Basfour 3327 (Pty) Ltd v Thwala and Others (1008/2023) [2025] ZASCA 105 (18 July 2025)

Basfour 3327 (Pty) Ltd v Thwala and Others (1008/2023) [2025] ZASCA 105 (18 July 2025)

The Supreme Court of Appeal held that the respondents unlawfully erected a new brick foundation and structure on the appellant's farm without prior engagement or consent, contrary to the requirements of meaningful engagement under the Extension of Security of Tenure Act and the principles established in Daniels v Scribante. The court found that the Land Claims Court erred by treating the application as solely dependent on contempt of court and by failing to consider the declaratory, prohibitory, and demolition relief as independent issues. The respondents' lack of engagement with the appellant rendered the construction unlawful, and the court exercised its discretion to order demolition,...

Citation
[2025] ZASCA 105
Parties
Appellant: Basfour 3327 (Pty) Ltd; Respondent: Robert Thwala; Respondent: Lucy Thwala; Respondent: Minenhle Mahlangu; Respondent: Fezeka Thomo; Respondent: South African Police Service, Volksrust; Respondent: Department of Agriculture, Rural Development and Land Reform
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 July 2025
Case Number
1008/2023
Procedural Posture
Civil Appeal / Appeal From Land Claims Court; Disposed of Without Oral Hearing Under S 19(a) of Superior Courts Act
Outcome
Appeal upheld; order of Land Claims Court set aside and replaced with declaration of unlawfulness and demolition order.
Judges
Makgoka, Kgoele, Unterhalter
Legal Topics
Extension of Security of Tenure Act, Meaningful Engagement, Unlawful Erection of Structures, Property Rights, Demolition Orders
Land and Property Civil Procedure Extension of Security of Tenure Act Meaningful Engagement Unlawful Erection of Structures Property Rights Demolition Orders

Case Brief

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Parties

Basfour 3327 (Pty) Ltd

Appellant

Robert Thwala

Respondent

Lucy Thwala

Respondent

Minenhle Mahlangu

Respondent

Fezeka Thomo

Respondent

South African Police Service, Volksrust

Respondent

Department of Agriculture, Rural Development and Land Reform

Respondent

Procedural Posture

Civil Appeal / Appeal From Land Claims Court; Disposed of Without Oral Hearing Under S 19(a) of Superior Courts Act

Legal Issues

  1. 1 Whether the respondents lawfully erected a new structure on the appellant's farm without prior engagement or consent of the owner.
  2. 2 Whether meaningful engagement is required under ESTA before improvements or new structures are made by occupiers.
  3. 3 Whether demolition of the unlawfully erected structure is a just and appropriate remedy.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents unlawfully erected a new brick foundation and structure on the appellant's farm without prior engagement or consent, contrary to the requirements of meaningful engagement under the Extension of Security of Tenure Act and the principles established in Daniels v Scribante. The court found that the Land Claims Court erred by treating the application as solely dependent on contempt of court and by failing to consider the declaratory, prohibitory, and demolition relief as independent issues. The respondents' lack of engagement with the appellant rendered the construction unlawful, and the court exercised its discretion to order demolition,...

Court Disposition

Appeal upheld; order of Land Claims Court set aside and replaced with declaration of unlawfulness and demolition order.

Orders

  • The unauthorised brick foundation and any building upon it constructed by the first to fourth respondents on the farm Uitkyk is declared unlawful.
  • The first to fourth respondents are ordered to demolish the unlawfully constructed structure within 30 days of the order.