Land occupiers head to court to fight removal from government farms

The judge who ordered the removal of farmers who had occupied government farms in the North West since 2019 misapplied himself when he made findings not supported by any evidence presented before court.

This allegation is contained in the application by five of the 21 occupiers for leave to appeal against an order of the high court in Mahikeng on July 12.

The five seek to appeal against an order made by judge Samkelo Gura that interdicted them from occupying the farms. Gura also ordered that the farmers remove their livestock from the farms, worth more than R50m, within two weeks of the date of the order.

The government had purchased the farms from existing commercial farmers, with the aim of redistributing them to qualifying emerging farmers in the province. This was supposed to happen in August 2019.

However, the presence of the people who occupied the state farms during 2019 made it impossible for the department of agriculture, land reform and rural development to give undisturbed possession of the farms to the successful beneficiaries.

In an application for leave to appeal filed on Monday, Tshwaro Motshe, White Basime, Aobake Modisenyane and a representative of the Tlang Ka Phulo Farming and Projects Co-operative said the basis for seeking leave to appeal was that the appeal would have reasonable prospects of success on a number of legal and factual grounds.

They said the judge misapplied himself when he made a number of findings that are not supported by any of the evidence before the court.

The four said one of the examples was when the judge said the occupiers were hostile to the department's officials.

Another, according to the four, was the finding that some of them have threatened that they would leave the land only in coffins.

In a separate application, another occupier, Olebogeng Thebeyatshipi, said on the facts he advanced to the court, he was granted a right of use of property, or alternatively a right of habitation.

“A right of use or a right [of] habitation constitutes a lawful limitation on the right of ownership.”

Thebeyatshipi had explained in his affidavit before the court last year that he occupied the farms with permission of the then possessor of the farm.

Thebeyatshipi said he was authorised by officials of the department at a meeting held at the farm Brulpan on May 31 2019 to continue using the farm as a caretaker.

In his judgment, however, Gura found that no representative of the department attended the Brulpan meeting.

Thebeyatshipi said in his application for leave to appeal that he raised a real dispute of fact, which amounted to a substantial and clear defence and that the court erred in rejecting his account of the May 31 2019 meeting merely on the papers.

Thebeyatshipi said he raised a genuine dispute of fact that cannot be resolved on paper, and as such it had to be decided in his favour.

“It is not appropriate to resolve material disputes of fact in motion proceedings based on probabilities,” Thebeyatshipi said.

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