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[2007] ZASCA 63
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Chagi v Singisi Forest Products (227/2006_) [2007] ZASCA 63; 2007 (5) SA 513 (SCA) (29 May 2007)
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THE
S
UPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
CASE NO 227/2006
In
the matter between
NOMTHANDAZO CHAGI &
OTHERS
...............................
Appellants
and
SINGISI FOREST
PRODUCTS (PTY) LTD
...............................
Respondent
Coram: Harms ADP,
Lewis, Van Heerden, Jafta JJA and Musi AJA
Heard: 9 MAY 2007
Delivered:
29 MAY 2007
Summary:
Act 62 of 1997 – land – meaning thereof – s 9
applies only to evictions from the registered piece of land
as a
whole.
Neutral
citation: This judgment may be referred to as
Chagi
v Singisi Forest Products
[2007] SCA
63 (RSA)
___________________________________________________________
JUDGMENT
JAFTA JA
[1] The central
issue in this matter is whether the employer’s relocation of
its workers from one set of houses to another on
the same piece of
land constitutes an eviction as contemplated in the
Extension of
Security of Tenure Act 62 of 1997
. Claiming to be occupiers of land
as defined in the Act, the appellants instituted an application in
the magistrate’s court
of Harding for an interdict, restraining
the respondent from relocating them from Kynoch Village to Weza
Sawmill Village on the same
registered land unit in Singisi Forest,
Harding without complying with the requirements of the Act. They also
sought an order interdicting
the respondent from deducting R648 per
month from their wages as rent for the houses they presently occupy.
The magistrate dismissed
the application with costs. Their appeal to
the Land Claims Court was also dismissed with costs. This appeal
comes before us with
leave granted by the court below.
[2] The
facts are largely not in dispute. The appellants are employees of the
respondent which conducts business in the forestry and
sawmilling
industry, on a piece of land described as Lot St Mary’s B No
5043ES Singisi Forest, in the district of Harding,
KwaZulu-Natal. The
appellants were previously employed by the South African Forestry
Company Limited (SAFCOL) which sold its business,
as a going concern,
to the respondent in August 2001. As required by
s 197
of the
Labour
Relations Act 66 of 1995
, the appellants’ employment contracts
were transferred from SAFCOL to the respondent simultaneously with
the business. The
section provides for an automatic transfer of
rights and obligations between the seller and each employee to the
purchaser, on the
same terms and conditions. In essence the purchaser
replaces the seller as the employer without the need to conclude new
employment
contracts (
National Education
Health and Allied Workers Union v University of Cape Town
2003 (3) SA 1
(CC)). However, the workers may decide to
terminate their employment or enter into new agreements with the
purchaser.
[3] In this matter
the appellants accepted transfer of their employment agreements by
concluding new agreements incorporating the
terms and conditions
which applied to their employment with SAFCOL. SAFCOL’s
conditions of employment provided, inter alia,
that ‘[h]ousing
on a tenancy basis as approved by the Chief Executive shall be
arranged where necessary at the discretion of
the Company’.
Consistently with
this term the parties included the following clause in their
agreement:
‘
6.3
Depending on your position, the Company may provide you with housing
or accommodation for which a reasonable market-related rental
will be
charged (presently 2.5% of pensionable remuneration for married
quarters and 1% of pensionable remuneration for single quarters).
This rental may be reviewed from time to time. You will pay a fixed
subsidised amount per electricity unit for electricity usage,
and
this amount will be adjusted when necessary.’
[4] Before the
respondent became the employer, SAFCOL had separate accommodation for
the salary earning and the wage earning employees.
The rent fixed at
2.5 per cent and 1 per cent of pensionable wages applied to the
married and single wage-earning employees such
as the appellants.
However, at some point there were vacant houses at Kynoch Village
where the salary-earning employees were accommodated.
Fearing that
they would be vandalised, SAFCOL permitted the appellants to occupy
them at the rental rate applicable to wage-earning
employees. This
was a temporary arrangement between the employer and the employees.
But the arrangement continued even after the
takeover of the business
by the respondent. Upon becoming the employer, the respondent excused
all wage-earning employees from paying
rent.
[5] The
salary-earning employees were required to pay a market-related rent
which amounted to R648 per month as at the time the present
dispute
arose, whereas the appellants were paying nothing for the same
accommodation. This caused discontent among the salary-earning
employees. The other wage-earning employees were also dissatisfied
with the fact that the appellants continued to enjoy accommodation
to
which they had no access. In order to resolve the conflict the
respondent asked the appellants to vacate the houses they are
occupying
and take occupation of houses earmarked for wage-earning
employees at Weza Sawmill Village, situated on the same piece of
land. The
appellants declined to vacate. As an alternative solution,
the respondent proposed that the appellants pay rent in the sum of
R648
like the other employees occupying the same type of houses. Once
again the appellants refused. Instead they proposed to pay rent
fixed
at R140 per month.
[6] When their
counter-offer was rejected and the amounts of R648 were deducted from
their wages, as already mentioned, they instituted
an application in
the magistrate’s court for an interdict restraining the
respondent from deducting the sum of R648 from their
wages, and
relocating them to the new houses. The respondent opposed this and
brought a counter-application for an order declaring
that the
proposed relocation did not constitute an eviction as envisaged in
the Act. It argued that the Act does not apply to the
case. As stated
above, the magistrate dismissed their application and granted a
declarator in favour of the respondent. Since the
respondent had
given an undertaking to the effect that deductions would no longer be
made from their wages, the magistrate apparently
saw it unnecessary
to deal with that part of the case. The approach by the magistrate
was, in my view, correct because the need for
an interdict had fallen
away.
[7] In refusing to
vacate the appellants do not claim any legal entitlement justifying
their continued occupation of the houses in
question. Indeed their
contracts of employment do not entitle them to occupy those
particular houses. Their occupation was based
on the consent given by
SAFCOL which the parties on both sides understood to be a temporary
arrangement. The respondent, as SAFCOL’s
successor, was
entitled to withdraw such consent and the appellants do not argue
otherwise. But they contend that since their occupation
was based on
the owner’s consent, the source of their right to reside on the
land is s 6 of the Act and this right can only
be terminated and
their eviction authorised in terms of the relevant sections of the
Act. Accordingly, so they argue, the respondent
can only evict them
upon compliance with the requirements of s 9 of the Act. This
argument is based on the assumption that the respondent’s
demand for them to vacate constitutes an eviction as contemplated in
the Act.
[8] The procedural
safeguards provided for in s 9 are available only to occupiers who
are evicted from land occupied with consent
of the owner or a person
in charge or with another right in law to reside on the land. In
other words the Act protects lawful occupiers
of land belonging to
another person. But before s 9 can be invoked there must be a
termination of the right of residence as envisaged
in s 8 of the Act.
Although the appellants have not shown that such termination has
taken place in this matter, I shall assume in
their favour that the
respondent’s withdrawal of the consent constitutes the
requisite termination.
[9] The question
that arises for consideration is whether the proposed relocation
amounts to an eviction as contemplated in the Act.
The answer to this
question lies in the true meaning of the word ‘land’ as
used in the definition of ‘evict’.
In terms of s 1 of the
Act, ‘“evict” means to deprive a person against his
or her will of residence on land or
the use of land or the use of
water which is linked to a right of residence in terms of this Act,
and “eviction” has
a corresponding meaning’. The
definition makes it clear that the object of the right of residence
is land and not a dwelling
house.
[10] Section 6 in
turn confers upon occupiers such as the present appellants the right
to reside on land that belongs to another person.
It provides:
‘
(1)
Subject to the provisions of this Act, an occupier shall have the
right to reside on and use the land on which he or she resided
and
which he or she used on or after 4 February 1997, and to
have access to such services as had been agreed upon with
the owner
or person in charge, whether expressly or tacitly.
(2) Without prejudice to the generality
of the provisions of section 5 and subsection (1), and balanced with
the rights of the owner
or person in charge, an occupier shall have
the right–
(a) to security of tenure;
(b) to receive bona fide visitors at
reasonable times and for reasonable periods: Provided that–
(i) the owner or person in charge may
impose reasonable conditions that are normally applicable to visitors
entering such land in
order to safeguard life or property or to
prevent the undue disruption of work on the land; and
(ii) the occupier shall be liable for any
act, omission or conduct of any of his or her visitors causing damage
to others while such
a visitor is on the land if the occupier, by
taking reasonable steps, could have prevented such damage;
(c) to receive postal or other
communication;
(d) to family life in accordance with the
culture of that family: Provided that this right shall not apply in
respect of single sex
accommodation provided in hostels erected
before 4 February 1997;
(dA) to bury a deceased member of his or
her family who, at the time of that person’s death, was
residing on the land on which
the occupier is residing, in accordance
with their religion or cultural belief, if an established practice in
respect of the land
exists;
(e) not to be denied or deprived of
access to water; and
(f) not to be denied or deprived of
access to educational or health services.
(3) An occupier may not-
(a) intentionally and unlawfully harm any
other person occupying the land;
(b) intentionally and unlawfully cause
material damage to the property of the owner or person in charge;
(c) engage in conduct which threatens or
intimidates others who lawfully occupy the land or other land in the
vicinity; or
(d) enable or assist unauthorised persons
to establish new dwellings on the land in question.
(4) Any person shall have the right to
visit and maintain his or her family graves on land which belongs to
another person, subject
to any reasonable condition imposed by the
owner or person in charge of such land in order to safeguard life or
property or to prevent
the undue disruption of work on the land.
(5) The family members of an occupier
contemplated in section 8(4) of this Act shall on his or her death
have a right to bury that
occupier on the land on which he or she was
residing at the time of his or her death, in accordance with their
religion or cultural
belief, subject to any reasonable conditions
which are not more onerous than those prescribed and that may be
imposed by the owner
or person in charge.’
[11] Section 9
restricts the landowner’s authority to evict persons who occupy
its land in terms of s 6. It provides that such
occupiers can only be
evicted in terms of an order issued under the Act by a court of law.
But what does ‘land’ mean
in the present context? I now
turn to this question.
[12] The appellants’
counsel argued that ‘land’, as contemplated in the
definition of eviction and also in s 6(1),
refers to the particular
piece of land on which the house occupied by the occupier has been
erected and not the entire registered
piece of land. The difficulty
with this particular construction is that it is incompatible with the
exercise of other rights conferred
on the occupier by s 6. On this
interpretation, for example, the occupier would be required to bury a
deceased member of his or her
family on the particular piece of land
on which the dwelling house is situated. Faced with this problem, the
appellants’ counsel
argued that in subsection (1) the word
‘land’ was used in a context different to the other
subsections. He submitted
that in the other subsections it refers to
the entire registered land unit whereas, in subsection (1), it refers
to a particular
piece of land within the registered unit.
[13] It
is trite that a word repeatedly used in a statute must generally
carry the same meaning throughout the statute unless it is
clear from
its language that such word is used in different contexts, warranting
that different meanings be attached to it. In the
latter event, a
different meaning which is consistent with the context would be given
to the word. But before such meaning can be
attributed to it, it must
be clear from the language that the lawmaker had intended a different
meaning, especially where the same
word is repeated in one section.
In
Minister of Interior v Machadodorp
Investments
1957 (2) SA 395
(A) Steyn JA said
(at 404D-E):
‘
Where
the Legislature uses the same word, in this case the word “race”,
in the same enactment, it may reasonably be supposed
that out of a
proper concern for the intelligibility of its language, it would
intend the word to be understood, where no clear indication
is given,
in the same sense throughout the enactment. This applies with greater
force when the same word is repeated in the same
sentence.’
[14] The appellants’
counsel argued that in this matter two factors indicate that the
lawmaker intended ‘land’ to
have different meanings. The
first is the reference to ‘homes’ in the preamble to the
Act, the relevant part of which
reads: ‘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’.
Secondly, he submitted that, if land is taken to mean the registered
unit, the right of occupiers
who are relocated from one building to
another on the same unit, would not be protected. This, he argued,
could not have been intended
by the lawmaker.
[15] I
do not agree that these factors manifestly show the intention
contended for by the appellants. If the lawmaker had intended
to
protect occupiers from being forced to vacate their homes, it could
have easily said so as it in fact did in the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998. This latter Act forms part of the cluster of
statutes to which the present Act belongs. In that statute the
definition
of ‘evict’ includes the forced deprivation of
occupation of a building or structure, or the land on which such
building
or structure is situated.
[16] Returning to
the language of s 6, it must be read in its entirety in order to
determine whether or not the word ‘land’
was used in
different contexts in different subsections thereof. A careful
reading of the section reveals that the word was used
in one context
only. So, for example, while subsection (1) confers on the occupier
the right to reside on land, subsection (2) gives
him or her, in
subparagraph (b)(i), the right to receive visitors onto the same land
provided they comply with reasonable conditions
‘normally
applicable to visitors entering such land in order to safeguard life
or property or to prevent the undue disruption
of work on the land’.
That the two subsections refer to the same piece of land as a unit
is, in my view, indisputable. The
same applies to the other rights in
respect of ‘land’ conferred on the occupier by the
remaining paragraphs of subsection
6(2).
[17]
Section 6 must be restrictively interpreted because it encroaches
upon the landowner’s right of ownership. Statutes such
as the
present must be construed, if possible, in a manner that least
interferes with existing rights. The interference must be limited
to
the extent necessary and no further. In
Dadoo
Ltd v Krugersdorp Municipality
1920 AD 530
Innes CJ said (at 552):
‘
It
is a wholesome rule of our law which requires a strict construction
to be placed upon statutory provisions which interfere with
elementary rights. And it should be applied not only in interpreting
a doubtful phrase, but in ascertaining the intent of the law
as a
whole.’
[18]
Furthermore, s 6 places a limitation on the landowner’s right
of ownership. This right is guaranteed by s 25 of the Constitution
and as a result such limitation is permissible only to the extent
that it is ‘reasonable and justifiable in an open and
democratic
society based on human dignity, equality and freedom’.
In construing the present Act, we are of course obliged to promote
the
spirit, purport and the objects of the Bill of Rights of which s
25 forms an integral part (s 39(2) of the Constitution). In
Investigating Directorate: Serious Offences v
Hyundai Motor Distributors (Pty) Ltd
:
In
re Hyundai Motor Distributors (Pty) Ltd v Smit NO
[2000] ZACC 12
;
2001
(1) SA 545
(CC), the Constitutional Court described the interpretive
role of s 39(2) in the following terms (para 21):
‘
This
means that all statutes must be interpreted through the prism of the
Bill of Rights. All law-making authority must be exercised
in
accordance with the Constitution. The Constitution is located in a
history which involves a transition from a society based on
division,
injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes all
in the process
of governance. As such, the process of interpreting the Constitution
must recognise the context in which we find ourselves
and the
Constitution’s goal of a society based on democratic values,
social justice and fundamental human rights. This spirit
of
transition and transformation characterises the constitutional
enterprise as a whole.’
See
also
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) in
paras 88-92.
[19]
Consistently with the protection of the right of ownership, the word
‘land’ as used in s 6 and in the definition
of eviction
means the registered unit as a whole. This interpretation does not
subtract anything from the occupier’s right
of residence on
land as envisaged in s 6. In preferring this particular
interpretation, I am fortified by the decision of this court
in
Dlamini v Joosten
2006
(3) SA 342
(SCA). There Cachalia AJA said (at para 14):
‘
The
contention that the meaning of words in a statute may vary, depending
on the facts of a particular case, has no legal foundation.
The word
“land” is not defined in the Act. But it is apparent that
in the context within which it is used it can refer
only to land that
is registered in the name of the owner. This is because the Act
regulates the relationship between occupiers of
land and owners of
the same land.’
The learned judge
continued (at para 16):
‘
The
burial right in s 6(2)(dA) of the Act is an incidence of the right of
residence contained in s 6(1), which creates a real right
in land.
Such a right is in principle registrable in a Deeds Registry because
it constitutes a “burden on the land” by
reducing the
owner’s right of ownership of the land and binds successors in
title. The burial right is in the nature of a personal
servitude
which the occupier has over the property on which he possesses a real
right of residence at death of a family member who
at the time of
death was residing on the land. These rights are claimable against
the owners of registered land only. And the only
objective
determination of the extent of the land which has been registered by
an owner is by reference to its cadastral description.’
[20] It follows that
the court below erred in making the finding that ‘land’
as used in s 6(1) means the actual piece
of land used by the occupier
and not the entire registered land unit. The proposed relocation of
the appellants to Weza Sawmill Village
does not constitute an
eviction as contemplated in the Act and the respondent is not obliged
to comply with its requirements before
effecting the relocation.
[21] In the result
the appeal is dismissed with costs.
____________________
C
N JAFTA
JUDGE
OF APPEAL
CONCUR
) HARMS ADP
)
LEWIS JA
)
VAN HEERDEN JA
)
MUSI AJA