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[2008] ZASCA 163
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Lebowa Platinum Mines Limited v Viljoen (733/07) [2008] ZASCA 163; 2009 (3) SA 511 (SCA) ; [2009] 2 All SA 231 (SCA); (2009) 30 ILJ 1742 (SCA) (1 December 2008)
Links to summary
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 733/07
In the matter between:
LEBOWA
PLATINUM MINES LTD
First Appellant
and
GERHARD
VILJOEN
Respondent
Neutral
citation:
Lebowa Platinum Mines Ltd v
Viljoen
(733/2007)[2008]
ZASCA 163 (01 December 2008)
CORAM:
FARLAM, CAMERON, JAFTA, MAYA JJA et MHLANTLA
AJA
HEARD:
17 December 2008
DELIVERED:
01 December 2008
Summary:
Extension of Security Tenure Act 62 of 1997 – meaning of
‘occupier’.
_____________________________________________________________
ORDER
On
appeal from:
Land
Claims Court (Bam JP)
The
appeal is dismissed with costs.
JUDGMENT
________________________________________
________________________________
MAYA
JA: (Farlam, Cameron, Jafta JJA and Mhlantla AJA concurring):
[1] This appeal concerns the meaning to be ascribed to
the term ‘occupier’ as defined in the Extension of
Security of
Tenure Act 62 of 1997 (ESTA).
[2] The appellant is a registered mining company
carrying on business in the platinum mining industry. It has
permission to use
the surface of certain land situate on the farm
Zeekoegat No 421 KS in the Northern Province district of Lydenburg
for residential
purposes in terms of a permit issued to it by the
Department of Minerals and Energy. The appellant has built
approximately 160
residential houses on the land which it uses to
attract qualified staff by accommodating them for a nominal rental.
[3] On 3 August 2004, the respondent commenced
employment with the appellant as its Operations Supervisor for a
gross monthly wage
of R11 438. In keeping with its housing policy,
the appellant allocated him a family home for a nominal monthly
rental of R23 and
a monthly contribution of R150 towards water and
electricity charges.
[4] The employment relationship however soon soured. On
23 May 2006 the respondent was charged with dishonesty, the details
of which
need not occupy us for present purposes. Disciplinary
proceedings were instituted against him and on 22 June 2006 he was
found
guilty and dismissed. Thereafter, he referred a dispute to the
Commission for Conciliation, Mediation and Arbitration (the CCMA)
contesting his dismissal. He was unsuccessful. He then launched
review proceedings in the Labour Court against the CCMA decision.
Those proceedings are pending. He and his family remain in occupation
of the premises despite the appellant’s attempts to
evict him
following his dismissal.
[5] In terms of the appellant’s housing policy ‘an
employee who is dismissed from [its] service will be allowed 30 days
in which to vacate the [company] house’ after the date of such
dismissal. In January 2007, consequent on the respondent’s
refusal to vacate the premises after the expiry of the 30 day period,
the appellant instituted proceedings in the Pretoria High
Court for
his eviction in terms of s 4(1) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of
1998 (PIE). This was
on the basis that the respondent was an ‘unlawful occupier’
as defined in PIE
1
as he no longer had the express or tacit consent of the appellant to
occupy the premises. The respondent opposed the proceedings
and
raised the defence that he was an ‘occupier’ as
contemplated in ESTA because he was unemployed and the premises
are
situate on a farm and not in a township as envisaged in s 2 of ESTA.
2
These facts, he contended, excluded the high court’s
jurisdiction to adjudicate the eviction proceedings which were, in
any event, premature as his right to occupy could be terminated in
terms of s 8(2) and (3) of ESTA only upon final determination
of his
labour dispute.
3
[6] The appellant agreed to have the matter transferred
to the Land Claims Court in terms of s 20(3) of ESTA
4
and tendered to pay the wasted costs. As it appears in the judgment
of the court below (Bam JP), ‘the [appellant’s]
submission [on which its case was premised] that the respondent’s
right to reside on the premises automatically terminated
upon
dismissal [on 22 June 2006] was not pursued’. The court below
opined that such argument had no merit in any event as
s 3(1) of ESTA
stipulates that consent to an occupier may be terminated only in
accordance with the provisions of section 8. The
court below
considered the respondent’s defence that when the eviction
proceedings were launched he was not earning any income
and, relying
on its judgment in
Hallé
v
Downs,
5
more of which later, the court held that
the respondent fulfilled the requirements of
an ‘occupier’ in terms of ESTA when the application was
instituted. The
court then concluded that the appellant should have
instituted the eviction proceedings in either the magistrate’s
court
or the Land Claims Court under ESTA and dismissed the
application with costs. It is this decision that the appellant seeks
to have
overturned, with the leave of the court below. The issue,
therefore, is the applicability of the provisions of ESTA.
[7] The appellant’s case before us turned on the
contention that the respondent’s right to occupy the premises
arose
solely from his contract of employment, was dependent and
conditional upon his continued employment and terminated
automatically
on his dismissal. It was submitted on its behalf that
ESTA seeks to redress the unfair eviction from land of poor farm
workers
resulting from past discriminatory laws and practices and
that s 8(2), in particular, was not intended to protect a person in
the
respondent’s position ie an employee of an owner of land
earning an income in excess of the minimum R5 000 cash wage or salary
prescribed in the ESTA regulations, whose occupation of the land is a
condition of employment and whose consent to occupy the land
is
subject to his continued employment with the owner.
[8] Conceding that the respondent’s right of
residence arose solely from his employment contract,
amicus
curiae
Mr Zietsman, to whom this court is
indebted for his able assistance, contended that although such
contract terminated on 22 June
2006, the appellant consented to the
respondent’s continued occupation of the premises for a further
30 days ie until 23
July 2006 and that this coupled with the fact
that he did not earn an income on the latter date brought him within
the definition
of ‘occupier’ under ESTA. It was
alternatively submitted that, in any event, subsections 8(2) and (3)
of ESTA entitle
the respondent to occupy the premises until his
pending labour dispute in terms of the Labour Relations Act
6
has been resolved.
[9] ESTA has its origins,
inter
alia
, in s 25(6) of the Constitution which
entitles ‘[a] person or community whose tenure of land is
legally insecure as a result
of past racially discriminatory laws or
practices … to the extent provided by an Act of Parliament,
either to tenure which
is legally secure or to comparable redress’.
As appears from its preamble,
7
the main purpose of ESTA is to regulate the eviction process of
vulnerable occupiers of land and it generally seeks to protect
a
designated class of poor tenants occupying rural and peri-urban land
(s 2(1))
8
with the express or tacit consent of the owner against unfair
eviction from such land.
[10] The term ‘occupier’ is defined as
follows in s 1:
‘a person residing on land which belongs to another person and
who has or on 4 February 1997 or thereafter had consent or
another
right in law to do so, but excluding –
(a) … (deleted by s 6(a) of Act 51 of 2001.)
(b) a person using or intending to use the land in question mainly
for industrial, mining commercial or commercial farming purposes,
but
including a person who works the land himself or herself and does not
employ any person who is not a member of his or her family;
and
(c)
a person who has an income in excess of the prescribed amount.’
The
‘prescribed amount’ referred to in (c) is stipulated in s
2 of the ESTA regulations
9
as a gross monthly cash wage or salary in the sum of R5 000.
[11] According to s 3(1), consent to an ‘occupier’
to reside on or use land shall only be terminated in accordance with
the provisions of s 8. The relevant provisions in s 8 are set out in
subsections (2) and (3) which read:
‘(2) The right of residence of an occupier who is an employee
and whose right of residence arises solely from an employment
agreement, may be terminated if the occupier resigns from employment
or is dismissed in accordance with the provisions of the Labour
Relations Act [66 of 1995].
(3) Any dispute over whether an occupier’s employment has
terminated as contemplated in subsection (2), shall be dealt with
in
accordance with the provisions of the Labour Relations Act, and the
termination shall take effect when any dispute over the
termination
has been determined in accordance with that Act.’
[12] Turning to the facts of the present case, I deal
first with the proposition on the appellant’s behalf that only
‘poor
previously disenfranchised farm workers’, which the
respondent undisputedly is not, may benefit from the protection
offered
by ESTA. I have some difficulty with this submission. In
Mkangeli v Joubert
10
Brand JA said:
‘
Generally speaking
ESTA protects a particular class of
impecunious tenant on rural and semi-rural land against eviction from
that land … It
seems … that … the Legislature
intended to impose extensive limitations on any right to seek the
occupiers’
eviction from that land. This intention appears to
be emphasised by the plain wording of ss 9(1) and 23(1) of ESTA
[which prescribe
that an occupier may be evicted only on the
authority of a court order] … A literal interpretation of
these provisions
appears to indicate an intention on the part of the
Legislature that any right to have an occupier evicted,
regardless
of who may be the holder of such right and whatever the source of
such right may be
, should be subject to and limited by the
provisions of ESTA.’
11
(Emphasis added.)
[13] These views, with which I respectfully agree, tend
to reinforce mine – that although there is obviously a
particular
class of vulnerable persons who were the legislature’s
primary concern when ESTA was conceived, of which the respondent may
not be a member, courts are nonetheless enjoined to consider the
colour-blind provisions of s 26(3) of the Constitution
12
when interpreting ESTA. From the wide wording of such provisions, it
hardly seems inconceivable that in that exercise a person
falling
outside the designated category, but nonetheless possessed of a land
owner’s consent or some other legal right, may
fall within its
purview. In the words of Harms JA, dealing with the scope of PIE, in
Ndlovu v Ngcobo
13
‘[t]he Bill of Rights and social or
remedial legislation often confer benefits on persons for whom they
are not primarily
intended …[t]he law of unintended
consequences sometimes takes its toll’.
[14] That said, my view is that in considering the
meaning of the term ‘occupier’ under ESTA, the starting
point must
be when the circumstances of the person sought to be
evicted ought to be considered to ascertain whether or not he or she
is such
an ‘occupier’. This exercise was conducted in the
Hallé
judgment
mentioned above. There, the court decided that ‘[t]hat would
usually be the time when legal proceedings for …
eviction are
commenced, but … may even be later, should circumstances
change during the course of the litigation’.
14
[15] Rejecting the
Hallé
ratio, appellant’s counsel urged upon
us that on a literal reading of the definition of ‘occupier’
particularly
the legislature’s change in tense in the wording
‘a person residing on land … who has on 4 February 1997
or
thereafter had consent
’,
the date of termination of the respondent’s employment contract
should decide the question. He argued that to do
otherwise would be
unreasonable as it would confer on the respondent a status he did not
enjoy during the whole of his tenure of
employment merely on the
basis of the 30 day grace period which was only intended to allow him
a decent exit from the premises.
[16] Contrary to the submissions on the appellant’s
behalf, I do not find that the interpretation of the relevant
provisions
of ESTA suggested on the respondent’s behalf would
yield absurd or unreasonable results. As I understand it, on the
literal
approach contended for on the appellant’s behalf, all
that ESTA requires for a tenant to qualify as an ‘occupier’
is the owner’s consent or ‘another right in law’ to
reside on the land as long as he or she does not use the
land in the
manner excluded in (b) of the definition or earn more than R5 000 a
month.
[17] As to when the tenant is required to possess these
attributes, bearing in mind that it is not so far-fetched a
possibility
for a tenant’s circumstances to change for any
number of reasons, for better or worse, during the period of his or
her occupation
and impact on the nature of such occupation, the
relevant time on the plain meaning of the provisions must be when
lawful occupation
ceases ie when the permission or right to occupy is
withdrawn or ceases (or, if coincident, when the eviction proceedings
are instituted).
[18] It is so in this case that the respondent did not
qualify as an ‘occupier’ during the tenure of his
employment.
It is however a fact that cannot simply be ignored that
he remained in occupation of the premises with the appellant’s
consent
after termination of such employment; this at a time when he
no longer earned an income and did not use the premises for the
purposes
precluded in the ESTA definition. During this period, the
respondent’s occupation of the premises undoubtedly assumed an
entirely different character which, in my view, brought him squarely
within the ambit of ‘occupier’. I can conceive
of no
reason why the fact that he previously occupied the premises in a
different capacity should exclude him from a definition
whose
requirements he clearly satisfied when his permission to remain on
the premises came to an end.
15
The 30-day ‘goodwill provision’ in the appellant’s
own housing policy is its undoing and is fatal to its case.
[19] In my judgment, the respondent is an ‘occupier’
as contemplated in ESTA. The appeal must, therefore, fail and the
appellant must pursue whatever rights it may have against the
respondent in accordance with the provisions of ESTA. This finding
disposes of the issue and dispenses with the need to consider the
alternative arguments. It follows that the
Hallé
decision is incorrect in so far as it extends
the time relevant to consider a tenant’s circumstances beyond
the date on which
consent terminates.
[20] For these reasons, the appeal is dismissed with
costs.
__________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: N A Cassim SC
Instructed by
Leppan Beech
Incorporated, Wendywood
Webbers Attorneys
Bloemfontein
No appearance for the Respondent
Amicus Curiae: P J J Zietsman
1
In s 1 of PIE an ‘unlawful occupier’ is defined as ‘a
person who occupies land without the express or tacit
consent of the
owner or person in charge, or without any other right in law to
occupy such land, excluding a person who is an
occupier in terms of
[ESTA], and excluding a person whose informal right to land, but for
the provisions of this Act, would be
protected by the provisions of
the Interim Protection of Informal Land Rights Act, 1996 (Act 31 of
1996).’
2
In terms of the provisions of this section, ESTA ‘shall apply
to all land other than land in a township established, approved,
proclaimed or otherwise recognised as such in terms of any law…’
3
The provisions of s 8(2) and (3) of ESTA are
set out in para 11 below.
4
Section 20(3) of the ESTA provides: ‘If in any proceedings in
a High Court at the date of the commencement of this Act
that Court
is required to interpret this Act, that Court shall stop the
proceedings if no oral evidence has been led and refer
the matter to
the Land Claims Court.’
5
2001 (4) SA 913
(LCC).
6
Act 66
of 1995.
7
It reads:
‘
To
provide for measures with State assistance to facilitate long-term
security of land tenure; to regulate the conditions of residence
on
certain land; to regulate the conditions on and circumstances under
which the right of persons to reside on land may be terminated;
and
to regulate the conditions and circumstances under which persons,
whose right of residence has been terminated, may be evicted
from
land; and to provide for matters concerned therewith.
WHEREAS
many South Africans do not have secure tenure of their homes and the
land which they use and are therefore vulnerable
to unfair eviction;
WHEREAS
unfair evictions lead to great hardships, conflict and social
instability;
WHEREAS
this situation is in part the result of past discriminatory laws and
practices;
AND
WHEREAS it is desirable that the law should promote the achievement
of long-term security of tenure for occupiers of land,
where
possible through the joint efforts of occupiers, land owners, and
government bodies; that the law should extend the rights
of
occupiers, while giving due recognition to the rights, duties and
legitimate interests of owners; that the law should regulate
the
eviction of vulnerable occupiers from land in a fair manner, while
recognising the right of land owners to apply to court
for an
eviction order in appropriate circumstances; to ensure that
occupiers are not further prejudiced’.
8
In terms of s 2(1) of ESTA ‘all land other than land in a
township established, approved, proclaimed or otherwise recognised
as such in terms of any law, or encircled by such a township or
townships, falls within its ambit.
9
The regulations were promulgated in terms of s 28(1) of ESTA and
published in Government Notice R1632 GG 19587 dated 18 December
1998. Section 2 thereof reads:
‘
Qualifying
income
(1) The
prescribed amount for the purposes of paragraph (c) of the
definition of “occupier” in section 1(1) of the
Act
shall be an income of R5 000 per month.
(2) For
the purposes of subregulation (1) “income” means –
(a) a
person’s gross monthly cash wage or salary; or
(b) where
a person earns money –
(i) other
than in the form of a monthly cash wage or salary, the average
monthly amount of such person’s gross earnings
during the
immediately preceding year; or
(ii) in
addition to a monthly cash wage or salary, such person’s gross
monthly cash wage or salary together with the average
monthly amount
of such person’s additional gross earnings during the
immediately preceding year:
Provided
that remuneration in kind shall not be taken into account.’
10
2002 (4) SA 36
(SCA).
11
Mkangeli v Joubert
2002 (4) SA 36
(SCA) at paras 9, 17 and
18.
12
In terms of the provisions of this section ‘[no] on
e
may
be evicted from their home, or have their home demolished, without
an order of court made after considering all the relevant
circumstances [and] no legislation may permit arbitrary evictions.’
13
2003 (1) SA 113
(SCA).
14
At para 13.
15
Compare
Simonsig
Landgoed (Edms) Bpk v Vers and others
2007
(5) SA 103
(C) at para 27.