The Supreme Court of Appeal (SCA) ordered a family to demolish a brick-and-mortar structure they constructed on a farmer’s property without permission.

In 2006, Basfour, the current owner of the farm, purchased the land. At that time, a family was already living there with permission from the previous owner.

The family occupied a cluster of homesteads built of mud walls and corrugated iron. The bulk of the homesteads were used for dwelling purposes, except for two. One structure was used for traditional ceremonies, and the other, as a storeroom. 

In June 2017, Basfour’s employee, Louis De La Rey Hattingh, discovered that the family was erecting a new brick-and-mortar structure without Basfour’s consent. After the family refused his requests to halt construction, Basfour turned to the Land Claims Court (LCC), successfully obtaining an interim order prohibiting further building work on the property.

Before the parties could return to court, the LCC made several unsuccessful attempts to mediate the dispute between the parties until the interim order expired.

In court, some members of the family testified that Hattingh had brought to their attention that they were not supposed to build new structures on the farm without Basfour’s consent. However, they maintained that officials from the Department of Rural Development and Land Reform advised them that they did not need any permission from Basfour to make their homesteads habitable.

They further contended that since they were improving an old and dilapidated mud structure, they were entitled to build a new structure without Basfour’s consent. 

The court concluded that the family was not entitled to construct an entirely new structure without Basfour’s consent. The order was granted in October 2022, however, the family failed to comply with the order.

Their conduct led to the sheriff demolishing the 2017 structure in March 2023 following a warrant of execution authorised by the LCC in February 2023.

In April 2023, hardly a month after the sheriff demolished the 2017 structure, the family, without consulting Basfour, demolished the storeroom as well as one structure used for traditional ceremonies and constructed another brick-and-mortar structure.

Another legal battle ensued and for the second time, an interim order was issued prohibiting the family from continuing with the structure.

When the matter went to court, they denied that their conduct was unlawful, stating that they had demolished the mud structure and can rebuild their home to be habitable.

The LCC dismissed Basfour’s application and accepted the family’s explanation that they were entitled to erect new structures in the same place where they had demolished the mud structures.

Disenchanted, Basfour sought relief at the SCA and argued that the 2023 structure was unlawfully erected and should be demolished. Furthermore, it was submitted that the family had erected the structure without procuring and submitting building plans.

During the hearing, SCA Judge Anna Maleshane Kgoele recognised the family’s argument regarding the need for improvements to the mud structures. However, she emphasised that it was essential to engage constructively so that both parties could agree on what is reasonable and necessary.

Judge Kgoele said the lack of engagement renders the erection of the structure unlawful. In addition, she said the presence of the structure inhibits the farmer cultivating in the land. Therefore, ordering compensation in the matter would not be appropriate.

Regarding the possible hardships that would be faced by the family, she said the family was improving a structure that was used as a storeroom and another for traditional ceremonies. As a result, the demolition would not leave them homeless, and they would not face significant hardship.

“Sight should not be lost of the fact that the respondents (family) did not comply with the earlier order. They proceeded for a second time, without acting in good faith and in an attempt to circumvent the appellant’s rights (farmer), to build without engaging him,” said the judge.

The family has been ordered to demolish the structure and remove all the building material gathered for the purposes of constructing the structure within 30 days.

If the family fails to comply with the court order, the sheriff is authorised to demolish the structure and remove all building material on the farm.

sinenhlanhla.masilela@iol.co.za

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