Revisiting the Principles set out in Daniels: A Discussion of Basfour 3327 (Pty) Ltd v Thwala

Abstract

This case note discusses the judgment in Basfour 3327 (PTY) Ltd v Thwala(LCC160/2017) [2022] ZALCC 20. It revisits principles set out in Daniels v Scribante 2017 (4) SA 341 (CC) to show that, although consent is not a requirement for an occupier to improve an existing dwelling to align it with dignity, meaningful engagement with the owner is necessary. Despite the occupation needs occupiers might have, Daniels is context sensitive and therefore not a blanket authority to construct a new dwelling. This note affirms that Thwalacan be distinguished from Daniels: in Thwala, the occupiers were not involved in improving their existing dwelling to make it habitable. Instead, they were constructing a new dwelling outside the demarcated area, without the owner’s consent. Where a dwelling is not habitable and it is necessary to construct a new one, it must be done after meaningful engagement between the occupiers and the owner in accordance with the general guidelines set out in Daniels. The Thwala judgment should be welcomed for speaking out against the violation of the rights and/or interests of owners by occupiers.