- The Land Court overturned a Wakkerstroom Magistrate’s Court eviction order, finding the dispute was about relocating a family within the same farm, not removing them from the land.
- Acting Judge Maluleke held that the magistrate erred by treating the case as an eviction under ESTA, rather than assessing whether relocation would be just and equitable.
- The matter was sent back for reconsideration, with instructions to focus on substantive fairness, meaningful engagement, and possible mediation.
The right of a family to remain in their home on communal land has come under renewed scrutiny after the Land Court ruled that a magistrate wrongly ordered their eviction without properly considering that they were only being relocated within the same farm.
Acting Judge MJ Maluleke overturned an order by the Wakkerstroom Magistrate’s Court, delivered on 19 September 2025. That court had declared Vusumuzi Kubheka and his family unlawful occupiers of a farmhouse on Portion 2 of Farm Wydgelegen 53 in Mpumalanga and ordered them to vacate within 60 days.
Judge Maluleke found that the dispute was not about eviction from the land, but about relocating the family from one house to another on the same property. This distinction proved vital to the legal outcome.
Parties and background
The applicant, Ezwelethu Communal Property Association (CPA), owns the Wydgelegen farm. The land was purchased in January 2018 through the Department of Rural Development and Land Reform as part of a land restitution process.
Kubheka, the first respondent, has lived on the farm with his family for years and is a recognised CPA beneficiary. He previously served as the CPA committee chairperson from 2018 until September 2023. According to the CPA, his term exceeded the three-year constitutional limit due to delayed elections during the COVID period.
In September 2023, a new committee was elected at a meeting Kubheka did not attend, leading to escalating tensions. The CPA alleged that Kubheka moved from his own dwelling into the CPA-owned farmhouse without consent, first sending his children in 2018 and then moving in himself in December 2022.
The CPA said it needed the farmhouse for its operations and that Kubheka already had alternative accommodation on the farm, though he described his own house as dilapidated. When notices and meetings failed to resolve the issue, the CPA sought relief under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The magistrate granted the eviction, and the matter went on automatic review.
Eviction versus relocation under ESTA
Central to the case was a legal distinction with profound consequences for rural families. Judge Maluleke emphasised: “This is a relocation matter and not an eviction matter, because the Respondents are not evicted from the land but relocated from the farmhouse to another house on the farm.”
He explained that an eviction under ESTA entails removal from the land altogether, often across different title deeds, while a relocation involves movement from one dwelling to another on the same property.
Quoting legal authority, the court stated that an eviction under ESTA “is confined to an eviction from the land, not from one dwelling to another.” The magistrate, therefore, applied the wrong legal framework.
Citing the majority in Du Plessis and Another v Kriel, the judge stressed that Section 8 of ESTA governs termination of residence rights even in relocation cases. As the judgment put it: “In my view, the rights that are affected by any relocation are rights of residence protected by section 8 of ESTA. In other words, properly interpreted, section 8 of ESTA is invoked where an occupier’s right of residence is terminated, whether or not that termination is intended to lead to an eviction either at the time it is terminated or at any time thereafter.”
Hardship and human dignity
A probation officer’s report filed under Section 9(3) of ESTA found that Kubheka and his family would suffer hardship if forced to leave the farmhouse, since their existing homestead was dilapidated and not habitable. The report stated that, unless a temporary structure were provided by a government institution, the family would be at risk.
The Land Court underscored that, even in relocation matters, the just and equitable standard is central. Drawing on Constitutional Court jurisprudence, the judgment stressed the need “to infuse elements of grace and compassion into the formal structure of the law” and to balance competing interests in a principled manner.
Judge Maluleke reiterated that courts must ensure “that justice and equity prevail in relation to all concerned.” ESTA, he said, requires balancing the landowner’s real rights with “the genuine despair of our people who are in dire need of accommodation.”
The court also recognised that where a relocation infringes an occupier’s human dignity, it can be resisted. Suitable alternative accommodation is therefore a substantive safeguard, not just a technical requirement.
Magistrate’s misdirection
The magistrate had proceeded on an unopposed basis, as Kubheka filed no answering affidavit. Still, the Land Court held that the legal characterisation of the dispute was decisive.
Judge Maluleke concluded: “The Magistrate erred in ordering eviction in a relocation matter.” Because the correct legal framework was not applied, the order could not stand.
He set aside the magistrate’s order entirely and sent the case back for reconsideration, instructing that it be treated as a relocation dispute with “an emphasis on ensuring substantive fairness and possible mediation.”
Final order
The Land Court set aside the eviction order granted on 19 September 2025, remitted the matter to the Wakkerstroom Magistrate’s Court for reconsideration as a relocation dispute, and made no order as to costs.
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