Brown v Mbhense and Another (119/07) [2008] ZASCA 57; [2008] 4 All SA 26 (SCA); 2008 (5) SA 489 (SCA) (28 May 2008)

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[2008] ZASCA 57
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Brown v Mbhense and Another (119/07) [2008] ZASCA 57; [2008] 4 All SA 26 (SCA); 2008 (5) SA 489 (SCA) (28 May 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 119/07
Reportable
In the matter between:
HEDLEY JAMES BROWN
...
Appellant
and
DANO AGNES MBHENSE
...
First Respondent
DEPARTMENT OF LAND AFFAIRS
...
Second Respondent
Coram
:
Scott,
Mthiyane, Nugent, Van Heerden et Maya JJA
Heard:
10 March 2008
Delivered:
28 May 2008
Summary: Land
Reform (Labour Tenants) Act 3 of 1996 – action in terms of s 33(2A)
– definition of ‘labour tenant’ – requirements
for proof of
Neutral
citation: This judgment may be referred to as
Brown
v Mbhense
(119/07)
[2008] ZASCA 57 (28
May 2008)
JUDGMENT
VAN HEERDEN JA:
Introduction
[1] This appeal concerns an illiterate 67-year-old woman
(the first respondent before us, but henceforth referred to as the
plaintiff),
who sought an order in the Land Claims Court declaring
her to be a ‘labour tenant’, as contemplated by the Land Reform
(Labour
Tenants) Act 3 of 1996 (the Act). The action, which was
brought in terms of s 33(2A) of the Act, was opposed by the
appellant
(defendant), the present owner of the farm in question. The
second respondent (Department of Land Affairs) did not oppose the
action
and abided the decision of the court. The plaintiff’s claim
succeeded in the court a quo (Meer J), sitting in Durban. The
appeal comes before us with leave granted by the court a quo.
[2] At the heart of the matter lies the question whether
the plaintiff falls within the definition of ‘labour tenant’, as
contained
in s 1 of the Act, by which is meant a person â€“
‘(a) who is residing or has the right to reside on a farm;
(b) who has or has had the right to use cropping or grazing land on
the farm, referred to in paragraph (a), or another farm of the
owner,
and in consideration of such right provides or has provided labour to
the owner or lessee; and
(c) whose parent or grandparent resided or resides on a farm and had
the use of cropping or grazing land on such farm or another
farm of
the owner, and in consideration of such right provided or provides
labour to the owner or lessee of such or such other farm,
…, but excluding a farm worker’
.
[3] A ‘farmworker’, in turn, means –
‘a person who is employed on a farm in terms of a contract of
employment which provides that â€“
(a) in return for the labour which he or she provides to the owner or
lessee of the farm, he or she shall be paid predomi­nantly
in
cash or in some other form of remuneration, and not pre­dominantly
in the right to occupy and use land; and
(b) he or she is obliged to perform his or her services personally’
.
[4] In terms of an amendment introduced into s 2 of
the Act,
1
the onus resting on a plaintiff was eased somewhat by
the following provision:
‘(5) If in any proceedings it is proved that a person falls within
paragraphs (a), (b) and (c) of the definition of “labour tenant”,
that person shall be presumed not to be a farmworker, unless the
contrary is proved.’
Factual background
[5] The plaintiff was born on the farm in question and
has lived there all her life. Her parents, who were also born on the
farm,
lived there and worked for the owner, Mr Willy Raw. Her father
looked after the owner’s horses and sheep and was paid two pounds
per month. One of her brothers also provided labour on the farm and
was already doing so at the time of her birth. Her mother also
had to
help out with weeding the maize fields when the owner requested her
and the other people living on the farm to do so. According
to the
plaintiff, ‘[her parents] had all rights to own stock [and]
plough’. She claimed that there was an agreement between her
parents and the owner, entered into before she was born, that they
could keep stock and also plough portion of the lands. They ‘were
given everything’ and were not restricted with regard to the number
of cattle they were allowed to keep. Both her parents died
and were
buried on the farm.
[6] The plaintiff married her late husband during 1962
and he – as well as his siblings, and their parents before them –
also
worked for the owner of the farm. Her parents-in-law were both
buried on the farm. Her husband worked
inter
alia
as a tractor driver, earning R80
periodically until his death in 1987. It is not clear from the
plaintiff’s evidence whether this
was the amount paid to him
monthly or in respect of longer periods of time. In addition he
received a sack of maize every month.
[7] The plaintiff testified that she herself had worked
on the farm ‘for a long period of time’ during the ownership of
different
generations of the Raw family. She was initially ‘looking
after the babies’ and later worked in the kitchen, doing the
cooking.
She was paid an amount of R3 for six months’ work. While
she was working for Mr Joe Raw (the son of Mr Willy Raw) and later
for
Mr Robert Raw, one of Mr Joe Raw’s sons, she worked for a
period of six months at a time, thereafter returning to her kraal for
the next six months while somebody from her family took over from her
and worked in her stead. After those six months the pattern
was
repeated.
[8] The plaintiff conceded that during the years that
she worked for Mr Dennis Raw, Mr Joe Raw’s other son, she worked
for the full
year, still earning only R3 every six months. She
stopped working when she gave birth to her children, which was
approximately during
1979. In return for their labour, she and her
husband had cropping rights on the farm. She insisted that they had
an agreement with
the owner that these cropping rights constituted
part of the pay for their labour on the farm.
[9] It was put to the plaintiff during cross-examination
that, during the few years that Mr Dennis Raw was managing the farm
with
his father, the grazing and cropping rights were ‘given to the
menfolk on the farm . . . as was tradition’. She agreed that this
was so.
[10] As the learned judge in the court a quo stated (at
para 39 of the judgment):
‘Plaintiff’s undisputed testimony is that she used cropping land
on the farm whilst she worked thereon during her husband’s
lifetime
and thereafter. Her undisputed testimony was that she continued to
use cropping land on the farm after her husband’s death
and that
she still does so today in a small vegetable garden in the front of
her dwelling. There can therefore be no quarrel with
the fact that
Plaintiff personally used cropping land whilst she worked on the
farm, and that she uses cropping land thereon. The
all important
enquiry is whether she had the right to use cropping land and whether
she provided labour in consideration of such
right.’
[11] Ms Zondekile Ngubane, the plaintiff’s paternal
aunt, gave evidence to the effect that she was familiar with the
conditions
on the farm as she often visited the plaintiff’s parents
when they were living and working there. She confirmed the
plaintiff’s
testimony that they (the parents) had cropping and
grazing rights and that the area on which they cropped was quite
large.
[12] According to Ms Ngubane, the plaintiff had worked
as a domestic worker on the farm from the time she was ‘still a
girl’ and
that after her marriage, she immediately returned to
work. She was aware of the fact that the plaintiff’s parents-in-law
also had
both grazing and cropping rights. At the time the
plaintiff’s husband died, a certain Mr Ross was the owner of the
farm and the
plaintiff and her husband still enjoyed cropping rights.
[13] The plaintiff continued cropping on the farm after
her husband died, but her cropping rights were apparently summarily
terminated
after Mr Ross died and the farm passed into new ownership.
Ms Ngubane knew this because she and the plaintiff live on
neighbouring
farms and she had seen the plaintiff’s crops ‘in the
land’ after the plaintiff’s husband had passed away.
[14] The defendant testified that he only took transfer
of the farm in question during 1995. In order to rebut the
plaintiff’s evidence
concerning the basis of her tenancy, he relied
on the evidence of Mr Dennis Raw, whose family owned the farm during
the relevant
period referred to by the plaintiff and who operated the
farm with his father during the period 1968–1969.
[15] Mr Dennis Raw confirmed that, during those two
years, there was an arrangement whereby a certain piece of land had
been set aside
for the workers on the farm and where they were
allowed to plant crops. He stated that the various families of
workers were allowed
up to five head of cattle per family to graze on
the farm. In addition, the male workers of the family were given an
80 kg bag of
mealie meal each per month.
[16] According to Mr Dennis Raw, the plaintiff’s
husband was in full-time employment on the farm, and the Raw family
‘never saw
it [the cropping rights which he had] as part of his
salary’. The plaintiff herself had no cropping or grazing rights on
the farm
– none of the women had such rights, so he alleged. The
plaintiff worked as a domestic worker for the Raw family, rendering
her
services personally. Mr Dennis Raw denied that there was any
agreement with the plaintiff that part of her salary would be ‘her
cropping, grazing and accommodation rights’. He conceded, however,
that he personally could not be sure what the arrangements in
respect
of cropping and grazing rights were on the farm before and after the
two years during which he had operated the farm with
his father, but
stated that, to the best of his knowledge, his brother, Robert, did
not change ‘the systems’ after he (Dennis
Raw) left the farm.
Of importance is that, in respect of the prior years,
the material evidence on behalf of the plaintiff is unchallenged.
Discussion
[17] On the evidence as a whole, it is common cause that
the plaintiff has satisfied the requirement of para (a) of the
definition
of ‘labour tenant’, having resided on the farm her
whole life. The attempt by Mr Dennis Raw (referred to in the
preceding paragraph)
to prove that the plaintiff is or was a
‘farmworker’ as contemplated by the Act is, in the light of the
totality of the evidence
– discussed further hereafter – weak and
unconvincing. The present appeal accordingly turns on the question
whether or not the
plaintiff has proved both requirements (b) and (c)
of the definition quoted above.
2
The para (b) requirement
[18] It is convenient to repeat the relevant
requirement, which requires the plaintiff to be a person –
‘who has or has had the right to use cropping or grazing land on
the farm, referred to in paragraph (a), or another farm of the
owner,
and in consideration of such right provides or has provided labour to
the owner or lessee’
.
[19] The plaintiff’s evidence presented at the trial
lacked precision insofar as dates and the specific terms of
agreements were
concerned. This, however, given her advanced age and
lack of sophistication, is to be expected. That notwithstanding, it
is nevertheless
clear that she and her family have at all relevant
times enjoyed the right to use cropping or grazing land on the farm.
[20] It was also conceded that the plaintiff did provide
labour to the various owners of the farm. According to her, she was
remunerated
at the rate of R3 for six months. According to Mr Raw,
the amount was 50c per day. Be that as it may, the conclusion that
the remune­ration
was so paltry because it was augmented by the
right enjoyed by her also to use cropping land on the farm is
irresistible. In this
regard, her insistence that there had been an
agreement to the effect that she and her husband would receive
remuneration partly
in the form of cropping rights was not seriously
challenged on behalf of the defendant and, in my view, is supported
by the remaining
evidence as well as the overall probabilities.
[21] In deciding whether or not a person is a labour
tenant, the court must have regard to ‘the combined effect and
substance of
all agreements entered into between the person who avers
that he or she is a labour tenant and his or her parent or
grandparent,
and the owner or lessee of the land concerned’.
3
[22] The precarious position of labour tenants and their
widespread loss of rights in the mass shift to wage labour farming in
twentieth
century South Africa is referred to by DL Carey Miller
(with Anne Pope)
Land Title in South Africa
(2000) at para 1.2.5.6. Carey Miller and Pope
state the following:
‘The relevant legislative history . . . was driven by
considerations of agricultural policy. But, of course, the policy was
determined
primarily on a sectional basis with the end result
demonstrating the vulnerability of a disenfranchised people.
Reform political thinking in South Africa has, from a relatively
early stage, recognised the need for the protection of the position
of labour tenants. Albie Sachs, writing at a stage when the reform
agenda was taking definite shape, identified the unfairness of
the
existing position and predicted reform driven by recognition of a far
wider spectrum of entitlement than the traditional narrow
proprietary
basis.
“Share-cropping and labour tenancy in the past were examples of the
co- involvement between black and white in production on a
single
farm. The black and white families occupied and farmed the same piece
of land, and defined the mutual rights and responsibilities
between
them. In the conditions of the time, the parties contracted on a
grossly unequal basis, in terms of which the white farmer
was
accorded a dominant position and the black farmer a subordinate one.
What will become possible in the period of democratic transformation
in which the human rights of all are acknowledged by the
constitution, is a recognition of the terms of shared occupancy and
use,
but this time on the basis of objectively determinable criteria
and in an atmosphere of equality”.
The 1996 Green Paper comments on labour tenancy as an instance of a
general problem of “[t]enants inadequately protected from arbitrary
dispossession”:
“The unequal distribution of wealth and power between blacks and
whites along with severe restrictions on black land ownership
has
inevitably resulted in the emergence of various forms of tenancy.
Under labour tenancy, tenants are obliged to provide labour
to farm
owners in exchange for the right to occupy and use a portion of the
farmland. There was an ongoing attempt by the previous
government to
formally outlaw labour tenancy on a district by district basis during
the period between 1966 and 1980.” ’
4
(Footnotes omitted.)
[23] In
Department of Land
Affairs v Goedgelegen Tropical Foods (Pty) Ltd,
5
Moseneke DCJ stated the following:
6
‘In any event, at its very core, labour tenancy under the common
law arises from a so-called innominate contract between the landowner
and the labour tenant, requiring the tenant to render services to the
owner in return for the right to occupy a piece of land, graze
cattle
and raise crops. In name, it is an individualised transaction that
requires specific performance from the contracting parties.
This
means that labour tenancy does not sit well with commonly held
occupancy rights. It is a transaction between two individuals
rather
than one between the landlord and a community of labour tenants. It
must however be recognised that despite
the fiction of the common
law in regard to the consensual nature of labour tenancy
, on all
accounts, the labour tenancy relationships in apartheid South Africa
were coercive and amounted to a thinly veiled artifice
to garner free
labour.’
(Emphasis added.)
[24] In the same judgment, Moseneke DCJ, dealing with
the correct approach to the interpretation of various sections of the
Restitution of Land Rights Act 22 of 1994
, emphasised the fact that
this ‘is remedial legislation umbilically linked to the
Constitution’. He continued as follows:
7
‘Therefore, in construing “as a result of past racially
discriminatory laws or practices” in its setting of s 2(1) of the
Restitution
Act, we are obliged to scrutinise its purpose. As we do
so, we must seek to promote the spirit, purport and objects of the
Bill of
Rights. We must prefer a generous construction over a merely
textual or legalistic one in order to afford claimants the fullest
possible
protections of their constitutional guarantees. In searching
for the purpose, it is legitimate to seek to identify the mischief
sought
to be remedied. In part, that is why it is helpful, where
appropriate, to pay due attention to the social and historical
background
of the legislation. We must understand the provision
within the context of the grid, if any, of related provisions and of
the statute
as a whole, including its underlying values. Although the
text is often the starting point of any statutory construction, the
meaning
it bears must pay due regard to context. This is so even when
the ordinary meaning of the provision to be construed is clear and
unambiguous.
. . .
It is indeed so that the Restitution Act is an enactment intended to
express the values of the Constitution and to remedy the failure
to
respect such values in the past, in particular, the values of dignity
and equal worth. To achieve this remedial purpose . . .
the history
and context within which land rights were dispossessed and in
particular the manner in which labour tenancy operated
and was
terminated must be considered.’
[25] In my view, the same approach must be adopted in
respect of the interpretation of the relevant provisions of the Act
with which
we are dealing in this appeal. The Preamble to the Act
points out that:
‘The present institution of labour tenancy in South Africa is the
result of racially discriminatory laws and practices which have
led
to the systematic breach of human rights and denial of access to
land;
. . . it is desirable to ensure the adequate protection of labour
tenants who are persons who were disadvantaged by unfair
discrimination,
in order to promote their full and equal enjoyment of
human rights and freedoms; . . .
. . . it is desirable to institute measures to assist labour tenants
to obtain security of tenure and ownership of land; . . .
. . . it is desirable to ensure that labour tenants are not further
prejudiced’.
[26] The following words of Moseneke DCJ in the
Goedgelegen
case
8
are also relevant for the purposes of this judgment:
‘Finally, it is appropriate to observe that the rights of the
individual applicants [labour tenants] were not merely economic
rights
to graze and cultivate in a particular area. They were rights
of family connection with certain pieces of land, where the aged were
buried and children were born and where modest homesteads passed from
generation to generation. And they were not simply there by
grace and
favour. The paternalistic and feudal-type relationship involved
contributions by the family, who worked the lands of the
farmer.
However unfair the relationship was, as a relic of past conquests of
land dispossession, it formalised a minimal degree of
respect by the
farm owners for the connection of the indigenous families to the
land. It had a cultural and spiritual dimension that
rendered the
destruction of the rights more than just economic loss.’
[27] Of course, in order to determine whether the labour
tenancy asserted by the plaintiff has been established, one must have
regard
to the evidence concerning
her
right
to lay claim as a labour tenant to the relevant portion of the farm.
In so doing, it is important to appreciate that when labour
tenants
‘conclude’ contracts with farm owners, they are not assisted by
lawyers. They represent a vulnerable section of society,
are almost
always impecunious, unsophisticated and unschooled. One should not
lose sight of the power imbalance in the relationship
between the
farm owner and the labour tenant and the truism that only free men
and women can meaningfully negotiate.
9
[28] It is simplistic to approach the relationship
between a farm owner and a labour tenant as necessarily one in
respect of which
only one member of a household or family unit has
the right to be or remain on the farm as a labour tenant.
Complexities abound.
For example, it might well be inferred in
appropriate cases that
each
member
of a family unit consisting of a father, mother and child agreed with
the farm owner that he or she be afforded labour tenancy
rights in
return for his or her providing labour individually and not
necessarily in equal measure. Furthermore, the arrangements
in
respect of the time periods during which and the manner in which
labour is provided by each member of the family unit might mutate
over time and in relation to successive owners of the farm, depending
on the changing requirements of the farm and the demands of
the
owner. That metamorphosis would have led inexorably to labour tenancy
relationships between the farmer and each individual member
of the
family unit. In those circumstances, to ask when the labour tenancy
relationship commenced serves not just to obfuscate the
enquiry but
also to ignore our historical reality. Naturally, however, successive
owners assume the responsibilities brought about
by already
established relationships and existing rights.
[29] As pointed out above, the attempt made by Mr Dennis
Raw to prove that the plaintiff was a ‘farmworker’ is, in the
light of
the totality of the evidence and against the probabilities,
wholly unconvincing. Thus, in the present case there are really only
two hypothetical possibilities. The first is that the plaintiff is
indeed a labour tenant, as defined in the Act. The second is that
suggested by counsel for the appellant, namely that, in rendering
labour to successive owners of the farm, the plaintiff was simply
discharging the labour tenancy obligations of her father and, after
her marriage, of her husband – the plaintiff being only the
means
by which the ‘actual’ labour tenant (her father or her husband)
fulfilled his obligation to provide labour. Counsel contended
that
the plaintiff’s ‘right’ to crop flowed simply from the fact
that she was living on the farm with her husband and family
and not
in consideration for
any
obligation on her part to provide labour to the farm owner. To my
mind, this proposition needs only to be stated to be rejected:
It is
not disputed that the plaintiff
herself
provided labour for more than 17 years, and
her evidence that
she
was
remunerated for this labour predominantly through
her
right to use cropping land on the farm was not seriously
challenged.
[30] The attempt by the appellant to deny the plaintiff
the rights of a labour tenant by asserting that such labour tenancy
arrangements
as were made were limited to the male members (or
perhaps even only to the male head) of a family unit smacks of
opportunism, is
not supported by the facts and would render her
presently liable to discrimination of a kind not countenanced by the
Constitution.
To gauge the existence of a labour tenancy agreement in
the technical and precise manner akin to that applicable to usual
residential
or commercial tenancies is far too restrictive an
approach and one that goes against the objective and general tenor of
the Act.
[31] For the reasons set out above and having regard to
the overall effect of the evidence on this aspect, I can find no
ground to
interfere with the finding of the court a quo that the
plaintiff did indeed have ‘the right to use cropping land, an
entitlement
which she exercised unfettered over a period of time,
both during her employment and thereafter, and in consideration for
which right
she provided labour’.
10
The para (c) requirement
[32] In the context of the present case, the requirement
in terms of para (c) of the definition entails a threefold enquiry:
(i) whether
the plaintiff’s parent or grandparent resided on
the farm; (ii) whether he/they had the use of cropping or
grazing land on
such farm or another farm of the owner; and
(iii) whether he/they provided labour to the owner of such farm
in consideration
of such right.
[33] The first two elements were not seriously disputed
on behalf of the defendant. It was contended on behalf of the
defendant that
the plaintiff has not proved that the right to use
cropping or grazing land was ‘in consideration of the obligation to
provide
labour’.
[34] In this regard, the plaintiff stated that the
agreement her parents had with the landowner was ‘to the effect
that they were
to have a number of stock as they wanted to, and they
were being paid as well.’ The plaintiff’s evidence in this regard
was largely
confirmed by the evidence of Ms Ngubane.
[35] Having regard to the ‘meagre salary’ (in the
words of the trial judge) of two pounds paid to the plaintiff’s
father, again
the conclusion seems in­escapable that he (the
plaintiff’s father) provided labour at least partly in
consideration of the
right also to use cropping or grazing land on
the farm.
Conclusion
[36] In the circumstances, I conclude that there are no
grounds to interfere with the order of the court a quo. The appeal is
therefore
dismissed with costs.
____________________
BJ
VAN HEERDEN
JUDGE
OF APPEAL
CONCUR
:
MTHIYANE
JA
MAYA JA
NUGENT JA:
[37] I have read the judgment of my colleague but I
regret that I cannot concur in the order she proposes. The difference
between
us relates to the construction of the evidence. I indeed
assert the proposition that my colleague regrettably believes needs
only
to be stated in order to be rejected. I think the evidence of
the respondent establishes without doubt that she is not and never
has been a labour tenant as that term is defined in the Act. That her
husband was a labour tenant is clear but labour tenancy is
not
capable of being acquired derivatively.
[38] A statute is not a mere statement of a legislative
objective but is rather the route chosen by the legislature to
achieve that
objective. In
Goedgelegen
Tropical Foods
(referred to by my colleague)
Moseneke DCJ made the point that labour tenancy is a relationship
between two individuals – the tenant
and the landlord – rather
than a relationship between a landlord and a group (whether it be a
community or a family). That is not
to say that more than one member
of a community or a family might not be labour tenants, but only that
the enquiry is to be directed
at the individual who claims to be a
labour tenant. At the core of that relationship is an obligation
undertaken by the tenant to
provide labour to the landlord (whether
his or her own labour or that of others) in return for the right to
use land for cropping
or grazing. That essential feature of the
relationship is expressed in subparagraph (b) of the definition of a
labour tenant, which
requires that the person concerned
‘has or has had the
right
to use cropping or grazing
land…and
in consideration of such right
provides or has
provided labour…’
(my emphasis).
[39] The circumstances in which labour tenancy can be
expected to arise will seldom produce evidence of the relationship in
the form
of explicit contractual formalities. More often the
relationship will be the product of long practice or custom, or of
the conduct
of the parties or their predecessors, and any oral
expression of their intent will have been lost over time. In those
circumstances
a court must take particular care to examine all the
circumstances surrounding the relationship to determine whether it
was one of
labour tenancy. Needless to say, the mere assertion by one
or other of the protagonists that the relationship was or was not of
that
kind will not be helpful. Indeed, such assertions are strictly
not even admissible, because it is for a court, and not a witness,
to
determine what conclusion is to be drawn from the facts.
[40] In most cases inferences to be drawn from the
manner in which the parties have conducted themselves will provide
the most cogent
evidence of the existence or absence of such a
relationship. For the relationship is one that entails reciprocal
rights and obligations
that both manifest themselves overtly in their
exercise or performance. If a relationship is indeed one of labour
tenancy the exercise
of the rights will necessarily correlate with
the performance of the reciprocal obligations. And if it is not a
relationship of labour
tenancy there will conversely be no such
correlation.
[41] The respondent, Mrs Dano Mbhense (born Mhlongo),
was born on the farm that is now in issue. The farm was then owned
and operated
by Mr Willy Raw. Later it passed to his son Mr Joe Raw.
For a while Mr Joe Raw operated the farm in association with his son
Mr Dennis
Raw. Thereafter it was operated by Mr Joe Raw’s second
son, Mr Robert Raw. The farm then passed to a Mr Ross (that seems to
have
been in about 1980). After the death of Mr Ross it seems first
to have passed to a Mr Kibler and then to the appellant, Mr Brown.
[42] At the time Mrs Mbhense was born her father, Mr
Sikhwebu Mhlongo, worked on the farm and the household grazed
livestock and planted
crops. Mrs Mbhense’s mother was not in full
time employment but worked on the farm from time to time according to
the seasons.
When Mrs Mbhense was young she and her young sisters
alternated in providing domestic service on the farm in return for a
wage. (Precisely
what the wage was is a matter of dispute but I have
accepted that it was paltry.)
[43] In 1962 she married Mr Mfesi Mbhense, who was also
born on the farm. He had three brothers – Mr Mxhantini Mbhense, Mr
Row Mbhense
and Mr Mponono Mbhense. At the time of the marriage Mr
Mfesi Mbhense and his three brothers all worked on the farm. Their
parents
were still alive but were no longer working. Mr Mbhense
senior owned cattle that were grazed on the land, and the family also
planted
crops.
[44] After the marriage Mrs Mbhense continued to provide
domestic service. Whether she did so continuously is not clear but I
have
assumed that she did. At some time in the course of the marriage
Mr Mbhense senior died. His cattle were inherited by his son, Mr
Mxhantini Mbhense. From then on Mr and Mrs Mbhense only planted
crops.
[45] Mrs Mbhense stopped working for the occupier of the
farm when she commenced bearing children – which seems to have been
in
about 1979 – and she did not resume work again. In 1987 her
husband died. At that time the farm was owned by Mr Ross who died
approximately
a month later. It was at about that time that cropping
came to an end. Whether it was the death of her husband or the death
of Mr
Ross that brought that about is not altogether clear because
Mrs Mbhense’s evidence on that issue is rather ambiguous (she said
that ‘after my husband had passed away, Ross also passed away,
therefore I could not plough any lands anymore’) but I do not
think
that is material. Mrs Mbhense continued to live on the farm and at
the time of the proceedings in the court below she was living
in a
dwelling that had a small vegetable garden.
[46] When determining whether a particular relationship
existed – whether it be one of labour tenancy or any other
relationship
– I think it is always useful to ask when and in what
manner the relationship is said to have begun. For every
individualized relationship
– like that of labour tenancy – must
have had a beginning if it existed at all. No person is born into
labour tenancy nor does
the relationship arise spontaneously. It
might be that the claimant and the farmer concerned were themselves
party to the creation
of the relationship whether expressly or merely
by their conduct. It might also be that the relationship came into
being by succession
of the claimant to a practice or custom
established by a previous owner – which is how Mr Mbhense became a
labour tenant. I am
not sure why it obfuscates the enquiry to ask
when the relationship began. I prefer analyzing the effect of the
evidence over relying
upon its general impression and that question
seems to me to provides a structure for that analysis.
[47] The cropping and grazing rights that were enjoyed
by the Mhlongo household existed before Mrs Mbhense was born. Quite
evidently
those rights – and the obligation to provide labour in
consideration for those rights – adhered to someone other than
herself.
It is also evident that those rights (and the corresponding
obligation to provide labour) were not transferred to Mrs Mbhense
during
the time that she lived in that household because they
continued to be exercised by the household after she left it upon her
marriage.
[48] That Mrs Mbhense was not under an obligation to
provide labour (and was thus not the holder of the corresponding
rights) is confirmed
by the fact that she rendered service only
periodically. It is quite possible that the holder of the rights (her
father or her mother)
was obliged in return to ensure that domestic
service was provided, and that the services of Mrs Mbhense and her
sisters were rendered
in fulfillment of that obligation, but that
would not make Mrs Mbhense (or her sisters) a labour tenant. Her
services would merely
be the means by which the labour tenant (her
father or her mother) fulfilled his or her obligations to provide
labour. Absent an
independent right enjoyed by Mrs Mbhense, and an
independent obligation to provide labour in return, she was not a
labour tenant.
[49] Clearly Mrs Mbhense was not a labour tenant during
the time that she was in the household of her parents. It is also
clear that
her marriage did not alter her status in that regard. The
Mbhense household had its own cropping and grazing rights at the time
it
was joined by Mrs Mbhense. There is no suggestion that additional
cropping and grazing rights accrued to the Mbhense household after
the marriage. It is also clear that the continuance of those rights
was not dependant upon Mrs Mbhense providing labour to the occupier
because they continued unabated even though she stopped working (in
about 1979). Once again the fact that the rights continued to
be
exercised unabated notwithstanding that Mrs Mbhense provided no
labour confirms that the obligation to provide labour (and the
corresponding right to crop and graze) did not adhere to her.
[50] After the death of Mr Mbhense senior the households
of his descendants (including the household of Mr and Mrs Mbhense)
continued
to enjoy cropping and grazing rights. (Mr Mbhense had no
cattle and only exercised cropping rights.) But there is nothing to
suggest
that the right to plant crops from that time adhered to Mrs
Mbhense. On the contrary, it is clear that it did not, for she
provided
no labour. I think it is clear that the rights adhered to
her husband, for which he provided his labour in return, and indeed,
the
cropping rights terminated upon his death. (If Mrs Mbhense
continued to grow crops for a short time thereafter then clearly that
was a gratuitous disposition because there was no accompanying
obligation to provide labour.)
[51] It is difficult, then, to see when Mrs Mbhense
might have become a labour tenant. I think that difficulty arises
only because
she never was a labour tenant. I think the evidence
establishes that she never had an independent right to grow crops or
graze animals,
and that she never had an independent obligation to
provide labour (which are two sides of the same coin).
[52] In his evidence Mr Dennis Raw said that it was the
custom of his family to grant cropping and grazing rights to the male
head
of each household in return for which they were to provide
labour. All the evidence is consistent with that having occurred.
That
Mrs Mbhense was the daughter of a labour tenant is clear. That
she was the wife of a labour tenant – who succeeded to that
relationship
in accordance with established practice – is also
clear. But it is also clear that she was not a labour tenant herself.
[53] We were told by counsel for the appellant that the
appellant acknowledges that Mrs Mbhense enjoys the protection against
eviction
that is provided by the Extension of Security of Tenure Act
62 of 1997. Indeed, we were told that the appellant has no intention
of attempting to evict her from the farm. What was in issue in these
proceedings was only whether she was entitled to be awarded
real
rights in the farm.
[54] I would accordingly uphold the appeal and
substitute the order of the court below with an order dismissing the
application.
_______________________
R.W.
NUGENT
JUDGE
OF APPEAL
CONCUR
:
SCOTT
JA
1
Introduced
by s 33 of Act 63 of 1997.
2
In
Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg
1999
(2) SA 1057
(SCA) para 11, this Court held that paras (a), (b) and
(c) of the definition had to be interpreted conjunctively.
3
Section
2(6) of the Act.
4
Pages
526-527.
5
[2007] ZACC 12
;
2007
(6) SA 199
(CC).
6
Para
46.
7
Paras
53 and 55.
8
Para
86.
9
See
the
Goedgelegen Tropical Foods (Pty) Ltd
case para 46, cited
in para 23 above.
10
Para
43 of the judgment of the court a quo.