FW Ortmann Trust and Another v Lucy Gumede and Others

The First Applicant, FW Ortmann Trust, owns a farm (remainder of Sub 12 (of 3) of the farm Kruisfontein HO 1143, New Hanover, KwaZulu-Natal) which is leased to the Second Applicant, Ortmann Brothers Partnership, for timber and sugar cane farming. The First Respondent, Lucy Gumede, was born on the farm in 1950 and resided there with her late husband and their children (Second to Eighth Respondents). The Respondents are not employed on the farm. The Respondents extended their dwelling area and encroached on fire belts required by insurance and the National Veld and Forest Fires Act. On 5 July 2019, the Applicants obtained an interim order requiring Respondents to remove fences and combustible materials from fire belt areas. When the Sheriff attempted to execute court orders on 9 and 17 July 2019, the Respondents violently resisted. The Second Respondent threw a beer bottle injuring a worker. The Seventh Respondent retrieved a firearm, loaded it and threatened to shoot the farm manager. On 12 and 13 July 2019, fires were deliberately set in sugar cane plantations. The Ninth Respondent and another relative were caught setting fires. The Respondents have a pending labour tenancy claim in the Land Claims Court (LCC 58/2017).

• Whether the requirements of section 15 of ESTA for urgent interim removal of occupiers pending final eviction proceedings have been met
• Whether there was a real and imminent danger of substantial injury or damage to persons or property (section 15(1)(a))
• Whether there was no other effective remedy available (section 15(1)(b))
• Whether the likely hardship to the owner exceeded the hardship to the occupiers (section 15(1)(c))
• Whether adequate arrangements were made for reinstatement if final eviction is not granted (section 15(1)(d))
• Whether costs on an attorney and client scale were justified

1. The Sheriff or Deputy, with assistance of SAPS and/or private security, is ordered to forthwith remove the First to Ninth Respondents from house number 12 on the farm pending final eviction proceedings, in terms of section 15 of ESTA and/or section 15 of the Labour Tenants Act. 2. Relief pertaining to final eviction (paragraphs 2, 4 and 5 of Notice of Motion) is adjourned sine die. 3. Pending eviction, the First to Ninth Respondents are interdicted from: (3.1) assaulting, harassing or threatening trustees/employees or committing violence/arson or inciting same; (3.2) damaging or vandalising property; (3.3) entering the farm without written permission. 4. The Twelfth and Thirteenth Respondents (municipality and provincial government) are ordered to take reasonable measures to provide urgent/emergency housing should eviction occur. 5. The First to Ninth Respondents are jointly and severally ordered to pay costs on an attorney and client scale.

Under section 15 of ESTA, urgent interim removal of occupiers pending final eviction may be granted where: (a) there is real and imminent danger of substantial injury or damage - satisfied where occupiers threaten death, brandish loaded firearms, assault workers, and deliberately set fires causing actual injury and property damage; (b) no other effective remedy exists - satisfied where occupiers persist in violent conduct and deliberate disobedience of court orders despite conventional legal remedies; (c) hardship to owner exceeds hardship to occupiers - potential death and ongoing property destruction outweighs relocation hardship, particularly where occupiers own alternative property; and (d) adequate reinstatement arrangements exist - satisfied by undertaking to secure and preserve occupiers' dwelling. Availability of alternative accommodation is not a requirement for urgent removal under section 15(1)(a), unlike final eviction under section 9. Violent resistance to court orders and obstruction of court officers undermines the rule of law and justifies costs on an attorney and client scale.

The Court observed that even a tent constitutes suitable accommodation under section 15(1)(a) of ESTA, citing Grand Valley Estates v Nkosi. The Court noted that the Respondents' conduct 'bordered on contempt of court' and that disobedience of court orders 'makes a mockery of our Courts' judicial authority', referencing the constitutional value of the rule of law. The Court commented that the Respondents adopted the wrong approach by treating the interim removal application as if it were a final eviction application, when section 15 proceedings are interlocutory in nature. The Court noted that even if the Respondents were ultimately declared labour tenants, the Applicants had made out a case for temporary removal under both ESTA and the Labour Tenants Act. The Court observed that the practice in the Land Claims Court is not to award costs unless there are good reasons to do so, but expressed disapproval of the Respondents' conduct warranting departure from this practice. The Court declined to award costs for two counsel, noting this was not a sufficiently complex matter to justify such an award.

This case demonstrates the application of section 15 of ESTA for urgent interim removal of occupiers in circumstances of violence and property damage. It reinforces that actual injury and damage, not just threats, satisfy the 'real and imminent danger' requirement. The case confirms that availability of alternative accommodation is not a prerequisite for urgent removal under section 15(1)(a), distinguishing urgent removal from final eviction requirements. It emphasizes that violent resistance to court orders and obstruction of court officers (sheriffs) justifies attorney and client costs as such conduct undermines the rule of law and borders on contempt of court. The judgment clarifies that section 15 proceedings are interlocutory in nature, pending final eviction proceedings under section 9 of ESTA. The case also illustrates the court's approach to balancing hardships, finding that potential death and ongoing property damage outweigh occupiers' relocation hardship, particularly where occupiers own alternative property.