A farming couple in Malmesbury has lost an appeal against a ruling that their lease agreement was in contravention of agriculture legislation.

A full Bench ruled that, as a result of the unlawfulness, the couple must leave the farm – but only after their crops have been harvested.

A BusinessLIVE report says in 2000, Alwyn and Martha Hanekom leased portions of farms owned by Bartholomeus Lombard for 10 years. However, the legislation that governs subdivision of agricultural land in SA – the 1970s Subdivision of Agricultural Land Act – does not allow for such long leases without the Agriculture Minister’s consent.

They did not have this.

So the agreement had no legal basis and was void.

When this was discovered, Lombard sought to cancel the agreement and begin only a five-year lease. The Hanekoms opposed this, claiming they had a valid lease and a lien worth more than R4.5m.

In 2021, however, when Lombard instituted High Court proceedings, the Hanekoms abandoned this position. Instead, they told Western Cape High Court Judge Mokgoatji Dolamo their eviction would be unjust.

They also told the court they conceded the lease was unlawful.

However, they said because Lombard himself had engaged in unlawful conduct by signing the agreement, he could not come to court to get rid of them.

However, Dolamo disagreed, finding that Lombard had not acted dishonourably. Neither party was aware of the need to obtain the Minister’s consent before signing.

Dolamo ruled in Lombard’s favour last year.

The Hanekoms appealed to the SCA, which ruled a full Bench of the Western Cape High Court should hear the matter instead.

BusinessLIVE says in July this year, the Western Cape High Court again heard the matter, but before three other judges.

Writing for a unanimous court, Judge Robert Henney dismissed the appeal. The Hanekoms attempted to make out a slightly new case, asking the appeal Bench to hear new evidence.

They wanted to argue that at least one portion of the lease did not have to be declared void as it fell outside the scope of the Act.

They also said the law had not been violated because, while it appears on paper that they leased a portion of the farm, they had in fact taken over the entire farming operation. 

Henney was not persuaded because nothing had in fact changed.

He ruled ‘there is no other basis upon which the appellants can assert a claim or a right to be in possession of the farm’. However, given their efforts, the court allowed the Hanekoms to harvest the crops they had been busy with and vacate only by April 2024.

Henney dismissed the appeal with costs.

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