Basfour 3327 (Pty) Ltd v Thwala and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Flatela J |
| Judgment Date | 30 June 2023 |
| Citation | 2023 JDR 2639 (LCC) |
| Hearing Date | 09 June 2023 |
| Docket Number | LCC 160/2017B |
Flatela J:
2023 JDR 2639 p2
Flatela J
Introduction
This is a contempt of court application against the Respondents for failing to comply with Judge Ncube’s order granted on 5 October 2022 under case number 160/2017 (the main Application). The Applicant also seeks an order that the Respondents be sentenced to an appropriate term of imprisonment; If suspended, such suspension should be for 5 (five) years on condition that they do not again during that period of suspension contravene paragraphs 2,3 and 4 of Judge Ncube’s orders.
On 9 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. An interim order was granted on 9 June 2017 against the Respondents. The Respondents opposed the Application.
In opposition, the Respondents contended that they were entitled to build the structure without the Applicant’s consent as they were merely improving the dilapidated, old mud houses in which they lived. The matter was referred to trial after the parties failed to engage meaningfully.
On 5 October 2022, after considering the matter, Judge Ncube granted the following order:
It is declared that the construction of an entirely new dwelling or structure by the Respondents on a portion of the farm U [. . . .] [. . . .] HS, in the District of Volksrust, Mpumalanga without consent of the Applicant or person in charge, is unlawful.
The Respondents are prohibited and restrained from building entirely new dwellings or structures on the farm U [. . . .] [. . . .] HS, without the express written permission of the Applicant or person in charge.
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Flatela J
The Respondents are prohibited and restrained from proceeding with the construction of the entire new dwelling or structure on the farm U [. . . .] [. . . .] HS.
The Respondents are prohibited and restrained from enabling or assisting an unauthorized person from establishing entirely new dwellings on the farm U [. . . .] [. . . .] HS, without the express written permission of the Applicant or Mr. Hatting as a person in charge.
The Respondents are ordered to demolish the unlawfully constructed building foundation on the farm U [. . . .] [. . . .] HS, within ten (10) days from the date of service of this order upon them.
The Sherriff for the District of Volksrust is authorized to demolish the unlawfully constructed building foundation should the Respondents fail to comply with paragraph 5 of this order.
There is no order as to costs.
The recent conduct of the parties
On or about 13 April 2023, the Applicant noticed that a substantial amount of building materials, such as river sand and building blocks, were delivered to the Respondent’s homestead. Upon inspection of the homestead, the applicant found that the Respondents had, yet again started constructing an entirely new dwelling structure on the farm, with brick and mortar, without his consent.
On 17 April 2023, the Applicant instituted these 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.
2023 JDR 2639 p4
Flatela J
The Respondents admit they have started to build a house on the property to improve their living conditions. However, they deny that their actions amount to contempt of Court; they contend that they align themselves with Ncube J’s judgment.
At issue in this matter is whether the respondents are in contempt of Judge Ncube’s order.
Parties
The Applicant is BASFOUR 3327 (PTY) LTD, a company duly registered and incorporated in terms of the Company Laws of the Republic of South Africa and with a registered address at 24A Taute Street, Ermelo, Mpumalanga Province. The Applicant is the registered owner of the Remaining Extent of Portion 7 of the Farm Uitkyk 121, registration division HS, district Volksrust, Mpumalanga Province (hereinafter, “the Farm”).
Mr. Louis De La Rey Hattingh, an adult businessman, director, and shareholder of the Applicant, deposed to the Applicant’s founding affidavit.
The first Respondent is Robert Thwala, and 63 years of age, he came to live with his parents on the farm in 1991 when he was 22. He regards the farm as his home.
The second Respondent is his sister, Lucy Thwala. Although the evidence suggests that she did not immediately move to the farm with her parents, she has been living on the farm openly for over three years.
The third and fourth respondents are the first Respondent’s children. They regard the farm as their home.
In the main Application, Judge Ncube held that the respondents are Occupiers as envisaged by ESTA.
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Flatela J
Factual Background
The facts of this matter are summarized by Judge Ncube in the main Application. I do not intend to repeat them here, but I will briefly summarize them for context. The Applicant is the registered property owner. He became the property owner in 2008.
In 1991, the first and second Respondent’s late parents and their children were granted consent to reside on the farm by Mr. Jan De Beer, the previous farm owner, when their father, Kantoor Thwala, arrived at work. The first and second Respondent’s mother, the late Lethy Khanyi, was cited as the fourth Respondent in the main Application. The Thwala family occupied a cluster of homesteads on a portion of the farm. The homestead consisted of mud structures which Ncube J later found to be inhabitable. Mrs. Thwala passed away in 2018.
On 25 October 2018, Barnes AJ issued a second order (the “engagement order”) in terms of which, the parties were ordered to engage with one another and to try and resolve the dispute. The engagement would include the use of the services of a mediator if necessary. The parties failed to engage each other meaningfully as ordered.
On 31 October 2019 this Court issued a third order (the referral order) in which the disputed issues were referred for hearing to oral evidence.
The trial commenced in 2022. The Respondents opposed the main application on one ground, namely that they were entitled to build a new structure to improve the existing mud structures which were debilitated and inhabitable. The Respondents conceded that they had built the new structure without permission from the Applicant; however, they contended that the Department of Rural Development and Land Reform officials advised them that they could build the new structure in the designated area in their homestead. They contended that since they constructed the new structure to improve the old mud houses they required no consent from the Applicant. For this
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Flatela J
proposition, the Respondents relied heavily on the Constitutional Court’s decision in Daniels v Scribante and Another. [1]
Before the trial, the Court and all the parties conducted an inspection in loco on the farm, and the Court’s findings are reflected in paragraphs 9 and 10 of the judgment, which reads as follows:
Inspection in Loco
On 24 January 2022, an inspection in loco was held at the farm with the Court and all parties present. The parties prepared the joint record of the inspection in loco. That joint record was handed in and marked exhibit “B.” A cluster of mud houses with corrugated iron was observed. The mud houses are very old, with cracks in the walls. The corrugated iron roof is held tight with rocks on top in order to prevent the roof from being blown away by the wind. Photographs of all the mud structures and brick and mortar foundations were taken and depicted on the inspection record in loco.
The mud houses depicted on the photographs and observed at the scene are unsuitable for human habitation. Those mud houses are also not in keeping with human dignity, guaranteed and enshrined in our Constitution. The cracked walls and loose iron roof pose a danger to the occupants of those houses.
Judge Ncube rejected the Respondent’s reliance on Scribante. He held that Scribante is no authority for the proposition that an Occupier can build new structures on the farm without the consent of the owner or person in charge. The learned Judge held that Scribante concerned itself with improving an existing structure, in the case of improvements, Scribante requires meaningful engagement between the Occupier and the owner or person in charge therefore the Occupier does not have an untrammeled right to effect improvements to a property, but s/he is entitled to effect
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improvements reasonably necessary to render his/her dwelling habitable in conformity with his/her rights to human dignity.
The Court’s finding was made notwithstanding its observation immediately recorded in the succeeding paragraph of the above finding, that:
In casu, the existing mud structures are clearly old and have cracks on the walls. The corrugated is iron roof pressed down with rocks on top. Occupation of those structures is clearly not in harmony with the Respondents’ right to human dignity. Had the Respondents demolished the mud structures, levelled the same site, and rebuilt the same, strong, and durable structure using concrete or cement blocks, they would have brought their structure within the meaning of improvements which render the structure habitable and concomitant with their right to human dignity. This they could do even without the consent of the Applicant or...
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