Minister of Department of Rural Development and Land Reform and others v Selahle

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Muvangua AJ
• Judgment Date: 25 November 2022
• Docket Number: LCC137/2022
• Hearing Date: 15 November 2022
• Court: Land Claims Court

Muvangua AJ:

INTRODUCTION:

1

The application before me was brought on an urgent basis, in terms of rule 34 of the Rules of this Court. It is in substance for an order interdicting the first to the ninth respondents (whom I will refer to as "the respondents" in this judgment) from occupying, demarcating, fencing or dealing in any manner with the land situated on the farm Thionville 305KT, held under Title Deed No.:T20236/1975PTA Fetakgomo Tubatse Local Municipality, Limpopo Province ("the farm").

2

The applicants also seek an order directing the respondents to demolish and remove all structures, fences and everything else that has been erected on the

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farm. The founding affidavit explains that the demolition order does not include "households that have already been erected or build as permanent structures".

3

Counsel for the applicants clarified during oral arguments that the order sought is against the first to the ninth respondents. The tenth respondent is cited in their official capacity should their assistance be required. This judgment and order will therefore be brought to its attention. The eleventh respondent is similarly cited in its official capacity as the Municipality with jurisdiction.

4

The interdict against the respondents is sought pending the finalisation of certain competing land claims, under reference numbers: KPR 2318, KRP 5873 and KRP 2208.

BACKGROUND:

5

The background facts are as follows: on or about 24 August 2022, the applicants became aware that the respondents, among them some of the land claimants, were dividing and sub-dividing the farm and erecting temporary structures and fences on the farm, without having given the Commissioner written notice, as required by Section 11(Aa) of the Restitution of Restitution Act 22 of 1994 ("Restitution Act").

6

The applicants argued that the unlawful invasion and sub-division of the farm would be prejudicial to rights of land claimants to restoration and would obstructing the objects of the Restitution Act.

7

The prejudice, according to the applicants, is anchored on three pillars:

7.1

The first was that by the time that the land claims are finalised, it might not be possible to restore the land to the lawful beneficiaries if it has been developed and occupied.

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7.2

The second was that the rate of the division and subdivision of the land, and the speed at which structures were being erected would make it difficult to restore the farm to the state that it was in when the claims were lodged.

7.3

The third was that it would be practically impossible to evict people who unlawfully occupied the farm.

8

The applicants sought an order effectively evicting the respondents from the farm forthwith. However, during oral argument, counsel for the applicants conceded that this court does not enjoy the power under the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act 19 of 1998 ("PIE"), to evict unlawful occupiers, and that her clients would seek an order for their eviction under PIE in due course and in the appropriate forum. This concession was correctly made.

9

The upshot of the reasons for the prejudice that the applicants allege is that it would be difficult for the applicants and/or the lawful beneficiaries of the farm to reverse the consequences of the unlawful invasions, as well as the division and sub-division of the farm at a later stage and hence the necessity for the interdict.

10

The first to the fourth respondents opposed the application. They accepted that their conduct was unlawful, but asked the court to interdict future occupation, demarcation, sub-dividing and fencing of the farm, pending the finalisation of the land claims. They argued that an order requiring them to demolish and remove all structures, fences and everything else that was erected on the farm would prejudice all members of the community because they have...