The applicant, Christopher Gerald Hlatshwayo, lived on the farm Weltevreden No 1017 (commonly known as St Ives farm) in KwaZulu-Natal. He alleged that he and his family were labour tenants, as his parents and grandparents had worked on the farm and he was born there. The applicant claimed that the respondents (farm owners/trustees) continuously impeded his access to his home by: digging trenches around his home; placing a fence around the property and locking the entrance gate without providing him a key; and locking him and his family out on 15 September 2011. The farm had been developed into a restaurant (St Ives) approximately 5 years prior, which required a new access route from the R103 road, resulting in the old access route being sealed off. Three routes existed to the applicant's home: the "old route" (sealed off), the "new route" through the R103 (locked to protect game), and the "Sappi route" (around an adjoining property). The applicant launched an urgent application for an interdict. An interim order was granted on 16 September 2011 interdicting the respondents from harassing and intimidating the applicant and directing them to allow access to his home.
1. The first and second respondents and any persons through them were interdicted from impeding the applicant and his family's access to the applicant's home on the farm. 2. Use of the driveway from the main road (R103) to the applicant's home by pedestrian and vehicular traffic was reinstated. 3. The first and second respondents were directed to fill the trench opposite the applicant's household within 60 days. 4. The respondents' application to strike out was granted with costs. 5. Each party was ordered to pay its own costs for the main application.
1. Service on an attorney of record under Rule 4(1)(aA) of the Uniform Rules of Court is proper where the attorney is already representing a party, and a respondent who takes further steps in proceedings with knowledge of alleged irregular service is precluded from relying on that irregularity under Rule 30(2). 2. Under Rule 34(2) of the Land Claims Court Rules, urgency requirements are satisfied where the founding affidavit avers circumstances constituting harassment and intimidation (such as being fenced in and locked out) even without using the word "explicitly." 3. Under Rule 33(10) of the Land Claims Court Rules (equivalent to Rule 6(15) of the Uniform Rules), statements in affidavits may be struck out as scandalous, vexatious or irrelevant only where: (a) the statement meets the definition of one of these terms, and (b) the applicant will be prejudiced if the statement remains. Scandalous matter includes allegations that are defamatory and create prejudice by suggesting a pattern of wrongful conduct. 4. In motion proceedings, where a respondent's version contains material contradictions (such as claiming both that access is available and that the same access route was sealed off), no genuine bona fide dispute of fact exists under the Plascon-Evans principle, and the court may grant final relief based on the applicant's more probable version. 5. Confirmation of labour tenant status under the Land Reform (Labour Tenants) Act 3 of 1996 requires the applicant to establish every element of the definition in section 1, including the negative requirement of not being a farm worker. Such confirmation is not appropriately sought in urgent interdict proceedings designed to secure access rights. 6. The right of occupiers to access their homes is protected by interdict where respondents fail to establish a genuine dispute regarding impediment of access.
The Court made several important observations: 1. On constitutional rights: The Court observed that while the Land Reform legislation addresses rights of owners and occupiers, section 10 (human dignity) and section 24 (environmental rights) of the Constitution must not be ignored. The digging of a trench near a family homestead with inadequate lighting, which would fill with squalor, rodents and disease, "smacks of indignity towards the applicant" and flouts the applicant's rights to an environment not harmful to health. The Court urged the respondent to take immediate remedial steps. 2. On abuse of process: The Court cited Beinash v Wixley for the principle that there can be no all-encompassing definition of "abuse of process," but it generally occurs where court procedures are used for purposes extraneous to the pursuit of truth. The Court cautioned, citing Western Assurance Fisheries, that the power to strike out must be exercised with great caution as courts are open to all. 3. On costs de bonis propriis: The Court noted that such punitive costs orders against legal practitioners require "negligence in a serious degree" as a mark of the court's displeasure. While the applicant's counsel made inappropriate statements, they were attempting to explain the client's predicament, and the failure did not reach the level of gravity required for such an order. 4. On legal representation: The Court expressed disapproval of the applicant's counsel's conduct in continuing to insist on the trench issue despite contrary evidence from the inspection in loco, and in making oral submissions contradictory to written submissions, causing uncertainty. This conduct, while not warranting costs de bonis propriis, was sufficient to deny costs to the successful applicant.
This case is significant in South African land reform law for several reasons: 1. It illustrates the application of urgency requirements under Rule 34 of the Land Claims Court Rules in the context of alleged harassment and intimidation of occupiers. 2. It demonstrates the court's approach to service on an attorney of record under Rule 4(1)(aA) and the consequences of failing to comply with Rule 30(2) when challenging irregular service. 3. It applies the Plascon-Evans principle to resolve disputes of fact in motion proceedings, holding that contradictory versions from a respondent may fail to establish a bona fide dispute of fact. 4. It clarifies the requirements for striking out statements in affidavits under Rule 33(10) as scandalous, vexatious or irrelevant, requiring both that the statement meet the definition and that prejudice be shown. 5. It emphasizes that confirmation of labour tenant status requires satisfaction of all elements of the definition in section 1 of the Land Reform (Labour Tenants) Act 3 of 1996 and is not appropriate in urgent interdict proceedings. 6. It affirms the constitutional dimensions of land disputes, noting potential violations of dignity (section 10) and environmental rights (section 24) even where technical legal claims may not succeed. 7. It provides guidance on when costs de bonis propriis may be awarded against legal practitioners, requiring negligence of a serious degree. The judgment balances access rights of occupiers with procedural requirements while maintaining sensitivity to the constitutional and socio-economic dimensions of land disputes in post-apartheid South Africa.