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The Court confirmed that, within the framework of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or ESTA, a demolition order does not automatically follow the unlawful construction of a building.
Previous articles explained how South African legislation has developed to protect the dignity of farm dwellers, even at the expense of traditional property rights. Although occupiers have the right to erect structures and make improvements with the landowner or person in charge’s consent, doing so without prior consultation or a court order may result in such structures being demolished.
However, the recent decision of the Land Court in Joubert and Others vs Mkhonza and Others 2026 JDR 0030 (LCC), delivered by acting justice Montzinger, brings about a shift. The Court confirmed that, within the framework of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or ESTA, a demolition order does not automatically follow the unlawful construction of a building.
The Joubert case
Mkhonza is a 67-year-old pensioner who has resided on the farm since the 1990s. In 2023, she sent her son to request permission to replace her existing mud structures with a brick house. She alleged that Joubert, who managed the farming operations, visited her house in 2024 and expressly agreed to the construction.
Joubert maintained that Mkhonza had approached him personally for permission to build only a small kitchen, which he approved. When he later observed the construction of a substantially larger dwelling in 2024, he gave an instruction for the work to cease. According to him, the walls were only a few bricks high at that stage.
In 2025, Mkhonza commenced construction of a second dwelling on an existing foundation. She admitted that she had not sought permission, believing the approval obtained in 2023 remained valid. While she claimed that construction was halted the moment Joubert objected, he testified that building materials continued to be delivered and that, on 23 August 2025, he found the first house almost complete, with foundations for the second already laid.
The sheriff served a summons in late August 2025, after which the respondents were instructed to cease construction and enter into negotiations. On 3 September 2025, the applicants’ attorney and private security served the notice of motion. The applicants later alleged that, despite the contents of the court documents and directives being explained in isiZulu, construction continued.
The applicants argued that both structures had been erected unlawfully and without prior consultation. They sought urgent relief in the form of an interdict prohibiting further construction and occupation, as well as demolition of both structures. An interim order was granted on 5 September 2025, pending the return date before the Land Court.
The Court’s findings
The Court distinguished between the two structures when considering urgency. It held that the application concerning the 2023 structure was not urgent because the applicants had been aware of the construction in 2024 but failed to approach the Court at the time. The urgency was therefore self-created.
The Court reaffirmed that ESTA does not entitle occupiers to unilaterally erect new or additional dwellings without prior consultation with the landowner; self-help is also not permitted. Since it was common cause that no consultation had preceded the construction commenced in 2025, an interim interdict was justified to stabilise the situation.
In addressing the request for demolition, however, the Court adopted a more nuanced approach. It held that, even where a structure contravenes the National Building Regulations and Building Standards Act, 1977 (Act 103 of 1977), demolition is not an automatic consequence. The Court still retains its full discretion to decide on an appropriate remedy, guided by what is fair and just under the circumstances.
Demolishing a dwelling may amount to a partial eviction or significantly undermine the protection afforded by ESTA. It will often destroy improvements financed from limited household resources to secure safer and more dignified living conditions. A balance must be struck between the rights of occupiers and the interests of landowners.
The Court held that an applicant seeking demolition bears the onus of placing sufficient evidence before the Court to demonstrate why demolition is necessary and proportionate. This includes evidence relating to, inter alia, the structure’s completion date, its impact on the use and value of the property, possible alternatives, the occupier’s conduct and response to warnings or court orders, and whether remedies such as compensation, regularisation, or partial alterations could protect the owner’s rights without destroying economically valuable improvements.
Mkhonza was prohibited from continuing construction or occupying the 2025 structure. The Court ordered the parties to negotiate in good faith for 30 days about what must happen with the structure. If no agreement is reached, either party may approach the Court within 15 days for a final ruling on the application for an interdict and demolition order. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, contact Clarissa Pienaar at clarissap@mmlaw.co.za or the Pietermaritzburg office at 033 032 0241 or the Potchefstroom office at 018 297 8799.
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