Minister of Human Settlements, Western Cape Provincial Government v Penhill Residents Small Farmers Co-operative Ltd and Others

The Western Cape Provincial Government owned agricultural land known as the Penhill Farms near Stellenbosch. From 1994 indigent small-scale farmers began occupying portions of the land for farming, with the government’s knowledge and some assistance. Over time the farmers organised themselves into the Penhill Residents Small Farmers Co-operative Ltd. Although negotiations took place over many years to regularise their occupation through leases for the portions already occupied, no leases were ever concluded. In 2011 the Provincial Government needed unoccupied portions of the land to settle another group of farmers (the Ithemba farmers) and for housing development. Despite being warned that unoccupied land was required, members of the Penhill Farmers and others continued to occupy additional portions and erect structures without consent. The Minister sought an urgent interdict to prevent further occupation and construction on unoccupied land, without seeking eviction of existing occupiers. The High Court and its full court on appeal dismissed the application, finding that the farmers had either consent or a legitimate expectation to occupy the entire property. The Minister appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The orders of the full court were set aside and replaced with an order interdicting the first respondent from occupying unoccupied portions of the property, erecting structures thereon, claiming rights over such portions, or inciting others to do so, and directing the first respondent to pay the costs of the application.

The case clarifies that prolonged negotiations and state assistance to unlawful occupiers do not, without unequivocal conduct, amount to consent to occupy land. It limits the scope of legitimate expectation in land occupation disputes and confirms that an owner’s decision to protect unoccupied property is not administrative action. The judgment is significant for government land management and unlawful occupation cases, as it affirms the state’s ability to negotiate without forfeiting ownership rights.