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[2015] ZASCA 137
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Snyders v De Jager (20469/2014) [2015] ZASCA 137; 2016 (5) SA 218 (SCA) (30 September 2015)
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THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 20469/2014
In
the matter between:
KAREL
SNYDERS
FIRST APPELLANT
SOFIA
SNYDERS
SECOND
APPELLANT
MINOR
CHILDREN
THIRD APPELLANT
and
LOUISA
FREDERIKA DE JAGER
RESPONDENT
Neutral
citation:
Snyders
v De Jager
(20469/2014)
[2015] ZASCA 137
(30
September 2015).
Coram:
Ponnan, Saldulker,
Dambuza and Mathopo JJA and
Van der Merwe AJA
Heard:
15
September 2015
Delivered:
30 September 2015
Summary:
An appeal does not
lie to the Supreme Court of Appeal against an order of the Land
Claims Court confirming an eviction order of
the magistrates’
court on automatic review to it in terms of
s 19(3)
of the
Extension of Security of Tenure Act 62 of 1997
.
ORDER
On appeal from:
Land
Claims Court, Randburg (Matojane J sitting as court of
first instance):
The matter is struck from the roll
with costs.
JUDGMENT
Van
der Merwe AJA (Ponnan, Saldulker, Dambuza and Mathopo JJA
concurring):
[1]
The appellants, Mr Karel Snyders, his wife Ms Sofia Snyders and their
minor children,
reside on the farm known as Voorbaat, in the district
of Ladismith in the Western Cape Province (the farm).
[1]
The farm is owned by Mr F J N Stassen, but is managed on his behalf
by the respondent, Ms Louisa Frederika de Jager.
[2]
On 26 March 2009, the respondent launched an application in terms of
the Extension
of Security of Tenure Act 62 of 1997 (ESTA) in the
Magistrate’s Court, Ladismith for the eviction of the
appellants from
the farm. The application was opposed by the
appellants. Following upon an inspection in loco on the farm and
after consideration
of the affidavits of the parties and the
viva
voce
evidence
presented, the magistrate gave judgment on 14 November 2012 granting
the order of eviction sought.
[3]
The eviction order thereafter served before the Land Claims Court
(LCC) on automatic
review in terms of s 19(3) of ESTA. This
section provides:
‘
Any
order for eviction by a magistrate’s court in terms of this
Act, in respect of proceedings instituted on or before a date
to be
determined by the Minister and published in the
Gazette
,
[2]
shall be subject to automatic review by the Land Claims Court, which
may ─
(a)
confirm such
order in whole or in part;
(b)
set aside
such order in whole or in part;
(c)
substitute
such order in whole or in part; or
(d)
remit the
case to the magistrate’s court with directions to deal with any
matter in such manner as the Land Claims Court may
think fit.’
[4]
The automatic review was dealt with by Matojane J. On 13 February
2013 he confirmed
the eviction order of the magistrate’s court.
The relevant part of the order reads:
‘
Having
read the record of the proceedings in the Magistrate’s Court,
the whole of the order made by the Magistrate on 14 November
2012 is
confirmed, this is done in terms of section 19(3)
(a)
of the Act.’
[5]
The appellants requested full reasons for this order, purportedly in
terms of LCC
rule 69(1)
(b)
(ii).
This rule provides that a party that wishes to appeal against an
order of the LCC, must apply to the LCC for leave to appeal.
It
further provides that if application for leave to appeal was not made
orally at the time when the order was made, it must be
made by notice
delivered within 15 days after the order was made or after full
reasons for the order were given.
[6]
The court a quo responded to this request on 13 August 2013, when it
delivered what
was described as a ‘Review Judgment’,
furnishing reasons for the confirmation of the eviction order. The
appellants
thereafter filed a notice of application for leave to
appeal against the confirmation order and on 6 August 2014 the court
a quo
granted leave to appeal to this court. There is no doubt that
the intended appeal is limited to the merits of the eviction order.
That is clear from the grounds of appeal set out in the notice of
application for leave to appeal in the LCC and the subsequent
notice
of appeal filed with the registrar of this court. In any event it is
only the eviction order which was subject to automatic
review by the
LCC in terms of s 19(3) of ESTA.
[7]
The first issue for determination is whether the matter is properly
before this court,
the question being whether an appeal lies to this
court against an order of the LCC confirming an eviction order of a
magistrates’
court on automatic review to it in terms of
s 19(3) of ESTA.
[8]
It is necessary to deal at the outset with the argument of counsel
for the appellants
that this court should exercise jurisdiction on
the ground that the respondent had consented to the jurisdiction of
this court.
The argument is without merit. First, this court does not
have original jurisdiction. Its jurisdiction is determined by the
Constitution
and by statute. Its inherent power to protect and
regulate its own process does not extend to the assumption of
jurisdiction not
conferred upon it by statute.
[3]
It follows that this court cannot assume jurisdiction merely because
the parties consented. Secondly, the argument has no factual
basis.
The respondent did not expressly consent to the jurisdiction of this
court. And counsel for the appellants was unable to
point to any
conduct of the respondent that is consistent only with such consent.
On the contrary, in supplementary heads of argument
filed with this
court the respondent contends that this court lacks jurisdiction.
[9]
This issue has not been decided by this court. I am aware of only two
judgments of
this court that dealt with a situation where an eviction
order of a magistrate’s court had previously served before the
LCC
on automatic review. These decisions are
Rashavha
v Van Rensburg
[4]
and
Land en
Landbouontwikkelingsbank van Suid-Afrika v Conradie
.
[5]
Both matters are clearly distinguishable on the facts. In
Rashavha
,
the eviction order made by the magistrates’ court against the
appellant, was not confirmed by the LCC on automatic review.
The LCC
referred the matter back to the magistrate with certain directions.
The magistrate reconsidered the matter and issued a
fresh eviction
order against the appellant. The appellant appealed to the LCC
against the latter eviction order. The LCC dismissed
the appeal, but
granted leave to appeal to this court. Lewis JA
[6]
remarked that there was no argument that the appeal from the
magistrates’ court incorrectly served before the LCC. In that
matter the appeal to this court was therefore against the dismissal
by the LCC of the appeal to it. The facts in
Conradie
were that when the eviction order of the magistrates’ court
came before the LCC on automatic review, it was set aside by
the LCC
and substituted with an order dismissing the application for
eviction. The LCC granted leave to appeal to this court against
its
substituted order. On appeal to this court, the order of the LCC was
set aside and replaced with an order confirming the eviction
order of
the magistrate. In that matter therefore, the appeal to this court
was against the order of the LCC setting aside the
eviction order of
the magistrates’ court and dismissing the application for
eviction.
[10]
The LCC considered this issue in the recent judgment of
Brummer
& another v Joostenberg
.
[7]
There the eviction order of the magistrate was confirmed by the LCC
on automatic review. The respondent in the magistrates’
court
was aggrieved and applied to the LCC for leave to appeal against the
confirmation order. Meer AJP struck the matter from
the roll. The
court reasoned that a magistrate’s order of eviction that was
confirmed by the LCC on automatic review, remains
an order of the
magistrates’ court. However, if the LCC on automatic review
substituted the order of the magistrates’
court with its own
decision, so the court held, the substituted decision becomes a
decision of the LCC. The court therefore concluded
that despite the
confirmation of the eviction order by the LCC on automatic review, an
appeal against the magistrate’s decision
lies to the LCC, but
that when the LCC substituted its decision for that of the
magistrate, an appeal lies from the LCC to this
court.
[11]
I agree with the conclusions reached in
Brummer
.
However, I reach those conclusions by a different route.
[12]
Section 19(2) of ESTA provides that civil appeals from magistrates’
courts in terms of
ESTA shall lie to the LCC. In terms of s 19(4),
the provisions of s 19(3) shall not apply to a case in which an
appeal
has been noted by an occupier. In terms of LCC rule 71(1), any
party that has appealed against a decision of a magistrate’s
court over which the LCC enjoys appellate jurisdiction, must
prosecute such appeal in the same manner as a civil appeal from the
magistrates’ court to the High Court. Section 20(1)
(c)
of ESTA clothes the LCC with common law review power. It provides
that the LCC has the power to review an act, omission or decision
of
any functionary acting or purporting to act in terms of ESTA. LCC
rule 35 determines the procedure to be followed in such a
case. This
procedure is similar to that provided for in Uniform rule 53. LCC
rule 35A deals with the procedure to be followed in
respect of
automatic reviews.
[13]
Thus, it is clear that ESTA recognises the distinction between an
appeal against an eviction
order of a magistrate and the common law
or automatic review thereof. As a general rule, where the complaint
is against the result
of the proceedings of the lower court, an
appeal is the appropriate remedy, whereas review is aimed at the
method by which the
result was reached.
[8]
This was explained as follows by Schutz JA when dealing with a review
in Minister of Environmental Affairs and Tourism v Phambili
Fisheries
:
[9]
‘
During
the course of the argument for Phambili we were frequently told that
something that Chief Director had done was “wrong”.
This
is the language of appeal, not review. I do not think that the word
was misused, because time and again it appears that what
is really
under attack is the substance of the decision, not the procedure by
means of which it was arrived at. That is not our
job.’
[14]
In that regard our system of automatic review in the context of
criminal proceedings may not
be an entirely inappropriate analogy.
The system of automatic review of certain proceedings in terms of the
Criminal Procedure Act 51 of 1977
provides a measure of protection to
the large number of undefended accused persons in criminal trials in
the magistrates’
court.
[10]
The power of the High Court to intervene on automatic review in terms
of the
Criminal Procedure Act is
not limited to cases of
irregularity. Any point on which the proceedings can be faulted, may
be taken into account.
[11]
It seems clear that by providing for automatic review of eviction
orders in terms of ESTA, it was intended to similarly provide
a
measure of protection to the often vulnerable occupiers of land as
defined in ESTA. In
Lategan
v Koopman & others
,
[12]
Gildenhuys J held, correctly in my view, that the unique South
African system of automatic review in terms of the
Criminal Procedure
Act provides
guidance in respect of the nature and import of
automatic review in terms of ESTA.
[13]
He said that the court should, as a point of departure, determine
whether justice was done and that the court should follow a broad
approach and should not scrutinize the findings of the magistrate as
meticulously as it might do in the case of an appeal.
[15]
Although there may well be a fine line between an automatic review in
terms of ESTA and an appeal,
the distinction must not be blurred.
[14]
In my view the following statement of Ngcobo J in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[15]
is of particular relevance:
‘
What
must be emphasised is that there may well be a fine line between a
review and an appeal, in particular, where, as I will show
later in
this judgment, the reviewing court considers the reasons given by a
tribunal, not to determine whether the result is correct,
but to
determine whether a gross irregularity occurred in the proceedings.
At times it may be difficult to draw the line. There
is, however, a
clear line. And this line must be maintained.’
[16]
In my judgment all of this leads to the inescapable conclusion that
an order confirming an eviction
order on automatic review in terms of
s 19(3)
of ESTA is not an order on the substantive merits of the
matter. Should the LCC set aside the eviction order and substitute it
with a substantive order of its own in terms of
s 19(3)
(b)
and
(c)
,
different considerations apply. In such case the eviction order of
the magistrate would no longer be extant and could therefore
not be
appealed against. An appeal against the substituted order of the LCC
would then lie to this court, subject to the required
leave to appeal
having been granted. Prima facie the test on appeal in such a matter
would be to determine which order the LCC
should have made on
automatic review, but it is not presently necessary to decide this
issue.
[17]
It follows that if this court were to entertain the appeal on the
merits, it would in effect
be hearing an appeal directly from the
magistrates’ court to this court.
[16]
Given the hierarchy of our courts, the undesirability of such a
course is patent. Moreover, that would be in direct conflict with
s 19(2)
of ESTA, which, as I have said, provides that civil
appeals from a magistrate’s court in terms of ESTA lie to the
LCC.
[18]
In terms of
s 16(1)
(c)
of the
Superior Courts Act 10 of 2013
, any appeal against any
decision of a court of similar status to the High Court (such as the
LCC), lies to this court upon leave
to appeal having been granted in
terms of
s 17
of the
Superior Courts Act by
that court or, if
refused, by this court. For the reasons mentioned, the LCC did not
determine the merits of the eviction order
of the magistrate. The LCC
was therefore not empowered to grant leave to appeal to this court on
the merits, as it purported to
do. In the circumstances, the order of
the LCC granting leave to appeal to this court is a nullity. In
the absence of leave
to appeal on the merits having properly been
granted in terms of
ss 16
and
17
of the
Superior Courts Act,
this
court has no jurisdiction to entertain the matter.
[17]
[19]
As the matter is not properly before us, we can hardly enter into the
merits of the dispute,
as was urged upon us by counsel for the
appellant. Consequently the matter falls to be struck from the roll.
In my view the respondent
is entitled to her costs, even though the
financial position of the appellants appears such that any award of
costs will in all
probability be no more than cold comfort to the
respondent.
[20]
The matter is struck from the roll with costs.
_______________________
C
H G VAN DER MERWE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellants:
P R Hathorn
Instructed by:
J D van der Merwe Attorneys, Stellenbosch
Webbers, Bloemfontein
For
Respondent:
J J
Botha
Instructed by:
Blythe & Coetzee, Ladismith
Rosendorff
Reitz Barry, Bloemfontein
[1]
The land that constitutes the farm is described
in the deed of transfer as portions 44, 47, 48, 49, 50, 85, 86 and
111 of the
farm Voorbaat no 42, the farm Waterkloof no 51 and the
farm Waterkloof, all situated in the Kannaland Municipality,
Ladismith,
Western Cape Province.
[2]
No date has as yet been determined by the
Minister or published in the
Gazette
.
In
Lusan Premium Wines (Pty) Ltd v
Stoffels & others
[2000] 2 All SA
367
(LCC) para 4 it was held that the effect of the failure to do so
is to extend the review jurisdiction of the Land Claims Court
indefinitely. This decision was not challenged before us.
[3]
See
Moch v Nedtravel
(Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 7E-G;
New Clicks
South Africa (Pty) Ltd v Minister of Health
2005 (3) SA 238
(SCA) para 19 and
S v
Tonkin
2014 (1) SACR 583
(SCA) para 6.
[4]
Rashavha v Van Rensburg
2004
(2) SA 421 (SCA).
[5]
Land en Landbouontwikkelingsbank van
Suid-Afrika v Conradie
2005 (4) SA 506
(SCA).
[6]
At para 5.
[7]
Brummer & another v Joostenberg
(LCC) unreported case no 16R/2013 (20 February
2015).
[8]
D E van Loggerenberg & P B J Farlam
Erasmus:
Superior Court Practice
at A1-32N;
Lawsa
,
first re-issue, vol 3,
part 1
para 394.
[9]
Minister of Environmental Affairs and Tourism
v Phambili Fisheries (Pty) Ltd
2003
(6) SA 407
(SCA) para 52.
[10]
For the history of automatic review in criminal
matters in South Africa, see ‘On the System of Automatic
Review and Punishment
of Crime’ (1962) 79
SALJ
267.
[11]
Lawsa
, 2 ed, vol
5,
part 2
, para 347; Albert Kruger
Hiemstra’s
Criminal Procedure
at p 30-21.
[12]
Lategan v Koopman & others
1998
(3) SA 457
(LCC) para 11.
[13]
See also
Springs
City Council v Occupants of the Farm Kwa-thema
210
2000 (1) SA 476
(LCC) para 19.
[14]
Shoprite Checkers (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration & others
2009
(3) SA 493
(SCA) para 28.
[15]
Sidumo & another v Rustenburg Platinum
Mines Ltd & others
2008 (2) SA 24
(CC) para 244.
[16]
See
S v Tonkin
(
above
)
para 6.
[17]
Newlands Surgical Clinic (Pty) Ltd v Peninsula
Eye Clinic (Pty) Ltd
2015 (4) SA 34
(SCA) para 13.