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[2010] ZAGPPHC 613
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Nkwali Brothers Farming CC v Thela and Others (49374/2007) [2010] ZAGPPHC 613 (18 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
no: 49374/2007
Date:
18 May 2010
In
the matter between:
NKWALI
BROTHERS FARMING
CC
............................................................................................
Applicant
And
SHALUZA
THELA
.....................................................................................................................
1
st
Respondent
SONTO
THELA
.........................................................................................................................
2
nd
Respondent
ANNA
MASEKO
........................................................................................................................
3
rd
Respondent
KHAKHI
MASEKO
...................................................................................................................
4
th
Respondent
ZWELI
MASEKO
......................................................................................................................
5
th
Respondent
DOCTOR
MASEKO
..................................................................................................................
6
th
Respondent
AMOS
MASONDO
.....................................................................................................................
7
th
Respondent
MANDLA
THABETHE
.............................................................................................................
8
th
Respondent
ELLIOT
NKOSI
..........................................................................................................................
9
th
Respondent
NYELUNGA
PHAKATHI
.......................................................................................................
1
0
th
Respondent
MADODA
NKWANYANA
......................................................................................................
11
th
Respondent
SHADRACK
NGWENYA
.......................................................................................................
12
th
Respondent
PIXLEY
KA SEME
MUNICIPALITY
...................................................................................
13
th
Respondent
DEPARTMENT
OF LAND AFFAIRS,
MPUMALANGA
PROVINCE
................................................................................................
14
th
Respondent
JUDGMENT
MATOJANE
J
[1]
The applicant is a registered owner of the farm Elandsfontein 85,
Registration Division HS, Mpumalanga Province on which it
farms
cattle. It acquired the property at an auction on the 17
th
of January 2006. The property was previously owned by one Mr G A
Rocher who was an employer of some of the respondents. The applicant
invokes the prevention of illegal eviction from and unlawful
occupation of Land Act 19 of 1998 ('PIE') to seek the eviction of
the
first to the twelfth respondents from the property.
[2]
The respondents contend that they have rights of an 'occupier' as
defined in terms of section 1 of the Extension of Security
of Tenure
Act, No 62 of 1997 ('ESTA'). The court is called upon to determine
the rights of the respective parties in terms of the
two acts which
are mutually exclusive.
[3]
The purpose of PIE is to regulate evictions for all illegal or
unlawful occupiers who are residing on any premises or piece
of land
anywhere in South Africa. Therefore if it is proved that a farm
dweller is illegally residing on a farm without the consent
of the
owner, that dweller is an illegal occupier and eviction proceedings
may be instituted under PIE. If the farm dweller falls
within the
definition of an occupier in the terms of ESTA then the owner has to
institute the eviction proceedings in terms of
ESTA.
[4]
Counsel for the respondents in his Heads of Argument and in court
submitted that the High Court has no jurisdiction to hear
this
matter. He argued that the Land Claims Court has exclusive
jurisdiction in terms of section 17 and 20 of ESTA. The relevant
section of the Act is quoted below
"17.
(1) a party may, subject to
the provisions of sections 19 and 20, institute proceedings in the
magistrate's court within whose area
of jurisdiction the land in
question is situate, or the Land Claims Court.
(2)
If all the parties to proceedings consent thereto, proceedings may be
instituted in any division of the High Court within whose
area of
jurisdiction the land in question is situate.
20.
(1) The Land Claims Court shall have jurisdiction in terms of this
Act throughout the Republic and shall have all the ancillary
powers
necessary or reasonably incidental to the performance of its
functions in terms of this Act, including the power-
(a)
to decide any constitutional matter in relation to this Act;
(b)
to grant interlocutory orders, declaratory orders and interdicts;
(c)
to review an act, omission or decision of any functionary acting or
purporting to act in terms of this Act; and
(d)
to review an arbitration award in terms of the Arbitration Act 1965
(Act No. 42 of 1965), in so far as it deals with any matter
that may
be heard by a court in terms of this Act.
(2)
Subject to the provisions of section 17(2), the Land Claims Court
shall have the powers set out in subsection (1) to the exclusion
of
any court contemplated in section 5 166(c), (d) or (e) of the
Constitution."
[4]
From the reading of section 20 as a whole it is clear that the Land
Claims Court has exclusive jurisdiction in the performance
of its
functions in terms of ESTA. The applicant alleges that respondents
are 'unlawful occupiers' as defined in PIE and the respondents
on the
other hand, alleges that they have rights of an 'occupier' under ESTA
and PIE is not applicable. None of the parties claim
performance of
any of the functions of the court in terms of ESTA. Put diffently, I
am not called upon to regulate tenure rights
and the conditions under
which the right of persons to reside on land may be terminated, this
is the exclusive jurisdiction of
the Land Claims Court in terms of
section 20(2). Accordingly, this court, in my view, has the ordinary
power to interpret the provisions
of ESTA in order to determine which
of the two Acts apply in the dispute before me. See
Agrico
Masjinerie (Edms) Bpk v Swiers
2007
(5) SA 305.
[5]
According to section 1(1) of ESTA a person is deemed an occupier if
he resides on land which belongs to another person, and
who has on 4
February 1987 or thereafter had consent or another right in law to
reside on the farm. In paragraphs 15, 16, 17, 18,
19, 24 and 25 of
the founding affidavit, first respondent explains the circumstances
surrounding their occupation of the farm as
follows:-
"15.
I arrived on this farm in or during 1968. I was 14 years at the time,
having been born on the 20
th
of February 1954. I came to
join my father, George Thela and my mother Ana, who were already
working and residing on this farm.
At that time my parents were
working for Mr G A Rocher the senior. Apparently my father had
arranged with Mr Rocher the senior
that I should take up employment
on the farm as one of the farm workers. Mr Rocher accepted me and
gave his consent allowing me
to reside on the farm together with my
parents.
He
endorsed my reference book. This practise was done as an
acknowledgment that I had a permission to occupy the farm. I enclose
hereto a copy of my reference book marked TH1.
16.
Immediately upon my arrival on the farm I stated working as a farm
labourer as well, for Mr Rocher the senior. The system of
work that
was adopted at time was I would alternate with my father. My father
would work for Rocher the senior on the farm for
a period of six
months in a year and thereafter he would be transferred to a
neighbour farm and during that period I would work
for the remainder
of the six month period on the farm. When he returns after a period
of six months, I would be transferred to
that neighbouring farm or
another farm as Rocher the senior would arrange for a period of six
months, whilst my father would be
working his period of six months on
the farm. At that stage Rocher was not paying us in cash for services
rendered. He gave us
an accommodation and he would provide us with
food.
17.
Although we were working in such cycles of six-month per year, we
continued to stay on the farm. Such occupation was always
with the
consent of the owner of that farm. This system of rotation was
adopted, apparently, by the farmers around the area in
order to rest
the farmworkers for a certain period in the year. During that period
when the employees were put to rest they were
allowed to work on the
neighbouring farms just to get an extra income either in cash or in
kind. Hence our employer would arrange
with the owners of the
neighbouring farms to take us during our period of rest. However, my
mother was not working in rotation.
She was always based on the farm
and residing there.
18.1
My father passed away many years ago. I do not have his death
certificate and 1 do not remember if there was one. I do not
know the
exact year of his passing on. I pause to mention that I do not have a
formal education. It is now not easy to meticulously
remember some of
the things. All I can say is that it is over twenty years now since
he passed on and he pre-deceased my mother.
18.2
Upon his death I assumed the responsibilities in regard to his
funeral and its arrangements. I approached Mr Rocher the senior
to
make a request that he allow us to burry my father on the farm. He
showed me a site where we could burry him and he was buried
as such
on the farm and with Mr Rocher's consent. Mr Rocher told me at the
time that whenever one of us passes on, we must just
burry those
deceased on that site (henceforth graveyard) and we have continued to
do so.
18.3
My mother has also passed on. She was also buried on this farm. At
the time of her death she was no longer employed due to
her old age,
but she was still residing on the farm.
19.1
It came to pass that Mr Rocher the senior passed on. His son, Mr
Rocher the junior, took over the running of the farm. I cannot
remember the year when Mr Rocher the senior passed away. But upon his
passing on Mr Rocher the junior continued to accept me and
my family
to stay and continued to work for him on the farm. He also did away
with the rotation system and everybody worked continuously
and also
residing on this farm.
19.2
He started paying me RIO.00 per month and after the harvest he would
give me sixty bags of maize meal. I would sell some of
the bags of
the maize meal to the neighbouring villages. That enabled me to raise
money to buy some cattle of my own. Mr Rocher
the junior gave his
consent allowing me to graze my cattle on the farm.
24.
Now I turn to deal with each of the respondents as cited in this
application. I wish to bring to this Honourable Court the
circumstances regarding their occupation of the farm. To the extent
that some information may not be within my personal knowledge,
same
has been obtained from the relevant respondent and also verified
through consultation with other respondents who have such
information.
24.1
The second respondent is my biological child. She has never worked
on the farm. She has resided on the farm through me.
24.2
The third respondent is my sister. Her correct names are Selina
Velaphi Maseko. The Rochers used to call het by our mothers
name. In
actual fact they called her Anna omncane (Anna the junior). She used
to work for Rocher the senior. Later on she worked
for Rocher the
junior. All her children, including the fourth respondent were born
and grew up in this farm. To the extent that
they did, th
ey
attended school in the nearby villages. They have never been and/or
lived outside this farm.
24.3
The fourth respondent is my nephew. She is the son to the third
respondent. I know that he has worked for Rocher the junior
until he
left the farm as explained above. I do not know personally as to when
he started working for Rocher the junior. He informs
me that he
started during 1993. I can confirm that he has always been living on
this farm all his life and he was never ieft or
stayed outside this
farm.
24.4
The fifth respondent is also my nephew. He is the son of the third
respondent. I can confirm that to the best of my knowledge
he worked
for Rocher the junior until his departure. He has been residing on
this farm and has never left. He informs me that he
also started
working for Rocher the junior in 1993. I have already mentioned
herein above that the children of the third respondent
grew up on
this farm.
24.5
The sixth respondent is the eldest son of the third respondent. He
has also worked for Rocher the junior until his departure.
He
informed me that he started working on this farm in 1991 and since
then he has never left.
24.6
The seventh respondent was born and grew up on this farm and has
worked for Rocher the junior. His parents used to work for
Rocher the
senior on this farm until they passed on and they were also buried in
this farm in the graveyard.
24.7
I know the eighth respondent. He arrived in this farm shortly after
my arrival. He came along without parents and he was still
very young
at that stage. He worked for both Rocher the senior and Rocher the
junior. Until to date he has never left this farm.
24.8
I know the ninth respondent. He came some years ago to join his
parents who were already working for Rocher the senior on the
farm.
He stayed with them and worked for both Rocher the senior and Rocher
the junior until the latter's departure. His parents
passed away and
they were also buried in this farm.
24.9
The tenth respondent informs me that he came in 2001. He came to join
his son will had been working here for Rocher the junior.
He did not
work for either of the farmers.
24.10
The eleventh respondent was born in this farm. His parents worked for
both Rocher the senior and the junior. His parents have
since passed
on and were buried in the graveyard on this farm. He informs me that
he started working for Rocher the junior since
1993 until the
latter's departure.
24.11
The twelfth respondent is also known to me. He came to this farm many
ears ago. He worked for both Rochers and he resided
in this farm ever
since his arrival.
25.
I wish to pause
herein to state that all of the above respondents, with the exception
of the tenth respondent, occupied this farm
upon and with the consent
of the previous owners. The previous owners allowed us to reside on
this farm and to regard it as our
permanent home. It will be noted
that they gave us a graveyard wherein we buried our deceased ones and
the graves are there to
prove."
[6]
In my view, the consent of the previous owner to the occupation of
farm by the respondents was never lawfully withdrawn before
the farm
was sold. The respondents continued to reside in the farm despite the
fact that the new owners had never consented to
their occupation. It
follows that the consent referred to in s3(2)(a) should include that
of the previous owner if effect is to
be given to the intention of
the legislature. Consequently, respondents are deemed to be occupiers
in terms of s3(2)(a) of the
Act. See
Hen-Boisen
and Another NO v Loliwe
2000(1)
SA 796 LCC.
[7]
In its replying affidavit, applicant states that third respondent and
her son, fourth respondent, left the farm with the previous
owners
for Pretoria and returned to the farm later. Applicant states further
that the eighth respondent had resigned from Rocher's
employ and only
returned to the farm after Rocher's departure. Twelfth respondent
according to applicant never worked for Rocher
and had been evicted
from another farm when he came to reside on the farm. Counsel for the
applicant submitted that in leaving
the farm, these respondents
ceased to occupy the property as contemplated in ESTA and are
unlawful occupants as defined in PIE.
I
disagree for the reasons that follow:
[8]
Section 25(3) provides that if an occupier vacates the land concerned
freeiy and willingly, while being aware of his or her
rights in terms
of this Act, he or she shall not be entitled to institute proceedings
for restoration in terms of section 14. It
is clear that the said
respondents were not aware of their rights in terms of ESTA at the
time they left, they therefore have a
right to claim restoration in
terms of section 14 of the Act. Though they are unlawful occupiers in
terms of PIE, they still have
the opportunity to apply to regularize
their occupation and the order of eviction will defeat the purpose of
the Act, which is
to facilitate legally secure tenure for vulnerable
people living on land that belongs to someone else.
[9]
As the respondents were in occupation of the farm prior to the 4th of
February 1997, they are occupiers as defined and they
had consent to
live in the property. I find that their eviction has to be done in
terms of the provisions of ESTA and not PIE.
[10]
The following order is made:
1.
The application is dismissed
2.
Each party is to pay their own costs.
MATOJANlE,
J