Adendorffs Boerderye v Shabalala and Others (997/15) [2017] ZASCA 37 (29 March 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 37
|

|

Adendorffs Boerderye v Shabalala and Others (997/15) [2017] ZASCA 37 (29 March 2017)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 997/15
In
the matter between:
ADENDORFFS
BOERDERYE (PTY)
LTD

APPELLANT
and
FAYINDOLO
SHABALALA

FIRST RESPONDENT
TIMOTHY
SHABALALA

SECOND RESPONDENT
THE MINISTER OF RURAL
DEVELOPMENT AND LAND
REFORM

THIRD RESPONDENT
THE MINISTER OF
AGRICULTURE

FOURTH RESPONDENT
Neutral
Citation:
Adendorffs Boerderye v
Shabalala & others
(997/15) [2017]
ZASCA 37 (29 March 2017)
Coram:
Shongwe, Majiedt, Mathopo and Van der Merwe JJA
and Mbatha AJA
Heard:
28 February 2017
Delivered:
29 March 2017
Summary:
Conservation of Agricultural Resources
Act 43 of 1983 (CARA) : Regulation 9 : land users as defined in CARA
responsible for ensuring
that grazing land is protected from
overgrazing and deterioration : CARA not explicitly prohibiting a
land owner from pursuing
remedy in the form of a restraining order :
land users not exercising grazing rights in terms of the provisions
of the
Extension of Security of Tenure Act 629 of 1997
but in terms
of an agreement with landowner.
Court
practice : Court orders :overbroad court orders not sought by parties
and not supported by pleadings : such orders not sustainable,

especially where parties were not afforded opportunity to make prior
representations : orders set aside both in appeal and cross
appeal.
Costs
:
de bonis propriis
: where attorneys flagrantly disregard
court rules by late delivery of heads of arguments without proper
explanation : additionally,
attempting to obtain postponement without
proper basis : such conduct prejudicing opponent : appropriate to
mulct attorney with
costs.
ORDER
On
appeal from
: The
Land Claims Court (Sardiwalla AJ) sitting as court of first
instance):
1 The appeal succeeds
with costs, including the costs of two counsel.
2 The cross appeal is
upheld with no order as to costs.
3 The orders of the court
below are set aside and substituted with the following:
‘
1
The first and second respondents, with the assistance of the
appellant (to provide transport), are hereby directed to remove all

livestock belonging to them, from the appellant’s farm
described as Portion 1 of the farm La Bella Esperance No. 3338,
Registration
Division HS, KwaZulu-Natal and situated in the district
of Newcastle (‘the farm’) within 30 days of the granting
of
this order, to a place identified by the first and second
respondents.
2
That, in the event of the first and second respondents failing to
comply with the order set out in paragraph 1 above, the Sheriff
of
the High Court, with the assistance of the South African Police
Services, if necessary, is hereby ordered and directed to remove
all
the livestock present on the farm under the control of the
respondents referred to in paragraph 1 above, to the nearest pound.
3
That the first and second respondents are interdicted and restrained
from returning any of the livestock removed from the farm
as prayed
for in paragraph 1 and/or 2 above, or any other livestock, until the
rehabilitation period of 3 years of the demarcated
area where the
livestock were kept has expired.’
4 The attorneys of the
first and second respondents are ordered to pay the cost of the
application for postponement and condonation
de bonis propriis
.
JUDGMENT
Mathopo
JA (Shongwe, Majiedt and Van der Merwe JJA and Mbatha AJA
concurring):
[1]
This appeal concerns an order for the removal of livestock belonging
to the first and second respondents (the respondents) from
the
appellant’s farm, La Bella Esperance situated at Portion 1 of
the farm La Bella Esperance 3338, in Newcastle, KwaZulu-Natal
(the
farm). In the Land Claims Court (LCC) (Sardiwalla AJ) where the
matter commenced, the appellant, Adendorffs Boerderye (Pty)
Ltd,
principally sought an order for the removal of the livestock from the
farm on the basis that the respondents breached the
grazing agreement
between the parties by keeping more livestock than allowed on the
farm which led to the overgrazing of the land.
[2] The LCC substantially
agreed with the appellant that the grazed area required
rehabilitation, but instead of granting the orders
sought in the
appellant’s notice of motion, granted further orders which were
not asked for and failed to accord the parties
an opportunity to file
further affidavits or present argument before granting these orders.
Aggrieved by the orders, the appellant
and the Minister of Rural
Development and Land Reform (the third respondent in the court a quo
and cross-appellant) appealed against
this decision. This appeal and
cross-appeal is with leave of the LCC. The core issues are whether it
was competent for the LCC
to make the impugned orders without
affording the parties an opportunity to file supplementary affidavits
or present argument and
whether the LCC should have granted the
relief claimed by the appellant.
The Parties
[3] The appellant is the
registered owner of the farm. The first respondent and the second
respondent, who is now deceased, are
occupiers in terms of the
Extension of Security of Tenure Act 62 of 1997 (ESTA). The Minister
of Agriculture, the fourth respondent,
was cited in the court a quo
as the Minister responsible for the administration of the Conversion
of Agricultural Resources Act
43 of 1983 (CARA).
Background
[4]
The facts giving rise to the appeal are as follows: The appellant
owns the farm on which the first respondent resides. The farm
is
utilised for agricultural purposes and in particular, for grazing and
cattle farming. The farm, by virtue of its geographical
location and
its natural vegetation, is most suitable for cattle farming. Its
carrying capacity is approximately three hectares
per livestock unit.
The extent of the farm is 523.8162 hectares. The appellant financed
the purchase thereof by means of a mortgage
bond and the monthly
repayments in respect of the bond amount to R90 000. In order to
meet its financial obligations the farm
must be properly managed to
avoid the depletion of grazing resources and natural vegetation on
the farm.
[5] If the farm is not
properly managed and maintained the vegetation will suffer and will
require rehabilitation at a considerable
cost and this will, no
doubt, have an impact on the profitability of the farming operation
as a whole. In terms of regulation 9(1)(a)
to (e) made in terms of
s 29 of CARA, the appellant as the land owner and the
respondents as land users are obliged to use
agricultural land in a
responsible manner to prevent overgrazing on agricultural land. The
regulation provides as follows:
‘
9(1)
Every land user shall by means of as many of the following measures
as are necessary in his situation protect the veld on his
farm unit
effectively against deterioration and destruction:
(a)
The veld concerned shall be utilized in alternating grazing and rest
periods with due regard to the physiological requirements
of the
vegetation thereon.
(b)
Animals of different kinds shall be kept on the veld concerned.
(c)
The number of animals kept on the veld concerned shall be restricted
to not more that the number of large stock units that may
be kept
thereon in terms of regulation 11.
(d)
A suitable soil conservation work shall be constructed and thereafter
be maintained in order to:
(i)
utilize the veld concerned in alternating grazing and rest periods;
(ii)
protect the veld concerned against excessive soil loss as a result of
erosion through the action of water or wind;
(iii)
collect sediment from run-off water.
(e)
If the veld concerned shows signs of deterioration –
(i)
The number of animals kept thereon shall be suitably reduced.
(ii)
The portions showing signs of deterioration shall be withdrawn from
grazing until they have recovered sufficiently.’
[6] CARA defines a land
user, in relevant parts, as follows:
‘
Land
user’ means the owner of land, and includes −
(a)
any person who has a personal or real right in respect of any land in
his capacity as fiduciary, fideicommissary, servitude
holder,
possessor, lessee or occupier, irrespective of whether he resides
thereon;
(b)
any person who has the right to cut trees or wood on land or to
remove trees, wood or other organic material from land;
(c)
. . . .’
[7]
Before the farm was purchased in May 2010, the appellant established
that the respondents were allowed to keep cattle on the
farm pursuant
to written agreements concluded with the representative of the
erstwhile owner, Mr Johan de Swart. In terms of these
agreements, the
‘weidingsooreenkomste’, the respondents were permitted
from 2005 to lease grazing land from the owner
and keep a specific
number of livestock (ten head of cattle and two horses) on the farm.
The respondents’ livestock were
permitted to graze within the
demarcated area and not allowed to stray outside its boundaries.
[8]
The first respondent in the answering affidavit stated that he
started living on the farm with his parents when he was six years

old. His father was employed on the farm by previous owners in the
1960’s. He worked on the farm until he passed away. His
parents
and siblings were buried on the farm. Pursuant to a verbal agreement
with a previous owner, Mr Hendricks in 1993, the respondents
were
allocated 150-200 hectares of land to graze their livestock on that
part of the land. The farm was subsequently leased by
Mr De Swart,
who honoured the agreement concluded with Mr Hendricks and allowed
them to continue with the previous grazing arrangement.
They also
continued to work as farm labourers for De Swart.
[9]
It was only after 2005, when the farm was taken over by Mr Dampie,
that the previous land allocated to them by Mr Hendricks,
was reduced
to 53.7 hectares. This resulted in their cattle now grazing on a
small and reduced area. Mr Dampie impounded their
cattle whenever
they strayed, imposed fines and demanded payment for their release.
During 2012 when the appellant acquired the
farm, Hubert Paul
Adendorff junior, reduced the grazing land despite being privy to the
verbal agreement concluded with Hendricks.
Adendorff junior did not
want them to work on the farm and having reduced the grazing area
their livestock were forced to graze
in the mountains which are not
well vegetated. When the appellant acquired ownership of the farm it
accommodated the first respondent
on the same terms as the previous
owner. It is common cause that both respondents have not been
employed by the appellant but their
livestock continue to graze on
the farm. They do not contribute towards the maintenance and
infrastructure of the farm, although
they have in the past done so.
[10] The appellant
alleges that the first respondent resides with his family in
Charlestown and visits the farm mostly over the
weekends. The
appellant further alleges that the respondents breached the terms of
the grazing agreement by exceeding the number
of cattle permitted on
the farm, kept goats and failed to comply with the provisions of the
Animal Health Act 7 of 2000 by not
getting cattle inoculated and
protected against diseases. In essence, appellant alleges that as a
result of the above transgressions
harm was done to the farm. The
appellant commissioned experts on the vegetation of the land occupied
by the respondents. The experts
agreed and recommended that the
respondents’ livestock must be removed from the camp and a long
term rehabilitation and veld
improvement strategy be compiled and
implemented. The costs of the rehabilitation process was estimated at
around R35 000
to R60 000. Coincidentally the experts hired
by the Department of Rural Development and Land Reform also confirmed
the reports
of the experts hired by the appellant.
Litigation history
[11]
In the LCC the main argument for the appellant was that the
respondents are occupiers in terms of s 6 of ESTA and that
their
grazing rights are exercised and controlled in terms of the
‘weidingsooreenkomste’ concluded with Mr de Swart.
It was
submitted that they had breached the agreements by keeping more
livestock than agreed upon and have overgrazed the land.
The
respondents denied that the grazing of their livestock on the farm
was unlawful and relied on the verbal agreement concluded
with Mr
Hendriks for their right to graze. In argument the respondents
disputed the written agreements relied upon by the appellant
and
alleged that, as illiterate and unsophisticated persons, the
agreements were in Afrikaans and were neither read nor explained
to
them. In a nutshell, they put the blame on the reduction of the
farmland by the appellant’s predecessor, Mr de Swart,
and
further perpetuated by the appellant, as the reason why they were
without sufficient grazing land to sustain and plough the
crops for
their sustenance. They averred that their livestock was the only
source of their livelihood and with the land now being
reduced, they
were left with no grazing land for their livestock.
[12] Acting in terms of
the rules of the LCC Sardiwalla AJ called various pre-trial
conferences aimed at resolving the issues. On
13 November 2014 after
some deliberations the learned Judge agreed with the appellant that
the area occupied by the respondents
required rehabilitation and made
an order in the following terms:
‘
It
is common cause that the grazing land occupied by the first and
second respondents requires rehabilitation over a period of three

years.’
This
order was in line with what the appellant’s experts had
recommended. Thereafter the learned Judge issued a directive

requiring the third and fourth respondents to explore possibilities
of assisting the respondents with alternative grazing land.
Following
this directive they commissioned a report which concluded that ‘the
vegetation in the camp is badly degraded due
to continuous grazing
system and overstocking practised over a long period’. That
report recommended that all cattle, goats
and horses be immediately
withdrawn from the fenced area. The respondents were afforded a
period of six months to find alternative
land for their livestock. As
a result further directives were given by the court a quo and another
pre-trial conference aimed at
resolving the impasse was held on 27
March 2015, to determine the number of livestock to be moved, the
location and date where
they will be moved and the persons
responsible for the payment of the rental from the date of occupation
of the alternate land
for a period of three years.
[13]
It bears mentioning that during these discussions the appellant’s
counsel informally proposed to contribute towards the
costs of the
relocation of the livestock. This offer was rejected by the
respondents because they refused to move or relocate their
livestock
from their place of abode. There was thus no undertaking on the part
of the appellant to contribute towards the cost
of relocation.
[14]
In the meantime the third and fourth respondents (in the court a quo)
pursuant to the court a quo’s directives, identified
two farms
where the livestock may be moved to. The one farm was about 67 km
from where the respondents’ reside and they
rejected it because
it was too far. The other farm, which is owned by Charlestown Trust
and situated near the farm where the first
and second respondents
reside, was acceptable to them. The Charlestown Trust was prepared to
lease 100 hectares of the farm to
the first and second respondents at
a rental of R2 000 per month for 20 head of cattle.
Unfortunately the respondents could
not afford the rental due to
their impecunious circumstances. The appellant and the third and
fourth respondents were not prepared
to contribute towards the
rental.
[15] The fourth
respondent stated that it did not have any mandate or obligation in
terms of CARA to pay for the rental on behalf
of the first and second
respondents. The third respondent on the other hand could only assist
labour tenants as defined in ESTA,
not occupiers like the
respondents. In particular it was asserted that the third respondent
had no mandate to pay rental on behalf
of occupiers who had not been
declared labour tenants.
[16]
The LCC agreed with the appellant and the third respondent that the
grazed area required rehabilitation for a period of three
years. It
also agreed that the livestock must be removed immediately. It
correctly adopted the approach that the grazing rights
in respect of
the livestock did not derive from ESTA but were governed by the
separate agreements between the respondents and the
appellant. It
concluded that no joint responsibility exists between ESTA occupiers
and owners to fulfil the provisions of CARA.
In doing so it held that
the appellant as owners and custodians of the entire property had an
obligation to monitor the land and
take remedial measures at the
first sign of degradation. This finding is at odds with the
provisions of CARA. It disregarded the
submissions by the parties. As
stated earlier these orders were made without due regard to the
parties’ rights to file further
affidavits or present argument
aimed at persuading the court otherwise.
In this court
[17] Apart from the main
issue and the cross appeal, there were two preliminary issues namely
an application for postponement by
the first and second respondents
and their condonation application for late filing of the heads of
argument. I proceed to deal
with them.
Application for
postponement
[18]
At the hearing of this appeal the respondents launched a two-pronged
application for the postponement of the matter and condonation
for
the late filing of the heads of argument in the appeal. As regards
the application for the postponement the reason advanced
was that the
second respondent had passed away in November 2017, and an executor
had not been appointed in his stead to proceed
with the matter.
Counsel for the respondent argued that time was needed to adjust the
papers and substitute the prospective executor,
Mr Dlamini, in the
place of the second respondent. During argument it became clear to
counsel that the non-substitution of the
executor could still be
done
at a later stage
[1]
and
counsel wisely abandoned the application for a postponement. It was
agreed that the attorneys for the respondents would furnish
this
court with a formal notice of substitution of the respondent and
appointment of the executor.
Condonation
[19]
The history of the matter reflects that, after leave to appeal was
granted, the appellant in the main appeal and the third
appellant as
appellant in the cross appeal, filed the record and their heads of
argument during July and August 2016 respectively.
The respondents
were obliged in terms of rule 10(b) of this court’s rules, to
file their heads of argument within a period
of two months thereafter
ie by August and September 2016 respectively. The respondents’
heads of argument were only filed
in February 2017, this was after
the registrar of this court had enquired whether they still intended
to oppose the appeal or not.
In the affidavit supporting the
application for condonation the reason advanced by the respondents
was attributable to a change
of counsel in November 2016. The newly
appointed counsel was furnished with the record of appeal and
cross-appeal on 30 November
2016. To compound the problem, and
despite a considerable lapse of time, the newly appointed counsel and
the appellant’s
attorneys of record did not deem it prudent to
file the heads of argument in December 2016 opting instead to break
for the Christmas
holidays on 9 December 2016. They also did not
request an extension to deliver their heads at a later state. This
conduct is to
be deprecated. I will revert to the ineptitude and
flagrant disregard of the rules of the court by the first and second
respondents’
attorneys when dealing with the appellant’s
request for an order of costs
de bonis propriis
against their
attorneys. It suffices to say at this point that in view of the
attitude we take of the matter and to prevent any
further prejudice
to the other parties the application for condonation with its
insuperable problems was granted in the interest
of justice.
[20] Before us the main
issue for determination is whether the LCC was correct in making
orders that it did in instances where these
were not asked for nor
pleaded by the parties. In the notice of motion and at the hearing of
the matter before the LCC the appellant
inter alia asked for the
following orders:
‘
1
That the first and second respondents be ordered to forthwith remove
all their or any grazing animals under their control, including
but
not limited to cattle, goats, horses and sheep from the applicant’s
farm, Portion 1 of the farm La Bella Esperance 3338,
Registration
Division HS, KwaZulu-Natal and situated in the district of Newcastle
(“the farm”).
2
That should the respondents fail to adhere to the order prayed for in
1, within 14 (fourteen) days from the date of the order,
that the
Sheriff of the High Court or his deputy be ordered to, with the
assistance of the South African Police Services and the
Pound Master
for the district within which the farm is situated or his/her lawful
substitute, remove and impound such animals to
which the order in the
above is applicable.
3
That the first and second respondents, at their expense, and with the
assistance of the third and fourth respondents, where possible,
be
ordered to implement the rehabilitation measures, as recommended in
annexure “HPA 7” of the founding affidavit,
in respect of
the camp on the farm, currently utilized by the first respondent for
the grazing of his cattle, horses, goats and
other livestock and
within which his homestead is situated.
4
That the first and second respondents be interdicted and restraint
from returning any of the animals removed from the farm as
prayed for
in 1 and/or 2 above, up until such time when the area in 3 above has
been fully rehabilitated to the satisfaction of
the applicant’s
experts or any other reputable grazing expert and that would permit
the re-introduction of grazing animals
to the camp, without posing a
threat of future soil erosion, the destruction of the rehabilitated
natural vegetation, overgrazing
and bush encroachment.’
The
order in paragraph 3 was abandoned before the LCC and does not form
part of this appeal.
[21]
Related to this issue is the court’s order directing that ‘the
[appellant] provide alternate grazing on [its] property
if available,
alternatively, the third respondent secures suitable grazing for the
first and second respondents’ animals
within 30 days of the
date of the order. The appellant took issue with the court’s
finding that it should bear the costs
for the removal and return of
the livestock and leasing of alternate grazing land.
[22] To fully appreciate
and contextualise the gravamen of the appellant’s objection, it
is apposite at this stage to state
that the impugned parts relate to
paragraphs 1, 2, 4 and 6 of the court order. For the sake of
completeness the orders are set
out:
‘
1.
The applicant provides alternate grazing on applicant’s
property if available;
2.
Alternatively, the third respondent secures suitable grazing for the
first and second respondents’ animals within 30 days
of the
date of this order;
4.
The applicant is ordered to, at the expiry of the rehabilitation
period of three years, pay the costs to transport and re-settle
the
livestock belonging to the first and second respondents’
original grazing area;
6.
The applicants and first and second respondents shall jointly in
equal amounts pay the costs of leasing alternate grazing land.’
In
view of the submission that these orders were incompetent the case
advanced is that these orders were not asked for nor pleaded
by the
parties. It was argued that the court a quo impermissibly granted
them without affording the parties an opportunity to present

argument.
[23]
To buttress his argument counsel for the appellant submitted that at
various pre-trial conferences called by Sardiwalla AJ,
at no stage
did he forewarn them that he would grant a different order to the one
sought by the appellant. We were urged to accept
that the court a quo
ignored the evidence placed before him and in doing so departed from
the pleaded case of the appellant.
[24] The learned Judge’s
failure to forewarn the parties that he was inclined to grant orders
not prayed for in the notice
of motion is contrary to
well-established principles stated by the Constitutional Court in
Molusi & others v Voges & others NO
[2016] ZACC 6:
2016 (3) SA 370
(CC) paras 27-28 where the court said:
‘
It
is trite law that in application proceedings the notice of motion and
affidavits define the issues between the parties and the
affidavits
embody evidence. As correctly stated by the Supreme Court of Appeal
in
Sunker
:
“
If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties . . . should be apprised of the
case which they are required to meet; one of the manifestations
of
the rule is that he who [asserts] . . . must . . . formulate his case
sufficiently clearly so as to indicate what he is relying
on.”
The
court further went on to state:
‘
The
purpose of pleadings is to define the issues for the other party and
the court. And it is for the court to adjudicate upon the
disputes
and those disputes alone. Of course there are instances where the
court may of its own accord (mero motu) raise a question
of law that
emerges fully from the evidence and is necessary for the decision of
the case as long as its consideration on appeal
involves no
unfairness to the other party against whom it is directed. In
Slabbert
the
Supreme Court of Appeal held:
“
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”
’
[25]
If one has regard to the orders made by the LCC it is clear that the
court went beyond the parties’ pleaded case. The
appellant had
made it clear in its founding affidavit and during pre-trial
discussions or meetings that it did not have alternative
land
available for the respondents. In my view the fact that during the
pre-trial conference all the parties explored the possibility
of
finding alternative grazing land for the respondents off the farm
indicates without doubt that no such land was available on
the farm.
It is clear that the orders granted are in conflict with the evidence
presented by the parties at the pre-trial conferences
and repeated
when this matter was argued before the LCC and in this court. It is
inexplicable how the LCC granted such orders which
were not supported
by the facts and the evidence.
[26]
With regards to the appellant’s order seeking rehabilitative
relief, it relied on the provisions of CARA which place
an obligation
or responsibility on the land owner or land user to manage the
agricultural land in a responsible way, to preserve
and not overgraze
it. It is the appellant’s case that the respondents’
breach of the grazing agreements is the cause
of the degradation.
Degradation, erosion and overgrazing is a violation of the provisions
of CARA and is contrary to s 24
of the Constitution. It was
correctly submitted that the obligation or responsibility to manage
the agricultural land in a responsible
way, to preserve it and not
overgraze it is the responsibility of the land user or land owner.
[27]
The finding by the LCC seeking to place the obligation solely on the
appellant (as the land owner) is misplaced and contrary
to the
provisions of CARA. The fallacy in the judgment is demonstrated in
the finding by the LCC which purported to place an onerous
obligation
on the appellant land owner to intervene at the first signs of
degeneration of the land and enforce rotational grazing
to comply
with the provisions of CARA. In the present matter the first
respondent conceded that he did not reside on the property
and
further conceded that he was granted grazing rights by the
appellant’s predecessor.
[28] It thus follows that
his rights of grazing does not derive from ESTA. He has a personal
right to use the land for the purpose
of grazing. I agree with the
remarks by Pickering J in
Margre Property Holdings CC v Jewula
[2005] 2 All SA 119
(E) at 7 when he said the following:
‘
The
right of an occupier of a farm to use the land by grazing livestock
thereon is a right of a very different nature to those rights

specified in s 6 (2) [in ESTA]. In my view such use was clearly
not the kind of use contemplated by the Legislature when granting
to
occupiers the right to use the land on which they reside. Such a
right would obviously intrude upon the common law rights of
the farm
owner and would, in my view, thereby amount to an arbitrary
deprivation of the owner’s property. There is no clear

indication in the Tenure Act such an intrusion was intended. It is
relevant in this regard that respondent is neither an employee
not a
labour tenant as defined by the section 1 of the Land Reform (Labour
Tenants) Act 3 of 1996. His right, if any, to graze
stock on the farm
does not derive from that Act. In my view the use of land for
purposes of grazing stock is pre-eminently a use
which would be
impossible to regulate in the absence of agreement between the
parties. I am satisfied in all the circumstances
that an occupier is
not entitled as of right to keep livestock on the farm occupied by
him as an adjunct of his right of residence.
His entitlement to do so
is dependent on the prior consent of the owner of the property having
been obtained.’
[29]
The respondents supported the finding of the LCC and contended that
their relocation would cause severe prejudice and a great
hardship to
their livelihood as well as their livestock. It was urged upon us to
adopt its findings that the responsibility to
ensure compliance with
control measures in terms of CARA rests with the appellant. The
argument advanced was that the appellant
as the owner of the farm has
the responsibility to intervene if the farm showed any signs of
degradation by reducing the number
of livestock on the farm and
withdrawing them from the grazing land until such time that the land
had recovered. The effect of
this argument is that the responsibility
to provide alternative grazing land, bear the costs for the removal
and return of the
livestock when the land has been fully
rehabilitated rests with the appellant as the land owner and not the
respondents as the
land user. This argument has no merit. A reading
of the provisions of regulation 9(1)(a)-(e) of CARA read together
with the definition
of land user in s 1 thereof squarely places
the obligation on both the land owner and the land user to protect
the veld from
deteriorating.
[30]
It was also submitted that the appellant ought to have invoked the
provisions of regulation 9 of CARA instead of instituting
civil
proceedings against the respondents. To this end, it was said that
had the appellant acted promptly upon noticing the respondents’

transgressions, the matter should have been reported to the executive
officer whose task is to enforce and monitor them. This argument
is
without merit. It cannot reasonably be expected of the appellant to
adopt a supine attitude and wait for the executive officer
to enforce
or monitor the respondents’ transgression while the land
continues to deteriorate. The executive officer can only
issue
directives and failure to comply with his directives attract criminal
sanction only. There is no power to institute civil
proceedings and
the executive officer also does not have the powers to remove the
livestock. Similarly the regulation in terms
of CARA does not empower
the land owner to take action against the recalcitrant land user.
That remedy is located in civil proceedings.
In my view CARA does not
exclude the right of the land owner to institute civil proceedings to
vindicate his right.
[31] In any event, s 38
read with s 24 of the Constitution accords the right to anyone
acting in his or her own interest
to approach a competent court
alleging that a right in terms of the Bill of Rights has been
infringed or threatened. The provisions
of CARA are consistent with
the Constitution or Bill of Rights because they, amongst others, seek
to promote the conservation of
the soil and protect vegetation
against unlawful degradation. Section 24 of the Constitution provides
as follows:
‘
Environment
– Everyone has the right –
(a)
to an environment that is not harmful to their health or well-being;
and
(b)
to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures
that –
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.’
[32] Evidently what the
appellant is asserting is the right enshrined and protected by the
Constitution and this right is echoed
in CARA whose objectives are
defined in s 3 thereof which provides as follows:
‘
The
objects of this Act are to provide for the conservation of the
natural agricultural resources of the Republic by the maintenance
of
the production potential of land, by the combating and prevention of
erosion and weakening or destruction of the water sources
and by the
protection of the vegetation and the combating of weeds and invader
plants.’
[33]
The fact that the executive officer, acting in terms of regulation
9(2) of CARA, is empowered to direct a land user in writing
to adopt
additional measures to protect the veld effectively against
deterioration or destruction and to apply additional measures
if
necessary, does not preclude the appellant from instituting the
present proceedings. In
Madrassa
Anjuman Islamia v Johannesburg Municipality
,
1917 AD 718
the court held that the
general
rule of construction is that if it is clear from the language of a
statute that the legislature, in creating an obligation,
has confined
the party complaining of its non-performance, or suffering from its
breach, to a particular remedy, such party is
restricted thereto and
has no further legal remedy. However, an exception to this general
rule is found in the right of the court,
unless the legislature has
expressed a contrary intention, to grant an ancillary remedy by way
of interdict.’
At 725 the Court went on
to say:
‘
To
exclude the right of a Court to interfere by way of an interdict,
where special remedies are provided by statute, might in many

instances result in depriving an injured person of the only really
effective remedy that he has, and it would require a strong
case to
justify the conclusion that such was the intention of the
Legislature.’
See also the instructive
remarks by Wallis JA in
SA Maritime Safety Authority v Mckenzie
2010 (3) SA 601
SCA at 612 where he said the following:
‘
Where
a statute creates both a right and a means for enforcing that right
the position is that:
“
We
must look at the provisions of the Act in question, its scope and its
object, and see whether it was intended when laying down
a special
remedy that that special remedy should exclude ordinary remedies. In
other words, we have no right to assume, merely
from the fact that a
special remedy is laid down in a statute as a remedy for a breach of
a right given under statute, that other
remedies are necessarily
excluded.”’ (footnotes omitted).
[34] To conclude on this
aspect, CARA does not expressly preclude the appellant from
approaching the court to invoke an effective
remedy and to enforce,
in essence, an agreement that the parties were subject to.
The cross-appeal
[35] I now turn to deal
with the cross-appeal. The Minister of Rural Development and Land
Reform appeals against the order of the
LCC which reads as follows:
‘
Alternatively
the third respondent secures suitable grazing for the first and
second respondents’ animals within 30 days of
the date of this
order.’
[36]
This order is clearly misconceived. Again, as with the appellant, it
was not asked for nor pleaded by the parties. The LCC
simply granted
the order without affording the Minister an opportunity to file a
supplementary affidavit or present further argument.
This order runs
contrary to the affidavit of Thembeka Ndlovu, the acting
deputy-director of Land Tenure and Administration, who
stated that
since the respondents were not labour tenants, the Minister had no
mandate to pay rentals on their behalf. This order
was accordingly
incompetent, and should be set aside.
[37]
What is untenable about the order is that it sought to place
responsibility on the Minister when the administration of CARA
falls
within the domain of the Minister of Agriculture. It is common cause
that the respondents are land users in terms of CARA.
A reading of
the provisions of regulation 9(1)(a)-(e) of CARA places the
obligation to protect the land squarely on the land owner
or land
user. No such obligation rest on the Department of Rural Development,
neither has the Department of Agriculture such an
obligation.
[38] In the present case
there were agreements between the appellant and the first and second
respondents. The Minister was not
a party to the agreements.
Directing the Minister to secure alternative grazing land for the
respondents was clearly incompetent
and the Minister is not enjoined
by CARA to offer assistance towards rehabilitation for land users. It
follows that the order of
the LCC cannot be allowed to stand and
falls to be set aside.
Costs
[39]
I turn to consider the appellant’s request for costs
de
bonis propriis
on the basis of the conduct of the first and
second respondents’ attorneys. It is necessary to record the
events preceding
the hearing of this matter. As mentioned earlier,
pursuant to the court a quo’s judgment, the appellant and the
Minister
of Rural Development and Land Reform lodged applications for
leave to appeal. The respondents did not oppose the application nor

attended court at the hearing of such application. Leave was granted
to this court.
[40]
Subsequent thereto the appellant served the record of the proceedings
on the respondents’ attorneys during May 2016.
The attorneys
acknowledged receipt of the record on 27 May 2016. On 15 July 2016
the appellant served heads of argument, list of
authorities,
chronology of events and practice notes on the respondents’
correspondent attorneys in Bloemfontein. The third
respondent, the
appellant in the cross-appeal served their heads of argument on all
the parties on 15 August 2016. At that stage
it should have been
clear to the respondents’ attorney that the judgment of the
court a quo was vigorously challenged.
[41]
In terms of the rules of this court the respondents’ attorneys
were obliged to file their heads of arguments within two
months
thereof (ie in August and September respectively). Fully aware of
their obligations they did not do so. It bears mentioning
that at
that time the respondents were represented by different counsel. It
would seem to me none of the counsel were aware or
saw it prudent to
file the heads of argument. The respondents’ affidavit in the
condonation application does not explain
whether the counsel were
ever briefed to prepare the heads of argument. In the absence of any
explanation the inference to be drawn
is that they were not. It was
only on 25 November 2016 that the decision was taken to appoint new
counsel to represent both respondents
for the preparation of heads of
arguments. No adequate explanation was proffered for the delay
despite the lapse of a significant
period for the filing of the heads
of argument. All that is stated is that the record of appeal and
cross-appeal was sent to counsel
on 30 November 2016. No effort is
made to try to explain why counsel was briefed so late after the last
set of heads were received
on 15 August 2016. It can be expected of
the respondents’ attorney to be aware of the trite principles
regarding condonation
applications and ought to have addressed all
aspects fully. This was regrettably not done. This is symptomatic of
the nonchalant
attitude adopted by the respondents’ attorney
throughout this matter.
[42]
Another disconcerting feature regarding the conduct of the
respondents’ attorney is the averment made that even after

counsel was briefed late, there was no sense of urgency in getting
the heads of argument prepared, or at the very least, requesting
an
indulgence from court for an extension. Instead both the attorneys
and newly briefed counsel decided to take an early Christmas
break on
9 December and resumed work on 23 January 2017. The respondents’
attorneys at that stage were fully aware that they
had not complied
with the rules regarding service of the heads of argument and again
no effort was made to prevail upon counsel
to expedite the matter.
This conduct is unreasonable, slack and evidently demonstrates
discourteous conduct to the court and their
opponents. This flagrant
disregard of the rules cannot be countenanced. As an officer of the
court the conduct of the respondents’
attorney was egregious.
[43] It appears from the
affidavit of the first respondent that the work on the preparation of
the heads only commenced after 28
January 2017. This is another
indication that the respondent’s attorney abandoned his duty to
the court. Support for this
can be found in the first respondent’s
affidavit where he stated as follows:
‘
In
that process, it dawned on counsel that the appellant and the
cross-appellant had already filed their respective practice notes,

heads of argument and chronology of events during July 2016 and
August 2016, respectively.’
This
averment indicates that nothing was done by the respondents’
attorney to prepare heads of argument, or to try and expedite

counsel’s preparation of the heads of argument – which
were not lengthy. It is inexplicable how it could have ‘dawned’

only at that late stage that the other parties had filed their heads
of argument in July 2016 and August 2016 already.
[44]
What further exacerbates the problem is that the first respondent
stated in his affidavit that his attorneys were not aware
of the date
of appeal i.e. 28 February 2017 until the cross-appellant attorneys
alerted them. At that stage nothing had been done
to prepare the
heads of argument. It was only during February when the respondent
sought postponement of the matter on the basis
that the second
respondent, Mr Timothy Shabalala, had passed on. This is despite the
fact that he passed away on 1 November 2016.
Quite clearly the
respondents’ attorney was not aware of his demise and this
again indicates the laxity on the part of the
respondents’
attorneys. The application for postponement was clearly opportunistic
and a ruse aimed at delaying the hearing
of this appeal. During
argument it quickly dawned on counsel for the respondent that this
was an ill-conceived application and
he wisely abandoned it.
[45] The conduct of the
respondents’ attorney demonstrates wanton disregard to the
rules of the court and discourtesy to his
colleagues. There was, in
my view, a serious dereliction of duty calculated to cause prejudice
to the other parties. The respondents’
attorney’s
nonchalant conduct is to be deprecated. I agree with Le Grange J in
Thunder Cats Investments 49 (Pty) Ltd & others v Fenton &
others
2009 (4) SA 138
(C) para 30 that:
‘
An
order to hold a litigant’s legal practitioner liable to pay the
costs of legal proceedings is unusual and far-reaching.
Costs orders
of this nature are not easily entertained and will only be considered
in exceptional circumstances.’
[46] In
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom
SA Soc Limited & another v Blue Label Telecoms
Limited &
others
[2013] 4 All SA 346
(GNP) the principles relating to costs
orders
de bonis propriis
against legal practitioners were
re-stated and explained as follows:
‘
[34]
Costs are ordinarily ordered on the party and party scale. Only in
exceptional circumstances and pursuant to a discretion judicially

exercised is a party ordered to pay costs on a punitive scale. Even
more exceptional is an order that a legal representative should
be
ordered to pay the costs out of his own pocket . . . [T]he obvious
policy consideration underlying the court’s reluctance
to order
costs against legal representatives personally, is that attorneys and
counsel are expected to pursue their client’s
rights and
interests fearlessly and vigorously without undue regard for their
personal convenience. In that context they ought
not to be
intimidated either by their opponent or even, I may add, by the
court. Legal practitioners must present their case fearlessly
and
vigorously, but always within the context of set ethical rules that
pertain to them, and which are aimed at preventing practitioners
from
becoming parties to deception of the court. It is in this context
that society and the courts and the professions demand absolute

personal integrity and scrupulous honesty of each practitioner . . .
[35]
It is true that legal representatives sometimes make errors of law,
omit to comply fully with the rules of the court or err
in other ways
related to the conduct of the proceedings. This is an everyday
occurrence. This does not, however, per se ordinarily
result in the
court showing its displeasure by ordering the particular legal
practitioner to pay the costs from his own pocket.
Such an order is
reserved for conduct which substantially and materially deviates from
the standard expected of the legal practitioner,
such that their
clients, the actual parties to the litigation, cannot be expected to
bear the costs, or because the court feels
compelled to mark its
profound displeasure at the conduct of an attorney in any particular
context. Examples are, dishonesty, obstruction
of the interest of
justice, irresponsible and grossly negligent conduct, litigating in a
reckless manner, misleading the court,
and gross incompetent and a
lack of care.’
See
also
Darries v Sheriff Magistrate’s, Court Wynberg &
another
1998 (3) SA 34
(SCA).
[47] In the
circumstances, the respondents’ attorney was not only late but
remiss in regard to almost every step of the appeal.
This conduct
shows gross negligence and ignorance of the rules governing the
appeals. We were urged to mark our displeasure by
means of a punitive
cost order against the attorney. This conduct does not fall within
the errors of law nor an everyday occurrence.
In my view taking into
account the unexplained litany of delays and flagrant disregard of
the rules the circumstances of this case
warrant punitive costs to be
paid
de bonis propriis
by the attorney. It will be unjust to
mulct the respondents who do not have the means with a cost order
when the attorneys dismally
failed them. The heads of argument were
only filed on the eve of the hearing of this matter. This court has
repeatedly admonished
attorneys who purport to practise in this court
for their failure to familiarise themselves and comply with its rules
– see
Chairperson of the National Council of Provinces v
Malema & another
(2016) 3 All SA 1
(SCA). This is an
appropriate case for an order that the attorney pay the costs of the
applications for postponement and condonation
de bonis propriis
.
I therefore make the following order:
1 The appeal succeeds
with costs, including the costs of two counsel.
2 The cross appeal is
upheld with no order as to costs.
3 The orders of the court
below are set aside and substituted with the following:
‘
1
The first and second respondents, with the assistance of the
appellant (to provide transport), are hereby directed to remove all

livestock belonging to them, from the appellant’s farm
described as Portion 1 of the farm La Bella Esperance No. 3338,
Registration
Division HS, KwaZulu-Natal and situated in the district
of Newcastle (‘the farm’) within 30 days of the granting
of
this order, to a place identified by the first and second
respondents.
2
That, in the event of the first and second respondents failing to
comply with the order set out in paragraph 1 above, the Sheriff
of
the High Court, with the assistance of the South African Police
Services, if necessary, is hereby ordered and directed to remove
all
the livestock present on the farm under the control of the
respondents referred to in paragraph 1 above, to the nearest pound.
3
That the first and second respondents are interdicted and restrained
from returning any of the livestock removed from the farm
as prayed
for in paragraph 1 and/or 2 above, or any other livestock, until the
rehabilitation period of 3 years of the demarcated
area where the
livestock were kept has expired.’
4 The
attorneys of the first and second respondents are ordered to pay the
cost of the application for postponement and condonation
de bonis
propriis
.
________________________
R S Mathopo
Judge
of Appeal
APPEARANCES:
For
appellant:

M G Roberts SC and G F Ackerman
Instructed
by:
Moolman
& Pienaar Incorporated, Potchefstroom
Pieter
Skein Attorneys, Bloemfontein
For
first and second respondents
:
G Shakoane SC and L L M Mashapa
Instructed
by:
M C
Ntshalintshali Attorneys, Durban
Matlho
Attorneys, Bloemfontein
For
third respondent:        T V
Norman and C M Nqala
Instructed
by:
The
State Attorney, Durban
The
State Attorney, Bloemfontein
For
fourth respondent:     T V Norman SC and C M
Nqala
Instructed
by:
The
State Attorney, Durban
The
State Attorney, Bloemfontein
[1]
In terms of Uniform rule 15 which reads as follows:
‘
Change
of parties
(1) No proceedings shall terminate
solely by reason of the death, marriage or other change of status of
any party thereto unless
the cause of such proceedings is thereby
extinguished.
(2) Whenever by reason of an event
referred to in subrule (1) it becomes necessary or proper to
introduce a further person as
a party in such proceedings (whether
in addition to or in substitution for the party to whom such
proceedings relate) any party
thereto may forthwith by notice to
such further person, to every other party and to the registrar, add
or substitute such further
person as a party thereto, and subject to
any order made under subrule (4) hereof, such proceedings shall
thereupon continue
in respect of the person thus added or
substituted as if he had been a party from the commencement thereof
and all steps validly
taken before such addition or substitution
shall continue of full force and effect: Provided that save with the
leave of the
court granted on such terms (as to adjournment or
otherwise) as to it may seem meet, no such notice shall be given
after the
commencement of the hearing of any opposed matter; and
provided further that the copy of the notice served on any person
joined
thereby as a party to the proceedings shall (unless such
party is represented by an attorney who is already in possession
thereof),
be accompanied in application proceedings by copies of all
notices, affidavits and material documents previously delivered, and

in trial matters by copies of all pleadings and like documents
already filed of record, such notice, other than a notice to the

registrar, shall be served by the sheriff.
(3) Whenever a party to any
proceedings dies or ceases to be capable of acting as such, his
executor, curator, trustee or similar
legal representative, may by
notice to all other parties and to the registrar intimate that he
desires in his capacity as such
thereby to be substituted for such
party, and unless the court otherwise orders, he shall thereafter
for all purposes be deemed
to have been so substituted.
(4) The court may
upon a notice of application delivered by any party within 20 days
of service of notice in terms of subrule
(2) and (3), set aside or
vary any addition or substitution of a party thus affected or may
dismiss such application or confirm
such addition or substitution,
on such terms, if any, as to the delivery of any affidavits or
pleadings, or as to postponement
or adjournment, or as to costs or
otherwise, as to it may seem meet.’