Department of Mercantile Law

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Browsing Department of Mercantile Law by browse.metadata.advisor "Broodryk, Theo"

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    Developing a framework for mediating farm evictions and security of tenure related disputes in South Africa
    (Stellenbosch : Stellenbosch University, 2022-03) Roode, Nikita; Stander, Nikita; Broodryk, Theo; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: This dissertation is concerned with the lack of a proper framework regulating the mediation of farm evictions and security of tenure related disputes in South Africa. The Land Reform (Labour Tenants) Act, 3 of 1996 (‘the LTA’) and the Extension of Security of Tenure Act, 62 of 1997 (‘ESTA’) were enacted on 22 March 1996 and 4 February 1997, respectively, to specifically provide for the protection of the rights of residence of occupiers residing on agricultural land. Although these statutes contain occasional references to mediation, they do not provide a proper framework for the mediation of farm evictions and security of tenure related disputes. The uncertainty caused by the absence of a proper framework that regulates the mediation of farm evictions and security of tenure related disputes, legislative or otherwise, results in mediation being underutilised and ultimately has the effect that our courts continue to be inundated with evictions and security of tenure related applications. This is because it is unclear, for example, when disputes in terms of ESTA and the LTA may be referred to mediation; what the procedure is that should be followed during the mediation process; who bears responsibility for payment of the mediator’s costs; how the mediator should report on the outcome of the mediation; what the relevant mediation timelines are; and so forth. Farm eviction disputes usually involve poor, vulnerable and marginalised persons who stand to be left homeless and destitute by an eviction order. It is therefore vital that a clear and concise mediation framework be developed to facilitate the resolution of farm evictions and security of tenure related disputes without the parties necessarily having to resort to costly and time-consuming litigation. Ultimately, the purpose of the dissertation is to assist in developing a framework regulating the mandatory mediation of disputes instituted in terms of ESTA and the LTA. This will be achieved by comparing and analysing the legal position regarding the mediation of farm evictions and security of tenure related disputes in South Africa, including the mediation provisions and rules applicable in South African Magistrates’ Courts and High Court divisions, and the legal position applicable to mediation in the United States, Ontario, and Australia.