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[2007] ZASCA 84
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Agrico Masjinerie (Edms) Bpk v Swiers (399/06_) [2007] ZASCA 84; 2007 (10) BCLR 1111 (SCA); 2007 (5) SA 305 (SCA) (1 June 2007)
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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case no: 399/06
In the matter
between
AGRICO
MASJINERIE (EDMS) BPK
...............................
APPELLANT
and
H SWIERS
...............................
RESPONDENT
Coram:
CAMERON, BRAND, HEHER, VAN HEERDEN JJA and THERON
AJA
Heard:
15 MAY 2007
Delivered: 1 JUNE 2007
Summary:
Land
– eviction from – Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 – ‘unlawful
occupier’ – who is – ‘other right in law to
occupy such land’ – does not extend to occupation
unlawfully obtained by self-help – discretion of court to order
eviction – s 4(7).
Land –
eviction from – Extension of Security of Tenure Act 62 of 1997
(‘ESTA’) – ‘occupier’
– who is –
rights of occupier – waiver of rights – when effective –
availability of s 14 rights to
occupier who has waived without
knowledge of ESTA rights – repossession of land by occupier
without consent of owner or order
of court – effect on ESTA
rights.
Land – ESTA -
s 20 - interpretation of and pronouncement upon rights relied on as
ESTA rights – jurisdiction of High Court
not excluded where
party does not claim performance of functions of court under ESTA.
Neutral
citation: This judgment may be referred to as
Agrico
Masjinerie v Swiers
[2007]
SCA 84 (RSA)
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
HEHER JA
HEHER JA:
[1] The appellant is
the registered owner of the farm Dassenberg No 15, Malmesbury in the
Cape Division which it acquired in 1995
and on which it farms cattle
and grows grapes and grain.
[2] In July 2002 the
appellant applied to the Cape Town High Court to evict the respondent
from the farm. It alleged that she had
unlawfully built and occupied
a wendy house (with extensions) on the property. The application was
opposed. Allie J dismissed it
with costs on 7 September 2004. An
appeal to the Full Bench was likewise unsuccessful. Hlophe JP and Van
Reenen J (with whom N C
Erasmus J concurred) delivered separate
judgments, both dismissing the appeal. The appellant appealed to this
Court with special
leave granted.
[3] The appellant
proceeded in the court of first instance on motion. Numerous disputes
of facts arose from the affidavits. Neither
party sought then or
subsequently to have the matter referred for the hearing of oral
evidence or to trial. The appellant’s
legal right to the relief
claimed thus depended upon the uncontested facts in its founding
affidavit and the respondent’s version
regarding those facts
which were the subject of a genuine dispute in her answering papers.
(As will be seen she filed two answering
affidavits.)
[4]
The relationship between the parties has a long history and it will
be necessary to refer to the various averments in that regard
in some
detail. At the outset however I should point out that the real
questions which required to be considered concerned the rights
of the
respective parties under the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’)
and
the Extension of Security of Tenure Act 62 of 1997 (‘ESTA’).
The rights which the appellant had to establish on paper
were those
attaching to an owner of land who invokes PIE against an alleged
unlawful occupier as defined in s 1 of that Act
1
;
while it had to seek to defeat the conclusion that the respondent had
the rights of an ‘occupier’
2
as defined in s 1 of
ESTA since it was common cause that the respondent had had the
consent of the owner to reside on the farm on
4 February 1997 and had
both at and after that date in fact resided on it. The two sets of
rights are mutually exclusive, as the
definition of ‘unlawful
occupier’ in s 1 of PIE ‘excludes a person who is an
occupier in terms of’ ESTA.
[5] The application
to court was provoked by the discovery in June 2001 of a partially
completed and apparently unoccupied shack on
an outlying part of the
farm. The appellant demolished the structure and removed the
materials. At the end of July 2001 it received
a letter from the West
Coast Law Clinic (‘the Clinic’) representing the
respondent which alleged that (a) the dwelling
had been erected with
the knowledge and consent of the appellant’s employees; (b) the
respondent had been in possession of
the structure and the land on
which it rested at the time of the demolition; (c) no warning had
been given to the respondent; (d)
the demolition without a court
order had been unlawful by reason of s 26(3) of the Constitution,
‘the common law’ and
‘subordinate legislation’.
The letter called on the appellant to re-erect the dwelling and
restore possession to the
respondent by 3 August 2001 or face an
urgent application to court.
[6] After
investigating the allegations the appellant wrote to the Clinic on 8
August 2001 denying that any of its employees had given
permission
for the erection of the structure. It offered to replace corrugated
iron sheets damaged in the course of removal or to
discuss
compensation for them and concluded:
‘
We
have been approached by the Department for Land Affairs regarding the
possibility of selling off some of our land, in order to
accommodate
the desire for land of the nearby communities and the tenants on our
farm. Negotiations are under way.’
[7] After further
correspondence had been exchanged the Clinic wrote to the appellant
on 5 September 2001 in accordance with instructions
from the
respondent. The letter dealt with her birth on and occupation of the
farm as well as the fact that she had previously, in
1995, erected an
informal dwelling on the farm at the same place where the later
structure had been erected. The former event took
place, so the
letter averred, with the consent of a Mr Stofberg, then the
applicant’s farm manager; subsequently he had mentioned
that
the owners were offering R25 000 to people who left the farm
voluntarily and he encouraged her to accept the offer. According
to
the letter:
‘
3.
Our client informed Mr. Stofberg that she would accept this offer. He
however informed her that she must first move from the farm
and then
she would receive the money. Our client accordingly, on this basis,
moved from the farm in approximately October 1996. She
did however
continuously, through family members, make enquiries as to when she
would receive the R25 000 but to no avail. It does
appear to be a
reasonable inference therefore that the owners of the farm were not
of intention to pay the money to her but only
mentioned the same for
purpose of coaxing her with false pretences from the farm.
4. Nevertheless during or about April
2001 our client, whilst visiting relatives on the farm, approached
Mr. Paul Andrag, a Director
of Agrico, and broached the subject of
the money still owing to her with him. Mr. Andrag appeared to be
non-committal to this request
and just answered “ja”. Our
client then requested permission from Mr. Andrag to re-erect her
informal dwelling on the
farm again as she did not at that time have
her own accommodation due to the incident described in paragraph 3
and due thereto that
the farm was her place of residence for most of
her life. Mr. Andrag did not reply no at any time and merely shrugged
his shoulders
at this request. Our client interpreted his demeanor as
affirmative to her request and therefore commenced during or about
April
2001 erecting her dwelling on the same place where it was for
some time before.
. . .
Our client informs that she would be
willing to settle this matter should Agrico be willing to reimburse
her for her loss in the sum
of R4909,25 and allow her to erect her
dwelling at the premises of her brother Nicolas Swiers, who is also
resident on the farm.
This will be an interim measure pending
successful negotiation with the Department of Land Affairs.
You will note from the claim
documentation that you surely have received from the Department of
Land Affairs that our client is also
one of the claimants claiming
tenure rights to a portion of the farm Dassenberg.
Should you therefore agree to settle this
matter on the above terms our client will be amenable to relocate to
the land that the Department
of Land Affairs intends purchasing from
you, to accommodate her and other tenants and claimants, as soon as
the agreement is concluded.’
[8] The parties
tried to settle the dispute but without bridging the gap between
them. The appellant ascertained that the respondent
had entered into
a written lease agreement with it on 14 October 1995 which permitted
her to occupy only the portion on which her
informal dwelling stood
at that date subject to a right in the appellant to terminate the
agreement on six months’ notice.
[9] On 20 October
2001 the appellant’s director, Mr A O Andrag, his farm manager,
Mr Loubser, and Mr Gaerdes of the Clinic met
on the farm in an effort
to reach agreement. In para 22 of the founding affidavit Andrag
describes what happened:
‘
By
sodanige ontmoeting is daar tussen Applikant en Respondent
ooreengekom dat Respondent nie weer die plaas sou beset nie.
Applikant
sou Respondent voorsien van materiaal om ‘n wendyhuis
op te rig, naamlik ses sypanele en sinkplate. Respondent sou die
nodige
reëlings tref vir die oprig van die wendyhuis en was van
voorneme om dit by haar suster in Pella te gaan oprig. Respondent sou
Applikant in kennis stel waar sodanige material afgelewer moet word.’
Andrag confirmed the
substance of the arrangement in a letter to the Clinic on 25 October
2001. His affidavit continues:
‘
24.
Ek het verdermeer op 23 Oktober 2001 ontmoet met eerwaarde Wynand by
die Pella sendingstasie om die nodige toestemming te verkry
dat
Respondent haar wendyhuis op haar suster se plot in Pella kon oprig.
Ek [het] ook gereël dat respondent se naam op die waglys
geplaas
word vir die toekenning van ‘n erf te Pella. ‘n Afskrif
van my bevestigende skrywe in die verband word hierby
aangeheg gemerk
“AOA13”.
25. Gedurende November 2001 het Mnr
Gaerdes my telefonies gekontak en laat weet dat die Pella gemeenskap
glo nie vir Respondent wou
toelaat om by haar suster ‘n
wendyhuis op te rig nie. Ek het aan Mnr Gaerdes bevestig dat die
ooreenkoms met betrekking tot
die voorsiening van material bly staan
het en dat Applikant dit aan Respondent sou beskikbaar stel ongeag
die ligging waar sy dit
sou oprig. Dit is egter pertinent gestel dat
Respondent geensins geregtig was om dit op die plaas op te rig nie.
26. Op 6 Desember 2001 het ek, mnr
Gaerdes en me. Linsey Lotter (Blouberg Munisipaliteit: Pella
Projekbestuurder) in Pella ontmoet
om die aansoek van Respondent en
andere vir erwe in Pella te bespreek. Tydens hierdie geleentheid het
Mnr Gaerdes aan my genoem dat
Respondent die wendyhuis moontlik by
haar suster in Atlantis sou opsit.
27. Op 11 Desember 2001 het Mnr Gaerdes
my gebel en bevestig dat Respondent die huis by haar suster op
Atlantis sou oprig. Hy het
namens Respondent versoek dat die
materiaal by Respondent se suster, Diana Collins, op Pella afgelewer
word.
28. Op 17 Desember 2001 het ek Mnr
Gaerdes geskakel en bevestig dat aflewering van die materiaal deur
die loop van daardie week sou
geskied.
29. Op 20 Desember 2001 is ‘n
volledige hout wendyhuis afgelewer by Respondent se suster, Mev D
Collins, te Pella, soos ooreengekom.’
[10] The matter
seemed to have been resolved. However, after Christmas 2001 the
respondent moved back to the farm and re-erected the
wendy house.
When the appellant became aware of this it sent further letters to
the Clinic without receiving a satisfactory reply.
On 21 February
2002 it put the respondent on terms to remove the structure by 1
March. When Andrag spoke to the respondent she told
him that she was
aware of the demand. She said Gaerdes was no longer prepared to act
for her because of her breach of the agreement,
she was not willing
to leave the farm and the applicant would have to resort to law.
[11] The appellant
launched the application in July 2002. It attached to its founding
affidavit a photograph of a wooden structure
which, so it alleged,
the respondent was occupying with a child. It averred that there were
no facilities at all, whether for supply
of water, sanitation,
cooking or garbage disposal and stated that the situation was
dangerous, unhygienic and an encouragement to
other unlawful
occupiers.
[12] The appellant
alleged that the respondent was able to reside with a sister at Pella
or Atlantis, that application had been made
to place her name on the
waiting list for housing at Pella and that subsidised RDP housing was
available at Riverlands some three
kilometers from the appellant’s
farm.
[13]
With
in
forma pauperis
legal
assistance the respondent opposed the application. According to the
answering affidavit to which she deposed on 28 August 2002:
13.1 She was a 38
year old, unemployed mother of six children, the youngest an
epileptic and physically disabled. She occupied the
structure
together with all the children. They survived on the occasional
income of the eldest son (who was 21), the charity of the
Pella
community and that of her family members who lived on the appellant’s
farm.
13.2 She was born on
the farm on 17 December 1963. Her parents rented a home there and she
lived in that house until 1995. Then she
and her children moved to a
part of the farm which was closer to medical facilities for the
youngest child. There she erected a wendy
house.
13.3
She concluded a rental agreement with the appellant and occupied the
farm until 1998 under that arrangement. In particular, she
stated
that on 4 February 1997 she was
living
lawfully on the farm with the express or tacit consent of the owner.
13.4 During 1997
when the manager, Mr Stofberg, was collecting her rent, he informed
her that the owners were offering R25 000 to
those persons who
voluntarily left the farm. She understood this information as an
offer to her. In the belief that the money would
enable her to
provide better accommodation for her children, so she deposed, she
left the farm. She had not been aware of her statutory
rights and was
not made aware of them by Stofberg. She stated that she did not
abandon her right to live on the farm.
13.5 After leaving
the farm she regularly made enquiries about receiving the promised
money but never received a satisfactory answer.
Eventually she
decided to return home. In April 2001, a Mr Paul Andrag had given her
permission to erect her informal dwelling on
the farm.
13.6 On the basis of
the facts set out in her affidavit the respondent stated that she
relied on the protection afforded to her by
ESTA.
13.7 The respondent
admitted that the appellant had undertaken to provide her with
materials for a wendy house which could be erected
at Pella but
denied that she had agreed not to re-occupy the farm. On the
contrary, she said that she had expressly told a certain
Alfred
Andrag that if she could not obtain permission to erect the house at
Pella she could erect it on the farm. Permission had
been refused her
at Pella. She moved to Atlantis on a temporary basis on the
understanding that Mr Gaerdes was to launch a statutory
claim on
behalf of all the residents of the farm under the terms of the
legislation on land reform and restitution.
13.8 Although she
was occupying the structure together with her six children,
‘aangesien ek nou ‘n geruime tyd op die
plaas woon het ek
sekere sanitêre geriewe opgerig wat voldoende is vir my
okkupasie’.
13.9 She rejected
the possibilities of alternative accommodation identified by the
appellant. She could not stay with or near her
sister at Pella
because she was not of the Moravian persuasion, nor with her sister
at Atlantis because there was insufficient space
to accommodate her
and the children. Riverlands was not an option because she was
unemployed and it is too far from the medical facilities
required by
her epileptic son.
[14]
In support of the appellant’s replying affidavit (dated only on
22 December 2003) Stofberg denied making any offer of compensation
to
the respondent as a
quid
pro quo
for
vacating the property. He stated that he was the appellant’s
farm manager until August 1997 when he left the appellant’s
employment. He also denied receiving any enquiries from the
respondent concerning payment of compensation. Paul Andrag denied
giving
the permission attributed to him. (The respondent did not rely
upon such permission as a factor in her favour in the appeal to this
Court.)
14.1 The appellant
admitted that the respondent had been resident on the farm at 4
February 1997 but averred that she had thereafter
left voluntarily
and had no right to return without the appellant’s permission.
14.2 The appellant
denied that ESTA was applicable to the circumstances of the
respondent. It also denied that any claim for restitution
of land had
been lodged in respect of the farm.
[15] On 13 January
2004 the appellant applied for an order authorising it to serve
notices in terms of s 4(2) and 4(5) of PIE, informing
the respondent
of its intention to apply on 13 April 2004 for relief in
substantially the same terms as that contained in its notice
of
motion of July 2002. The service of this notice produced a further
lengthy ‘answering affidavit’ (the respondent now
being
represented by new attorneys). In it the respondent again rested her
defence on ESTA, alleging that one of her direct maternal
ancestors
had been born on ‘the Dassenberg Farm’ as long ago as 9
May 1831. She also made the following statements (which
are both more
detailed and, perhaps, not entirely consistent with corresponding
averments in her earlier affidavit):
‘
15.
Soos voormeld, is ek op 17 Desember 1963 op die Dassenberg Plaas
gebore. Ek het op Dassenberg Plaas gewoon tot ongeveer November
1998
in ‘n ander struktuur, letterlik ‘n sinkhok. Dit was op
presies dieselfde plek op die plaas waar ek tans woon. Die
rede
waarom ek die maand onthou, was dat dit kort voor die Desember
skoolvakansie was.
16. Ene Kobus Stofberg, een van die
vorige werknemers (ek dink hy was die plaasbestuurder op daardie
stadium) van Applikant het van
tyd tot tyd huurgelde opgeëis van
my en van die ander families, maar omdat ek geen geld het nie, en
werkloos is, het ek nog
nooit huurgelde betaal nie. Ek weet nie wat
is die omstandighede van die ander families ten opsigte van die
betaal van huurgelde
nie, maar ek is bewus daarvan dat daar ‘n
hele aantal ander families is wat nie huurgelde betaal nie. Soos
gestel dink ek sommige
families betaal wel vir die huur van grond,
ten opsigte van huise wat hulle self opgerig het.
17. Vir die afgelope sestien (16) jaar
woon ek alleen met my ses (6) kinders op die plaas en ek het soos
gestel nog nooit huurgelde
betaal nie. Ek ontken ook dat daar enige
huurooreenkoms bestaan tussen my en Applikant of enige ander persoon.
Voor hierdie periode
het ek saam met my voormalige eggenoot van wie
ek geskei is op die plaas gewoon.
18. By een van die geleenthede waartydens
Kobus Stofberg my woning aangedoen het, het ek hom om hulp gevra vir
‘n seil om oor
my sinkhok se dak te trek omdat die dak baie
gelek het. Een van my kinders, Christopher Moerat, tans nege (9) jaar
oud, het op daardie
stadium aan epilepsie gely en ons geneesheer het
aan my bevestig dat weens die damp omstandighede waarin ons gewoon
het, het die
epilepsie vererger.
19. Kobus Stofberg het aan my voorgestel
dat indien ek van die plaas af trek, ek van ‘n geleentheid van
die plaaseienaars sou
kon gebruik maak ingevolge waarvan hulle aan my
R25 000 sou betaal om die plaas te verlaat. Hierdie gelde sou egter
eers betaal word
nadat ek die plaas verlaat het, aangesien hulle bang
was dat ek die geld sou neem en dan sou weier om te trek.
20. Weens die siekte van my kind en die
aanbod wat aan my gemaak is, het ek besluit om dit te aanvaar en die
plaas te verlaat. Gevolglik
het ek die plaas verlaat in November 1998
en na die Strand verhuis, waar ek agter in die erf van een van my
susters, Marlene Ross,
gaan woon het. Hier het ek gewoon tot ongeveer
Januarie 2001 toe ek na Dassenberg Plaas terugverhuis het. In die
funderende eedsverklaring
vermeld Andrag dat ek die plaas in 1996
verlaat het, welke datum hy blyk te kry uit ander korrespondensie,
maar hierdie datum is
verkeerd. Ek het definitief eers die plaas
verlaat in November 1998 en nie voor daardie datum nie.
21. Ek het teruggekeer plaas toe
aangesien ek nie my geld ontvang het nie en die plaaseienaars
duidelik nie van plan was om hul deel
van die ooreenkoms na te kom
nie. Aangesien meer as twee jaar verloop het vandat ek die plaas
verlaat het, was die houding van die
plaaseienaars vir my duidelik.
22. Ek kon nie langer by my suster aanbly
nie weens die plaaslike regering se verordeninge oor die aard van die
boustruktuur waarin
ek gewoon het. Die struktuur moes afgebreek word
en ek het nie geld gehad om ‘n struktuur van klip en sement te
bou nie. Ek
het in ‘n sinkstruktuur gewoon. Gevolglik is ek
gedwing om na die plaas terug te keer, juis weens hierdie verbreking
van die
ooreenkoms deur die plaaseienaars.
. . .
27. Op of ongeveer 20 Desember 2001 het
die plaaseienaars vir my ‘n aantal boustruktuurplanke laat
aflewer as vergoeding vir
die Wendy-huis wat hulle omgestoot het met
die padskraper. My prokureur op daardie stadium het die plaaseienaars
oortuig om eerder
die skade wat ek aangedoen is goed te maak. Ek doen
aan die hand dat dit afgelei kan word uit die onderhandelinge tussen
my prokureurs
en Applikant, waarna Andrag verwys in sy funderende
eedsverklaring.
28. Met hierdie material het ek ‘n
nuwe woonstruktuur opgerig op die Dassenberg Plaas en ek woon
sedertdien in daardie selfde
struktuur wat dien as my woonhuis, op
presies dieselfe plek waar ek gewoon het voor 1998.
29. Ek erken dat daar verskeie
onderhandelinge plaasgevind het tussen die plaaseienaars en my
prokureur van rekord op daardie stadium,
maar ek dra nie werklik
detailkennis van daardie onderhandelinge nie.
30. Die werklike kruks van die saak is
egter daarin geleë dat dit die wens van die plaaseienaars was
dat ek my Wendy-huis te
Pella moes oprig welke oprigting met die
toestemming van die beheerliggaam van die wooneenhede daar moes
geskied het. Soos gestel,
woon my een suster daar. Die skrywe aan die
predikant daar, is die skrywe om toestemming wat deur Applikant gerig
is op 24 Oktober
2001 en wat as aanhangsel “AOA.13” tot
die funderende eedsverklaring van Andrag dien.
31. Omdat die nodige toestemming nie
gegee is nie, kon hierdie oprigting nie plaasvind nie en is ek
verplig om my huidige woonhuis
op te rig waar dit steeds staan op
Dassenberg Plaas, vanwaar dit verwyder is voordat ek die plaas onder
valse voorwendsels verlaat
het in 1998.
32. Ek ontken ook dat daar ooit enige
ooreenkoms was dat ek enige woonhuis te Atlantis sou oprig. Ek het
nooit so ‘n ooreenkoms
aangegaan nie en dra geen kennis daarvan
nie. Andrag het wel aan my die voorstel gemaak dat ek na Atlantis
verhuis, maar ek het nooit
die voorstel goedgekeur of daarmee
saamgestem nie. Die enigste ooreenkoms tussen ons was die ooreenkoms
wat voorsiening gemaak het
vir ‘n tydelike struktuur te Pella,
maar wat skipbreuk gely het weens die toestemming wat nooit in
hierdie verband verleen
is nie.’
[16] The application
was heard by Allie J. She concluded that the respondent was an
occupier (as defined in s 1 of ESTA) until her
departure in November
1998 and that she thereafter retained the protection afforded to an
occupier by that Act. The learned judge
dismissed the application
with costs.
[17] The appellant
appealed to the Full Bench. Two judgments were delivered. Hlophe JP
found that the respondent had never abandoned
her intention of
residing on the farm and therefore remained an ESTA occupier
throughout her absence and thereafter. He too held
that she had not
lost the protection of ESTA. His judgment, like that of Allie J, did
not recognize that an occupier in terms of
ESTA is one who physically
resides on the land, which the respondent did not do after November
1998. Hlophe JP drew inferences and
engaged in trenchant condemnation
of the motives and conduct of the appellant. That was unjustified.
The learned judge appears to
have lost sight of the fact that he was
dealing with allegations on paper untested by cross-examination.
[18]
Van Reenen J (with whom N C Erasmus J concurred) held that after her
departure from the farm the respondent did not qualify as
an occupier
for the purposes of ESTA as she neither resided on the farm nor
possessed an intention to do so; nor did she have the
express or
tacit consent of the owner then or subsequently to reside on any part
of it. He held, however, that the respondent retained
rights
conferred on her by ESTA despite no longer qualifying as an occupier.
Those rights included the right to reside on and use
the land (s
6(1)). Accepting the respondent’s version for the purpose of
the application proceedings, he found that the respondent
had vacated
the property in 1998 without knowledge of her rights under ESTA in
exchange for the offer of R25 000, so that any alleged
waiver of her
rights to occupy the land was of no force and effect because of the
terms of s 25 of ESTA.
3
She therefore
retained her right to reside on and use the land despite her physical
absence. Such right, the learned judge held, fell
within the scope of
‘any other right in law to occupy such land’ as that
phrase is used in the definition of ‘unlawful
occupier’
in s 1 of PIE. The respondent
was for that reason
not such an occupier and the application for her eviction under PIE
had to fail.
[19]
In the appeal before us the respondent’s counsel submitted that
the High Court possessed no jurisdiction to determine the
application
in the first instance because any decision involved a determination
of the respondent’s ESTA rights. He referred
to s 20
4
of that Act which
confers exclusive jurisdiction on the Land Claims Court (and, to the
extent provided in s 19, on a magistrate’s
court). For the
reasons which follow I do not agree with this submission.
[20] The application
was launched on the premise that the respondent was an ‘unlawful
occupier’ as defined in PIE. When
the respondent relied in her
first answering affidavit upon rights arising from ESTA the
appellant’s attitude was that her
reliance was ill-founded. It
seems to me that the proper approach to the ‘exclusive
jurisdiction’ for which s 20(2) provides
is defined by the
terms of s 20(1), ie if a party whether as applicant or respondent
claims performance of any of the functions of
a court in terms of
ESTA, only the Land Claims Court has the power, including the
exercise of the powers specified in subparas (a)
to (d) of s 20(1),
to order or implement such performance. This power of the Land Claims
Court is subject to s 17(2), which provides
that proceedings under
ESTA may be instituted in the relevant division of the High Court if
all the parties consent to this, and
to s 19(1), which gives the
magistrates’ courts jurisdiction in respect of certain
proceedings under ESTA.
[21] In the present
case the appellant did not claim any such performance. Nor did the
respondent attempt to do so, eg by making a
counter-application for
restoration of
occupation pursuant
to s 14 of ESTA. She was content merely to adopt the stance that she
possessed the rights of an occupier under
ESTA and to put the
applicant to the task of disproving her contention. It follows that s
20 was not engaged by either party.
[22]
Section 20(3) is so phrased to strike only at proceedings pending in
a High Court at the date of commencement of ESTA before
any evidence
had been led in such proceedings. There is no warrant for further
restricting the ordinary power of a High Court to
interpret the
provisions of ESTA if such an exercise is relevant to the
determination of a dispute before it. In so far as Gildenhuys
J held
otherwise in
Skhosana
v Roos
,
5
I respectfully
disagree. The preliminary submission on behalf of the respondent must
therefore be dismissed.
[23] Despite the
obvious unsatisfactory and contradictory features of the respondent’s
version, the appellant’s counsel
accepted that a genuine
dispute of fact arose from her averments about the making of the
offer by Stofberg and her acceptance or
reliance on that offer and
the communication, in so far as needs be, of such acceptance or
reliance to the appellant. The case must
therefore be approached on
the basis that in November 1998 her vacation of the property took
place after acceptance of the offer
and in anticipation of payment of
R25 000; thereafter the appellant breached the agreement, which
breach ultimately caused the respondent
to decide to return to the
farm.
[24]
The second issue argued before us involved the compromise agreement
in terms
of
which the appellant delivered a wendy house to the site of the
respondent’s sister in Pella in December 2001. The appellant’s
case was that it was a term of that agreement that the respondent
undertook that she would not return to the farm without its consent.
Its counsel submitted that the respondent had not raised a
bona
fide
dispute
of fact in her answering affidavits in relation to that averment: at
best for her she had claimed to have no knowledge of
it but she had
failed to meet the specific allegations. In the circumstances her
return to the farm in January 2002 without the owner’s
consent
was a breach of the agreement and rendered her an ‘unlawful
occupier’ in terms of the definition of such in PIE.
[25] This contention
cannot prevail. There is an inherent improbability in the acceptance
by the respondent of such a restriction
on her future conduct at the
time of the agreement. It is not in dispute that she understood that
Mr Gaerdes was in the course of
bringing a land restitution claim on
behalf of the residents of the farm. An undertaking not to return or
an abandonment of her occupational
rights would have been
inconsistent with the potential benefits which the success of such a
claim might in due course confer on her.
Moreover careful analysis of
the affidavits does not bear out the submission of appellant’s
counsel.
[26]
The respondent consistently denies that she agreed not to return to
the farm. She points out that the agreement was concluded
by her
attorney and pleads ignorance of the detail. She says that her
acceptance of the wendy house was premised on the availability
and
suitability of accommodation at Pella. The appellant did not produce
an affidavit from Mr Gaerdes (her attorney) in rebuttal.
Whether the
respondent’s version depends only on an unexpressed mental
reservation or whether the agreement was as unequivocal
as the
appellant will have it cannot be determined without the aid of oral
evidence. The respondent’s version was not without
inherent
probability as I have earlier suggested. It cannot be robustly
dismissed as not raising a genuine dispute of fact. But the
appellant
did not seek a reference to oral evidence in the court
a
quo
and
its counsel disavowed such recourse when asked by this Court during
the appeal. For these reasons it is bound to live with the
respondent’s denial that she undertook not to return to the
property after December 2001. The appellant, which has the onus
of
establishing the terms of the agreement on which it relies, has not
succeeded in showing otherwise.
[27]
Failing our outright rejection of the respondent’s denial,
appellant’s counsel relied on an alternative submission
that
was first raised with clarity in the course of
argument
before us and which he developed on the following lines:
27.1 When the
respondent left the farm in 1998 she did so of her own volition,
whether in response to the appellant’s offer
to pay R25 000 to
each resident who departed voluntarily or for other reasons of her
own.
27.2 The respondent
decided to return after she was satisfied that the appellant had no
intention of keeping its side of the contractual
bargain or simply
because it suited her to do so. In either event she did not rely on
any delictual wrongdoing by the appellant.
27.3 In leaving the
farm, the respondent ceased to occupy the premises as contemplated in
ESTA. By the time that she changed her mind
she knew that she had no
consent from the owner to again take up residence on the farm.
27.4 If the
respondent’s initial departure from the farm arose simply from
a decision by her to change her place of residence,
no question of
waiver of her rights under ESTA arose. Such a move was simply a
termination of her occupation of her own accord and
brought her ESTA
rights to an end. If her acceptance of the offer amounted to a waiver
then such a waiver was by reason of the terms
of
s
25(1)
6
of ESTA void unless
permitted by the Act.
27.5 The conditions
for a permitted waiver are to be found in s 25(3), ie a free and
willing vacation of the land by an occupier who
is aware of his or
her rights in terms of ESTA at the time that he or she leaves.
27.6 A former
occupier who claims not to have vacated the land freely, willingly
and
with
knowledge of his or her rights (and, therefore, to have preserved
such rights) is entitled to institute proceedings for restoration
under s 14.
7
Although the express
terms of that section only apply to cases of eviction, ie deprivation
against the will of the evictee, in order
to make sense of s 25(3), s
14 has to be given an extended application which recognizes that the
remedy of restoration is also open
to the occupier who vacates
voluntarily while unaware of his or her rights.
27.7 The respondent
was not shown to have been aware of her rights when she left the
property. ESTA therefore conferred upon her a
right to claim
restoration in terms of s 14.
27.8 Until that
right has been adjudicated upon as provided for in ESTA and an order
made for restoration, any occupation of the property
by her without
the consent of the owner would be a resort to self-help and hence
unlawful. That, submitted counsel, was the legal
consequence of an
acceptance of the facts set up by the respondent. On any other
interpretation, an ESTA occupier who voluntarily
leaves would have
more than the s 14 right of restoration that an occupier who is
unlawfully evicted has. In the result the respondent
ceased being an
ESTA occupier and was indeed an unlawful occupier as defined in PIE.
[28] Counsel for the
respondent did not contest the propriety of the interpretation placed
on s 25(3). He sought to counter the argument
by submitting that when
the respondent returned to the farm she was merely exercising an
extant right to occupy the land which she
had never lost. (In essence
this was the route preferred by the majority in the Full Bench.) That
right, he said, was another ‘right
in law to occupy the land’
in terms of the definition of ‘unlawful occupier’ in s 1
of PIE which served to exclude
her from that category. The appellant
was accordingly unable to bring its case within the terms of that Act
and the appeal should
fail.
[29] I think that
the logic of the reasoning of counsel for the appellant is, save for
one reservation the correctness of which it
is unnecessary to decide,
inescapable. The legislature, in enacting ESTA, recognized the
existence of a large population bound by
history and circumstance to
the land on which they live. It intended to provide ample protection
to such occupiers who would in all
probability be disadvantaged by
lack of means and inadequacy of education and thus constitute an easy
prey to a landowner seeking
to take advantage of them. In these
circumstances, and having regard to the broad content
of the rights of such occupiers arising from ss 25(1)
8
,
25(6)
9
and 26
10
of the Constitution, it may well be that ‘waiver’
should be given a broad interpretation which includes unilateral
abandonment
even though the intention of the ESTA occupier is to take
up permanent occupation elsewhere, provided that the occupier is
aware
of his or her rights under ESTA at the time of his or her
departure from the land. However, even allowing the respondent the
benefit
of that interpretation she faces the problem that the
legislature so constructed ESTA as to institutionalise and canalize
all disputes
between owners and occupiers (or former occupiers) and
thereby to limit the scope for conflict between them. This it sought
to achieve
through inter alia the restoration proceedings provided
for in s 14. In particular s 14(3) affords a wide discretion to a
court to
make orders which are equitable and appropriate in the
particular circumstances of the proceedings before it. That
discretion is
not one which considers only the interest of the
claimant. It recognises that restoration may be impracticable or
unfair to the owner.
As counsel for the applicant submitted, the
assertion by an evictee of an apparently unassailable right to occupy
does not mean that
restoration of occupation will automatically
follow. That determination lies solely in the discretion of the
competent court after
a consideration of all the relevant
circumstances.
[30]
But I think appellant’s counsel was also correct in submitting
that it is not only evictees whom the legislature intended
to bring
within the remedies of s 14. The only way to give meaningful content
to s 25(3) is to place the occupier who vacates property,
otherwise
than freely and willingly and with awareness of his or her rights, on
a par with an evictee. It would seem that the legislature
intended
that such a person should be regarded as one who was deprived
‘against his or her will of residence or use of land
or access
to water which is linked to a right of residence in terms of’
ESTA.
11
That equation is by
no means unduly strained and it is consistent with the overall
purpose of the legislation to which I have earlier
referred because
it has the effect of bringing the parties together in a controlled
judicial environment in order to resolve the
dispute. It also follows
that resort to self-help is at odds with the means provided. The
argument for the respondent is flawed in
so far as it equates her
claim to a right to occupy with actual occupation. The reality is
that, instead of resorting to her remedies
under the statute, the
respondent simply moved on to the property without the owner’s
consent or the authority of an order
granted in terms of s 14. In
doing so she was not an ESTA occupier and did not become one, but
rather occupied the land without any
right in law to do so. She was,
therefore, an ‘unlawful occupier’ within the terms of PIE
when the application was launched.
[31]
It follows that the applicant has established what it set out to
prove. That however does not mean that eviction is the appropriate
relief. The respondent’s present occupation, although unlawful,
is not a crime. While it is no doubt an inconvenience to the
appellant, there is no evidence of greater immediate prejudice to it.
The respondent is a single mother of minor children, one of
whom has
special needs. She appears to be indigent. The availability of
suitable alternative accommodation is at least doubtful.
Her
continuous residence on the property extends, save for one absence of
nearly two years, for about thirty-five years. Under s
4 of PIE an
application for her eviction would be subject to the exercise of an
equitable discretion because she had unlawfully occupied
the land for
a period of more than six months by the time proceedings were
initiated in the court
a
quo
.
On the facts which the application procedure requires us to accept
she has a claim to restoration of occupation under ESTA which
may
result in her once again obtaining legal residence and use of a
portion of the farm. The equities of the situation thus justify
a
flexible approach which will offer her the opportunity of
regularising her occupation. The order I propose recognizes that the
continuance of the uncertainty is undesirable for both parties and
should be brought to an end as soon as possible.
[32] The appellant
has throughout the protracted proceedings adopted an approach which
does not seek to penalise the respondent by
an adverse costs order.
Neither party has achieved outright or final success in the
proceedings. It is in all the circumstances fair
that each party
should bear its or her own costs in all the courts.
[33] The following
order is made:
1. The appeal
succeeds. Each party is to pay its or her own costs.
2.
The order of the court
a
quo
is
set aside and replaced with the following order:
‘
1. The appeal
succeeds. Each party is to pay its or her own costs of appeal. The
order of Allie J is set aside. The following order
is made in
substitution of that order:
“
(a) The
respondent is placed on terms to institute proceedings in terms
of
section 14(1)
of
the
Extension of Security of Tenure Act 62 of 1997
for restoration of
her residence and use of land on the farm Dassenberg No 15,
Malmesbury within 4 months from the date of this order.
The appellant
may, if so advised, bring counter-proceedings in terms of
sections 9
,
10
and
12
of that Act.
(b) Should the
respondent fail to institute such proceedings timeously or fail to
prosecute such proceedings to their conclusion with
due expedition,
the appellant is given leave to apply on the same papers duly
supplemented for an order of eviction under the Prevention
of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998.
(c) Each party is to
pay its or her own costs.”’
_________________
J A HEHER
JUDGE OF APPEAL
CAMERON JA
)Concur
BRAND JA )
VAN HEERDEN JA )
THERON AJA )
1
‘
“
unlawful occupier”
means a person who occupies land without the express or tacit
consent of the owner or person in charge,
or without any other right
in law to occupy such land, excluding a person who is an occupier in
terms of the
Extension of Security of Tenure Act, 1997
, and
excluding a person whose informal right to land, but for the
provisions of this Act, would be protected by the provisions
of the
Interim Protection of Informal Land Rights Act, 1996 (Act 31 of
1996).’
2
‘
“
o
ccupier”
means a person residing on land which belongs to another person, and
who has or [sic] 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’.
3
For
the text of the relevant part of s 25, see
fn
6
below.
4
‘
(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 to act in terms of this Act; and
(d)
to
review an arbitration award in terms of the Arbitration Act, 1965
(Act 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 sections 17 (2) and 19 (1), 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 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.’
The High
Court is a court contemplated in s 166(c) of the Constitution.
5
[1999]
2 All SA 652
(LCC) at para 14.
6
S
25 provides (in so far as relevant):
‘
(1)
The waiver by
an occupier of his or her rights in terms of this Act shall be void,
unless it is permitted by this Act or incorporated
in an order of a
court.
(2) A court shall have regard
to, but not be bound by, any agreement in so far as that agreement
seeks to limit any of the rights
of an occupier in terms of this
Act.
(3) Notwithstanding the
provisions of subsections (1) and (2), if an occupier vacates the
land concerned freely and willingly, while
being aware of his or her
rights in terms of this Act, he or she shall not be entitled to
institute proceedings for restoration
in terms of section 14.’
7
Section
14 provides (to the extent relevant):
‘
(1)
A person who
has been evicted contrary to the provisions of this Act may
institute proceedings in a court for an order in terms
of
subsection(3).
(2) A person who-
(a)
would
have had a right to reside on land in terms of section 6 if the
provisions of this Act had been in force on 4 February 1997;
and
(b)
was
evicted for any reason or by any process between 4 February 1997 and
the commencement of this Act,
may institute proceedings in a
court for an order in terms of subsection (3).
(3) In proceedings in terms of
subsection (1) or (2) the court may, subject to the conditions that
it may impose, make an order-
(a)
for
the restoration of residence on and use of land by the person
concerned, on such terms as it deems just;
(b)
for
the repair, reconstruction or replacement of any building,
structure, installation or thing that was peacefully occupied or
used by the person immediately prior to his or her eviction, in so
far as it was damaged, demolished or destroyed during or after
such
eviction;
(c)
for
the restoration of any services to which the person had a right in
terms of section 6;
(d)
for
the payment of compensation contemplated in section 13;
(e)
for
the payment of damages, including but not limited to damages for
suffering or inconvenience
caused by the eviction; and
(f)
for
costs.’
8
‘
(1) No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.’
9
‘
(6) A person or community whose
tenure of land is legally insecure as a result of past racially
discriminatory laws or practices
is entitled, to the extent provided
by an Act of Parliament, either to tenure which is legally secure or
to comparable redress.’
10
‘
(1)
Everyone has the right to have access to adequate housing.
(2) The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realization
of this right.
(3) No one may be evicted from
their home, or have their home demolished, without an order of court
made after considering all the
relevant circumstances. No
legislation may permit arbitrary evictions.’
11
This
is the definition of ‘evict’ and ‘eviction’
in ESTA.