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[2015] ZAGPPHC 473
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Simelane v Human (70310/2013) [2015] ZAGPPHC 473 (30 June 2015)
IN
THE GAUTENG DIVISION THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 70310/2013
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.