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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LAND COURT OF SOU TH AFRICA
HELD AT RANDBURG
CASE NO : LCC 41/2024
Before: Honourable Ncube J
Heard on: 26 November 2024
Delivered on: 26 February 2025
In the matter between:
ZIMK HONA JOHN SKOSANA 1st Applicant
ABRAM SKOSANA 2nd Applicant
SKOSANA FAMILY 3rdApplicant
and
FERREIRA JOSE 1st Respondent
MAGISTRATE BHM MASHELE NO 2nd Respondent
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THE MINISTER: DEPARTMENT OF AGRICULTURE
AND LAND REFORM 3rd Respondent
COMMISSION ON RESTITUTION OF LAND RIGHTS 4th Respondent
ELIAS MOTSOALEDI LOCAL MUNICIPALITY 5th Respondent
NDEBELE TRADITIONAL COUNCIL 6th Respondent
ORDER
1. The Application for Condonation by the First Respondent is
granted.
2. A Rule Nisi granted against the First Respondent on 20 March
2024 is discharged.
3. The Application for Restoration of Residence is dismissed.
4. There is no order as to costs.
JUDGMENT
NCUBE J
Introduction
[1] This is an application for restoration of posse ssion of residence in terms of
section 14 ( 1) of the Extension of Security of Tenure Act 62 of 1997 (‘’the Act ’’). The
Applicants allege that the First Respondent unlawfully deprived the m of their
residence in their home. The Applicants also claim restoration of access to related
services and compensation for damage d belongings. The application is opposed by
the First Respondent. The Second Respondent filed notice to abide by the decision
of the court . It is not clear from the papers if the rest of the Respondents oppose this
application as they have not filed noti ce to participate. The Application was brought
on urgent bas is, and it is divided into two parts. Part A i s application for restoration
of residence. Part B is the application for review of the protection order granted by
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the Second Respondent (‘’the Ma gistrate’ ’) against the Applicants on 17 April 2023.
This judgement is concerned with Part A only. Part B of the application was
adjourned sine
die.
[2] Having read the papers and other documents filed of record, I was of the view
that the allegation, if proved, render the matter urgent. I there fore condoned Non –
compliance with the Rules relating to service , form and time limits and I issued
directive s pertaining to filing of further documents. I issued a Rule Nisi calling upon
the First Respondent to show caus e on 16 May 2024 why an order in terms of
paragraphs 2 .1 to 2 .7 of the Applicants’ Notice of Motion should not be made. I
further granted an interim interdict against the First Respondent with regard to
restoration of residence , rebuilding of structures demolished and access to certain
services. The directive s were constantly amended in order to accommodate the
First Respondent with the filing of the Answering Affidavit which was not forthcoming.
Parties
[3] The First Applicant is Zimkhona John Skhosana (‘’John’’) who represent s the
Skhosana Family in these proceedings. Sergent and Abram Skhosana are John
siblings. Their father is Juda Elias Skhosana(“Elias”). Their mother is Stella
Johanna Mudau (“Johanna”). The First Respondent is Ferreira Jose (‘’Mr Jose’’)
who is the registered owner of Portion 2 […] of the Farm Mapochgronde 500 (“the
farm”) Middelburg Mpumalanga Province. The Second Respondent is Magistrate
Mashele(“ the magistrat e”) who is cited herein in his official capacity. The Third
Respondent is the Minister of Agriculture , Rural Development and Land Reform.
The Fourth Respondent is the Commission on Restitution of Land Rights. The Fifth
Respondent is the Elias Motsoaledi Local Municipality on whose area of jurisdiction
the farm is situated. The Sixth Respondent is the Ndebele Traditional Council.
Factual Background
[4] Elias had a house on the farm, and he was staying there with his family. Mr
Jose and his wife bought the farm in 2019, and it was registered in their name on 3
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December 2021. Before Mr Jose bought the farm, he and his wife visited the fa rm
for inspection on eighty -five (85) occasions and only found Elias at his home on the
farm. Elias passed away on 9 April 2021, Elias’s wife, Johanna predeceased Elias.
From 29 January 2022 to 19 March 2024 , when Mr Jose and his wife visited the
farm, they took photos of the house structures which belong ed to the Skhosana
family. Elias lived on the farm in question till 2016 when he left the farm to stay with
the John due to illness.
[5] On 17 April 2023, John and Abram were summoned to appear in Roossonekal
Periodical Court where they met Mr Jose and his wife. Mr Jose and his wife had
lodge d an application for a protection order against John and Abram . The
Magistrate granted the protection order against them . In term s of the protection
order, John and Abram were prohibited from breaking Mr Jose’s property. They
were prohibited from entering Mr Jose’s property with out prior arrangement or
without contact ing the Jose family. They were also prohibited from harassing and
threatening the Mr Jose and his wife. The protection order was granted in terms of
the Protection from Harassment Act1
[6] The First Respondent took pictures of house structures which according to Mr
Jose , were unoccupied and dilapidated . Mr Jose demolished th ose structure s. Prior
to demolition and on 9 May 2023, Mr Jose attorney wrote to John and Abram
reminding them of the terms of the protection order and advising them to remove
their deceased parents ’ belongings which were still on the farm. John and Abram
were informed in the letter to remove the belongings on or before 30 June 2023 and
that if the belo ngings were not removed by 30 June 2023 the owner would remove
and dump them on the road. The Skhosanas were also given permission to break
down the st ructures w hich their deceased parents occupied and remove the building
material. They were informed further , that if they failed to demolish the said
structures , the owner s were going to demolish them.
[7] Paragraph 8 of the letter calls upon the applicants to contac t the attorney by no
later than 15 June 2023 in case the applicants had questions or in case they wanted
to make representations. They were informed that if they did not respond, it would
1 Act 17 of 2011
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be assumed that they did not want to make representation s. On 31 M ay 2023,
Lawyers for Human Rights wrote a letter to Mr Jose on behalf of the Applicants
complaining about alleged atrocitie s committed by the Mr Jose against the
Applicants at the same time threatening to take the matter to court on urgent basis in
case Mr Jose did not comply .
[8] On 09 June 2023, Mr Jo se’s Attorneys responded to Lawyers for Human Rights ’
letter dated 31 May 2023. In paragraph 8 of the Attorneys' letter, it is stated that a
protection order was granted against Abra m and John. It i s also stated in the
response letter that no member of the Skosana family was staying on the farm.
Paragraph 9 of the letter alludes to the fact that only the parents of Abra m and John
resided on the farm before their demise. In paragraph 10 , John and Abra m were
called upon to remove their deceased parents’ belongings before 30 June 2023 or
failing which, the owners of the farm were going to remove the same and dump on
the road. John and Abra m were also called upon to demolish the, house stru ctures
and salvage the building material, before 30 June 2023, failing which the owner
would demolish those structures and remove the building material. There was no
response.
[9] On Tuesday 12 March 2024 , a WhatsApp message was sent reminding people
to remove the deceased’s parents’ belongings otherwise the belongings would be
regarded as abandoned and will be put on the street. Again, there was no response.
On 10 January 2024 , Mr Jose removed the parents ’ belonging from two structures
and stored the m in a stone structure. On 16 January 202 4 Mr Jose then
demolished the first two structures. On 19 March 2024 Mr Jose and his wife
removed the parents’ belongings to the street and demolished the stone structure.
Legal Matrix
[10] The main issues as I see them are whether the Applicants were occupiers in
terms of the Act. If the Applicants were occupie rs, the question is whether they were
in peaceful and undisturbed occupation of the land and demolish ed structures and
finally whether Mr Jose evicted them from the land, thus unlawfully depriving them of
their right of possession or occupation .
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[11] The Act defines the occupier as meaning :
“a person residing on land which belongs to another person, and who, on 4
February 1997, or thereafter, had consent or another right in land to do so, but
excluding ------
(a) ……………………………………..
(b) a person using or intending to use the land in question mainly for industrial,
mining, commercial or commercial farming purpose s, but including a person
who works the land him self or herself and does not employ any person who
is not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount”
For purposes of this judgement, it is important for the Applicants to establish
that they were residing on the farm in question. In terms of the Act, to reside
means to live at the place permanently and residence has a corresponding
meaning. I also do not have the evidence of the applicant s’ income in order for
them to qualify as occupiers in terms of paragraph (c) of the definition. The
prescribed amount at the present moment is R13 625 - 00.
[12] A person claiming to be an occupier has a duty to prove that he complies
with all the components of the definition of an ‘occupier ’ in terms of the Act.
The income of a person claiming to be an occupier falls within that person’s
peculiar knowledge2. In Pieterse v Venter and Another3 Classen J writing for
the Full Court said:
“The absence of any evidence as to appellant’s monthly income sounded the
final death knell to his defence. In fact, Mr Botha acknowledged this fact in a
concession contained in paragraph 3.27 of his heads of argument. The
appellant did not disclose his income and had not discharged the onus to
show that he is an ESTA occupier. The court a quo therefore correctly found
that he is not an ESTA occupier”
2 See Sikhosana and Others v Roos t/a Roos se Oord and Others (LCC50/99) [1999] ZALCC22 (10 May 1999)
3 ( A5016/2011[2012] ZAGPJHC7(10 February 2012)
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[13] Apart from lack of evidence pertaining to the Applicant s’ income , the issue of
the Applicants’ residence on the farm at the time of demolition of the structures and
locking of the gates is highly contested. In his Founding Affidavit, John states t hat
currently, he resides at 1 […] S[…] AA, K wa-Mhlanga. There is no ind ication as to
when he started residing at that address. At paragraph 24 of his Founding Affidavit,
John describes that residence as temporary accommodation which has not been
stable since the 17th of April 2023 , being the date of their eviction from the f arm.
However there is no indication as to who is the owner of that residence . Mr Jose , in
his Answering Affidavit, contents that no one was residing on th at farm since 2016.
John states in his Founding Affidavit that the Skosana Family was residing on t hat
farm till 17 April 2023 when they were evicted.
[14] According to witnesses Pet Bhuda and Aubrey Mahlangu, the Applicants had
left the farm sixteen (16) years ago. According to witness Mr Pieter Muller, John
only came to the farm, to visit the gr aves. In his Replying Affidavit, John has avoided
to comment on the version of Mr Muller that he told Mr Muller that Elias , who was the
only person residing on the farm ha d left the farm between 2014 or 2015 and went to
stay with his family somewhere as he was sick. I am mindful of the affidavits of Mr
John Masango, Wilham Makau, Hlophi Skhosana and William Buda. These
affidavits are not helpful. John Masango states in his affidavit that Skhosana family
has been res ident on the farm since he was born till 2024. However, according to
John , in 2024 the family was no longer residing on the farm since they were evicted
on 17 April 2023. According to the other witnesses, the new owner locked the gates
in 2021. This co ntradicts the evidence of John who says they were evicted on 17
April 2023 , the date , according to him, on which the gate was closed .
[15] In any event, on the Applicants’ own version, they have not been residing on
the farm since 17 April 2023. The Applicants left the farm because in terms of the
Protection Order, they are prohibited from entering the farm. They did not appeal the
protection order so it still stands until it is set aside by a competent court of law.
Section 165(5) of the Constitution4 provides:
4 Act 108 of 1996
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“ (5) An order or decision issued by a court binds all persons to whom and
organs of state to which it applies”
In my view, the Applicants should have challenged the Magistrates Protection Order
first. Part A of this application should have been the challenge to the Protection
order . The problem is that the review of th e protection order , is Part B of this
application and it has been adjourned sine die .
[16] Cell Phone data for the last three years wh ich Mr Jose obtained from Vodacom
and MTN service providers , shows that the majority of calls and message’s made
and received by John and Abram respectively, originated from Kwa -Mhlanga and
Mamelodi. The Applicant s registered themselves in National Elections , giving their
residential addresses as being Kwa -Mhlanga (1st applicant), Mamelodi (2nd
applicant) and Emalanhleni Witbank (3rd applicant). The Applican ts registered their
phones with service providers in terms of RICA. The information shows that John
has been residing at Kwa -Mhlanga since 2014 and Abram has been residing at
Mamelodi since 2010. I am also alive to the evidence of the expert witness Mr Kusel
indicating that at a certain stage, there was no indication that there were people
residing at the Applicants’ homestead.
Restoration of Residence
[17] Section 14 of the Act deals with restoration of residence5 and it provides:
“ A person who has been evicted contrary to the provisions of this Act may
institute proceed ings in the Court for an order in terms of subsection (3)”
Section 3 provides –
“ In proceedings in terms of subsection (1) or (2 ) the court may, subject to
the conditions that it may impose, make an order -
(a) for the restoration of residence on and use of land by the person
concerned; on such terms as it deems just;
5 My own emphasis
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(b) for the repair, reconstruction or replacement of any building, structure,
installation or thing that was peacefully occupied or used by the person
immediately, prior to his or her eviction, in so far as it was damaged,
demolished or destroyed during or after such eviction;
(c) for the restoration of any services to which the person had a right in terms
of section 6 ;
(d) for the payment of compensation contemplated in section 13;
(e) for the payment of damages including but not limited to damages for
suffering or inconv enience caused by the eviction; and
(f) for costs.”
In all the circumstances mentioned in subsection 3, the emphasis is on
residence. The Applicants should have been resident on the farm.
Disputes of Fact
[18] It is clear that there is a genuine dispute of fact on the issue of residence. This
dispute of fact should have been foreseen by the Applicants and they should have
applied for referral of their application to oral evidence or trial. In Robert Victor
Benyo n v Rhodes University and Another6 Lowe J, with regards to factual
disputes, expressed himself in the following terms:
“In Plascon -Evans Paint Ltd v Van Riebeck Paints(Pty) Ltd [1984]
ZASCA51;1984(3) SA 623(A) 634 -635, the rule was established that where in
motion proceedings disputes of facts arise on the affidavits, a final order can be
granted only if the facts averred in Applicant’s affidavits, which the Resp ondent,
together with the facts alleged by the latter, justify such order. It may be different
if the Respondent’s version consist s of bold or uncreditworthy denials, raises
fictitious disputes of fact , is palpably implausible, farfetched or so clearly
untenable that the court is justified in rejecting them merely on the papers.
National Director of Public Prosecutor’s v Zuma 2009(2) SA 279 SCA [26]”
The disputes of fact in this case are so glaring that it makes it impossible for me to
grant the relief sought. One can only be thankful that the Applicants collected
their belongings from where they had been dumped .
6 95351/2016) [2016] ZAECGHC161921 November 2016) para 28
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Condonation
[19] Mr Jose filed an Answering Affidavit which did not contain the Commissioner ’s
certificate. The Applicants fil ed the Notice to Oppose the filing of that Answering
Affidavit. A fresh and properly commissioned affidavit was later filed by Mr Jose .
The Applicant s have replied to Mr Jose Answering Affidavit. The Applicants have
no qualms with Mr Jose condonation application .
Costs
[20] Mr Guldenpfenning SC, Counsel for Mr Jose asked me to dismiss the
application with costs including cost s of Senior Cousel. The practice in this court is
not to award costs unless there are special circumstances whic h warrant an award
of costs. There are no special circumstances in this case which warrant an award
of costs.
Order
[20] In the result, I make the following order:
5. The Application for Condonation by the First Respondent is
granted.
6. A Rule Nisi granted against the First Respondent on 20 March
2024 is discharged.
7. The Application for Restoration of Residence is dismissed.
8. There is no order as to costs.
________________________
NCUBE J
Judge of the Land Court of South Africa
Appearances:
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For the Plaintiff s: Adv D. Sono
Instructed by : Legal Aid South Africa
Emalahleni Local Office
For the Defendants : Adv S. Guldenpfenning SC
Instructed by : Van Dyk Theron Inc Attorneys
Kings Highway
406 Lynwood
Pretoria
Heard: 26 November 2024
Delivered on: 26 February 2025