Manyaka Calastine Khiba and Others v Stephanus Francois van Niekerk and Others

The Khiba family, comprising Mrs Manyaka Calastine Khiba (a 62-year-old seasonal farm worker), her nephew Malefane Isaac Khiba, her niece Malitaba Alina Khiba, and her son Tefo Johannes Khiba, claimed to have resided on Quaggafontein farm near Ficksburg since 1988. Mrs Khiba's brother Pelesa worked on the farm from 1987 and died in 2005. The family alleged they lived in mud huts on the farm and had consent from the previous owner, Magiel van Niekerk (known as Magidi or Thabiso), to remain on the farm after he stopped farming in 1998. On 6 November 2020, during the COVID-19 pandemic, the family was evicted pursuant to an order granted by the Ficksburg Magistrate's Court under PIE against Malefane only. Their home was demolished, belongings were placed on the street, and their cattle were impounded. The respondents, Stephanus Francois van Niekerk and Michael van Niekerk Eiendomme CC (the farm owners), contested the application, arguing that only Malefane had unlawfully occupied the farm since 2014 and that Mrs Khiba resided on a neighbouring farm, Christophil, with her partner David Jakob. The respondents claimed Malitaba lived on Jakkalsfontein farm after marriage and that Tefo was unknown to them.

• Whether the Land Court has jurisdiction to hear the matter given an unrescinded PIE eviction order against Malefane
• Whether Mrs Khiba and the other applicants were 'occupiers' as defined in ESTA
• Whether the eviction of the applicants under PIE instead of ESTA was unlawful
• Whether the applicants' rights to residence and use of land should be restored under section 14 of ESTA
• Whether compensation should be awarded for damage to movable property and loss of cattle

1. The eviction of the First, Third and Fourth Applicants on 6 November 2020 was declared unlawful. 2. Their rights of residence and use of land on Quaggafontein farm were restored under section 14 of ESTA, including: (a) restoration of access to their homestead and land within 14 days; (b) reconstruction of the demolished home within one month; (c) restoration of occupation rights and land use rights; (d) restoration of services and amenities including wood access, water, livestock grazing. 3. The applicants were entitled to just and equitable compensation for damage to movable property as agreed or to be determined by the Court. 4. No order in respect of compensation for loss of cattle. 5. No order in respect of the Second Applicant (Malefane). 6. The First and Second Respondents were ordered to pay the applicants' costs jointly and severally.

The binding legal principles established are: (1) Where farm dwellers are occupiers protected by ESTA, they may only be evicted in accordance with sections 8 and 9 of ESTA, not under PIE; eviction under PIE in such circumstances is unlawful. (2) An 'occupier' under ESTA includes a person who has resided openly and continuously on land for the prescribed period (one year for presumed consent, three years for deemed knowledge) with tacit or presumed consent of the owner or person in charge. (3) 'Residence' under ESTA must be interpreted contextually to account for the socio-economic realities of farm dwellers, including labour migrancy and temporary absences for work or education, provided there is an intention to return and the land remains the person's permanent home. (4) Family members of an occupier, including adult children and extended relatives, are entitled to reside with the occupier as an incident of the occupier's right to family life. (5) The Land Court has broad jurisdiction under section 20 of ESTA and section 24(1)(c) of the Land Court Act to adjudicate matters concerning occupiers' rights, including matters arising under PIE that are sufficiently connected to ESTA issues. (6) Where occupiers are unlawfully evicted contrary to ESTA, the Land Court may grant restoration orders under section 14 of ESTA, including restoration of residence, use of land, reconstruction of demolished structures, restoration of services and amenities, and compensation for damages. (7) Even where an eviction order under PIE has been granted and remains unrescinded, the Land Court may grant relief to persons not cited in those proceedings who were nevertheless evicted.

The Court made several important non-binding observations: (1) Mabasa AJ observed that Mrs Khiba, as a black, elderly woman farm dweller, is situated at the intersection of multiple systems of oppression (age, race, gender), resulting in gender-specific and race-specific harm requiring judicial protection. (2) The Court noted that the Land Court has a unique mandate as a court of law and equity to promote equitable access to land and facilitate land justice through transformative constitutionalism. (3) The Court observed that 'progressive jurisprudence' as referenced in the Land Court Act preamble refers to a judicial approach that advances social justice, equity, and redress of historical injustices. (4) Mabasa AJ noted that the history of land and cattle dispossession is intimately connected in South African history, and unlawful cattle impoundment can constitute constructive eviction. (5) Cowen DJP observed that inspections in loco should generally be conducted prior to or during trial, and pointing out by prospective witnesses during such inspections without sworn testimony and interpretation can lead to fairness difficulties. (6) Cowen DJP noted that while she did not find that the PIE order was sought as a 'legal maneuver', landowners and persons in charge of farms must be familiar with ESTA requirements and act with great caution when seeking evictions, and the Court will express displeasure through costs orders where they fail to do so. (7) The Court observed that orders under PIE are not subject to automatic review by the Land Court, placing additional responsibility on landowners to ensure ESTA compliance.

This case is significant in South African land reform jurisprudence for several reasons: (1) It clarifies that ESTA, not PIE, applies to evictions of farm dwellers who are occupiers with security of tenure rights; (2) It demonstrates the broad jurisdiction of the Land Court to adjudicate matters concerning occupiers' rights and to address misapplication of PIE where ESTA should apply; (3) It adopts a progressive interpretation of 'occupier' under ESTA, recognizing tacit and presumed consent, family relationships, and the socio-economic realities of farm dwellers who may leave temporarily for work or education but maintain their residence; (4) It emphasizes that the term 'reside' should be interpreted contextually, accounting for economic necessity and labour migrancy patterns, and should not be narrowly confined to continuous physical presence; (5) It recognizes the right to family life for farm dwellers, including extended family members; (6) It demonstrates the court's willingness to award costs in exceptional cases where landowners fail to comply with ESTA requirements; (7) It applies principles of transformative constitutionalism and progressive jurisprudence to land tenure issues, particularly protecting vulnerable, elderly black women farm dwellers from arbitrary eviction.