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[2017] ZASCA 143
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Khumalo and Another v Twin City Developers (Pty) Ltd and Others (328/2017) [2017] ZASCA 143 (2 October 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 328/2017
In the matter between:
GWEJE
KHUMALO
FIRST APPELLANT
JULY
JOSEPH
MAGUBANE
SECOND APPELLANT
and
TWIN
CITY DEVELOPERS (PTY) LTD
FIRST RESPONDENT
WETLANDS
COUNTRY RETREAT (PTY) LTD
SECOND
RESPONDENT
THE
DIRECTOR: ANIMAL HEALTH IN THE
DEPARTMENT
OF AGRICULTURE, FORESTRY
AND
FISHERIES
THIRD RESPONDENT
THE
MINISTER OF AGRICULTURE, FORESTRY
FOURTH RESPONDENT
AND
FISHERIES
Neutral
citation:
Khumalo
v Twin City Developers
(328/2017)
[2017] ZASCA 143
(2 October 2017)
Coram:
Tshiqi,
Saldulker, Swain and Mathopo JJA and Molemela AJA
Heard:
28
August 2017
Delivered:
2
October 2017
Summary:
Appeal
against costs –
s 16(2)
(a)
(i)
and (ii) of the
Superior Courts Act 10 of 2013
– whether there
are exceptional circumstances justifying a consideration of the
matter with reference to the issue of costs
– whether the Land
Claims Court properly exercised its discretion in relation to the
award of costs – appeal dismissed
with costs.
ORDER
On
appeal from:
Land
Claims Court, Randburg (Mpshe AJ sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Molemela
AJA (Saldulker JA concurring):
Introduction
[1]
This is an appeal directed against a costs order made by the Land
Claims Court (court a quo) when it dismissed an urgent application
initiated by the appellants. The appellants in this matter are
occupiers of land as contemplated in the
Extension of Security of
Tenure Act 62 of 1997
[1]
(ESTA).
They reside on a farm owned by the first respondent. The second
respondent conducts farming activities on the first respondent’s
farm. (The first and second respondents are hereinafter referred to
as ‘the respondents’.) The third respondent is
the
Director: Animal Health in the Department of Agriculture, Forestry
and Fisheries and the fourth respondent is the Minister
of
Agriculture, Forestry and Fisheries. The third and fourth respondents
opposed the application in the court a quo and pointed
out that they
were only doing so due to a cumbersome order sought against them. The
third and fourth respondents filed a notice
to abide by the decision
of this Court and did not participate in this appeal.
Background
facts
[2]
It is necessary to go into some detail in regard to the facts giving
rise to this appeal. The appellants have been resident
on the farm
Damascus in Mpumalanga since 1975 and 1980 respectively. Both of them
were previously employed as farm labourers by
the former owner of the
farm. In terms of their arrangement with the previous farm owner each
one of them was allowed to keep forty
head of cattle, two horses and
a few goats. They were allocated 120 hectares of land for grazing
purposes. The farm was subsequently
sold to the first respondent, who
owns a number of farms in the area with licences for the hunting,
capturing and selling of game.
It is common cause that at the time of
the launching of the application which is the subject of this appeal,
there were pending
eviction proceedings in relation to the
appellants’ continued occupation of the farm. It is not clear
from the record as
to when such proceedings were instituted. It is
necessary to mention that in terms of
s 24(1)
of ESTA, the rights of
an occupier shall, subject to the other provisions of that Act, be
binding on a successor in title of an
owner or person in charge of
the land concerned. Furthermore, consent given by the owner or person
in charge of the land concerned
is binding on his or her successor in
title as if he or she or it had given such consent.
[3]
During March 2015, the respondents were granted a permit to keep
buffaloes on the farm on which the appellants resided. The
respondents had complied with the relevant legislation by erecting a
2.4 metre electric fence so as to make the area in which the
buffaloes were kept game-proof. It is evident from the papers that at
some point after the arrival of the buffaloes on the farm,
the
respondents indicated that they wanted to designate a particular
piece of land on the farm as a grazing camp for the appellants’
livestock. According to the appellants, their reluctance towards the
fencing off of the designated area was on account of the fact
that
the area in question was smaller than the 120 hectare that they were
previously allowed to utilise. It is not disputed that
in August
2015, buffaloes were sighted by the appellants close to their
homesteads and were seen grazing among their cattle. This
was
something that had not happened before.
[4]
Concerned by the presence of the buffaloes and believing that the
buffaloes were a danger to their families and their livestock,
the
appellants’ attorneys sent a letter to the respondents’
attorneys complaining about the matter. The letter inter
alia stated
as follows: ‘the introduction of buffalo in violation of
legislation in the area of our clients’ dwellings
is a danger
to clients and their families and their livestock. This prevents our
clients from accessing and exiting their premises.
Most importantly,
the buffalo poses a high level of danger to the children of our
clients. This is considered to be tantamount
to constructive
eviction.’ The appellants considered the presence of the
buffalo as ‘constructive eviction’ that
was aimed at
forcing them off the farm pending the finalisation of the eviction
proceedings. They also regarded the presence of
buffalo among their
cattle in contravention of legislation as a denigration of their
rights to the use of the land in question.
Litigation
History
[5]
Dissatisfied with the respondents’ response to their letter,
the appellants brought an urgent application in the court
a quo
seeking an order that inter alia interdicted the respondents from
unlawfully evicting them without a court order. They further
sought
an order compelling the respondents to remove their buffaloes from
the farm pending an investigation to be conducted by
the third
respondent. A pre-trial conference was held at the instance of the
Judge President of the court a quo and an inspection
in loco was
subsequently held. In their answering affidavit the respondents
denied having constructively evicted the appellants
and contended
that the presence of the buffaloes close to the respondents’
homestead was as a result of the buffaloes’
agitation resulting
from running away from a veld fire. The respondents contended that
the court a quo did not have the jurisdiction
to entertain the
application as the relief sought was based on the provisions of the
Animal Diseases Act 35 of 1984 (the Animal
Diseases Act) and revealed
no cause of action based on eviction.
[6]
The third respondent’s answering affidavit provided some
insight which, in my view, gives proper context to the appellants’
application. It is undisputed that legislation enjoins the owner of
the farm on which buffaloes are kept to fence the buffaloes
off with
‘game-proof fencing’ and requires such owner to bear the
costs for maintaining the fencing. According to a
report filed by the
appellants, an inspection in loco held at the farm revealed that
although the appellants’ homesteads
were fenced off, the fence
in question was inadequate as it was not game-proof.
[7]
The third respondent stated that since the respondents’ permit
was only issued in March 2015, the keeping of buffaloes
on the farm
before that date would have been in contravention of the Animal
Diseases Act and Animal Diseases Regulations
[2]
.
The third respondent further denied the respondents’ averment
that its officials had regularly inspected the farm and found
the
fencing to be adequate. According to the third respondent, the
application submitted by the respondents when applying for a
permit
to keep the buffaloes on the farm did not disclose that there were
cattle on the same farm and this non-disclosure constituted
a
contravention of the applicable legislation. According to the third
respondent, had the presence of cattle been disclosed, the
respondents would have been required to submit a certificate of
adequate enclosure of the land designated for the buffalo so as
to
ensure that they would not graze with the cattle in contravention of
the Animal Diseases Regulations, which provides that ‘no
buffalo may be moved onto the same land where cattle are being kept,
and no cattle may be moved onto the same land where buffalo
are being
kept’
[3]
.
[8]
The court a quo held that although the adjudication of the relief
sought in prayer 3 (constructive eviction) would fall within
its
power as contemplated in s 20 of ESTA, no case had been made out to
substantiate such relief as
‘
there
was no evidence tendered in either founding affidavit or submissions
by Counsel in support of prayer 3’ [constructive
eviction]’.
It, inter alia, found
that the inclusion of the prayer relating to constructive eviction
was ‘opportunistic’ and ‘mischievous’.
The
court a quo further found that it did not have incidental
jurisdiction to adjudicate the other relief sought by the appellants,
as it was based on the Animal Diseases Act. It dismissed the
application with costs. The order of the court a quo relating
to costs was couched as follows:
‘Applicants [appellants] to pay costs, the one paying the other
to be absolved. Costs to include costs of two Counsel.’
[9]
Aggrieved by the court a quo’s costs order, the appellants
approached the same court and applied for leave to appeal against
its
adverse costs order, but they were unsuccessful. Dissatisfied with
the refusal of leave to appeal, the appellants then approached
this
Court on petition as contemplated in s17(2)
(b)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act) on
the basis that the court a quo had erred in granting costs in favour
of the respondents. The appeal is with special leave of this
Court.
In
this Court
The
appellants’ submissions
[10]
The appellants contended that the court a quo had erred in making an
adverse costs order contrary to the practice of the Land
Claims Court
in relation to costs orders, as there were no circumstances that
warranted the making of such an adverse order. They
submitted that
the court a quo’s conclusion that the appellants were
‘opportunistic’ and ‘mischievous’
in bringing
the application was not borne out by the supporting facts. They also
averred that even though the appellants’
legal representation
in the proceedings was state-funded, the burden of the adverse costs
order would pose a financial burden to
the appellants as they risked
losing their capital assets which consisted of meagre livestock.
The
respondents’ submissions
[11]
The respondents argued that the appeal should be dismissed on the
following grounds: that the issues are of such a nature that
the
decision on appeal on costs only, will have no practical effect or
result in terms of
s 16(2)
(a)
of the
Superior Courts Act; that
there are no exceptional circumstances that
warrant the adjudication of this appeal. The respondents acknowledged
that the pursuance
of litigation in the court a quo was based on
statutes intended to address the protection of rights in land and
thus constituted
social interest litigation. They further conceded
the existence of the Land Claims Court’s practice of not
awarding costs
save in exceptional circumstances. They, however,
contended that the Land Claims Court’s general practice of not
making cost
awards ‘was not a right of any litigating party in
that court to no adverse costs order’. They reasoned that the
appellants’
frivolous and vexatious litigation constituted
exceptional circumstances that justified the court a quo’s
deviation from
that established practice.
[12]
The respondents further argued that since the nature of the
litigation brought by the appellants did not fall within the
jurisdiction
of the Land Claims Court, the general costs principle
that ‘costs follow the result’, applicable in the
ordinary courts,
should have been applied. They further averred that
the fact that the court a quo made an adverse costs award, despite
the existence
of the aforesaid practice did not amount to exceptional
circumstances that warranted the adjudication of this appeal, as the
court
a quo’s discretion was exercised judicially.
Counsel
for the respondents also urged us to be mindful of the fact that it
is not open for this Court
to
go against the findings of the court a quo on the merits because the
appeal is directed only at the costs order.
Issues
[13]
This appeal raises the following issues:
(a)
Whether the fact that the order on the merits
is not the subject of the appeal precludes the adjudication of the
appeal in relation
to the costs order.
(b)
Whether there are exceptional circumstances warranting the hearing of
the appeal in terms
of s 16(2)
(a)
of the Superior Courts Act
.
(c)
Whether
the
court a quo’s discretion in relation to the award of costs was
judicially exercised.
Does
the fact that the order in respect of the merits has not been
attacked on appeal preclude this Court from considering an appeal
directed only at costs?
[14]
The short answer to that question is ‘no’. From the
definition, it appears
that
s 16(2)
(a)
of the
Superior Courts Act does
not oblige this Court to dismiss an appeal
directed solely at costs. Rather, it grants this Court a discretion
to decide whether
there are exceptional circumstances that warrant
the hearing of such an appeal.
Significantly,
this Court in
De
Vos v Cooper & Ferreira
[4]
stated
as follows:
‘
Hoe
so ‘n appel teen die kostebevel benader word waar die landdros
se
bevel ten opsigte van die
meriete nie appellerbaar is nie
,
blyk uit die meerderheidsbesslising op hierdie aspek in die
Pretoria
Garrison
[5]
saak op 863, naamlik
‘…
the
merits of the dispute in the Court below must be investigated in
order to decide whether the order as to costs made in that
dispute
was properly made or not. In deciding whether or not the Court below
made the correct order as to costs the reasons which
prompted that
Court to make its order must be examined and those reasons must be
the actual reasons and no others.
If
the actual reasons were in fact a mistaken view of the law or a
mistaken view of the facts and a wrong order as to costs was
made
because of those wrong views, then a Court of Appeal must correct the
order as to costs if that order is appealable.
’’
(My emphasis).
[15]
I am of the view that by parity of reason, the fact that the
order
relating to the merits has not been attacked in this appeal cannot
preclude this Court from considering those facts of the
case that
have a bearing on the award of costs by the court of first instance.
Are
there exceptional circumstances for the adjudication of this appeal
as contemplated in
s 16(2)
(a)
of the
Superior Courts Act?
[16
]
This appeal is directed only against the adverse costs order made by
the court a quo As to whether this appeal should be heard
or not
requires a consideration of the provisions of
s 16(2)
(a)
of
the Superior Courts
Section 16(2)
(a)
provides as follows:
‘
16
(2)
(a)
(i) When at the hearing of an appeal the issues are
of such a nature that the decision sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have
no practical effect or result is to be determined
without reference to any consideration of costs.’
Identical
provisions to the aforesaid section were embodied in
s 21A(1)
and
(3)
[6]
of the Supreme Court Act
59 of 1959 (the Supreme Court Act), which is the predecessor to the
Superior Courts Act.
[17
]
It
is a trite principle of our law that a court considering an order of
costs exercises a discretion.
[7]
Equally trite is the principle that where the costs order sought
includes the costs for the employment of two counsel, here too,
the
court exercises a discretion. The court’s discretion must be
exercised judicially
[8]
. It is
well-established that in the ordinary courts, the general rule is
that ‘costs follow the result’. It is settled
law that
the general practice in the Land Claims Court is not to make award of
costs unless exceptional circumstances justify an
adverse costs
order. It bears emphasising that notwithstanding the aforestated
practice, all courts have an unfettered discretion
in relation to the
award of costs. I will return to this aspect in due course.
[18]
It is trite that a court has a discretion whether to allow the fees
for the employment of more than one counsel. In
Motaung
[9]
the
court quoted the following passage with approval:
‘
The
enquiry in any specific case is whether, in all the circumstances,
the expenses incurred in the employment of more than one
counsel were
“necessary for the proper attainment of justice or for
defending the rights of the parties,” and were
not incurred
through “over-caution, negligence or mistake”. If it was
a wise and reasonable precaution to employ more
than one counsel, the
costs incurred in doing so are allowable as between party and party.
But they are not allowable if such employment
was merely
luxurious.’
[10]
[19]
Factors that are taken into account when considering whether costs
consequent upon the employment of two counsel are justified
includes
the consideration of the ‘complexity of the facts and the
difficult points of law involved’
[11]
in the case, the volume of the evidence dealt with by counsel, the
presence or absence of scientific or technical problems, any
difficulties or obscurities in the relevant legal principles or in
their application to the facts of the case.
[12]
The
respondents maintained that the issue raised did not fall within the
court a quo’s jurisdiction.
In
their answering affidavit the respondents contended that ‘the
concept ‘constructive eviction’ does not exist
in South
African law and any reference thereto is of no value.’
In
my view, the issues raised in this matter were not complex at all and
no technical aspects were raised. I am therefore unable
to find any
justification for the adverse costs order and the order of costs for
the employment of two counsel.
[20]
I
t
is significant to bear in mind what this Court stated in relation to
the determination of the existence of exceptional circumstances
as
contemplated in s 21A(1) and (3) of the Supreme Court Act in
Naylor
& another v Jansen
[13]
.
Cloete JA said:
‘
I
had occasion in
Logistic
Technologies (Pty) Ltd v Coetzee
&
others
[1998 1 ALL SA 377
(SCA) at 1075J – 1076A] to express the view
that
a
failure to exercise a judicial discretion would (at least, usually)
constitute an exceptional circumstance.
I still adhere to that view ─ for, if the position were
otherwise, a litigant adversely affected by a costs order would not
be able to escape the consequences of even the most egregious
misdirection which resulted in the order simply because an appeal
would be concerned only with costs; and that, obviously, cannot be
the effect of the section.’
(Emphasis
added).
[21]
It must be stated from the outset that a disconcerting fact in this
matter is that the court a quo did not, in its judgment,
specifically
address itself to the award of costs consequent upon the employment
of two counsel before mulcting the appellants
with costs. The court a
quo’s only reference to the issue of costs was in the order
itself. In the absence of the court a
quo’s
reasons
for including the costs consequent upon the employment of two
counsel, it is difficult to conclude that the court a quo
exercised
its discretion judicially on the award of costs.
[22]
Where
the exercise of a discretion in relation to the award of cost was not
apparent at all, this Court set the attorney-and-client
costs order
aside
[14]
.
I am of the view that there is no reason why the same approach should
not be followed in respect of a failure to justify an order
for the
employment of two counsel. The costs order made against the
appellants equates to exceptional circumstances justifying
the
hearing of the appeal. The costs order will have a practical effect
on the lives of the appellants, if allowed to stand. It
follows that
I would, for the reasons referred to above, find that there are
exceptional circumstances that warrant the adjudication
of the appeal
directed at the costs order.
[23]
There are, however, other reasons why I conclude that exceptional
circumstances that warrant the hearing of this appeal have
been
established. These are set out below.
This
Court, in
Jazz
Spirit 12 (Pty) Limited v Regional Land Claims Commissioner: Western
Cape
[15]
had occasion to consider the provisions of s 21A(1) and (3) of the
Supreme Court Act. The appeal that served before that court
was
directed only at the fact that the court a quo had not made any costs
order.
On
appeal, t
he
question that occupied the court’s mind was whether the facts
or circumstances of the case constituted ‘exceptional
circumstances’ for purposes of s 21A(3). In answering that
question, this Court cited the following passage from the judgment
of
Thring J
[16]
with approval:-
‘
I
think that, for the purposes of s 5(5)(
a
)(iv)
the phrase ‘exceptional circumstances’ must, both for the
specific reason mentioned by Jones J and by reason of
the more
general consideration adumbrated by Innes ACJ in
Norwich
Union Life Insurance
Society v Dobbs
,
(supra loc cit)
,
be given a narrow rather than a wide interpretation. I conclude to
use the phraseology of Comrie J in
S
v Mohammed
(supra,
loc cit)
, that, to be
exceptional within the meaning of the subparagraph, the circumstances
must be “markedly unusual or specially
different”; and
that, in applying that test, the circumstances must be carefully
examined.’
[24]
Having accepted the aforesaid test as the proper one against which
the facts or circumstances raised by the appellants had
to be
measured, the
court
proceeded
to examine the facts and circumstances of that case. The court
remarked that the ‘exceptional circumstances’
which the
appellants sought to rely on, had to do with the allegedly
unacceptable manner in which the respondents conducted the
litigation
which, they submitted, contributed to its length and costs. The court
stated that ‘the mere fact that the costs
are considerable in
the present case and other factors called in aid do not in themselves
constitute exceptional circumstances
justifying the hearing of the
appeal.’
[17]
This Court therefore dismissed the appeal.
[25]
Even though I support the test that was endorsed in
Jazz
Spirit,
which was recently confirmed by this Court in
Mgwenya
NO & others v Kruger & another,
[18]
the facts and circumstances of the present case are distinguishable
from those in
Jazz
Spirit.
This
is evident from a passage in the same judgment, where Bosielo JA
aptly remarked as follows:-
‘
It
is crucial for the promotion and maintenance of the rule of law that
parties who approach the courts to resolve their land disputes
should
not be mulcted with costs
,
particularly where there are no allegations of wilfulness or
vexatiousness as is in this case. Undoubtedly s 6 of the Restitution
Act places an onerous duty on the office of the Land Claims
Commission to take all reasonable steps to ensure that claims that
are lodged are well investigated and properly prepared . . .
In
addition, it has as its rationale the fact that many of the people
dispossessed of land have also been systematically disadvantaged
in
many other ways and may well be unlikely to be in a position to fund
any adverse costs order.
Such
people might be dissuaded from pursuing the very rights provided for
in the Restitution Act if costs orders were made in the
ordinary
course.
If
this was their response, it would defeat the very object of the
Restitution Act. This is, perhaps, an additional reason for the
exceptional circumstances envisaged in s 21A (3) to be required to
meet an even higher standard in matters concerning costs arising
from
the Restitution Act.’
[19]
(Emphasis
added).
These
remarks are equally apposite in relation to ESTA.
[26]
What is clear from the afore-going passage is that Bosielo JA was
acutely
aware
of the practice of the Land Claims Court in terms of which that court
does not make costs orders ‘in the ordinary course’.
He
was also alive to the rationale for that practice. In that matter the
appeal was directed at the fact that the Land Claims Court
had made
no order as to costs. The Land Claims Court’s practice of not
making costs orders ‘in the ordinary course’
was not in
dispute. That is the background against which this Court’s
finding that there were no exceptional circumstances
warranting the
hearing of the appeal was made. In the present case, the appeal is
directed at an adverse order of costs which includes
the costs for
the employment of two counsel without any demonstrable consideration
of whether such an order was appropriate in
the circumstances.
[27]
The practice of not making an order for costs ‘in the ordinary
course’ in the Land Claims Court has been extant
for a number
of years. The rationale for such a practice was explained by
Dodson
J in the following terms:-
‘
The
Act [ESTA] was passed specifically to deal with the legitimate
demands for remedial action to deal with past, large-scale breaches
of the human rights of a class of rural, black people. In my view,
that places this matter squarely in the sphere of public interest
litigation, notwithstanding that the parties to litigation under the
Act will usually be private persons.’
[20]
[28]
The established practice of the Land Claims Court in relation to
costs orders was acknowledged by Harms JA in
Haakdoornbult
Boerdery CC & others v Mphela & others
in
the following terms:-
[21]
‘
The
LCC [Land Claims Court] ordered the participating owners to pay the
costs of the proceedings. For this the LCC relied on what
it
perceived to be a new principle laid down by the Constitutional Court
in
Richtersveld
[2003] ZACC 18
;
[2004 (5) SA
460
CC] and it decided to disregard its own practice of not
ordering costs in land claim cases in the absence of special
circumstances.
’
(Emphasis added).
[29]
Another
reason why this case is distinguishable from
Jazz
Spirit
is
the nature of the litigation and the ‘chilling effect’
that an adverse costs order could have in the future if same
w not to
be set aside.
In
Hotz &
others v University of Cape Town
[22]
the Constitutional C
ourt
stated that the starting point when determining an award of costs is
to have regard to the
nature
of the issues. To this end the court emphasised that what is to be
taken into account is the ‘nature of the issues’
rather
than the ‘characterisation of the parties’. It is thus
important for issues to be seen in their proper context.
[30]
In
Biowatch
Trust v Registrar, Genetic Resources, & others
[23]
,
the court, per Sachs J, set out three reasons for the departure from
the general principle that costs follow the result:
‘
In
the first place it diminishes the chilling effect that adverse costs
orders would have on parties seeking to assert constitutional
rights.
Constitutional litigation frequently goes through many courts and the
costs involved can be high. Meritorious claims might
not be proceeded
with because of a fear that failure could lead to financially ruinous
consequences. Similarly, people might be
deterred from pursuing
constitutional claims because of a concern that even if they succeed
they will be deprived of their costs
because of some inadvertent
procedural or technical lapse’
Secondly,
constitutional litigation,
whatever
the outcome,
might
ordinarily bear not only on the interests of the particular litigants
involved, but also on the rights of all those
in
similar situations. Indeed,
each constitutional case that is heard enriches the general body of
constitutional jurisprudence and
adds texture to what it means to be
living in a constitutional democracy. Thirdly, it is the State that
bears primary responsibility
for ensuring that both the law and State
conduct are consistent with the Constitution. If there should be a
genuine, non-frivolous
challenge to the constitutionality of a law or
of State conduct, it is appropriate that the State should bear the
costs if the
challenge is good, but if it is not, then the losing
non-State litigant should be shielded from the costs consequences of
failure.
In this way responsibility for ensuring that the law and
State conduct are constitutional is placed at the correct door.’
[24]
(My emphasis).
[31]
ESTA is an Act of Parliament envisaged in s 25(6)
[25]
of the Constitution to improve security of tenure for those whose
tenure of land is insecure.
ESTA
was also enacted to give effect to s 26(3)
[26]
of the Constitution. The vulnerability of the persons that ESTA is
intended to protect is expressly acknowledged in the preamble
of that
statute. It states that ‘many South Africans do not have secure
tenure of their homes and the land which they use
and are therefore
vulnerable to unfair eviction’.
In
the present matter, the appellants approached the Land Claims Court
to vindicate a right envisaged in ESTA. Section 6(1) of ESTA
is
intended to address the
tenuous
position in which ESTA occupiers often find themselves. It
provides
that an occupier shall have the right to reside on and use the land
on which he or she resides and which he or she uses.
[32]
The
conduct of the appellants, as heads of their households, in seeking
to protect the families who included women and children
against what
they deemed to be constructive eviction must be considered in the
light of s 5 of ESTA, which guarantees farm dwellers
the right to
freedom and security of the person with due regard to the objects of
ESTA. The following remarks made by Sachs J in
Port
Elizabeth Municipality v Various Occupiers
,
[27]
in relation to s 26(3) of the Constitution are apposite:
‘…
a
home is more than just a shelter from the elements. It is a zone of
personal intimacy and family security. Often, it will be the
only
relatively secure space of privacy and tranquillity in what (for poor
people, in particular) is a turbulent and hostile world’.
[28]
[33]
While
acknowledging that all courts have an unfettered discretion in
relation to the award of costs, I am of the view that the practice
of
the Land Claims Court regarding cost awards is one of the factors
that must be taken into account in assessing whether the court
a
quo’s discretion was judicially exercised. The rationale for
that practice is a very relevant factor. It is undisputable
that
farm-dwellers are among the poorest South Africans.
[34]
As far back as in 2001, the Land Claims Court in
Nkuzi
Development Association v Government of the Republic of South
Africa & another
[29]
recognised
their plight by declaring, inter alia, that persons who have a right
of security of tenure in terms of ESTA and the Land
Reform (Labour
Tenants) Act 3 of 1996 have a right to legal representation or legal
aid at state expense if substantial injustice
would otherwise result,
provided that such state-funded representation need not be granted
where there is no reasonable or probable
cause. The following remarks
still ring true today:
‘
However,
a very large number of the people for whose benefit the Labour
Tenants Act and ESTA were enacted, do not enjoy that entitlement
when
their rights are infringed or threatened with infringement. This is
so because they are overwhelmingly poor and vulnerable
people with
little or no formal education. When their tenure security is
threatened or infringed, they do not understand the documents
initiating action or the processes to follow in order to defend their
rights. On the other hand they cannot afford the fees for
a lawyer to
represent them because of their poverty. As a result they are quite
often unable to defend or enforce their rights
and their entitlement
under the Constitution, the Labour Tenants Act and ESTA.’
[30]
[35]
Given the sentiments expressed above, which I align myself with, it
seems to me to be a contradiction to grant farm-dwellers
state-funded
legal representation in consideration of the aforementioned
principles, only to mulct them with costs later when they
are
unsuccessful in such litigation.
[36]
Of significance is the fact that the Land Claims Court was
established in terms of s 22 of the Restitution of
Land
Rights Act 22 of 1994 (Land Restitution Act). Section 33 of that Act
enjoins the court to have regard to ‘the requirements
of equity
and justice’ in considering its decisions. The importance of
the phrase ‘just and equitable’ was considered
in the
decision of the Constitutional Court in
Port
Elizabeth Municipality,
albeit
in relation to the provisions of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
The court
stated that the phrase makes it plain that the criteria to be applied
are not purely of a technical kind that flow ordinarily
from the
provisions of land law. Sachs J aptly remarked that:
‘
The
emphasis on justice and equity underlines the central philosophical
and strategic objective of PIE. Rather than envisage
the
foundational values of the rule of law and the achievement of
equality as being distinct from and in tension with each other,
PIE
treats these values as interactive, complementary and mutually
reinforcing. . . .
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable
principles of an ongoing, stressful and law-governed social
process
.’
[31]
(Emphasis added.)
[37]
It was stated in
Lawyers
for Human Rights v Minister in the Presidency & others
[32]
that the well-established test when considering whether to award a
costs order against a private party in a constitutional litigation
is
whether the litigation in question was frivolous, vexatious or
manifestly inappropriate. The court stated that ‘to be
subject
to an adverse costs order, the litigant’s conduct must be
worthy of censure.’ In this matter, it is of
significance
that the appellants had tried to avoid litigating by sending a letter
to the respondents’ attorneys and also
to the third respondent.
That letter was sent before the main eviction application was
enrolled. The letter was evidently sent
soon after the buffaloes were
sighted close to the appellants’ homesteads, which is
undisputed. Litigation was initiated
soon thereafter. Unlike in the
case of
Lawyers
for Human Rights,
in
this matter it cannot be reasonably concluded that there was an
unreasonable delay in launching the application. In my view,
the
appellants’ characterisation of their dispute as constructive
eviction was clearly in the genuine belief that the presence
of
buffaloes near their homesteads posed danger to them and their
livestock. Even though the appellants might have been mistaken
in
that belief, it cannot be said that their litigation was ‘frivolous’
or ‘vexatious’. I strongly doubt
that the Judge President
of the Land Claims Court would have allowed the adjournment of the
pre-trial for purposes of an inspection
in loco, for litigation that
was clearly ‘frivolous’ or ‘vexatious’.
[38]
Of some significance is also the fact that the court a quo, in its
consideration of whether the requirement of irreparable
harm had been
met, that the requirement might have been met if the buffalo had
actually entered the appellants’ home. That
statement suggests
to me that that even though the court a quo eventually found that the
requirements of an interdict had not been
met, the litigation could
not be characterised as ‘manifestly inappropriate’. It is
also clear from the appellants’
affidavits that they
consistently averred that they had been constructively evicted on
account of the recent sighting of the buffaloes
near their
homesteads. Their counsel also argued that the threat posed by the
buffaloes was the motivation for the appellants’
conclusion
that the introduction of the buffaloes into the area of the
appellants’ homesteads constituted an attempted constructive
eviction. The court a quo’s conclusion that the appellants had
not provided any evidence or arguments in support of constructive
eviction is not borne out by the record.
[39]
Although an award of costs should not be determined on the basis of
the financial resources of the litigants,
[33]
the well-documented
vulnerability
[34]
of
the farmworkers to arbitrary evictions, their express protection in
terms of ESTA and the chilling effect that an adverse costs
order
might have are some of the circumstances that the court a quo ought
to have taken into account, but these were evidently
not sufficiently
interrogated when mulcting the appellants with costs coupled with an
order of costs for the employment of two
counsel. Mulcting vulnerable
litigants who invoke ESTA with costs for vindicating their rights by
seeking relief for what they considered to be constructive
eviction
[35]
flies in the face of the values expressed in the aforementioned
authorities. The court a quo’s glaring failure to address
itself squarely to principles of equity and justice
[36]
alluded to in the aforementioned authorities before mulcting the
appellants with costs is an egregious injustice that cannot be
countenanced. In my view, a refusal to entertain this appeal on the
grounds set out in s 16(2)
(a)
of the
Superior Courts Act in
the present circumstances will amount
to a perpetuation of a grave injustice and will be tantamount to
paying lip service to the
spirit and purport of our Constitution.
[37]
[40]
For all the reasons alluded to above, I would find that the
circumstances of this case fall within the meaning of ‘markedly
unusual or specially different’ circumstances and constitute
exceptional circumstances that justify the adjudication of this
appeal on costs.
Was
the court a quo’s discretion in relation to the award of costs
judicially exercised?
[41]
The
question is whether the court a quo judicially exercised its
discretion in awarding cost, bearing in mind the Land Claims Court’s
approach to costs awards.
In
Norwich
Union Fire Insurance Society Ltd v Tutt
,
[38]
Holmes AJA said in relation to the determination of an award of
costs:-
‘
.
. . [T]he basic principle is that the Court has a discretion, to be
exercised judicially upon a consideration of the facts of
each case,
and in essence it is a question of fairness to both sides.’
[42]
A consideration as to whether the court a quo’s discretion was
judicially exercised warrants a cautious approach. In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and another
,
[39]
the Constitutional Court, per Khampepe, J stated as follows:-
‘
When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere
unless it is satisfied that this discretion was not exercised—
“
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles”’.
[43]
It follows that if a court of appeal is satisfied, after considering
all the facts and circumstances that have a bearing on
the award of
costs, that the lower court did not exercise its discretion
judicially, it is at large to interfere with the costs
award. This
would be so if the court has exercised the discretionary power
‘capriciously, was moved by a wrong principle
of law or an
incorrect appreciation of the facts . . . .’
[40]
[44]
The Constitutional Court has consistently sketched out the factors to
be taken into account when determining an award of costs.
The
applicable principles to a cost award have already been discussed
earlier in the judgment and need not be repeated here. A
further
consideration is the approach followed by the Land Claims Court in
respect of cost awards. As stated before, t
he
practice of the Land Claims Court of not ordering costs is not
disputed.
It
is of significance that in
Hlatshwayo
& others v Hein
[41]
the Land Claims Court made no order of costs despite having found
that that court did not have jurisdiction to entertain the appeal.
[45]
I
pause to mention that the concept of constructive eviction is not
foreign in the Land Claims Court, especially when regard is
paid to
the definition of eviction in the Land Reform (Labour Tenants) and
the ESTA. The appellants in
Molusi
had,
under slightly different circumstances, successfully brought an
urgent application relying on allegations of constructive eviction
on
the basis that the respondents had removed corrugated iron roofing
from the rooms occupied by them. The Land Claims Court apparently
ordered the respondents to rebuild the demolished structures with
immediate effect.
[46]
Although the appellants were unsuccessful with their claim in
relation to constructive eviction, among others, (and did not
appeal
against that court’s findings), that does not detract from the
nature of the issues that were raised and debated in
the court a
quo. Therefore it does not preclude this Court from considering
the nature of the litigation brought to the Land
Claims Court.
Eviction’ includes the deprivation of a right of occupation or
use of land’.
[42]
There
is no basis for concluding that the issue raised by the appellants
pertaining to the constructive eviction was not of genuine
constitutional import. The court a quo’s conclusion that
the appellants were ‘opportunistic’ and ‘mischievous’
is not supported by the evidence and therefore has no basis. The
contention that the appellants’ reliance on constructive
eviction was frivolous or vexatious has no merit.
[47]
In
Biowatch
[43]
the
court pointed out the dangers of making adverse costs orders in
constitutional litigation in the following terms: ‘…[m]eritorious
claims might not be proceeded with because of a fear that failure
could lead to financially ruinous consequences.’ The appellants
are unemployed persons who have lived on the farm for the better part
of their lives. They are seemingly dependent on subsistence
farming
based on the paltry amount of livestock they are allowed to keep on
the farm. They are the male heads of large families
and are unlikely
to obtain employment on account of their relatively advanced age.
They are laypersons who probably do not know
anything about the
jurisdiction of courts. They obviously depended on legal advice for
the initiation of litigation and the choice
of forum. If the
respondents are indeed correct that the dispute raised by the
appellants ought to be raised in the ordinary courts
and not in the
Land Claims Court, the question that comes to mind is whether the
appellants were effectively represented
[44]
in those proceedings. In the event that the answer is in the
negative, the logical question is why the vulnerable appellants
should
be penalised for the fact that their application was launched
in the wrong court.
[48]
There are many other vulnerable farm-dwellers who are in the same
position as the appellants. I have no doubt in my mind that
seeing
the appellants lose their livestock in satisfaction of the award of
costs granted by the court a quo will definitely have
a chilling
effect on vulnerable people whom ESTA is intended to protect. They
could indeed be discouraged from pursuing meritorious
claims for fear
of detrimental cost awards. This would fly in the face of the very
purpose for which ESTA was enacted, as espoused
in its preamble.
[49]
Considering all the aforesaid provisions, I am left with the
impression that the court a quo did not take into consideration
that
the Land Claims Court is a court determining social interests, as a
result of which adverse costs orders are made only in
exceptional
circumstances. An adverse order of costs made against the appellants
who are unemployed and who are unlikely to find
employment because of
their relatively advanced ages. The financial ruin to them and
their families as such costs can only
be satisfied from their paltry
and meagre assets, which are their livestock. Considering all the
circumstances, the impact of an
adverse order of costs with inclusion
of costs of employment of two counsel can only be disastrous for the
appellants. For all
the aforementioned reasons, I am of the view that
the court a quo did err in not pertinently considering all the
relevant factors
which require consideration when an award of costs
is made. I therefore conclude that the adverse costs order made could
not reasonably
have been made by a court properly directing itself to
all the aforesaid relevant facts and principles and does not evince a
judicial
exercise of the discretion in respect of costs. It follows
that the appeal must succeed.
[50]
With regards to the costs of appeal, I align myself with the remarks
of Harms DP in
Haakdoornbult
[45]
where he said: ‘I believe that the time has come to be
consistent and to hold that in cases such as this there should not
be
any costs orders on appeal absent special circumstances.’ I am
of the view that the requirements of equity and justice
as envisaged
in the Land Restitution Act dictate that no order should be made as
to costs on appeal.
[51]
I would therefore uphold the appeal.
____________________
M
B Molemela
Acting
Judge of Appeal
Tshiqi
JA (Swain and Mathopo JJA concurring):
[52]
This appeal arises from an order of the Land Claims Court (LCC) in
terms of which it dismissed an urgent application brought
by the
appellants against the respondents, with costs of two counsel. It
found that it lacked urgency and that it had no jurisdiction
to
determine the matter. There is no appeal against the order on the
merits. Consequently the LCC’s factual findings and
its basis
for finding that it had no jurisdiction to determine the application
cannot be adjudicated in this appeal. The appeal
is confined to the
costs order. The first appellant (Mr Gweje Khumalo) aged 57, and the
second appellant (Mr July Magubane) aged
60, hereinafter referred to
as the appellants, are unemployed males who are residents at a farm
known as Damascus 125, Registration
Division HT, Mpumalanga (the
farm) together with their families.
It is common cause that the appellants are occupiers in the farm as
contemplated in the Extension of Security of Tenure Act 62
of 1997
(ESTA).
The farm was operated and managed by the second respondent, Wetlands
Country Retreat (Pty) Ltd, which together with the first respondent,
Twin City Developers (Pty) Ltd, were licenced to keep various species
of game on the farm, including buffalo. The appellants kept
their own
livestock on the farm in terms of an agreement concluded between them
and the previous owner of the farm. The third and
fourth respondents
elected to abide the decision of this court.
[53]
On 14 August 2015 the appellants, through their attorneys, wrote a
letter to the respondents’ attorneys complaining about
the
presence of the buffalo in the farm and stating, amongst others, that
they considered the presence of the buffalo to be tantamount
to
‘constructive eviction’. They also threatened to initiate
legal proceedings against the respondents if the buffalo
were not
removed from the farm by a certain date. In response, the
respondents’ attorneys denied the allegations concerning
constructive eviction and said the following concerning the
threatened legal action:
‘
Our
client has instructed us to inform your offices that you can proceed
to initiate legal proceedings but we will reserve our rights
in the
matter as your clients are funded by the Department of Rural
Development and Land Reform and our client is the one who is
paying
all of his legal costs out of his own pocket.
.
. . .
This
matter is going to Court shortly for the main application to be heard
and you are welcome to combine the two matters on the
same day at
Court as there will be no delay of the main application in this
matter.’
[54]
It is common cause that the main application referred to was an
eviction application by the respondents against the appellants
that
was already pending at the LCC. On 10 November 2015 the appellants,
launched an urgent application in the LCC for an order
interdicting
the respondents from unlawfully evicting them and their family
members from the farm without a court order; that the
respondents be
ordered to remove the buffalo from the farm; and for the third
respondent – the director of animal health
in the Department of
Agriculture, Forestry and Fisheries – to be ordered to
investigate whether the respondents had a permit
to keep the buffalo
on the farm and if so whether there was compliance with it.
The appellants alleged that the court had jurisdiction to entertain
the matter in terms of s 20 of ESTA.
[55]
The matter came before Mpshe AJ who found that the urgent application
had been launched ‘almost three months after establishing
[the]
danger on the farm’. On this basis he concluded that the
application lacked urgency.
He said:
‘
There
is no fibre of evidence that disease has since been found to be
spreading, nor possible spread thereof, neither is there any
tissue
of evidence that either the Applicants [appellants] and/or children
were at a certain stage challenged or attacked by the
buffalo . . .’
He
then said that it was ‘opportunistic’ for the appellants
to include this prayer ‘knowing fully well that their
eviction
was pending’ before the court and that this was ‘mischievous’
and ‘frowned upon’. The judge
stated further that ‘[i]t
is not the mere naming of the issue . . . that will cloth[e] the
court with jurisdiction’
and concluded that the LCC, as a
specialist court, was limited to its enabling statute and did not
have jurisdiction to deal with
the application. In the result, he
dismissed the appeal with costs of two counsel.
[56]
As stated above, the appellants are not challenging any of the
findings and conclusions of the court that the application was
opportunistic and mischievous. There is also no challenge to the
court’s finding that the LCC did not have jurisdiction to
entertain the application. The appeal is confined to a consideration
of the costs order.
[57]
It is trite that a court of first instance has discretion to
determine the costs to be awarded and that a court of appeal can
only
interfere with the exercise of that discretion if it has not been
exercised judiciously or was influenced by wrong principles
or a
misdirection on the facts.
[46]
The jurisdiction of this court is guided by amongst others s 16(2)
(a)
of the
Superior Courts Act 10 of 2013
which reads:
‘
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result,
the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any
consideration of costs
.’
(My emphasis.)
[58]
In
Mgwenya
NO & others v Kruger & another
,
[47]
the first respondent, an ordained pastor in the services of the
Apostolic Faith Mission Church of South Africa, whose pastoral
status
was terminated by the Church passed away before the hearing of the
appeal. In view of the demise of the first respondent,
the appellants
conceded that there were no live issues remaining between the parties
and that the appeal and any order made thereon
would have no
practical effect or result. The appellants however contended that the
church would be saddled with the costs orders
made in favour of the
first respondent and this would be most ‘unfair’ to the
church. Not persuaded that these were
exceptional circumstances, the
court said the following in para 8:
‘
In
MV Ais Mamas Seatrans
Maritime v Owners, MV Ais Mamas & another
2002
(6) SA 150
(C), Thring J conducted a comprehensive inquiry as to the
meaning of “exceptional circumstances” in our case law.
The
conclusion reached at 156H-J, with which I am in agreement, is
that “[w]hat is ordinarily contemplated by the words
‘exceptional
circumstances’ is something out of the
ordinary and of an unusual nature; something which is excepted in the
sense that the
general rule does not apply to it; something uncommon,
rare or different . . .”
“
Moreover,
when a statute directs that a fixed rule shall only be departed from
under exceptional circumstances, the Court, one would
think, will
best give effect to the intention of the Legislature by taking a
strict rather than a liberal view of applications
for exemption, and
by carefully examining any special circumstances relied upon.”’
[59]
In this matter Counsel for the appellant conceded that the appeal and
any order concerning costs will have no practical effect.
However he
submitted that the following factors constitute exceptional
circumstances which justify the consideration of costs only:
a)
The fact
that the LCC deviated from the established practice in the LCC of not
ordering costs in land claim cases in the absence
of special
circumstances.
b)
That the
costs order did not take into account the fact that the appellants
are rural persons who have not accumulated any wealth,
and face the
risk of losing any capital assets they may possess if burdened with a
cots order.
[60]
As to the first submission, it is common practice that the LCC has
consistently refrained from awarding costs in appropriate
matters,
unless special circumstances exist.
[48]
This is a salutary practice which has been endorsed by this
court.
[49]
The
practice adopted at the LCC is influenced primarily by the fact that
matters that fall within the jurisdiction of that court
stem from
social interest litigation. This matter is however different from the
other matters in that although the appellants claimed
that the court
had jurisdiction to entertain it in terms of ESTA, the court found
that the application was ‘
opportunistic’,
‘mischievous’ and that it did not fall within its
jurisdiction. It also said that the mere allegation
that it had
jurisdiction was insufficient to qualify the matter as such. There
was no
appeal
against the court’s finding on this issue. There was also no
appeal against the factual findings of the court that
there was no
merit to allegations of the threat of diseases to the appellant’s
livestock, and the alleged danger posed by
the buffalo to the
appellants and their families. It concluded that the application was
not urgent and that no case was made for
constructive eviction. In
the absence of an appeal against all these findings, it is
impermissible for the appellant to rely
on these allegations to
justify its appeal on a consideration of costs only.
Put differently, in instances where an appellant has elected not to
appeal against the merits and the factual findings of a lower
court,
an appeal court is not at liberty to interrogate the correctness
thereof.
[61]
This then takes me to the second submission: that the award of costs
should be set aside simply on the basis that the appellants
are
indigent and that they were acting in the best interests of their
families. This ground also lacks merit. As stated above,
the court
was not persuaded that the appellants were acting in the interests of
their families. Instead the court said that there
was no substance to
the allegations concerning the spread of disease[s] and that the
buffalo posed any danger to the families.
Regarding their
socio-economic status, it is trite that an award of costs is not
based solely on the socio-economic status of a
particular litigant
but rather on the nature of the matter.
[50]
To illustrate the fallacy in the appellant’s argument, if the
application had been brought in a court with competent jurisdiction,
the general rule that costs follow the result would probably have
been applied and the appellants would probably not raise the
issues
being raised before us. Moreover,
s 18
(b)
of ESTA provides that ‘[a] court may, in addition to other
powers set out in this Act . . . make such orders for costs as
it
deems just.’
Nothing
therefore prevents the LCC, in the event of an abuse of the court’s
process, as it held was the case in this matter,
from expressing its
displeasure through an award of costs against the offending litigant.
It thus cannot be said that the court
was influenced by wrong
principles or a misdirection on the facts, nor
that
it did not exercise its discretion
judicially.
[51]
[62]
For all those reasons there are no exceptional circumstances
justifying this court to have regard only to the consideration
of
costs. The appeal must therefore fail. With regard to the costs of
the appeal, there is no basis for deviating from the general
rule
that the appellants, as the unsuccessful parties, should bear the
costs of the appeal. The appellants were aware of the provisions
of
s
16(2)
(a)
of the
Superior Courts Act and
the
sentiments
expressed by the LCC concerning what it perceived to be an abuse of
that court’s process. They nevertheless persisted
with the
appeal.
[63]
The conclusion by this court should not be construed to mean that
this court does not endorse the salutary practice of not
awarding
costs in appropriate matters. As stated above, this matter is
different because the LCC found the application to be an
abuse of the
court’s process and these findings were no appealed against.
The conclusion should also not be construed to
mean that this court
has closed its eyes to the fact that the appellants are part of a
disadvantaged group of society, for which
the Land Reform legislation
was promulgated; and the reality that litigation such as this one is
mainly funded by the public purse.
But, as Counsel for the respondent
correctly submitted, the respondents have been dragged to court, at
their own expense, to face
what the LCC held was an application that
had to be frowned upon.
[64]
I make the following order:
The
appeal is dismissed with costs.
________________
Z L L Tshiqi
Judge
of Appeal
APPEARANCES
For
the Appellants:
D Whittington
Instructed
by:
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
Symington
& De Kok Attorneys,
Bloemfontein
[1]
In terms of
s 1
of ESTA, an occupier
is a person residing on land which belongs to another and who has on
or before 1997 had consent or another
right in law that entitles him
or her to occupy the property. The status of the appellants as
occupiers is undisputed.
[2]
Animal Diseases Regulations:
Amendment GN R865, GG 38159, 7 November 2014.
[3]
Ibid regulation 20(8).
[4]
De Vos v Cooper & Ferreira
1999 (4) SA 1290
(SCA) at 1302A.
[5]
Pretoria Garrison Institutes v
Danish Variety Products (Pty) Limited
1948
(1) SA 839
(A) at 863-864.
[6]
Section
21A of the Supreme Court Act stipulated as follows:
‘
(1)
When at the hearing of any civil appeal to the Appellate Division or
any Provincial or Local Division of the Supreme Court
the issues are
of such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be
dismissed on this
ground alone.’
‘
(3)
Save under exceptional circumstances, the question whether the
judgment or order would have no practical effect or result,
is to be
determined without reference to considerations of costs.’
[7]
Ferreira v Levin NO & others
;
Vryenhoek & others v
Powell NO & others
1996
(2) SA 621
(CC);
1996 (4) BCLR 441
;
[1996] ZACC 27.
[8]
Motaung v Mukubela & another,
NNO
;
Motaung
v Mothiba, NO
1975 (1) SA
618
(O) at 631A.
[9]
Supra at 631A.
[10]
Koekemoer v Parity Insurance
Company Ltd & another
1964 (4) SA 138
(T) at 144F-145.
[11]
Law & others v Kin &
another
1966 (3) SA 480
(W) at 483F-G.
[12]
Supra
Koekemoer
at 144H.
[13]
Naylor
& another v Jansen
2007 (1) SA 16
(SCA) (31 August 2006) para 10.
[14]
Motowest
Bikes & ATVS v Clavern Financial Services 2013 JDR 2734 (SCA)
;
(138/13)
[2013] ZASCA 196
(2 December 2013) para 13.
[15]
Jazz Spirit 12 (Pty) Limited v
Regional Land Claims Commissioner: Western Cape
2014
JDR 1897 (SCA); (704/2013)
[2014] ZASCA 127
(22 September 2014) para
27.
[16]
MV
AIS
MAMAS Seatrans Maritime v Owners,
MV
AIS
MAMAS, & another
2002
(6) SA 150
(C) at 157E-F.
[17]
Jazz Spirit
fn 16 para 24.
[18]
Mgwenya NO & others v Kruger &
another
(1060/16)
[2017]
ZASCA 102
(6 September 2017).
[19]
Jazz Spirit
fn 16 para 27.
[20]
Hlatshwayo & others v
Hein
1999 (2) SA 834
(LCC)
para 24; 1998 (1) BCLR 123 (LCC).
[21]
Haakdoornbult Boerdery CC
v
Mphela & others
2007
(5) SA 596
(SCA) para 75.
[22]
Hotz & others v University of
Cape Town
[2017] ZACC 10
;
2017 (7) BCLR 815
(CC) para 29.
[23]
Biowatch Trust v Registrar,
Genetic Resources, & others
[2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 10 BCLR 1014 (CC).
[24]
Supra para 23.
[25]
Section 25(6) of the Constitution
provides: ‘A person or community whose tenure of land is
legally insecure as a result
of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of
Parliament, either to tenure
which is legally secure or to
comparable redress.’
[26]
Section 26(3) of the Constitution
provides that: ‘No one may be evicted from their home, or have
their home demolished,
without an order of court made after
considering all the relevant circumstances. No legislation may
permit arbitrary evictions.’
[27]
Port Elizabeth Municipality v
Various Occupiers
2005 (1)
SA 217 (CC).
[28]
Supra para 17.
[29]
Nkuzi
Development Association v Government of the Republic of South Africa
& another
(LCC10/01)
[2001] ZALCC 31
(6 July 2001).
[30]
Supra para 4.
[31]
In
Molusi
& others v Voges NO & others
[2016] ZACC 6
;
2016 (3) SA 370
(CC) para 31 - the court referred to
this extract and found Sachs J’s remarks to be equally
apposite in relation to the
provisions of ESTA.
[32]
Lawyers for Human Rights v
Minister in the Presidency & others
2017 (1) SA 645
CC para 7.
[33]
Hotz
fn
23 para 29.
[34]
See para 31 at 15 and the preamble to
ESTA that ‘unfair evictions lead to great hardship, conflict
and social instability’.
[35]
‘
Constructive eviction’
in relation to ESTA seems to be a phrase used to describe a
situation where a farm owner deliberately
makes the conditions
intolerable for continued occupation or use of his or her farmland
with a view to inducing the occupier
to vacate the said farmland. It
is noted in fn 12 of
Molusi
that the applicants in
that matter had previously ‘successfully approached the Land
Claims Court . . . on an urgent basis
as a result of allegations of
constructive eviction of the applicants when the respondents removed
corrugated iron roofs from
the rooms occupied by them.’
[36]
Hotz fn 23
para
40.
[37]
Constitution of the Republic of South
Africa Act 108 of 1996.
[38]
Norwich Union Fire Insurance
Society Ltd v Tutt
1960
(4) SA 851
(A) at 854D.
[39]
Trencon Construction
(Pty) Limited v Industrial Development Corporation of South Africa
Ltd & another
[2015]
ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) para 88.
[40]
Ferris & another v First Rand
Bank Ltd
[2013] ZACC 46
;
2014 (3) SA 39
(CC) paras 28 and 29.
[41]
Hlatshwayo
fn
21 para 24.
[42]
Section 1 of ESTA.
[43]
Biowatch
fn 24 para 23.
[44]
It is noteworthy that s 4
(6)
of ESTA enjoins the court to take this aspect into consideration,
albeit in different circumstances.
[45]
Haakdoornbult
fn
12 para
76.
[46]
National Coalition for Gay and
Lesbian Equality & others v Minister of Home Affairs &
others
2000
(2) SA 1
(CC) para 11.
[47]
Mgwenya NO & others v Kruger &
another
ZASCA 102
unreported case no 1060/16 of 6 September 2017.
[48]
Pannar Research Farms (Pty) Ltd &
another v Kebatladitse Cornelius Magome & another
(LCC) unreported case no 17/02 of 17 July 2002 para 5.
[49]
See
Haakdoornbult
Boedery CC and others v Mphela and others
2007 (5) SA 596
(SCA) at 618A-D).
[50]
See
Hotz
& others v University of Cape Town
2017 (7) BCLR 815
(CC) para 35.
[51]
National Coalition for Gay and
Lesbian Equality
supra fn
1 para 11. See also
Naylor
& another v Jansen
2007
(1) SA 16
(SCA) para 14
and the authorities referred to therein.