Mgema and Others v Potgeiter (LCC 199/2010) [2013] ZALCC 10 (5 March 2013)

Mgema and Others v Potgeiter (LCC 199/2010) [2013] ZALCC 10 (5 March 2013)

The court found that the applicants had resided openly and continuously on the farm for more than three years, triggering the presumption under section 3(5) of ESTA that their residence was with the knowledge and consent of the owner or person in charge. The respondent did not contest their indigence or unemployment, and there was no evidence they used the land for commercial purposes or exceeded the prescribed income threshold. The respondent's denial of their status as occupiers was based solely on lack of knowledge of their origins, which is insufficient to rebut the statutory presumption. The court held that the person in charge is a proper party under ESTA and non-joinder of the...

Citation
[2013] ZALCC 10
Parties
Applicant: Report Mgema; Applicant: Xolani Mntwapi; Applicant: Pheliwe Mgema; Applicant: Nokuku Mgema; Applicant: Nomhlope Mgema; Applicant: Wedridge Mgema; Applicant: Ngxeke Mgema; Ntombizanele Mgema; Applicant: Xolisa Mgema; Applicant: Zulile Mgema; Applicant: Zanele Mgema; Respondent: Marius Potgeiter
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
5 March 2013
Case Number
LCC 199/2010
Procedural Posture
Urgent Application / Final Judgment After Interim Relief and Counter Application
Outcome
Both the application and the counter-application (insofar as not disposed of by agreement) are dismissed. No order as to costs.
Judges
Y Sidlova
Legal Topics
Extension of Security of Tenure Act, Interdict, Urgent Application, Joinder, Burden of Proof
Land and Property Civil Procedure Extension of Security of Tenure Act Interdict Urgent Application Joinder Burden of Proof

Case Brief

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Parties

Report Mgema

Applicant

Xolani Mntwapi

Applicant

Pheliwe Mgema

Applicant

Nokuku Mgema

Applicant

Nomhlope Mgema

Applicant

Wedridge Mgema

Applicant

Ngxeke Mgema

Applicant

Ntombizanele Mgema

Xolisa Mgema

Applicant

Zulile Mgema

Applicant

Zanele Mgema

Applicant

Marius Potgeiter

Respondent

Procedural Posture

Urgent Application / Final Judgment After Interim Relief and Counter Application

Legal Issues

  1. 1 Whether the applicants are occupiers as defined by section 1 of ESTA.
  2. 2 Whether the applicants were lawfully denied rights afforded to occupiers under section 6 of ESTA.
  3. 3 Whether the respondent acted contrary to section 7 of ESTA in impounding cattle.

Ratio Decidendi

The court found that the applicants had resided openly and continuously on the farm for more than three years, triggering the presumption under section 3(5) of ESTA that their residence was with the knowledge and consent of the owner or person in charge. The respondent did not contest their indigence or unemployment, and there was no evidence they used the land for commercial purposes or exceeded the prescribed income threshold. The respondent's denial of their status as occupiers was based solely on lack of knowledge of their origins, which is insufficient to rebut the statutory presumption. The court held that the person in charge is a proper party under ESTA and non-joinder of the...

Court Disposition

Both the application and the counter-application (insofar as not disposed of by agreement) are dismissed. No order as to costs.

Orders

  • The application is dismissed.
  • The counter-application, insofar as not disposed of by agreement, is dismissed.