Basfour 3327 (Pty) Ltd v Thwala and Others

Basfour 3327 (Pty) Ltd (the appellant) was the registered owner of the farm Uitkyk 121 HS. The first to fourth respondents (the Thwala family members) occupied a cluster of homesteads on the farm consisting of mud walls and corrugated iron structures. The late Mrs Khanyi was a long-term occupier under ESTA, having resided on the farm with permission from the previous owner. In June 2017, the appellant discovered that respondents were erecting a new brick-and-mortar structure (the 2017 structure) without consent. The appellant obtained an interim order and subsequently, Ncube J declared the 2017 structure unlawful and ordered its demolition, which was executed by the sheriff in March 2023. In April 2023, the respondents demolished parts of their homestead (used for traditional ceremonies and a storeroom) and commenced erecting another brick-and-mortar structure (the 2023 structure) without the appellant's knowledge or consent. The appellant sought declaratory, prohibitory, and demolition relief. The respondents argued they were entitled to make improvements to render their dwellings habitable, relying on the Constitutional Court decision in Daniels v Scribante.

• Whether occupiers under ESTA may erect new structures or make improvements to existing structures without the consent of or meaningful engagement with the land owner
• Whether the 2023 structure was unlawfully erected
• Whether the Land Claims Court erred in treating the application solely as contempt of court proceedings
• Whether an order for demolition of the unlawfully erected structure was just and appropriate

The appeal was upheld with no order as to costs. The LCC's order dismissing the application was set aside and replaced with an order: (1) declaring the unauthorized brick foundation and any building upon it unlawful; (2) ordering the first to fourth respondents to demolish the unlawfully constructed structure within 30 days; (3) ordering removal of all building materials within 30 days; (4) authorizing the sheriff to demolish and remove materials if respondents failed to comply; (5) each party to pay their own costs.

Under ESTA, while an occupier does not require the landowner's consent to make improvements to render a dwelling habitable in conformity with human dignity (as established in Daniels v Scribante), meaningful engagement with the owner or person in charge is nevertheless necessary. An occupier cannot exercise rights to improve dwellings in an unbridled manner or through self-help, as this would disregard the landowner's constitutional property rights under section 25 and potentially impinge on the owner's right to human dignity. Section 6(2) of ESTA requires that an occupier's right to security of tenure be balanced with the rights of the owner or person in charge. Improvements must be 'reasonably necessary' to render the dwelling habitable, and meaningful engagement is required to determine what is reasonable and necessary. Where a structure is erected entirely without consent or meaningful engagement, it is unlawful. The erection of an entirely new structure (as opposed to improvements to an existing structure) requires greater consultation and cannot be done unilaterally.

The Court noted that it was unnecessary to consider the appellant's additional submission that respondents were obliged to obtain approved building plans to erect the structure. The Court observed that the demolition order might secure greater adherence to court orders and prompt the respondents to reflect more carefully on their conduct in the future. The Court confirmed that in litigation between private parties where constitutional issues are raised, the default position is not to award costs unless there are special circumstances, and no such circumstances were present where respondents had sought to assert a constitutional right, albeit misguidedly. The Court also noted that the lack of information about how far construction had progressed was relevant to the exercise of discretion regarding demolition, though photographic evidence showed only a foundation had been constructed.

This judgment clarifies the scope and application of the Constitutional Court's decision in Daniels v Scribante regarding the rights of occupiers under ESTA to improve their dwellings. It establishes that while occupiers do not require consent to make improvements necessary for human dignity, they cannot act unilaterally and must engage meaningfully with landowners. The case reinforces the balance between occupiers' constitutional rights (particularly dignity and security of tenure under ESTA) and landowners' property rights under section 25 of the Constitution. It provides guidance on when improvements constitute new structures versus renovations, and when demolition is an appropriate remedy. The judgment is significant for land tenure disputes in South Africa and the interpretation of ESTA in the post-Scribante era.