Theo Dicke (Pty) Ltd v Machete Snr and Another (LCC 22/2012) [2013] ZALCC 2 (23 January 2013)

Theo Dicke (Pty) Ltd v Machete Snr and Another (LCC 22/2012) [2013] ZALCC 2 (23 January 2013)

The court found that the second respondent constructed a new dwelling on the applicant's farm without express or tacit consent, which constituted unlawful conduct under ESTA. The second respondent did not qualify as an occupier in her own right, but only as a family member of the first respondent, who is a long-term occupier. The evidence established that the traditional mud house could be repaired and did not justify the construction of a new brick dwelling without permission. The requirements for a final interdict were satisfied: the applicant had a clear right as landowner, there was reasonable apprehension of harm from unauthorised construction, and no adequate alternative remedy...

Citation
[2013] ZALCC 2
Parties
Applicant: Theo Dicke (Pty) Ltd; Respondent: Mamoyabo Machete Snr; Respondent: Dorah Machete
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
23 January 2013
Case Number
LCC 22/2012
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. Declaratory and interdictory relief awarded against the respondents. No order as to costs.
Judges
Y Sidlova
Legal Topics
Extension of Security of Tenure Act, Unlawful Occupation, Mandatory Interdict, Prohibitory Interdict
Land and Property Civil Procedure Extension of Security of Tenure Act Unlawful Occupation Mandatory Interdict Prohibitory Interdict

Case Brief

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Parties

Theo Dicke (Pty) Ltd

Applicant

Mamoyabo Machete Snr

Respondent

Dorah Machete

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the second respondent acted unlawfully by constructing a dwelling on the applicant's farm without permission.
  2. 2 Whether the second respondent is an occupier in her own right under ESTA.
  3. 3 Whether the second respondent received tacit consent from the applicant to construct a new dwelling.

Ratio Decidendi

The court found that the second respondent constructed a new dwelling on the applicant's farm without express or tacit consent, which constituted unlawful conduct under ESTA. The second respondent did not qualify as an occupier in her own right, but only as a family member of the first respondent, who is a long-term occupier. The evidence established that the traditional mud house could be repaired and did not justify the construction of a new brick dwelling without permission. The requirements for a final interdict were satisfied: the applicant had a clear right as landowner, there was reasonable apprehension of harm from unauthorised construction, and no adequate alternative remedy...

Court Disposition

Application granted. Declaratory and interdictory relief awarded against the respondents. No order as to costs.

Orders

  • The second respondent is declared to have acted unlawfully by constructing a dwelling on the Remaining extent of farm Spitsrand 422 LT.
  • The second respondent is ordered to vacate the new dwelling by 28 February 2013.