Abstract

Keywords

Access to land; evictions; ESTA occupiers; jurisprudence; constitutional property law; PIE.

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1 Introduction

There are few issues more contested and debated in the South African political landscape than land. Land dispossession, often through violent means, form part and parcel of the apartheid and colonial history of South Africa. 1

 Allison Geduld. LLB BA (Hons) LLM LLD (NWU). Senior Lecturer. University of Johannesburg, South Africa. Email: allisong@uj.ac.za. ORCiD: https://orcid.org/0000-0001-7363-5080.

1 Ntsebeza and Hall Land Question in South Africa 3; Natrass Short History of South Africa 131-132; Bonner "South African Society and Culture" 275; Ross Concise History of South Africa 22-58.

This note consists of a discussion of the decisions handed down by the Magistrate's court, the High Court and the Supreme Court of Appeal (SCA), as well as the Constitutional Court (CC). The second part of the note consists of critique of the CC judgment based on the formalism in the judgment, the lack of recognition of the occupier's narrative, and lastly the challenge of protecting tenure rights in a neo-liberal regime. This note concludes that the Constitutional Court erred in its judgment by applying formalistic reasoning and by not properly considering the facts of the case, as well as by losing sight of the purpose of the Extension of the Security of Tenure Act (ESTA) 6

6 Extension of the Security of Tenure Act 62 of 1997 (ESTA).

2 The judgments

2.1 Facts

This matter concerns the eviction of Clara Phillips, the respondent, and her disabled son Adam Phillips from their home in Somerset-West in the Western Cape. Willem Grobler, the applicant, brought the eviction application after he had in 2008 bought the property which Mrs Phillips and her son reside on. 9

9 Grobler v Phillips CC para 2.

2.2 Court a quo judgment

In the Magistrate's Court Mr Grobler brought an eviction application on the basis that Mrs Phillips was an unlawful occupier. 14

14 Grobler v Phillips CC para 6.

2.3 High Court

In the High Court Mrs Phillips relied on a new ground, namely that she was a protected occupier in terms of section 8 of ESTA, in addition to the

provisions of PIE. 20

20 Grobler v Phillips CC para 10.

2.4 Supreme Court of Appeal

In the SCA it was found that Mrs Phillips could not rely on section 8 of ESTA as the property in question had been changed to an Erf as early as in 1991. 24

24 Grobler v Phillips CC paras 35-36.

It bears emphasis that the first respondent has been in occupation of the property since she was 11 years old. She is now (at the time of this appeal), 84 years old. Until 2009 her continued occupation was entirely secured, by reason of the consent of successive owners some of whom accepted that she had been given a lifelong right of occupation and were prepared to honour it. During the greater part of her occupation the property formed part of a farm. Gradually, and in circumstances beyond her control, the farm became absorbed by the growth of urban developments. Until 1991, when the remaining portion of what was previously farmland, was encircled by urban development, the first respondent would undoubtedly have enjoyed the protection of ESTA. While she may have lost the absolute protection conferred by s 2(1)(b) read with s 8(4) of ESTA as a vulnerable person, her status as a vulnerable person, even in the context of PIE, has essentially remained unchanged. 27

27 Grobler v Phillips SCA para 49.

Despite finding that Mrs Phillips was an unlawful occupier, the Court found that the considerations formulated in the above quotation outweighed the right of ownership that Mr Grobler had over the property. 28

28 Grobler v Phillips SCA para 50.

The SCA emphasised that the offer of alternative accommodation made by the appellant, albeit its having been made in good faith, did not influence the granting of an order of eviction. 29

29 Grobler v Phillips SCA para 56.

2.5 Constitutional Court

The Constitutional Court dealt with the merits of two issues. Firstly, the court addressed the exercise of discretion during the process of the eviction enquiry. The Court held that an enquiry for the order of an eviction is essentially twofold. It must first be established that the occupation is unlawful, and second it has to be determined whether the granting of an eviction order would be just and equitable. The Court emphasised that section 4(7) of PIE states that an eviction order may be granted after the relevant factors have been considered. 31

31 Grobler v Phillips CC para 29.

The second merit point that the court addressed was the consideration whether the eviction order was just and equitable in terms of section 4(7) of PIE. In referencing the Oranje 33

33 Oranje v Rouxlandia Investments 2019 3 SA 108 (SCA).

that occupiers do not have the right to choose where they want to live. 35

35 Grobler v Phillips CC para 35.

The Supreme Court of Appeal failed to balance the rights of both parties. Mr Grobler is the owner of the property and has been enforcing his rights of ownership for the past 14 years. He has offered alternative accommodation on numerous occasions. If this offer were to be accepted, Mrs Phillips will continue to enjoy having a decent home. Furthermore, the Supreme Court of Appeal placed too much emphasis on Mrs Phillips' peculiar circumstances. A just and equitable order should not be translated to mean that only the rights of the unlawful occupier are given consideration and that those of the property owner should be ignored. And it does not mean that the wishes or personal preferences of an unlawful occupier are of any relevance in this enquiry. 38

38 Grobler v Phillips CC para 44.

For these reasons the Court found that the eviction order was a just and equitable order.

3 Land tenure reform in South Africa

Before starting with a discussion of the Constitutional Court judgment, it is necessary to reflect on land tenure reform in South Africa. This section does not consider land reform in its entirety but will briefly consider the context of such reform in South Africa. 39

39 For sources on land reform see South African Government date unknown https://www.gov.za/issues/land-reform; Pienaar Land Reform; Pienaar 2015 Scriptura 1-20; McCusker, Moseley and Ramutsindela Land Reform in South Africa.

Several pieces of legislation enacted by the colonial and apartheid government made it impossible for non-white South Africans to own land in so-called white areas. 40

40 These pieces of legislation include, amongst others, the Natives Land Act 27 of 1913 (renamed Black Land Act), the Native Trust and Land Act 18 of 1936 (renamed Development Trust and Land Act), the Group Areas Act 41 of 1950, the Group Areas Act 77 of 1957, the Group Areas Act 36 of 1966, the Natives Urban Areas Act 21 of 1923, and the Pegging Act 35 of 1943. For a comprehensive discussion on the history of laws and regulations on land in South Africa see Du Plessis and Pienaar 2010 Fundamina 73-114; Walker 2017 https://doi.org/10.1093/acrefore/ 9780190277734.013.79; Kloppers and Pienaar 2014 PELJ 677-706.

for tenants on farms, who could easily be evicted by farm owners. 41

41 Wegerif, Russell and Grundling Still Searching for Security 34. Where evictions were legal they took place by means of the Prevention of Illegal Squatting Act 52 of 1951. There was nothing in the Act that protected farm dwellers or farm labourers.

Many factors have impacted on commercial farming since the early 1980s including declining agricultural prices, the introduction of economies of scale and a decrease in the demand for labour. 45

45 Spierenburg 2020 Society and Natural Resources 285; Atkinson, Pienaar and Zingel 2004 http://www.aridareas.co.za/wp-content/uploads/2015/Papers/Atkinson%20D% 20%20Pienaar%20D%20%20Zingel%20J%20-%20From%20on%20Farm%20to% 20Own%20Farm.pdf 14-16.

In 1991 the previous government started the process of land reform by abolishing all acts based on racial segregation. 48

48 Abolition of Racially Based Land Measures Act 108 of 1991.

government promulgated more comprehensive pieces of legislation. 49

49 The legislation includes the following: Distribution and Transfer of Certain State Land Act 119 of 1993; Land Titles Adjustment Act 111 of 1993; Rural Areas Amendment Act 112 of 1993; and Provision of Land and Assistance Act 126 of 1993.

Section 25(6) of the Constitution protects secure tenure. 51

51 Section 25(6) of the Constitution provides that "a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress".

ESTA created much-needed protection against arbitrary evictions for farm dwellers. However, despite the well-intentioned aims of ESTA, it has had unintended consequences for farmers and farm dwellers. 54

54 Spierenberg 2020 Society and Natural Resources 281; Bourdeaux 2010 Economic Affairs 13; Mntungwa Impact of Land Legislation 2.

Shortly after the enactment of ESTA some of the potential pitfalls of the legislation had already been highlighted. One of the points of concern was that ESTA does not protect the tenure of tenants on a farm that has been

rezoned to residential land. 56

56 Pienaar 1998 SAPL 436.

In addition to ESTA, PIE also protects occupiers from unlawful evictions. PIE is applicable to all land in South Africa, including rural land. For a court to order an eviction of an unlawful occupier in terms of PIE, it has to be of the opinion that it is just and equitable to do so. 60

60 Section 4(7) of PIE provides the following: "If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women."

It is perhaps controversial to treat the ESTA right as a property right (as opposed to a housing right), but it recognises that the interest of farm labourers in the land they occupy goes beyond access to housing. 63

63 Van der Sjide 2020 SAJHR 83.

Many have argued that land reform, in particular land tenure reform, has failed in South Africa. 64

64 Cousins 2016 https://www.nelsonmandela.org/uploads/files/Land__law_and_ leadership_-_paper_2.pdf; Bourdeaux 2010 Economic Affairs 14.

have been plagued by abuse and discrimination since the implementation of the legislation protecting the rights of farm workers. 65

65 Devereux 2019 Development Southern Africa 400-401; High Level Panel 2017 https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf 203-204, 279; Advisory Panel on Land Reform and Agriculture 2019 https://www.gov.za/sites/default/files/gcis_document/ 201907/panelreportlandreform_1.pdf V.

The above section has given a brief context to land tenure reform in South Africa. Against the background of the discussion above, the next section considers three points of critique against the CC judgment.

4 Discussion

4.1 Formalism

The first point of critique relates to the formalism that underpins the judgment of the Constitutional Court. Legal formalism is perhaps one of the most pernicious and persistent elements of the South African legal system. Hoexter 66

66 Hoexter 2022 CCR 123.

that all too familiar tendency of South African law to rely on technicality rather than substantive principle or policy, and conceptualism instead of common sense.

Hawthorne 67

67 Hawthorne 2006 Fundamina 83.

The advent of the Constitution should have signalled, as Mureinik advocated, a shift from a culture of authority to a culture of justification. Formalism should have given way to realism where the emphasis is to be found in the result rather than the mechanical application of the rule.

To be clear, there is no denying that law is a technical field. Law prescribes procedural and formal requirements that must be complied with. There is no field in law that can escape these requirements. It is generally agreed that these procedural requirements exist to promote fairness. In the following quotation Quinot refers to the important point that judges should not do away with formal reasoning but should steer clear of formalism:

The notion of transformative adjudication does not amount to a call for substantive reasoning to the exclusion of formal reasoning. Form plays an important role in all legal reasoning. Indeed one may argue that judges cannot get away from form in adjudication, nor should they. Judges should not be allowed to decide cases with reference to any substantive considerations that they happen to favour, that is, free-floating social and political preferences. The mode of reasoning that transformative adjudication requires allows for formal reasoning, but not formalism. Under this approach judges are allowed and may at times be required to decide cases narrowly with reference to

concepts and the text of legal rules for example, but not in an abstract formalistic manner. 68

68 Quinot 2010 CCR 116.

As alluded to in the quotation above, it is also generally agreed that strict compliance with the procedural and formal requirements of law without due consideration of the outcomes and context of a matter can lead to unfairness. As much as certainty and predictability are important in law, it is trite law that certain instances may require a relaxation of those strict rules. These considerations are often taken up in principles such as public policy, fairness and good faith. In the South African constitutional dispensation these principles are informed by the notion of transformative constitutionalism as well as constitutional values. The criticism of formalism in the South African context is further informed by the inheritance of a conservative legal culture. 69

69 Klare 1998 SAJHR 170.

The South African judiciary has approached tenure rights from a substantive point of view. An example of such a case is Daniels v Scribante. 70

70 Daniels v Scribante 2017 4 SA 341 (CC) (hereafter Daniels v Scribante).

"bring a dwelling to a standard that conforms to conditions of human dignity." 71

71 Daniels v Scribante para 60.

In the Klaase case 72

72 Klaase v Van der Merwe 2016 6 SA 131 (CC) (hereafter Klaase CC).

In determining the meaning of ‘occupier’ as defined in section 1(1) of ESTA, the starting point is the Constitution. Section 39(2) of the Constitution enjoins courts, ‘when interpreting legislation ... [to] promote the spirit, purport and objects of the Bill of Rights.’ In line with a purposive approach to statutory interpretation, a meaning that places the definition within constitutional bounds should be preferred. Because we are concerned with the meaning of ‘occupier’ as defined, the definition must be read not only in light of the purpose of ESTA but also in the context of the legislation, as a whole. 74

74 Klaase CC para 50.

The court continued, with reference to the Goedgelegen case, 75

75 Department of Land Affairs v Goedgelegen Tropical Fruits 2007 6 SA 199 (CC).

As this Court said in Goedgelegen, ESTA is ‘remedial legislation umbilically linked to the Constitution’. It seeks to protect people, like Mrs Klaase, whose tenure to land is insecure. In construing the provisions of ESTA a ‘blinkered peering’ at the language in the legislation must be avoided. An approach that will ‘afford [occupiers] the fullest possible protection of their constitutional guarantees’ must be adopted. 76

76 Klaase CC para 51.

In the seminal case of PE Municipality vs Various Occupiers 77

77 PE Municipality v Various Occupiers 2005 1 SA 217 (CC) (hereafter PE Municipality v Various Occupiers).

account relevant circumstances. Certain factors listed in the relevant sections of PIE have to be taken into account but the listed factors are not a closed list. The court does not give any guidance as to which factors should weigh more. In the recent case of Mahlangu v Nkosi the court reiterated that the enquiry in terms of section 4(7) of PIE is contextual and substantive in nature and depends on the particular circumstances of a matter. 79

79 Mahlangu v Nkosi (43615/21) [2023] ZAGPPHC 120 (23 February 2023) para 18.

The matter in Grobler vs Phillips essentially turned on two questions: whether Mrs Phillips was an unlawful occupier, and whether the eviction of Mrs Phillips would be a just and equitable order if she were found to be an unlawful occupier in terms of PIE. The CC answered the first question in the negative. In answering the second part of the enquiry, the Court focussed largely on the fact that alternative accommodation had been offered by the owner. Although alternative accommodation is a factor that has to be considered in terms of section 4(7) of PIE, the Court paid too little consideration to other factors such as the rights of elderly people, the plight of the disabled and the plight of households headed by women, which it is specifically asked to do in terms of section 4(7) of PIE. Section 4(7) of PIE allows the court to consider other relevant factors. There were many relevant factors that the Court should have considered, including the duration of the occupation, which was over 70 years. In PE Municipality v Various Occupiers the Court stated that courts will be more cautious to grant an eviction order where families are more settled. Secondly, the Court should have considered that Mrs Phillips would have been protected by ESTA had the property not been rezoned. The rezoning of the property was a factor that fell out of her control. In the third instance, it was not contested that previous owners had given her the right to occupy the property for life. All these factors weighed heavily against the ownership right of Mr Grobler.

Furthermore, the Court’s formalism is clear where it fails to consider the purpose of the legislation and the relevant constitutional values in its application of section 4(7) of PIE. In the jurisprudence of the Constitutional Court laid out above, a value-laden and purposive approach is preferred. 80

80 See 4.1 above.

background to land reform legislation such as PIE and ESTA described above informs the purpose of the legislation. 82

82 See 3 above.

As mentioned by the SCA in this matter, the matter concerned "the dignity of an elderly and vulnerable woman and a person with disabilities in the circumstances of the first respondent and her son." 83

83 Grobler v Phillips SCA para 57.

The next section of this note expands on the link between Mrs Phillips’ dignity and her eviction from her home.

4.2 Non-consideration of the narrative of the occupier

The failure to consider Mrs Phillips’s narrative is connected to the above discussion. The Constitutional Court engaged in an a-historical and a-contextual analysis of the matter. The historical and personal context was important in the case at hand as it reveals the link between the eviction and dignity. As alluded to above, the enquiry in terms of section 4(7) of PIE is contextual in nature.

Land issues in South Africa cannot be separated from the history of dispossession and settler colonialism in South Africa. There is a historical and personal context that is necessary for the application of law. The recent Land Commission report on tenure security states the following:

Section 39 is also relevant to the question of interpreting the property clause since it stipulates that, when interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society based on dignity, equality and freedom. Labour tenants have been denied these three values of dignity, equality and freedom through the historical process of labour tenancy, and it thus becomes necessary to redress the glaring imbalances that have arisen as a result of past racially discriminatory practices in this regard. This accords with the purposive approach to the interpretation of the Constitution that has been adopted by the Constitutional Court and is essentially 'context-orientated.' This includes taking account of the relevant historical and social background, including South Africa's history of racial dispossession and its hope for a new democratic future. 84

84 Cowling, Hornby and Oettle 2017 https://www.parliament.gov.za/storage/app/media/ Pages/2017/october/High_Level_Panel/Commissioned_Report_land/Commissioned_Report_on_Tenure_Security_AFRA.pdf 17-18.

The legislative history of land reform has already been discussed above. However, the personal context of people living and working on farms needs some consideration. There has been documentation by various people of

the lived experiences of many who are living and working on farms. 85

85 Roodt 2007 Africanus 3-12; Lemke and Jansen van Rensburg 2014 Development Southern Africa 843-858; Hall et al 2013 Journal of Agragrian Change 47-70; Evans 2013 Journal of Agrarian Change 213-233; Brandt and Ncapayi 2016 Anthropolgy Southern Africa 215-231.

Despite the well-documented skewed power-relationship between farmers and farmworkers, Nolan 90

90 Nolan Paternalism and Law 42.

The CC had a very narrow understanding of its consideration of alternative accommodation as a factor to take into account in granting an eviction order. The Court stated that an occupier's wishes should not be taken into account. In this regard the Court cited Snyders v De Jager. In Snyders v De Jager the court stated the following:

To this extent, an occupier's right to resist relocation is protected. But these sections do not amount to a blanket prohibition on relocation under any circumstances. If indeed the relocation were to impair an occupiers' human dignity, then the provisions of s 5 and s 6 would apply and the occupiers could invoke their constitutional rights. This does not mean that all relocations necessarily suffer the same fate.

Relying on Snyders v De Jager the CC went further to state that the purpose of PIE is to prevent unfair evictions and not to expropriate a land owner. The aim of PIE is indeed to prevent arbitrary evictions. As the court directs in PE v Various Occupiers, PIE should be read against the historical background of dispossession in South Africa as well as the constitutional framework. Furthermore, the Court added that PIE and the concepts of justice and equity should be understood through a "defined and carefully calibrated constitutional matrix." 92

92 PE Municipality v Various Occupiers para 14.

There is a strong link between the dignity of Mrs Phillips and her relocation. As argued by the SCA, to relocate Mrs Phillips and her son would not be to affirm the dignity of the most vulnerable and marginalised people in society. Mrs Phillips' main reason for wanting to stay on the land was her love of the environment and her connection to it, which should be informed by the history and power dynamics set out above. It is interesting that despite Mrs Phillips’ living on a farm that was probably subject to the paternalistic system described above, that same paternalism perpetuated itself in the Court, where her narrative and perspective found little recognition. The fact that Mrs Phillips had lived on the farm for more than seventy years should have had some bearing on the Court's decision. For the Court not to take this factor into account was for the Court to blind itself to the marginalisation of elderly women living on farms. Such an approach is not aligned with the constitutional values of human dignity, equality and freedom. Moreover, the Court’s approach was not historically and contextually sensitive, which section 4(7) of PIE requires it to be.

4.3 Protection of land tenure in a neo-liberal regime

The last point of critique against the judgment relates to the maintenance of a legal system that is skewed in favour of a neo-liberal regime. The South African economic policy has been described as neo-liberal. 93

93 Fourie 2022 Philosophy and Social Criticism 8-11; Cheru 2001 TWQ 505; Peet 2002 Antipode 54; Narsiah 2002 GeoJournal 29.

country. Sibanda 95

95 Sibanda 2011 Stell LR 488-489.

In Daniels v Scribante Froneman J points out that three things need to happen before we can make the Constitution a reality:

(a) an honest and deep recognition of past injustice;

(b) a re-appraisal of our conception of the nature of ownership and property; and

(c) an acceptance, rather than avoidance or obfuscation, of the consequences of constitutional change. 97

97 Daniels v Scribante para 115.

Related to the nature and ownership of property, Froneman held that the hierarchical form of ownership that we know today originates from the battle between feudal and civil law. As part of overcoming the oppression of feudal law, it was important that ownership vested in one person. 98

98 Daniels v Scribante para 134.

even the anti-eviction protection that is afforded to tenants and other lawful occupiers in legislation usually turns on factors that are within the landowner's control, such as non-payment or other breaches of the tenancy agreement, changes in the current use of the rental property or the landowner's changing needs and plans with regard to the property, but the landowner's right to evict is seldom curtailed purely with reference to the socio-economic context or the personal or economic circumstances of the tenant. 101

101 Van der Walt Property in the Margins 56.

Thus, the scales of justice weigh in favour of the interests of property owners. Van der Sijde, in reference to Van der Walt, adds a useful perspective on the type of rights created by ESTA. The authors argue ownership is not the only right that attaches to property, and that it should

not necessarily trump other property rights. Similarly, the rights of the owner of land do not necessarily trump the rights of the lawful occupier of that land.

The CC steered away from its role in realising land reform and interrogating land rights that Froneman J refers to above. In its judgment the CC stated that there should be a balance between the rights of property owners and those of occupiers. However, it is argued that the CC did not duly consider the interests of Mrs Phillips and her son, as the Court is instructed to do by section 4(7) of PIE. It referred to Mrs Phillips position only as “peculiar circumstances”. The judgment of the CC cannot be seen as one that advances land reform and tenure security. If the judgment had been such as to advance tenure security, the court would have considered whether Mrs Phillips could have been protected under the Interim Protection of Informal Land Rights Act.

Furthermore, the consideration under section 4(7) was a narrow one, as Mr Grobler's ownership right received prominence under the balancing act performed by the Constitutional Court. The judgment of the CC cannot be seen as one that advances land reform and tenure security. In addition to considering the fact that Mrs Philips had been offered alternative accommodation, the CC should also have considered that Mrs Phillips would have been a protected occupier in terms of ESTA had the property not been rezoned. As stated by the SCA, “her status as a vulnerable person, even in the context of PIE, has essentially remained unchanged.” While Mrs Phillips and her son were not rendered homeless, the judgment of the court did not adequately recognise the tenure rights of socially vulnerable persons.

5 Conclusion

People who live and work on farms are some of the most vulnerable and marginalised people in South Africa. The country is still coming to terms with the effects of decades of dispossession. Commendably, efforts have been made by the government to protect farm labourers and farm dwellers. However, very often land reform legislation fails to protect the people it intends to protect. Grobler v Phillips is an example of that failure.

In this note I have argued that the Constitutional Court erred in its judgment as the result of its adopting an overly formalistic, a-historical and a-contextual approach to the application to section 4(7) of PIE.

There is a need to contest the existing idea of property rights in South Africa. Additionally, there is a need to ensure that tenure security is achieved through the realisation of the various housing and property rights in South

Africa. It is hoped that the South African judiciary will change its approach to one that is more aligned with the transformative vision of the Constitution.

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Sibanda S "Not Purpose-Made! Transformative Constitutionalism, Post-Independence Constitutionalism and the Struggle to Eradicate Poverty" 2011 Stell LR 482-500

Spierenburg 2020 Society and Natural Resources

Spierenburg M "Living on Other People's Land; Impacts of Farm Conversations to Game Farming on Farm Dwellers' Abilities to Access Land in the Eastern Cape, South Africa" 2020 Society and Natural Resources 280-299

Van der Sjide 2020 SAJHR

Van der Sjide E "Tenure Security for ESTA Occupiers: Building on the Obiter Remarks in Baron v Claytile Limited" 2020 SAJHR 74-92

Van der Walt Property in the Margins

Van der Walt AJ Property in the Margins (Bloomsburg Oxford 2009)

Waldman 1996 African Studies

Waldman L "Monkey in a Spiderweb: The Dynamics of Farmer Control and Paternalism" 1996 African Studies 62-86

Walters 2012 Anthropology Southern Africa

Walters H "The Burden of Responsibility and the Breakdown of Traditional Paternalism on Farms in the Western Cape" 2012 Anthropology Southern Africa 91-99

Wegerif, Russell and Grundling Still Searching for Security

Wegerif M, Russell B and Grundling I Still Searching for Security: The Reality of Farm Dweller Evictions in South Africa (Nkuzi Development Association Polokwane 2005)

Williams 2016 Journal of Southern African Studies

Williams G "Slaves, Workers, and Wine: The 'Dop System' in the History of the Cape Wine Industry, 1658-1894" 2016 Journal of Southern African Studies 893-909

Case law

Daniels v Scribante 2017 4 SA 341 (CC)

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

Grobler v Phillips 2023 1 SA 321 (CC)

Grobler v Phillips (446/2020) [2021] ZASCA 100 (14 July 2021)

Klaase v Van der Merwe 2016 6 SA 131 (CC)

Mahlangu v Nkosi (43615/21) [2023] ZAGPPHC 120 (23 February 2023)

Molusi v Voges 2016 3 SA 370 (CC)

Oranje v Rouxlandia Investments 2019 3 SA 108 (SCA)

PE Municipality v Various Occupiers 2005 1 SA 217 (CC)

Snyders v De Jager 2017 3 SA 545 (CC)

Legislation

Abolition of Racially Based Land Measures Act 108 of 1991

Communal Property Association Act 28 of 1996

Constitution of the Republic of South Africa, 1996

Distribution and Transfer of Certain State Land Act 119 of 1993

Extension of the Security of Tenure Act 62 of 1997

Group Areas Act 36 of 1966

Group Areas Act 41 of 1950

Group Areas Act 77 of 1957

Interim Protection of Informal Land Rights Act 31 of 1996

Land Reform (Labour Tenants) Act 3 of 1996

Land Restitution and Reform Laws Amendment Act 78 of 1996

Land Titles Adjustment Act 111 of 1993

Native Trust and Land Act 18 of 1936

Natives Land Act 27 of 1913

Natives Urban Areas Act 21 of 1923

Pegging Act 35 of 1943

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

Prevention of Illegal Squatting Act 52 of 1951

Provision of Land and Assistance Act 126 of 1993

Rural Areas Amendment Act 112 of 1993

Upgrading of Land Tenure Rights Amendment Act 34 of 1996

Internet sources

Advisory Panel on Land Reform and Agriculture 2019 https://www.gov.za/sites/default/files/gcis_document/201907/panelreportlandreform_1.pdf

Advisory Panel on Land Reform and Agriculture 2019 Final Report of the Presidential Advisory Panel on Land Reform and Agriculture https://www.gov.za/sites/default/files/gcis_document/201907/panelreportlandreform_1.pdf accessed 21 September 2023

Atkinson, Pienaar and Zingel 2004 http://www.aridareas.co.za/wp-content/uploads/2015/Papers/Atkinson%20D%20%20Pienaar%20D%20%20Zingel%20J%20-20From%20on%20Farm%20to%20Own%20Farm.pdf

Atkinson D, Pienaar D and Zingel J 2004 "From on Farm to Own Farm?" The Role of Farm Worker Unions in Land Reform in South Africa http://www.aridareas.co.za/wpcontent/uploads/2015/Papers/Atkinson%20D%20%20Pienaar%20D%20%20Zingel%20J%20-20From%20on%20 Farm%20to%20Own%20Farm.pdf accessed 14 June 2023

Cousins 2016 https://www.nelsonmandela.org/uploads/files/Land__law_

and_leadership_-_paper_2.pdf

Cousins B 2016 Land Reform in South Africa is Sinking. Can It be Saved? https://www.nelsonmandela.org/uploads/files/Land__law_and_leadership_-_paper_2.pdf accessed 14 June 2023

Cowling, Hornby and Oettle 2017 https://www.parliament.gov.za/storage/ app/media/Pages/2017/october/High_Level_Panel/Commissioned_Report_land/Commissioned_Report_on_Tenure_Security_AFRA.pdf

Cowling M, Hornby D and Oettle L 2017 Tenure Security of Labour Tenants and Former Labour Tenants in South Africa https://www.parliament.gov.za/ storage/app/media/Pages/2017/october/High_Level_Panel/Commissioned_Report_land/Commissioned_Report_on_Tenure_Security_AFRA.pdf accessed 14 June 2023

Devereux and Solomon 2011 https://www.future-agricultures.org/themes/growth-and-social-protection/shooting-the-messenger-controversy-over-farmworker-conditions-in-south-africa/

Devereux S and Solomon C 2011 Shooting the Messenger: Controversy over Farmworker Conditions in South Africa https://www.future-agricultures.org/themes/growth-and-social-protection/shooting-the-messenger-controversy-over-farmworker-conditions-in-south-africa/ accessed 21 September 2023

Hall 2003 https://repository.uwc.ac.za/bitstream/handle/10566/4422/ elarsa_op_2_rural_restitution.pdf?sequence=1&isAllowed=y

Hall R 2003 Evaluating Land and Agrarian Reform in South Africa https://repository.uwc.ac.za/bitstream/handle/10566/4422/elarsa_op_2_rural_restitution.pdf?sequence=1&isAllowed=y accessed 14 June 2023

Hall, Kleinbooi and Mvambo 2002 http://mokoro.co.uk/wp-content/uploads/what_land_reform_has_meant_to_farm_workers_sa.pdf

Hall R, Kleinbooi K and Mvambo N 2002 What Land Reform has Meant and Could Mean to Farm Workers in South Acrica http://mokoro.co.uk/wp-

content/uploads/what_land_reform_has_meant_to_farm_workers_sa.pdf accessed 14 June 2023

High Level Panel 2017 https://www.parliament.gov.za/storage/app/media/

Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf

High Level Panel 2017 Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf accessed 2 October 2023

Nkuzi Development Association and Social Surveys 2005 https://sarpn.org/documents/d0001822/Nkuzi_Eviction_NES_2005.pdf

Nkuzi Development Association and Social Surveys 2005 Summary of Key Findings from the National Evictions Survey https://sarpn.org/documents/ d0001822/Nkuzi_Eviction_NES_2005.pdf accessed 4 October 2023

South African Government date unknown https://www.gov.za/issues/land-reform

South African Government date unknown Land Reform https://www.gov.za/issues/land-reform accessed 21 September 2023

Walker 2017 https://doi.org/10.1093/acrefore/9780190277734.013.79

Walker C 2017 The Land Question in South Africa: 1913 and Beyond https://doi.org/10.1093/acrefore/9780190277734.013.79 accessed 21 September 2023

Williams 1996 https://www.gavinwilliams.org/wp-content/uploads/2014/01/ 1996-Transforming-Labour-Tenants-Gavin-Williams1.pdf

Williams G 1996 Transforming Labour Tenants https://www.gavinwilliams. org/wp-content/uploads/2014/01/1996-Transforming-Labour-Tenants-Gavin-Williams1.pdf accessed 14 June 2023

List of Abbreviations