- Owners must actively monitor their land and communicate expectations clearly to prevent unlawful construction.
- Occupiers under ESTA may improve existing dwellings but must seek consent before erecting new structures.
- Courts favour negotiation and incremental solutions over immediate demolition, balancing rights of owners and occupiers.
Farmers have the right to control the use of their land, including preventing unlawful construction, even by long-term occupiers.
In Utrecht, KwaZulu-Natal, tension flared when Victoria Mkhonza, a 67-year-old pensioner who has lived on Welgevonden farm since the 1990s, built two new brick structures without clear permission from the farm’s owner, Gysbertus Joubert. The dispute reached the Land Claims Court after Joubert sought to halt construction and remove the new buildings.
Mkhonza and her family argued that previous informal agreements allowed improvements and that she relied on earlier permissions when starting the second structure in August 2025. She testified that over the years, she had made small repairs and minor additions to her home with the understanding that the owner was aware. Mkhonza said she began the second dwelling to provide safer living conditions for her grandchildren.
Joubert countered that only a small kitchen replacement had been approved in 2023 and that the new three-room dwellings were unauthorised. He submitted that Mkhonza had acted unilaterally, constructing permanent structures without consulting him and causing potential loss of control over his land. Joubert’s legal team presented photographs, site plans, and correspondence showing that he had consistently objected to larger improvements and that Mkhonza had never formally requested approval for the second structure.
Court warns against unilateral construction
Acting Judge A Montzinger heard detailed evidence from both sides over two days. Witnesses included neighbours, farm employees, and family members of Mkhonza. Joubert’s counsel emphasised the owner’s constitutional property rights and argued that allowing the structures to stand without consent could set a precedent for further encroachments.
Mkhonza’s legal team relied on the Extension of Security of Tenure Act (ESTA), arguing that long-term occupation and improvements were permitted and that she had acted in good faith. They requested the court to consider the principles of equity, the humanitarian need for safe housing, and the fact that demolishing completed structures would cause undue hardship.
Judge Montzinger emphasised that even long-term occupiers under ESTA cannot erect new dwellings on a farm without engaging with the owner. The judge granted an interim interdict to stop further work and prevent occupation of the second 2025 structure, while also directing the parties to negotiate in good faith for 30 days.
“The law recognises the need to balance the rights of owners and occupiers, ensuring that improvements do not become unlawful encroachments,” Montzinger noted. The court stressed that demolition is not automatic, particularly when occupiers have invested their own resources to make their homes safer or more habitable.
Negotiation preferred over destruction
The ruling highlights the importance of dialogue between farm owners and occupiers. The first structure, begun in 2023, was not considered urgent because Joubert delayed taking action for over a year, showing that timing and prompt engagement matter in disputes. For the second structure, the court allowed an interim interdict rather than immediate demolition, giving space for negotiation and measured legal intervention.
“This approach protects the dignity and security of occupiers while respecting the property rights of owners,” the judgment explained. It reflects a cautious, just, and equitable method of resolving disputes under ESTA, avoiding unnecessary destruction and conflict.
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