Simonsig Landgoed (Edms) Bpk v Vers and Others (A141/06 , A142/06 , A143/06) [2007] ZAWCHC 20; [2007] 4 All SA 1288 (C); 2007 (5) SA 103 (C) (9 May 2007)

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[2007] ZAWCHC 20
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Simonsig Landgoed (Edms) Bpk v Vers and Others (A141/06 , A142/06 , A143/06) [2007] ZAWCHC 20; [2007] 4 All SA 1288 (C); 2007 (5) SA 103 (C) (9 May 2007)

IN THE
HIGH COURT OF CAPE TOWN
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A141/06
A142/06
A143/06
In the
matter between:
SIMONSIG
LANDGOED (EDMS) BPK
Appellant
And
SALOME
VERS
1
st
Respondent
CM
ROSSOUW
2
nd
Respondent
ANNIE
MOOS
3
rd
Respondent
And
KAAPSE
WYNLAND
4
th
Respondent
DISTRIKMUNISIPALITEIT
JUDGMENT:
9/05/007
VAN
REENEN et NDITA, JJ:
1] This
is an appeal against decisions of the magistrate of Stellenbosch in
applications for the ejectment of the respondents from
the farm
Simonsig Estate which in the records of the Deeds Office is described
as “a portion of the farm Koelenhof No 66” (the
property) in
terms of the Prevention of Illegal Evictions from and Unlawful
Occupation of Land Act 19 of 1998 (Pie).
2] The
appellant is the registered owner of the property.
3] The
first respondent is the survivor of the permanent conjugal
relationship in conformity with the common law definition of marriage
(See:
Fourie
and Another v Minister of Home Affairs and Others
2005(3) SA 429 (SCA) at 463 paragraphs 83 and 84) with Mr Richard
Ntoyakhe who passed away on 8 September 2002.
4] The
second respondent is the widow of Mr George Rossouw who passed away
on 23 November 2002 and to whom she had been married by
civil law.
5] Advocate
Brown appeared for the appellant and Advocate Moller represented the
first- and second respondents.
6] The
third respondent has passed away on a date which is not apparent from
the papers. As no application has been brought for the
substitution
of an executor as the applicant in her stead in the appeal under Case
No A143/2006 it has been automatically stayed
by virtue of the
provisions of Magistrate’s Court Rule 52(3). Accordingly the
appeal brought in the third respondent’s name
cannot be dealt with
at this juncture.
7] Mr
Ntoyakhe and Mr Rossouw were employed by the appellant. In terms of
their contracts of employment the former was entitled to
occupy
cottage number DH25 and the latter cottage S11 on the property, by
virtue of agreements styled “Huisvestings-ooreenkoms”
entered
into on 23 November 2002 and 19 June 2003 respectively which set out
the conditions under which they and their dependants
were permitted
to occupy such cottages. As such they undoubtedly were occupiers as
defined in
Section 1
of the
Extension of Security of Tenure Act 62 of
1997
(Esta).
8] The
first- and second respondents, prior to the death of their partner
and husband respectively resided in their cottages by virtue
of the
provisions of clauses 1 and 2 of written agreements entered into by
them with the appellant which provided as follows:
“
1] Huisvesting sal
deel vorm van die werknemer hierbo genoem se vergoedingspakket,
solank die werknmer in diens van die werkgewer
is en daar verblyf
besikikbaar is.
2] Die huis mag alleen
deur die werknemer self, sy/haar eggenoot en hul eie kinders jonger
as 18 jaar of persone goedgekeur deur bestuur,
bewoon word.
Die
volgende persone word gemagtig om in die huis te woon:…”
9] In
the case of Mr Ntoyakhe the first respondent and their dependants
were so authorised and in the case of Mr Rossouw the second
respondent and their dependants. Clauses 1 and 2 of the written
agreements were clearly intended to give effect to the provisions
of
Section 6(2)(d)
of Esta in terms whereof occupiers, such as Mr
Ntoyakhe and Mr Rossouw, have the right to family life in accordance
with the cultures
of their families.
10] The
appellant had the following written notice, dated 18 June 2003,
delivered by hand to the first respondent on 20 March 2003:
“ONTRUIMING
VAN HUIS
“
By die afsterwe van
‘n okkupeerder kan die verblyfreg van die okkupeerder se gade of
afhanklike beëindig word deur 12 maande skriftelike
kennisgewing om
die grond te ontruim.” Hierdie kennisgewing verwys na die Wet op
die Uitbreiding van Sekerheid en Verblyfreg,
Art. 8(5).
Wyle
Richard Ntoyakhe was die amptelike okkupeerder van die huis en u het
verblyfsreg geniet op grond van u verbintenis aan hom.
U is ‘n
tydelike of seisoenwerker by Simonsig en is dus nie outomaties
geregtig op verblyf nie.
As
gevolg van omstandighede op die plaas, word die huis wat u tans in
woon, benodig vir persone wat permanente poste op die plaas
het en
huisvesting as ‘n byvoordeel geniet.
Hierdie
skrywe dien as ‘n amptelike 12 maande kennisgewing dat u die huis
waarin u tans woon, moet ontruim. U verblyfreg op Simonsig
verstryk
dus amptelik op 9 September 2003. Indien u teen hierdie datum nie
die huis ontruim het nie, kan verdere regstappe teen
u geneem word.
U
word uitgenooi om asseblief die aangeleentheid so spoedig moontlik
met Mnr. Francois Malan te bespreek.”
11] The
statement that the respondent had to vacate the cottage on 9
September 2003 was an obvious mistake in that it is irreconcilable
with other statements therein from which it appears that the
appellant recognised that a twelve calendar months’ period of
notice
had to be given. The appellant’s attorneys of record, in
addition, procured the service on the first respondent by the sheriff
on 22 October 2003 and 27 October 2004 respectively, of notices in
terms whereof she was required to vacate the cottage on 31 March
2004
and within 14 days of 27 October 2004 respectively, failing which, an
order for the eviction of her and her family would be
sought.
12] The
appellant had the following written notice dated 18 June 2003
delivered by hand to the second respondent on 19 June 2003:
“ONTRUIMING
VAN HUIS
“
By die afsterwe van
‘n okkupeerder kan die verblyfreg van die okkupeerder se gade of
afhanklike beëindig word deur 12 maande skriftelike
kennisgewing om
die grond te ontruim.” Hierdie kennisgewing verwys na die Wet op
die Uitbreiding van Sekerheid en Verblyfreg,
Art. 8(5).
U
werk nie op Simonsig nie en is dus nie outomaties geregtig op verblyf
nie.
As
gevolg van veranderde omstandighede op die plaas, word die huis wat u
tans in woon, benodig vir persone wat wel op die plaas werk
en
huisvesting as ‘n byvoordeel geniet.
Hierdie
skrywe dien as ‘n amptelike 12 maande kennisgewing dat u die huis
waarin u tans woon, moet ontruim. U verblyfreg op Simonsig
verstryk
dus amptelik op 18 Junie 2004. Indien u teen hierdie datum nie die
huis ontruim het nie, kan verdere regstappe teen u geneem
word.
U
word uitgenooi om asseblief die aangeleentheid so spoedig moontlik
met Mnr Francois Malan te bespreek.”
13] The
appellant’s attorney of record in addition had two further notices
served by the sheriff on the second respondent on 22
October 2003 and
30 November 2004 respectively, in terms whereof she was required to
vacate the cottage occupied by her on 18 June
2004 and within 14 days
of 30 November 2004, respectively failing which, an application for
the eviction of her and her family would
be brought.
14] The
appellant, contending that the first- and second respondents had
become unlawful occupiers as defined in Pie because they
failed to
vacate their respective cottages as required by the written notices
which had been given in terms of
Section 8(5)
of Esta, instituted
proceedings for their ejectment in the magistrates’ court of
Stellenbosch in terms of the provisions of the
former act.
15] The
said applications were unsuccessful because the magistrate came to
the conclusion that the provisions of Pie could not be
utilised to
procure the ejectment of occupiers of farms and that the provisions
of Esta found application. It is the correctness
of that finding
which is the focal point of this appeal.
16] The
attitude adopted by the appellant, as regards the appropriate
procedure to be employed for the ejectment of the first- and
second
respondents, is articulated as follows in the affidavit of Mr
Francois Jacques Malan one of its directors:
“
Eerste Respondent
het geen toestemming gekry van Applikant of enige persoon in diens
van Applikant om sodanige toestemming te gee
om die huis in eie reg
te okkuppeer nie.
Eerste
Respondent het nog nooit enige vorm van dienskontrak, huurkontrak of
behuisingskontrak gesluit met die Applikant wat aan haar
die reg sou
verleen om in eie reg die huis op die plaas te okkupeer nie.
Eerste
Respondent is nie ‘n okkupeerder in terme van die Wet op
Uitbreiding van Sekerheid van Verblyfreg, 62 van 1997 nie aangesien
sy nooit toestemming, hetsy uitdruklik of stilswyend, of enige ander
reg gehad het om die Applikant se grond te okkupeer nie …”
17] The
correctness of the factual averments contained in Mr Malan’s
affidavit has not been challenged by the first- and second
respondents who have failed to deliver and file opposing papers and
accordingly, such averments have to be accepted as correct.
In the
premises Mr Moller’s submission that the first- and second
respondents occupied their respective cottages, prior and/or
subsequent to Mr Ntoyakhe’s and Mr Rossouw’s deaths, with the
appellant’s explicit alternatively, tacit consent cannot be upheld
due to the absence of a proper factual basis.
18] Gildenhuys
AJ in
Landbounavorsingsraad
v Klaasen
2005(3) SA 410 (LLC), at 425 A – B, held that the concept
“occupier” in Esta is used in two senses. The first is a narrow
one which encompasses only those who are or were parties to a consent
agreement with the owner or the person in charge of the land
or
those who have “another right in law” to reside thereon. The
second is a wide one which encompasses those who derive their
right
of residence through or under occupiers in the narrow sense and that,
unlike those in the first group, those in the second
group fall
outside of the definition of “occupier” in Esta (Also see:
Venter
NO v Claasen en Andere
2001(1) SA 720 LLC at 726 B).
19] The
entitlement of the first- and second respondents and their dependants
to reside in their respective cottages was derived from
the status of
their partner and husband respectively as employees of the appellant
and not from consent originating in any agreement
entered into by
them with the appellant or by operation of law (See:
Venter
N.O. v Claasen en Andere
(supra) at 726 E – 727 A). In the case of the first respondent
she occupied cottage number DH25 as the conjugal partner of Mr
Ntoyakhe and the mother of his children because he was entitled to
permit her and her children to do so in terms of his contract
with
the appellant. The second respondent occupied cottage number
S11
pursuant to a
sui
generis
right to occupy the matrimonial home which had been provided by Mr
Groenewald and flowed from their marriage relationship (See:
Landbounavorsingsraad
v Klaassen
(supra)
at 421 A – B) and terminated upon his death. In the circumstances
the first- and second respondents, prior to the deaths
of Mr Ntoyakhe
and Mr Groenewald, fell within the wider meaning of occupier and
accordingly were excluded from the definition of
occupier in Esta.
20] The
first- and second respondents’ derivative rights of occupation came
to an end on the deaths of Mr Ntoyakhe and Mr Groenewald
respectively. In the case of the first respondent because the person
from whom she derived her right of occupation had passed away
and in
the case of the second respondent because the marriage relationship
from which her right of occupation flowed had come to
an end upon the
death of her husband (See:
Dique
NO v Van der Merwe en Andere
2001(3) SA 1006 (T) at 1011 E – D).
21]
Section
8(5)
of Esta provides as follows:
“
On the death of an
occupier contemplated in subsection (4), the right of residence of an
occupier who was his or her spouse or dependant
may be terminated
only on 12 calendar months’ written notice to leave the land,
unless such a spouse or dependant has committed
a breach contemplated
in
section 10(1).”
It
is not possible to determine from the papers that have been placed
before this court whether Mr Ntoyakhe and Mr Groenewald were
employees as contemplated in subsection 8(4) ie. that they had
resided on the property for longer then 10 years; had reached the
age
of 60 years; or had been unable to supply their labour as a result of
ill health, injury or disability; or that they had committed
any of
the breaches contemplated in subsection 10(1). That they in fact
were occupiers as contemplated in subsection 8(4) was not
only
impliedly accepted by the appellant as is apparent from the 12
calender months’ written notices given to them but can be inferred
from the fact that it has not been placed in issue that the
provisions of subsection 8(5) applied to them.
Assuming
that the legislature in that subsection used the concept spouse in
its ordinary every day sense of a married person in relation
to
his/her wife/husband (Shorter Oxford English Dictionary, sv
“spouse”) the second respondent undoubtedly enjoyed the benefit
of 12 calender months’ written notice under that subsection. The
first respondent, despite the fact that the appellant referred
to her
as Mr Ntoyakhe’s “gade” in the written notice in paragraph 10
above, does not appear to have qualified as a spouse in
that sense.
She however, would have been entitled to the benefit of the
beneficial provisions thereof if she qualified as a dependant
of Mr
Ntoyakhe in the sense of “a person who depends on another for
support” (The Shorter Oxford English Dictionary, sv “dependent”).
The probability that she was so dependent is strengthened by Mr
Malan’s statement that she has never been employed by the appellant
and the fact that the appellant, by having given her 12 calender
months’ written notice, appears to have accepted that the
provisions
of subsection 8(5) of Esta found application. That
conclusion obviates the need to decide whether the concept “spouse”
in that
subsection, as was done by the majority in
Daniels
v Campbell NO and Others
2004(5) 331 (CC) at 341 E to 349 G, should by means of a
constitutionally interpretive approach be assigned a broader meaning
so
as to include also permanent conjugal partnerships between
unmarried heterosexuals.
21] That
the notices required by subsection 8(5) of Esta were duly given and
that the required 12 calender months’ written notices
have expired
have not been placed in issue in these proceedings.
22] What
was the legal the status of the first- and second respondents’
occupation in the period after the deaths of Mr Ntoyakhe
and Mr
Groenewald and before the prescribed 12 calender months’ written
notices expired? Because of the absence of any express
or tacit
consent on the part of the appellant as a basis for the continuation
of their rights of residence - the giving of the
notices of
termination to them by the appellant were irreconcilable with such
consent having been given - the first- and second
respondents
clearly were not occupiers under Esta by virtue of any consent.
Could the legal character of the first- and second respondents’
right of residence during that period be equated to “another right
in law to do so” within the meaning thereof in the definition
of
“occupier” in Esta? That phrase has not been defined in Esta and
Gildenhuys JA in
Landbounavorsingsraad
v Klaasen
(supra)
at 419 B, observed that it is difficult to envisage what the
legislature contemplated in employing it. The meaning of that
phrase
has, as far as we could ascertain, been considered in only one
decided case namely
Agrico
Masjinerie (Edms) Bpk v Hendrina Swiers
,
Case No A31/04, an unreported decision of a full bench of this
division handed down on 20 April 2006, in which it was held that
such
residual interests as were retained by an occupier who had vacated
land pursuant to a void waiver of the right of occupation
in conflict
with the express provisions of
Section 25(1)
of Esta, amounted to
“another right in law” within the meaning thereof in the
definition of “occupier” in Esta.
23] In
the absence of any statutory definition or an exhaustive judicial
interpretation thereof the meaning of the phrase “another
right in
law to do so” must be determined with reference to the ordinary
dictionary meanings of the words used. As already stated,
the first-
and second respondents by virtue of the provisions of
Section 8(5)
,
upon the deaths of Mr Ntoyakhe and Mr Groenewald, were entitled to
continue residing in their respective cottages until a notice
period
of 12 calender months had elapsed. The appellant in turn - other
than that he was entitled to issue notices terminating
the first- and
second respondent’s rights of residence - was obliged to permit
them to exercise such rights. It appears to me
to be axiomatic that
such protection as the first- and second respondents’ rights of
residence enjoyed, in terms of the provisions
of
Section 8(5)
of
Esta, originated from a law, in that it provided a totally new basis
for the exercise of their continued rights of residence.
The
possibility that such a right might be encompassed in the concept
“another right in law to do so” was articulated by Gildenhuys
AJ
in
Landbounavorsingsraad
(
supra)
419 footnote 22).
24] Is
the nature of the rights of residence that flow from the provisions
of
Section 8(5)
of Esta such that they fall within the meaning of the
concept “right” in the phrase “another
right
in law to do so”? That concept is in the
Shorter
Oxford English Dictionary on Historical Principles
(3ed by CT Onions) defined as “justifiable claim, on legal [or
moral grounds], to have or obtain something, or to act in a certain
way” and “a legal, [equitable, or moral] title or claim to the
possession of property or authority, the enjoyment of privileges
or
immunities, etc. (The words in square brackets are clearly
inapposite if those definitions are applied in a legal setting).
Coetzee J (with whom Nicholas and FS Steyn JJ agreed) in
Secretary
for Inland Revenue v Kirsch
1978 (3) SA 93
(T) at 94 D – F, said the following when dealing
with the meaning of the concept “right” in section 8A of the
Income Tax
Act 58 of 1962:
“
Legal terms used in
a statute generally bear the same meaning as in common law
(
Kleynhans
v Yorkshire Insurance Co Ltd
1957 (3) SA 544
(A) at 551 – 2) and must be read in that sense.
The word ‘right’, in legal parlance, is not necessarily
synonymous with
the concept of a ‘legal right’ which is the
correlative of duty or obligation. On the contrary, legal literature
abounds with
‘right’ being used in a much wider sense and, as is
pointed out in
Salmond
on Jurisprudence II
ed at 270, in a laxer sense to include any legally recognised
interest whether it corresponds to a legal duty or not. An owner,
for instance, has at common law the right to use or abuse his
property …
There are many cases
in which ‘right’ when used in a statute has been interpreted in
the wider sense”
25] An
ineluctable consequence of the recognition by Section 8(5) of Esta of
the first- and second respondents’ continued rights
of residence
pending the expiration of a written notice period of 12 calender
months is the existence of a correlative obligation
on the part of
the appellant, admittedly of only a limited duration, to respect the
exercise of such rights, failing which, compliance
could be compelled
by a court of law. In the premises such rights as flow from the
provisions of Section 8(5) of Esta, in our view,
constitute a legal
right in the narrow (See:
Agrico
Masjienerie (Edms) Bpk v Swiers
(supra) at pages 58 – 59) alternatively, in a wider sense, in that
the respondents’ rights of residence constitute at least
a
“legally recognised interest” (per Coetzee J in
Secretary
for Inland Revenue v Kirsch
(supra)).
26] It
follows that we incline to the view that the first- and second
respondents’ rights of residence during the period following
upon
the deaths of Mr Ntoyakhe and Mr Rossouw until the expiry of the
notice period of 12 calender months, constituted occupation
in terms
of “another right in law to do so” within the meaning thereof in
the definition of occupier in Esta. The fact that
the first- and
second respondents had theretofore occupied their respective cottages
as the conjugal partner and wife respectively
of employees of the
appellant and not as occupiers in their own right does not, in our
view, stand in the way of a finding that they
subsequently did so in
their own right as they then exercised their rights of residence in a
totally different capacity.
27] That
the first- and second respondents’ occupation of their respective
cottages became unlawful the moment the notice period
of 12 calender
months expired is beyond doubt (See:
Mkangeli
and Others v Joubert and Others
2002(4) SA 36 (SCA) at 43 I;
Land-
en Landbou Ontwikkelingsbank van Suid-Afrika v Conradie
2005(4) SA 506 (SCA) at 514 F – G). Whether they then became
unlawful occupiers as defined in Section 1 of Pie is a different
matter. An unlawful occupier is in Pie defined as meaning
“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
Act, 1997
and excluding … ”
(the further exclusion is not relevant for the purposes of this
judgment and the underlining has been provided). If the concept

“occupier” in the underlined phrase were to be construed as
referring to a person still qualifying as an occupier under Esta
its
effect would be to render the first exclusion meaningless or otiose
as a person can be an occupier for the purposes of Esta only
if he or
she resides on land belonging to another pursuant to consent or
another right in law to do so and accordingly, would automatically
be
excluded from such definition which requires an absence of such
consent or right. It is a cardinal rule of construction of statutory
enactments that the plain meaning of words used therein must be
adopted unless it leads to some absurdity, inconsistency, hardship
or
anomaly (See:
Bhyat
v Commissioner for Immigration
1932 AD 125
at 129; also see:
Caroluskraal
Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk
1994(3) SA 407 (A) at 422 A - C).
Schutz
JA in
Poswa
v Member of the Executive Council for Economic Affairs, Environment
and Tourism, Eastern Cape
2001(3) SA 582 (SCA) at 587 E – F said that the effect of the
formulation of the above principle by Stratford JA in Bhyat’s
case
is that:
“…
the court does
not impose its notion of what is absurd on the legislature’s
judgment as to what is fitting, but uses absurdity as
a means of
divining what the legislature could not have intended and therefore
did not intend, thus arriving at what it did actually
intend.”
As,
in our view, it is inconceivable that the legislature could have
intended the absurdity that the first exclusion in the definition
of
unlawful occupier would be purposeless, we incline to the view that
the true intention of the legislature in using the concept

“occupier” therein was to refer to any person who had earlier,
but no longer, enjoyed the status of an occupier in terms of
Esta.
That conclusion is not only consonant with the provisions of Section
9(1) of Esta which provides that an occupier “notwithstanding
the
provisions of any other law … may be evicted only in terms of an
order of court issued under
this
Act” but also the following view expressed by Olivier JA in a
minority judgment in
Bekker
and Another v Jika: Ndlovu v Ngcobo
2003(1) SA 113 (SCA) at 146 B – D:
“
In my view, the
exclusion in PIE of the application of ESTA is a strong indication in
favour of the more limited ambit of PIE. It
is clear that the
Legislature wished to avoid any overlap between the two statutes. ……
But, be that as it may, the net result
is that PIE excludes a person
who has or at a certain time had consent or another right to occupy
the land of another. PIE does
not apply to them.”
It
is also consonant with the presumption, espoused by Gutsche J in
Rex
v Gwantshu
1931 EDL 29
and Gildenhuys AJ in the unreported case of
Kusa
Kusa CC v Mbele
(LCC 39/2002) to the effect that a subsequent general enactment is
not intended to interfere with an earlier special provision unless
such an intention is clearly manifested.
28] In
view of the aforegoing we have come to the conclusion that after
expiration of the notices in terms of Section 8(5) of Esta,
the
status of the first- and second respondents was not that of unlawful
occupiers in terms of the definition thereof in Pie and
that the
magistrate was correct in having come to the conclusion that the
provisions of Esta found application and not those of Pie.
29] Accordingly
the appeal is dismissed with costs.
_____________ ________
D.
VAN REENEN T. NDITA