Prinsloo NO and others v Ngcongwane
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Ncube J |
| Judgment Date | 21 July 2023 |
| Citation | 2023 JDR 2703 (LCC) |
| Hearing Date | 14 June 2023 |
| Docket Number | LCC39/2009B |
| Court | Land Claims Court |
Ncube J:
Introduction
This is a two-fold application. Firstly, the applicants seek an interdict in a form of mandam us against the respondent directing her to demolish a structure which the respondent erected on her homestead without the consent of the applicants. Secondly, the applicants seek an order declaring the respondent to be in contempt of this court’s order of 4 May 2010, in terms of which the respondent was ordered not to construct further dwellings on the Reenenshoop farm (“the farm”) without the prior written permission of Joachim Johannes Prinsloo (“Mr Prinsloo”) or any other person authorised by him. The order was obtained by consent between the parties. Both parties were legally represented. The respondent opposes the application on the basis that the court order of 4 May 2010, was not explained to her in her language which is IsiZulu. On the allegation of building without consent from the applicants, the respondent makes a bare denial which is not substantiated.
Background Facts
The respondent (“Mrs Ngcongwane”) arrived at the farm with her now deceased husband (“Mr Ngcongwane”) in 1990. The owner of the farm by then was one Mr Hugo Wessels. (“Mr Wessels”). Mr Ngcongwane was working for Mr Wessels, earning
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hundred rand (R100,00) per month. Mr Wessels allowed Mr Ngcongwane to establish a home and stay with his family on the farm and he had consent to keep cattle. Mr Wessels, was Mr Prinsloo’s father in law. Mr Wessels died in April 1991. Mr Ngcongwane continued working on the farm until December 2007 when he passed away, leaving behind his wife Mrs Ngcongwane and children. One Johannes Urbanus Geldhenhuys (“Mr Geldhenhuys”) took over the operations on the farm after the death of Mr Wessels. Mr Ngcongwane continued working under Mr Geldhenhuys and at that time he was earning three hundred rand (R300,00) per month.
On 4 May 2010, the applicants obtained an order against Mrs Ngcongwane from the Land Claims Court, for her to remove all the cattle in excess of the number of ten. In terms of the court order, if Mrs Ngcongwane failed to remove livestock mentioned in the order, the sheriff was authorised to remove the livestock and take it to the place pointed out by Mrs Ngcongwane or if no such place was pointed out, the sheriff would take livestock to the pound. In terms of paragraph 8 of the court order, Mrs Ngcongwane was ordered not to construct further dwellings on the farm without the prior written permission of Mr Prinsloo or any other person authorised by him. Paragraph 11 of the court order records that the court order was explained and interpreted to Mrs Ngcongwane who acknowledged that she understood the court order. The order was obtained by consent between the parties.
Despite the fact that the court order was explained and interpreted to Mrs Ngcongwane on 4 May 2010. On 18 May 2010, the Deputy Sheriff (“Mr Stols”), again served the order to Mrs Ngcongwane personally. On 8 February 2011, Mr Stols again served the same court order on Mrs Ngcongwane and then removed livestock
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mentioned in the court order, to a plot of land in Tshiame, belonging to one Mr Makeli Dlamini, being the place indicated by Mrs Ngcongwane to Mr Stols. On 25 April 2023, the Deputy Sheriff Hardy Duvenhage (“Mr Duvenhage”) served on Mrs Ngcongwane, a letter from the applicants’ attorneys instructing her to demolish the unlawfully constructed structure. Mr Duvenhage was making use of the services of an interpreter Mr Felix Mnguni from Ballet Security. Mrs Ngcongwane indicated that she understood the explanation.
Issues
The primary issues for determination are whether Mrs Ngcongwane has constructed a new structure on the farm without permission from Mr Prinsloo. The second issue is whether Mrs Ngcongwane was aware of the court order of 4 May 2010. The allegations are made in the founding affidavit that Mrs Ngcongwane has erected a building outside the original premises of her homestead but within the unlawfully extended homestead area. The allegation is that Mrs Ngcongwane would put up a structure and extend the fence of her homestead to cover that structure. In that manner, it would appear as if the newly erected structure is within her premises. Mrs Ngcongwane’s response to these allegations is a bare denial without further ado, putting the supplicants to the proof thereof.
On the second issue, Mrs Ngcongwane also tendered a bare denial and put the applicants to prove the allegations. However, she admits in her answering affidavit that there was a court order given against her in 2010, but she avers that the said court order was never explained to her in the Zulu language, which is the language she is conversant with.
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The Law
In my view, there is nothing much to say about the newly constructed structure outside Mrs Ngcongwane’s original premises. Mrs Ngcongwane has tendered a bold statement of denial without any substantiation whatsoever. The next point will be to look at contempt of court. The contempt of court sanction exists mainly in order to vindicate the rule of law and not just to punish the contemnor. Contempt of court is any act or omission...
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