ConCourt hears that a farm dwellers' right to keep and graze cattle protected by Constitution, ESTA
Advocate Tembeka Ngcukaitobi has argued that a farm dwellers’ right to keep and graze cattle is one that is protected by the Constitution and the Extension of Security of Tenure Act (ESTA).
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JOHANNESBURG - Advocate Tembeka Ngcukaitobi has argued that a farm dwellers’ right to keep and graze cattle is one that is protected by the Constitution and the Extension of Security of Tenure Act (ESTA).
Ngcukaitobi is representing three siblings who have been living on a farm in the North West for decades, including when it was acquired by the Moladora Trust in 2003.
Magalone, Topies and Dikhotso Mereki lived on the farm where their now deceased parents worked and lived and is alleged to be their only home.
The children kept their cattle on the farm and continued living there after their parents died.
However, the Supreme Court of Appeal ordered, among others, that the cattle belonging to them be removed and impounded.
One of the central questions before the court is whether the right to graze cattle as a farm dweller is one that derives itself from the extension of Security Tenure Act or whether it is a personal right.
The Mereki children, through their lawyer, Advocate Tembeka Ngcukaitobi argued the former.
Section 6 subsection 1 of the act stipulates that an occupier shall have the right to live on and use the land on which he or she lives.
It goes further and says the occupier will have access to services as agreed upon with the owner, whether expressly or implicitly.
They argue that the finding of the Supreme Court of Appeal is wrong.
It found that the right to keep and graze cattle is not protected under the extension of the Security of Tenure Act because it does not explicitly prescribe the right to keep and graze cattle.
Ngcukaitobi explained: "But it is an absurd outcome because there is also no right to grow vegetables, there is no right to grow mielies, no right to grow cabbages, no right to grow potatoes, yet it would be odious to hear anyone argue that an occupier cannot grow their own food where they live. Where would they get that right from?"
Ngcukaitobi submitted that this right was part of the two rights explicitly recognised in the extension of Security of Tenure Act (ESTA), that is the right to use and live on the land, which includes the right to keep and graze livestock on the farm.