Asked by Trevor on 09-02-2021 20:49:57
Question posted in the Landlord Tenant Law category relating to Eastern Cape

My father is 68 years old and has lived on a property owned by his employers for more than 34 years uninterrrupted. He has an income above R5000 a month and has been paying rent on the property for the past 10 years, but prior to that, no rent was required since my grandparents had living rights on the property as per the sales agreement of the property.

The property is in a rural area, and we have a family graveyard on the property. My father and grandfather have also made improvements to the property and maintained it at their expense since the sale.

In addition I have lived on the property from birth, for 23 years uninterrupted, after which I lived in another town for 4 years, and have since returned to my family home, never having paid any rent or upkeep. 

I would like to know what our land rights are with regards to ESTA, and The Prescription Act 1969 specifically, and whether there are any other Acts or precidents that would protect is from eviction. 

Kind regards

T. Shepherd 

Posted by Att. Patrick on 09-02-2021 21:28:12

Hi there, 

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

This is a request for information so that I can understand your question and give you a proper answer.

Am I correct in assuming that your father lived and WORKED on the property, and that the property concerned was a farm?

When you say that your grandparents had living rights on the property as per the sales agreement - 

1) The sales agreement between who?

2) Did the sales agreement extend those living rights to your grandparent's children? (i.e. to your father)

Also, what outcome would you like from this whole thing?

Awaiting your further information.

Att. Patrick

Before the property was sold, it is was a farm, but my grandfather sold it to a logging company, who turned it into a plantation. As per the sales agreement between my grandfather and the company, my grandfather and grandmother were to have living rights on the property and the company had to offer my father employment. The living rights only extended to my grandparents. We have lived on the property rent-free for more than 20 years for as long as my grandparents were alive, but have been paying rent for approximately the past 10 years since my grandmother's passing.

My father worked on the property, planting the trees for the plantation, but after the trees no longer needed tending, they moved him into a power station that powers their sawmills. Since he has worked for the company for so long, he has accrued a large basic salary due to yearly increases etc. the company has been trying to get him to resign.

It is my concern that they will succeed in terminating his employment and evicting us of the property, which they also intend to use as land for plantation. I intend to work overseas, but due to the COVID situation I am unable to obtain a visa at this time. The least outcome I am hoping for is protection from eviction until I am able to leave the country and take care of my family, but if there is any basis for it, I would be very happy if the land on which our family home and graveyard are located might be returned to us.

Thank you for your assistance.

Posted by Att. Patrick on 10-02-2021 12:05:16

Okay, so your grandfather sold the farm to the logging company and reserved living rights on the property for him and his wife.

Those living rights, unfortunately, do not carry down the generations. In other words, his children would only be able to live on the farm while your grandfather or grandmother were alive. 

After your grandmother passed away, the company charged you rental. This is correct, and is in line with the argument that the living rights do not pass down generations. 

Your family was therefore a tenant on the farm, paying rental, in terms of an oral/written (it doesn't really matter which) lease agreement.

I see your advices that your father received a salary, and therefore assume that your father was employed in terms of an employment contract. Well, there must have been an employment contract (oral/written - it doesn't really matter which) if he earned a salary.

What this tells me is that your father was not a labour tenant as defined. i.e. he was not living on the farm because he was working on the farm.

He lived on the farm in terms of a lease agreement, and he worked on the farm in terms of an employment contract earning a salary. 

Because of the rental aspect, I do not think that there would be a claim through ESTA.

The one thing about ESTA is that it does NOT cover people who earn more than R5 000 per month gross (before tax deductions) - so this would then exclude your father!

The Prescription Act doesn't come into the equation at all, specifically because you were all residing on the land with the owner's permission. 

I think that key here is to fight the company in relation to your father's continued employment.

And then to fight any attempts to terminate the lease agreement or evict you.