Gysbertus Johannes Joubert and Another v Victoria Mkhonza and Others

The first applicant (a farmer who purchased the farm in 2017 and took occupation, pending transfer) and the second applicant (the registered owner) sought urgent relief against the first respondent, a 67-year-old pensioner and ESTA occupier who has resided on the farm since the 1990s. Two brick structures had been erected at the first respondent's homestead on the farm. The first structure was commenced in 2023, allegedly to replace dilapidated mud structures. The parties disputed whether consent was granted: the first respondent claimed permission was given for a three-room brick house; the first applicant maintained he only consented to replacement of a small one-room kitchen. When the first applicant discovered the larger structure in 2024, he instructed work to stop. In August 2025, a second three-room brick structure was commenced on the foundation of a collapsed dwelling. The first respondent admitted she did not seek specific permission, believing earlier consent covered it. Construction proceeded rapidly despite warnings. The applicants launched urgent proceedings seeking interdicts against further construction and occupation, and orders for demolition of both structures. Second respondents were cited as "unknown occupiers" but were not individually identified.

• Whether the applicants (particularly the first applicant as purchaser pending transfer) had standing and authority to institute proceedings
• Whether a challenge to authority to institute proceedings must be brought via rule 7(1) or may be raised substantively on affidavit
• Whether the application was urgent in respect of each of the two structures (2023 and 2025)
• Whether the grant of a rule nisi with interim relief finally determines urgency or whether urgency may be revisited on the return day
• Whether the requirements for interdictory relief (interim or final) were met
• Whether an interdict may competently be granted against 'unknown occupiers' and if so, under what circumstances
• What remedy is just and equitable in an ESTA context where structures have been erected without consent or meaningful engagement
• Whether demolition is automatic upon a finding of unlawfulness or whether the court retains a discretion, particularly in ESTA matters

1. Application in respect of 2023 structure struck off the roll for lack of urgency, without prejudice to ordinary proceedings. 2. In respect of the 2025 structure: interim interdict granted restraining the first respondent and any person acting through her (including her son) from continuing construction or allowing occupation. 3. Demolition of the 2025 structure stayed. 4. Parties directed to engage in good faith for 30 days from 19 January 2026. 5. If no agreement: either party may institute further proceedings within 15 days (first respondent seeking authorisation to complete; applicants seeking demolition or other relief). 6. Interim interdict to remain in force pending determination of such proceedings, or lapse if no proceedings instituted within stipulated time. 7. Relief binds first respondent and those acting through her; no separate relief against "unknown occupiers". 8. Each party to pay own costs.

1. Authority to institute proceedings may be challenged substantively on affidavit and is not impeachable only via rule 7(1) of the Uniform Rules (or Land Court Rules). 2. The grant of a rule nisi with interim relief does not finally determine urgency; a respondent is entitled under rule 34(4)(b) to dispute urgency on the return day, and the court must reconsider it in light of the complete record. 3. Urgency will not be found where the prejudice or harm complained of has existed for a substantial period, the applicant delayed in approaching the court, and substantial redress remains available in due course (self-created urgency). 4. An interdict against "persons unknown" will only be granted where the class is described with sufficient precision to render its membership objectively ascertainable and there is cogent evidence linking that class to the actual or imminent infringement. 5. In the ESTA context, demolition of structures erected without consent or meaningful engagement is not automatic. The court retains full equitable discretion and must apply the justice-and-equity framework mandated by ss 5 and 6(2) of ESTA. Demolition must be justified as proportionate, taking into account: the occupier's dignity, security of tenure, vulnerability, conduct (good or bad faith, response to warnings), and means; the owner's property and management interests; the stage and nature of the structure; the availability of alternative remedies (compensation, regularisation, modification); and the systemic inequality inherent in the owner-occupier relationship on farms. 6. A court should not treat demolition as a routine sequel to unlawfulness in ESTA disputes, especially on urgent truncated papers; less drastic, incremental remedies (such as interim interdicts coupled with directions for engagement and provision for further proceedings) may be more appropriate and just.

The court observed: (1) That while Daniels and Basfour establish that ESTA occupiers may not unilaterally erect new dwellings without engagement, they do not support the proposition that any unilateral commencement of construction is per se an abuse of rights; in appropriate circumstances, reasonably necessary improvements may proceed, subject to duties of engagement and resort to court if disagreement persists. (2) That demolition in an ESTA setting is often, in substance, a partial eviction or serious curtailment of the protection ESTA was enacted to secure, and will almost always entail the destruction of improvements funded from scarce household resources; courts must therefore be more circumspect in ESTA matters than in ordinary neighbour-law disputes. (3) That the applicant seeking demolition, particularly on urgent papers, bears the onus to place clear, concrete facts before the court explaining why demolition (rather than a less drastic remedy) is necessary and proportionate, including evidence of impact on land use, the occupier's conduct and good or bad faith, and the feasibility of alternative remedies. (4) That in ESTA disputes the default costs position should be that each party bears its own costs, absent special circumstances, given the constitutional and public-interest dimensions and the typical inequality between the parties.

This judgment is significant in South African land and tenure law for several reasons: (1) It clarifies the remedial discretion of courts in ESTA disputes, holding that demolition orders are not automatic even where unlawfulness is established, and that courts must adopt a cautious, justice-and-equity-based approach informed by the constitutional imperative to protect vulnerable occupiers' dignity and security of tenure. (2) It distinguishes statutory demolition under the National Building Regulations and Building Standards Act (where discretion is minimal) from neighbour-law and ESTA demolition (where full equitable discretion applies). (3) It affirms that urgency in rule 34 (and by extension rule 6(12)) applications is not conclusively determined by the grant of a rule nisi; respondents retain the right to challenge urgency on the return day and courts must reconsider it in light of the full record. (4) It clarifies that challenges to authority to institute proceedings need not be brought exclusively under rule 7(1) and may be raised substantively on affidavit. (5) It applies and refines the principles in Johannes Rooyen regarding interdicts against "persons unknown", emphasising the need for objective ascertainability and cogent linkage to the impugned conduct. (6) It applies the Constitutional Court's direction in Daniels that ESTA occupiers do not have unfettered rights to erect new structures without engagement, while at the same time resisting a punitive or automatic approach to demolition and instead prioritising engagement, proportionality, and context-sensitive remedies. The judgment represents a careful and principled application of constitutional values to interim relief in land disputes.