CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 121/24

In the matter between:


MAGALONE MEREKI First Applicant

TOPIES MEREKI Second Applicant

DIKHOTSO MEREKI Third Applicant

and

MOLADORA TRUST First Respondent

DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT AND LAND REFORM Second Respondent



Neutral citation: Mereki and Others v Moladora Trust and Another [2025]
ZACC 16

Coram: Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Majiedt J, Opperman AJ, Rogers J, Theron J and Tshiqi J


Judgment: Rogers J (unanimous)

Heard on: 27 March 2025

Decided on: 1 August 2025

Summary: Extension of Security of Tenure Act 62 of 1997 (ESTA) — consent
to graze cattle — such consent a right to use land for purposes of
ESTA — termination of right subject to section 8 of ESTA

2
Interpretation of ESTA — reference to residence in some instances
to be read as including use of land, including use for grazing

Tacit consent – proof – presumption in section 3(4) of ESTA




ORDER



On application for leave to appeal from the Supreme Court of Appeal (hearing an
appeal from the Land Claims Court):
1. Leave to appeal is granted.
2. The appeal succeeds.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“(a) The appeal is dismissed.
(b) The appellant must pay the costs of the first, second and third
respondents, including the costs of two counsel.”
4. The applicants must pay the first respondent’s costs of opposing the
applicants’ application for leave to file a replying affidavit, including the
costs of two counsel.
5. The applicants must bear their own costs in respect of their condonation
application.
6. Save as set out in paragraphs 4 and 5 above, the first respondent must pay
the applicants’ costs in this Court, including the costs of two counsel.



JUDGMENT

ROGERS J
3
ROGERS J (Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J,
Opperman AJ, Theron J and Tshiqi J concurring):


Introduction
[1] The applicants, Messrs Magalone, Topies and Dikhotso Mereki, are siblings who
reside on a farm in the North West Province. The first respondent, the Moladora Trust
(Trust), owns the farm. The key questions are whether the Mereki siblings were entitled
to keep cattle on the farm and, if so, whether the termination of that right had to comply
with the Extension of Security of Tenure Act1 (ESTA). The Land Claims Court (LCC)
and Supreme Court of Appeal (SCA) gave opposite answers: the LCC answered both
questions yes, the SCA answered the first question no and so did not reach the second.

[2] These questions arose in the context of an application by the Trust in the LCC to
have the Merekis’ cattle removed from the farm. The Merekis did not file opposing
papers or appear to oppose the application. The facts were thus those contained in the
Trust’s founding affidavit in the LCC.

Factual background
[3] The Trust became the owner of the farm in May 2004. The Merekis’ mother
passed away “before 2017”. (The Trust’s deponent, Mr Marius Nel, was not more
specific.) She had consent to keep five head of cattle on the farm. The Mereki siblings
continued to keep cattle on the farm. They did not seek or get express consent.

[4] After the late Mrs Mereki died, Mr Nel “made some efforts to engage” the
Merekis on the fact that he had not given them consent to keep livestock on the farm.
The Merekis allegedly abused him and told him that they would not remove their cattle.
In January 2018 the Trust’s attorneys caused the Sheriff to serve letters2 on the Merekis
to remove the cattle. The letters stated that the Merekis lived on the farm solely by

1 62 of 1997.
2 The letters bear the date 31 October 2017.

ROGERS J
4
virtue of the employment of their late parents. Their parents had had permission to keep
five head of cattle, but this was personal to them as employees. The Mereki siblings
now had nine head of cattle. The letters demanded the removal of all the cattle within
30 days.

[5] In September 2020, some 20 months later, the Trust’s attorneys caused the
Sheriff to serve further letters on the Merekis for the removal of the cattle. According
to the Sheriff’s returns of service, the Merekis’ aggressive behaviour made it impossible
to effect personal service. He thus left the notices with another person who was an
occupant at the Merekis’ homestead.

[6] The letters stated that a recent fire had had an adverse effect on available grazing.
The Merekis were allowing the cattle to roam “across the width and breadth of the
farm”. They had not complied with the earlier removal letters. Despite the fact that
there might be a dispute about whether they had permission to keep livestock on the
farm, they were now being given one month’s notice, “in terms of the common law”,
of the termination of their right to keep livestock.

[7] The letters of September 2020 seem to have been prompted, at least in part, by
allegations made by officials of the Department of Agriculture, Rural Development and
Land Reform (Department) that the Trust had arbitrarily interfered with the grazing of
the Merekis’ cattle. The Trust’s attorneys addressed those accusations in a letter to the
Department in August 2020.

Litigation history
Land Claims Court
[8] Still the cattle were not removed. In May 2022, after the lapse of another
20 months, the Trust launched proceedings in the LCC for orders that the Merekis
forthwith remove their animals (the notice of motion referred not only to cattle but
goats, horses and sheep) and that, if they failed to do so within 30 days, the Sheriff be

ROGERS J
5
authorised to do so with the help of the South African Police Service and the Pound
Master for the district. The Trust also asked for interdictory relief, and sought costs
against the Merekis if they opposed.

[9] The application was served on the Merekis, as was a subsequent notice of set
down for the hearing of the application by default. The matter served before the LCC
(Cowen J) on 25 July 2022. The case stood down for two days to allow counsel to
address certain matters raised by the Judge. On 26 July 2022 the Judge issued directions
requiring the Trust to make submissions on whether its founding papers contained
sufficient allegations to justify the relief claimed. The hearing resumed on
27 July 2022. Upon completion of oral argument, judgment was reserved. The Trust
was granted leave to file supplementary written submissions, which it did on
3 August 2022. Counsel for the Trust asked that if the LCC concluded that the Merekis’
grazing consent (if established) could only be terminated in accordance with section 8,
the Trust be granted leave to supplement its papers.

[10] In a judgment delivered on 11 November 2022,3 the LCC dismissed the
application with no order as to costs. The Judge said that a generous construction of
ESTA was to be preferred over a purely textual or legalistic one. The Act was
legislation giving effect to section 25(6)4 of the Constitution. The history of colonial
dispossession had to be borne in mind when interpreting and applying ESTA.

[11] The Judge referred to the decisions of the SCA in Adendorffs5 and Loskop.6
These judgments held, so the Judge considered, that an ESTA occupier’s right to graze
cattle did not derive from ESTA but is a personal right dependent on consent from the
owner.7 The Judge regarded herself as bound by these pronouncements. She held,

3 Moladora Trust v Mereki [2022] ZALCC 32; 2023 (3) SA 209 (LCC).
4 Quoted at para [47] below.

4 Quoted at para [47] below.
5 Adendorffs Boerderye v Shabalala [2017] ZASCA 37.
6 Loskop Landgoed Boerdery (Pty) Ltd v Moeleso [2022] ZASCA 53.
7 ESTA generally uses the word “owner” in tandem with the expression “person in charge”, both defined terms.
For the sake of brevity, I shall refer in this judgment only to “owner”.

ROGERS J
6
however, that once grazing consent was given, the right formed part of the tenure
protected by ESTA. Although section 8 speaks of the termination of a “right of
residence”, section 3(1) provides that an occupier’s consent to reside on “or use land”
shall only be terminated in accordance with section 8.8 The definition of “evict” in
section 1 also speaks of a right to reside on “or use” land. Where, therefore, an occupier
has consent to graze cattle, the termination of that consent, the Judge concluded, is
governed by section 8.

[12] As to whether the Merekis had consent to keep cattle on the farm, the Judge
assumed in the Trust’s favour that the Mereki siblings were not occupiers in their own
right at the time of their mother’s death and derived their right of residence from their
parents’ status as employees. The Judge also assumed in the Trust’s favour that the
consent which Mrs Mereki had to graze cattle was specific to her. The Judge found,
however, that tacit consent in favour of the Mereki siblings could be inferred from the
lengthy period which passed before the first removal notices were given in January 2018
and from the further lengthy period which passed before the second removal notices
were given in May 2020. A finding of tacit consent could also be based, the Judge held,
on the presumption created by section 3(4),9 namely that “a person who has
continuously and openly resided on land for a period of one year shall be presumed to
have consent unless the contrary is proved”.

[13] The LCC thus concluded that the Trust was not entitled to rely on the common
law to terminate the Merekis’ right to graze cattle. Since the Trust did not claim to have
terminated the Merekis’ consent in accordance with section 8, the application had to be
dismissed. The LCC declined the Trust’s request, in the event of this finding being
made, for leave to supplement its papers, since there had been no attempt at all to

made, for leave to supplement its papers, since there had been no attempt at all to
comply with sections 8 and 9. Given the importance of the issues, the LCC granted the
Trust leave to appeal to the SCA.

8 These and other relevant provisions of ESTA are quoted later in this judgment.
9 Quoted in para [76] below.

ROGERS J
7

Supreme Court of Appeal
[14] In the SCA the Merekis were represented by counsel. The South African Human
Rights Commission and the Association for Rural Advancement were granted leave to
make written and oral submissions as amici curiae (friends of the court). The SCA
upheld the appeal with no order as to costs.10 It substituted the LCC’s order with one
granting the relief the Trust had sought at first instance.

[15] The SCA (per Weiner JA, with Ponnan and Matojane JJA concurring)
emphasised that the Trust’s allegations in the LCC had been uncontested. The Merekis’
acceptance that they had not been given any express consent to graze cattle and that
their mother’s grazing rights had not automatically devolved upon them ought to have
been the end of the matter. In the SCA’s view, the LCC ought not of its own accord to
have considered whether there was tacit consent. The Merekis had advanced no such
case. On the face of the Trust’s removal notices, there was a denial of any consent. The
LCC’s finding of a tacit consent therefore lacked a proper factual foundation, so held
the SCA. The SCA made no reference to the amici’s submissions.

In this Court
[16] The Merekis have now applied to this Court for leave to appeal. In their founding
affidavit they allege that the LCC correctly held that the Trust had granted them tacit
consent to keep livestock and that the termination of this consent had to comply with
section 8 of ESTA. The grounds of appeal are summarised as being that the SCA:
(a) had failed to appreciate that the LCC as a specialist court exercised wide
remedial powers under ESTA and the Constitution;
(b) erred in not holding that the Merekis, as ESTA occupiers who had been
granted the right to graze cattle, were still protected by ESTA when the
Trust sought to remove that right; and

10 Moladora Trust v Mereki [2024] ZASCA 37; 2024 (5) SA 51 (SCA).

ROGERS J
8
(c) erred in not holding that tacit consent to graze livestock had been given
to the Merekis after their mother’s death.

[17] On the first of these questions, the Merekis contend that the LCC exercised a
discretion. The test on appeal was whether it had made any “demonstrable blunders”
on the facts or the law. The SCA, so they allege, failed to apply the proper standard for
appellate review of the exercise by the LCC of its remedial discretion.

[18] On the second and third questions, the Merekis contend that, in order to give
proper effect to ESTA as a whole, the words which I underline should be read into
section 3(1): “Consent to an occupier to reside on or use land, including the right to
graze cattle, shall only be terminated in accordance with the provisions of section 8.”
The Merekis acknowledge that the LCC and SCA did not deal with this reading-in, but
said that it was in the interests of justice for this Court to consider it.

[19] The Merekis seek condonation, their application having been filed two days late.
There is an acceptable explanation. The Trust has not opposed condonation. Nothing
more need be said about this. Condonation is granted.

[20] In its opposing affidavit the Trust contends that the factual inferences drawn by
the LCC were without merit. In the absence of evidence from the Merekis, there was
no basis for a finding of a tacit consent. The SCA had simply interpreted the undisputed
facts. The factual conclusions, the Trust says, are not a constitutional matter nor is there
an arguable point of law of general public importance, there being no evidence of
occupiers similarly placed to the Merekis. The proposed reading-in is impermissible,
the Trust argues, in the absence of an application to declare any part of ESTA
unconstitutional.

[21] The Trust also complains that the proceedings in the LCC had been unfair. The
LCC is said to have made findings on issues that were not raised with the Trust’s counsel

LCC is said to have made findings on issues that were not raised with the Trust’s counsel
and which make serious inroads into the Trust’s property rights guaranteed by section

ROGERS J
9
25(1) of the Constitution.11 The Trust contends that the Merekis’ application in this
Court should fail for this reason alone.

[22] The Merekis have applied for leave to file a replying affidavit which the Trust
opposed. An applicant for leave to appeal in this Court is not entitled as of right to file
a replying affidavit. The replying affidavit merely repeats and elaborates upon
arguments contained in the founding affidavit. There are no special circumstances
warranting leave to file a replying affidavit. Leave to file a replying affidavit is thus
refused.

[23] The counsel who act for the Merekis in this Court are not the same counsel who
appeared for them in the SCA. In their written and oral argument in this Court, the
Merekis’ counsel advance, as their clients’ primary case, that persons who have consent
in terms of ESTA to reside on a farm automatically have certain ancillary rights, such
as cultivation and grazing. Counsel argue that it is unnecessary to debate how extensive
these ancillary rights are, either in general or in this particular case, because the Merekis
had an automatic right to keep at least some cattle. Since the Trust did not comply with
section 8 at all, it was not entitled to any relief in the LCC. In the alternative, the
Merekis’ counsel support the LCC’s line of reasoning on tacit consent.

Jurisdiction
[24] This case concerns the interpretation of ESTA, which is national legislation
contemplated in section 25(6)12 of the Constitution. The case thus engages this Court’s
constitutional jurisdiction. There are also arguable points of law of general public
importance that the Court should consider, thus engaging the Court’s general
jurisdiction. These include whether consent to graze cattle, granted to an ESTA
occupier who has a right to reside, is a right protected by ESTA and whether the

11 Section 25(1) provides: “No one may be deprived of property except in terms of law of general application, and
no law may permit arbitrary deprivation of property.”
12 Quoted at para [47] below.

ROGERS J
10
presumption in section 3(4) of ESTA13 assists an occupier to establish consent to graze
cattle. This Court does not require evidence in order to know that there are other ESTA
occupiers who keep cattle on the farms where they reside. Common sense dictates that
from time to time their right to do so will be disputed by the farm owners.

[25] It is in the interests of justice to grant leave to appeal. The questions are of great
importance to ESTA occupiers and those who own farms. As shall presently appear,
the Merekis enjoy reasonable prospects of success.

Legal background: a quartet of judgments
[26] Before considering the issues in this matter, it is convenient to get clarity on the
true import of the four main cases cited in argument before us, namely Margre,14
Adendorffs,15 Loskop16 and Sibanyoni.17 The Trust relied on the first three while the
Merekis supported the fourth.

Margre
[27] In Margre the owner brought proceedings in the High Court to enforce a written
agreement with an ESTA occupier in terms of which the occupier was permitted to keep
80 units of livestock on the farm. The owner sought to have the occupier’s livestock
reduced to that number. The occupier contended that in terms of ESTA he had an
automatic right to keep livestock on the farm as an incident of his residence. He denied
that the written agreement was binding on him, claiming that it was not voluntarily
concluded. For this reason, so the occupier’s argument went, the owner’s attempt to
reduce his livestock was an ESTA “eviction” over which the High Court lacked
jurisdiction.


13 Quoted at para [76] below.
14 Margre Property Holdings CC v Jewula [2002] ZAECHC 22; [2005] 2 All SA 119 (E).
15 Above n 5.
16 Above n 6.
17 Sibanyoni v Holtzhausen, unreported judgment of the Land Claims Court, Case No 143/2015 (9 May 2019).

ROGERS J
11
[28] The High Court (Pickering J) held that ESTA did not entitle a residential
occupier as of right to keep livestock. Such right was dependent on consent from the
owner. It was in this context that Pickering J stated that the occupier’s right to keep
livestock did not derive from ESTA.18 In essence, this was a rejection of the Merekis’
primary argument in the present case.

[29] The rest of the judgment in Margre was devoted to the question whether the
written agreement was binding on the occupier. The High Court held that it was. The
occupier did not contend that if the written agreement was binding the High Court could
not enforce it. If the agreement was binding, the owner was not trying to terminate or
vary the occupier’s rights under the agreement.

[30] Margre thus did not address the alternative argument in this matter, namely,
whether a consent to graze cattle is a land use which is protected by, and can only be
terminated in accordance with, ESTA.

Adendorffs
[31] In Adendorffs there was a grazing agreement between the owner and occupier in
terms of which the occupier was permitted to keep a certain number of cattle and horses
in an allocated area on the farm. That area became overgrazed. The owner brought
proceedings to have the occupier’s livestock removed until the land was rehabilitated.
This was in order to comply with the Conservation of Agricultural Resources Act19
(CARA). The owner was not seeking to terminate the grazing agreement. The SCA
agreed with Margre that the occupier’s right to keep livestock did not derive from ESTA
but from a separate grazing agreement.20


18 Margre above n 14 at 123-4.
19 43 of 1983.
20 Adendorffs above n 5 at para 28.

ROGERS J
12
[32] The SCA noted a concession by the occupier that he did not reside on the
property and that his rights flowed from a grazing agreement with the owner’s
predecessor. The SCA said that it followed that the occupier’s grazing right did not
derive from ESTA; it was a personal right to use the land for purposes of grazing.21 It
was suggested in oral argument in this Court that these were not the true facts and that
the occupier did indeed reside on the farm. However, we must understand the legal
propositions in Adendorffs in the context of the facts as the SCA rightly or wrongly
thought them to be.

[33] It is not clear whether the SCA in Adendorffs understood Margre as I have
explained it. Since the SCA in Adendorffs decided that case on the basis that there was
a grazing agreement, Adendorffs has nothing to do with the Merekis’ primary argument.
Adendorffs is also not relevant to the Merekis’ alternative argument, because the owner
was not seeking to terminate the grazing agreement. Adendorffs was concerned only
with the enforcement of CARA and with the fact that the LCC had made orders which
had not been sought or debated. The SCA’s endorsement of Margre must thus be
regarded as an obiter dictum (a non-binding pronouncement made in passing).

Loskop
[34] In Loskop22 the owner removed the occupier’s livestock from two overgrazed
camps to another camp in order to comply with CARA. The SCA quoted the passage
from Adendorffs in which Margre was quoted with approval.23 The SCA said that it
was trite that an owner who needed to rehabilitate farmland was entitled, within the law,
to remove cattle on the basis that once the land is rehabilitated the cattle can be
returned.24


21 Id at paras 27-8.
22 Loskop above n 6.
23 Id at para 14.
24 Id at para 11.

ROGERS J
13
[35] The Court in Loskop quoted25 a passage from another SCA judgment,
Normandien Farms,26 dealing with the meaning of “eviction” in the context of the Land
Reform (Labour Tenants) Act.27 The SCA in Normandien said that an “eviction”
connoted a deprivation of the right of occupation or use of land as a result of the
purported termination or repudiation of that right by the owner or person in control. In
Normandien the SCA contrasted an eviction in this sense with a temporary removal of
livestock in order to comply with CARA:

“Normandien did not contend that the occupants’ right, as between themselves and
Normandien, to graze their livestock on the farm as an incident of their occupation was
at an end. Normandien asserted that the continued presence of the livestock on the
farm contravened CARA.”28

[36] In the event, the SCA in Loskop considered that the LCC and the parties had
mischaracterised the issues for determination. The occupiers had brought spoliation
proceedings, the owner having taken the law into his own hands by removing the
occupier’s cattle from the two overgrazed camps. The SCA held that the occupiers were
entitled to spoliation relief and modified the LCC’s order accordingly.

[37] Once again, it is unclear whether the SCA in Loskop understood Margre as I
have explained it. In any event, Loskop did not concern either the primary or alternative
arguments that feature in the present matter. The SCA’s endorsement of Margre was
not germane to the actual basis on which the Court decided Loskop. The endorsement
must thus, once again, be treated as an obiter dictum.


25 Id at para 17.
26 Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd; Mathibane v Normandien
Farms (Pty) Ltd [2017] ZASCA 163; [2018] 1 All SA 390 (SCA); 2019 (1) SA 154 (SCA) at paras 59-60.
27 3 of 1996.
28 Normandien above n 26 at para 60.

ROGERS J
14
Sibanyoni
[38] In Sibanyoni the owner had caused the occupier’s cattle to be impounded and
sold in terms of the former Transvaal’s Pound Ordinance.29 The LCC (Ngcukaitobi AJ)
found that the occupier had at least tacit consent to keep and graze cattle. The actual
basis of the decision, however, was that if the owner considered the cattle to be
unlawfully on his land, he had to comply with section 7 of ESTA.30 The Pound
Ordinance did not trump ESTA. It was common cause that the owner had not given
notice to the occupier in terms of section 7. The LCC thus declared that the owner had
not complied with section 7 and ruled that the occupier was entitled to just and equitable
compensation for the loss of his cattle.

[39] Sibanyoni contains statements about the historical background to section 25(6)
of the Constitution and the approach to the interpretation of ESTA, including the
importance of cattle in the lives of black farm dwellers. In the course of considering
these matters, the LCC said the following:

“54. During argument, there was a debate as to whether or not the applicant has any
statutory rights to keep cattle at the farm. I think the answer to this is to be
found in at least three provisions of ESTA.
55. First, as mentioned above, section 5 includes the rights of occupiers to dignity.
In relation to farm dwellers, dignity cannot be restricted to personal dignity. It
must include the entitlement to a dignified standard of living despite the
meagre and sometimes critical resources at their disposal. Farm occupiers are
entitled, as a matter of dignity, to have their assets, such as cattle, protected by
law against forcible taking as happened here. The statutory rights in section 5
of ESTA must be construed consistently with the right contained in
section 25(1) of the Constitution not to be arbitrarily deprived of property.
Cattle are property. Under the Constitution farm occupiers may not be
arbitrarily [deprived]31 of their cattle.

arbitrarily [deprived]31 of their cattle.

29 13 of 1972.
30 On section 7, see para [61] below.
31 The reported version of the judgment says “disposed”, which must be a typographical error.

ROGERS J
15
56. Secondly, section 6 of ESTA provides for the rights and duties of occupiers.
Section 6(1) states that ‘an occupier shall have the right to reside on and use
the land on which he or she resided and which he or she used on or after
4 February 1997, and to have access to such services as had been agreed upon
with the owner or person in charge, whether expressly or tacitly’. ESTA
prohibits conduct by either the owner or the occupier, which has the effect of
frustrating the exercise of the rights in question. The rights of an occupier to
keep cattle at a farm may, in certain circumstances, constitute a ‘service’
agreed upon with the farm owner. Unless this is withdrawn in a lawfully
recognised manner, a farm occupier is entitled to keep cattle on a farm.
Moreover, the section speaks of the right to ‘use the land’. Where an occupier
keeps cattle as part of an agreement with the owner, the right to use the land
includes the right to graze one’s cattle.
57. Thirdly, the provisions of section 7(1) presuppose the existence of animals on
farms, which may belong to or [be]32 under the control of an occupier. It refers
to ‘trespassing animals usually or [actually]33 in the care of an occupier’. This
wording, in my view shows that it is within the contemplation of the legislature
that farm occupiers will keep animals, including cattle, on farms. Otherwise
there would be no purpose in regulating the rights of owners trespassing
contexts.”

[40] Of the three considerations mentioned by the LCC in the above-quoted passage,
the second and the third presuppose that the owner has agreed to the occupier keeping
and grazing cattle, while the first is concerned not so much with the right to keep and
graze cattle but with the right to be protected against forcible dispossession. Given the
actual basis of the judgment, these pronouncements, though they may warrant careful
consideration when considering the primary and alternative arguments in the present

consideration when considering the primary and alternative arguments in the present
case, were not directly relevant to the basis on which Sibanyoni was actually decided.
The LCC found as a fact that the occupier had consent to keep and graze cattle. If the
owner believed otherwise, he was obliged – so the LCC found – to have complied with
section 7 of ESTA, since on the owner’s view the animals were “trespassing animals”.

32 This word is absent in the reported judgment.
33 This word has mistakenly been omitted in the reported judgment.

ROGERS J
16

Concluding comment on the four cases
[41] Margre is thus an authority against the Merekis’ primary argument in the present
case, but it has nothing to say about the alternative argument. Since the endorsement
of Margre in Adendorffs and Loskop was obiter, the LCC was not precluded in the
present matter from considering what is now the Merekis’ primary argument. Margre
was not binding on the LCC. Sibanyoni contains obiter statements which could be
invoked to support both the primary and alternative arguments, but those statements
were not pertinently addressed to the legal propositions at the heart of the two
arguments. None of these judgments stood in the way of the conclusion reached by the
LCC in the present matter, based on the Merekis’ alternative argument.

[42] The distinction between a personal right and a right protected by ESTA, for
which Adendorffs and Loskop have come to be cited as authority, is a false dichotomy.
To take the case of residence, it has its source in consent from the owner, and in that
sense it is a personal right of occupation. The consent may be express or tacit, but in
the absence of consent there is no right of occupation for purposes of ESTA. However,
once there is a consent to reside, ESTA protects the right of residence. Section 8
regulates its termination. An unlawful termination constitutes an eviction for which
ESTA grants remedies.

[43] Of course, once there is a right of residence for purposes of ESTA, sourced in
consent, ESTA not only protects the right of residence but confers certain ancillary
rights. Section 6(2) lists a number of these rights.34


34 These rights are, apart from security of tenure: to receive bona fide (good faith) visitors at reasonable times and
for reasonable periods; to receive personal or other communications; to family life in accordance with the family’s

culture; to bury a deceased member of the family in the circumstances contemplated in section 6(2)(dA); not to
be denied or deprived of access to water; and not to be denied or deprived of access to educational or health
services. Subsections 6(4) and (5) expand on an occupier’s burial rights.

ROGERS J
17
The Merekis’ primary argument
[44] The Merekis’ primary argument in this Court is new. It was not considered by
the LCC, because the LCC regarded itself as bound by the SCA’s approval of Margre
in Adendorffs and Loskop. The primary argument was not advanced by the Merekis or
the amici curiae in the SCA. It was not even made in the Merekis’ application for leave
to appeal in this Court. It first emerged in written argument.

[45] The argument is an important one with far-reaching implications. It is not in the
interests of justice for this Court to address it without the benefit of a judgment on the
subject from the LCC, the specialist forum established to deal, among others, with the
interpretation of ESTA.35 This Court could also benefit from a judgment on this
argument by the SCA, though that would of course depend on leave to appeal to that
Court being granted. We thus leave the primary argument open. Nothing in this
judgment should be read as expressing any opinion on the right answer to the primary
argument.

The Merekis’ alternative argument
[46] The alternative argument, based on the LCC’s line of reasoning, raises two
issues: (a) whether an ESTA occupier’s consent to graze cattle is protected by ESTA
and can only be terminated in accordance with ESTA’s provisions; and (b) if so,
whether the Merekis had consent to graze cattle. If these questions are answered in the
Merekis’ favour, the appeal must succeed because it is common cause that the Trust did
not comply with section 8 of ESTA when terminating the grazing consent.

Does ESTA protect grazing consent?
[47] Section 25(6) of the Constitution reads:

35 The LCC’s jurisdiction and ancillary powers are set out in section 20(1) of ESTA. Among other things, the
LCC has the power to decide any constitutional matter in relation to ESTA and to grant interlocutory orders,

declaratory orders and interdicts. In terms of section 20(2), and subject to sections 17(2) and 19(1), the LCC’s
powers in section 20(1) are to the exclusion of other courts apart from this Court and the SCA. Section 20(3)
provides that if, in proceedings in the High Court, that Court is required to interpret ESTA, it must stop the
proceedings if no oral evidence has been led and refer the matter to the LCC.

ROGERS J
18

“A person or community whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to comparable redress.”

[48] The background to this provision is that before the advent of democracy in this
country, black people were routinely forced off land on which they resided and on which
they often cultivated crops and grazed livestock. Their occupation of land was not the
subject of legal rights recognised by the colonial and apartheid governments of the day.
Their tenure was thus insecure, as section 25(6) recognises.36

[49] In terms of section 39(1) of the Constitution, a court, when interpreting the Bill
of Rights, must, among other things, “promote the values that underlie an open and
democratic society based on human dignity, equality and freedom”. And in terms of
section 39(2), a court, when interpreting legislation, “must promote the spirit, purport
and objects of the Bill of Rights”.

[50] The expression “tenure of land” in section 25(6) of the Bill of Rights is apt to
embrace the occupation of land not only for purposes of residence but also for
associated purposes such as cultivation and grazing. In the context of our country’s
history, there is every reason to hold that the framers of the Constitution intended a
broad and generous concept of tenure. ESTA should thus be interpreted, to the extent
that its language reasonably permits, in a way that promotes this broad and generous
concept of tenure.

[51] ESTA is an Act of Parliament as contemplated in section 25(6). Its very name
proclaims that it is concerned with “tenure” – the “Extension of Security of Tenure
Act”. Its preamble records that many South Africans “do not have secure tenure” and

36 This history was recounted by this Court in Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017

(8) BCLR 949 (CC) at paras 14-22. See also Zondi v MEC for Traditional and Local Government Affairs [2004]
ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) at paras 38-42 and Department of Land Affairs v
Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC) at
paras 58-63.

ROGERS J
19
are therefore vulnerable to unfair eviction. The preamble further records that it is
desirable that the law should promote “the achievement of long-term security of tenure
for occupiers of land”; “extend the rights of occupiers, while giving due recognition to
the rights, duties and legitimate interests of owners”; and “regulate the eviction of
vulnerable occupiers from land in a fair manner, while recognising the right of land
owners to apply to court for an eviction order in appropriate circumstances”.

[52] Since “tenure” in section 25(6) includes associated uses of land for cultivation
and grazing, ESTA must, to the extent reasonably possible, be interpreted in a way
which protects such associated uses. There are various provisions of ESTA which are
consistent with a broad and generous concept of tenure, which I emphasise with italics
in what follows.

[53] The first recordal in ESTA’s preamble states that many South Africans do not
have secure tenure “of their homes and the land which they use”.

[54] The term “evict” is central to the protections afforded by ESTA. It is defined in
section 1 as meaning “to deprive a person against his or her will of residence on land or
the use of land or access to water which is linked to a right of residence in terms of this
Act, and ‘eviction’ has a corresponding meaning”.

[55] Another important definition in section 1 is “terminate”, since one of the key
protections given to ESTA occupiers is the regulation by section 8 of the termination of
an occupier’s rights. “Terminate” is defined as including “to withdraw consent to a
person to occupy or use land”.

[56] Section 3 is a critical provision, since it deals with consent. Its heading is
“Consent to reside on land”, but subsection (1) provides that “[c]onsent to an occupier

ROGERS J
20
to reside on or use land shall only be terminated in accordance with the provisions of
section 8”. The same distinction features in subsection (2).37

[57] Section 6 is another key provision. It sets out the rights and duties of occupiers.
Subsection (1) states:

“Subject to the provisions of this Act, an occupier shall have the right to reside on and
use the land on which he or she resided and which he or she used on or after 4 February
1997, and to have access to such services as had been agreed upon with the owner or
person in charge, whether expressly or tacitly.”

Subsection (2)(a) identifies “security of tenure” as one of an occupier’s rights. In
context, this security of tenure must be understood as protecting the right to reside on
and the right to use land. The right to reside (and, with it, any rights which ESTA
automatically confers on a person with the right to reside) and the right to use are rights
sourced in the consent envisaged by subsections 3(1) and 3(2).

[58] Section 14 deals with a court’s powers when an occupier has been evicted
contrary to the provisions of ESTA. In terms of subsection (3)(a), a court may make an
order “for the restoration of residence on and use of land by the person concerned, on
such terms as it deems just”. In terms of subsection (3)(b), the court may make an order
“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”. The language of subsection (3)(b) is plainly not confined to a residential
dwelling; its language could include buildings, structures, installations and things used
for other purposes, for example a shed, kraal or tools used in connection with crops or
livestock.

livestock.


37 Section 3(2) begins: “If a person who resided on or used land on February 1997 previously did so with
consent . . .”.

ROGERS J
21
[59] Section 29(2) provides that the provisions of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act38 shall not apply to an occupier “in respect
of land which he or she is entitled to occupy or use” in terms of ESTA.

[60] ESTA envisages that an occupier may have consent to cultivate crops. In terms
of section 13(1)(a), a court making an eviction order may order the owner to pay
compensation for, among other things, “any standing crops planted by the occupier, to
the extent that it is just and equitable with due regard to all relevant factors”. Among
the relevant circumstances are whether the crops were planted with the owner’s consent.
In terms of section 13(1)(c) the court may order the owner to grant the occupier a fair
opportunity to “tend standing crops to which he or she is entitled until they are ready
for harvesting, and then to harvest and remove them”. In the case of a wrongful
eviction, section 14(3)(d) empowers a court to order the payment of compensation
contemplated in section 13.

[61] Section 7 by necessary implication envisages that an occupier may have consent
to keep livestock. In terms of subsection (1), an owner may, on 72 hours’ notice, have
a “trespassing animal usually or actually in the care of an occupier impounded and
removed to a pound”. The expression “trespassing animal” is not defined. Its ordinary
meaning is an animal which is present on the land without the owner’s consent.39


38 19 of 1998.
39 See S v Van der Westhuizen 1976 (4) SA 306 (C) at 310E-G. “Trespass” requires an element of unlawfulness
(see Hefer v Van Greuning 1979 (4) SA 952 (A)) and unlawfulness is negatived by consent. This understanding
of “trespassing animal” is reflected in the prescribed notice which an owner must give to an occupier in respect
of a trespassing animal (Form C to the Extension of Security of Tenure Act: Regulations, GN R1632, GG 19587,

18 December 1998). The following appears at the foot of the notice:
“The Extension of Security of Tenure Act gives you the right to live on the land where you were
staying on 4 February 1997 or at any time thereafter, provided you had the permission of the
owner or person in charge. It also gives you the right to carry on using any other land which
the owner or person in charge gave you permission to use on or after that date.
The Act says that if an animal which belongs to you or which you are looking after is found on
land belonging to somebody else, without permission, it may be taken to the pound. Before this
happens, the owner or person in charge of the land must give you at least 72 hours’ notice.
During this time you may go and collect the animal from where it is being kept.” (Emphasis
added.)

ROGERS J
22
[62] That the Act is concerned with the right which an occupier may have to cultivate
land or keep livestock is apparent from the definition of “occupier”. This word is
defined 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 law 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 purposes, but
including a person who works the land himself 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.”

The words I have italicised have the effect that an “occupier” includes a person who
“works the land” and does not employ others who are not members of that person’s
family. Having regard to the introductory part of the definition, the lawmaker had in
mind a person who has consent to work the land in the manner contemplated.

[63] In the context of evictions under ESTA, the availability of “suitable alternative
accommodation” has to be considered by a court.40 That expression is defined as
meaning—

“alternative accommodation which is safe and overall not less favourable than the
occupiers’ previous situation, having regard to the residential accommodation and land
for agricultural use available to them prior to eviction, and suitable having regard to—
(a) the reasonable needs and requirements of all the occupiers in the
household in question for residential accommodation, land for
agricultural use, and services.”


40 See sections 9(3)(a), 10(2), 10(3)(a) and 11(3)(c).

ROGERS J
23
Here again the lawmaker envisages that an occupier might have the right to use land for
agricultural purposes.

[64] If there is a difficulty, it arises because the lawmaker has not been consistent in
adding “use of land” when it refers to “reside on land”. And when the lawmaker uses
both expressions, sometimes they are separated by “or”, at other times by “and”. In the
present case, we need not concern ourselves with the second of these difficulties, since
the Merekis had consent to reside on the land (this was conceded in the Trust’s founding
affidavit in the LCC). We thus do not have to decide whether ESTA protects a consent
to use land in circumstances where the recipient of the consent does not also have
consent to reside on the land.

[65] As to the first difficulty, an analysis of ESTA as a whole does not reveal any
coherent scheme that would explain why “use of land” is sometimes included and
sometimes omitted. For example, an occupier is defined as meaning a person “residing
on land” and having the consent to do so, but the definition then goes on to include a
person who works the land himself or herself and employs only members of his or her
family. The definition of “person in charge” refers to a person who at the relevant time
had the legal authority “to give consent to a person to reside on the land in question”,
yet section 3(1) plainly envisages a consent “to reside on or use land”. Although the
heading to section 3 refers only to residence, subsections (1) and (2) refer to residence
on or use of land; yet subsections (3) and (4) refer to residence alone.

[66] The most inexplicable omission is in section 8. The section is headed
“Termination of right of residence” and refers throughout only to an occupier’s right of
residence. The absence of a reference to termination of the right to use land is
inexplicable, because—
(a) an occupier’s occupation rights are sourced in consent, and in terms of

(a) an occupier’s occupation rights are sourced in consent, and in terms of
subsections 3(1) and 3(2) consent may include consent not only to reside
on but also to use land;

ROGERS J
24
(b) an “occupier” as defined includes a person who is himself or herself
working the land with consent and employing only his or her family
members;
(c) “terminate”, the very thing with which section 8 is concerned, is defined
in section 1 as including the withdrawal of consent to use land;
(d) the termination of consent in terms of section 8 is a precursor to eviction
if the occupier does not vacate the land, and “eviction” includes depriving
a person against his or her will of residence on or use of land; and
(e) in the eviction process, the availability of “suitable alternative
accommodation” has to be considered, and this includes the land available
to the occupier for agricultural use.

[67] One is driven to conclude that the “right of residence” in section 8 cannot have
been intended by the lawmaker to be confined to residence in the strict sense but to
include such rights of use as ESTA elsewhere envisages, including the right to use land
for cultivation or livestock. An alternative but practically equivalent route to this
conclusion is to say that section 8 is subject to an implied term rendering the section
applicable also to the termination of an occupier’s right to use land. Words cannot be
read into a statute by implication unless the implication is “a necessary one in the sense
that without it effect cannot be given to the statute as it stands” or is “necessary in order
to realise the ostensible legislative intention or to make the [statute] workable”.41 This
test, admittedly stringent, is satisfied in the present case. Unless the section is
understood as I have indicated, ESTA would be internally inconsistent and the
ostensible legislative intent would not be achieved. The inconsistency must be resolved
in favour of an interpretation that enlarges rather than diminishes the security of tenure
afforded to occupiers. That interpretation also accords with section 39(2) of the

afforded to occupiers. That interpretation also accords with section 39(2) of the
Constitution, as it promotes the spirit, purport and objects of the Bill of Rights. As
previously stated, we are concerned here with “tenure of land” contemplated in
section 25(6) of the Bill of Rights.

41 United Manganese of Kalahari (Pty) Ltd v Commissioner of the South African Revenue Service [2025] ZACC
2; 2025 (5) BCLR 530 (CC) at para 71 and fn 92.

ROGERS J
25

[68] It can be assumed for present purposes that a right to use land for grazing
purposes may be terminated in terms of section 8 even though the occupier’s right to
reside on the land is not simultaneously terminated. On this basis, and even though the
Trust did not terminate the Merekis’ admitted right to reside on the farm, the termination
of the Merekis’ right to graze cattle on the farm, if such a right existed, had to comply
with section 8.

[69] This conclusion strikes an appropriate balance between the rights of owners and
ESTA occupiers. If the owner gave an ESTA occupier consent to graze cattle, there is
nothing unjust or disproportionate in requiring the termination of this consent, like the
termination of consent to reside, to comply with section 8 and in treating an unlawful
termination of the consent as an eviction.

[70] The conclusion I have reached in this part of the judgment does not involve a
reading-in as a constitutional remedy contemplated in section 172(1)(b). That
constitutional power is not engaged in this case, because there has been no attack on the
constitutionality of any of ESTA’s provisions. My conclusion is based on the proper
interpretation of ESTA. An expansive definition of an expression or the implication of
a necessary term is part of the legitimate process of interpretation.

Did the Merekis have consent to graze cattle?
[71] There was no express consent, but was there tacit consent? I disagree with the
SCA’s view that it was not open to the LCC to consider tacit consent. The LCC was
entitled to assess whether, on the evidence presented by the Trust, there was tacit
consent, just as the LCC would have been entitled to assess whether, on such evidence,
there had been express consent.

[72] In his founding affidavit for the Trust, Mr Nel alleged that the Merekis “never
obtained” consent to keep livestock on the farm. He said that since the passing of the

obtained” consent to keep livestock on the farm. He said that since the passing of the
Merekis’ mother, he had “made some efforts to engage” the Merekis about the fact that

ROGERS J
26
he had “never granted them consent” to keep livestock on the farm. As to when
Mrs Mereki died, he said merely that she passed away “before 2017”. When the
threadbare nature of these allegations was put to the Trust’s counsel during oral
argument in this Court, their scantness was frankly acknowledged.

[73] It is difficult to avoid the conclusion that the absence of detail as to when
Mrs Mereki died, and as to when the engagements took place and what they comprised,
was attributable to a concern that fuller disclosure would have been prejudicial to the
Trust’s assertion of an absence of consent. Mrs Mereki might have died some years
before 2017. Mr Nel would know, because the Trust bought the farm in November 2003
and took transfer the next year.

[74] According to Mr Nel, the Merekis’ late parents had consent to graze five cattle.
However, by the time the cattle grazing became contentious, there were nine. Mr Nel
has not said that the parents’ grazing of cattle became problematic during their lifetimes.
All indications are that this consent had existed for many years, since Mr Nel makes
reference to the previous owner of the farm in that context.42 The Mereki siblings lived
with their parents on the farm and in all probability were involved in tending the
livestock. There is no reason to suppose that, from the point of view of the acceptability
of having cattle on the farm, anything changed when Mrs Mereki passed away.

[75] The only evidence of a change “on the ground” is Mr Nel’s statement that in
August 2020 a stage was reached “where the continued presence of the [Merekis’]
livestock posed a threat to [the Trust’s] continued farming operations”. This is what
preceded the service of the second set of removal notices, which were dated
23 September 2020. The notices stated that a recent fire on the farm had had an adverse
effect on the available grazing.

42 In para 13.3 of his affidavit, Mr Nel said:

42 In para 13.3 of his affidavit, Mr Nel said:
“By virtue of the fact that I have bought the farm from a previous owner and to afford the
[Merekis] a reasonable opportunity to make alternative arrangements for their livestock, I
caused formal notices to be served on the [Merekis] in January 2018.”

ROGERS J
27

[76] It is against the backdrop of these facts, or lack of facts, that the question of the
presumption in section 3(4) of ESTA comes to the fore. It is there provided that, for
purposes of civil proceedings in terms of ESTA, “a person who has continuously and
openly resided on land for a period of one year shall be presumed to have consent unless
the contrary is proved”. In terms of section 3(5), this presumption becomes irrebuttable
upon three years of such residence.

[77] For reasons explained in the first part of this judgment, these presumptions
should be regarded as applying also to the use of land, including the use of land for
grazing cattle. A person may have consent to reside on and consent to use land. The
termination of such consent to use land, like the termination of consent to reside, can
only lawfully take place in compliance with ESTA. In those circumstances, there is no
rational basis for supposing that the lawmaker intended to provide a presumption only
in relation to residence and not also use of land. The open and continuous use of land,
for example in grazing cattle, is as apt a basis for a presumption as open and continuous
residence on land.

[78] Since Mrs Mereki died “before 2017”, and since the first removal notices were
served on the Merekis in January 2018, the presumption in section 3(4) is triggered.
Depending on how long before 2017 Mrs Mereki died, the irrebuttable presumption in
section 3(5) might even have been applicable. However, for present purposes we can
confine ourselves to section 3(4).

[79] Tacit consent must be presumed unless the Trust put up evidence to prove that
there was no tacit consent. The mere say-so of the owner cannot suffice. In the very
nature of things, evidence to rebut tacit consent must consist of overt acts. In my view,
the LCC was entitled to find that such evidence was lacking. The supposed engagement
by Mr Nel with the Merekis was so devoid of detail that no weight could be attached to

by Mr Nel with the Merekis was so devoid of detail that no weight could be attached to
it. And in the absence of evidence as to when Mrs Mereki died and when Mr Nel’s

ROGERS J
28
engagements with the Merekis took place, we cannot know that the acts comprising the
engagement occurred before a period of one year had passed.

[80] There is no evidence that at the time of Mrs Mereki’s death there were any
prevailing circumstances which would have moved the Trust to object to the continued
keeping of the Merekis’ cattle on the farm. We know that the Trust did not object to
the Mereki siblings continuing to reside on the farm, even though the Trust never gave
express consent. As previously mentioned, the Trust accepted in its founding affidavit
in the LCC that the Merekis were ESTA occupiers.

[81] It follows that, on the evidence before the LCC, that Court was entitled to
conclude that the Trust did not establish an absence of consent and thus did not establish
that the provisions of ESTA were inapplicable. And this conclusion precluded the LCC
from granting the relief sought by the Trust.

The Land Claims Court’s jurisdiction
[82] During oral argument in this Court the following conundrum was raised with
counsel from the bench. The Trust’s application was made on the basis that the Merekis
did not have consent to keep cattle and that, even if they had consent, their rights flowing
from such consent were a common law matter unrelated to ESTA. It was common
cause that if, contrary to this argument, there was consent and such consent was
protected by ESTA, the Trust had not complied with ESTA in terminating the consent.
Why then did the LCC have jurisdiction?43 If the Trust was right, why was the case not
one for the High Court? And if the Trust was wrong, so that the matter fell within the
jurisdiction of the LCC, it was common cause that the Trust had to fail because of non-
compliance with section 8 of ESTA.

[83] This conundrum was not considered by the LCC or the SCA and was not the
subject of written argument. Margre might be regarded as supporting the view that the

43 On the LCC’s jurisdiction, see n 35 above.

ROGERS J
29
High Court rather than the LCC would have jurisdiction to adjudicate the claim
formulated in the Trust’s founding affidavit. In Tsotetsi44 the LCC took a wider view
of its jurisdiction.

[84] Particularly in the absence of full argument, it is undesirable for this Court to
resolve the issue as a court of first instance. It is also unnecessary to do so. Treating
the matter as an appeal properly emanating from the LCC, we have concluded that the
LCC was right to dismiss the Trust’s application on the merits. If instead the LCC
should have declined jurisdiction, the practical result would have been the same: the
dismissal of the application or perhaps the striking of the application from the roll.

Procedural unfairness?
[85] The Trust complains that the LCC reached conclusions on matters that were not
put to its counsel. Even if that were so, it would not justify a refusal by this Court to
engage with the case on its merits. The matter has been argued in the SCA and again
in this Court. If the Trust considers that its legal submissions might have persuaded the
LCC to a different point of view, its counsel have had the opportunity to advance their
submissions in the SCA and in this Court.

[86] In any event, there was in my view no procedural unfairness. The Trust’s legal
team knew that, despite the absence of opposition, the LCC was unsure that the Trust
had made out a case for the relief claimed. The matter stood down on the first day to
allow counsel to address difficulties raised by the Judge. On the following day the LCC
issued directions requiring the Trust to make submissions—

“on whether there are sufficient allegations in the founding affidavit to grant relief in
circumstances where (1) the SCA has accepted that in some circumstances, the removal

44 Tsotetsi v Raubenheimer N.O. [2021] ZALCC 2; 2021 (5) SA 293 (LCC).

ROGERS J
30
of cattle may amount to an eviction45 and (2) there was no engagement with the
respondents prior to the purported termination of any right to keep cattle during 2020.”

[87] Following the further oral hearing, the LCC afforded the Trust an opportunity to
file written argument. We do not know exactly what the written argument covered.
Nonetheless, the LCC’s queries raised questions as to whether the Merekis had the right
to graze cattle and whether the termination of that right amounted to an eviction for
purposes of ESTA. It may be that the LCC’s thinking on these matters had not yet
crystallised. That did not mean that the LCC could not adopt the reasoning it ultimately
did.

Conclusion and order
[88] It follows that the appeal must succeed. The Merekis are entitled to costs in the
SCA and in this Court. The importance of the issues warranted the employment of two
counsel.

[89] The following order is made:
1. Leave to appeal is granted.
2. The appeal succeeds.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“(a) The appeal is dismissed.
(b) The appellant must pay the costs of the first, second and third
respondents, including the costs of two counsel.”
4. The applicants must pay the first respondent’s costs of opposing the
applicants’ application for leave to file a replying affidavit, including the
costs of two counsel.
5. The applicants must bear their own costs in respect of their condonation
application.

45 The LCC here referenced Normandien above n 26 at paras 59-60 and Loskop above n 6 at paras 14-17, as well
as two LCC judgments.

ROGERS J
2
6. Save as set out in paragraphs 4 and 5 above, the first respondent must pay
the applicants’ costs in this Court, including the costs of two counsel.

For the Applicants:


For the First Respondent:

T Ngcukaitobi SC and N Qwabe
instructed by Legal Aid South Africa

M Roberts SC and E Roberts instructed
by Moolman and Pienaar Incorporated