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IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Case number: 2025 – 168480
Before: The Honourable Acting Judge Montzinger
Hearing: 24 November 2025
Delivered: 12 March 2026
In the matter between:
MASOTHA HEZEKIA NGWENYA First Applicant
DUNGEZULA DANYELA NZIMA Second Applicant
ZAKHELE VILAKAZI Third Applicant
and
GROW AND MORE (PTY) LTD First Respondent
MARTHINUS HERMANUS STAPELBERG Second Respondent
VAN SCHALKWYK STAPELBERG Third Respondent
(1) REPORTABLE: Yes☐/ No ☐
(2) OF INTEREST TO OTHER JUDGES:
Yes☒ / No ☐
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MINISTER OF THE DEPARTMENT OF LAND
REFORM AND RURAL DEVELOPMENT
Fourth Respondent
___________________________________________________
Summary: Extension of Security of Tenure Act 62 of 1997 (ESTA) – urgent
application in terms of Rule 34 of the Land Court Rules – long delay in the bringing
of urgent application – ESTA occupiers’ rights to access to education for their
children, access to water and the right to renovate dilapidated mud structures,
the right to grazing of livestock. Disputes of fact - principles governing interdicts
in the context of ESTA occupiers.
ORDER
The interim interdict granted by this Court on 18 September 2025 is hereby
confirmed subject to the variations set out below.
1. The forms and services prescribed by the rules of this court be dispensed
with and the matter is heard as one of urgency in terms of Rule 34.
2. The First to Third Respondents and anyone acting on their instructions ,
are interdicted and restrained from preventing or obstructing the school
bus authorised by the Department of Education from entering Farm 412
Kolwani, Amsterdam, to collect and return the school-going children of the
Applicants at their homesteads.
3. The first respondent is directed to restore the applicants' access to potable
water within 30 days of this order, by one or more of the following means:
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3.1 Reconstructing and rendering operational the existing borehole
previously used by the applicants for potable water;
3.2 As an alternative to 3.1, installing alternative water infrastructure
capable of providing potable water to the applicants' homesteads;
3.3 Further in the alternative to 3.1 and 3.2, arranging the delivery of
water tanks containing potable water sufficient for the domestic
needs of the applicants and their households.
4. The restored water supply, as foreshadowed in 3.1 to 3.3 above, must
provide potable water that is separate and distinct from any water sources
used by animals on the farm, and must be maintained thereafter at the
first respondent's expense.
5. Pending full compliance with the provisions of paragraphs 3 and 4
(including sub-paragraphs), the first respondent shall forthwith, from the
date of this order, ensure that temporary water tanks containing potable
water are available to the applicants, sufficient for their domestic needs.
6. The First to Third Respondents and anyone acting on their instructions ,
are interdicted and restrained from interfering with the Applicants’
rebuilding or repair ing their existing dwellings on the same footprints of
the current structures, to the extent reasonably necessary to ensure the
habitability and safety of those dwellings, provided that the Applicants
shall not use brick material to effect such rebuilding or repairs.
7. The First to Third Respondents, and anyone acting on their instructions,
are interdicted and restrained from interfering with the applicants' exercise
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of their existing grazing rights , being 20 hectares each for the First and
Second Applicants and 9 hectares for the Third Applicant, together with
their respective vegetable gardens.
8. For the avoidance of doubt, th e order in paragraph 7 above does not
authorise or extend grazing rights beyond the demarcated areas
described above.
9. Each party to pay their own costs.
JUDGMENT
Montzinger AJ:
Introduction
[1] This matter involves an urgent application brought in terms of Rule 34 of the
Land Court’s Rules. The applicants are three families who live in separate
homesteads on Farm 412 Kolwani, Amsterdam, Mpumalanga Province. The first
respondent is the owner of the Kolwani farm while the second and third
respondents is its directors. I will collectively refer to the first to third respondents
as “the respondents”. The fourth respondent is the Minister responsible for the
Department of Land Reform and Rural Development. The Minister did not
participate in the proceedings.
[2] The applicants approached the court on motion. In substance, the applicants
seek mandatory interdictory relief aimed at securing: (a) access for a school bus
to enter the Kolwani farm to collect and drop off the kids residing at the various
homesteads; (b) access to water and relief addressing the applicants’ complaint
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that they are compelled to obtain and drink water from the same source also used
by the livestock; (c) permission to rebuild (or replace) brick houses or mud
structures on the same foundations as the ones they currently occupy; and (d)
restoration of the “status quo ante” in relation to cropping and grazing land by
their livestock as well as access to boreholes for clean drinking water.
[3] The applicants contend that they are occupiers as envisaged in the Extension
of Security of Tenure Act 62 of 1997 (“ESTA”), and also labour tenants as
envisaged in the Land Reform (Labour Tenants) Act 3 of 1996 (LTA) . While, the
ESTA occupier status of the applicants is not denied, the respondents do deny
the Labour Tenancy claims of the applicants. However, this matter is approached
from the common cause position that the applicants, and the families they
represent, are all ESTA occupiers.
[4] On 18 September 2025, and in accordance with the practice in this court in
dealing with urgent applications read with Land Court Rule 34, I granted an order
in the form of a rule nisi that substantially corresponded with the relief claimed for
in the notice of motion. The rule nisi order operated as an interim interdict pending
the return date which was on 24 November 2025. Pursuant to directions issued
with the rule nisi order, answering and replying affidavits, with extensive
annexures, were filed by the parties.
[5] The application is opposed by the respondents. In broad terms, the opposition
is on four bases. First, the respondents dispute urgency. Second, various points
in limine are raised, which according to the respondents if sustained is fatal to the
application. The in limine points include a criticism of material non-disclosures in
the founding affidavit by the applicants, that there are various disputes of fact
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which cannot properly be resolved on the papers that are material to the relief
sought, and that the application is an abuse of process. Third, and in any event,
apart from the in limine points, the respondents contend that no case for
interdictory relief has been made out either on the facts or the law.
[6] Against this summary introduction, in the next section, I provide a contextual
overview of the history and circumstances of the applicants’ occupation and their
relationship with the successive owners of the Kolwani farm.
The relationship between the parties
[7] The first applicant, Mr Ngwenya, is 58 years old and was born on the Kolwani
farm in 1967. His father lived as a farm worker on the farm while his mother
worked as a domestic. Initially, the first applicant’s parents worked without
monetary remuneration and were compensated by rations of maize and
permission to keep livestock. Initially, as a child of ten years old and later as an
adult, he also worked on the farm in various capacities, including as a field worker,
stock handler and plumber. The first applicant represents the Ngwenya family,
while the second and third applicants represent the Nzima and Vilakazi families
respectively.
[8] The second and third applicants also have a similar story to that of the first
applicant. Both of their families support the relief and have a multi-generational
personal connection to the Kolwani farm. At least the second and third applicants’
parents are buried on the farm and as a result the Kolwani farm holds great
personal significance for all the applicants and their families.
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[9] Over the years the farm changed ownership several times. Initially it was
owned by a Mr J.Z. Moolman (known to the applicants as “Ngondla”), thereafter
managed and/or owned by Ms Sarie Swart (known to the applicants as
“Gadlanga”), and later , around 1997, by Elands Spruit Trust under the
management of a farmer known to the families as “Sikenkula”1. Under Elands
Spruit Trust and “Sikenkula”, the Ngwenya, Nzima and Vilakazi families were
allowed to reside on the farm, to keep livestock, and to cultivate designated
portions of arable land. They were also permitted, at least according to the
applicants, to rebuild their homesteads, consisting of mud structures. The
applicants also had access to a borehole for clean drinking water. The school bus
was permitted to enter the farm and to collect the children at or near their
homesteads for transport to the local school.
[10] In or about 2014 the farm was acquired by Klein Vrystaat Boerdery (Pty) Ltd,
whose directors were Mr Marthinus Hermanus Stapelberg (the second
respondent) and Mr Van Schalkwyk Stapelberg (the third respondent). These are
the same individuals who are also the directors of Grow and More (Pty) Ltd, the
first respondent in this application, who acquired the Kolwani farm from Klein
Vrystaat Boerdery during 2022, via an internal transaction.
[11] At various points between 2016 and 2019 t he respondents-initiated
negotiations aimed at relocating the Ngwenya, Nzima and Vilakazi families as
well as the Majola family to alternative land. This alternative land was the farm
Sarashof which is adjacent to the Kolwani farm and is also owned by the first
respondent. The offers for relocation included for the State to purchase Sarashof
1 This is Mr Van Oudtshoorn to who reference will be made later
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from the first respondent for transfer of ownership to the families as well as
financial support. There were also alternative offers that the families relocate to
Sarashof while ownership remained with the first respondent, with the applicants’
families being granted continued access to larger grazing and cropping areas and
permission to erect brick houses. Further in the alternative offers were also made
that each family accept a monetary payment to relocate elsewhere. The
applicants were assisted at different times by attorneys instructed by the
Department of Rural Development and later by Legal Aid. In any event the
applicants rejected these offers, expressing concerns inter alia about competing
land claims on Sarashof, the alleged unsuitability of the land for cultivation and
grazing, lack of water, and their desire to remain on what they regard as their
ancestral homes. The Majola family did accept a relocation offer from the first
respondents, although they did not relocate to the Sarashof farm.
[12] It seems that since 2015/2016 and thereafter, the relationship between the
applicant families and the respondents deteriorated. The respondents allege a
pattern of misconduct by the family members of the applicants that include
fence-cutting, unauthorised grazing of the applicants’ cattle in cultivated fields,
hunting with dogs in the nature reserve, interference with game and commercial
operations, and harassment of the respondents’ staff and family members. Some
of the alleged conduct culminated in protection order proceedings in the
Magistrates’ Court at Amsterdam town under the Protection from Harassment
Act. The applicants, for their part, allege that the respondents have used security
measures, unilateral decisions regarding the nature and extent of their continued
tenure and malicious conduct to render their continued occupation on the Kolwani
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farm intolerable in an attempt to exert pressure on them to accept the relocation
offers.
[13] The manifestations of the deterioration of the relationship between the parties
and the actions taken by the respondents relate to four issues that became the
subject of this application. They relate to the school bus access for the children
at the homesteads, the conditions of the structures the applicants’ families
occupy, access to water and lastly the extent of the grazing of the applicant
families’ cattle.
[14] In respect of the school bus access it is common cause that for many years
the school bus entered the farm along an internal gravel road to collect children
from the homesteads to take them to school. In 2023, the first respondent’s
representatives decided to deny the bus entry to the farm, raising concerns about
damage to the road, the impact on the nature reserve, the behaviour of children
towards the dogs, and safety and security.
[15] Regarding the conditions of the structures, the applicants alleged that they
occupy mud structures which are severely dilapidated and in danger of
collapsing. They further allege that the respondents have refused to allow them
to rebuild their houses on the existing foundations, whether using mud or brick,
and that attempts at renovation are met with surveillance by a drone and
instructions to cease work. The respondents deny that they have ever refused
reasonable maintenance or repair of the existing structures, stating that they have
only objected to the erection of new brick and mortar houses within the nature
reserve area, particularly given the envisaged relocation and the nature-reserve
status of the property.
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[16] With regard to access to water the applicants allege that there was a borehole
equipped with a hand-pump which supplied potable water to the families. The
applicants allege that the borehole was destroyed or disabled by or at the
instance of the respondents after the relocation negotiations between the parties
failed, leaving them no option but to draw water from a surface stream or well
used by the livestock on the farm, which they describe as undignified and a health
hazard.
[17] In respect of grazing of their cattle, the applicants contend that they are
entitled to grazing land on the farm as this was the position granted by the
previous owners who allocated them land for their cattle to graze. The applicants
assert that since the first respondent bought the property, it has attempted to
limited the applicants’ grazing of their cattle as allowed by the previous owner.
[18] What I have set out in the preceding paragraphs provides a bird’s eye view
of the relationship between the parties and the context in which the relief should
be considered. Next, I turn to consider whether the applicants have made out a
case for urgency.
Urgency
[19] The respondents submit, in limine, that the applicants have failed to comply
with the requirements of urgency as they have not adequately set out grounds
why the matter is urgent. Further, if the matter is urgent, then the applicants have
certainly created their own urgency. Also, according to the respondents, the
applicants have failed to demonstrate why they cannot obtain substantial redress
in due course.
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[20] In support of the challenge to lack of urgency or that urgency is self-created,
the respondents point out that the relief sought relates to disputes that have been
brewing for years. The dispute about the bus entering the farm dates back to at
least 2023. The water issue also has a long history dating back to at least
2017/2018, and the applicants have drawn water from the current source used
by the animals for several years and they cannot now rely on that situation to
create urgency. Furthermore, that the allegations regarding the need to renovate
the dilapidated mud structures are exaggerated and in some respects fabricated.
In respect of the grazing issue the response is simply that the respondents have
not changed the applicants’ rights in respect thereof. In addition, the respondents
also contend that the applicants have been legally represented over time.
Therefore, the contention as a justification for the delay, that the applicants had
financial constraints and did not receive sound legal advice to institute the
proceedings earlier is therefore implausible.
[21] For the applicants’ part they accept that the disputes have a long history but
argue that urgency arises from the ongoing and daily nature of the infringements
of their dignity they suffer. They contend that every school day that the children
are required to rise at 04h00, walk 8 km in the dark and in inclement weather to
the R65, and arrive at school fatigued, constitutes a fresh impairment of the
children’s right to basic education and their safety. Furthermore, every day that
the families draw drinking water from the same source used by animals, in
circumstances that are undisputedly undignified, gives rise to a fresh violation of
their dignity and bodily integrity. The housing conditions are not a once-off harm
but a continuing risk, the prospect that the unsound mud dwelling may collapse
cannot be addressed retrospectively by a judgment in the future.
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Urgency: The legal principles
[22] Rule 34 fulfils, in this Court, the same function that Uniform Rule 6(12) fulfils
in the High Court Divisions, adapted to the Land Court’s processes. Under Rule
34(1) the Court may, in urgent applications, dispense with any provision of the
Rules and dispose of a matter at such time, place and in such manner as it
considers just. That wide discretion is constrained by Rule 34(2) that requires an
applicant in the founding affidavit to set out explicitly both the circumstances
which render the matter urgent and the reasons why substantial redress cannot
be obtained at a h earing in due course. The fact that Rule 34(3) to (6) provides
additional mechanisms, such as approaching the Judge President for the
appointment of a presiding judge and seeking directions on truncated time-limits,
does not relax the substantive requirements.
[23] Therefore, the general principles that have developed under Uniform Rule
6(12), in respect of urgency, apply with equal force in this Court , when an
applicant approaches the court urgently.
[24] As Fagan J held in IL & B Marcow Caterers
2, the indulgence of an urgent
hearing is justified only where “sufficient and satisfactory” grounds are shown,
including an explanation why ordinary time-periods will not provide substantial
redress, and with due regard to the prejudice to the respondent and to other
litigants whose cases are displaced on the roll. Urgency is assessed objectively
and mere importance to the applicant does not suffice, and self-created urgency
2 IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v
Hypermarket (Pty) Ltd and Another 1981 (4) SA 108 (C) p 112 - G
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will generally not warrant departure from the ordinary procedures 3. Although
delay is relevant, it is not determinative and is not, on its own a ground, for
refusing to regard the matter as urgent. A court is obliged to consider the
circumstances of the case and the explanation given. The important issue is
whether, despite the delay, the applicant can or cannot be afforded substantial
redress at a hearing in due course
4.
[25] It is obvious that there has been a long delay , in the launching of the
application. Approximately 6 to 7 years in respect of the water issue alone.
However, my discretion in treating the matter as urgent takes into consideration
the contentions by the applicants that the ir rights as provided for in the
Constitution and ESTA are being continuously infringed . In the context of our
Constitutional dispensation it cannot be that an applicant is denied recourse by a
court merely because there was a long delay in the launching of proceedings, in
particular where the infringing of constitutional rights like dignity, right to access
to housing and basic education , on a continuous basis, is implicated. I find
support for this approach by extrapolating similar sentiments from the
Constitutional Court judgments of Informal Traders
5, Moko6 and Mtolo7.
[26] However, even if I am criticised for trying to read too much into the above-
mentioned judgments to establish a principle to assist vulnerable ESTA
3 New Nation Movement NPC and Others v President of the Republic of South Africa and Others
(CCT110/19) [2019] ZACC 27; 2019 (9) BCLR 1104 (CC) (3 July 2019) paras 6 - 9
4 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011); [2012] JOL 28244 (GSJ)
5 South African Informal Traders Forum v City of Johannesburg; South African National Traders
Retail Association v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014 (6)
BCLR 726 (CC)
BCLR 726 (CC)
6 Moko v Acting Principal, Malusi Secondary School [2020] ZACC 30; 2021 (3) SA 323 (CC); 2021
(4) BCLR 420 (CC)
7 Mtolo and Another v Lombard and Others (CCT 269/21) [2021] ZACC 39; 2022 (9) BCLR 1148
(CC) (8 November 2021
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occupiers, where they have simply delayed too long, according to the
respondents, I in any event decide to exercise my discretion in hearing the matter
for the reasons that I will expand on hereafter.
Why the matter is urgent
[27] The complaint regarding the school bus is not merely that the bus was
stopped in 2023 to collect the children. It is that, at the time the application was
launched in September 2025, eight children were, on an ongoing basis, required
to walk a considerable distance in the early hours of the morning on farm and
public roads, in all weather conditions, to access basic education. The principal’s
letter of August 2025 is explicit both as to the physical strain and the adverse
educational consequences this situation had on the children.
[28] In relation to the water issue, the respondents do not dispute that the families
are currently drawing drinking water from a source shared with the farm’s
livestock. This is certainly less dignified and less safe than access to for example
a properly equipped borehole. The respondents’ defence is that they are not
responsible for the destruction of the borehole that was supplying the applicants
and that they cannot be compelled to incur further expense or to sink new
boreholes in circumstances where the families resist relocation. Whatever the
outcome on the merits, however, the factual position that human beings are
compelled to drink from an animal-used source is objectively undignifi ed and
implicates section 10 of the Constitution as well as the right to basic water
services contemplated in ESTA. That position is not static in a legal sense. Each
day that it persists compounds the affront to dignity and the risks to health.
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[29] Similarly, the allegations regarding the state of the mud structures are
forward-looking rather than backward-looking. The applicants state that the mud
structures are already in a serious state of disrepair and may collapse at any time,
and that their attempts to maintain or rebuild them have been refused or
obstructed. The respondents dispute the extent and cause of deterioration but do
not seriously contest that the structures are fragile and vulnerable to weather
damage, nor can or do they dispute that, in the instance of a dwelling collapsing
and injury is suffered, no court order can reverse the possibility of physical harm.
[30] In the context of this matter, I am of the view that “substantial redress” cannot
be equated with the abstract availability of similar relief at some future date. It
must take account of the qualitative impact of the delay in the interim period. To
use but one example: even if the court on the ordinary roll 12 months from now
orders that a bus may enter the farm, such an order could not repair the
educational prejudice suffered by the children on a daily basis until that time. Nor
can a later order fully compensate for years of compromised dignity arising from
the water and housing conditions.
[31] I am also mindful of the particular institutional context of the Land Court.
While this Court is not immune from resource constraints, it does not face the
same volume pressures as the busier divisions of the High Court. Its jurisdiction
is focused on land, tenure and reform matters, and the litigants appearing before
it, are often vulnerable farm occupiers (as is the case in this matter) and labour
tenants whose access to persistent and well-resourced legal representation is
limited.
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[32] Furthermore, by the time the matter was argued on 24 November 2025 the
respondents had had sufficient time to place a comprehensive answering affidavit
of some 200-plus pages before the court, with voluminous annexures and
detailed legal submissions. They have not, in their heads of argument or oral
submissions, indicated any specific respect in which the truncated time periods
prevented them from presenting material evidence or argument that would
otherwise have been available. Whatever prejudice may have existed when the
rule nisi was granted was substantially cured by the opportunity to file answering
papers, heads of argument, and to argue the matter fully on the return day.
[33] In the result, I am satisfied that the applicants have, albeit not with ideal
fullness, set out sufficient circumstances rendering the matter urgent and have
demonstrated cogent reasons why substantial redress in due course would not
be adequate in respect of the relief that they seek.
Remaining preliminary issues
[34] The application therefore falls to be considered on its merits, but first I turn
to the remainder of the in limine points also raised by the respondents.
Disputes of fact and the Plascon-Evans approach
[35] The respondents submit that the application cannot properly be determined
on the papers because there are material and irresolvable factual disputes. As
articulated in argument, the disputes said to be material include: (a) the nature
and extent of any permission given by the prior owners for cropping and grazing;
(b) what, if any, permission was given by the previous owner, Mr van Oudtshoorn,
regarding repairs or the erection of structures; (c) whether there is a need to repair
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existing structures or erect new ones; (d) whether the respondents, instead of the
Department of Education, are entitled to transport school children from the
homesteads to the bus pick-up/drop-off point as an alternative to the school bus
entering the farm; and (e) who sabotaged the boreholes.
[36] In motion proceedings where final relief is sought, disputes of fact are
approached in accordance with the well-known principles in Plascon-Evans
8,
which lay down guidance on how a court should resolve factual disputes.
However, the respondents’ in limine objection that there are irresolvable disputes
of facts fails for two related reasons. First, several of the “disputes” identified are
either not disputes at all, or they are disputes only as to degree or detail rather
than the existence of the right or entitlement said to be interfered with.
[37] On cropping and grazing, the respondents’ own version records that each
homestead may have a small vegetable garden and that specified grazing areas
were allocated by the erstwhile owners, including a grazing area of approximately
60 hectares which was shared between the first and second applicants and
another family, with the Vilakazi family having their own area. Therefore, the
existence of some cropping and grazing entitlement is, on the respondents’ own
version, not in issue.
[38] Similarly, in relation to repairs and maintenance of the mud structures at the
homesteads. The respondents repeatedly state that they have not refused
reasonable maintenance and repairs to the existing mud structures, if required.
Their objection is to brick and mortar construction. On the respondents’ version,
8 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
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therefore, the applicants’ entitlement to do repairs and maintenance is not
genuinely disputed.
[39] In respect of the school transport for the children, it is common cause that
the respondents have resisted the school bus travelling on the internal farm road
and justified its resistance by proposing alternatives to the bus collecting and
dropping the children. There is no dispute that makes the resolution of this issue
impossible.
[40] The question of who sabotaged the borehole infrastructure may appear to
present a dispute of fact. However, that issue, even if accepted in the
respondents’ favour in terms of Plascon-Evans, does not by itself dispose of
whether the applicants, as occupiers, have a right not to be denied access to
water and whether the respondents’ conduct amounts to a denial or deprivation
of access to water.
[41] For these reasons, the asserted disputes do not render the matter incapable
of determination on the papers. To the extent that any of the disputed matters
prove material to a particular item of relief, the court is able, employing
Plascon-Evans, to decide the application on the admitted facts together with the
respondents’ version.
A case made out in reply
[42] The respondents further submit that the applicants impermissibly made out
their case in reply and that this offends the general trite principle that an applicant
must stand or fall by the case made in the founding affidavit. A replying affidavit
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is not the place to introduce a new cause of action or to shift the case the
respondent must meet.
[43] According to my assessment, the general rule is not offended. In the present
matter the relief sought remains that set out in the notice of motion. To the extent
that there are additional averments in reply, much of it is directed at answering
the respondents’ version and addressing matters raised in the answering
affidavit. In any event, and as a matter of approach, the proper remedy for
genuinely new matter introduced in reply is ordinarily that it be disregarded. Since
the respondents did not file a further affidavit or insist on filing a response to the
alleged new matter, I shall in any event decide the matter, as far as possible, on
the basis of the case made out in the founding papers read with the admissible
responses thereto.
Abuse of process and “dirty hands”
[44] The respondents contend that the applicants’ recourse to urgent proceedings
and by obtaining an order in the form of a rule nisi, constitutes an abuse of
process to obtain a tactical device to derail or delay the possible relocation of the
applicants. Consequently, the applicants are accused of having approached the
court with unclean hands.
[45] On the papers it is apparent that there has been a long history of animosity
between the parties. Even accepting that there has been contested and
protracted efforts to relocate the applicants, that does not, without more, establish
that this application is an abuse. The applicants’ position is that they do not intend
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to relocate and that the respondents’ conduct amounts to constructive eviction. It
follows that the present application is directed at alleged ongoing interferences
with rights they claim as occupiers. As to the allegations of “dirty hands”, the
papers reflect serious allegations and counter-allegations. At this stage, it is
neither appropriate nor necessary to resolve issues of fault or moral blame as a
bar to the adjudication of the parties’ rights.
[46] Finally, insofar as the respondents rely on alleged non-disclosures to impugn
the granting of the rule nisi order, it bears emphasis that there were no facts
disclosed during the filing of the further affidavits which if known at the time the
application was first considered would have prevented me from granting the rule
nisi order.
THE MERITS
[47] I now turn to consider whether the applicants are entitled to the interdicts
sought in the notice of motion. First, a brief exposition of the legal requirements
an applicant seeking final relief must establish.
The legal framework – requirements for final interdict
[48] It is trite law, as per Setlogelo
9, that an applicant who approaches a court on
motion for the grant of a final interdict must establish three requisites, all of which
must be present. These requirements are: (a) a clear right on the part of the
applicant; (b) an injury actually committed or reasonably apprehended; and (c)
the absence of any other satisfactory remedy.
9 Setlogelo v Setlogelo 1914 AD 221 at 227
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[49] As for a clear right, an applicant must prove the right it seeks to protect on a
balance of probabilities. Whether an applicant has such a right is a substantive
law question, but whether it has been established is an evidential question10. The
right must thus exist in law (encompassing the broad range of rights recognised
by both common law and statutory law) and must be proved in fact, substantiated
with evidence. Where the clear right is disputed the court employs the approach
as laid down in Plascon-Evans
11 to resolve the dispute.
[50] A particular difficulty arises where the applicant establishes a clear right, but
the respondent also asserts a competing right that is itself recognised in law. In
the context of ESTA, this tension frequently manifests between an occupier's
statutory and constitutional rights on the one hand, and the landowner's right to
property protected by section 25 of the Constitution on the other.
[51] The Constitutional Court has addressed this tension in various judgments,
but the most significant is the landmark judgment of Daniels
12 where the question
was whether an ESTA occupier had the right to make improvements to her
dwelling to render it habitable, without the consent of the owner. Ultimately, the
approach sanctioned by the law is therefore one of balancing. As was stated in
the Port Elizabeth Municipality
13, the courts are called upon "to balance
competing interests in a principled way and promote the constitutional vision of a
caring society based on good neighbourliness and shared concern". The task is
10 Equistock Properties 8 (Pty) Ltd and Another v Oosthuizen and Others (738/2023; 739/2023)
[2025] ZASCA 6 (29 January 2025) par 17
11 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634-5; Fakie
NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 55; Thint (Pty) Ltd v National Director
of Public Prosecutions; Zuma v National Director of Public Prosecutions [2008] ZACC 13; 2008
of Public Prosecutions; Zuma v National Director of Public Prosecutions [2008] ZACC 13; 2008
(2) SACR 421 (CC) para 8-10
12 Daniels v Scribante 2017 (4) SA 341 (CC)
13 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
22 | Page
to "balance out and reconcile the opposed claims in as just a manner as possible,
taking account of all the interests involved and the specific factors relevant in
each particular case". Section 6(2) of ESTA itself expressly provides for the
balancing of the rights of the owner and ESTA occupier without prejudice to the
rights contained in section 5 of ESTA.
[52] The second requirement for a final interdict is that the applicant must
demonstrate an injury actually committed or reasonably apprehended, that is, an
actual or threatened invasion of the right that has been established . In V & A
Waterfront Properties
14 the Supreme Court of Appeal, clarified the meaning of
"injury" in the context of interdict proceedings. Ultimately, the legal position, as
per V & W Waterfront Properties, is that the "injury" does not necessarily have to
entail physical harm or pecuniary loss and that the term designates something
actually done which is prejudicial to, or interferes with, the applicant's right. To
prove the necessary injury or harm, it is enough to show that a right has been
invaded; the fact that physical means were employed or physical consequences
sustained is incidental
15. Further, the injury must be of a continuing nature, or
there must be a reasonable apprehension that it will be repeated 16. The test in
regard to the injury requirement is objective and the question is whether a
reasonable man, confronted by the facts, would apprehend the probability of
harm
17.
14 V&A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd
and Others [2006] 3 All SA 523 (SCA); 2006 (1) SA 252 (SCA)
15 V & A Waterfront par 21
16 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] 4 All
SA 225 (SCA); 2008 (5) SA 339 (SCA) paras 21 - 21
17 Minister of Law and Order v Nordien 1987 (2) SA 894 (A) at 896. See also Janit v Motor Industry
Fund Administrators (Pty) Ltd [1994] ZASCA 110; 1995 (4) SA 293 (A) at 304, End Conscription
Campaign v Minister of Defence 1989 (2) SA 180 (C) at 208I-209C
23 | Page
[53] The third and final requirement is that there must be no other ordinary or
satisfactory remedy available to the applicant. Ultimately, the question is always
whether the alternative remedy, if it exists, would (i) be adequate in the particular
circumstances
18, (ii) be ordinary and reasonable 19, (iii) is a legal remedy 20, and
(iv) grant similar protection than an interdict 21. However, even where an injury
may be capable of pecuniary evaluation and compensation, the court will grant
an interdict if the injury is a continuing violation of the applicants’ rights
22.
The merits – Overarching narrative of constructive eviction
[54] Having addressed the applicable legal framework, I now turn to the merits of
the applicants' case. However, before undertaking that exercise, it is instructive
to consider the broader factual matrix within which the individual complaints must
be understood.
[55] The applicants contend that, following their refusal to accept the respondents'
various offers to relocate to the Sarashof farm, a series of events unfolded which
collectively have rendered their continued occupation of Kolwani farm almost
intolerable. They characterise these events as a form of constructive eviction as
it amounted to an intentional curtailment of rights they have always enjoyed.
These events also had the effect of altering their living conditions designed to
coerce them into abandoning their ancestral home and accepting relocation on
18 Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC) at [44] – [51] – with
reference to the authorities relied on.
19 Martin v Kiesbeampte Newcastle Afdeling 1958 (2) SA 649 (D) 654.
20 Hotz and Others v University of Cape Town [2016] 4 All SA 723 (SCA), 2017 (2) SA 485 (SCA)
21 Crystal Holdings (Pty) Ltd v Regional Land Claims Commissioner [2008] 1 All SA 243 (N) paras
87–91.
22 Crystal Holdings supra with reference to Wynberg Municipality v Dreyer 1920 AD 439.
24 | Page
the respondents' terms. There are several factors which, on the papers before
the Court, lend considerable support to the constructive eviction characterisation.
[56] First, the timing of events. It is common cause that negotiations for the
applicants to relocate to Sarashof commenced in or around 2016 and continued
through various iterations until at least 2024. The applicants consistently refused
these proposals. While the respondents assert that the approval for a nature
reserve existed much earlier, it is not entirely clear from the record when the
approval was actually obtained. It seems to me the best indicator is that the
respondents only seriously started to give effect to any nature reserve approval
during 2020. The claim of a nature reserve protection and its development clearly
became more apparent after it was obvious that the applicants would not
voluntarily relocate to Sarashof or relocate voluntarily off the Kolwani farm.
[57] Second, and most tellingly, is the affidavit evidence of Ms Dorentia
Stapelberg. In her confirmatory affidavit filed in support of the protection order
proceedings, Ms Stapelberg, who describes herself as the Manager of the first
respondent, recalls an incident in 2015 involving Meluzi Nzima, connected to the
second applicant. Regarding the incident, she stated in 2024:
"That was the first incident I remembered and from that day these people
was causing trouble and created havoc. We as management decided
after many months of consideration these people will be better off
elsewhere." [underlining added]
[58] This statement by Dorentia Stapelberg is revealing. It means that as early as
2015, a year after acquiring the farm , the respondents' management made a
25 | Page
decision that the applicant families "will be better off elsewhere." What followed
this decision is a timeline of events that objectively made the applicants' lives on
Kolwani farm progressively more difficult: (i) the destruction or sabotage of the
borehole in 2017, (ii) the refusal to allow the school bus access from 2023, (iii)
the refusal to permit repairs to the mud structures or to build new structures, and
(iv) the use of herbicides near the applicants' dwellings and crops. The inference
is irresistible that these were not isolated incidents or the reasonable exercise of
ownership rights, but rather a coordinated effort to implement the 2015
management decision by making conditions so intolerable that the applicants
would have no choice but to leave.
[59] Third, the affidavit of Mr Louis van Rheede Van Oudtshoorn, in support fo
the respondents’ opposition, provides independent corroboration of the rights that
the applicants assert. Mr van Oudtshoorn farmed with his father on Kolwani farm
before it was sold to Klein Vrystaat Boerdery during 2014 and subsequently the
first respondent. In his affidavit Mr Van Oudtshoorn confirms each of the rights
that the applicants now seek to enforce. This evidence is particularly compelling
because Mr van Oudtshoorn has no interest in the current dispute.
[60] Viewing these three considerations together, a clear picture emerges. The
applicants enjoyed certain established rights under the Van Oudtshoorn
ownership. Ultimately, the first respondent acquired the farm with an intention to
develop it as a nature reserve and commercial farming operation and pursued
the relocation of the applicants. When the applicants refused, a decision was
made that they "will be better off elsewhere," and a series of actions followed that
systematically undermined the applicants' ability to live with dignity on the farm.
26 | Page
This constitutes, in substance if not in form, an attempt at constructive eviction ,
an unlawful attempt to circumvent the protections afforded to occupiers under
ESTA by making their continued residence untenable.
[61] With this overarching context and framework in mind, I turn to consider each
category of relief sought by the applicants.
School Bus Access
[62] As foreshadowed, the applicants are occupiers in terms of ESTA. Section
6(1) of ESTA provides that an occupier has the right to reside on and use the land
on which he or she resided and to have access to such services as had been
agreed upon with the owner or person in charge, "whether expressly or tacitly."
Section 6(2)(f) of ESTA goes further and provides that balanced with the rights of
the owner or person in charge, includes the right “not to be denied or deprived of
access to educational … services”.
[63] The evidence establishes that, for a substantial period, the learner transport
arrangement functioned by way of the school bus entering the farm to collect
learners. The applicants’ evidence is supported by the letters from the school
principal in August 2023 and 2025. Furthermore, Mr van Oudtshoorn confirms
that the bus entered the farm even before the respondents acquired it, albeit that
it was not by written agreement and was initially not with consent. That
confirmation is relevant because it demonstrates that the arrangement is neither
novel nor inherently infeasible. It is an incident of the occupation that had become
established in practice. The right to have the school bus access the farm to collect
children to attend school therefore falls squarely within the concept of "services
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as had been agreed upon" as envisaged in section 6(1). Furthermore, the right to
have the bus enter the farm and collect the children at the homesteads is binding
on the respondents as successors in title in terms of section 24 of ESTA23.
[64] The respondents do not dispute that the learners must get to school. Their
resistance is based on the maintenance costs of the road, security, safety, and
the fact that they offered alternatives to the bus collecting the children on the
farm. Those considerations are not irrelevant, and the respondents do have a
legitimate interest in regulating access to their property and in ensuring safety on
the farm roads. But that does not equate to an entitlement to impose a solution
that, in effect, denies access to education where a workable solution exists. At
this juncture it is necessary to point out that the right to education is enshrined in
section 29 of the Constitution and immediately realisable
24. Any impediment to
children accessing education must therefore be subjected to rigorous scrutiny. I
am therefore satisfied that the applicants have established a clear right.
[65] In respect of the harm. It is certainly ongoing. On the evidence, learners are
required to traverse a substantial distance on foot to reach the pick-up point at
the R65, with predictable consequences for their safety and learning. This is not
merely inconvenience. It is a continuing impairment of the right not to be denied
access to educational services.
[66] In practical terms, there is no satisfactory alternative remedy that will secure
immediate and consistent access for the children to have access to education. A
23 The section provides that: (1) The rights of an occupier shall, subject to the provisions of this
Act, be binding on a successor in title of an owner or person in charge of the land concerned.
24 Governing Body of the Juma Musjid Primary School v Essay NO2011 (8) BCLR 761 (CC)
paras 36 - 37
28 | Page
claim for damages is illusory and repeated attempts to negotiate have not
resolved the issue. The respondents’ alternative offers do not appear to me will
create a stable arrangement. Also, the alternative offers have the difficulty that
the respondents can withdraw it at any time unilaterally. The applicants will
benefit from a more permanent solution.
[67] Balancing the children’s best interests and right to education against the
respondents’ legitimate property and security interests, the appropriate relief is
not an unqualified right of entry by the bus at any time and in any manner. The
respondents' concerns about road maintenance costs and damage are not
persuasive, as the concerns are overstated and there are in any event patent
difficulties with the respondents’ claim that the road would be damaged, as the
road is used daily by other heavy vehicles for farm operations.
[68] I am therefore, satisfied that a case has been made out for an interdict to
compel the respondents to permit school bus access to collect and drop off the
children.
Access to Water
[69] Water is fundamental to human life and dignity. Section 27(1)(b) of the
Constitution provides that "everyone has the right to have access to sufficient ...
water." Section 6(2)(e) of ESTA also includes the right “not to be denied or
deprived of access to water” , balanced with the rights of the owner/person in
charge. The phrase "not to be denied or deprived" is significant. It imposes a
negative obligation: an occupier may not be denied access to water that they
29 | Page
previously had. Once the applicants established a right to access water that right
could not simply be extinguished by the respondents' inaction.
[70] In Mshengu25 the High Court considered the right of farm dwellers to access
to water. The court held that section 6(2)(e) of ESTA grants farm dwellers a right
not to be deprived of access to water, and that these rights places obligations on
landowners to act reasonably and in good faith when municipalities seek to
provide water services on private land.
26 While that case concerned the
obligations of municipalities, the underlying principle applies equally here. A
landowner cannot simply abandon farm occupiers to conditions without access
to clean water.
[71] Returning to the merits. Once again, the evidence of Mr van Oudtshoorn is
determinative. He confirms that under his father's ownership, the applicants ’
families had access to water from a borehole located on the farm. The applicants'
families used this borehole for decades for drinking water and domestic purposes.
The respondents concede that when they acquired the farm in 2014, there was a
functional borehole, with an electrical pump. They further concede that in or
around 2015, due to changes in the internal layout of the farm related to the
alleged nature reserve development, the electrical pump was replaced with a
handpump. The respondents therefore did not dispute the applicants’ pre-existing
access to water right. This means that on the papers at least the following is
common cause: (i) historically the applicants had access to water by virtue of a
25 Mshengu and Others v Msunduzi Local Municipality and Others (11340/2017P) [2019]
ZAKZPHC 52; [2019] 4 All SA 469 (KZP) (29 July 2019)
26 Mshengu supra Par 53
30 | Page
borehole; (ii) that borehole is no longer operational; and (iii) the applicants
currently draw water from a source shared with animals.
[72] The respondents seek to meet the water complaint primarily with a dispute
of fact. They allege sabotage of the borehole by an unknown person and deny
responsibility. In my view, that does not answer the case the applicants advance
as the issue, for purposes of the interdictory relief, is not who destroyed the
borehole. The decisive issue is whether the applicants, as occupiers, are being
denied or deprived of access to potable water in circumstances where,
historically, access existed and where the current position is plainly inconsistent
with dignified human habitation.
[73] In any event the sabotage narrative is not convincing for various reasons:
[73.1] First, it defies logic and common sense. Why would the applicants
deliberately destroy their only source of clean drinking water,
knowing that this would leave them with no alternative but to drink
water from fountains and dams used by livestock?
[73.2] Second, the chronology is telling. The borehole was destroyed in
2017, the same period during which relocation negotiations had
commenced or was ongoing and, according to Ms Stapelberg's
affidavit, management had already decided the applicants "will be
better off elsewhere." The timing strongly suggests aspersions being
directed rather to the respondents to make conditions intolerable.
[73.3] Third, the applicants' subsequent conduct is inconsistent with them
destroying the borehole. Since 2017, the applicants have consistently
31 | Page
sought restoration of access to clean water. They raised this issue
with Legal Aid South Africa, with the Department of Land Affairs, and
ultimately in these proceedings. If they had been responsible for
destroying the borehole, one would expect them to have remained
silent on the issue or to have sought to conceal their role. Instead,
they have been vocal and persistent in demanding that access to
water be restored.
[73.4] What is most telling is the respondents' response to the alleged
"sabotage." If the respondents genuinely believed that the applicants
had destroyed valuable farm infrastructure, one would expect them
to have reported the matter to the police and laid criminal charges; or
instituted civil proceedings for damages . The respondents did none
of these things. The respondents simply left the borehole destroyed
and forced the applicants to resort to drinking water from sources
shared with the livestock. This inaction speaks volumes. It suggests
that the respondents were not genuinely aggrieved by "sabotage" but
were content, perhaps even pleased, that the borehole had been
rendered inoperable, as this furthered their objective of making the
applicants' living conditions untenable.
[74] As a result, even on the respondents’ version, the applicants have been left
without dignified access to water for years. ESTA does not permit an owner to
meet an occupier’s entitlement to water by pointing to a lack of fault, while the
occupier continues to drink from an animal water source. I am therefore satisfied
that a clear right has been established.
32 | Page
[75] The harm is ongoing and obvious. The continued absence of a reliable supply
of potable water, and the need to obtain water from a source used by animals, is
a continuing invasion of the applicants’ rights and dignity, with an objectively
reasonable apprehension of health consequences.
[76] No other satisfactory remedy is apparent. The applicants cannot secure
potable water by their own means without access to infrastructure on the farm.
The right sought to be protected is immediate and continuing. The respondents
argue that even if the applicants have a right to water, the appropriate remedy is
unclear. They point out that there were multiple homesteads and only one
borehole and suggest that installing a borehole at each homestead would be
unreasonably burdensome. This objection mischaracterises the relief sought.
The applicants do not seek a borehole at each individual homestead. They seek
restoration of access to clean water.
[77] The most obvious and appropriate remedy , indeed, the one that would
restore the status quo ante, is for the first respondent to provide the applicants
access to water. Whether that is achieved by repairing the borehole or some,
sinking a new borehole, installing tanks, or another practicable method, is a
matter of implementation. What is not negotiable is that a supply of potable water
must be made available.
[78] Although, the rule nisi provided that the fourth respondent, in the alternative,
had to provide water to the applicants, no response was received from the
Minister, and the respondents also did not make this alternative order the focus
of their defence. In any event, even if it could be asserted that the Minister carry
some responsibility to provide the applicants with access to water, it does not
33 | Page
absolve the first respondent of its obligations. As the owner of the land on which
the applicants reside, and as the entity that has benefited from the applicants'
families’ occupation over many years, the first respondent bears responsibility for
ensuring that the applicants are not deprived of access to water.
[79] Consequently, the applicants are entitled to an interdict in respect of their
right to access to water.
Renovation of mud structures
[80] The applicants seek to rebuild the mud or brick structures they currently
reside in on the same foundations as their existing structures. The respondents’
position is that they don’t deny the applicants the opportunity to undertake
reasonable maintenance and repairs on the residential mud structures. However,
the respondents refuse to accede to bricks being utilised to rebuild the structures
given the nature reserve status of the farm. Also, according to the respondents
the level of deterioration in condition of the structures are not such that it requires
renovation or improvements. Consequently, the respondents position is that the
applicants have failed to establish a clear right to the relief.
[81] I am satisfied that the rebuilding with brick material issue is not clear enough
for the court to adjudicate definitively. However, I interpose to briefly express my
view on the issue of the ‘adequacy’ of the structures. I have great difficulty with
the proposition that a landowner can prescribe what standard of accommodation
is ‘adequate ’ for an occupier. The Constitutional and statutory framework has
shed a clear light on what constitutes 'adequate' housing in South Africa. To that
end, section 26(1) of the Constitution provides that everyone has the right to have
34 | Page
access to ‘adequate ’ housing. The Constitutional Court’s judgments of
Grootboom27 and Blue Moonlight 28, and other academic sources and
jurisprudence29, confirmed that the right to adequate housing "entails more than
bricks and mortar" and envisage a sense of permanence with 'adequate
protection against the elements '. It therefore seems to me that the material
required to build a dwelling is not the standard to determine whether a structure
is ‘adequate’, but that the test is rather whether the structure has a sense of
‘permanence’ and provide adequate ‘protection against the elements’ that would
provide for a ‘dignified ’ security of tenure. That should serve as the minimum
standard, not a landowner’s subjective conviction what ‘adequate’ is, especially
in circumstances like this matter, where the landowner’s objective is to construct
the relocation or eviction of the occupiers.
[82] It follows from the foregoing that the applicants could make out a case that
the right to security of tenure requires in their specific instance the building
of structures constructed with bricks. However, notionally that issue is not before
me, so I rather continue to only consider whether the applicants are entitled to an
interdict at least in respect of the mud structures.
[83] Again, the evidence of Mr. Van Oudtshoorn is dispositive of the question
whether the applicants have established a clear right to reconstruct or renovate
27 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA
46 (CC); 2000 (11) BCLR 1169 (CC)
28 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012
(2) SA 104 (CC)
29 Housing Act 107 of 1997 ; National Housing Code of 2009 ; United Nations Committee on
Economic, Social and Cultural Rights in its General Comment No. 4, which include: legal security
of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability;
accessibility; location; and cultural adequacy ; Erasmus v Mtenje and Others (LCC 202/2017)
[2018] ZALCC 12 (12 June 2018); De Jager and Another v Mazibuko (LCC57/2020) [2020]
ZALCC 7 (25 August 2020)
35 | Page
the mud structures. He confirms that under his father's ownership, the applicants
had the right to undertake renovations to the mud structures. This was part of the
agreed-upon conditions of their occupation. That right, like the other rights
discussed above, is binding on the respondents as successors in title under
section 24 of ESTA. Furthermore, section 6(2)(dB) of ESTA now makes express
provision that an occupier can “…take reasonable measures to maintain the
dwelling occupied by him or her or members of his or her family.” Lastly, section
5 and 6 of ESTA entitle ESTA occupiers to occupy their dwelling under conditions
that are consistent with human dignity
[84] That the applicants have a clear right is further supported by Daniels
30 that
makes plain that ESTA occupiers are not to be left in conditions that undermine
the habitability of their homes and thus their dignity. Improvements and repairs
necessary for dignified living are part of the protective purpose of ESTA
31.
[85] The photographs in the papers, including those relied upon by the
respondents, show at least that the structures are rudimentary and, on any
sensible approach, require repair and, in places, rebuilding to remain safe and
habitable. Where ESTA occupiers are compelled, through refusal of permission
or obstruction, to remain in dilapidated dwellings that are at risk of collapse or are
otherwise unsafe, the harm is continuing. It is also reasonably apprehended that
the harm will persist unless the court intervenes.
[86] On the status of the structures and whether they in fact requires renovation,
the respondents attempted to raise a dispute of fact. However, there cannot be
30 Daniels v Scribante and Another 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC)
31 Daniels supra paras 209 – 210; 212
36 | Page
any dispute about the status of the structures. The photographs serve as
objective evidence. These are mud structures that have deteriorated over time
and were damaged by a storm. The roofs leak and the walls are crumbling. The
structures are, in the applicants' uncontroverted evidence, at risk of collapse.
These are not dwellings that meet any recognisable standard of habitability or
human dignity. To the extent that it may be said that a dispute exists about
whether the structures are in such a state that they require renovation I reject the
respondents’ version as untenable
32, as they don’t live in the structures, the
applicants and their families do. There is nothing to gainsay the applicants’ claim
of the status of the structures.
[87] Again, the invasion of the applicants’ rights is ongoing. The applicants
provide a particularly troubling account of the respondents' interference with their
attempt to do repairs to the structures. They state that on multiple occasions when
they have attempted to undertake repairs, a drone controlled by the respondents
has flown over their homes, taking photographs. Shortly thereafter, the third
respondent would arrive in his bakkie and demand that the work cease. This
account given is added credence by the fact that the very photographs annexed
as annexures by the respondents to show the condition of the structures, are
drone photographs. This confirms that the respondents have indeed been
conducting aerial surveillance of the applicants' homes. This conduct is a clear
violation of the applicants' rights to privacy and dignity under section 5 of ESTA.
It also supports the applicants’ complaint that the respondents have been actively
32 by following the Plascon-Evans approach
37 | Page
preventing the applicants from maintaining their dwellings in a habitable state.
This is precisely the conduct that ESTA prohibits.
[88] Lastly, the question of whether there is an alternative remedy. This is where
the issue of meaningful engagement as confirmed in Daniels is also relevant 33.
The respondents indeed rely on Daniels and suggest that there has “…been no
recent engagement or request to any alterations or maintenance to their houses.”
However, the respondents do not refuse maintenance and repairs to the mud
structures and are also amenable to allow the applicants to replace dilapidated
structures with structures of similar nature on the old foundations. However, the
respondents insist that before any maintenance or repairs are done it must be
preceded by a process of engagement.
[89] The concept of “meaningful engagement” generally means a process in
which two or more parties talk and listen to each other meaningfully in order to
achieve certain objectives
34. However, the evidence demonstrates that the
applicants in fact did attempt to engage but the respondents simply refused. In a
letter by the applicants’ attorney dated 12 September 2025 the issue was
pertinently raised, and the respondents were reminded in that letter that the
refusal to permit the applicants to rebuild their homes cannot be kept in abeyance
any longer. The Human Rights Commission was also involved, and the building
of structures was again raised.
33 The issue of meaningful engagement can also fit under the requirement of weather a clear right
has been established. Since, the applicants have established a clear right, I deal with it as an
alternative remedy. In any event wherever one locates the meaningful engagement requirement
I am satisfied that it does not create a bar to the relief that is being sought.
34 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others ( 2008 (3) SA 208 (CC) ; 2008 (5) BCLR 475 (CC) par 14–15.
38 | Page
[90] Ultimately, the principle that the judgments of Daniels and Basfour35 promote
is that an occupier cannot resort to self-help. So, even if it can be said that the
attempt at meaningful engagement is not convincing, I am satisfied that the
applicants did engage with the respondents on the issue of reasonable
renovations but that the parties could not come to an agreement. The applicants
therefore acted in compliance with Daniels and Basfour approach and rather
approached the court. Consequently, I am persuaded by the facts of the
circumstances of this matter that there is no satisfactory remedy other than
interdictory or mandatory relief regulating what may be done by the applicants to
improve their living conditions.
Cropping and Grazing Rights
[91] Finally, the applicants seek confirmation of their rights to cultivate specific
areas of land for crop production and to graze their livestock in designated
grazing areas. Again, in accordance with section 6(1) of ESTA the phrase "use
the land" certainly encompasses agricultural activities such as cropping and
grazing. These are not incidental activities; they are often central to the
livelihoods and food security of farm occupiers.
[92] The applicants’ case is framed as restoration of the “status quo ante” relating
to cropping and grazing land. Mr van Oudtshoorn’s affidavit is again decisive in
delineating what the position was , in that: (i) the Vilakazi family had a camp
around the dwelling of approximately 9 hectares. The Majola, Nzima and
Ngwenya families had a single camp around their dwellings, approximately 60
35 Basfour 3327 (Pty) Ltd v Thwala and Others (1008/2023) [2025] ZASCA 105 (18 July 2025)
par 65
39 | Page
hectares in total. Grazing was not permitted outside these two camps, and only a
limited number of animals were allowed. Each homestead also had a small
vegetable garden adjacent to the homestead.
[93] The Nzima family (second applicant) and Ngwenya family (first applicant)
shared a grazing area of approximately 60 hectares with another previous
occupier, Mr Majola, meaning each family was entitled to approximately 20
hectares. When Majola relocated, his portion , according to the respondents ,
should have reverted to the first respondent, but the first and second applicants
have prevented this and continue to use the full area.
[94] The respondents do not dispute the Van Oudtshoorn evidence regarding the
historical extent of the grazing and cropping rights. What they dispute is whether
the applicants may continue to exercise these rights following the development
of the nature reserve and the relocation of the Majola family. The respondents'
primary argument is that the grazing areas in question now fall within the
boundaries of the proclaimed nature reserve, and that continued agricultural use
is incompatible with conservation objectives. Once again, this argument fails for
similar reasons discussed above. The respondents cannot rely on their own
development choices, made with full knowledge of the applicants' presence and
rights, to retrospectively extinguish rights protected by ESTA.
[95] When the respondents acquired Kolwani farm in 2014, the applicants were
residing there and exercising cropping and grazing rights. Those rights were
protected by section 6(1) of ESTA and became binding on the respondents under
section 24. The respondents then chose to pursue nature reserve development.
If that development is genuinely incompatible with the applicants' continued
40 | Page
occupation, the respondents' remedy is to follow eviction or relocation
procedures. The respondents may not bypass ESTA’s requirements and
procedures by simply declaring areas off-limits and asserting that their
development plans take precedence.
[96] There is uncontroverted evidence that herbicides have been sprayed near
their dwellings and crops, resulting in damage to their crops and the death of
livestock. This conduct, if established, would constitute a serious interference with
the applicants' use rights under section 6(1) of ESTA.
[97] The one area of complexity concerns the portion of grazing land that was
previously used by the Majola family, who relocated in 2016. The respondents
argue that this portion should have reverted to them and that the first and second
applicants have unlawfully prevented them from taking control of it.
[98] On this issue, I agree with the respondents to a limited extent. When the
Majola family relocated, the right to use that portion of the grazing area was
extinguished. However, this does not mean that the land automatically became
available for the respondents' unfettered use as the land was part of the grazing
area historically designated for use by occupiers. The question is whether the first
and second applicants are entitled to continue using the Majola portion, or
whether a different arrangement must be negotiated.
[99] The appropriate resolution is that the first and second applicants are entitled
to continue using the grazing areas that they historically used , their respective
20-hectare portions. The Majola portion, the remaining 20 hectares of the
approximately 60-hectare grazing area, is not automatically available to the
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respondents for other uses. Rather, any change in the use of that land should be
subject to consultation with the remaining occupiers, as it forms part of the
broader grazing infrastructure on which they have relied. However, I make no
final order on this issue, as it was not fully ventilated in argument and may require
further engagement between the parties.
[100] The applicants have established their rights to continue cropping and
grazing as confirmed in the Van Oudtshoorn affidavit. The respondents will be
interdicted from interfering with the applicants' exercise of these rights.
Conclusion
[101] For all the reasons set out above, the applicants have made out a case for
final relief in the notice of motion. In respect of costs, there are no exceptional
circumstances that warrant a departure from the general approach in this court
that costs are not granted against the unsuccessful party.
Consequently, the following order is made:
The interim interdict granted by this Court on 18 September 2025 is hereby
confirmed subject to the variations set out below.
1. The forms and services prescribed by the rules of this court be dispensed
with and the matter is heard as one of urgency in terms of Rule 34.
2. The First to Third Respondents and anyone acting on their instructions ,
are interdicted and restrained from preventing or obstructing the school
bus authorised by the Department of Education from entering Farm 412
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Kolwani, Amsterdam, to collect and return the school-going children of the
Applicants at their homesteads.
3. The first respondent is directed to restore the applicants' access to potable
water within 30 days of this order, by one or more of the following means:
3.1 Reconstructing and rendering operational the existing borehole
previously used by the applicants for potable water;
3.2 As an alternative to 3.1, installing alternative water infrastructure
capable of providing potable water to the applicants' homesteads;
3.3 Further in the alternative to 3.1 and 3.2, arranging the delivery of
water tanks containing potable water sufficient for the domestic
needs of the applicants and their households.
4. The restored water supply, as foreshadowed in 3.1 to 3.3 above must
provide potable water that is separate and distinct from any water sources
used by animals on the farm, and must be maintained thereafter at the
first respondent's expense.
5. Pending full compliance with the provisions of paragraphs 3 and 4
(including sub-paragraphs), the first respondent shall forthwith, from the
date of this order, ensure that temporary water tanks containing potable
water are available to the applicants, sufficient for their domestic needs.
6. The First to Third Respondents and anyone acting on their instructions ,
are interdicted and restrained from interfering with the Applicants’
rebuilding or repair ing their existing dwellings on the same footprints of
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