Basfour 3327 (PTY) Ltd v Thwala and Others (LCC160/2017) [2022] ZALCC 20 (5 October 2022)

Basfour 3327 (PTY) Ltd v Thwala and Others (LCC160/2017) [2022] ZALCC 20 (5 October 2022)

The court found that while the Respondents qualify as occupiers under ESTA due to their long-term residence and presumed consent, ESTA does not permit the construction of entirely new dwellings without the owner's express written consent. The right to effect improvements is limited to those reasonably necessary to render an existing dwelling habitable and in conformity with human dignity, and does not extend to building a new structure on a different site. The Respondents' reliance on Daniels v Scribante was misplaced, as that case concerned improvements to existing dwellings, not the erection of new ones. The Respondents' construction of a new brick and mortar house constituted unlawful...

Citation
[2022] ZALCC 20
Parties
Applicant: Basfour 3327 (PTY) Ltd; Respondent: Lucy Thwala; Respondent: Minenhle Mahlangu; Respondent: S.L Radebe; Respondent: Lethy Khanyi; Respondent: Robert Thwala; Respondent: Unknown Occupiers
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
5 October 2022
Case Number
LCC160/2017
Procedural Posture
Declaratory Application / Final Judgment After Oral Evidence and Inspection in Loco
Outcome
Application granted. Construction of new dwelling declared unlawful. Respondents prohibited from building new structures without consent. Demolition of unlawful foundation ordered. No order as to costs.
Judges
Ncube
Legal Topics
Extension of Security of Tenure Act, Unlawful Construction, Occupier Rights, Human Dignity, Meaningful Engagement
Land and Property Civil Procedure Extension of Security of Tenure Act Unlawful Construction Occupier Rights Human Dignity Meaningful Engagement

Case Brief

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Parties

Basfour 3327 (PTY) Ltd

Applicant

Lucy Thwala

Respondent

Minenhle Mahlangu

Respondent

S.L Radebe

Respondent

Lethy Khanyi

Respondent

Robert Thwala

Respondent

Unknown Occupiers

Respondent

Procedural Posture

Declaratory Application / Final Judgment After Oral Evidence and Inspection in Loco

Legal Issues

  1. 1 Whether the Respondents are entitled to construct an entirely new dwelling on the Applicant's property without the owner's consent.
  2. 2 Whether the Respondents qualify as occupiers under the Extension of Security of Tenure Act (ESTA).
  3. 3 Whether the construction of a new dwelling constitutes unlawful conduct under section 6(3) of ESTA.

Ratio Decidendi

The court found that while the Respondents qualify as occupiers under ESTA due to their long-term residence and presumed consent, ESTA does not permit the construction of entirely new dwellings without the owner's express written consent. The right to effect improvements is limited to those reasonably necessary to render an existing dwelling habitable and in conformity with human dignity, and does not extend to building a new structure on a different site. The Respondents' reliance on Daniels v Scribante was misplaced, as that case concerned improvements to existing dwellings, not the erection of new ones. The Respondents' construction of a new brick and mortar house constituted unlawful...

Court Disposition

Application granted. Construction of new dwelling declared unlawful. Respondents prohibited from building new structures without consent. Demolition of unlawful foundation ordered. No order as to costs.

Orders

  • It is declared that the construction of an entirely new dwelling or structure by the Respondents on the farm without the Applicant's consent is unlawful.
  • The Respondents are prohibited and restrained from building entirely new dwellings or structures on the farm without the express written permission of the Applicant or person in charge.