Muntu Welcome Khumalo v Len Smith Investment Holdings CC and Another

The applicant is a farm dweller residing on Kilham Farm in Bergville, KwaZulu-Natal. The first respondent (Len Smith Investment Holdings CC) owns the neighbouring Buffelskloof Farm. On 3 March 2020, Canca AJ granted an order directing the first respondent to provide the applicant with unhindered access to his homestead through Buffelskloof Farm upon 48 hours' notice, and further directed the parties to engage meaningfully within five days regarding the applicant's future use of the route. On 5 March 2020, the applicant's attorney proposed a meeting by 10 March 2020 to comply with the engagement order. The first respondent's attorneys acknowledged receipt but did not substantively engage. On 17 March 2020, the respondents purported to terminate the right of access, claiming it was a precarium terminable on reasonable notice. The applicant subsequently brought contempt proceedings alleging the respondents failed to comply with the court order.

• Whether the respondents were in contempt of the 3 March 2020 court order
• Whether the founding affidavit was validly commissioned
• Whether condonation should be granted for late filing of the replying affidavit
• Whether the respondents wilfully and mala fide failed to comply with the meaningful engagement directive
• Whether a precarium could be unilaterally terminated despite a court order requiring access
• The appropriate remedy for non-compliance with a court order

The court ordered: (1) Condonation granted for late filing of the replying affidavit; (2) The respondents are directed to take steps necessary to comply with the meaningful engagement order within 30 days of the date of the order; (3) The applicant is granted leave to approach the court on the same papers, supplemented where necessary, for further relief; (4) The respondents must pay the applicant's costs on a party-and-party scale.

The binding legal principles established are: (1) A court order requiring parties to engage meaningfully creates a substantive legal obligation that must be complied with and cannot be treated as merely aspirational or discretionary; (2) The duty to engage meaningfully is distinct from and additional to other substantive rights or duties contained in the same order; (3) Unilateral termination of access rights pursuant to a precarium is not permissible where a court has made an order directing access and meaningful engagement regarding future use; (4) Where non-compliance with a court order is established and is wilful, but reasonable doubt exists regarding mala fides, the appropriate remedy may be a directive to comply rather than immediate punitive sanctions; (5) Meaningful engagement orders remain extant and enforceable until properly discharged and cannot be deemed irrelevant by a party's unilateral act; (6) Section 165(5) of the Constitution requires that all court orders bind persons to whom they apply and must be obeyed unless properly set aside, regardless of whether a party believes the order was incorrectly granted.

The court made several non-binding observations: (1) The respondents' stance toward the applicant's access was troubling and evidenced an absence of concern for the applicant's rights and interests, and at times appeared demeaning of the applicant's position and station in life; (2) Meaningful engagement cannot be pursued by paying mere lip service to court orders; (3) In the context of the COVID-19 pandemic, rural litigants should not necessarily be prejudiced by the absence of medical certificates when explaining delay due to illness; (4) The court specifically did not decide the status of the right of precarium following the correspondence of 17 March 2021; (5) The court contemplated various possible procedural approaches for addressing doubt regarding mala fides, including referral to oral evidence, directing further affidavits, or applying a civil standard of proof, though ultimately chose a different remedial path; (6) The Land Court will only order costs in special circumstances, but non-compliance with court orders constitutes such special circumstances.

This case is significant in South African land law and farm dwellers' rights for several reasons: (1) It reinforces that court orders must be complied with regardless of a party's interpretation of their correctness, as mandated by section 165(5) of the Constitution; (2) It demonstrates the protective approach courts take toward farm dwellers' rights, particularly access rights; (3) It clarifies that meaningful engagement directives in court orders are substantive obligations that cannot be ignored or circumvented; (4) It illustrates the court's willingness to accommodate rural litigants in procedural matters; (5) It shows that costs may be awarded in the Land Court in special circumstances, particularly involving non-compliance with court orders; (6) It provides guidance on the distinction between wilfulness and mala fides in contempt proceedings, and the remedial approach courts may adopt when doubt exists regarding the latter element.