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[2006] ZASCA 170
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Popela Community and Others v Goedgelegen Tropical Fruits ((Pty) Ltd (441/05) [2006] ZASCA 170; 2007 (2) SA 21 (SCA) (28 September 2006)
REPUBLIC OF SOUTH
AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number : 441 / 05
In the matter between
POPELA COMMUNITY FIRST APPELLANT
MAMORIBULA MAAKE SECOND APELLANT
JOHANNES THOLO MAAKE THIRD APPELLANT
RAMOTHABA PHINEAS MAAKE FOURTH APPELLANT
MABULE MAAKE FIFTH APPELLANT
MOLATOLO MAMOYAHABO MAAKE, NO SIXTH APPELLANT
SEAKWANE WILSON MALEMELA SEVENTH APPELLANT
ABRAM MAAKE EIGHTH APPELLANT
MASELELO MOSIBUDI MAAKE NINTH APPELLANT
MOHLAGO MAMOTLATSO MAAKE, NO TENTH APPELLANT
DEPARTMENT
OF LAND AFFAIRS ELEVENTH APPELLANT
and
GOEDGELEGEN TROPICAL FRUITS (PTY) LTD RESPONDENT
Coram
:
FARLAM,
CONRADIE, PONNAN JJA, THERON and CACHALIA AJJA
Date of hearing
: 8 SEPTEMBER 2006
Date of delivery
: 28 SEPTEMBER 2006
SUMMARY
Restitution of Land Rights – no causal
connection between racially discriminatory law or practice and
dispossession where
farmer terminating labour tenancies for reasons
of productivity and efficiency.
Neutral citation: This
judgment may be referred to as
Popela Community &
Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2006] SCA 124
(RSA)
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
CONRADIE JA
[1] A land claim brought by the first appellant, the
Popela Community, and in the alternative by the second to tenth
appellants, the
individual claimants, a claim supported by the
eleventh appellant, the Department of Land Affairs, was dismissed in
the Land Claims
Court by Gildenhuys J who gave leave to appeal to
this court.
[2] The land claimed by the first to tenth appellants is
part of what used to be the remaining extent of the farm Boomplaats.
It has
now been consolidated with the farm Goedgelegen, the property
on which the respondent conducts its farming operations. The
dispossession
of rights in the land is said to have occurred as a
result of the termination of the labour tenancy relationship
1
between those workers resident on the farm at the time of the
termination and the farm owners, Mr August Altenroxel and his brother
Bernard.
[3] Gildenhuys J assumed that the individual claimants
were, within the meaning of the Restitution of Land Rights Act 22 of
1994 (the
Act), dispossessed of their cropping and grazing rights. I
make the same assumption. The crucial question is whether the
dispossession
occurred as a result of past racially discriminatory
laws or practices.
2
[4] Racially
discriminatory laws include ‘laws made by any sphere of
government and subordinate legislation’. It was not
argued
before us that the first to tenth appellants were dispossessed as a
result of a racially discriminatory law as defined. The
only relevant
legislation is an amendment to the Native Trust and Land Act of 1936,
introduced by the Bantu Laws Amendment Act 42
of 1964 as s 27bis(1):
'Whenever the Minister considers it in the public interest to do so,
he may by notice in the Gazette declare that as from a date
fixed in
such notice –
‘(a) no further labour tenants' contracts shall be entered into
and no further labour tenants shall be registered in respect
of land
in the area referred to in such notice; or
(b) no labour tenants shall be employed on land in the area referred
to in such notice.'
Subsection (2) makes failure to comply with the notice
an offence and voids the contract.
[5] The amendment to the Native Trust and Land Act did
not by itself deprive any labour tenant of a right in land. It did no
more
than authorise the Minister to take such a step in areas where
he considered it in the public interest to do so. The Minister could,
by way of subordinate legislation, either prohibit labour tenancy
altogether or phase it out, depending on what he thought appropriate
for a particular area. On 31 July 1970 the Minister caused to be
published in the Government Gazette of that date a notice prohibiting
with effect from the next day any further labour tenants' contracts
on land in many areas including that in which Boomplaats fell.
[6] The court
a quo
correctly
found that the amendment to the Native Trust and Land Act and the
government notice issued pursuant thereto were racially
discriminatory. The appellants were nevertheless faced with two
dilemmas. First, by the time the notice was published the individual
claimants had already been deprived of their labour tenants' rights
and of whatever such rights they or others might have held as
a
community.
3
It is common cause that these had been terminated by the brothers
Altenroxel the year before. Secondly, and in any event, the notice
did not bring about a deprivation of the rights of existing labour
tenants and it was not argued on behalf of the appellants that
it
did. The court
a quo
was
therefore correct in finding that the individual claimants were not
deprived of their rights to the land they occupied as a result
of the
1964 amendment or any implementation measure that followed it.
[7] This leaves the question of racially discriminatory
practices. They are defined as –
'racially discriminatory practices, acts or omissions, direct or
indirect, by
any department of state or administration in the national,
provincial or local sphere of government;
any other functionary or institution which exercised a public power
or performed a public function in terms of any legislation.'
[8] The first to tenth appellants were therefore obliged
to demonstrate that the dispossession of their rights to the land
occurred
as a result of some direct or indirect discriminatory
practice (whether manifested by commission or omission) by a
department of
state, or administration in any of the spheres of
government, or by any functionary or institution endowed with public
power which
it exercised in the performance of a legislatively
mandated function. It was not suggested that these appellants were
directly dispossessed
by any of the bodies mentioned in the
definition. Indeed, there was no body that had the power to
dispossess or order the dispossession
of existing labour tenants on
land in the Boomplaats area. At best for the individual claimants any
such body could have acted indirectly
through the actual
dispossessors, the brothers Altenroxel.
[9] The appellants sought to meet this difficulty by
putting forward the thesis that by 1969 August Altenroxel knew of the
proposed
phasing out of the labour tenancy system in the Moketsi area
and (presumably with the complicity of his brother) decided to go one
better in terminating the rights of their existing labour tenants
there and then. For this thesis to succeed, the appellants would
have had to demonstrate that the Altenroxels served as an instrument
for indirectly carrying out or promoting a practice of a government
institution or functionary. There is no evidence that any institution
or functionary charged with overseeing the policy prevailing
in the
Moketsi area – which went no further than preventing future
labour tenancies – had adopted a practice of encouraging
or
persuading farmers, in particular the Altenroxels, to anticipate and,
indeed, exceed the requirements of the notice.
[10] The furthest the evidence went is the production of
an enigmatic letter called an 'Arbeidsvoorligtingsbrief no 20' dated
25 August
1969 on the topic of Bantu labour control boards, written
by the secretary of Bantu Administration and Development. It relates
that
one Adv Froneman, at the time when he was a full-time member of
the Bantu Affairs Commission, in July 1953 gave an instruction that
farmers should gradually reduce the number of labour tenants in their
employ so that the system might disappear by the end of 1970.
What
the status of the instruction was, or if anyone who came to know of
it paid any attention to what Adv Froneman had said in 1953,
is not
known.
[11] August Altenroxel testified that he did not know of
any proposed measure to phase out the labour tenant system. The
argument
that, despite his assertions to the contrary, he must have
known of it because he sometimes attended farmers’ association
meetings
where these matters must have been discussed is far too
speculative to have any probative value. The fact of the matter is
that most
of the farmers in the Moketsi area, those who would have
belonged to the Moketsi Farmers’ Association, had moved away
from
the labour tenant system by 1969, many of them by as early as
1960, so that it was not a burning issue in that district. The
evidence
of Mr Van Zyl, a prominent farmer in the district and former
chairperson of the Moketsi Farmers’ Association, that there was
no discussion around the issue, is thus not unlikely to be true.
[12] August Altenroxel’s evidence that he changed
the system on his farm because it was inefficient and not suited to
modern
farming methods and because he saw that their neighbours who
had abolished it were benefiting from the change, is not improbable.
Nor is it improbable when he says that the hardships imposed by the
system on labour tenants played a role in his decision: The best
they
could manage was a primitive level of dry-land subsistence farming
that led to their crops failing and their cattle dying in
times of
drought.
[13] The way the appellants sought to counter this
evidence was to suggest that whatever decision the brothers
Altenroxel took was
on a balance of probabilities tainted by the
prevailing apartheid dogma and, whether August Altenroxel admitted it
or not, conducive
to carrying out the apartheid scheme to remove
black people on white farms to the homelands. This was the thesis of
Dr Schirmer who
gave expert testimony on behalf of the appellants.
The view that he espoused was that the racially motivated government
strategy
to end the occupation of white-owned farms by black labour
tenants permeated every decision by a white farmer to abolish the
labour
tenancy system on his farm. It was, he said, impossible for a
decision like that to have been a purely business decision.
[14] Dr Schirmer’s premise seems to me seriously
flawed but it does not matter. Even if the Altenroxels knew of the
projected
phasing out of labour tenancy agreements I am gravely
doubtful whether that knowledge by itself, and without any
counselling or
prompting by a government agency to move in that
direction, would be sufficient to establish the necessary causal
connection between
the racially motivated law or practice and the
dispossession. The Act does not require every dispossession of land
taken in the context
or even in furtherance of the apartheid doctrine
to be made good. It envisages reparation in respect of a racially
discriminatory
law or practice of government or one of its agencies
(a functionary or institution exercising a public function) that
directly or
indirectly resulted in a dispossession. If such an agency
had prompted the decision by the Altenroxels to terminate their
labour
tenants’ contracts one might have been able to say that
the termination was the indirect result of a discriminatory practice,
but the evidence accepted by the court
a quo
is all the other
way.
[15] In my view the court
a quo
cannot be faulted, either in its assessment of the evidence or in its
application of the law. The phrase ‘as a result of’
in
the expression ‘as a result of past discriminatory laws and
practices’ connotes a causal connection.
4
In a case such as this where there is no discernable causal
connection at all I refrain from expressing a view on how close that
connection would have to be in order to bring s 2(1) of the Act into
operation.
[16] Counsel for the first appellant argued that there
was a community or part of a community on the land in question so
that not
only the individual claimants who have all along been
resident on the farm but also others forming part of the community
are to be
considered for restitution. The respondent contended that
the farm residents never belonged to a group cohesive enough to be
characterized
as a community in terms of the Act.. The Act defines a
‘community’ as ‘any group of persons whose rights
are derived
from shared rules determining access to land held in
common by such group, and includes part of any such group.'
[17] The court
a quo
found the evidence tendered to establish the existence of a community
inconclusive. I incline to the view that the finding is unassailable
but it is not necessary to resolve the issue. If the individual
claimants were not dispossessed in the circumstances contemplated
by
the Act no community of which they formed a part can be said to have
been dispossessed within the contemplation of the Act.
[18] There was some argument about the propriety of
ordering the appellants to pay the costs of both counsel employed by
the respondent.
Counsel for the second to tenth appellants subjected
the decision of the court
a quo
to wide-ranging criticism. In
addition, the eleventh appellant seems to have regarded this case as
an important one for the success
of the land reform program and
produced a spirited argument in support of the first appellant's
claim. Faced with opposition from
two counsel on the appellants'
side, and given the issues raised, the employment of two counsel by
the respondent was, in my view,
no more than a sensible precaution.
[19] The appeal is dismissed with costs which are to
include the costs of two counsel payable by the appellants jointly
and severally.
J
H CONRADIE
JUDGE
OF APPEAL
CONCUR :
FARLAM
JA
PONNAN
JA
THERON
AJA
CACHALIA
AJA
1
The Act defines a right in land as '. . . any right in land whether
registered or unregistered, and may include the interest of
a labour
tenant and sharecropper, a customary law interest, the interest of a
beneficiary under a trust arrangement and beneficial
occupation for
a continuous period of not less than 10 years prior to the
dispossession in question.'
2
S
ection 2(1) of the Act reads:
'(1) A
person shall be entitled to restitution of a right in land if –
he or
she is a person dispossessed of a right in land after 19 June 1913
as a result of past racially discriminatory laws or
practices; or
.
. . ; or
.
. . ; or
it is
a community or part of a community dispossessed of a right in land
after 19 June 1913 as a result of past racially discriminatory
laws
or practices; and
the
claim for such restitution is lodged not later than 31 December
1998.'
3
Members of a community who may at one time have been labour
tenants, but were no longer labour tenants or even residents on the
land at the time of the dispossession of the labour tenants can only
derive rights to the land in question through the latter.
4
Minister of Land Affairs and Another v Slamdien and Others
1999
(1) BCLR 413
(LCC) at 435D-E. These dicta have since been followed
in
Boltman v Kotze Community Trust
[1999] JOL 5230
(LCC) and
In re Former Highlands Residents: Naidoo v Department of Land
Affairs
2000 (2) SA 365
(LCC) at 368G - 369C.