Minister of Land Affairs v Mphuti and Another (3028/06) [2009] ZAFSHC 20 (26 February 2009)

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[2009] ZAFSHC 20
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Minister of Land Affairs v Mphuti and Another (3028/06) [2009] ZAFSHC 20 (26 February 2009)

IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
3028/06
In
matter
between:-
MINISTER
OF LAND AFFAIRS
Applicant
and
FALATSI
J MPHUTHI
1
st
Respondent
GRAMMAR
J MPHUTHI
2
nd
Respondent
HEARD
ON
:
05
FEBRUARY 2009
JUDGMENT
BY
:
K.J.
MOLOI, AJ
_____________________________________________________
DELIVERED
ON
:
26
FEBRUARY 2009
JUDGMENT
_____________________________________________________
[1] The
applicant in this matter, the Minister of Land Affairs, approached
this court for an eviction order against the respondents
from the
property known as Portion 77 of
Farm
1903 situated in the district of Harrismith, Free State Province.
The respondents, owners of an adjacent property known as
Portion 76
measuring 826,0112 ha which they acquired from the applicant during
1998, have been occupying and utilising the said
property of the
applicant.
[2] The
applicant contended the occupation of the property was illegal and
that the same property was leased to one Roger Lehapa
in 1993 and
that the respondents occupied it forcefully. These allegations were
confirmed by the said Lehapa who further claimed
that, as a result of
the illegal occupation of the property by the respondents, he could
not utilise it for the purpose for which
he leased it.
[3] Initially
the respondents admitted they occupied the applicant’s property but
contended that the occupation was legal in that
they had a lease
agreement of property known as Unit 3.21 with the applicant since
March 1994. The property, Unit 3.21, was later
sold to them and they
took transfer thereof from applicant in November 2006 against payment
of R127 000,00. Only in January 2001
were they informed that the
property, Portion 77 of farm 1903, was, in fact, leased to Lehapa and
that they had to vacate it.
[4] Both
parties agreed that protracted discussions followed in an endeavour
to resolve the dispute to no avail. According to the
applicant and
Lehapa the resolution of the dispute was made impossible by the
respondents’ intransigence, arrogance and aggressive
attitude. The
respondents, on the other hand, contented that they initially
laboured under a
bona
fide
belief that they were entitled to occupy the property as they bought
it from the applicant and the property formed part of Unit
3.21 they
had purchased. The respondents later conceded, however, that in
April 2007, after they were shown aerial photographs
of the
surroundings and the land surveyor’s report, for the first time,
they realised that Portion 77 did not form part of Unit
3.21 they
first leased and later bought from the applicant. They were also
advised to vacate the applicant’s property.
[5] Despite
this realisation of the true state of affairs and the advice they
were given, they persisted in their refusal to vacate
the applicant’s
property. The reasons given by the respondents why they would not
vacate the applicant’s property were because
on that property,
Portion 77, there is a homestead occupied by their seven family
members. They had effected repairs to the broken
windows of the
homestead to the amount of R6 350,00 to make it habitable and they
had added two additional rooms to it at the cost
of R46 000,00. On
their acquired property
viz
Portion 76 (initially Unit 3.21), there is no homestead or structure
to live in and it would take them approximately six months
to erect a
homestead there whereafter they could vacate Portion 77. The
respondents did not contend they had no means to erect
such a
homestead on their property.
[6] At
the end of their eleven page answering affidavit they added a single
paragraph that they had been advised that, (as they
belonged to the
black community), they qualified as occupiers under the provisions of
Extension of Security of Tenure Act, No.
62 of 1997 (ESTA) and that
there had been no compliance with the provisions of that Act to
enforce their eviction. To this end
the respondents stated they did
not employ any other person(s) save for the members of their family
whose ages range from 24 years
to 34 years to work the land and they
did not have income in excess of R5 000,00 per month.
[7] The
respondents used the applicant’s land to cultivate crops, to graze
their stock and also exploited the plantation thereon
over and above
their own 826,0112 ha farm in addition to occupying the homestead
thereon.
[8] The
application for an eviction order was launched on 17 July 2006. The
opposing affidavit was filed on 2 June 2008 as the
protracted
discussions took place in between without success. The application
served before me on 11 December 2008 and as the
respondents’ entire
argument was then premised on the provisions of ESTA, the hearing was
postponed to 5 February 2009 and the
parties were asked to prepare
and address me on the following aspects:
whether
the respondents qualified as “occupiers” in terms of the
Extension of Security of Tenure Act, 62 of 1997, (ESTA);
and
whether,
in view of the provisions of section 17(1) and (2) of ESTA, the High
Court was entitled to consider a
defence
based on the non-compliance of the provisions of ESTA.
[9] The
questions above were raised as I was of the view that section 17(1)
and (2) of ESTA, in the absence of consent by the parties,
precluded
the High Court from entertaining a matter under ESTA. See
KHUMALO
v POTGIETER
2001 (3) SA 63
(SCA) at 67E – F and
MKANGELI
AND OTHERS v JOUBERT AND OTHERS
2002 (4) SA 36
(SCA) at 42C – D. The parties readily agreed that
if the matter is based on the provisions of ESTA, the High Court did
not have
jurisdiction to entertain it unless the parties had
consented thereto.
[10] As
regards the question whether the respondents qualified for
protections afforded by the provisions of ESTA, the respondents’

counsel submitted they did simply because they had a lease agreement
with applicant since 1994 (this being the same agreement the

respondent’s conceded was not in respect of the disputed property);
neither of them had an income exceeding R5 000,00 per month;
only
members of the family maintained the land and were not using it for
industrial, mining, commercial or commercial farming purposes.
(See
section 1 of ESTA – the definition of ‘occupier’.) The
applicant’s counsel, on the other hand, contended that protection

under ESTA was afforded only to an occupier who occupied another’s
land legally and the respondents’ were not. See
AGRICO
MASJINERIE (EDMS) BPK v SWIERS
2007 (5) SA 305
(SCA). On behalf of the applicant it was further
submitted that the basis of the application and the bulk of the
opposition thereto
was common law and that ESTA was sneaked in only
to deflect the court’s attention in an endeavour to oust the
court’s jurisdiction.
The provisions of section 17(1) and (2) of
ESTA did not deprive the court of jurisdiction to hear the matter
especially as the
respondents did not qualify as occupiers
thereunder.
[11] The
following factors are common cause:
(i) The applicant is the
owner of the property in question;
(ii) The
respondents occupied the said property for cultivation of the lands,
the grazing of their stock, the utilisation of the
plantations and
residence in the homestead;
The
occupation of the property was not based on any consent or agreement
and the respondents conceded they
bona
fide
believed that the property formed part of the land they initially
leased from the applicant and later acquired, which belief
was
mistaken;
Since
April 2007 when the aerial photographs of the area and the
surveyor’s report were shown to them, the respondents realised the

disputed property belonged to the applicant and that the purported
lease agreement had no bearing on it;
They
were also advised to vacate the property in question
as they had no right to occupy it;
The
respondents had been served with eviction notice on 11 August 2003
and were all along aware that they had to vacate the applicant’s

property;
The
respondents needed a period of approximately six months to erect a
dwelling on their farm since April 2007 when they realised
they had
no right nor title to the property in question but, by 5 February
2009 when the matter was further argued before me,
and since April
2007, approximately twenty-two months later, they still resisted
vacating the applicant’s property despite
the fact that they had
no financial constraints to erect a homestead on their own property
adjacent to the applicant’s property.
[12] The
purpose of ESTA was succinctly put as:
“
Generally
speaking ESTA protects a particular class of impecunious tenant on
rural and semi-rural land against evictions from that
land. The
underlying basis for their protection is that they acquired their
tenancy with the consent of the owner. The term
used
by ESTA to describe the class of tenants protected by it is
‘occupiers’.”
See
MKANGELI
AND OTHERS v JOUBERT AND OTHERS
,
supra
,
at 42I – J (par. 9) and sections 1 of ESTA defining “occupier”.
[13] It
needs to be mentioned that consent can be express or tacit according
to the definition of consent – section 1 of ESTA.
In terms of
section 3(4) and (5) of ESTA consent or knowledge of residence can be
presumed based on the length of the period of
residence on another’s
property if such residence was continuous and open for the periods
mentioned therein. These presumptions
are, however, not applicable
where the State is the owner of the land - See section 3(6) of ESTA.
[14] While
it is true that the High Court has no jurisdiction to hear the
matters in which ESTA is raised as an issue without consent
of both
parties, in this case the court can in view of the fact that the
application was based on common law and 95% of the defence
as well.
Only a negligible part, in passing, referred to the provisions of
ESTA though much was made of it during argument. In
AGRICO
MASJINERIE (EDMS) BPK v SWIERS
,
supra
,
at 316B – C (par. 22) the following was said by Heher, JA:
“…
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.”
[15] The
respondents in this matter are farm owners and live adjacent to a
farm they initially believed they had a lease over but
realised, in
due course, they did not. The initial occupation did not have a
legal basis nor consent of the owner as this was
based on a mistaken
but
bona
fide
belief that they had a lease over the land and it became clear, on
their own admission, in April 2007 that the lease agreement
did not
relate to the disputed property. They utilised the property for
residence, cultivation of crops, grazing of live-stock
and
exploitation of plantation. All these activities are generally
conducted by commercial farmers and unquestionably are commercial

farming activities as referred to in the definition of “occupier”
in section 1 of ESTA. The respondents can, as a result,
not be the
persons entitled to the protection of ESTA, simply because they
belong to the so-called “previously disadvantaged”
group.
[15] The
applicant has met all the requirements of proving entitlement to the
relief sought under common law. The respondents have
not been
successful in proving their entitlement to the protection afforded by
ESTA and have no defence against the relief sought.
See
SKHOSANA
AND OTHERS v ROOS t/a ROOS SE OORD AND OTHERS
2000 (4) SA 561
(LCC).
[16] The
following order is made:
1. That
the respondents are ordered to forthwith vacate the fixed property of
the applicant known as Portion 77 of the Farm 1903,
district
Harrismith, Free State Province – Subdivision Plan No. SG914/1998,
Sheet 7;
2. That
in the event of the respondents failing to comply with paragraph 1
above, the Sheriff, Harrismith, is empowered, authorised
and
instructed to enter onto the property and forcibly evict the
respondents as well as any other person claiming occupation through

them from the property.
3. That the respondents
are jointly and severally, the one paying, the other to be absolved,
ordered to pay the costs of this application.
_____________
K.J.
MOLOI, AJ
On
behalf of the
applicant: Adv.
S.E. Motloung
Instructed
by:
The State Attorney
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
J.J.F. Hefer
Instructed
by:
McIntyre & Van der
Post
BLOEMFONTEIN
/sp