Basfour 3327 (Pty) Ltd v Thwala and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Flatela J
• Judgment Date: 11 September 2023
• Citation: 2023 JDR 3445 (LCC)
• Hearing Date: 10 August 2023
• Docket Number: LCC160/2017B

Flatela J:

Introduction

[1]

On 30th June 2023, I delivered a judgment dismissing the Applicant’s application to have the construction of an unauthorized structure or dwelling by the Respondents be declared unlawful. The application also sought that the Respondents be ordered to demolish the unlawfully constructed structure within 10 (ten) days from date of judgment. Furthermore, the respondents were to be ordered to remove all building materials for purposes of constructing the unlawful structure within 2 (two) weeks from date of judgment and in failure of the Respondents removing the building materials, then the Sheriff of the district be authorized to demolish the unlawfully constructed structure or dwelling and to also remove all building materials of the dwelling on the Applicant’s farm. The Applicant’s last prayer was that the Respondents be held to be in contempt of Judge Ncube’s order under case number LCC160/2017 and dated 5 October 2022.

Background context

[2]

The genesis of this application is comprehensively captured in the main judgment I delivered on 30th June 2023 under case number 160/2017B. I do not intend to be as comprehensive here seeing that this is a judgment on mere leave to appeal. However, a brief background context will suffice. On the 9th of June 2017 the Applicant approached this Court on an urgent basis seeking an order declaring a structure that the respondents were building on the Applicant’s property without his consent unlawful. The Applicant also sought a prohibitory interdict against the Respondents from constructing a new structure without the express written permission of the Applicant or the person in charge. The litigation dragged on for five years with several orders being granted for the Applicant against the Respondents, or in attempt to have the subject issue of the litigation be resolved by the parties on their own amicably. Meaningful engagement failed between the parties and the Respondents continued to erect and build the structure without the Applicant’s consent. The matter finally became settled by Judge Ncube on 5 October 2022 wherein he gave orders in favour of the Applicant, wo are worth mentioning. The first

2023 JDR 3445 p3

Flatela J

was that the structure was declared unlawful, and the Respondents had to demolish the same within 10 (ten) days from the service of the order to them. The second was that the Respondent were prohibited and restrained from building entirely new dwellings or structures on the farm U[. . .] [. . .] his without the Applicant’s or person in charge express written permission.

[3]

On 13 April 2023, the Applicant noticed that a substantial amount of building materials, such as river sand and building blocks, were delivered to the Respondents’ homestead. Upon inspection of the homestead, the Applicant found that the Respondents had started constructing an entirely new dwelling structure on the farm, with brick and mortar, without his consent. On 17 April 2023, the Applicant instituted contempt of court proceedings on an urgent basis under case number 160/2017B for inter alia, a declarator that the Respondents are in contempt of paragraph 2 of Judge Ncube’s judgment. I granted an interim order interdicting the Respondents from continuing with the building of the structure till such time the matter is decided.

[4]

The matter served before me on 17 April 2023 on an urgent basis. In the Applicant’s main application as per his Notice of Motion, he sought the following orders:

Prayer 2: That it be declared that the construction of the unauthorized dwelling or structure by the Respondents on a portion of the farm Uitkyk 121 HS. . ., as depicted on annexures “A” and “B” hereto, unlawful.

Prayer 5: That the Respondents are ordered to demolish the unlawfully constructed building on the farm within 10 (ten) days from date of this order being granted.

Prayer 6: That the Respondents [be] ordered to remove all building material for purposes of constructing the unlawful building on the farm within 2 (two) weeks after the date of this order.

2023 JDR 3445 p4

Flatela J

Prayer 7: That the Sheriff [of the district be] authorized to demolish the unlawfully constructed building and to remove all building material on the farm in the event the Respondents fail to comply with paragraphs 4 and 5 above.

Prayer 8: a declaratory order declaring that the Respondents are in contempt of [Judge Ncube’s order dated 5 October 2022].

[5]

I characterized the application as a contempt of court application and held that if I find that the Respondents are not guilty for the crime of being in civil contempt of court, the Applicant’s prayers as put above but excluding prayer 8, fall away. I held that the Applicant’s prayer 2, 5, 6, and 7 were contingent on I find for the Applicant in terms of prayer 8. Therefore, I approached these prayers as consequential relief to prayer 8. However, in the judgment I also held that even if I were to treat prayer 2 as independent relief sought from the alleged contemptuous conduct of the Respondents, this Court would be nonsuited to grant the application because of the interest of justice, this I elaborated in the last paragraph 66 of the main judgment.

The Applicant’s arguments

[6]

The Applicant now contends that to treat have treated his application as a contempt of court application was an incorrect understanding of the application in that the application was not a mere contempt of court application, but rather an application to have the new structure being constructed by the Respondents declared unlawful. The consequential relief therefrom, subject to the Court’s exercise of its discretion, was prayers 5, 6, 7. These prayers, so the Applicant contends, were independent from prayer 8 and should have been dealt as such. Prayer 8 was but one of the orders sought by the Applicant but not the mainstay of his application. Therefore, so the Applicant contends, my finding that these prayers were contingent on a positive finding in favour of the Applicant in terms of prayer 8, that is, finding the Respondents in contempt of Judge Ncube’s order of 5...