The court’s decision, authored by Weiner JA and concurred by Ponnan and Matojane JJA, emphasised the lack of evidence supporting any tacit agreement or consent for the Mereki children to keep livestock on the farm. Despite efforts by the Trust to communicate this to the Mereki children, including written notices, the children continued to graze animals on the property without permission.

The judgment set aside the previous ruling of the Land Claims Court, ordering the Mereki children to immediately remove all grazing animals from the farm. Failure to comply within 30 days would lead to the impounding of the livestock by the Sheriff of the High Court. Additionally, the Mereki children were interdicted and restrained from returning or keeping any livestock on the farm without prior consent from the Trust.

The ruling clarifies the importance of explicit consent in matters of land use and ownership, reaffirming the rights of property owners in South Africa. This decision underscores the significance of legal clarity and adherence to property rights, particularly in contexts involving land tenure and agricultural practices.

In order to secure the right to graze animals on another person’s property, the options below can be considered.

Servitude

A servitude can be registered in the relevant Deeds Office that has jurisdiction over the property to secure a limited real right over the property in question. The servitude can be registered for a limited period of time, or in perpetuity.

If the servitude is registered over a portion of land in terms of a notarial deed, a servitude diagram would usually need to be framed for the servitude to be registered.

It is, however, important to note that in terms of section 6A of the Subdivision of Agricultural Land Act 70 of 1970 (Act), a servitude over agricultural land may, however, not be registered without the written consent of the Minister of Agriculture, unless the following exceptions in terms of section 6A apply:

• a right of way, aqueduct, pipeline or conducting of electricity with a width not exceeding 15 metres;
• a servitude which is supplementary to a servitude referred to in paragraph (1) and which has a servitude area not exceeding 225 square metres which adjoins the area of the last-mentioned servitude;
• a usufruct over the whole of agricultural land in favour of one person or in favour of such person and their spouse or the survivor of them if they are married in community of property.

Where a servitude over agricultural land is described in general terms, for example where the servitude area or route will be determined at a later stage, the ministerial consent will therefore also be required unless it is clear that the provisions of section 6A of the Act are not being contravened.

It is also important to bear in mind that where a servient property is mortgaged, the mortgagee’s consent to the registration of the servitude will be required.

Lease agreement

The parties could enter into a lease agreement and the tenant could then be restricted to using the land only for the purpose as set out in the lease agreement, such as the grazing of animals and related activities.

The Act, however, states that no lease in respect of a portion of agricultural land shall be entered into if:

• the period of such lease is 10 years or longer or is the natural life of the lessee or the life of any other person mentioned in the lease; or
• the lease is renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than 10 years.

Grazing agreement

A grazing agreement would include the right to take what grows on the land, referring specifically to the grass/plants which will be removed by virtue of it being grazed by the livestock (rather than a right to occupy the property).

It is, however, important to note that the following actions are also prohibited in terms of the Act, except where these actions relate to the purposes of a mine as defined in section 1 of the Mines and Works Act 27 of 1956:

• no portion of agricultural land, whether surveyed or not and whether there is any building thereon or not, shall be sold or advertised for sale;
• no right to such portion shall be sold or granted for a period of more than 10 years or for the natural life of any person or to the same person for periods aggregating more than 10 years.

It is therefore advisable to consult an attorney to obtain advice on the best option for the specific circumstances in question.