Masotha Hezekia Ngwenya and Others v Grow and More (Pty) Ltd and Others

Three families (the Ngwenya, Nzima and Vilakazi families) represented by the applicants have multi-generational occupation of Farm 412 Kolwani, Amsterdam, Mpumalanga Province. The first applicant was born on the farm in 1967, and his parents worked there as farm workers. The families worked on the farm, kept livestock, cultivated land, and had access to clean water from a borehole. The farm changed ownership several times over the years. In 2014, Klein Vrystaat Boerdery (Pty) Ltd acquired the farm, and in 2022 it was transferred to Grow and More (Pty) Ltd (first respondent), whose directors are the second and third respondents. Between 2016 and 2019, the respondents initiated negotiations to relocate the families to an adjacent farm, Sarashof, but the applicants rejected these offers, preferring to remain on their ancestral land. After the applicants refused to relocate, the relationship deteriorated. The applicants alleged that the respondents engaged in constructive eviction by: (1) denying the school bus entry to the farm from 2023, forcing children to walk 8km to the main road; (2) destroying or disabling a borehole in 2017, forcing families to draw water from sources used by livestock; (3) refusing permission to repair or rebuild dilapidated mud structures; and (4) restricting grazing and cropping rights. The applicants brought an urgent application under Rule 34 of the Land Court Rules seeking mandatory interdictory relief.

• Whether the applicants met the requirements for urgency under Rule 34 of the Land Court Rules despite long delays
• Whether the applicants established a clear right, continuing injury, and absence of alternative remedy for final interdictory relief
• Whether ESTA occupiers have enforceable rights to school bus access for their children under sections 6(1) and 6(2)(f) of ESTA and section 29 of the Constitution
• Whether ESTA occupiers have enforceable rights to access potable water under sections 6(2)(e) of ESTA and section 27(1)(b) of the Constitution
• Whether ESTA occupiers have the right to repair and rebuild their dilapidated dwellings to maintain habitability and dignity under sections 5 and 6 of ESTA
• Whether ESTA occupiers have the right to continue exercising grazing and cropping rights established under previous ownership under section 6(1) of ESTA
• Whether a landowner's development plans (such as creating a nature reserve) can extinguish ESTA occupiers' pre-existing use rights
• The proper approach to balancing occupiers' constitutional and statutory rights against landowners' property rights

The interim interdict granted on 18 September 2025 was confirmed with variations: (1) The matter was heard as urgent under Rule 34. (2) The first to third respondents were interdicted from preventing the school bus from entering the farm to collect and return the children at their homesteads. (3) The first respondent was directed to restore the applicants' access to potable water within 30 days by reconstructing the existing borehole, installing alternative water infrastructure, or delivering water tanks. (4) The water supply must be separate from animal water sources and maintained at the first respondent's expense. (5) Pending compliance, temporary water tanks must be provided immediately. (6) The respondents were interdicted from interfering with the applicants rebuilding or repairing their dwellings on the same footprints to ensure habitability and safety, provided brick material is not used. (7) The respondents were interdicted from interfering with the applicants' grazing rights (20 hectares each for the first and second applicants, 9 hectares for the third applicant) and vegetable gardens. (8) The grazing rights order does not extend beyond the demarcated areas described. (9) Each party to pay their own costs.

The binding legal principles established are: (1) ESTA occupiers' rights under section 6(1) to reside on land, use land, and access services 'agreed upon whether expressly or tacitly' are binding on successors in title under section 24 of ESTA. (2) Under section 6(2)(e) of ESTA and section 27(1)(b) of the Constitution, ESTA occupiers have a right not to be denied or deprived of access to water that they previously enjoyed. Once access to water is established, it cannot be extinguished by landowner inaction or development decisions. (3) Under section 6(2)(f) of ESTA and section 29 of the Constitution, ESTA occupiers have a right not to be denied access to educational services, which includes reasonable access for school transport where historically established. (4) Under sections 5, 6, and 6(2)(dB) of ESTA, ESTA occupiers have the right to undertake reasonable maintenance and repairs to their dwellings to ensure habitability, safety, and dignity, consistent with the principles in Daniels v Scribante. (5) A landowner's unilateral development decisions (such as creating a nature reserve) made after acquiring property with knowledge of ESTA occupiers' presence cannot retrospectively extinguish the occupiers' pre-existing use rights protected by ESTA. (6) Where constitutional rights are being continuously violated, delay in bringing proceedings does not automatically bar relief, particularly for vulnerable occupiers with limited access to legal representation. The court must consider the circumstances and whether substantial redress can be obtained in due course. (7) The test for 'adequate housing' under section 26 of the Constitution requires permanence, protection from the elements, and dignity – not merely the landowner's subjective assessment of what is adequate. (8) Where factual disputes arise in interdict proceedings concerning ESTA rights, the Plascon-Evans approach applies, but disputes must be genuine and material to the relief sought.

The court made several noteworthy observations: (1) The court expressed concern about the concept of 'constructive eviction' – systematic conduct by landowners designed to make occupiers' living conditions intolerable to force them to leave without following formal ESTA eviction procedures. The court found strong evidence of such conduct in this case, including the timing of events after a 2015 management decision that the families 'will be better off elsewhere', the destruction of the borehole, denial of school bus access, prevention of repairs, and spraying of herbicides near dwellings. (2) The court noted that the material used to build a dwelling (mud versus brick) should not be the determinative factor in assessing 'adequate housing'. Rather, the test should be whether the structure has permanence and provides adequate protection from the elements consistent with dignified security of tenure. (3) The court observed that a landowner cannot prescribe what standard of accommodation is 'adequate' for an occupier – that determination must be guided by constitutional and statutory standards, not the landowner's subjective views, particularly where the landowner has a vested interest in constructing relocation or eviction. (4) The court commented that the respondents' failure to report alleged 'sabotage' of the borehole to police or institute civil proceedings for damages was telling and suggested they were not genuinely aggrieved but were content that the borehole was inoperable as this furthered their relocation objectives. (5) The court noted that the use of drone surveillance to monitor and prevent occupiers from repairing their dwellings constitutes a violation of occupiers' rights to privacy and dignity under section 5 of ESTA. (6) The court observed that when dealing with vulnerable farm occupiers in the Land Court, the institutional context differs from busy High Court divisions, and the litigants often have limited access to persistent legal representation, which is relevant to assessing urgency and procedural compliance. (7) The court left open for future consideration the question of whether ESTA occupiers could make out a case that their right to security of tenure requires permission to build structures with brick material rather than mud, noting this issue was not fully before the court. (8) The court noted that the portion of grazing land previously used by the relocated Majola family does not automatically become available for the respondents' unfettered use, as it was historically designated for occupier use, and any change should be subject to consultation with remaining occupiers, though no final order was made on this issue as it was not fully argued.

This judgment is significant in South African land reform and human rights jurisprudence for several reasons: (1) It addresses the concept of 'constructive eviction' of ESTA occupiers – where landowners systematically make living conditions intolerable to force occupiers to leave without following formal eviction procedures. (2) It clarifies that long delay in bringing urgent applications does not automatically bar relief where constitutional rights are being continuously violated, particularly for vulnerable farm occupiers. (3) It confirms that ESTA occupiers' rights to services, water access, housing maintenance, and land use are binding on successive owners under section 24 of ESTA. (4) It emphasizes that landowners cannot unilaterally extinguish ESTA occupiers' pre-existing rights by making development decisions (such as creating nature reserves) after acquiring property with knowledge of the occupiers' presence. (5) It provides guidance on balancing occupiers' constitutional rights (dignity, water, housing, education) against landowners' property rights in the ESTA context. (6) It clarifies that 'adequate housing' under section 26 of the Constitution means more than basic shelter – it requires permanence, protection from the elements, and dignity, not merely the landowner's subjective assessment. (7) It confirms that occupiers have enforceable rights to maintain dwellings under section 6(2)(dB) of ESTA, consistent with the principles in Daniels v Scribante. (8) It addresses the relationship between children's right to education (section 29 of the Constitution) and ESTA occupiers' right not to be denied access to educational services under section 6(2)(f).