THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1008 /2023
In the matter between:
BASFOUR 3327 (PTY) LTD APPELLANT
and
ROBERT THWALA FIRST RESPONDENT
LUCY THWALA SECOND RESPONDENT
MINE NHLE MAHLANGU THIRD RESPONDENT
FEZEKA THOMO FOURTH RESPONDENT
SOUTH AFRICAN POLICE SERVICE,
VOLKSRUST FIFTH RESPONDENT
DEPARTMENT OF AGRICULTURE,
RURAL DEVELOPMENT AND LAND REFORM SIXTH RESPONDENT
Neutral citation: Basfour 3327 (Pty) Ltd v Thwala and Others (1008 /2023) [2025 ]
ZASCA 105 (18 July 2025 )
Coram: MAKGOKA , KGOELE and UNTERHALTER JJA
Heard: Disposed of without oral hearing in terms of s 19( a) of the Superior
Courts Act 10 of 2013 .
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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the jud gment
is deemed to be 11h00 on 18 July 2025.
Summary: Land tenure – Extension of Security of Tenure Act 62 of 1997 – right s
of occupier to make improvements to property – whether erected structure lawful
without consent of, or meaningful engagement with, the owner .
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ORDER
On appeal from: Land Claims Court, Randburg ( Flatela J sitting as court of first
instance ):
1 The appeal is upheld with no order as to costs.
2 The order of the Land Claims Court dismissing the appellant’s application is
set aside and is replaced with the following order:
‘1 The unauthorised brick foundation, and whatever building has taken
place upon that foundation, constructed by the first to fourth respondents,
which replaced the mud structures that served as a storeroom and a place for
traditional ceremonies on a portion of the farm Uitkyk 121 HS, in the district
of Volksrust, Mpumalanga (“the farm Uitkyk”), is declared unlawful;
2 The first to fourth respondents are ordered to demolish the unlawfully
constructed structure on the farm Uitkyk within 30 (thirty) days from the date
of this order;
3 The first to fourth respondents are ordered to remove all the building
material gathered for the purposes of constructing the unlawful structure on
the farm Uitkyk within 30 (thirty) days after the date of this order;
4 If the first to fourth respondents fail to comply with the orders in
paragraphs 2 and 3 above, the sheriff for the district of Volksrust is authorised
to demolish the unlawfully constructed building and remove all building
material on the farm Uitkyk.
5 Each party is to pay their own costs.’
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JUDGMENT
Kgoele JA (Makgoka and Unterhalter JJA concurring ):
[1] At the core of th is appe al lies a determination of whether a structure erected
on a farm without the prior engagement and consent of the owner of the farm is
lawful. If so, whether conseque ntial relief by way of demolition is just. The appeal
is against part of the order of the Land Claim s Court, Randburg ( the LCC) , per
Flatela J. That court dismiss ed an application by Basfour 3327 (Pty) Lt d (the
appellant) for, amongst other relief, an order declaring unlawful, a structure erected
by the first to fourth respondents (the respondents) on its farm . The appellant sought
its demolition . The appeal is with the leave of the LCC .
[2] The appeal was disposed of without oral argument in terms of s 19( a) of the
Superior Courts Act 10 of 2013 .1 The respondents’ heads of argument were filed
late. They applied for condonation therefor , whic h application the appellant did not
oppose. The application is granted.
[3] The appellant is the registered owner of the remaining extent of portion 7 of
the farm Uitkyk 121 HS (the farm) . The first respondent, Mr Robert Thwala and the
second respondent, Ms Lucy Thwala are the children of the late Mr K antoor Thwala
(Mr Thwala snr) and Mrs Lethy Khanyi (Mrs Khanyi) . The third respondent, Mr
1 Section 19( a) provides: ‘ 19. Powers of court on hearing of appeals
The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power as may
specifically be provided for in any other law -
(a) dispose of an appeal without the hearing of oral argument.’
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Minenhle Mahlangu and the fourth respondent, Mr Fezeka Thomo, are the first
respondent’s children. The fourth respondent was not residing on the farm; he only
visited occasionally. Mr Thwala snr was employed by a previous owner of the farm.
[4] When the appellant purchased the farm in 2006, Mr Thwala snr had already
passed awa y, but his widow, the late Mrs Khanyi , had permission from the previous
owner to reside on the farm. Therefore, when the proceeding s in th e matter
commenced in the LCC during 2017, the late Mrs Khanyi was a long -term occupier
as contemplated in Extension of Security of Tenure Act 62 of 1997 (‘ESTA ’). She
passed away in October 2018. The fifth and sixth respondents, are respectively, the
South African Police Service (Volksrust) and the Department of Agriculture, Rural
Development and Land Reform . No relief was sought against them, and they were
cited for any interest they might have had in the matter. They did not participate in
the proceedings a quo, nor in this Court.
[5] The late Mrs Khanyi , together with the respondent s, occupied a cluster of
homesteads on a portion of the farm buil t of mud walls and corrugated iron. The
bulk of the homestead s were used for dwelling purposes , except for two . One
structure was used for traditional ceremonies , and the other , as a storeroom .
[6] In June 2017, the appe llant’s employee , Mr Louis De La Rey Hattingh (Mr
Hattingh) , discovered that the resp ondents were erecting a new brick -and-mortar
house (the 2017 structure) on the farm next to the existing homestead , without the
appella nt’s consent. As ‘the person in charge ’2 of the farm , he requested that they
stop the construction . When they refused, the appellant successfully obtained an
2 A ‘person in charge’ is defined in s 1 of ESTA as ‘ a person who at the time of the relevant act, omission or conduct
had or has legal authority to give consent to a person to reside on the land in question.’
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interim order against the first , second and third respondents in the LCC on 9 June
2017 . The fourth respondent was not cited as a party to the proceedings at that time .
The LCC issued a rule nisi declaring the 2017 structure unlawful and interdict ing
the respondents, from amongst other things , proceeding with the construction of the
new structure .
[7] Before the return date of the rule nisi, t he LCC made several unsuccessful
attempts to mediate the dispute between the parties . Eventually , the application was
referred to oral evidence , which was heard by Ncube J in 2022.
[8] Mr Hattingh’s testimony primarily focused on the meeting he had with the
respondents, where he explained the farm rules. One such rule was that no one was
allowed to build new structures without the ap pellant’s knowledge and consent .
[9] The firs t and third respondents gave evidence. Although not a party to the
proceedings, the fourth respondent was called to testify on their behalf. They
conceded that Mr Hattingh had brought to their attention the rule that they were not
supposed to build new structures on the farm without the appellant ’s conse nt. They
maintained , however, that the Department of Rural Development and Land Reform
officials advise d them that they did not need any permission from the appellant to
make their homesteads habitable. They further contend ed that since they were
improving the old, dilapidated mud structure, they were entitled to build a new
structure without the appellant’s consent. In support of this contention, the
respondents ’ counsel relied on the decision of the Constitutional Court in Daniels v
Scribante and Another (Scribante ).3
3 Daniel v Scribante and Another [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) ( Scribante ).
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[10] It became common cause during the hearing of oral evidence that the 2017
structure was erected to replace the dwelling of the late Mrs Khanyi, without the
appellant’s prior consent and knowledge. Although the court acknowledged the
respondents ’ explanation that the existing mud structures of the homesteads needed
to be made habitable, it rejected the ir reliance on Scribante for their defence . It held
that Scribante was no authority for the proposition that an occupier c ould build a
new structure on a farm without the consent of the owner or person i n charge ; and
further that, Scribante concerned itself with improving an existing structure . It
reasoned that even in the case of improvements , Scribante required meaningful
engagement between the o ccupier and the owner or person in charge .
[11] Accordingly, t he court concluded that the respondents were not entitled to
construct an entirely new structure without the appellant ’s conse nt. Consequently,
Ncube J : (a)declared the 2017 structure unlawful; (b) prohibited the respondent s
from building an entirely new structure without the explicit wri tten permission of
the appellant or person in charge; (c) prohibited them from proceeding with the
construction , and (d) ordered its demolition. The order was granted on 5 O ctober
2022. The respo ndents failed to comply with the order . Their conduct led to the
sheriff demo lishing the 2017 structure on 14 March 2023 , pursuant to a warrant of
execution authorised by the LCC on 3 February 2023 .
[12] In April 2023 , hardly a month after the sheriff demolished the 2017 structure ,
the resp ondents , unbeknown to the appellant , demolished parts of the homestead
used for traditional ceremonies and a storeroom . When Mr Hattingh first noticed
this, the respondents had already commenced erecting a brick -and-mortar structure
(the 2023 structure) from the ground up . As the appellant had not been consulted
about this , it sought an order on an urgent basis for: (a) a declaratory order that the
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construction of the 2023 structure was unlawful; (b) an order prohibiting further
construction of the structure; and (c) an order for the demolition of the structure. I
refer to these as the declaratory, prohibitory , and demolition relief. In addition, in
paragraph 8 of its notice of motion, the appellants sought an order declaring the
respondents to be in contempt of Ncube J ’s order.
[13] The app lication served before Flatela J in the LCC on 17 April 2023 , who on
18 April 2023 , granted an interim order against the respondents prohibit ing them
from continuing with the construction of the 2023 structure without the appellant ’s
consent . Even though the fourth respondent was cited in these proceedings , it
appears that he did not participate in the application before Flatela J, as his
confirmatory affidavit remains unsigned.
[14] On the return day of the rule nisi, the respondents opposed the application .
They denied that their conduct was unlawful, stating that it was consistent with
Ncube J’s judgment , which allowed them to demolish the mud structures and rebuild
them to be habitable . However, the respondents did not deny the appellant’s
averments that Mr Hattingh was neither approached for his engagement nor his
consent . Additionally, they argued that the matter was res judicata because the relief
requested by the appellant was similar to the relief sought and granted by Ncube J.
[15] The LCC summarily dismissed the res judicata defence . Regarding the merits ,
it approached the matter as contempt of court procee dings in respect of Ncube J’s
order . It dismissed the application on the basis that the respondents were not in wilful
contempt of th at order . Furthermo re, it accepted the respondents’ explanation that
they believed they were entitled to erect new structures in the same place wher e the
demolished mud structure s had been . The LCC reasoned that the prayers for the
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declaratory, prohibitory , and demolition relief were not stand -alone prayers but were
depend ent on a finding that the respondents were in contempt of court. In addition,
it remarked that:
‘[E]ven if one were to treat th e relief sought by the [appellant ] to have the newly erected structure
unlawful and demolished as a separate relief from the contempt [of court ] application, it w ould be
non-suited for this Court to grant such relief. The interest s of justice dictate that there be finality
to litigation. The respondents are entitled to make their structure habi table concomitant with their
right to human dignity .’
[16] In this Court, the appellant accepted the LCC ’s finding that the respondents
were not in contempt of Ncube J’s order . It thus focused on the dismissal of the
declaratory, prohibitory , and demolition relief. The submission made was that the
LCC erred in its characteri sation of the entire application as hinging solely on
whether the respondents were in contempt of Ncube J ’s order. The appellant argued
that its failure to deal with the declaratory, prohibitory , and demolition relief was a
misdirection .
[17] In addition, the appellant contended that the LCC misdirected itself by not
following Scribante. Lastly, the appellant asserted an additional reason why the 2023
structure was unlawful ly erected and should be demolished. It submitted that the
respondents had erected the structure without procuring and submitting building
plans. The respondents , on the other hand, support the order of the LCC . They also
contended that the appellant had conceded that the relief it sought hinged on a
finding whether the respondents were in contempt of Ncube J’s order. For this
alleged concession, the respondents relied on a passage in the LCC ’s judgment
granting leave to appeal where it remarked that :
‘[D]uring the hearing, I expressly asked counsel for the applicant whether prayers 2, 5, 6 and 7 are
premised on paragraph 2 of Judge Ncube’s order. The answer was in the affirmative.’
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[18] There are t wo issues that arise . The first question is whether the LCC was
correct in its characterisation of the proceeding s to be concerned only with contempt
of court, and that its dismissal of the further relief sought rested upon its finding in
respect of contempt. The second question is whether the 2023 structure was
unlawful ly erected and, if so, whether an order for its demolition should be issued .
[19] The first question need not unduly detain us. I agree with the appellant that
the contempt of court prayer was but one of the orders sought by the appellant and
not the mainstay of its application. It was a stand -alone prayer that warranted
separate consideration . The LCC erred in concluding that, because the respondents
were not in contempt of court , this was dispositive of the rest of the relief sought by
the appellant.
[20] The r espondents’ reliance on the alleged concession made by the appellant’s
counsel , referred to by the LCC in the leave to appeal judgment , cannot salvage the
respondents’ case either. An objective assessment of the application that served
before the LCC required it to determine all of the relief that was sought. The
declaratory, prohibitory , and demolition relief was not framed as being conditional
upon a finding in the contempt relief in the notice of motion, nor was it so supported
in the founding affidavit. The declaratory, prohibitory , and demolition relief had to
be considered as discrete issues, inde pendent of the contempt issue. By failing to
regard them as such, and by not considering them, the LCC erred.
[21] As to the merits of the appeal, it is important to note at the onset that the rights
and duties of occupier s and land owners in terms of ESTA were determined in
Scribante. The C onstitutional Court held that an owner’s consent cannot be a
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prerequisite when the occupier wants to bring the dwelling to a standard that
conforms to conditions of human dignity.
[22] Pertinent to the issue of whether the occupier may effect such improvements
in total di sregard of the owner, the Constitutional Court held:
‘That an occupier does not require consent cannot mean she or he may ride roughshod over the
rights of an owner. The owner also has rights. The very enjoyment by an occupier of rights
conferred by ESTA creates tension between that enjoyment and an owner’s rights. The most
obvious owner’s right that is implicated is the right to the property under s 25 of the Constitution.
If an occupier were to be entitled to act in an unbridled manner, that would mean an owner’s rights
count for nothing. Under s 5 of ESTA an owner enjoys the exact same rights as does an occupier.
The total disregard of an owner’s property right may impinge on her or his right to human dignity.
That would be at odds with s 5(a) of ESTA. Unsurprisingly, s 6(2) of ESTA requires that an
occupier’s right to security of tenure be balanced with the rights o f an owner or person in charge.
Although consent is not a req uirement, meaningful engagement of an owner or person in charge
by an occupier is still necessary. It will help balance the conflicting rights and interests of occupiers
and owners or persons in charge. In this regard I agree with the submissions of the amicus curiae,
which argued for the need for meaningful engagement between an owner and occupier.
In Hattingh Zondo J said:
“In my view the part of s 6(2) that says ‘balanced with the rights of the owner or person in charge ’
calls for the striking of a balance between the rights of the occupier, on the one side, and those of
the owner of the land, on the other. This part enjoins that a just and equitable balance be struck
between the rights of the occupier and those of the owner. The effect of this is to infuse justice and
equity in the enquiry . . . .”
. . .
If engagement between an occupier and owner or person in charge gives rise to a stalemate, that
must be resolved by a court. The occupier cannot resort to self -help.’4
4 Scribante paras 61 , 62, 63 and 65.
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[23] The main ground of appeal relied on by the appellant was that the LCC
misdirected itself by not following Scribante when it found that the respondents were
entitled to make their homesteads habitable. According to the appellant, Scribante
does not give the occupier an untrammel led right to demolish a structure and erect a
new one. The right recognised therein is the right to improve an existing structure.
Even more so, the argument continued, this right cannot be exercised without
engagement with the owner.
[24] While the respondent s’ contention that the mud structures need ed
improvement is acknowledged, several reasons support the contention that the LCC
failed to follow the decision in Scribante . First, it was common cause before the
court that no engagement or consent was sou ght from the ap pellant to erec t the 2023
structure. As a result , the respondents’ reliance on Ncube J ’s judgment is misplaced .
This is because Ncube J conclude d that meaningful engagement is necessary even if
improvements to the existing structure were sought to be made . That conclusion,
based on Scribante , is, with respect, correct. The responde nts could , therefore , not
unilaterally make improvement s even if no consent was required from the appellant .
The lack of engagement, on its own, renders the erection of the 2023 structure
unlawful.
[25] The second reason relates to the nature of the improvements the respondents
were making – whether these were new structures or improvements to existing ones .
To recap, t he respondents contend that they were effecting improvements by
rebuilding where the old structures had stood. They demolished the old structures as
they were uninhabitable , and consent was not necessary. However, this overlooks
the fact that even if consent was not necessary, meaningful engagement with the
appellant was still required. The appellant alleged that this was because the
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respondents had entirely demolished part of the homestead previously used for the
traditional ceremonies and a storeroom . Instead, they began with the construct ion of
a brick -and-mortar foundation where the two structures had been .
[26] Two observation s should be made. First, the pictures attached to the record of
the appeal lend credence to the appellant’s assertion that a new foundation was
constructed . But most importantly , the appellant, in addition to the fact that the
structure was entirely new, maintained that it was more prominent in size than the
two structures intended to be improved. In my view, the respondents were not in the
process of improving the existin g structures. Second, even if they were making
improvements, the respondents do not have un fetter ed rights to improve their
existing dwellings , as Scribante makes plain . Such improvements must be
‘reasonably necessary ’ to render the dwelling habitable in conformity with the rights
to human dignity . Meaningful engagement is necessary so that both parties can
determine what is reasonable and necessary. Since the structure was erected without
prior consent or meaningful engagement with the appellant, the court should have
declared the 2023 structure to be unlawful.
[27] To sum up , the LCC erred in : (a) concluding that a finding on contempt was
dispos itive of the entire application and (b) failing to declare the 2023 structure
unlawful. In light of these conclusions, it is not necessary to consider the appellant’s
submission that the respondents were obliged to obtain approved building plans to
erect the 2023 structure. What remains is whether it would be just to order the
demolition of the structure . The court has a discretion whether to grant such relief,
which must be exercised after taking into consideration all the facts.
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[28] It is unclear from the papers how far the building had been constructed . From
the pictures attached to the founding affidavit, only the construction of a foundation
is depicted, and some bricks were stacked not far from it. The respondents did not
provide any justification for why the order of demolition of the structure should not
be made. On the other hand , the appellant explained in detail the hardship s it would
endure if such an order is not made . Key amongst th ose is that the u nauthorised
construction constitutes an encroachment on its property. I agree. If the struc ture is
not demolished, it would impede the appellant’s enjoyment of its full rights to the
land. For instance, the presence of the structure would inhibit the appellant from
cultivating its land. Therefore, o rdering c ompensati on in this matter will not be
appropriate .
[29] Secondly , regarding possible hardships that the respondents might suffer if
the structure is demolished , it is common cause that the respondents were improving
the structure that was used as a storeroom , as well as the one for traditional
ceremonies. As a result, the demolition would not leave them homeless, and they
would not face significant hardship in demolishing it, as it was still in the foundation
stage .
[30] Thirdly , sight should not be lost of the fact that the respondents 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, to build without engaging it.
The fact remains that a court order exists prohibit ing the respondents from
undertaking unauthori sed bui lding of structures on the farm . The fact that the
respondents were not found in contempt of the pre vious order does not alter the
position. The respondent cannot just disregard the court order . Perhaps the
demolition order will secure greater adherence this time and prompt t he first to fourth
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respondents to reflect more carefully on their conduct in the future. Under the
circumstances, I am of the view that it would be just and fair that d emol ition of the
2023 structure should follow .
[31] Regarding costs, the general principle is that costs ordinarily follow the result.
However, in litigation between private parties where constitutional issues are raised,
this is a matter within the discretion of a court considering the issue. It is a discretion
which must b e exercised judicially, having regard to all the relevant considerations.5
In matters of this nature, this Court has held that the default position is not to award
costs unless there are special circumstances which warrant such a deviation.6 No
such circumstances are present here. The respondents had sought to assert a
constitutional right, albeit misguidedly. Accordingly, each party shall bear their own
costs , both in the LCC and in this Court.
[32] The following order is made:
1 The appeal is upheld with no order as to costs.
2 The order of the Land Claims Court dismissing the appellant’s application is
set aside and is replaced with the following order:
‘1 The unauthorised brick foundation, and whatever building has taken
place upon that foundation, constructed by the first to fourth respondents,
which replaced the mud structures that served as a storeroom and a place for
traditional ceremonies on a portion of the farm Uitkyk 121 HS, in the district
of Volksrust, Mpumalanga (“the farm Uitkyk”), is declared unlawful;
5 Affordable Medicines Trust and Others v Minister of Health of RSA and Another [2005] ZACC 3; 2006 (3) SA 247
(CC); 2005 (6) BCLR 529 (CC) para 138.
6 Haakdoringbult Boerdery CC & Others v Mphela and Others [2007] ZASCA 69; 2007 (5) SA 596 (SCA) ; 2008 (7)
BCLR 704 (SCA); para 76.
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2 The first to fourth respondents are ordered to demolish the unlawfully
constructed structure on the farm Uitkyk within 30 (thirty) days from the date
of this order;
3 The first to fourth respondents are ordered to remove all the building
material gathered for the purposes of constructing the unlawful structure on
the farm Uitkyk within 30 (thirty) days after the date of this order;
4 If the first to fourth respondents fail to comply with the orders in
paragraphs 2 and 3 above, the sheriff for the district of Volksrust is authorised
to demolish the unlawfully constructed building and remove all building
material on the farm Uitkyk.
5 Each party is to pay their own costs.’
_______________________
A M KGOELE
JUDGE OF AP PEAL
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On record:
For appellant : H S Havenga SC
Instructed by: Peet Grobbelaar Attorneys, Pretoria
Bezuidenhouts Inc., Bloemfontein
For 1st– 4th respondent s: M C N kosi
Instructed by: Legal Aid South Africa, E rmelo
Legal Aid South Africa, Bloemfontein .