Colchester Zoo SA Properties (Pty) Limited v Mdakane and Others (1108/2017) [2018] ZASCA 188 (13 December 2018)

80 Reportability

Land and Property Law

Brief Summary

Land — Land reform — Occupancy under Extension of Security of Tenure Act 62 of 1997 — Second respondent claimed to be an occupier on appellant's farm — Land Claims Court declared second respondent an occupier despite his lengthy absence from the farm — Appellant contended second respondent was not an occupier and sought eviction — Appeal upheld, finding second respondent did not meet the definition of 'occupier' under ESTA — Matter referred back to Land Claims Court for determination of eviction order.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal in the Supreme Court of Appeal of South Africa from a judgment and order of the Land Claims Court, Randburg (Yacoob AJ sitting as court of first instance). The appellant, Colchester Zoo SA Properties (Pty) Limited, challenged aspects of the Land Claims Court’s order made in litigation concerning rights of occupation and eviction on a farm.

The first and second respondents, Ms Mantombi Maurine Mdakane and Mr Sifiso Maduna, had instituted proceedings in the Land Claims Court seeking to be declared labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996. The appellant, as owner of the farm, opposed that claim and advanced a counterclaim seeking the eviction of the second respondent from a homestead on the farm.

After a trial lasting approximately 12 days, the Land Claims Court dismissed the labour-tenant claim and, on the counterclaim, made an order declaring the second respondent to be an “occupier” under the Extension of Security of Tenure Act 62 of 1997 (ESTA) and stated that he could only be evicted in terms of ESTA. The appellant appealed, with leave of the Land Claims Court, on the basis that the second respondent was not an ESTA occupier and that eviction should follow.

The general subject-matter of the dispute was therefore the status-based protection against eviction in land reform legislation, specifically whether the second respondent met ESTA’s definition of “occupier” (through “residing” on the land), and what the consequences were for the appellant’s attempt to evict him.

2. Material Facts

The appellant became the registered owner of the farm Geluk in KwaZulu-Natal on 7 April 2015. On 24 August 2015, the first and second respondents launched an action in the Land Claims Court for an order declaring them to be labour tenants in terms of the Land Reform (Labour Tenants) Act 3 of 1996.

It was common cause that the Mdakane family was present on the farm. The presence of the Maduna family on the farm was disputed in the labour-tenant litigation, but for purposes of the ESTA enquiry on appeal, the judgment focused on the second respondent’s own evidence concerning his pattern of presence and absence.

The second respondent testified to the following history, which the court treated as uncontroverted in its essentials. He arrived on the farm with his family in approximately 1989 when he was six years old. His late father was employed on the farm by an erstwhile owner (Mr Mills), and the second respondent himself also worked on the farm during school holidays. After matriculating in 2003, he began working on the farm. In 2006, ownership changed when Mr Mills sold the farm to Weenen Safari CC. The second respondent’s father died in 2011.

The second respondent’s account of his later movements was central to the ESTA “residing” enquiry. He testified that in 2007 he left for Johannesburg for employment and lived there because daily travel to and from the farm was not feasible. He stated that he would return during December holidays. In 2011 he returned to nurse his sick father for about three months; after his father’s death, he left the farm again in 2012. Thereafter, he stated he was on the farm during the Easter holidays in 2014, and then only again a few days before he testified in the Land Claims Court (in late September/early October 2016).

The Land Claims Court nevertheless declared the second respondent to be an ESTA occupier. The appellant’s case on appeal was that this conclusion was incorrect, and that the second respondent did not fall under ESTA’s protections as an occupier.

3. Legal Issues

The central legal question was whether the second respondent was an “occupier” as defined in section 1(1) of the Extension of Security of Tenure Act 62 of 1997, which required (among other elements) that the person be “residing” on land belonging to another with the requisite consent or right.

This enquiry required the court to determine how the concept of “residing” should be applied to the second respondent’s proven pattern of presence and absence. The dispute was therefore primarily one of the application of law to fact, informed by the interpretive approach to “reside” adopted in earlier authorities and by the objects of ESTA.

A further issue arose consequentially: if the second respondent was not an ESTA occupier, whether an eviction order should automatically follow, or whether further proceedings and considerations were required before eviction could be ordered.

4. Court’s Reasoning

The Supreme Court of Appeal identified ESTA’s definition of “occupier” as requiring that a person be residing on the land with the required consent or legal right. It noted that the Land Claims Court had relied on its own earlier decision in Mathebula v Harry 2016 (5) SA 534, which in turn applied the Supreme Court of Appeal’s approach to “reside” in Kiepersol Poultry Farm Pty Ltd v Phasiya 2010 (3) SA 152 (SCA); [2009] ZASCA 119.

The reasoning adopted in those authorities, as discussed in the judgment, treated “residing” as an enquiry that should not be reduced to a mathematical count of days spent on the farm, and should not depend merely on subjective views of the landowner or the person asserting residence. The court accepted that there must be a degree of actual physical presence, and that physical presence need not be continuous because it may be interrupted by economic factors such as employment elsewhere. However, where absence is explained by such factors, there must at least be an intention to return on a permanent basis, and that intention must be exhibited by conduct, so that the enquiry remains directed at whether the place is the person’s permanent home.

The court accepted that, given socio-economic realities and ESTA’s purpose, the interpretive approach to “reside” adopted in Mathebula was correctly framed in principle. It then distinguished the facts of Mathebula from those before it. In Mathebula, the Land Claims Court had found sufficient residence where the deceased stayed on the farm on weekends and stayed at his workplace during the week, supporting a conclusion of continued residence on the farm.

In the present matter, the Supreme Court of Appeal accepted that the second respondent subjectively regarded the homestead as an ancestral home and that family rituals were conducted there, with both his parents buried on the farm. Nonetheless, it concluded that the factual pattern of the second respondent’s presence did not satisfy the required degree of actual physical presence coupled with an intention, shown by conduct, to return permanently. The court regarded as significant the second respondent’s lengthy absence from the Easter holidays in 2014 until shortly before his testimony in late 2016, and it considered that absence to be inexplicable on the evidence as presented.

On that basis, the court held that, on the second respondent’s own evidence before the Land Claims Court, he could not be said to have “resided” on the farm in the sense required by ESTA, and therefore he was not an occupier under ESTA.

Turning to the eviction question, the court rejected the proposition that a finding of “not an occupier” necessarily meant that an eviction order should immediately be granted. It indicated that eviction would depend on whether the applicable legislation had been complied with and whether it would be just and equitable to grant eviction. A practical difficulty identified by the court was that the appellant did not know the second respondent’s present whereabouts, nor (if he was present on the farm) what his current circumstances were. In these circumstances, the court considered it appropriate that the eviction claim be referred back to the Land Claims Court for determination should the appellant persist in pursuing eviction.

The court also recorded that the second respondent was unrepresented in the appeal and that an amicus curiae had been appointed to assist the court. No costs order was sought.

5. Outcome and Relief

The appeal was upheld to a limited extent. The Supreme Court of Appeal set aside specified paragraphs of the Land Claims Court order (as identified in the Supreme Court of Appeal’s order), and it did not confirm the Land Claims Court’s declaration that the second respondent was an ESTA occupier.

The appellant’s claim for eviction of the second respondent was not finally determined by the Supreme Court of Appeal. Instead, it was referred to the Land Claims Court for determination, in light of the need for appropriate factual findings and consideration of the statutory and equitable requirements governing eviction.

There was no order as to the costs of the appeal, including the costs of the application for leave to appeal.

Cases Cited

Mathebula v Harry 2016 (5) SA 534.

Kiepersol Poultry Farm Pty Ltd v Phasiya 2010 (3) SA 152 (SCA); [2009] ZASCA 119.

Legislation Cited

Extension of Security of Tenure Act 62 of 1997.

Land Reform (Labour Tenants) Act 3 of 1996.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that, on the second respondent’s own evidence, he did not meet ESTA’s requirement of “residing” on the land and therefore was not an “occupier” under the Extension of Security of Tenure Act 62 of 1997.

The court further held that a finding that the second respondent was not an ESTA occupier did not automatically justify an eviction order. The eviction claim required further determination, including consideration of compliance with the applicable legislative framework and the just and equitable standard, and was therefore referred back to the Land Claims Court.

LEGAL PRINCIPLES

The concept of “reside” in ESTA’s definition of “occupier” entails an enquiry directed at whether the land constitutes the person’s permanent home, and it is not determined by a mechanical calculation of the number of days spent on the property or by the subjective views of the parties.

A sufficient degree of actual physical presence is required, but actual presence need not be continuous; it may be interrupted by economic factors such as employment elsewhere. Where physical presence is interrupted, residence requires an intention to return on a permanent basis, and that intention must be demonstrated by conduct.

A conclusion that a person is not an ESTA occupier does not necessarily mean that eviction should follow as a matter of course. Whether eviction should be ordered depends on compliance with the applicable legislative requirements and on whether eviction would be just and equitable on the facts properly established.