General Guidelines to be Followed in the Case of Relocation(s) Under ESTA - Oranje v Rouxlandia Investments (Pty) Ltd 2019 (3) SA 108 (SCA)

Abstract

The focus of the case note is on the general guidelines to be followed in the case of the relocation of an ESTA occupier within the property itself. There are no guidelines in these circumstances, but the reasoning of the court in Oranje v Rouxlandia Investments (Pty) Ltd (2019 (3) SA 108 (SCA)) could be used to establish a set of guidelines for relocations under ESTA. It is necessary to have proper guidelines for relocations to curb the violation of fundamental rights protected by ESTA. These guidelines are that a landowner is entitled to relocate ESTA occupiers subject to the proviso that none of the occupier’s tenure rights under section 6(2)(a) of ESTA are infringed; an ESTA occupier is entitled to resist a relocation in terms of section 5(a) of ESTA; security of tenure is not tied to a specific house, but rather to the manner in which ESTA occupiers reside on land belonging to another; a relocation from one house to another within the property itself does not constitute an eviction; a provision of section 6 of ESTA that encroaches on a landowner’s right to property should be restrictively interpreted so as not to impinge on an owner’s right to human dignity; and ESTA was not enacted to provide security of tenure to an ESTA occupier in the house of their choosing.