Zonwabile Alfred May and Others v Windmeul Kelder and Others

Seven occupiers, the May family and their relatives, occupied Farm 1652, Paarl Division since January 1982. The landowner, Windmeul Kelder, obtained a first eviction order on 30 April 2018 when the occupiers were unrepresented and absent from court. The occupiers then obtained legal representation through Ms. Macnab, an attorney appointed by the Department of Rural Development and Land Reform. On 10 August 2018, a second eviction order was granted by agreement, varying the first order and setting eviction for 15 January 2019. The occupiers alleged they never consented to this settlement. They were evicted on 26 March 2019. The Municipality offered temporary emergency accommodation in tents at New Orleans Park, which the occupiers refused. The occupiers then launched this third rescission application seeking to set aside both eviction orders, restoration of occupation rights, services, and damages.

• Whether the second eviction order should be rescinded on the basis that it was granted without the occupiers' consent
• Whether Rule 64 of the Land Claims Court Rules and section 35(11) of the Restitution of Land Rights Act provide grounds for rescission where an order was 'erroneously sought or granted'
• Whether Ms. Macnab acted without proper mandate when agreeing to the settlement that led to the second order
• Whether the occupiers were entitled to relief under section 14 of ESTA for eviction contrary to the Act
• Whether the Municipality was obliged to provide suitable alternative accommodation
• Whether the occupiers were entitled to compensation and damages

1. Application for rescission of the orders of 30 April 2018 and 10 August 2018 dismissed. 2. Application for compensation/damages against the landowner dismissed. 3. Application for reinstatement dismissed. 4. Application for leave to oppose the main eviction application dismissed. 5. Application for order directing the Municipality to provide specific accommodation dismissed. 6. No order as to costs.

1. Rule 64 of the Land Claims Court Rules only permits rescission to clarify ambiguities or rectify patent errors, not to set aside orders entirely. 2. Section 35(11) of the Restitution of Land Rights Act does not incorporate Uniform Rule 42; however, an order granted without consent would be void ab initio and subject to rescission under section 35(11)(b). 3. When there is a dispute about an attorney's mandate in motion proceedings, contemporaneous written communications (emails, WhatsApp messages) constitute strong evidence, and bare denials without specific counter-allegations may be rejected on the papers. 4. Section 14 of ESTA, providing for restoration after unlawful eviction, applies only to evictions contrary to ESTA (typically unlawful self-help evictions), not evictions properly executed pursuant to court orders. 5. The requirement for 'suitable alternative accommodation' applies to section 10(2) ESTA evictions, not section 10(1)(c) evictions based on relationship breakdown, though homelessness remains a relevant consideration. 6. Refusal of offered emergency accommodation undermines claims regarding the hardship of homelessness.

The Court expressed strong concern that adult occupiers chose to keep minor children on the roadside during winter rather than accept offered emergency accommodation, suggesting this might warrant investigation by the Child Protection Unit of the police. The Court noted that emergency housing programs cannot be used to jump the housing queue. The Court observed that the occupiers appeared to be making a standpoint or attempting to coerce benefits to which they were not entitled. The Court also noted it had no jurisdiction to order the Department of Rural Development and Land Reform to pay costs as it was not a party to the litigation despite funding the legal representation.

This judgment clarifies the limited scope of rescission applications in the Land Claims Court under Rule 64 and section 35(11) of the Restitution Act. It confirms that these provisions do not incorporate Uniform Rule 42's grounds for rescission of orders 'erroneously sought or granted'. The case emphasizes the importance of contemporaneous records in attorney-client communications and the probative weakness of bare denials in motion proceedings. It also clarifies that section 14 of ESTA (restoration after unlawful eviction) does not apply where eviction followed a valid court order. The judgment distinguishes between 'suitable alternative accommodation' requirements under section 10(2) versus section 10(1)(c) of ESTA, and confirms that refusal of offered emergency accommodation undermines claims of homelessness. The decision demonstrates judicial concern for minor children affected by litigation strategies of adults.