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[2017] ZASCA 65
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Magubane and Another v Twin City Developers (Pty) Ltd and Others (981/16) [2017] ZASCA 65 (30 May 2017)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 981/16
In
the matter between:
JULY
JOSEPH MAGUBANE
FIRST
APPELLANT
GWEJE
KHUMALO
SECOND APPELLANT
and
TWIN
CITY DEVELOPERS
(PTY)
LTD
FIRST RESPONDENT
WETLANDS
COUNTRY
RETREAT
(PTY) LTD
SECOND
RESPONDENT
THE
PIXLEY KA SEME
LOCAL
MUNICIPALITY
THIRD RESPONDENT
THE
HEAD OF THE MPUMALANGA
PROVINCIAL
OFFICE OF THE
DEPARTMENT
OF RURAL
DEVELOPMENT
AND
LAND
REFORM
FOURTH RESPONDENT
THE
HEAD OF THE KWAZULU-NATAL
PROVINCIAL
OFFICE OF THE
DEPARTMENT
OF RURAL
DEVELOPMENT
AND
LAND
REFORM
FIFTH RESPONDENT
Neutral
citation:
Magubane
& another v Twin City Developers (Pty) Ltd & others
(
981/16
)
[2017] ZASCA 65
(30 May 2017)
Coram:
Ponnan,
Mbha, Dambuza, and Van der Merwe JJA and Fourie AJA
Heard:
11
May 2017
Delivered:
30
May 2017
Summary:
Extension
of Security of Tenure Act 62 of 1997
: Land Claims Court erred in
failing to consider probation officer’s report submitted in
terms of
s 9(3)
of the Act prior to granting eviction order:
considerations of convenience and interests of justice require that
Supreme Court
of Appeal considers the content of report and not remit
matter to the Land Claims Court for reconsideration: content of the
report
not warranting interference with the eviction order.
ORDER
On
appeal from:
The
Land Claims Court, Randburg (Mpshe AJ sitting as court of first
instance):
1
The appeal is dismissed and no order as to costs is made.
2
The order granted by the Land Claims Court on 13 January 2016 is
substituted with the following:
‘
(a)
The first and second respondents and all those occupying through them
are to vacate the farm:
(i)
Remaining
Extent of Portion 1 of the farm Damascus 125, Registration Division
HT, Province of Mpumalanga.
(ii)
Portion 4 of the farm Damascus HT 125, Registration Division
HT,
Province of Mpumalanga.
(iii)
The remaining Extent of the farm Damascus 125, Registration Division
HT, Province of Mpumalanga.
(b)
The respondents are to remove all the livestock belonging to them
from the farm on the date of eviction.
(c)
The applicants are to pay an amount of R100 000 to each of the
respondents as follows:
(i)
R200 000 to be paid on the day following the date of this order into
the trust account of the applicants' instructing attorneys
of record,
for the purpose of:
(ii)
Paying R50 000 to each of the respondents within seven days of the
date of this order.
(iii)
Paying R50 000 to each of the respondents within seven days of their
having vacated the farm.
(d)
The respondents and all those occupying through them are to vacate
the farm on or before 1 September 2017.
(e)
The Sheriff for the district is authorised to effect the eviction in
the event of the respondents' failure to vacate the farm
in
accordance with this order.
(f)
The applicants are to assist the respondents with the relocation of
their moveable assets, livestock and building material,
including
building material salvaged from the dwellings which comprise their
homesteads and to meet the transport costs incurred
by such
assistance.
(g)
No order as to costs is made.'
JUDGMENT
Fourie
AJA (Ponnan, Mbha, Dambuza and Van Der Merwe JJA concurring):
[1]
The issue in this appeal is whether the Land Claims Court (the LCC)
was precluded from ordering, at the instance of the first
and second
respondents, the appellants’ eviction from farm land occupied
by them. The appeal is with the leave of the LCC.
[2]
The factual matrix providing the background to the application is
largely common cause and may succinctly be summarized thus:
The first
respondent is the owner of certain farm land in the province of
Mpumalanga, on which the second respondent conducts farming
activities. (The first and second respondents are hereinafter
referred to as ‘the respondents’.) The appellants and
their family members have
resided
on the farm since 1975 and 1980, respectively. At the time of the
application for their eviction the appellants were not
in the employ
of the respondents and their right of residence had been terminated
by the respondents on 2 July 2013 in terms of
the provisions of s 10
of the Extension of Security of Tenure Act 62 of 1997 (the Act). The
appellants disputed the lawfulness
of this termination, prompting the
application for their eviction. I should add that the remaining
respondents (the relevant local
and provincial authorities) abided
the decision of the court a quo and have not participated in this
appeal.
[3]
The appellants opposed the application and, in the event, it was
heard by Mpshe AJ, who held that the appellants’ right
of
residence had been lawfully terminated, particularly in view of their
conduct in causing damage to the respondents’ property,
resulting in an irretrievable breakdown of the relationship between
the parties. He accordingly ordered that:
a)
The appellants and all those occupying through them were to vacate
the farm on or before 29 February 2016 and the sheriff was
authorised
to effect the eviction on 7 March 2016 in the event of the
appellants’ failure to vacate.
b)
The appellants were to remove all their livestock from the farm.
c)
The respondents were to pay an amount of R30 000 to each of the
appellants on the date of eviction.
In
addition, no order as to costs was made.
[4]
The purpose of the Act, as appears from its long title, is, inter
alia, to facilitate the long-term security of land tenure
by
regulating the conditions on and circumstances under which the right
of persons to reside on land may be terminated, as well
as to
regulate the conditions and circumstances under which such persons
may be evicted from land. Section 10 of the Act prescribes
the
conditions and circumstances pertaining to the eviction of persons
who were the occupiers of property on 4 February 1997, while
s 11
deals with persons who became occupiers after 4 February 1997. The
appellants fall within the category of persons covered
by s 10 of the
Act.
[5]
It
is common cause that the only relevant issue on appeal relates to the
probation officer’s report prescribed by s 9(3) of
the Act. It
is not in dispute that the remaining requirements of the Act for the
eviction of the appellants have been met - therefore
an analysis of
the provisions of s 9 (3) will suffice. In relevant
part the subsection reads thus:
‘
For
the purposes of subsection 2(c) [ie for the purposes of determining
whether the conditions for an order for eviction in terms
of ss 10 or
11 of the Act have been complied with], the court must request a
probation officer . . . to submit a report within
a reasonable
period-
a)
on the
availability of suitable alternative accommodation to the occupier;
b)
indicating
how an eviction will affect the constitutional rights of any affected
person, including the rights of the children, if
any, to education;
c)
pointing
out any undue hardships which an eviction would cause the occupier
and;
d)
on any
other matter as may be prescribed.’
[6]
In this matter the probation officer’s report was requested on
27 February 2015. The eviction application was subsequently
set down
for hearing, although the report had not yet been forthcoming. At the
hearing of the matter on 20 November 2015, no report
had yet been
submitted to the LCC. This was brought to the attention of Mpshe AJ,
who commented that, in his experience at the
LCC, it was not unusual
for such reports to only be submitted two years after being
requested, or not at all. Mpshe AJ also noted
that in terms of the
jurisprudence of the LCC, it was entitled to proceed with an eviction
application in the event of the report
not being filed within a
reasonable period of time.
[1]
This is no doubt correct, particularly as s 9(3) requires the report
to be submitted within a reasonable time. The LCC accordingly
proceeded with the hearing and then reserved its judgment, which was
delivered on 13 January 2016.
[7]
However, unbeknown to Mpshe AJ, the report of the probation officer
had been filed on 3 December 2015. In fact, the report forms
part of
the record of appeal. It is not clear why the report was not brought
to the attention of Mpshe AJ before the delivery of
judgment, but the
fact of the matter is that it had been submitted as required in terms
of s 9(3) of the Act (albeit nine months
after it had been
requested). What the appellants contended was that the failure of the
LCC to consider the report before ordering
the eviction of the
appellants, constituted a material irregularity justifying the
setting aside of the eviction order and the
remittal of the matter to
the LCC to reconsider its judgment and order in view of the s 9(3)
report.
[8]
The respondents, on the other hand, submitted that, in the event of
this court finding that the LCC had erred in not having
considered
the report, the matter should not be remitted to the LCC, but this
court should determine whether the content of the
report justifies
any interference with the order of the LCC. Counsel for the
respondents further submitted that an appraisal of
the content of the
report showed that no interference with the eviction order granted by
the LCC was justified.
[9]
In my view, the failure of the LCC to consider the report before
making its order, constituted a material misdirection entitling
this
court to interfere. The report was filed and available since 3
December 2015, some six weeks before judgment was delivered.
In view
of the important purpose served by the report, as alluded to
hereinafter, the eviction order ought not to have been issued
without
consideration of the report.
[10]
What has to be decided is whether the matter should now be remitted
to the LCC to reconsider its judgment and order in view
of the
content of the report, or whether this court itself should consider
the report and determine whether it justifies interference
with the
order of the LCC. There does not appear to be a fixed principle
determining whether this court should finalise the matter
or remit it
to the LCC. As stated by the authors D E van Loggerenberg and E
Bertelsmann
Erasmus:
Superior Court Practice
2
ed vol 2 at A1–58, a court of appeal should in each case have
regard to considerations of convenience. See also
Simaan
v South African Pharmacy Board
1982 (4) SA 62
(A) at 81A, where Viljoen JA stated: ‘The
balance of convenience requires, in my view, that the present
litigation should
end in this court’. It should also be
borne in mind that
s 19
of the
Superior Courts Act 10 of 2013
endows
this court with wide powers on the hearing of an appeal, including
the power to ‘confirm, amend or set aside the decision
which is
the subject of the appeal and render any decision which the
circumstances may require'.
[11]
The probation officer’s report is before us and this court is
no doubt in as good a position as the LCC to determine
whether the
content thereof justifies any interference with the order of Mpshe
AJ. This much was conceded by counsel for the appellants.
He was
further constrained to concede that the report is not deficient in
any respect and that it complies with the requirements
prescribed by
s 9(3) of the Act. Moreover, it is common cause that a remittal of
the matter to the LCC would cause further unnecessary
delay and
wastage of costs. It has been dragging on for close to four years and
it is evident that not only considerations of convenience,
but also
the interests of justice, require that the litigation should end
sooner rather than later.
[12]
In considering the content of the report, one has to bear in mind
that the purpose of a s 9(3) report is, as Meer AJ stated
in
Glen
Elgin Trust v Titus & another
[2001]
2 All SA 86
(LCC) para 9, to ensure that the constitutional rights of
the occupiers who stand to be evicted, are not overlooked. However,
as
emphasized by Meer AJ, the Act should not be construed to suggest
that the constitutional rights of the occupiers (such as the right
to
housing and the right of children to basic shelter and education,
enshrined in ss 26(1) and (2), 28(1)(c) and 29 (i)(b) of the
Constitution, respectively) stand to be enforced against the
landowner, as that would give rise to ‘the situation…
whereby landowners are expected to take over the State’s
responsibility to provide housing to occupiers and education to
their
children.’ This notwithstanding, a court considering an
eviction application under the Act must, as reiterated in
Glen
Elgin Trust
,
consider the constitutional rights of occupiers in an attempt to
address the hardship and instability caused by evictions and
to
ensure that they are conducted with a measure of compassion, or even
delayed with as little resultant disruption to constitutional
rights
as possible.
[13]
As recorded earlier, counsel for the appellants accepted that the
probation officer’s report complied with the requirements
of s
9(3) of the Act. A perusal of the report shows that this concession
was rightly made, as it adequately addressed all the aspects
which
impact upon the constitutional rights of the appellants and their
extended families, including the rights of the school-going
children.
Importantly, when invited by this court to indicate whether any
aspects dealt with by the probation officer in his report
militate
against the granting of the eviction order, counsel for the
appellants submitted that he ‘cannot suggest anything
that goes
against the eviction of the appellants'. Furthermore, counsel
conceded that, had the report been available at the hearing
of the
application in the LCC, he would not have been able to raise any
aspect which ought to have been added to the report.
[14]
Counsel for the appellants was unable, upon the further invitation of
this court, to advance any reason why the content of
the report
justifies this court to interfere with the order of the LCC. In fact,
he was constrained to rely on the mere denial
of the right to address
the LCC on the content of the report, as the ground upon which the
eviction order was to be set aside.
However, he conceded that he was
unable to point to any prejudice suffered by the appellants as a
consequence thereof, which effectively
put paid to the appellants’
quest to have the eviction order set aside. It follows that the
content of the report does not
warrant interference with the order of
the LCC. On the contrary, it illustrates that, on the facts of this
matter, it was just
and equitable to have ordered the eviction of the
appellants.
[15]
In the result the appeal falls to be dismissed. As recorded above,
the LCC, in an attempt to ameliorate the adverse impact
of the
eviction order on the appellants, had extended the date of the
eviction and ordered the respondents, in terms of an offer
made by
them, to financially compensate the appellants. At the hearing of the
appeal, counsel for the respondents placed on record
that their
clients unconditionally tender to further extend the operation of the
eviction order for a period of three months; to
increase the
financial compensation to be paid to the appellants to an amount of
R100 000 each and to assist the appellants
with their
relocation. Furthermore, it was recorded that the respondents do not
seek a costs order in their favour. This magnanimity
is laudable and
the undertakings are reflected in the amended eviction order
hereunder.
[16]
In the result, the following order is made.
1
The appeal is dismissed and no order as to costs is made.
2
The order granted by the Land Claims Court on 13 January 2016 is
substituted with the following:
‘
(a)
The first and second respondents and all those occupying through them
are to vacate the farm:
(i)
Remaining
Extent of Portion 1 of the farm Damascus 125, Registration Division
HT, Province of Mpumalanga.
(ii)
Portion 4 of the farm Damascus HT 125, Registration Division
HT,
Province of Mpumalanga.
(iii)
The remaining Extent of the farm Damascus 125, Registration Division
HT, Province of Mpumalanga.
(b)
The respondents are to remove all the livestock belonging to them
from the farm on the date of eviction.
(c)
The applicants are to pay an amount of R100 000 to each of the
respondents as follows:
(i)
R200 000 to be paid on the day following the date of this order into
the trust account of the applicants' instructing attorneys
of record,
for the purpose of:
(ii)
Paying R50 000 to each of the respondents within seven days of the
date of this order.
(iii)
Paying R50 000 to each of the respondents within seven days of their
having vacated the farm.
(d)
The respondents and all those occupying through them are to vacate
the farm on or before 1 September 2017.
(e)
The Sheriff for the district is authorised to effect the eviction in
the event of the respondents' failure to vacate the farm
in
accordance with this order.
(f)
The applicants are to assist the respondents with the relocation of
their moveable assets, livestock and building material,
including
building material salvaged from the dwellings which comprise their
homesteads and to meet the transport costs incurred
by such
assistance.
(g)
No order as to costs is made.'
__________________
P
B FOURIE
ACTING
JUDGE OF APPEAL
APPEARANCES
:
For
the Appellants:
D Whittington
Instructed
by:
A Y Bhayat Attorneys, Sandton
Bezuidenhouts
Inc, Bloemfontein
For
the First and Second Respondent: M Antrobus SC with I Oschman
Instructed
by:
Loubser Van Der Walt Inc, Pretoria
Pieter
Moolman Attorneys, Randburg
Symington
& De Kok, Bloemfontein
[1]
See
Theewaterskloof
Holdings (Edms) Bpk, Glaser Adeling v Jacobs en andere
2002 (3) SA 401
(LCC) para 13;
Pannar
Research Farms (Pty) Ltd v Magome & another
2002 (5) SA 621
(LCC) para 17.