Theo Dicke (Pty) Ltd v Mamoyabo Machete Snr and Another

The applicant owned the remaining extent of the farm Spitsrand 422 LT in the former Transvaal Province. The family's ownership dates back to 1893. The first respondent was an elderly woman and long-term occupier under section 8 of ESTA whose late husband had worked on the farm. She had the right to reside on the property with her dependants. The second respondent was the first respondent's granddaughter who had resided on the farm as a family member of the first respondent, initially with her late mother (who had worked for Mr Dicke) in a traditional wattle and daub house. In November 2011, the second respondent telephoned Mr Dicke to request permission to build a new house. Mr Dicke declined the request. While he was away on holiday in December 2011, the second respondent constructed a new brick and mortar dwelling without permission. When Mr Dicke returned and confronted her, she acknowledged he had not given permission. The applicant sought an order declaring the construction unlawful, directing the second respondent to vacate and demolish the new dwelling, and prohibiting future unauthorized construction.

• Whether the second respondent is an occupier in her own right under ESTA
• Whether the second respondent received tacit consent from the applicant to construct a new dwelling
• Whether the traditional house could be repaired
• Whether the applicant was entitled to declaratory relief that the second respondent's conduct was unlawful
• Whether the applicant was entitled to a mandatory interdict requiring demolition and vacation of the new dwelling
• Whether the applicant was entitled to a prohibitory interdict against both respondents
• Whether costs should be awarded

The court granted the following order: (a) The second respondent's construction was declared unlawful; (b) The second respondent must vacate the new dwelling by 28 February 2013; (c) The Sheriff was authorized to remove the second respondent and all persons residing in the new dwelling on 4 March 2013 if they had not complied; (d) The second respondent must demolish the new dwelling by 28 February 2013; (e) The second respondent was prohibited from building further structures without express written permission; (f) The first respondent was prohibited from enabling or assisting unauthorized persons to establish new dwellings without express written permission; (g) No order as to costs.

The binding legal principles established are: (1) Family members of ESTA occupiers who reside on land do not acquire independent occupier status under ESTA - they occupy derivatively as family members under section 6(2)(d) and the deeming provisions of sections 3(4) and (5) do not apply to them; (2) The construction of new dwellings by family members of occupiers without the landowner's permission is unlawful and violates section 6(3)(d) of ESTA; (3) The Land Claims Court has power under section 22(2)(a) of the Restitution of Land Rights Act to grant declaratory orders and interdicts using the same requirements as apply in the High Court; (4) Where unauthorized construction has occurred, a landowner can obtain mandatory interdict relief requiring demolition and vacation without invoking ESTA's eviction procedures, provided the normal interdict requirements are met (clear right, reasonable apprehension of harm, no other adequate remedy); (5) Prohibitory interdicts can be granted to enforce the prohibition in section 6(3)(d) of ESTA against occupiers enabling or assisting unauthorized persons to establish new dwellings.

The court made observations about the maintenance requirements for traditional wattle and daub houses, noting that such houses can be maintained by applying fresh mud and replacing poles when necessary. The court also noted that traditional houses can be built without approved building plans, whereas brick and mortar houses pose a serious safety threat if they collapse due to their heavy materials and are unlawful without plan approval. The court reiterated the general principle from Singh v North Central and South Central Council that the Land Claims Court should generally not make costs orders unless special circumstances are present, and distinguished that case where a costs order was made due to inappropriate conduct by an attorney.

This case clarifies important principles regarding the rights and obligations of occupiers under ESTA. It establishes that family members of long-term occupiers do not acquire independent occupier status merely through continued residence after the death of the original occupier who had employment ties to the landowner. The judgment confirms that section 6(3)(d) of ESTA, which prohibits occupiers from enabling or assisting unauthorized persons to establish new dwellings, is enforceable through interdict proceedings. The case also demonstrates that while ESTA protects security of tenure for qualifying occupiers and their family members, this does not extend to a right to construct new dwellings without the landowner's permission. The decision reinforces the landowner's control over the establishment of new structures on their property while balancing the residential rights of lawful occupiers and their families. It is also significant for establishing that the Land Claims Court can grant mandatory and prohibitory interdicts using the normal requirements applicable in the High Court, and that such relief is not subject to the eviction requirements of ESTA where only removal from an unauthorized structure (not eviction from the land) is sought.