Basfour 3327 (Pty) Ltd v Robert Thwala and Others

The Applicant, Basfour 3327 (Pty) Ltd, is the registered owner of a farm in Volksrust, Mpumalanga. The Respondents (the Thwala family) are occupiers who have resided on the farm since 1991 with consent from the previous owner. In 2017, the Applicant obtained an interim order prohibiting the Respondents from building new structures without consent. On 5 October 2022, Judge Ncube granted a final order declaring construction of new dwellings without consent unlawful and prohibiting such construction. The judgment noted the existing mud structures were dilapidated, unsuitable for human habitation, and not in keeping with human dignity. Judge Ncube observed (obiter) that had the Respondents demolished the mud structures and rebuilt on the same site using durable materials, this would constitute improvements rendering the dwelling habitable. In April 2023, the Respondents demolished a mud hut used for traditional ceremonies and began constructing a brick-and-mortar structure in its place without the Applicant's consent or meaningful engagement. The Applicant brought contempt of court proceedings.

• Whether the Respondents were in contempt of the court order granted by Judge Ncube on 5 October 2022
• Whether the construction of a new brick structure on the site of a demolished mud dwelling constitutes an 'improvement' rather than a prohibited 'new structure'
• Whether occupiers under ESTA require landowner consent before effecting improvements to make dwellings habitable and consistent with human dignity
• Whether failure to meaningfully engage with the landowner before effecting improvements constitutes contempt
• Whether the matter was res judicata

The contempt application was dismissed. The court declined to grant ancillary relief declaring the new structure unlawful and ordering its demolition, as this relief was dependent on the contempt finding. The court found that contempt of Judge Ncube's order was not established. No costs order was mentioned in the judgment extract provided.

To establish civil contempt of court, an applicant must prove: (1) a court order was granted against the alleged contemnor; (2) the contemnor had knowledge of it; and (3) the contemnor failed to comply. Once established, willfulness and mala fides are presumed, but the respondent can raise reasonable doubt. Mere breach of a court order is insufficient for contempt - there must be deliberate and malicious violation of the court's dignity, repute or authority. Good faith belief in compliance, even if mistaken, avoids the finding of contempt. Under ESTA and section 26 of the Constitution, occupiers have the right to effect improvements to render dwellings habitable and consistent with human dignity. While this right is not dependent on landowner consent, occupiers must meaningfully engage with landowners before effecting improvements. However, failure to engage does not automatically constitute contempt, particularly where the respondent acts on reasonable interpretation of judicial guidance and where the landowner has demonstrated unwillingness to facilitate the occupier's constitutional housing rights.

The court made several important observations: (1) It would be reminiscent of a painful past to allow landowners to solely determine what constitutes adequate accommodation for occupiers. (2) The distinction between structures used for habitation versus traditional ceremonies is arbitrary - occupiers' rights extend to all structures forming part of their homestead. (3) Requiring approved building plans for new structures while the original mud dwellings lacked such plans evidences the need for meaningful engagement. (4) Landowners' fears about setting precedents for other occupiers cannot override individual occupiers' constitutional rights to dignified housing. (5) The court noted that litigation about the same structure has been ongoing since 2017, and parties failed to engage meaningfully despite a 2018 court order directing them to do so. (6) The court suggested that in context, the Applicant's insistence on consent and engagement appeared to be more about form than substance, given his concession that he could not lawfully refuse such improvements.

This case clarifies the interaction between landowner property rights and occupiers' housing rights under ESTA and the Constitution. It reinforces principles from Daniels v Scribante regarding occupiers' rights to improve dwellings to meet human dignity standards without necessarily obtaining landowner consent, though meaningful engagement remains required. The judgment demonstrates judicial reluctance to find contempt where respondents act on reasonable (even if mistaken) interpretations of court orders, particularly obiter dicta. It illustrates courts' willingness to balance formalistic compliance with substantive justice in housing rights disputes, especially where landowners have historically resisted occupiers' efforts to achieve dignified living conditions. The case highlights that property rights may be justifiably limited under section 36 of the Constitution to protect socio-economic rights like adequate housing under section 26.