Grazing Rights and the Moladora Trust Case: What Landowners Need to Know Under ESTA

Recent headlines about land rights, especially the Constitutional Court’s ruling in Magalone Mereki and Others v Moladora Trust and Another, have left many farmers uneasy. With so much information (and misinformation) circulating, it’s important to separate fact from fear. Here’s what the ruling really means for grazing rights under the Extension of Security of Tenure Act (ESTA), and how you, as a landowner, can respond.

What Happened in the Moladora Trust Case?

On 1 August 2025, the Constitutional Court delivered judgment in a dispute between the Moladora Trust (the farm owners) and the Mereki brothers, long-time residents.

The issue: The Trust wanted the brothers to remove their cattle, arguing their right to live on the farm did not include grazing. The brothers disagreed, saying their late mother had grazed cattle on the land for years without objection.

How the case unfolded:

• Land Claims Court: Ruled for the brothers. Preventing them from grazing was seen as an “eviction” under ESTA, since tacit consent (unspoken permission) had existed for years.
• Supreme Court of Appeal: Reversed the ruling. It found no explicit consent had been given and that the mother’s grazing rights did not automatically transfer.
• Constitutional Court: Restored the Land Claims Court’s decision. It clarified that under ESTA, a right to reside can include rights to use the land, such as grazing or crop cultivation, if consent has been granted, explicitly or tacitly.

Thus, stopping lawful grazing is now legally equivalent to an eviction under ESTA, which means a court process is required.

Understanding ESTA’s Purpose

The Extension of Security of Tenure Act (1997) (ESTA) was introduced to protect people living on farms from arbitrary eviction. It safeguards both residence and certain use rights, provided they were granted by the landowner.

Tacit consent (silent approval) plays a big role:

• If someone openly lives on your land for a year without objection, the law presumes permission.
• The Moladora Trust ruling confirms this presumption can also cover grazing rights if tolerated over time.

At SBL Inc., we often see disputes arise not from written agreements but from years of silent tolerance that later become enforceable legal rights.

What This Means for Landowners

Once grazing rights are established, whether in writing or by tacit consent, they are legally protected. Ending them requires:

• Compliance with Section 8 of ESTA: The termination must be “just and equitable” and usually requires a court order.
• Formal notice and process: Informal requests are not enough.

Practical Action Plan for Landowners

To protect your property while complying with the law:

• Put It in Writing
• Always sign a written grazing agreement.
• Include grazing boundaries, stock numbers, duration, renewal terms, and land care duties.
• Be Clear and Consistent
• If grazing is not allowed, or if terms are breached, issue written notices promptly. Delays can create tacit consent.
• Monitor Land Use
• Regularly inspect grazing practices. Agreements should allow you to reduce livestock numbers if overgrazing occurs.
• Seek Legal Guidance

ESTA law is complex. Before making changes or heading to court, consult a lawyer with experience in land tenure and the Land Claims Court. At SBL Inc., we guide landowners through proactive planning and litigation to ensure their rights remain protected.

Final Word

The Moladora Trust case makes it clear: under ESTA, a right to live on land can also include the right to use it, such as for grazing. Both express and tacit consent create legal protections. By formalising agreements and acting early, landowners can secure their rights while treating residents fairly.

At SBL Inc., we help landowners turn legal knowledge into practical protection, ensuring your farm’s future stays firmly in your hands.