township has no fixed
definition in ESTA. In Droomer , 6 Binns-Ward J held:
‘The word “township ” is not defined in ESTA, but the context in which it is used in s 2 makes it
clear that something more than just a developed area is required. A “township ” for the purpose
of the Act means a development or approved subdivision that has been formally recognised as
such in terms of a law. That is the effect of the words ‘ established, approved, proclaimed or
otherwise recognised as such in terms of any law ’. . .’ (Citation omitted .)

[14] It is not in dispute that the land on which the property is situated, as well as the
surrounding land, has not been formally registered as a township nor officially
proclaimed as such in the Provincial Gazette. Section 2 of ESTA, however, d oes not
limit the exclusion only to land in a township established, approved or proclaimed. It
includes as a category of township one which is otherwise recognised as such in terms
of any law.7

[15] The respondents contend that the property is situated within a township and
when the appellants moved on to the property in January 1988 (which date precedes
the date on which ESTA commenced , being 28 November 1997) the property had
already been ‘converted from agricultural land’. Central to the respondents’ argument is
that th e subdivision of the original farm into erven and the registration of the property in
the land register resulted in its incorporation into a township by operation of law. They
rely on Grobler v Phillips ,8 in which a similar argument was upheld , and where this Court

5 Frannero Property Investments 202 (Pty) Ltd v Selapa and Others (University of the Free State Law
Clinic as amicus curiae) [2022] ZASCA 61 (SCA) ; 2022 (5) SA 361 (SCA) para 26.
6 Droomer fn 2 para 15.
7 See Greeff and 21 Others v Eskom Holdings SOC Ltd and Others [2021] ZALCC 22 , in which the court
found that the Electricity Act was a law which recognised that Eskom could establish what was in fact a
township without having to duplicate the process of engaging a provincial or local administration for
approval or to pass a proclamation.
8 Grobler v Phillips and Others [2021] ZASCA 100 para 35 , confirmed by the Constitutional Court on
appeal in Grobler v Phillips and Others [2022] ZACC 32 ; 2023 (1) SA 321 para 14.
7
found that a township ‘came to be incorporated’, once the property’s status as an erf
was registered in the land register.

[16] The history of the property shows that it was part of the original farm,
Joostenberg Vlakte 728 . In May 1955, a survey was conducted in terms of which the
farm (recorded under Surveyor’s Diagram number 4544/ 1955) was subdivided into
several erven. The property in question formed part of this subdivision and was
registered in the Deeds Registry as Portion 81 of the Farm Joostenberg Vlakte 728. It
has been assigned both an erf number and a street address , namely Erf 7[...]/8[...] and
2[...] K[...] Street.

[17] The Spatial Planning and Land Use Management Act 15 of 2013 (SPLUMA)
defines a township as ‘ . . . an area of land divided into erven and may include public
places and roads indicated as such on a general plan ’. SPLUMA does not require the
existence of a general plan showing public places as a prerequisite for an area to
qualify as a township. It is sufficient that the property forms part of land that has been
subdivided into erven.

[18] Township is also addressed in the Land Survey Act 8 of 1997 (the L SA), which
describes it as: ‘. . . subdivisions of a piece of land, which are combined with public
spaces and are used mainly for residential, industrial, business or similar purposes ’.
Similarly , the Cape Townships Ordinance defines township as ‘a group of pieces of
land, or subdivisions of a piece of land, or subdivision of a piece of land which are
combined with public spaces and are used mainly for residential, industrial or similar
purposes, or are intended to be so used ’. In both def initions in SPLUMA and the LSA,
the presence of public spaces is a key feature. The term ‘public space’ is defined as any
open or enclosed area, such as a street or road, depicted on a general plan or diagram,
intended for use by the general public and owned by or vested in the mu nicipal council.

[19] According to the locality map attached to the appellants’ founding affidavit, the
property is situated among other subdivided erven and is integrated with public places
such as K[...] and Owl Streets, which run alongside the subdivided properties,
8
separating it from Paarl Farms . Notably, K[...] Street is also marked on the Surveyor
General diagram as ‘Road ’, aligning it with the definition of a public space in terms of
SPLUMA.

[20] The evidence submitted by the respondents supports the conclusion that the
property was not only subdivided into erven but also registered accordingly, consistent
with the principles in Grob ler v Phillips .9 The respondents have, on a balance of
probabilities, established that the land in question meets the definitions set out in
SPLUMA, the LSA, and the Cape Townships Ordinance. On the facts presented, the
LCC correctly found that the property is situated on land that falls with in the boundaries
of a township for the purposes of s 2(1) of ESTA.

Is the property nevertheless designated for agricultural purposes ?
[21] This brings me to the second enquiry : whether the property, although situated on
land within a township, has ‘been designated for agricultural purposes in terms of any
law’, as contemplated in s 2(1) (a) of ESTA .

[22] In interpreting this section , a court is required to adopt a purposive approach , in
line with s 39(2) of the Constitution , which mandates that legislation must be construed
in a manner that promotes the spirit, purport and objects of the Bill of Rights. In
Goedgelegen , the Constitutional Court emphasised that ESTA is remedial legislation ,
closely tied to the Constitution , aimed at protecting individuals whose tenure to land is
insecure. The Court cautioned against a narrow, text -bound reading of the statue , and
affirmed that its provisions must be construed in a way that affords occupiers the fullest
possible protection of their constitutional rights.10

[23] The term ‘designated’ means ‘to officially give a specified status’.11 In
determining whether the property has been ‘designated for agricultural purposes ’, its
zoning is a key consideration (my emphasis) . This is because z oning confers an

9 Supra fn 8.
10 Goedgelegen s upra fn 1 para 53.
11 Shorter Oxford English Dictionary 6 ed (2007).
9
officially recognised purpose to land for specific use objectives .12 The City of Cape
Town’s Development Management Scheme (DMS) which falls under the City of Cape
Town Municipal Planning By -Law of 2015 (the By -Law)13 and which gives effect to
certain requirements in SPLUMA , defines ‘zoning’ to mean ‘a land use category
prescribed by the development management scheme regulating the use of and
development of land and setting out : (a) the purpose for which land may be used; and
(b) the development rules applicable to that land use category’.

[24] The zoning of the property ha s legal effect by virtue of the provisions of s 26 of
SPLUMA . This was confirmed in Droomer , where the court held:
‘. . . Zoning schemes (or “land use schemes ” as they are called under the current nomenclature)
used to have legal effect in this Province by virtue of the provisions of the Land Use Planning
Ordinance 15 of 1985, and have continued to do so latterly in terms of s 26 of the Spatial
Planning and Land Use Management Act 16 of 23. There is no doubt that they count as ‘law’
within the meaning defined in s 2 of the Interpretation Act 33 of 1957. ’14

[25] It is not in dispute that, in terms of the DMS, the property in question is zoned
‘rural’ (RU). Annexure A to the By -Law (Part 2: Rural Zoning (RU) ) provides that :
‘RU zoning accommodates smaller rural properties that may be used for agriculture, but which
may also be occupied as places of residence by people who seek a country lifestyle, and who
view agriculture as a secondary reason for occupying the property . Such properties may occur
inside or outside a recognised urban edge ’.
A property zoned rural is afforded certain ‘use rights ’, with primary uses including a
dwelling house, agriculture , and additional use rights allowing, among other things, a
bed and breakfast establishment and home childcare .

[26] The respondents contend that the rural zoning of the property is not
determinative . They argue that it is not zoned ‘ agricultural’ , is neither currently used nor
intended for agricultural purposes under the DMS, and lacks economic viability as an

12 Droomer para 18.
13 The DMS is Schedule 3 to the City of Cape Town Municipal Planning By -Law. Annexure A.
14 Droomer para 17.
10
agricultural unit. According to them, the property is earmarked for urban development
and is not designated for present agricultural use in terms of any applicable legislation.

[27] When the established principles of interpretation are applied to the relevant
provisions of the DMS, it becomes apparent that the distinction drawn by the
respondents (and the LCC) between rural and agricultural zoning is artificial and cannot
be sustained. Items 108 and 112 of the DMS deal with the permitted uses of properties
zoned as agricultural and rural respectively. Item 108(a) of the DMS provides that the
primary uses of agricultural zoned properties are agriculture; intensive horticulture;
dwelling house; riding stables; environmental conservation use; environmental facilities;
rooftop base telecommunication station; minor freestanding base telecommunication
station; minor rooftop base telecommunication station; and additional use rights as
listed in Item 108(b). Item 112( a) of the DMS provides that the primary uses of rural
zoned properties are dwelling house; agriculture; and additional use rights as listed in
item 112(b).

[28] Accordingly, a plain reading of items 108(a) and 112(a) of the DMS confirms that
properties zoned as agricultural and those zoned as rural may, as a primary use, be
utilised for both agricultural and residential purposes. Moreover , properties zoned as
agricultural may also be used for non-agricultural purposes, such as a rooftop base
telecommunication station , minor freestanding base telecommunication station , and
minor rooftop base telecommunication station. It is only in respect of the consent use of
‘agricultural industry’ that the DMS requires agriculture to remain the dominant use of
properties zoned agricultural . In such cases, the agricultural industry must be
subservient to the primary agricultural use and must not adversely affect the agricultural
potential of the property.15

[29] The additional use rights16 set out in items 108(b) and 112(b) of the DMS are
identical for both agricultural and rural zoned properties. Similarly, the consent use

15 DMS item 110.
16 The additional use rights for properties zoned rural and those zoned as agricultural are a second
dwelling and home occupation, or a bed and breakfast establishment, or home child care.
11
rights17 set out in items 108(b) and 112(b) of the DMS are substantially the same ,
with the exception that properties zoned as agricultural can, with the approval of the City
of Cape Town, be used for purposes such as a hotel, utility service and renewable
energy infrastructure.

[30] The LCC concluded that land zoned ‘agricultural’ retains that status unless
formally rezoned, while land zoned ‘rural’ is inherently more flexible, allowing for
residential or agricultural use and potentially losing its agricultural character through
residential use alone. However, this interpretation is not supported by the DMS. On the
contrary, the DMS expressly permits a wide range of non -agricultural uses —including
mining —on land zoned as agricultural, indicating that zoning alone does not strictly
determine the land’s character. This reasoning, which treats ‘rural’ zoning as
unconstrained by agricultural purpose, undermines the statutory protections afforded by
ESTA. Section 2 of ESTA determines the type of land to which the Act applies, and the
LCC’s approach is inconsistent with both ESTA’s purpose and the actual provisions of
the DMS.

[31] In Mkangeli v Joubert ,18 this Court held that the designation of land as rural does
not exclude such land from the ambit of ESTA.
‘Generally speaking ESTA protects a particular class of impecunious tenant on rural and semi -
rural land against eviction from that land . . . It seems . . . that . . . the Legislature intended to
impose extensive limitations on any right to seek the occupiers’ eviction from that land. This
intention appears to be emphasised by the plain wording of ss 9(1) and 23(1) of ESTA [which
prescribe that ] an occupier may be evicted only on the authority of a court order . . . A literal
interpretation of these provisions appears to indicate an intention on the part of the Legislature
that any right to have an occupier evicted, regardless of who may be the holder of such right
and whatever the source of such right may be, should be subject to and limited by the
provisions of ESTA. ’19 (Emphasis added .)


17 ‘Consent use ’ is defined in Item 1 of the DMS to mean ‘ a land use permitted in terms of a particular
zoning with the approval of the City ’.
18 Mkangeli v Joubert 2002 (4) SA 36 (SCA) .
19 Ibid paras 9; 17 -18.
12
[32] The property ’s lack of current agricultural use , and the intention not to use it for
agricultural purposes, is thus ir relevant to the enquiry into whether the property falls
within the ambit of ESTA. This principle was confirmed by this Court in Lebowa
Platinum Mines Ltd v Viljoen ,20 where it held that a former operations supervisor of a
registered mining company qualified as an occupier for the purposes of ESTA, despite
the fact that neither the property nor the individual was engaged in any agricultural
activities. The property in question was a farm used for residential purposes in terms of
a permit issued to it by the Department of Minerals and Energy , and t he appellant had
constructed several residential houses on the property to attract qualified staff for its
mining operations , offering accommodation at a nominal rental. Likewise, in Droomer ,
the court emphasised that actual or intended agricultural use is not determinative; what
matters is whether the land is designated for agricultural purposes in terms of a law,
such as through zoning, which confers an official land -use status.21

[33] The evidence in this case clearly established that the property is designated for
agricultural purposes, which is ordinarily implied by land zoned as ‘rural’ . 22 The LCC
erred in treating 'rural' zoning as materially distinct from agricultural designation for the
purposes of ESTA. This interpretation overlooks the fact that, under planning
instruments such as the DMS, rural zoning, absent a formal change in land use,
ordinarily includes agricultural use. By disregarding this, the LCC effectively stripped the
land of its agricultural character without proper legal basis, thereby circumventing the
application of s 2 of ESTA.

[34] In terms of s 2(1)( a) of ESTA , the designation of the property brings it within the
ambit of ESTA, notwithstanding its location within a township. Furthermore, the
appellants have resided on the property with the respondents’ knowledge and consent
since 19 88. They therefore qualify as ‘occupiers’ as contemplated in ESTA.


20 Lebowa Platinum Mines Ltd v Viljoen 2009 (3) SA 511 para s 18-19.
21 Droomer para 18.
22 Ibid para 17.
13
[35] The appellants are entitled to the protections afforded under ESTA. The
respondents were therefore required to terminate their rights of residence in accordance
with ESTA before seeking an eviction order.

[36] In the result the following order is made:
1 The appeal is upheld with costs .
2 The order of the Land Claims Court is set aside and replaced with the following:
a. The appeal is upheld with costs.
b. The order of the court a quo is set aside and replaced with the following:
i. The property registered in the Deeds Registry as Portion 81 of the
Farm Joostenberg Vlakte 728 is subject to the Extension of
Security of Tenure Act 62 of 1997 (ESTA) .
ii. The appellants as long -term ESTA occupiers are entitled to the
protections under ESTA .
iii. No order as to costs.




L WINDELL
ACTING JUDGE OF APPEAL



Appearances

For the appellant s: M Adhikari
Instructed by: J D Van der Merwe Attorneys , Stellenbosch
Webbers Attorneys, Bloemfontein

For the respondent s: N Matthee
Instructed by: Bill Tolken Henrikse Inc. , Cape Town
14
MM Hattingh Attorneys Inc, Bloemfontein




Back to Law Reports