Farmer wins case against illegal builders

2013-10-25 00:00

TWO men who “flagrantly and arrogantly” breached an interim court order to stop building a house on a Karkloof dairy farm were given suspended jail terms for contempt of court yesterday.

The farm, Gartmore, belongs to dairy farmer Charles MacGillivray.

Judge Daya Pillay sentenced father and son Thulani and Siya Mahlaba to 20 days’ imprisonment each, but suspended their sentences for three years on condition they don’t again breach any court order.

The Mahlabas were ordered to pay the costs of the action.

Judge Pillay was earlier asked by advocate Chris Snyman, representing MacGillivray, to send the men to jail for three months.

Snyman said they had ignored various earlier legal undertakings and court orders, and clearly had no regard at all for law and order.

Attorney Minesh Singh, appearing for the Mahlabas (on instruction from the Land Reform Department), urged the court to be lenient.

He said there is an ongoing dispute in the Land Claims Court over their occupancy of the farm, where they’ve lived since 1993.

The court was told that they don’t work on the farm — Thulani Mahlaba is employed by the uMngeni Municipality and Siya Mahlaba works for Karkloof Canopy Tours.

Judge Pillay agreed the men should “feel the pinch” for disobeying a judge’s order, but ruled that a suspended sentence was appropriate.

She found it was unlikely they’d be able to pay a fine.

The judge rejected Thulani Mahlaba’s evidence that the sheriff had not explained the various court documents — including the order that led to the contempt of court application — when they were served on him, and that he hadn’t read them.

Judge Pillay said it appeared from Thulani Mahlaba’s testimony that there was a lack of communication between him and MacGillivray, and urged the lawyers for both parties to “get together and try to thrash out an agreement”.

Thulani Mahlaba told the judge he was “desperate” to finish building his new home by Christmas so that he, his wife and four children could move out of the one room they currently occupy on the farm.

He said the “new house” — the subject of the dispute — is a smaller version of an original building he’d demolished because it was damaged by falling trees and because the roof leaked. He was dividing it up into five rooms.

Judge Pete Koen granted a temporary interdict in MacGillivray’s favour on October 7 this year, ordering Thulani and Siya Mahlaba to stop construction of the new house.

The Mahlabas have until November 5 to show why the order should not be made final.

According to MacGillivray’s affidavit, four days after the court order was served on Thulani and Siya Mahlaba, he’d noticed wattle poles being delivered to the building site in a municipal vehicle. Corrugated iron roofing was also delivered.

On October 13, MacGillivray said he saw the Mahlabas continuing with the building in defiance of the court order. By October 16, the farmer said the house was almost complete. Once people moved in, it would be difficult to evict them, he added.

MacGillivray said he has 185 people living on his farm. He therefore has to ensure that there is adequate accommodation for his employees and that only those people who have a right to do so, live on the farm.

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