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[2015] ZAGPPHC 422
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Simelane v Human (70310/2013) [2015] ZAGPPHC 422 (30 June 2015)
IN
THE GAUTENG DIVISION THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 70310/2013
DATE:
30 JUNE 2015
In
the matter between:
WILLEM
SIMELANE
.............................................................................................................
Applicant
And
FREDERICK
THEUNIS
HUMAN
......................................................................................
Respondent
JUDGMENT
JANSEN
J
[1]
This application was first brought as a
matter of urgency, but was struck from the roll due to lack of
urgency.
[2]
After reserving judgment in this opposed
application, the applicant served a notice of amendment of the
prayers set out in its notice
of motion. This notice of amendment was
served on the respondent’s attorneys of record and there was no
opposition thereto.
However, the amendment was served and filed
without seeking the court’s indulgence.
[3]
The relief sought in the amended notice of
motion is the following: —
“
1.
Interdicting the Respondent from harassing, threatening and
intimidating Applicant and members of his family.
2.
Interdicting the Respondents from enlisting the help of any other
person to harass, threaten or intimidate Applicant or members
of his
family.
3.
Ordering the Respondent to forthwith remove the camera installed in
front of the Applicant’s home at Farm Sukkelaar, Bethal.
4.
An order that in the event of
the Respondent failing to remove the camera as indicated above that
the sheriff of the court –
Bethal is hereby ordered to remove
the aforesaid camera.
5.
Prohibiting the Respondent,
its agents and employees from approaching within 500 metres of the
Applicant’s residence at Farm
Sukkelaar, Bethal.
6.
Prohibiting the Respondent
from killing any livestock of the Applicant.
7.
Prohibiting the Respondent
from forcing the Applicant’s livestock off any portion of the
farm that the Applicant’s family
has utilised over the years or
grazing.
8.
Costs of suit.
9.
Further and/or alternative
relief.
”
[4]
It further bears mention that the
application is confusing in that affidavits used in proceedings in
the magistrate's court of Bethal
in terms of section 384 (1) of Act
51 of 1977 are relied upon for purposes of the relief sought. This is
the case, no doubt, because
the application was initially brought as
an urgent application which left little time for the proper drafting
of affidavits.
What follows has been taken, in the main, from
the affidavits filed in those proceedings.
[5]
Furthermore, none of the confirmatory
affidavits appended to the main affidavit were deposed to.
[6]
The applicant alleges that he and his
“family” have been residing on the farm,
Sukkelaar
,
in Bethal, for more than three decades. It bears mention that who the
applicant’s “family” is, is never explained
and is
furthermore termed an “extended family” including women
and children. Allegedly, the livestock of the applicant
and his
“family” have been grazing on the farm for many decades
before the arrival of the respondent. Furthermore he
has also
allegedly been selling coal on the farm for many years.
[7]
The respondent allegedly purchased the farm
approximately a year ago, whereas the respondent contends that he had
already occupied
the farm in terms of a sale agreement with the
previous owner since 2011. It is the applicant’s contention
that when the
respondent purchased the farm from a certain Mr Botha,
the respondent knew, or ought to have known, that the applicant had
been
granted statutory rights in respect of the use, occupation
cultivation and grazing of the land in terms of the provisions of the
Land Reform (Labour Tenant) Act 3 of 1996 (“
LTA
”),
the Extension of Security of Tenure Act 62 of 1977 (“
ESTA
”)
and the Prevention of Illegal Eviction of Unlawful Occupiers Act.
[8]
The applicant alleges that since the
respondent bought the farm, the respondent commenced harassing the
applicant and his family.
The applicant states that the
respondent instructed him to sell all his livestock and if he did not
comply the respondent would
ensure that the applicant and his
livestock would be removed from the farm.
[9]
The applicant states that subsequent to the
respondent’s alleged threats his cattle were poisoned. He
further states
that he could reasonably conclude that it was the
respondent who had poisoned his cattle and proceeded to lay criminal
charges
against the respondent but the criminal charges were
withdrawn by the state prosecutor.
[10]
The applicant further alleges that the
respondent forced his cattle out of the grazing camps which the
applicant and his family
have used for years. The applicant had
no option but to use a small grazing camp and this camp has
insufficient grazing land
for his cattle.
[11]
The applicant alleges that the respondent
drives past his house late at night and shoots with a firearm to
intimidate him and his
family, threatens him and his family, has sent
workers on numerous occasions to try and force him off his farm, that
the respondent
interferes with, steals and kills the his livestock
and demands payment of fines which the respondent fabricates,
[12]
The applicant further alleges that on two
occasions the respondent locked the gate to his house in order to
prevent him from gaining
access to his home, the respondent arrived
at his home with a camcorder and proceeded to record his interaction
with the applicant.
The applicant also alleges that the
respondent was trying to goad him into becoming abusive or violent in
order to record him and
then use the footage against him.
[13]
On the 7
th
of November 2013, the respondent installed a camera about 5
kilometres away from the applicant’s main gate. The
applicant
alleges that everything he and his family do is being
recorded and they have no privacy. (How this is possible from such a
distance
is incomprehensible.) This is denied by the respondent who
states that he merely installed a camera at the gate to the grazing
camp, which is about two kilometres away on the farm.
[14]
During December 2012, the respondent sought
an order against the applicant in terms of section 384 of Act 56 of
1955. This
provision is conventionally used to secure orders to
keep the peace. The respondent allegedly did this after the applicant
had
laid criminal charges against him. In these proceedings
according to the applicant, the respondent abused the process by
applying for an order that the applicant be interdicted from
conducting a coal business at his home. The respondent also
sought orders restricting the movement of the applicant’s
livestock. It is common cause that these proceedings have been
finalised and that the Magistrate of Bethal made an order in favour
of the respondent by holding that the applicant had committed
an act
towards the complainant namely the respondent in this case, by
provoking a breach of the peace or assault.
[15]
The respondent contends that when he bought
his portion of the farm the so-called “drakrag” of large
livestock was 1
per hectare and sheep and goats approximately 15 per
hectare.
[16]
The respondent contends that when he
purchased the farm he was informed in writing by the previous owner
that the applicant is only
entitled to keep three cattle in a grazing
camp measuring approximately five hectare. He further alleges
that the applicant
lives in Emzinoni (a fact which the applicant
admits in his answering affidavit in section 384 (1) proceedings in
that he alleges
that he resides at 1725 4
th
Street, Emzinoni, Bethal. He deposed to this affidavit on 30 August
2013). However, the respondent contends that the applicant
brought a
large number of livestock to the farm, namely 15 cattle, 46 goats, 23
sheep, two geese and a large amount of chickens.
This amount of
livestock is too great for purposes of his allocated grazing camp and
hence the livestock feeds on portions of the
farm to which he has no
right according to the respondent. Also is unclear whether the
applicant has the right to graze on
the five hectare grazing camp
which he is presently using.
[17]
The applicant’s livestock escape
through the fences and when ill with contagious diseases infect the
respondent’s livestock.
According to the respondent the
applicant wilfully opened all the gates on the farm in order to allow
his livestock to graze on
the farm. He allegedly tried to run
the respondent over with his motor vehicle.
[18]
The
coal trucks (using the Morgenzon and Bethal roads) load the coal off
in this camp and the applicant then fills bags with the
coal and
sells the coal. (This is not in dispute.) According to the
respondent this conduct is unlawful in terms of the “Grondwet”
[1]
regulations and pollutes the area. Allegedly the respondent
undertook to remove the coal from the farm and not to have further
supplies delivered. However, on the 1
st
or 2
nd
of December 2012 he had another 30 tons of coal delivered.
[19]
On 23 November 2012 when the livestock
inspectors inspected the applicant’s livestock they found that
his goats were infested
with red head lice with the result that the
respondent’s livestock was also infected and the respondent
suffered a loss due
to this as he could not sell the wool of his
livestock.
[20]
Whilst inspecting the livestock the
applicant’s cattle escaped from the camp and started grazing in
the respondent’s
soya bean land. The inspectors witnessed
the incident. The respondent suffered further losses due to
this and the assessors
must still ascertain the amount in damages.
[21]
In the founding affidavit to this
application the applicant makes the following statement: “
Applicant
and his family have been residing on the farm for more than 3
decades
”. The
respondent’s response to this paragraph is that this fact is
“
not known
”
to him, which allegation has to be interpreted as an admission
according to Erasmus
Superior Court
Practice
page B1–44.
[22]
Furthermore the respondent alleges in his
answering affidavit that: “
I
did however explain to the applicant that he cannot keep more
livestock on the property in excess of three (3) head of cattle
that
he was given consent to keep on the land by the previous owner”
.
In addition, the respondent admits that certain of the applicant’s
cattle died between February and April 2012 because
the cattle had
eaten soya beans planted by him which are apparently poisonous to
cattle.
[23]
The applicant alleges that the respondent
harbours antagonism towards him and quotes the following statement
from the answering
affidavit as an example of such hostility: —
“
As
a result of the Applicant’s unlawful use of my property, an
unbearable situation has developed between myself and the Applicant
which I will enumerate to
(sic)
in
more detail below.
”
The
applicant’s alleged entitlement to occupy the respondent’s
farm
:
[24]
The entire basis for the application is
that the applicant alleges that he and his family have a statutory
right to occupy the respondent’s
farm.
[25]
In the matter of
Mothlhaudi
and another v Rossouw and others
[2001] 4 All SA 334
(LCC)
the court
held that the interpretation of the Land Reform (Labour Tenants) Act
3 of 1996 is the sole domain of the Land Claims
Court.
[26]
The Land Claims Court was established by
section 22 of the restitution of Land Rights Act 22 of 1994
(Chapter III thereof).
Section 22(1)(cC) thereof provides
as follows: —
“
22
Land Claims Court
(1) …
(cC)
to determine any matter involving the interpretation or application
of this Act or the Land Reform (Labour Tenants) Act, 1996
(
Act
3 of 1996
),
with the exception of matters relating to the definition of
'occupier' in
section
1 (1)
of
the
Extension of Security of Tenure Act, 1997
(
Act
62 of 1997
);
”
[27]
An “occupier” is defined by the
Extension of Security of Tenure Act 62 of 1997 (“
ESTA
”)
as follows:—
“‘
occupier’
means a person residing on land which belongs to another person, and
who has or on 4 February 1997 or thereafter
had consent or another
right in law to do so, but excluding: —
(a)
……….
(b)
a person using or intending to use the land in question mainly for
industrial, mining, commercial or commercial farming purposes,
but
including a person who works the land himself or herself and does not
employ any person who is not a member of his or her family;
and
(c)
a person who has an income in excess of the prescribed amount;
”
[28]
Section 20 (3) of the Extension of Security
of Tenure Act 62 of 1997 (ESTA) is similar to section 13 (1A) (a) of
the aforesaid Act
and provides as follows: -
“
(3)
If in any proceedings in a High Court at the date of the commencement
of this Act that Court is required to interpret this Act,
that Court
shall stop the proceedings if no oral evidence has been led and refer
the matter to the Land Claims Court.
[Sub-s.
(3) substituted by s. 29 of Act 61 of 1998.]”
[29]
The first question which presents itself is
whether this court has jurisdiction to hear this matter. As a
result, further
heads of argument were requested. In these
heads of argument, filed by the applicant, the respondent was blamed
full squarely
for not raising this point
in
limine
in its heads of argument but
arguing it from the bar. Hence, the applicant contended that
the matter, in terms of section 13(1A)
and section 29 of
the Land Reform (Labour Tenants) Act 3 of 1996 should be referred to
the Land Claims Court.
[30]
Section 29 of the said Act reads as
follows: —
“
29
JURISDICTION
The
Court shall have jurisdiction in terms of this Act throughout the
Republic and shall have all the ancillary powers necessary
or
reasonably incidental to the performance of its functions in terms of
this Act, including the power to grant interlocutory orders
and
interdicts, and shall have all such powers in relation to matters
falling within its jurisdiction as are possessed by a provincial
division of the Supreme Court having jurisdiction in civil
proceedings at the place where the affected land is situated,
including
the powers of such a division in relation to any contempt
of the Court.”
[31]
In terms of
section 22
of the
Restitution of Land Rights Act 22 of 1994
(save for the caveat
contained in subsection (cC)) the Land Claims Court was created as a
special court with exclusive jurisdiction
to decide matters involving
the interpretation or application of the Land Reform (Labour Tenants)
Act 3 of 1996.
[32]
The other statute applicable to this
application, as set out above, is the Land Reform (Labour Tenants)
Act 3 of 1996. A “labour
tenant” is defined as
follows in the said Act: —
“‘
labour
tenant’ means a person:—
(a)
who is residing or has the right to reside on a farm
;
(b)
who has or has had the right to use
cropping or grazing land
on the farm, referred to in paragraph (a), or another farm of the
owner,
and in consideration of such right provides or has provided
labour to the owner or lessee; and
(c)
whose parent or grandparent resided or resides on a farm and had
the use of cropping or grazing land on such farm or another farm
of
the owner, and in consideration of such right provided or provides
labour to the owner or lessee of such or such other farm
,
including
a person who has been appointed a successor to a labour tenant in
accordance with the provisions of section 3(4) and (5),
but excluding
a farmworker;
”
[emphasis
added]
[33]
The court which is to hear matters relating
to the Land Reform (Labour Tenants) Act 3 of 1996 is the Land Claims
Court. “Affected
land”, for example, in terms of
the definition section (section 1) of the said Act means land in
respect of which an
application has been lodged in terms of
section 17(1) which reads as follows: —
“
17.(1)
An application for the acquisition of land and servitudes referred to
in section 16 shall be lodged with the Director-General
.”
[34]
Of great importance are the following
provisions of the Land Reform (Labour Tenants) Act 3 of 1996: —
“
13
Proceedings in other courts
(1)
The
provisions of sections 7
[2]
to
10
[3]
shall apply to proceedings
pending in any court at the commencement of this Act.
(1A)
With the exception of issues concerning the definition of 'occupier'
in section 1 (1) of the Extension of Security of Tenure
Act, 1997
(Act 62 of 1997), if an issue arises in a case in a magistrate's
court or a High Court which requires that court to interpret
or apply
this Act and: —
(a)
no
oral evidence has been led, such court shall transfer the case to the
Court and no further steps may be taken in the case in
such court;
(b)
any
oral evidence has been led, such court shall decide the matter in
accordance with the provisions of this Act.
”
[35]
The wording of section 13(1A)
indicates that the legislature wishes the Lands Claim Court to deal
exclusively with matter involving
the interpretation and application
of the Labour Tenants Act. See
Van
der Walt & Others v Lang & 10 Others
Unreported Case LCC102/98, Land Claim Court at paragraph 15
.
[36]
The
Extension of Security of Tenure Act 62
of 1997
contains a similar provision namely
section 20(3).
Section 20
is quoted below for ease of reference: —
“
Land
Claims Court
“
20(1)
The Land Claims Court shall have jurisdiction in terms of this Act
throughout the Republic and shall have all the ancillary
powers
necessary or reasonably incidental to the performance of its
functions in terms of this Act, including the power:—
(a)
to decide any constitutional matter in relation to this Act;
(b)
to grant interlocutory orders. declaratory orders and interdicts;
(c)
to review an act, omission or decision of any functionary acting or
purporting 50 to act in terms of this Act; and
(d)
to review an arbitration award in terms of’ the Arbitration
Act. 1965 (Act No. 42 of 1965), in so far as it deals with
any matter
that may be heard by a court in terms of this Act.
(2)
Subject to the provisions of section 17(2), the Land Claims Court
shall have the powers set out in subsection (1) to the exclusion
of
any court contemplated in section 166(c), (d) or (e) of the
Constitution.
(3)
If in any proceedings in a High Court at the date of commencement of
this Act that court is required to interpret this Act,
that Court
shall stop the proceedings if no oral evidence has been led and refer
the matter to the Land Claims Court.
(4)
The President of the Land Claims Court may make rules to govern the
procedure in the Land Claims Court in terms of this Act.
”
[37]
The additional heads of argument which were
filed by both the applicant and the respondent are bizarre. It is
submitted by the respondent
that this court has jurisdiction to hear
the matter and that the “
labour
tenancy status of the Applicant is irrelevant
”.
[38]
It is further stated in the respondent’s
supplementary heads of argument pertaining to this court’s
jurisdiction: —
“
2.6
It is submitted that only when an applicant invokes the provisions of
the LTA to establish a
cause
of action
or
defence
,
the Land Claims Court has exclusive jurisdiction.
[4]
Although the Land Claims Court may in terms of section 29 grant
interdicts, a High Court is not precluded from dealing
with
interdictory relief relating to a labour tenant in terms of the
common law, as long as the decision does not require interpretation
of the LTA. See Crystal Holdings (Pty) Ltd and Others v The
Regional Land Claims Commissioner and Others
[5]
where it was held that the High Courts are vested with jurisdiction
to protect the common law rights of any individual, but that
the Land
Claims Court has exclusive jurisdiction as soon as the applicant
invokes the LTA to
establish
a cause of action
.
”
[39]
Further issues raised by the respondent in
its supplementary heads of argument are: —
[39.1]
The applicant applies for common law relief that is not dependant on
the status of labour tenancy or occupancy of land.
It is
emphasised that the applicant’s grounds for relief as it
appears from the founding affidavit does not in any way rely
on
labour tenancy and the question of labour tenancy is raised only in
the applicant’s replying affidavit, and merely as
a bald
statement.
[39.2]
The applicant’s cause of action is not based on his residential
status on the respondent’s farm. Although
he makes
conflicting statements under oath regarding his place of residence,
the respondent’s allegation that the applicant
visits the farm
daily is undisputed and his counsel has conceded in argument that the
applicant resides in Bethal.
[40]
Section 3(3) of the Land Reform
(Labour Tenants) Act 3 of 1996 provides that: —
“
(3)
A labour tenant shall be deemed to have waived his or her rights if
he or she with the intention to terminate the labour tenant
agreement: —
(a)
leaves the farm voluntarily; or
(b)
appoints a person as his or her successor.
”
[41]
The respondent also alleges that the
applicant is limited to the relief in his notice of motion, which can
be decided without the
necessity to investigate his alleged labour
tenancy status. Other relief argued by the applicant’s
counsel, such as
“giving the applicant part of the farm”,
“negotiating a land settlement” and “protecting his
rights
as a labour tenant” fall entirely outside the ambit of
the applicant’s case.
[42]
Furthermore, the respondent’s
argument is that in order to establish whether the applicant is an
occupier in terms of the
Extension of Security of Tenure Act 62 of
1997
, depends upon whether he resides on the affected property.
[43]
A person can therefore only be an occupier
in terms of the
Extension of Security of Tenure Act 62 of 1997
if he
or she “resides” on the land in question. The word
reside has been held to mean a person’s place
of abode. A
person cannot reside at more than one place. The Supreme Court
of Appeal held in
Kiepersol Poultry
Farm v Phasiya
2010 (3) SA 152
(SCA)
that the term “reside”
bears the meaning ascribed to it in the matter of
Barrie
NO v Ferris and Another
1987 (2)
SA 709
(C)
namely: —
“‘
Reside’
means that a person has his home at the place mentioned. It is
his place of abode, the place where he sleeps
after the work of the
day is done … It does not include one’s weekend cottage
unless one is residing there …
The essence of the word is the
notion of ‘permanent home’.
[6]
”
[44]
It was contended on behalf of the
respondent that the definition of “occupier” in ESTA is
limited to a person “residing
on land” and that the land
use intended in
section 6(1)
of Extension of Security of Tenure
Ac is “use in association with the right of residence”.
The respondent also
relied upon the case of
Marge
Property Holdings CC v Jewula
[2005] 2 All SA 119
(E)
at page 124
where the following is stated: —
“
The
right of an occupier of a farm to use the land by grazing livestock
thereon is a right of a very different nature to those rights
specified in
section 6(2)
… such use was clearly not the kind
of use contemplated by the Legislature”.
[45]
However this contention does not take into
account the proviso contained in subparagraph (b) of the definition
of “occupier”
contained in the
Extension of Security of
Tenure Act 62 of 1997
.
[46]
The respondent submitted that the applicant
does not reside on the farm on the applicant’s own version.
However, on
the applicant’s and the respondent’s
versions, the applicant constantly allows his cattle to graze on the
farm (which
he contends that he is entitled to do) and also utilises
part of the farm for coal distribution purposes and the like. The
applicant’s entire case and the relief sought in this
application were argued and based on the allegation that he is an
“occupier” of the farm. In addition, the respondent
more often than not referred to the “informal housing
on the
farm” and “the dwellings of any of the occupiers on the
property or the so-called “home of the applicant”.
[47]
The respondent submits that the
Extension
of Security of Tenure Act 62 of 1997
involves only rights associated
with residential rights and that other rights, such as grazing and
cropping rights, do not fall
within the ambit of the Act. The
submission, per definition, requires an interpretation of the
definition of an occupier
of property and whether the definition
includes his family, chattel such as livestock, dwellings and the
like.
[48]
However, sight must not be lost of
section 5 of the Land Reform (Labour Tenants Act) 3 of 1996
quoted above: —
“
5
Prohibition on eviction
Subject
to the provisions of section 13, a labour tenant or his or her
associate may only be evicted in terms of an order of the
Court
issued under this Act.
”
[49]
Eviction is defined in section 1 of
the Act as “
deprivation of a
right of occupation or
use
of land
”. [emphasis added]
[50]
Section 5 of the Act renders it
unlawful for anyone, except the Land Claims Court, to deprive a
“labour tenant”
of a right to use the land.
[51]
The applicant argues in his supplementary
heads of argument that analogous to the position of a judge recusing
himself/herself such
a learned judge does not retain a vestige of
jurisdiction to deal with the matter. It is submitted that this
court must therefore
forthwith transfer this case to the Land Claims
Court as contemplated in section 13(1A) of the Land Reform
(Labour Tenants
Act) 3 of 1996.
The
applicant’s
locus
standi
:
[52]
This issue was raised during argument (but
not replied to by the applicant in argument) and also not dealt with
in the urgent application
brought by the applicant which was struck
from the roll. As a result, the respondent invited the
applicant to reply to the
denial of his ownership of the cattle on
the respondent’s farm and his alleged resultant lack of
locus
standi
as a result thereof. (This
challenge, by the respondent, may actually put the lie to the
respondent’s earlier submissions
that rights of occupation,
grazing and cropping are completely separate to the right of
occupation, save if the argument is limited
to the actual ownership
of the livestock.) Here the respondent seeks to tie the
applicant or his family’s ownership
of the cattle to the
applicant’s right of occupation and the consequential grazing
rights arising therefrom, thus rendering
these rights determinative
of the applicant’s
locus standi
.
The
“new” prayers in the amended notice of motion
:
[53]
The only differences between the prayers as
currently worded in the new notice of motion and the old notice of
motion are as follows:—
[54]
There is no longer a Part A and a Part B.
[55]
The word “interdicting” has
been replaced with the word “ordering” where the word
“interdicting”
appeared initially.
[56]
What the applicant has sought to do with
its amended notice of motion, received on 26 November 2014, is merely
to seek to amend
the entire nature of the application to one seeking
non-harassment of the applicant apparently forgetting that the
applicant was
allegedly being harassed because he was an “occupier”
of the Farm Sukkelaar (aptly named) at Bethal.
[57]
The prayer relating to the removal of the
camera is also tied to the alleged harassment.
[58]
Prayer 5 is impossible to give effect to
because there is allegedly a residence (but not of the applicant, but
maybe his family
members who have not been joined as parties) on the
Farm Sukkelaar, Bethal because if there were, then he is an occupier
of the
property.
[59]
Prayers 6 and 7 of the new notice of motion
are interestingly interwoven with the applicant’s claim to be
an occupant of the
Farm Sukkelaar, Bethal.
[60]
In the premises the matter should summarily
be transferred to the Land Claims Court.
[61]
The applicant should have known, when it
launched its application, that there would be material disputes of
fact, or, as now contended
by him, that the matter should be heard by
the Land Claims Court. This court is entitled to raise the point
mero
motu
when it becomes clear to the court
that it involves issues which lie within the sole domain of the Land
Claims Court. This is particularly
so, given the far reaching rights
conferred on the Land Claims Court by section 29 of the Land Reform
(Labour Tenants) Act 3 of
1996.
[62]
The grazing of cattle, cropping, the
occupation of the farm, etc and the respondent’s alleged
hostility towards the applicant
regarding his actions on the farm and
the applicant’s allegations that the respondent has
intentionally poisoned his cattle
by planting soya beans all revolve
around the issue of whether the applicant and his family may occupy
the farm. Furthermore all
these issues are in dispute.
[63]
This Honourable Court could have refused to
entertain the Respondent’s argument about jurisdiction as it
was not pleaded and
does not arise anywhere on the pleadings.
It was raised in argument by the respondent. By this court
agreeing to adjudicate
the issue of jurisdiction, this court agreed
to consider the issue whether section 13(1A) had come into
operation and whether
the current matter ought to be transferred to
the Land Claims Court. The respondent’s challenge to the
jurisdiction of this
honourable court has the effect of: —
[64]
Making jurisdiction an “issue”
as contemplated in section 13(1A) of Land Reform (Labour Tenant)
Act 3 of 1996 before
this court, thus compelling this court to
interpret or apply the provisions of section 13(1A), that is, to
interpret or apply
a provision contained in the Land Reform (Labour
Tenants) Act 3 of 1996, and to interpret the meaning of the word
“occupier”
in terms of the Extension of Security of
Tenure Act 62 of 1997.
[65]
To state that the manner in which the
application was brought and argued by both the applicant and the
respondent, was in an extremely
disorderly and incoherent fashion, is
to put it mildly. One minute the applicant was an occupier of
the farm, the next minute
he was not. It was because of this
completely confusing manner in which is the matter was argued (borne
out by the fact that
the applicant now alleges that the matter
must
be heard by the Land Claims Court and the respondent’s vehement
denial thereof whereas the court’s jurisdiction to
hear the
matter was raised by the respondent in argument) that this court is
of the view that not a single issue can be decided
before the
question of whether the applicant is an occupier or even a labour
tenant has been decided by the Land Claims Court.
[66]
For this very reason the court requested
heads of argument pertaining to this court’s jurisdiction to
hear the disputes raised
in this application. In fact, this
application is a prime example of how a matter should not be argued
and the applicant
should, at the outset, of its own volition, have
addressed the issue of the jurisdiction of the court, and the
applicant’s
locus standi
.
Furthermore, had the respondent wished to attack the jurisdiction of
this court to hear the matter it should have done so
at the outset.
Given the material disputes of fact and the bald and sketchy nature
of the very short founding affidavit the
matter will probably have to
be referred to oral evidence or trial. It should also be borne
in mind that the respondent’s
version has to be accepted in
terms of the
Plascon Evans
rule.
The belated attempt to amend the relief sought without any
application for condonation is also unacceptable.
[67]
The haphazard way in which this application
was brought would have resulted in punitive costs order, had the
court not been obliged
to refer the matter to the Land Claims Court.
Order
1.
The application is referred to the Land
Claims Court.
2.
The Land Claims Court will then adjudicate
the relief prayed for by the applicant including the costs incurred
in these proceedings
(including the costs of additional heads of
argument) and still to be incurred in the Land Claims Court.
JANSEN
J
JUDGE
OF THE HIGH COURT
For
the Applicant
Mr C Smith
Instructed
by
Christo Smith Attorneys (013
7533187) c/o Serfontein Viljoen & Swart (012 362 2556)
For
the Respondent
Mr Z Omar
Instructed
by
Zehir Omar Attorneys (011 815
1720) c/o Friedland Hart Solomon & Nicholson
[1]
The
papers were drafted in Afrikaans. It is unclear what is meant
by the term “grondwet”.
[2]
Section
7 provides as follows:—
“
7
Order for eviction
(1)
The Court shall have the power to make an order for the eviction of
a labour tenant or his or her associate.
(2)
No order for eviction in terms of section 5 shall be made unless it
is just and equitable and —
(a)
subject to the provisions of section 9 (1), the labour tenant has,
contrary to the agreement between the parties, refused
or failed to
provide labour to the owner or lessee and, despite one calendar
month's written notice having been given to him
or her, still
refuses or fails to provide such labour; or
(b)
the labour tenant or his or her associate has committed such a
material breach of the relationship between the labour tenant
or
associate and the owner or lessee, that it is not practically
possible to remedy it, either at all or in a manner which could
reasonably restore the relationship.
(3)
If proceedings are instituted for the eviction of a labour tenant in
terms of this section, the person instituting those proceedings
may
also ask for an order for the eviction of the associates of the
labour tenant.
(4)
If the Court is asked to make an order in terms of subsection (3),
it shall make such order as it deems just and equitable
under the
circumstances.”
[3]
Section
7 provides as follows:—
“
10
Effect of order for eviction
(1)
If the Court makes an order
for eviction in terms of section 7-
(a)
the Court shall order the owner to pay compensation to the extent
that it is just and equitable; and
(b)
the Court may order the owner to give the labour tenant a fair
opportunity to —
(i)
demolish such structures and improvements as were erected by the
labour tenant and his or her associates or predecessors,
and to
remove materials so salvaged; and
(ii)
tend a crop to which he or she is entitled, until it is ripe and
thereafter to reap and remove it.
(2)
The compensation referred to
in subsection (1) shall be determined by the Court as being just and
equitable, taking into account —
(a)
the replacement value of
such structures and improvements;
(b)
the value of materials which the labour tenant may remove;
(c)
the value of materials supplied by the owner or his or her
predecessors for the erection of such structures and improvements;
(d)
if the labour tenant has not been given the opportunity to remove
the crop, the value of the crop; and
(e)
the circumstances which gave rise to the eviction, including the
conduct of the parties.
(3)
No order for eviction made in terms of section 7 may be executed
before the owner has paid the compensation which is
due in terms of
subsection (1).
[4]
Dhlamini
v Loock and another
2001
(3) SA 56
(SCA)
.
[5]
[2008]
1 All SA 243
(N)
.
[6]
At
page 714F.