Kubheka v Tonkin and Another (LCC148/2018) [2019] ZALCC 28 (4 January 2019)

Kubheka v Tonkin and Another (LCC148/2018) [2019] ZALCC 28 (4 January 2019)

The court found that the demarcated grazing camp was severely overgrazed, with the applicant keeping livestock far in excess of the permitted number. Expert evidence confirmed that the veld was overstocked and required a rest period of two to three years for recovery. The statutory duty under CARA to prevent overgrazing applies to both the owner and occupier, and the applicant's continued grazing contravened these obligations. The argument that the respondents unlawfully reduced the grazing camp was rejected, as both parties agreed overgrazing had occurred regardless of the camp's size. The Department of Rural Development and Land Reform was not a necessary party, as it had no obligation...

Citation
[2019] ZALCC 28
Parties
Applicant: Khesaya Sonakele Kubheka; Respondent: Delaray Petrus Tonkin; Respondent: Brakulei Eiendoms Trust
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
4 January 2019
Case Number
LCC148/2018
Procedural Posture
Urgent Application / Opposed Urgent Application and Counter Application
Outcome
Main application dismissed; counter-application granted. Applicant ordered to remove all livestock from the farm and interdicted from returning livestock for three years.
Judges
T M Ncube
Legal Topics
Overgrazing, Conservation of Agricultural Resources Act, Removal of Livestock, Mandamus Interdict
Land and Property Environmental Law Overgrazing Conservation of Agricultural Resources Act Removal of Livestock Mandamus Interdict

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Parties

Khesaya Sonakele Kubheka

Applicant

Delaray Petrus Tonkin

Respondent

Brakulei Eiendoms Trust

Respondent

Procedural Posture

Urgent Application / Opposed Urgent Application and Counter Application

Legal Issues

  1. 1 Whether the applicant's livestock must be removed from the farm due to overgrazing in contravention of the Conservation of Agricultural Resources Act.
  2. 2 Whether the respondents unlawfully reduced the applicant's grazing land by erecting fences.
  3. 3 Whether the Department of Rural Development and Land Reform is a necessary party to the proceedings.

Ratio Decidendi

The court found that the demarcated grazing camp was severely overgrazed, with the applicant keeping livestock far in excess of the permitted number. Expert evidence confirmed that the veld was overstocked and required a rest period of two to three years for recovery. The statutory duty under CARA to prevent overgrazing applies to both the owner and occupier, and the applicant's continued grazing contravened these obligations. The argument that the respondents unlawfully reduced the grazing camp was rejected, as both parties agreed overgrazing had occurred regardless of the camp's size. The Department of Rural Development and Land Reform was not a necessary party, as it had no obligation...

Court Disposition

Main application dismissed; counter-application granted. Applicant ordered to remove all livestock from the farm and interdicted from returning livestock for three years.

Orders

  • The main application is dismissed.
  • The counter-application is granted.