Khumalo and Others v Botha and Others (LCC 161/2020) [2021] ZALCC 3 (25 March 2021)

Khumalo and Others v Botha and Others (LCC 161/2020) [2021] ZALCC 3 (25 March 2021)

The court found that Mr Khumalo was an occupier on Dunbar farm with consent to reside, cultivate, and graze livestock, and that this consent had not been withdrawn. The Respondents' actions—evicting the Applicants, demolishing the brick house, impounding cattle, and depriving them of land use—were all carried out without a court order and in contravention of the Extension of Security of Tenure Act. The right to family life under section 6(2)(d) of the Act entitles Mr Khumalo to reside with his children, especially given his advanced age and need for care. The Respondents' evidence was found to be unreliable and inconsistent, while the Applicants' witnesses were credible. The court held...

Citation
[2021] ZALCC 3
Parties
Applicant: John Khumalo; Applicant: Tholanomsindo Johannes Khumalo; Applicant: Sphiwe Khumalo; Applicant: Busisiwe Gloria Khumalo; Applicant: Matshidiso Moloi; Applicant: Phindile Khumalo; Respondent: Martha Catharina Botha; Respondent: Pierre Henry Botha; Respondent: Theunis Filmater; Respondent: Minister of Police
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
25 March 2021
Case Number
LCC 161/2020
Procedural Posture
Urgent Application / Final Judgment After Referral to Oral Evidence
Outcome
Application granted. The eviction, demolition, and impoundment were declared unlawful. Restoration and rebuilding ordered. Interdict granted. No costs order.
Judges
T M Ncube
Legal Topics
Extension of Security of Tenure Act, Unlawful Eviction, Right to Family Life, Constructive Eviction, Unlawful Demolition, Impoundment of Livestock
Land and Property Civil Procedure Family and Children Extension of Security of Tenure Act Unlawful Eviction Right to Family Life Constructive Eviction Unlawful Demolition +1 more

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Parties

John Khumalo

Applicant

Tholanomsindo Johannes Khumalo

Applicant

Sphiwe Khumalo

Applicant

Busisiwe Gloria Khumalo

Applicant

Matshidiso Moloi

Applicant

Phindile Khumalo

Applicant

Martha Catharina Botha

Respondent

Pierre Henry Botha

Respondent

Theunis Filmater

Respondent

Minister of Police

Respondent

Procedural Posture

Urgent Application / Final Judgment After Referral to Oral Evidence

Legal Issues

  1. 1 Whether the eviction of the Applicants from Dunbar farm was unlawful under the Extension of Security of Tenure Act.
  2. 2 Whether the demolition of the Applicants' brick house was unlawful and done without a court order.
  3. 3 Whether the impoundment and removal of Mr Khumalo's cattle was lawful.

Ratio Decidendi

The court found that Mr Khumalo was an occupier on Dunbar farm with consent to reside, cultivate, and graze livestock, and that this consent had not been withdrawn. The Respondents' actions—evicting the Applicants, demolishing the brick house, impounding cattle, and depriving them of land use—were all carried out without a court order and in contravention of the Extension of Security of Tenure Act. The right to family life under section 6(2)(d) of the Act entitles Mr Khumalo to reside with his children, especially given his advanced age and need for care. The Respondents' evidence was found to be unreliable and inconsistent, while the Applicants' witnesses were credible. The court held...

Court Disposition

Application granted. The eviction, demolition, and impoundment were declared unlawful. Restoration and rebuilding ordered. Interdict granted. No costs order.

Orders

  • It is declared that the eviction of the Applicants from Dunbar farm was without a court order and therefore unlawful under the Extension of Security of Tenure Act, 62 of 1997.
  • It is declared that the demolition of Mr Khumalo’s family’s brick house by Pierre Henry Botha and Theunis Filmater without a court order was unlawful.