Basfour 3327 (Pty) Ltd v Thwala and Others (Leave to Appeal) (LCC160/2017B) [2023] ZALCC 28 (11 September 2023)

Basfour 3327 (Pty) Ltd v Thwala and Others (Leave to Appeal) (LCC160/2017B) [2023] ZALCC 28 (11 September 2023)

The court found that the applicant's prayers for demolition and removal of building materials were not necessarily contingent on a finding of contempt and that the application could be characterized as seeking a declarator of unlawfulness of the new structure. The applicant's argument that the consequential relief should have been considered independently from the contempt issue provided a compelling reason for the appeal to be heard. The court held that the applicant satisfied section 17(1)(a)(ii) of the Superior Courts Act, as there was a compelling reason for the appeal to be heard regarding the dismissal of prayers 2, 5, 6, and 7. Leave to appeal was granted for these portions of the...

Citation
[2023] ZALCC 28
Parties
Applicant: Basfour 3327 (Pty) Ltd; Respondent: Robert Thwala; Respondent: Lucy Thwala; Respondent: Minewhle Mahlangu; Respondent: Fezeka Thomo; Respondent: South African Police Services; Respondent: Volkstrust Department of Agriculture, Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
11 September 2023
Case Number
LCC160/2017B
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application
Outcome
Leave to appeal granted for the portions of the judgment dismissing prayers 2, 5, 6, and 7.
Judges
Flatela Luleka
Legal Topics
Unauthorized Construction, Contempt of Court, Demolition Order, Extension of Security of Tenure Act, Reasonable Prospects of Success
Land and Property Civil Procedure Unauthorized Construction Contempt of Court Demolition Order Extension of Security of Tenure Act Reasonable Prospects of Success

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Basfour 3327 (Pty) Ltd

Applicant

Robert Thwala

Respondent

Lucy Thwala

Respondent

Minewhle Mahlangu

Respondent

Fezeka Thomo

Respondent

South African Police Services

Respondent

Volkstrust Department of Agriculture, Rural Development and Land Reform

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application

Legal Issues

  1. 1 Whether the application was correctly characterized as a contempt of court application rather than an application to declare the new structure unlawful.
  2. 2 Whether prayers for demolition and removal of building materials were contingent on a finding of contempt.
  3. 3 Whether the applicant's consequential relief should have been considered independently from the contempt issue.

Ratio Decidendi

The court found that the applicant's prayers for demolition and removal of building materials were not necessarily contingent on a finding of contempt and that the application could be characterized as seeking a declarator of unlawfulness of the new structure. The applicant's argument that the consequential relief should have been considered independently from the contempt issue provided a compelling reason for the appeal to be heard. The court held that the applicant satisfied section 17(1)(a)(ii) of the Superior Courts Act, as there was a compelling reason for the appeal to be heard regarding the dismissal of prayers 2, 5, 6, and 7. Leave to appeal was granted for these portions of the...

Court Disposition

Leave to appeal granted for the portions of the judgment dismissing prayers 2, 5, 6, and 7.

Orders

  • The applicant's application for leave to appeal to the Supreme Court of Appeal, in respect of the dismissal of prayers 2, 5, 6, and 7, succeeds.
  • The costs of this application shall be costs in the appeal.