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[2017] ZASCA 163
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Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and Others, Mathibane and Others v Normandien Farms (Pty) Ltd and Others (370/2017) [2017] ZASCA 163; [2018] 1 All SA 390 (SCA); 2019 (1) SA 154 (SCA) (29 November 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 512/2016
In
the matter between
THE
MINISTER OF RURAL DEVELOPMENT AND
LAND
REFORM
APPELLANT
and
NORMANDIEN
FARMS (PTY) LTD
FIRST
RESPONDENT
MANDLA
NKOSI JOSEPH MATHIMBANE
SECOND
RESPONDENT
BONGINKOSI
DAVID MATHIMBANE
THIRD
RESPONDENT
PHUMELELO
FLORENCE MATHIMBANE
FOURTH
RESPONDENT
MLAMULI
OBED MATHIMBANE
FIFTH
RESPONDENT
SIPHO
MATHIMBANE
SIXTH
RESPONDENT
MIRIAM
JELE
SEVENTH
RESPONDENT
BERNARD
JELE
EIGHTH
RESPONDENT
MARTHA
JELE
NINTH
RESPONDENT
ALBERT
JELE
TENTH
RESPONDENT
APOSTOL
JELE
ELEVENTH
RESPONDENT
SWEET
BETTER JELE
TWELFTH
RESPONDENT
JOHANNES
JELE
THIRTEENTH
RESPONDENT
THE
MINISTER OF AGRICULTURE, FORESTRY
AND
FISHERIES
FOURTEENTH
RESPONDENT
And
in the matter between
Case
No: 370/2017
MANDLA
NKOSI JOSEPH MATHIMBANE
FIRST
APPELLANT
BONGINKOSI
DAVID MATHIMBANE
SECOND
APPELLANT
PHUMELELO
FLORENCE MATHIMBANE
THIRD
APPELLANT
MLAMULI
OBED MATHIMBANE
FOURTH
APPELLANT
SIPHO
MATHIMBANE
FIFTH
APPELLANT
MIRIAM
JELE
SIXTH
APPELLANT
BERNARD
JELE
SEVENTH
APPELLANT
MARTHA
JELE
EIGHTH
APPELLANT
ALBERT
JELE
NINTH
APPELLANT
APOSTOL
JELE
TENTH
APPELLANT
SWEET
BETTER JELE
ELEVENTHAPPELLANT
JOHANNES
JELE
TWELFTH
APPELLANT
and
NORMANDIEN
FARMS (PTY) LTD
FIRST
RESPONDENT
THE
MINISTER OF AGRICULTURE, FORESTRY
AND
FISHERIES
SECOND
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND REFORM
THIRD
RESPONDENT
DIRECTOR-GENERAL,
DEDPARTMENT OF
RURAL
DEVELOPMENT AND LAND REFORM
FOURTH
RESPONDENT
REGIONAL
LAND CLAIMS COMMISSIONER
KWAZULU-NATAL
FIFTH
RESPONDENT
Neutral
citation:
Minister
of Rural Development and Land Reform v Normandien Farms & others;
Mathimbane & others v Normandien Farms
Cases
512/2016 & 370/2017
[2017] ZASCA 163
(29 November 2017)
Coram:
Leach, Saldulker & Swain JJA and Lamont & Rogers
AJJA
Heard
:
7 November 2017
Delivered:
29 November 2017
Summary:
Civil procedure – application for
condonation and reinstatement by appellants in Case 370/2017
(‘occupants’) granted
in interests of justice despite
egregious non-compliance with rules relating to heads of argument.
Contempt
of court – occupants failed to establish beyond reasonable
doubt that respondent (‘Normandien’) in contempt
of
appellate process – contempt application, including related
postponement application, dismissed.
Land
reform – whether Minister has power under Land Reform:
Provision of Land and Assistance Act 126 of 1993
to make land
available solely for purposes of grazing – court a quo erred in
compelling Minister to exercise permissive powers
in favour of
occupants – Minister’s appeal succeeds.
Environmental
law – Normandien had standing to seek removal of occupants’
livestock on land overgrazed in violation
of Conservation of
Agricultural Resources Act 43 of 1983 (CARA) – labour tenants
not exempt from CARA – removal of
animals in terms of CARA not
an eviction for purposes of Land Reform (Labour Tenants) Act 3 of
1996 – occupants’ appeal
dismissed.
Costs
–
Biowatch
principle applicable to costs in court a quo
and on appeal as between Minister and Normandien, ie parties to bear
their own costs.
Costs
– no grounds for interfering in court a quo order that
occupants pay Normandien’s costs on punitive scale.
Costs
– occupants’ application for condonation and
reinstatement necessitated by joint failings by attorneys and counsel
– contempt and postponement application an abuse having no
substantive merit – attorneys ordered personally to pay
Normandien’s costs of opposing said applications on
attorney/client scale – attorneys and counsel precluded from
recovering
fees from occupants in respect of these applications.
Appeals
– practice – papers in opposed interlocutory applications
to be indexed and paginated.
ORDER
On
appeal from:
The
Land Claims Court, Durban (Meer J sitting as court of first
instance).
(a) In
Case 512/2016 (the appeal by the Minister of Rural Development and
Land Reform):
(i) The
appeal succeeds.
(ii) The
order of the court a quo is amended by deleting para 3 and by
altering para 5 so that it commences thus: ‘The
First to
Thirteenth Respondents, jointly and severally…’.
(iii) The
parties shall bear their own costs of the appeal.
(b) In
Case 370/2017 (the appeal by Mandla Nkosi Joseph Mathimbane and
eleven others):
(i) The
appellants’ applications for condonation and for the
reinstatement of the appeal are granted.
(ii) The
appellants’ Durban attorneys,
MC
Ntshalintshali
Attorneys, shall personally
pay the respondent’s costs of opposing the said applications on
the attorney and client scale,
including the costs of two counsel.
(iii) The
appellants’ contempt and postponement application dated 11
October 2017 is dismissed.
(iv)
The appellants’ Durban attorneys,
MC
Ntshalintshali
Attorneys, shall personally
pay the respondent’s costs of opposing the said contempt and
postponement application on the attorney
and client scale, including
the costs of two counsel.
(v) The
appellants’ counsel and Durban attorneys,
MC
Ntshalintshali
Attorneys, shall not be
entitled to recover any fees from the occupants in respect of the
applications mentioned above.
(vi) The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Rogers AJA (Leach,
Saldulker and Swain JJA and Lamont AJA concurring)
Introduction
[1]
There are two matters before us, arising from
proceedings instituted in the Land Claims Court (LCC) by the present
first respondent,
Normandien Farms (Pty) Ltd (Normandien), for the
removal of livestock from its farm Albany in KwaZulu-Natal. The first
matter is
an appeal by the Minister of Rural Development and Land
Reform (Land Minister). He was the 14
th
respondent in the LCC. The second matter is an application for
condonation and reinstatement where the would-be appellants are
twelve members of the Mathimbane and Jele families. They were the 1
st
to 12
th
respondents in the LCC (the occupants). The 13
th
respondent was the Minister of Agriculture, Forestry and Fisheries
(Agriculture Minister). The 14
th
respondent was the Regional Land Claims Commissioner, KwaZulu-Natal
(Regional Commissioner).
[2]
In the LCC Meer AJP found in favour of Normandien
and dismissed a counter-application by the occupants. She refused
applications
for leave to appeal by the Land Minister and the
occupants. This court on petition granted the Land Minister and the
occupants
leave to appeal to this court.
Background
[3]
The farm forms part of a larger estate on which
Normandien conducts forestry and timber-processing operations. The
occupants have
lived on the farm for many years. Members of their
families are buried there. They graze livestock on the farm. When
Normandien
instituted proceedings in December 2013 the occupants had
285 head of cattle, 133 goats and ten horses. The number of cattle
had
increased to 360 by February 2015.
[4]
In March 2013 the occupants instituted an action
in the LCC alleging that they were labour tenants as defined in the
Land Reform
(Labour Tenants) Act 3 of 1996 (LTA) and that they had
duly submitted applications to the Director-General of the Department
of
Rural Development and Land Reform (Land Department) for the
acquisition of land as contemplated in s 16 of the LTA. As
against
Normandien they sought orders declaring in terms of s 33(2A)
that they were labour tenants and awarding a part of the farm
to
them. As against the Director-General they sought an order that
moneys be made available to compensate Normandien for the part
of the
farm to be awarded to them.
[5]
In December 2013, while the action was pending,
Normandien launched the application giving rise to the present
appeals (the removal
application). Normandien sought orders that the
livestock be removed from the farm and that the Land and Agriculture
Ministers
and/or the Regional Commissioner facilitate their removal
to alternative land. This relief was claimed on the basis that the
farm
had been severely overgrazed and that the continued presence of
the livestock on the farm contravened the Conservation of
Agricultural
Resources Act 43 of 1983 (CARA).
[6]
The occupants’ action served before
Sardiwalla AJ on 14 March 2014. Normandien’s version as to what
transpired has not
materially been placed in issue. In the days
preceding 14 March 2014 the attorneys agreed that the matter was not
ready for trial.
This was communicated to the judge in chambers. He
was not willing to postpone the case. The occupant’s counsel
indicated
that he would then have to withdraw but eventually the
parties embarked upon settlement discussions.
[7]
According to Normandien, the essence of the
settlement reached was that Normandien would concede that the
occupants were labour
tenants if they would agree to accept
alternative land or compensation in lieu of a claim to part of
Albany. The essence of the
agreement was communicated to the judge in
open court. On this basis, he made an ex tempore order, the
transcribed version of which
reads:
‘
I
grant an order in terms of para 1 declaring in terms of s 33(2A) of
the Act that the plaintiffs are labour tenants.
I
further order that the second defendant [the Director-General] will
commence forthwith with negotiations between the community
and
property owners and canvas the possibility of alternate properties
for accommodation and the process shall continue and be
completed
within 12 months from the date of this order.
The
second defendant shall provide a report – a comprehensive
report – on the following aspects within six months of
this
order:
·
Firstly,
the election that the plaintiffs have made in so far as their
acquisition of land and/or compensation;
·
Two,
the progress in acquiring such land and the status of such
acquisition;
·
Three,
the anticipated timeframes for the completion of the process of
resettlement and allocation of land to the plaintiffs.
The
costs of the application reserved.
The
matter is postponed sine die.’
[8]
On 14 March 2014 the registrar of the LCC issued
a written order purporting to give effect to the ex tempore order.
The written
order mistakenly referred to a non-existent s 23(2)
(a)
instead of s 33(2A). This was corrected, uncontroversially, on 2
April 2014. The first and third bullet points became paras
4(a) and
(c) of the written order, reading thus:
‘
4. That
the 2
nd
Defendant shall provide a comprehensive report on the following
aspects within 6 months of the date of this order:
(a) The
election that the Plaintiffs have made in so far as their acquisition
of alternative land and/or compensation.
. . .
(c) The
anticipated time frames for the completion of the process of
allocation of land and resettlement of the Plaintiffs.’
[9]
On 24 March 2014 the occupants’ attorneys
wrote to the registrar, with copies to Normandien’s attorneys
and the State
Attorney, asking that ‘some material
typographical errors’ in the written order be corrected. The
one was the incorrect
section reference. The other was para 4(a),
which – so it was said – should read: ‘The election
that the Plaintiffs
have made in so far as their acquisition of land
and/or alternative land’. This was a substantial change and was
in conflict
with the settlement, because it foreshadowed the
possibility that the occupants might elect to acquire a part of
Albany. Normandien’s
attorney says that he accepted in good
faith that the letter merely sought to correct typographical errors
and overlooked the substantial
change proposed to para 4(a).
[10]
On 2 April 2014 the registrar issued an amended
order. Apart from correcting the statutory reference, paras 4(a) and
(c) were amended
to read as follows (I have underlined the changes):
‘
(a) The
election that the Plaintiffs have made in so far as their acquisition
of
the land or
alternative land or compensation.
. . .
(c) The
anticipated time frames for the completion of the process of
allocation of land and
/or
resettlement of the Plaintiffs.’
There
is a dispute in the present appeal as to whether the amended order is
binding.
[11]
In the removal application, the Ministers and the
Regional Commissioner filed their answering papers in February 2014
but there
was silence from the occupants. In October 2014 Normandien
requested a pre-trial conference to move things along. This
conference,
presided over by Sardiwalla AJ, took place on 2 December
2014. The occupants’ counsel said that his clients had elected
to
acquire a part of Albany. Normandien’s counsel disputed
their right to do so. The State Attorney made reference to a report
by the Director-General which had not been seen by anyone else. The
judge gave directions for the circulation of the report and
said that
there should be compliance with para 4 of his order.
[12]
The Director-General’s report of September
2014, if it existed, is not in the appeal record. In a report filed a
year later
by a legal adviser in the Land Department, it was stated
that the occupants had elected to remain on Albany; that the
Department
had offered to buy Albany for R8,53 million; that this
offer was rejected and a counter-offer made to sell Albany for R400
million;
and that this counter-offer had subsequently being
withdrawn. (The counter-offer in fact related to the larger estate of
which
Albany forms part.)
[13]
The parties held a further conference during
January 2015 but remained at odds about the terms of the order in the
action and regarding
the further conduct of the removal application.
Normandien delivered a supplementary affidavit on 16 February 2015,
alleging that
the situation on the land had deteriorated and that the
number of cattle had increased. Normandien said that there were four
farms
in close proximity which the Land Department had acquired and
which would be suitable for the temporary relocation of the
occupants’
livestock.
[14]
On 26 February 2015 the occupants filed their
‘preliminary’ answering papers. They said that they could
not meaningfully
address the allegations of over-grazing without
funds to engage their own expert. They were awaiting a response to
their funding
request. At a further pre-trial conference on 14 April
2015, by which time the funding request had been granted, Sardiwalla
AJ
gave directions for the filing of the occupants’ expert
report and a meeting of experts.
[15]
The experts engaged by Normandien and the
occupants met on 1 June 2015 and reached agreement on a number of
matters, including that
there had been serious degradation of
vegetation and soil erosion as a result of uncontrolled overgrazing
and that it was imperative
for all livestock to be removed with
immediate effect. On 22 June 2015 a further meeting took place
between these experts and two
in-house experts of the KZN Department
of Agriculture and Rural Development where it was agreed (i) that
overgrazing and overstocking
were the cause of the degradation;
(ii) that the occupants had failed to act responsibly by
reducing animal numbers; (iii) that
all livestock should be
removed before 31 August 2015 and should be excluded for a five-year
period; (iv) and that a strict
resource management plan should
be drafted by October 2015 and thereafter implemented with annual
audits.
[16]
On 23 June 2015, and in accordance with a request
by the parties, the Land Department issued a report regarding
alternative land.
This report identified the beneficiaries to whom
the farms put forward by Normandien had been allocated. Two of the
farms had been
allocated to the Twala family who had 25 head of
cattle, 21 pigs, three goats and three horses. The other two farms
were allocated
to Ms NJ Mazibuko who had five head of cattle. It was
noted that large parts of these farms comprised mountainous land not
suitable
for grazing.
[17]
On 12 September 2015 the occupants delivered a
counter-application in the removal application by which they sought
the following
substantive relief:
‘
1.
That the Court issue a further order to its order of 2 April 2014
under case No LCC31/2013, including an order:
1.1 declaring
that [the occupants] have made their election in terms of paragraph 2
and 4(a) of the Court order to acquire
the property held by
[Normandien] and occupied by [the occupants], known as…;
1.2 that
the affected land and/or right in the affected land held by
[Normandien] be awarded to [the occupants];
1.3 that
[Normandien] be paid just and equitable compensation for the affected
land, as prescribed by the Constitution of the
Republic of South
Africa…for the acquisition by [the occupants] of the land;
1.4 that
the amount of compensation payable to [Normandien] be determined by
the Court;
1.5 that
the said amount of compensation be paid by the [Land Minister and
Director-General of the Land Department] on behalf
of [the
occupants], in such manner and within such period as the Court may
determine as being just and equitable.
2. Declaring
that the application by [Normandien] under case number 196/2013 [ie
the removal application] is subversive of
the Court order of 2 April
2014 and [the occupants’] rights or entitlement emanating from
such Court order.’
[18]
Answering and replying papers in the
counter-application were delivered. In its answering papers
Normandien accused the occupants’
attorneys of having acted
improperly in seeking amendments to the order and said that the
amended order was a fraud. The occupants
delivered an application to
strike out these accusations.
[19]
A further pre-trial conference was held on 17
September 2015, with Meer AJP presiding. (It appears that at some
stage the occupants
successfully applied for the recusal of
Sardiwalla AJ.) Meer AJP directed the parties to hold a conference on
7 October 2015 to
resolve various issues, including whether –
in view of the shared opinion of all the experts – there was
any obstacle
to the parties’ agreeing to the relief sought in
para 1 of the notice of motion (ie the removal of the livestock) and
whether
the Land Department was able to be of assistance in providing
alternative land.
[20]
At the conference on 7 October 2015 the parties’
representatives agreed that para 1 of Normandien’s notice of
motion
was ‘in order’ and that the joint minute by the
experts was accepted, but the occupants’ and Land Minister’s
agreement to this effect was expressed to be ‘subject to the
outcome of the counter-application’. The Land Department
maintained that it did not have alternative land because the farms in
question had been allocated to other beneficiaries. The Land
Department contended that it did not have a mandate to look for
alternative grazing land and did not have programmes or policies
for
providing alternative land for grazing use. The occupants asserted
that, by virtue of the amended order of 2 April 2014, the
LCC did not
have jurisdiction to entertain the removal application.
[21]
A final pre-trial conference before Meer AJP was
held on 15 October 2015. One of the questions raised with reference
to the order
in the action was whether the occupants had applied for
an award of land prior to 31 March 2001 in accordance with ss 16
and
17 of the LTA. Meer AJP directed the Director-General to file a
report as to whether the occupants had done so and to annex
documentary
proof. The report was delivered on 20 October 2015. In
the report Ms Pillay, a legal advisor, said that she had been told by
the
Department’s Newcastle office that the ‘original
Section 16 Notice cannot be located’ and that ‘the
Section
16 have been misplaced over the years’. The Department
was ‘undergoing a process’ of locating the notices which
had started in August 2015 and was ‘ongoing’. She
reported that the occupants’ names were on a database created
at the time from the original s 16 notices.
[22]
The removal application and counter-application
were heard by Meer AJP over the period 20-23 October 2015. No oral
evidence was
adduced. She delivered judgment on 5 November 2015 and
made the following order:
‘
1. The
[occupants] are ordered to remove all their livestock (including,
inter alia, all their cattle, goats, horses and donkeys)
presently in
their possession or under their control from the farm Albany, more
fully described as… by 15 January 2016.
2. The
[occupants] are interdicted and restrained from returning any of
their livestock as contemplated in paragraph 1 above,
or any other
livestock on to the farm for a period of 5 years from the date of
removal contemplated in paragraph 1 above.
3. The
[Land Minister] is ordered and directed to make alternative land in
close proximity to the farm and preferably [the
four farms identified
by Normandien] available to [the occupants] for the livestock to be
relocated to, by 15 January 2016. The
[Land Minister] shall further
take all steps necessary to comply with this order and to make
available all resources to do so.
4. In
the event of the Respondents failing to comply with the orders
contemplated in paragraphs 1, 2 and 3 above, and in the
event of the
[Land Minister] failing to make available such alternative land for
the grazing of the livestock aforementioned by
15 January 2016, then,
in that event an order is hereby issued that the Sheriff of Newcastle
with the assistance of the South African
Police Service,
alternatively any other registered private security company that the
Sheriff is granted leave to appoint at [Normandien’s]
expense,
shall remove all such livestock contemplated in prayer 1 above, which
[the occupants] have failed to remove from the farm,
and to take such
livestock to such other place indicated or made available by the
[Land Minister]. In the absence of the aforesaid
Respondents
indicating such other place or location, the Sheriff is ordered to
remove such livestock to the pound in Dundee, Utrecht,
Ladysmith, or
Newcastle or such other pound in Northern Natal able to accommodate
the livestock, for the pound master to deal with
in terms of the
applicable legislation dealing with pounds.
5. The
[occupants, the Agriculture Minister and the Land Minister], jointly
and severally, the one paying the other to be absolved,
are ordered
to pay [Normandien’s] costs of this application taxed on the
scale as between attorney and client, such costs
to include, inter
alia, the amounts referred to in subparagraphs 5.1 to 5.9 below …’
[23]
The Land Minister and occupants applied for leave
to appeal which the LCC refused on 16 February 2016. On 13 May 2016
and 15 June
2016 this court granted the Land Minister and the
occupants respectively leave to appeal. The occupants’ notice
of appeal
was not duly filed, as a result of which they delivered an
application for condonation and reinstatement on 6 September 2016.
This
was not opposed. On 11 October 2016 this court directed that the
appeals in the present matter be heard simultaneously with the
appeal
in a similar matter,
Adendorffs Boerderye
(Pty) Ltd v Shabalala & others
Case
997/2015 (
Adendorffs
),
and that the Land Minister file the appeal record in the present case
within one month. The appellants were directed to deliver
their heads
of argument within one month of the filing of the record and the
respondent one month later. In
Adendorffs
,
where the judgment of the LCC had been delivered by Sardiwalla AJ,
the Shabalalas were represented on appeal by the same attorneys
and
senior counsel as the occupants in the present case.
[24]
The record was duly delivered on 8 November 2016.
The Land Minister’s heads of argument were filed on 7 December
2016 and
Normandien’s on 22 December 2016. The occupants failed
to file their heads of argument. The present case and
Adendorffs
were enrolled for hearing on 28 February 2017. On 16 February 2017
the registrar notified the parties that the occupants’
appeal
had lapsed in terms of rule 10(2A)
(a)
because
of their failure to file heads. In
Adendorffs
the Shabalalas’ heads were filed on 26 February 2017, two days
before the hearing. The
Adendorffs
appeal went ahead but the appeals in the present case were postponed
to afford the occupants an opportunity to seek condonation
and
reinstatement. On 30 March 2017 the occupants delivered their
application for condonation and reinstatement. Their heads were
delivered during the first half of April 2017.
[25]
This court
delivered judgment in
Adendorffs
on 29 March 2017.
[1]
The land owner was
successful. An application by the Shabalalas for leave to appeal was
dismissed by the Constitutional Court on
6 September 2017. In the
meanwhile, the present appeals and the reinstatement application were
enrolled for hearing on 12 September
2017 but could not proceed on
that date because the occupants objected to the participation of
three of the five judges on the
basis that they had sat in
Adendorffs
.
Eventually the appeals and reinstatement application were heard on 7
November 2017.
The
contempt application
[26]
On 12 October 2017 the occupants’ attorneys
served on Normandien’s attorneys an application for orders that
Normandien,
through its representative Mr Hoatson, show cause why it
should not be declared in contempt; that Mr Hoatson be committed to
prison
for contempt, alternatively that a fine be imposed on
Normandien; barring Normandien from participating in the appeal and
in the
occupants’ application for condonation and
reinstatement; and that such appeal and application be postponed sine
die pending
the outcome of certain petition proceedings in the
Constitutional Court. This application was only served on the State
Attorney
(ie the Land Minister’s attorneys) and filed at this
court on 31 October 2017. On 30 October 2017 Normandien and Mr
Hoatson
delivered opposing papers.
[27]
The contempt application has its origins in
events which occurred in early March 2017. On 3 March 2017 Normandien
caused the occupants’
livestock to be removed to an animal
pound in accordance with para 4 of the court a quo’s order. Mr
Hoatson says that Normandien
did so in the belief that, with the
lapsing of the occupants’ appeal, Normandien was entitled to
implement para 1 of the
court a quo’s order. In response to the
removal, the occupants obtained an urgent ex parte interdict from the
LCC (per Ncube
AJ). Despite opposition, the LCC (again per Ncube AJ)
confirmed the urgent order on 24 March 2017. On 18 April 2017 the LCC
dismissed
Normandien’s application for leave to appeal. A
petition to this court was dismissed on 20 June 2017. On 11 July 2017
Normandien
applied to the Constitutional Court for leave to appeal.
That application, which is still pending, is the petition referred to
in the relief claimed in the contempt application.
[28]
On 31 July 2017 the occupants delivered an
application in the LCC for leave to execute the order of 24 March
2017 pending the final
determination of Normandien’s proposed
appeal. Normandien opposed the application which was heard on 30
October 2017. We
were informed from the bar that the occupants’
livestock remain under the control of the pound master on grazing
land he
has leased for the purpose and that they are in good
condition. There may be a dispute as to who must bear the costs of
the pound
master. Subsequent to the hearing of the appeal, we were
notified that the LCC, by a judgment dated 20 November 2017, granted
the
occupants leave to execute.
[29]
For several reasons the contempt application must
fail and is an abuse of this court’s process. The allegation of
contempt
is that Normandien’s conduct in causing the cattle to
be removed on 3 March 2017 showed disrespect to the pending appeal
process against the LCC’s judgment of 5 November 2015. If that
allegation were well founded, the occupants should have delivered
their contempt application shortly after 3 March 2017. There was no
justification for holding back until 12 October 2017. The relief
claimed in the contempt application would affect not only Normandien
but also the Land Minister, because a postponement of the
appeal was
requested. As I have mentioned, the contempt application was only
served on the State Attorney on 31 October 2017. The
late delivery of
the contempt application also inconvenienced the court.
[30]
The
assertion of contempt is in any event hopeless. The occupants need to
establish Normandien’s contempt beyond reasonable
doubt,
including the element of wilfulness, since the contempt relief they
seek is punitive.
[2]
Normandien’s
evidence is that it caused the livestock to be removed in the genuine
belief that the lapsing of the occupants’
appeal entitled it to
give effect to para 1 of the LCC’s order of 5 November 2015
through the mechanism contained in para
4. It is necessary to
emphasise that the Land Minister’s appeal is confined to paras
3, 4 and 5 of the LCC’s order,
so his pending appeal did not
suspend the operation of para 1.
[31]
In regard to para 4, the Land Minister’s
appeal would at most have suspended para 4 insofar as it concerned
the Land Minister.
I agree with the submission made by Normandien’s
counsel that para 4 of the court a quo’s order contemplated a
factual
state of affairs: if the animals were not removed by 15
January 2016 and if the Land Minister did not make land available to
the
occupants by 15 January 2016, Normandien could require the
Sheriff of Newcastle to remove the animals in accordance with para 4.
The fact that the Land Minister had not made alternative land
available because he was pursuing an appeal did not alter the simple
fact that the animals were still on the farm on 15 January 2016.
Given the dire situation on the land as agreed by all the experts,
the court a quo could not have envisaged that the removal of the
animals would be kept in abeyance for many months just because
the
Land Minister, for whatever reason, did not make alternative land
available.
[32]
Normandien’s view of the legal position
which prevailed as at 3 March 2017 may well thus have been correct
but it is unnecessary
to express a definite opinion; it suffices that
Normandien’s view cannot be said to have been one which no
reasonable person
could genuinely have entertained. For the rest,
Normandien’s conduct in relation to the LCC’s order of 3
March 2017
as confirmed on 24 March 2017 consists of the exercise of
its legal right to invoke the appellate processes of the law. It may
well be that Normandien was somewhat heavy-handed in the way it acted
on 3 March 2017. However, we cannot lose sight of the fact
that
Normandien must have been intensely frustrated by the delays which
had beset the case, largely because of the occupants’
conduct.
By March 2017, 16 months had elapsed since the court a quo made its
order, in circumstances where all the experts agreed
that the animals
could not be allowed to remain on the farm.
[33]
The occupants’ counsel repeatedly contended
that this court’s order of 20 June 2017, dismissing
Normandien’s application
for leave to appeal against Ncube AJ’s
decision, established that paras 1 - 4 of the court a quo’s
orders were inextricably
connected and that the suspension brought
about by the Land Minister’s appeal effectively suspended paras
1 - 4 in their
entirety. That is a misguided contention which places
unwarranted weight on the order of 20 June 2017. The order, as is
usual in
such cases, was made without reasons. One does not know
whether the judges in question thought that Ncube AJ was right on the
merits
or whether they thought his order was not appealable because
it was interim in nature. The order has no authority as precedent.
[34]
There is no basis for the occupants’ claim
that the present appeals should be postponed sine die pending the
determination
of Normandien’s petition to the Constitutional
Court. The decision of the Constitutional Court on the petition, and
any decision
which might follow if Normandien were granted leave to
appeal, will have no bearing on the determination of the appeals
before
us. On the contrary, it is a determination of the present
appeals which may render moot Normandien’s petition to the
Constitutional
Court and the occupants’ application in the LCC
for leave to execute. The occupants’ counsel advanced the
startling
contention that the proper course was for the parties to
agree, in terms of rule 37(6)(c) of the Uniform Rules of Court, to
refer
the applications and appeals in the present matter to the
Constitutional Court for adjudication together with the pending
petition.
Apart from the fact that Normandien’s counsel said
that his client would not agree to such a course, there is no way in
which
litigants by agreement can compel the Constitutional Court to
hear a case, far less a case where one of the issues is whether an
appeal in this court has lapsed and should be reinstated. Towards the
end of his submissions, the occupants’ lead counsel
accepted
that the sensible course was for the court to hear submissions on all
the matters before the court and to deal with all
such matters in its
judgment.
[35]
When regard is had to the occupants’ other
conduct and to the merits of the case, as discussed more fully below,
one is driven
to conclude that the contempt application was a
stratagem to delay the finalisation of the appeal so as to buy time.
The application
must be dismissed. I shall deal later with the costs
occasioned by the application.
[36]
Finally, on this aspect, I should mention that it
emerged, towards the end of the occupants’ lead counsel’s
submissions
in support of the contempt application, that he was
unaware of the answering papers which Normandien had delivered on 30
October
2017 and of the supplementary heads of argument which
Normandien filed on 31 October 27 in connection with the contempt
application.
These documents were duly served on the occupants’
Bloemfontein attorneys. It is remarkable that the occupants’
legal
representatives took no steps to ascertain whether Normandien
was opposing the contempt application; they could hardly have thought
that Normandien would allow it to go by default. We also received no
explanation as to how it was that the documents did not come
to
counsel’s attention. Be that as it may, the occupants’
counsel did not seek time to consider Normandien’s
answering
papers. And they would have had opportunity, before replying later in
the day, to read these papers and make further
submissions.
Condonation and
reinstatement
[37]
The
occupants heads of argument should have been filed within one month
of 8 November 2016, ie by 8 December 2016, whereas they
were only
served on Normandien’s Bloemfontein attorneys on 6 April 2017.
The occupants advanced an ingenious argument in
an attempt to reduce
this period of delay. They claimed that the record was only served on
their Durban attorneys on 16 November
2016 and that this is when time
began to run. Time had not finished running when the so-called
dies
non
(16
December 2016 to 15 January 2017) took effect.
[3]
This conclusion
was reached via a contention that the period of a month should be
computed with reference to court days. By this
circuitous reasoning
they arrived at the remarkable conclusion that their heads of
argument only needed to be filed by 6 February
2017. Even if that
were true, the occupants’ heads were not filed by that date nor
with a filed before the scheduled date
for the appeal on 28 February
2017.
[38]
In any event, the occupants’ argument is
spurious. The period of one month began to run from the date on which
the complete
record was served on the occupants’ Bloemfontein
attorneys, 8 November 2016. The meaning of the word ‘month’
is unambiguous. One cannot say that a ‘month’ means 30 or
31 court days and therefore, say, 40 calendar days. The one-month
period, reckoned from 8 November 2016, expired at the latest on 8
December 2016, so it is unnecessary to consider whether the
dies
non
would have applied to the one-month
direction.
[39]
The occupants’ legal representatives, who
also acted for the Shabalalas in
Adendorffs
,
knew that the appeals were meant to be heard together on 28 February
2016 and that the late filing of their heads would cause
inconvenience. In the event they only filed their heads in
Adendorffs
two days before the hearing and failed
altogether to file heads in the present matter, the result being that
the present matter
was postponed despite Normandien’s stance
that the situation on the land needed to be addressed urgently.
[40]
In its judgment in
Adendorffs
,
this court deplored the conduct of the Shabalalas’ legal
representatives. Counsel were briefed late and then decided to
take
an early Christmas break on 9 December 2016 and only resume work on
23 January 2017. This conduct was said to be ‘unreasonable’,
‘slack’ and demonstrating ‘discourteous conduct to
the court and their opponents’. The attorney had been
guilty of
‘wanton disregard’ of the rules. Although this court
granted condonation in the interests of justice, the
attorney was
ordered personally to pay the costs of the postponement and
condonation application.
[41]
The lackadaisical conduct of the occupants’
legal representatives in the present case is worse. In
Adendorffs
new counsel were engaged for the appeal and
were only briefed during November 2016. By contrast, the occupants’
present senior
counsel came on brief for the occupants during October
2015. The occupants have throughout been represented by the same
attorneys.
The occupants’ legal representatives had all the
papers and could have started preparing heads of argument even before
the
appeal record was delivered on 8 November 2016. For all practical
purposes the appeal record was complete by 9 September 2016 –
all that was missing at that stage was the occupants’ notice of
appeal.
[42]
As in
Adendorffs
,
we have decided to grant condonation and reinstatement in the
interests of justice. In doing so, we have taken into account that
the Land Minister’s appeal was properly before us and required
us in any event to deal with some of the issues raised by
the
occupants; that the prospects of success were fully debated in the
context of condonation; and that the occupants are indigent
people
and that it is undesirable that they should not have this court’s
decision on the merits. But for these circumstances,
the case may
well have been one where the non-compliance was, in the context in
which it occurred, sufficiently egregious to warrant
refusal of
condonation even if there were good prospects on the merits. I shall,
however, return to the conduct of the occupants’
legal
representatives when discussing costs.
Locus standi
[43]
The Land Minister and the occupants submitted
that Normandien lacked standing to seek relief for non-compliance
with CARA, contending
that the power to do so vested solely in the
Agriculture Minister. A similar argument was advanced and rejected in
Adendorffs
, also an
overgrazing case. An application for leave to appeal to the
Constitutional Court failed. In the present case the court
a quo
rejected the attack on Normandien’s standing on substantially
the same grounds as were endorsed by this court in
Adendorffs.
It follows that the attack on Normandien’s
standing must fail.
The
counter-application
[44]
It is convenient to deal, next, with the
occupants’ appeal against the dismissal of their
counter-application. The counter-application
focused on the amended
order of 2 April 2014. In essence, the occupants contended that in
terms of that order they had the right
to elect to be awarded the
affected part of Albany; that they had elected to do so; and that the
granting of the removal application
was incompatible with their
rights flowing from their election.
[45]
The relief sought in para 1 of the
counter-application is directed at affirming that the occupants have
the right to elect to acquire
the affected part of Albany in terms of
Sardiwalla AJ’s order of 2 April 2014 and that they have so
elected. Para 2 builds
on para 1 by contending that the removal
application is ‘subversive of’ the right the occupants
acquired pursuant to
Sardiwalla AJ’s order of 2 April 2014.
[46]
Even if the occupants were entitled to the relief
sought in para 1 of the counter-application, the relief sought in
para 2 is a
non sequitur. The fact that the occupants might have the
right to acquire the affected part of Albany does not mean that they
are
exempt from the provisions of CARA. Normandien, which was and
still is the registered owner of Albany, has standing to enforce its
provisions.
[47]
However, para 1 constitutes self-standing relief
and it is thus necessary to consider whether the occupants have the
rights which
that paragraph asserts. In dismissing the
counter-application, the court a quo reasoned thus. There was no
proof that the occupants
lodged a timeous s 16(1) application
for the award of the affected land. The LCC only has the power to
make an award of land
in terms of s 22 of the LTA if the labour
tenant has timeously lodged a s 16 application. Section 33 does
not confer
an independent power to award land. The order of 14 March
2014 and the amended order of 2 April 2014 could not clothe the LCC
with
jurisdiction to make an award of land or determine equitable
compensation.
[48]
Sardiwalla AJ’s order declaring the
occupants to be labour tenants was a permissible order in terms of
s 33(2A) of the
LTA. Such a declaration may be made whether or
not the labour tenant has lodged an application in terms of s 16.
For the rest,
the original and amended orders purportedly granted by
Sardiwalla AJ are most unsatisfactory. In terms of s 22 of the
LTA,
the LCC may order that ‘affected land’ or other land
be awarded to the labour tenant. The ‘affected land’
is
land which the labour tenant is entitled to occupy and in respect of
which he has made a timeous s 16 application. The
other land is
land held by another person (including the State) who is willing to
have such land or right therein awarded to the
tenant. An award of
other land may be made in addition to, or instead of, an award of the
affected land. I agree with the court
a quo that a timeous s 16
application is a jurisdictional pre-requisite for the awarding of
affected or other land to a labour
tenant and that s 33 is not
an independent source of power to award land.
[49]
There is nothing to show that Sardiwalla AJ took
any steps to satisfy himself that the occupants had lodged timeous
s 16 applications.
In its plea Normandien denied that they had
done so and denied that the Director-General had issued and served on
Normandien the
notice contemplated in s 17(2)
(a)
and
(b)
of
the LTA
.
Normandien
says that it was willing, for purposes of settlement, to accept an
order which presupposed compliance with s 16.
Even so,
Sardiwalla AJ should have insisted on proof of compliance. An award
of land or compensation typically gives rise to a
financial burden
for the State by virtue of the labour tenant’s right to apply
for an advance or subsidy in terms of ss 26
and 27 of the LTA.
[50]
Apart from this difficulty, the form of the order
does not accord with the LTA. An order in terms of s 22 of the
LTA must identify
the land awarded to the tenant. If the land is the
affected land, the LCC’s order would need to delineate its
extent. (The
affected land is not the whole of Albany.) If the land
is other land, the LCC’s order would need to identify such
other land.
And the LCC could not make an award of such other land
unless the relevant owner were willing to have it awarded to the
tenant.
In the present case, Sardiwalla AJ’s order envisaged a
process of negotiation between the Director-General, the occupants
and unidentified landowners, the making of an election by the
occupants, and the furnishing of a report in due course by the
Director-General.
This does not accord with any procedure laid down
in the LTA. At any rate, Sardiwalla AJ did not make an award of land
–
at most he gave directions which might in the future have
resulted in an award of land.
[51]
I thus do not think that Sardiwalla AJ’s
order (in any of its forms) constituted a final determination of the
occupants’
entitlement to an award of land or compensation. If
it emerged that the occupants failed to lodge a timeous s 16
application,
Sardiwalla AJ would have been bound to refrain from
making an award. His order did not render
res
judicata
the question whether there had been
compliance with s 16. Normandien, which was a respondent in the
counter-application, disputed
that there had been compliance. The
Director-General was unable to provide documentary proof that there
had been compliance. If
there had been due compliance, one might have
expected the application to have been referred to the LCC by the
Director-General
in terms of s 17(6) of the LTA years before the
occupants eventually instituted their action in March 2013. Given the
appalling
state of the Land Department’s Newcastle
administration, as reflected in the report of 20 October 2015, I do
not think the
presence of the occupants’ names on a database
carries much weight. Applying the well-known rules relating to
disputes of
fact in opposed motion proceedings, the occupants failed
to establish their entitlement to an award of land.
[52]
In any
event, the occupants could only succeed in the relief sought in para
1 if they established that the amended order of 2 April
2014 was
valid and binding. Although the court a quo left this question open,
I think it should be decided adversely to the occupants.
First, after
pronouncing his order of 14 March 2014 Sardiwalla J AJ was functus
officio, save to the extent that his order contemplated
further
decisions by the court. In terms of rule 64(1) of the rules
regulating LCC proceedings, the LCC may vary an order ‘which
contains an ambiguity or a patent error or omission’ in order
to ‘clarify the ambiguity or to rectify the patent error
or
omission’. This may be done by the LCC of its own accord or
upon application by a party.
[4]
In the present
case, Sardiwalla AJ did not act of his own accord and there was no
application by the occupants. There was an informal
request by
letter.
[53]
The second
of the two variations sought by the occupants’ attorneys was an
alteration of substance. It did not clarify an
ambiguity or correct a
patent error or omission. The alteration was one which purported to
confer on the occupants a right to elect
an award of the affected
part of Albany. On Normandien’s version, this was directly at
odds with the settlement. Rule 64(1)
did not empower Sardiwalla AJ to
make the alterations in question. Because he was functus officio, he
lacked jurisdiction. The
amended order of 2 April 2013, insofar as it
changed the wording of para 4, was thus a nullity.
[5]
It thus fell
within that relatively narrow class of case where a purported order
can be disregarded without taking steps to have
it formally set
aside. It would have been preferable for Normandien to have this
clarified by way of a timeous application, as
was indeed contemplated
at one stage during the pre-trial conferences, but this cannot affect
the legal conclusion that the amended
order was a nullity.
[54]
The occupants’ counsel submitted that
Normandien agreed to the amendment. That is incorrect. There is no
evidence that Normandien
communicated to the LCC that it was content
for the amendments to be made. The high watermark of the evidence is
that, having been
copied on a letter addressed to the registrar,
Normandien’s attorneys did not react, the reason being that
they failed to
appreciate that the occupants were seeking an
alteration of substance.
[55]
The other reason why the occupants’
reliance on the order of 2 April 2014 cannot succeed is that it is
inconsistent with the
settlement reached on 14 March 2014. Even if,
technically, the order of 2 April 2014 stands until set aside, it by
no means follows
that the occupants are entitled to rely on it in a
manner inconsistent with the agreement reached on 14 March 2014.
[56]
I thus conclude that the court a quo was correct
to dismiss the counter-application.
Was the removal
application an eviction?
[57]
The
dismissal of the occupants’ counter-application should be the
end of the case insofar as the removal of the livestock
is concerned,
since at the pre-trial conference on 7 October 2015 the legal
representatives for the occupants and Land Minister
accepted that
para 1 of Normandien’s notice of motion should be granted,
subject only to the counter-application. In this
court, however,
counsel for the Land Minister and for the occupants argued, in their
written submissions, that the removal application
should have been
refused because it amounted to an ‘eviction’.
[6]
The LTA defines
‘eviction’ as including ‘the deprivation of a right
of occupation or use of land’. This
would include use for
grazing.
[58]
By way of the order of 14 March 2014 the
occupants were declared to be labour tenants. They were thus entitled
to the protection
against eviction contained in the LTA. This means
that they could only be evicted if it was just and equitable and if
one or other
of the circumstances specified in s 7(2) was
present, namely if the occupants had refused or failed to provide
labour to Normandien
contrary to any agreement between them or if
they had committed such a material breach of the relationship between
themselves and
Normandien that it was not practically possible to
remedy it in a way which could reasonably restore the relationship.
[59]
In my view Normandien was not seeking to ‘evict’
the occupants within the meaning of the LTA. The term ‘eviction’
in the LTA connotes a deprivation of the right of occupation or use
of land as a result of the purported termination or repudiation
of
that right by the person in control of the land, whether the owner or
lessee. This is apparent from the circumstances which
must be present
in order to justify an eviction, as specified in s 7(2), and
from the fact that, in terms of s 6, proceedings
for eviction
can only be instituted by the owner or by someone else (eg the
lessee) with the owner’s sworn support.
[60]
In the present case Normandien did not purport to
terminate or repudiate the relationship between itself and the
occupants as labour
tenants. Normandien did not contend that the
occupants no longer had the right to reside on the farm. Normandien
did not contend
that the occupants’ right, as between
themselves and Normandien, to graze their livestock on the farm as an
incident of their
occupation was at an end. Normandien asserted that
the continued presence of the livestock on the farm contravened CARA
and that
this was damaging Normandien’s land and causing
Normandien to be in violation of its obligations under CARA. If the
Agriculture
Minister had brought proceedings to enforce CARA through
the removal of the livestock, it could hardly have been contended
that
he was applying for the occupants’ ‘eviction’
for purposes of the LTA. Such a contention would imply that the
Agriculture Minister would be powerless to act without the owner’s
sworn support, which would be untenable. The position
is no different
where a private party with locus standi seeks to enforce CARA.
[61]
The court a quo was criticised for having
supposedly failed to take into account the rights enjoyed by the
occupants as labour tenants
and the cultural importance to them of
keeping livestock. I do not think this criticism has merit. The LTA
does not exempt labour
tenants from other laws which limit the way in
which land can be used. The only exception is s 40 which
provides that if land
or a right in land has been awarded to a labour
tenant, the land in question shall not be subject to any law
regulating the subdivision
of land. Labour tenants, like everyone
else, are subject to CARA. I understood the occupants’ counsel
to concede this.
[62]
It is convenient here to mention a contention
which the occupants’ counsel made in their written heads and
which they pressed
in oral argument. They argued that in its founding
affidavit Normandien had said that it ‘defer[red] to the
guidance of the
KwaZulu-Natal Department of Agricultural and
Environmental Affairs (KZN Department) and the expertise of their
scientists referred
to in correspondence dealt with hereunder’.
The occupants’ counsel said that the said ‘guidance’
was contained
in a report by the said department dated 11 September
2012 which was annexed to the founding affidavit.
[63]
The contention is misconceived. First, Normandien
did not say that it deferred exclusively to the guidance of the
scientists of
the KZN Department; the passage from the founding
affidavit which I have quoted continued ‘and the experts
appointed by [Normandien]
at substantial costs’, ie Normandien
also ‘deferred to’, ie relied on, the view of its own
experts. The evidence
of Normandien’s experts, as contained in
the founding affidavit, was that the livestock should be removed from
the farm for
five years. Their report was issued in December 2013,
just before Normandien issued its application. The report by the KZN
Department,
issued 15 months earlier, constituted additional evidence
broadly in support of Normandien’s contention – the
report
stated that the area was heavily overstocked as a result of
which both the pasturage and the animals were in poor condition. The
KZN Department thought that the grazing lands could carry 45 head of
cattle, well short of the 285 head of cattle then on the land.
The
KZN Department’s assessment may have been right at the time it
was made but Normandien also relied on the more current
information
contained in the report of its own experts.
[64]
In any event, the information available as at
December 2013 was superseded by the more current information which
emerged when all
the experts, including the expert engaged for the
occupants, met during 2015 in accordance with the pre-trial
directions of the
court a quo. That was the information on which the
court a quo was required to act.
The relief granted
against Land Minister
[65]
The court a quo ordered the Land Minister to make
alternative land available for the relocation of the occupants’
livestock.
The Land Minister argues that this was impermissible as he
neither has the power nor the duty to make alternative land available
to labour tenants for grazing use.
[66]
The court a quo did not base its decision
directly on the LTA. The LCC has yet to determine whether the
occupants, as labour tenants,
are entitled to an award of land and if
so what land and for what compensation. The occupants are thus not in
a position to apply
to the Land Minister for an advance or subsidy in
terms of s 27 of the LTA.
[67]
The court a quo relied, instead, on the Land
Minister’s duties in terms of the Land Reform: Provision of
Land and Assistance
Act 126 of 1993 (Reform Act). Section 1A of the
Reform Act states that its objects are inter alia to give effect to
the land and
related reform obligations of the State in terms of s 25
of the Constitution and to promote economic growth and the
empowerment
of historically disadvantaged persons. Section 25(5) of
the Constitution requires the State to take reasonable legislative
and
other measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an
equitable
basis. Section 25(6) provides that 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.
[68]
Section 10(1) of the Reform Act empowers the Land
Minister, from money appropriated by Parliament, to acquire property
and, inter
alia, to make State land available which he or she
considers suitable for the achievement of the objects of the Reform
Act, whether
in general or in specific cases. The court a quo found
that s 10, when read together with the objects of the Reform Act
and
the provisions of s 25 of the Constitution, imposed on the
Land Minister a duty in the present case to make alternative grazing
land available to the occupants.
[69]
I can understand why the court a quo was anxious
to reach a finding that the Land Minister was obliged to do so. If
the Land Minister
is not obliged to make alternative land available,
the occupants will not be relieved of the obligation to remove their
livestock
from Albany. Unless they could find alternative land by
their own endeavours, they would have to sell their livestock.
Nevertheless,
I consider that the court a quo erred in making the
orders it did against the Land Minister.
[70]
In the first place, in order for land to be made
available in terms of the Reform Act, it must be designated by the
Land Minister
in terms of s 2 of the Act. In terms of that
section, the designation must be ‘for the purposes of
settlement’.
The word ‘settlement’ is defined in
s 1 as meaning ‘the settlement of persons on designated
land…’.
Section 10 of the Act, on which the court a quo
relied, appears to me to be the mechanism by which land is brought
within the purview
of the Act. Land may be acquired by the Land
Minister, or existing State land may be made available by the Land
Minister, if he
or she considers the land suitable for the
achievement of the objects of the Act, in general or in specific
cases. Once land has
been made available for purposes of the Act in
accordance with s 10, it must still be designated in terms of
s 2 and
the further procedures set out in ss 3-9 must still
be followed.
[71]
It follows that it would not be within the power
of the Land Minister to make grazing land available to the occupants
unless the
designation of land for that purpose would be a
designation ‘for the purposes of settlement’. Since
‘settlement’
means the ‘settlement of persons’,
a conclusion adverse to the Land Minister would require us to find
that people may
be settled on land even though their occupation of
the land in question does not include residence and is confined to
being on
the land for purposes of looking after their livestock. That
appears to me to be a somewhat strained interpretation.
[72]
However, and even if the Reform Act were capable
of an interpretation adverse to the Land Minister (a question on
which I prefer
not to express a final conclusion), it by no means
follows that he was obliged to exercise his powers under the Reform
Act to make
grazing land available to the occupants for five years.
His powers under the Act are permissive and it is for him, not the
court,
to determine whether those powers should be exercised in a
given instance. The court’s role is confined to testing the
lawfulness
of his decisions.
[73]
The procedure followed in the present case was
not a review in terms of rule 53. If the review procedure had been
followed, it is
probable that fuller information would have been
placed before the court concerning the other farms and the
beneficiaries who have
been settled there. Even in successful review
proceedings, the court would ordinarily remit the matter to the
decision-maker. Only
in exceptional circumstances can the court give
a substituted decision. I do not consider that the court a quo was
entitled in
the present case to order the Land Minister to exercise
his supposed powers under the Reform Act to make grazing land
available
to the occupants. If he misconceived his powers by giving a
wrong interpretation to the Reform Act, the correct relief would have
been to require him to reconsider the matter.
[74]
In the present case, however, it is unnecessary
to remit anything to the Land Minister. We have not decided that the
Land Minister
has the power to make grazing land available to the
occupants in terms of the Reform Act. Normandien’s interests
are sufficiently
met by the orders granted against the occupants. If
the occupants consider that the Land Minister has a statutory duty to
assist
them, they will be free to approach the Land Department. I
should add that the occupants’ counsel did not advance any
submissions
against the Land Minister’s appeal.
[75]
We asked the Land Minister’s counsel
whether there was any other way in which her client could come to the
occupants’
assistance for the period during which their
livestock must be removed from Albany. She said that the Land
Department could assist
the occupants if they were willing to accept
alternative land as contemplated in Sardiwalla AJ’s order and
forego their claim
to Albany, because then they, together with their
livestock, could be settled on alternative land. This was permissible
in terms
of the Reform Act. However, and for as long as the occupants
insist on asserting a claim to the affected portion of Albany, the
Land Department cannot assist them with alternative land solely for
purposes of grazing.
Costs
and conclusion
[76]
The court a
quo ordered the Ministers and occupants, jointly and severally, to
pay Normandien’s costs on the attorney and
client scale. In
view of our decision to uphold the Land Minister’s appeal, the
costs order against him must be reconsidered.
In the court a quo the
Land Minister resisted all the relief claimed by Normandien. On the
other hand, it is unlikely that the
Land Minister would have entered
the lists if no relief had been sought against him. In claiming
relief against the Land Minister,
Normandien was seeking to
ameliorate the hardship which the occupants would inevitably suffer
pursuant to the granting of paras
1 and 2 of the order. The case
against the Land Minister had a strong constitutional dimension. The
occupants are a previously
disadvantaged community. The LTA, under
which the occupants have been declared to be labour tenants, is a
statute giving effect
to s 25 of the Constitution. In order to
safeguard the occupants’ labour tenancy in the face of CARA,
they needed alternative
grazing land unless they were to sell their
livestock. There was an argument to be made that the Reform Act,
which is another statute
giving effect to s 25 of the
Constitution, could be invoked.
[77]
Normandien
argued, in my view correctly, that in these circumstances the
Biowatch
principle
[7]
should be followed in regard to costs. The Land Minister’s
counsel did not resist this contention though she did not have
formal
instructions to concede it. Recent decisions of the Constitutional
Court have been critical of lower courts’ failure
to embrace
Biowatch
and
have admonished all courts to apply
Biowatch
in constitutional litigation between private parties and the State
unless the proceedings are vexatious or frivolous or characterised
by
conduct worthy of censure.
[8]
Accordingly, Normandien and the Land Minister should bear their own
costs in relation to the relief sought in the court a quo against
the
Land Minister.
[78]
In this court, these parties should likewise bear
their own costs in respect of the Land Minister’s appeal. The
Land Minister’s
success on appeal will require us to set aside
para 3 of the court a quo’s order and to exclude the Land
Minister from the
ambit of the costs order contained in para 5. The
Land Minister did not appeal against the separate cost order made in
para 7 (this
related to a postponement application). Although para 4
of the court a quo’s order mentions the Land Minister, it does
not
impose any obligation on him. As a fact, the Land Minister did
not make alternative land available by 15 January 2016. It is
unnecessary
in the circumstances to alter para 4.
[79]
Biowatch
does not
apply as between Normandien and the occupants since both sides are
private litigants. In ordering costs against the occupants
on a
punitive scale, the court a quo regarded as apt Normandien’s
characterisation of the counter-application as frivolous
and
vexatious, particularly in the light of the unanimous opinion of the
experts that serious overgrazing had occurred and that
livestock
should be removed from the land for five years. The court a quo also
took into account that the occupants had been guilty
of unacceptable
dilatoriness in the conduct of the proceedings. We can only interfere
if the court a quo acted on a wrong principle
or materially
misdirected itself. I am unable so to find.
[80]
In respect of the occupants’ unsuccessful
appeal in this court, the occupants must pay Normandien’s
costs, including
the costs of two counsel. Normandien did not ask for
a punitive costs order in respect of the appeal.
[81]
The condonation and contempt applications stand
on a different footing. Normandien seeks punitive costs orders
against the occupants’
attorneys personally. For similar
reasons to those given in
Adendorffs
,
such an order is plainly warranted insofar as the condonation and
reinstatement application is concerned. A similar order is justified
in relation to the contempt application. It was a stratagem, without
substantive merit, to delay the hearing of the present appeal.
The
fact that it was brought cannot be attributed to the occupants. Their
chief deponent described himself as having no formal
education. Their
attorneys needed to explain the papers to him. The conclusion is
irresistible that the contempt application was
a strategy devised by
the occupiers’ legal representatives.
[82]
The
occupants’ counsel submitted that in contempt proceedings the
applicant is simply an informant who places information
before the
court which then determines whether the respondent should be
punished. There should thus be no costs order against an
informant if
the contempt application fails. In support of the submission he cited
some very old authorities and the slightly less
ancient case of
Naude
en ʼn ander v Searle
1970
(1) SA 388
(O). The latter decision holds that if an applicant seeks
no more than the respondent’s punishment for contempt, he is an
informant and cannot claim costs if the court punishes the
respondent. Even if this decision is good law, it is distinguishable
because the occupants’ contempt application has failed and
because the occupants did not merely seek Normandien’s
punishment – they sought orders that Normandien be precluded
from participating in the condonation application and the appeal
and
that all of these matters be postponed sine die. I should add,
though, that the occupants’ submission does not accord
with
modern practice, where costs are usually awarded against parties who
unsuccessfully seek contempt orders, as recent decisions
of this
court show.
[9]
[83]
I do not think it is right that only the
occupants’ attorneys should feel the consequences of what were
joint failings by
the legal team. As a mark of disapproval, I
consider that the occupants’ attorneys and counsel should be
precluded from recovering
any fees from the occupants in respect of
the condonation and contempt applications.
[84]
Finally, it is necessary to say something about
the interlocutory papers in the present matters. There were two
condonation applications
and the contempt application. Over the
period March 2017 to early November 2017
,
affidavits in the main condonation application and in the contempt
application were filed with no attempt at indexing and paginating
the
papers. This made the court’s preparation for the hearing
difficult and would have made argument impossible but for the
fact
that, shortly before the hearing, the presiding judge directed that
the papers be indexed and paginated. I am authorised by
the presiding
judge, who has discussed the matter with the President of this court,
to say that in future practitioners should
ensure that opposed
interlocutory in this court are paginated and indexed. The founding
papers in an interlocutory application
should, when served, already
be paginated and be accompanied by a preliminary index; further
affidavits in the application should
continue the pagination and
should already be so paginated when served, and should be accompanied
by an updated index. In so far
as needs be, the attorneys for the
litigants should liaise with each other to ensure that the system of
pagination and updated
indexing is implemented without confusion.
[85]
I accordingly make the following order:
(a) In
Case 512/2016 (the appeal by the Minister of Rural Development and
Land Reform):
(i) The
appeal succeeds.
(ii) The order
of the court a quo is amended by deleting para 3 and by altering para
5 so that it commences thus: ‘The
First to Thirteenth
Respondents, jointly and severally…’.
(iii) The parties
shall bear their own costs of the appeal.
(b) In Case
370/2017 (the appeal by Mandla Nkosi Joseph Mathimbane and eleven
others):
(i) The
appellants’ applications for condonation and for the
reinstatement of the appeal are granted.
(ii) The
appellants’ Durban attorneys,
MC
Ntshalintshali
Attorneys, shall personally
pay the respondent’s costs of opposing the said applications on
the attorney and client scale,
including the costs of two counsel.
(iii) The
appellants’ contempt and postponement application dated 11
October 2017 is dismissed.
(iv) The appellants’
Durban attorneys,
MC
Ntshalintshali
Attorneys, shall personally
pay the respondent’s costs of opposing the said contempt and
postponement application on the attorney
and client scale, including
the costs of two counsel.
(v) The
appellants’ counsel and Durban attorneys,
MC
Ntshalintshali
Attorneys, shall not be
entitled to recover any fees from the occupants in respect of the
applications mentioned above.
(vi) The
appeal is dismissed with costs, including the costs of two counsel.
______________________
OL Rogers
Acting Judge of Appeal
APPEARANCES
For Appellant in Case
512 and for
3
rd
Respondent in Case 370/2017
TV
Norman SC (with her ZP Mhlongo
Instructed
by
State
Attorney, Durban c/o State Attorney,
Bloemfontein
For 1
st
Respondent in Cases
512/2016 and 370/2017
MG
Roberts SC (with him C Hattingh)
Instructed
by
Vinnicombe
& Associates, Thornville c/o
Symington
& De Kok, Bloemfontein
For Appellants in Case
370/2017
and for 2
nd
to 13
th
Respondents in
Case 512/2016
G
Shakoane SC (with him MC Ntshangase)
Instructed
by
MC
Ntshalintshali Attorneys, Durban c/o Molefi
Thoabala
Inc, Bloemfontein
[1]
Adendorffs
Boerderye (Pty) Ltd v Shabalala & others
(997/15)
[2017] ZASCA 37.
[2]
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006 (4) SA 326
(SCA) para 42;
Pheko
v
Ekurhuleni Metropolitan Municipality (No 2)
[2015]
ZACC 10
;
2015 (5) SA 600
(CC) paras 34-37;
Matjhabeng
Local
Municipality v Eskom Holdings Ltd & others
[2017]
ZACC 35
para 67.
[3]
In terms of rule 1(2)
(b)
of
this court's rules, the period between 16 December and 15 January
(both dates inclusive) shall not be taken into account in
the
calculation of any period 'in terms of these rules'.
[4]
Section
35(11) of the Restitution of Land Rights Act 22 of 1994 (Restitution
Act) sets out the grounds on which the LCC may rescind
or vary
orders made in terms of that Act. However, s 35 of the
Restitution Act is not among the provisions made applicable
to the
LCC when functioning in terms of the LTA (see
s 30(1) of the LTA which sets out the provisions of the
Restitution Act which apply to the performance of the LCC's
functions
in terms of the LTA.
[5]
Tödt
v Ipser
1993 (3) SA 577
(A) at 589C-D;
Vidavsky
v Body Corporate of Sunhill Villas
2005
(5) SA 200
(SCA) para 14;
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO & others
[2011]
ZASCA 238
;
2012 (3) SA 325
(SCA) para 14.
[6]
T
his
argument had no place in the Land Minister’s heads of argument
because it did not relate to the orders against which
the Land
Minister had leave to appeal. In fairness to the Land Minister’s
counsel, I should add that they did not make
oral submissions on
this part of the case.
[7]
Biowatch
Trust v Registrar, Genetic Resources, & others
[2009]
ZACC 14; 2009 (6) SA 232 (CC).
[8]
See
Hotz
& others v
University
of Cape Town
[2017]
ZACC 10
;
2017 (7) BCLR 815
(CC) paras 34-37;
Harrielall
v University of KwaZulu-Natal
(CCT100/17)
[2017] ZACC 38
para 11;
Ferguson
& others v Rhodes University
(CCT187/17)
[2017] ZACC 39
paras 24-26.
[9]
For
cases where unsuccessful applicants for contempt were ordered to pay
costs, see, eg,
Jeebhai
& others v Minister of Home Affairs & another
[2009]
ZASCA 35; 2009 (5) SA 54 (SCA) paras 55 and 67;
Cathay
Pacific Airways Ltd & another v Lin & another
[2017]
ZASCA 35; [2017] 2 All SA 722 (SCA) paras 47-48;
Mashamaite
& others v Mogalakwena Local Municipality & others; Member
of the Executive Council for Coghsta, Limpopo &
another v Kekana
& others
(523/2016;
548/2016)
[2017] ZASCA 43; [2017] ZASCA 43; [2017] 2 All SA 740 (SCA)
para
54;
Lourens
v Premier of the Free State Province & another
(566/2016)
[2017] ZASCA 60 paras 10-16.