Selsley Farm Trust v Mhlongo (301/08) [2009] ZASCA 124; [2010] 1 All SA 466 (SCA) (28 September 2009)

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[2009] ZASCA 124
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Selsley Farm Trust v Mhlongo (301/08) [2009] ZASCA 124; [2010] 1 All SA 466 (SCA) (28 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 301/08
In
the matter between:
SELSLEY FARM TRUST
APPELLANT
v
SIMON
MHLONGO
RESPONDENT
Neutral citation:
Selsley
Farm Trust v Mhlongo
(301/2008)
[2009] ZASCA
124
(28 September 2009).
Coram: Harms DP, Navsa, Van Heerden,
Mhlantla JJA, Leach AJA
Heard: 7 September 2009
Delivered: 28 September 2009
Summary: Labour tenant under Act 3 of 1996 – whether
requirements of the definition of ‘labour tenant’ satisfied.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Land Claims
Court (Ncube AJ sitting as court of first instance).
The following order is made:
1 The appeal succeeds.
2 The orders of the court a quo in respect of both the
main application and the counter application are set aside and are
replaced
with the following:
‘
(a) The application is dismissed.
There will be no order made on the counter application.
There will be no order as to costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
LEACH AJA (Harms DP, Navsa, Van Heerden, Mhlantla JJA
concurring)
[1] The appellant is the current owner of the farm
commonly known as ‘Selsley’ situated in the district of Lions
River in KwaZulu-Natal.
The respondent, who resides on the farm and
has done so since about 1953, instituted proceedings against the
appellant in the Land
Claims Court seeking certain relief, including
an order under s 33(2A) of the Land Reform (Labour Tenants) Act 3 of
1996 (‘the
Act’) declaring him to be a labour tenant under the
Act .
[2] The proceedings went to trial and culminated in a
finding that the respondent was indeed a labour tenant on Selsley.
The respondent
was therefore granted the declarator he sought. The
court also issued a further interim order regulating the respondent’s
use
of land on Selsley pending the determination of an application
for the acquisition of land which the respondent, as a labour tenant,

had lodged with the Director-General under s 16(1) and 17 of the Act.
The appellant now appeals to this court against the finding
that the
respondent was a labour tenant.
[3] Much of the factual background is not in dispute. In
1934 the respondent was born on the farm Maritzdal where his parents
resided
and were employed by the farmer, Mr Guy Kimber. Although the
respondent’s father died when he was a child, he and his mother
remained living on Maritzdal where his mother, Mrs Violet Mhlongo,
was employed as a domestic worker. Eventually the respondent
was also
taken into Guy Kimber’s employ as a labourer and driver.
[4] In about 1953, on the marriage of their son David,
Guy Kimber and his wife moved from Maritzdal, leaving it to be farmed
by
the newlyweds, and relocated a few kilometers to Selsley, a farm
which some 30 years previously had been acquired by his father,
Mr
Percy Kimber, for purposes of winter grazing. The respondent and his
mother moved with them and continued working in their employ
on
Selsley, he as a general labourer and driver and she as a domestic
worker. At all times since then the respondent has been resident
on
Selsley, despite the farm having changed hands from time to time as I
shall mention in due course. On the other hand, in about
1958 or 1959
when Guy Kimber’s wife left Selsley and moved to Tongaat, the
respondent’s mother moved with her to continue in
her service.
[5] It is not clear whether Guy Kimber moved to Tongaat
together with his wife. However, he continued to farm Selsley until
his
death. Quite when that occurred is not clear. While it appears to
have been in about 1986, another of his sons, Michael Kimber,
who
testified on behalf of the appellant and who had also moved to live
on Selsley when his brother had married, stated at one
stage that his
father had died in about 1960. In the light of the view I have of the
matter, nothing turns on this.
[6] Michael Kimber, who had also moved to live on
Selsley when his brother had married and continued to live on the
farm until 1998,
only took over the farming operations on the death
of his father (whenever that occurred). On doing so, he also took the
respondent
into his service and employed him in the same capacity as
his late father had done.
[7] Michael Kimber continued farming on Selsley until
November 1998 when he sold the farm to either a Mr David Watson or a
company
the latter represented known as Meander-Selsley Farm (Pty)
Ltd.
1
Fortunately the precise identity of the purchaser is not relevant to
the determination of this appeal. Of greater importance is
the fact
that the new owner, either Watson or his company, continued to employ
the respondent who remained resident on the farm.
Several months
later the respondent became ill. In mid-1999 he stopped working and
has since received a state pension. Despite
ceasing to work, he
remained living on Selsley, even after the farm was sold to the
present appellant in 2004.
[8] According to the respondent, after his mother left
Selsley he looked after the few head of cattle she had accumulated
but which
remained behind on the farm. When his mother died in about
1982, he inherited these cattle and their progeny from her. This was

disputed by the appellant but, once more, nothing really turns on
this. It is common cause that the respondent had a simple home
on the
farm, and that he was permitted to both grow crops on a small piece
of land and to graze a number of cattle. The precise
number of cattle
he grazed, although a matter of great dispute at the trial, is not
relevant for purposes of this appeal as the
appellant concedes that
the respondent had the right to both grow some crops and to graze a
few cattle on the farm.
[9] In the light of this background, I turn to the
respondent’s contention that he was a labour tenant under the Act.
In s 1 of
the Act a ‘labour tenant’ is defined as being a person:
‘
(a)
who
is residing or has the right to reside on a farm;
(
b)
who
has or has had the right to use cropping or grazing land on the farm,
referred to in paragraph
(a)
,
or another farm of the owner, and in consideration of such right
provides or has provided labour to the owner or lessee; and
(c)
whose
parent or grandparent resided or resides on a farm and had the use of
cropping or grazing land on such farm or another farm
of the owner,
and in consideration of such right provided or provides labour to the
owner or lessee of such or such other farm,
including a
person who has been appointed a successor to a labour tenant in
accordance with the provisions of section 3(4) and (5),
but excluding
a farmworker. . ..’
In contradistinction, the Act defines
a ‘farmworker
’ as
being
:
‘
. . . a
person who is employed on a farm in terms of a contract of employment
which provides that–
(a)
in
return for the labour which he or she provides to the owner or lessee
of the farm, he or she shall be paid predominantly in cash
or in some
other form of remuneration, and not predominantly in the right to
occupy and use land; and
(b)
he
or she is obliged to perform his or her services personally.’
It is clear from this that a labour tenant by definition
cannot be a farmworker.
It
should also be mentioned that s 2(5) of the Act provides that:
‘
If in any
proceedings it is proved that a person falls within paragraphs
(a),
(b)
and
(c)
of
the definition of “labour tenant”, that person shall be presumed
not to be a farmworker, unless the contrary is proved.’
[10] Importantly, sub-paragraphs (a), (b) and (c) of the
definition of labour tenant are to be interpreted conjunctively or
cumulatively.
2
Thus, although the respondent clearly satisfied the criteria set out
in (a) of the definition, he can only be regarded as a labour
tenant
under the Act if he also satisfies the criteria set out in both (b)
and (c).
[11] In arguing that he had satisfied requirements of
both (b) and (c), the respondent relied on his and his mother’s
admitted
entitlement to grow crops and graze cattle on Selsley which,
he submitted, had been extended to them in consideration for their

labour on the farm. The appellant, on the other hand, denied this,
contending that the respondent and his mother had been allowed
to
graze cattle and grow crops due to their employer’s goodwill. In
regard to this issue, the trial court concluded that the
evidence
fell short of proving that ‘. . . the right to use cropping and
grazing land on the farm was exercised in consideration
for the
labour which he and his mother provided to the owner of the farm’.
[12] Despite having reached that conclusion, which meant
in effect that the respondent had not proved that he was a labour
tenant,
the trial court still found for the respondent. It did so by
reasoning that the test was not whether the respondent had proved a

link between the provision of labour and the right to grow crops and
graze cattle but whether or not the respondent was a ‘farmworker’

as defined in the Act; that the appellant bore the onus under s 2(5)
to prove that the respondent was a ‘farmworker’; that
it had not
discharged that onus; and that the respondent was therefore presumed
to be a ‘labour tenant’.
[13] By reasoning in this way the trial court
misdirected itself by putting the cart before the horse. While a
farmworker is excluded
from being a labour tenant, the presumption in
s 2(5) that a person is not a farmworker only arises where the person
concerned
is shown to fall within the definition of labour tenant.
Accordingly, if it is not shown that the person in question satisfies
the requirements of all three sub-paragraphs of the definition of
labour tenant, the presumption cannot arise.
[14] The respondent therefore bore the onus of proving
that he was a labour tenant as defined. To do so, he had to lead
evidence
to satisfy the requirements of the definition and, only on
having done so, would the presumption in s 2(5) have become
operative.
The trial court found that the respondent had not
established an essential requirement of the definition (viz that in
consideration
of their labour he and his mother had received their
right to crop and graze). It ought therefore to have found that, as
the requirements
of the definition had not been satisfied, the
presumption in s 2(5) did not arise, and that the respondent’s
claim should be
dismissed.
[15] On appeal, the respondent argued that he and his
mother had received their cropping and grazing rights in
consideration of
their labour and that the trial court had erred in
not finding that to have been the case. The appellant argued to the
contrary.
In my view it is unnecessary to decide this issue as, for
another reason, the respondent’s claim must clearly fail.
[16] In respect of (c) of the definition, it was
incumbent upon the respondent to establish that he had a parent who
(i) resided
or resides on a farm (ii) had the use of cropping or
grazing land on such farm or another farm of the owner, and (iii) in
consideration
of such right provided or provides labour to
the
owner or lessee
of
such farm or other farm.
[17] The respondent’s case as pleaded was that this
requirement had been fulfilled by his mother having been employed by
Guy Kimber
on Selsley from about 1953, when the Kimber family moved
to the farm, until she left and moved to Tongaat with Mrs Kimber,
during
which period, in consideration for providing her labour, she
had enjoyed the right to grow crops and to graze cattle. While much

of the evidence and a great deal of the argument centred on whether
Mrs Mhlongo had indeed grazed cattle on Selsley and, if she
did,
whether she had done so and had enjoyed her rights to grow crops in
consideration of providing her labour, sight appears to
have been
lost of the further requirement for (c) of the definition to be
satisfied, viz that her labour had to be provided to
the owner or
lessee of the farm.
[18] It is on this aspect of the matter that the
respondent’s claim flounders. The ‘owner’ of the farm as
contemplated by
the definition of ‘labour tenant’ is defined in s
1 of the Act as meaning:
‘
. . . the owner, as defined
in section 102 of the Deeds Registries Act, 1937 (Act 47 of 1937), of
a farm, and where it occurs in
the definition of “labour tenant”,
includes his or her successors and predecessors in title.’
Had Guy Kimber been the owner, as so defined, or the
lessee of Selsley, the statutory requirement in question would have
been met.
But the respondent neither attempted to prove that Guy
Kimber was the owner of Selsley at any time nor who the owner was at
the
material time that Mrs Mhlongo exercised her rights to grow crops
and graze cattle on the farm. He appears to have overlooked that

Michael Kimber, in an affidavit filed before the hearing and
confirmed by him at the outset of his testimony, said the following
:
‘
5 Selsley farm was purchased
by my grandfather during or about 1919 to 1923. My grandfather, whose
names were PERCY DICKSON KIMBER,
had a farm in the Impendle area and
purchased Selsley Farm for the purpose of moving cattle and horses to
the Dargle area during
the winter months.
When my grandfather died,
Selsley Farm was inherited by my father, GUY McKENZIE KIMBER. I then
inherited Selsley Farm from my
father when he died during or about
1986.
7 In fact, ownership of the farm
did not follow what I have referred to above as ownership. During my
grandfather’s lifetime he
transferred the farm to me. I recall this
being during or about 1950. My father thereafter farmed the farm
until his death when
I took it over.’
[19] As appears from this, during the material time that
the respondent’s mother resided on Selsley Farm and worked for Guy
Kimber
and his wife, the farm was in fact owned by Michael Kimber to
whom she did not render her labour. How it came about that Guy Kimber

farmed the farm owned by his son was neither canvassed in evidence
nor explained in any way. He may well have leased it, in which
event
the requirement in sub-para (c) that the labour be provided to the
owner or lessee would have been satisfied: but one cannot
speculate
on whether that was the case. It takes little imagination to think of
circumstances under which Guy Kimber came to farm
Selsley without
being its owner or lessee.
[20] Faced with this difficulty, counsel for the
respondent fell back on an argument that Mrs Mhlongo had worked for
Guy Kimber
at a time when he owned Maritzdal. Not only had this never
formed part of the respondent’s claim as pleaded but, probably as a

result, the issue of who had been the owner of Maritzdal was not
investigated during the trial and there is nothing to show that
Guy
Kimber was its owner at that time.
[21] The respondent therefore failed to satisfy an
essential element of his case, viz that his mother had provided
labour to the
owner or lessee of a farm as required by sub-clause (c)
of the definition of labour tenant. The court a quo thus erred in
finding
that the respondent was a labour tenant and its finding and
declarator in that regard cannot stand. The appeal must therefore
succeed.
[22] In its counter application the appellant sought an
order evicting the respondent from Selsley. However, while counsel
for the
appellant asked for the order of the court a quo dismissing
the counter application to be set aside, he informed us that the
appellant
sought neither an eviction order nor a costs order against
the respondent. In the light of the appellant’s attitude on these
aspects, this court need order no more than as is set out below.
[23] The following order is made:
1 The appeal succeeds.
2 The orders of the court a quo in respect of both the
main application and the counter application are set aside and are
replaced
with the following:
‘
(a) The application is dismissed.
(b) There will be no order made on the counter
application.
(c) There will be no order as to costs.’
_____________________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: A de Wet
INSTRUCTED BY: Hay & Scott Attorneys;
Pietermaritzburg
CORRESPONDENT: Honey Attorneys; Bloemfontein
COUNSEL FOR RESPONDENT: T C Mbhense
INSTRUCTED BY: Legal Aid Board; Pietermaritzburg
CORRESPONDENT: Bloemfontein Justice Centre; Bloemfontein
1
Watson stated in evidence that he purchased the farm but there is
documentation in the form of a letter addressed to the Department
of
Land Affairs signed by Watson on behalf of the Meander-Selsley Farm
(Pty) Ltd which appears to be to the effect that the company
was the
owner.
2
Ngcobo & others v Salimba CC; Ngcobo v Van Rensburg
1999
(2) SA 1057
(SCA).