Mpedi and Others v Swanevelder and Another (421/02) [2003] ZASCA 131 (28 November 2003)

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[2003] ZASCA 131
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Mpedi and Others v Swanevelder and Another (421/02) [2003] ZASCA 131; 2004 (4) SA 344 (SCA) (28 November 2003)

REPUBLIC
OF SOUTH AFRICA
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case
number: 421/02
In
the matter between:
JOHANNES
MPEDI
1
st
Appellant
REBECCA
MPEDI
2
nd
Appellant
JOHANNA
MPEDI
3
rd
Appellant
DAVID
MPEDI
4
th
Appellant
PHILEMON
MPEDI
5
th
Appellant
and
ERASMUS
ALBERTUS SWANEVELDER
1
st
Respondent
JOHANNA
CORNELIA SWANEVELDER
2
nd
Respondent
CORAM
:
MPATI
DP, STREICHER, NAVSA, HEHER JJA
and
MOTATA AJA
HEARD
:
17
NOVEMBER 2003
DELIVERED
:
28
NOVEMBER 2003
Summary:
Extension of
Security of Tenure Act 62 of 1997
– termination of right of
residence – procedure for eviction order.
____________________________________________________________
JUDGMENT
____________________________________________________________
MPATI
DP:
[1] The first and second
appellants are husband and wife and reside on the farm Rietgat 8 in
the Vaalwater District, Northern Province,
together with the
third,
fourth and fifth appellants, who are their children. The respondents
are married to each other in community of property and
are the owners
of the farm (Rietgat). They also own an adjoining farm,
Steenbokfontein, on which they reside.
[2] The
first appellant was employed by the first respondent as a farm
labourer and was an occupier on Rietgat as defined in the Extension
of Security of Tenure Act 62 of 1997 (ESTA). During 1999 relations
between the first appellant and the first respondent became strained,
which resulted in the first appellant’s employment being terminated
on 21 April 1999 following a disciplinary hearing in which
he was
charged with having absconded from duty. After various attempts to
challenge it, the first appellant’s dismissal was finally
‘confirmed’ when an arbitrator appointed by the Commission for
Conciliation, Mediation and Arbitration dismissed the arbitration
proceedings due to the failure of the first appellant and his legal
representative to attend. The fairness or otherwise of the dismissal
is accordingly not in issue in this appeal.
[3] In
March 2001 the respondents applied on motion to the Land Claims Court
for orders of eviction against the appellants. The proceedings
were
opposed. The parties agreed that certain factual disputes be
referred for oral evidence. After hearing evidence Gildenhuys
AJ, in
an extensive judgment, granted the eviction orders and made no order
as to costs. The appellants now appeal against the eviction
orders
with leave of the court below. The respondents do not oppose the
appeal and abide the decision of this Court.
[4] The
issues in this appeal are the following:
(a) Whether the first
appellant’s right of residence arose solely from his employment
contract.
(b) Whether the second
appellant was an occupier in her own right.
(c) Whether
the first appellant had committed such a fundamental breach of the
relationship between him and the respondents that it
was not possible
to remedy it (s 10(1)(c) of ESTA).
(d) The ages of the first
and second appellants.
I
propose to dispose of the last-mentioned issue first.
[5] Section
8(4) of ESTA provides that the right of residence of an occupier who
has resided on the land in question or any other
land belonging to
the owner for 10 years and has reached the age of 60 years may not be
terminated unless that occupier has committed
a breach contemplated
in s 10(1)(a), (b) or (c). For an occupier to bring
himself/herself within the provisions of this subsection
he/she must
prove residence on the land for 10 years and that he/she has reached
the age of 60 years. Mr Mokhari, who, together
with Ms Pillay
appeared for the appellants, conceded that the date of birth or age
of a person reflected on his/her identity document
is not sufficient
proof of the age of such person. According to his identity document,
the first appellant was 57 years old at the
time of the termination
of his right of residence on Rietgat while the second appellant’s
age was reflected on her identity document
as 65 years. Both
appellants do not know their dates of birth. The witnesses called on
their behalf to support their allegations
that they were both over
the age of 60 years could also not testify as to the dates of birth
of the first and second appellants or
provide evidence from which
their ages could reliably be inferred. There was accordingly no
acceptable or reliable evidence placed
before the trial court
regarding the ages of the first and second appellants, and that being
the case, Mr Mokhari conceded that they
failed to prove that they had
reached the age of 60 years at the relevant time.
[6] I
proceed to consider the first issue, ie whether the first appellant’s
right of residence was linked to his contract of employment
with the
respondents. It is common cause that the first and second appellants
have lived on Rietgat since 1982. Although at that
time Rietgat was
registered in the name of the first respondent’s father, both the
first respondent and his older brother, Piet
Swanevelder, testified
that it was under the control of the latter. He had purchased it,
but because he was employed and did not
live on the farm he could not
secure a loan from the Land Bank to finance his farming operations.
It was for that reason that the
farm was registered in the name of
his father who was a full-time farmer. The versions of the first
appellant and the first respondent
as to who initially gave the
former permission to reside on Rietgat differ. The first
respondent’s version, as confirmed by his
brother Piet Swanevelder,
is that the latter granted the permission while the first appellant
testified that the first respondent’s
father did.
[7] I
am prepared to accept, for present purposes, that the first
appellant’s version is correct. He testified initially that he
was
given permission to reside on Rietgat without having to give anything
in return. In cross-examination, however, he stated, when
asked why
the first respondent’s father would give him permission to reside
on Rietgat, that Swanevelder senior gave him a dwelling
place so that
‘I must go and work for his son’. Although he later denied
having made this statement the record is unequivocal.
In my view the
statement accords with the probabilities. A farmer does not usually
give a person a potentially permanent place
of residence without
expecting such person to offer his labour in return. It is indeed
common cause that the first appellant thereafter
worked for Piet
Swanevelder, together with the first respondent, on the farm
Goedgedacht.
[8] It
is not in dispute that from 1986 the first appellant worked for the
first respondent in the latter’s fencing business, but
continued to
reside on Rietgat. It is also not in dispute that in 1988 the
Swanevelder brothers exchanged farms with the result
that the first
respondent took over Rietgat. The first respondent testified that
when he took over Rietgat he and the first appellant
entered into an
agreement in terms of which the first appellant would continue to
reside on Rietgat and that his right of residence
would be directly
linked to his employment contract. This evidence was not challenged
in the court below and must accordingly be
accepted. The court
a
quo
held, correctly in my view, that this agreement superseded
all previous agreements relating to the first appellant’s right of
residence
on Rietgat. It follows that the first appellant’s right
of residence arose solely from his employment agreement.
[9] Related
to the first issue is the question whether the first appellant’s
right of residence was lawfully terminated. Section
8(2) of ESTA
reads:
‘
The
right of residence of an occupier who is an employee and whose right
of residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the Labour Relations
Act … .’
I
have already mentioned (in para 2) that the fairness of the dismissal
of the first appellant is not in issue, and it was not suggested
that
it was not in accordance with the provisions of the Labour Relations
Act. It must, therefore, be accepted that the respondents
were
entitled to terminate the first appellant’s right of residence.
[10] It
is now convenient to consider the second issue in the appeal, viz
whether the second appellant was an occupier in her own
right. Mr
Mokhari submitted that when the first respondent’s father gave
permission to the first appellant to reside on Rietgat
in 1982 the
second appellant was accorded tacit consent to reside there
indefinitely as well. This argument is flawed. It is based
on the
first appellant’s allegation, which I have rejected, that the
consent to reside on Rietgat given to him by the first respondent’s
father was not linked to a condition that he works for Piet
Swanevelder. The rejection of the first appellant’s version in
this
regard disposes of the issue. The position then is that the
second appellant’s right of residence originated from her marriage
relationship with the first appellant (
Venter No v Claassen en
Andere
2001 (1) SA 720
(LCC);
Dique NO v Van der Merwe en
Andere
2001 (2) SA 1006
(T)) and not in her own right.
[11] There
remains the question whether the first appellant had committed such a
fundamental breach of the relationship between him
and the first
respondent that it was not possible to remedy it. The fact that an
occupier’s right of residence has been terminated
does not
necessarily mean that the remedy of eviction will be available to the
owner or person in charge of the land (cf
Mkhangeli and Others v
Joubert and Others
2002 (4) SA 36
(SCA) at 43 para [12]).
Section 9(1) of ESTA provides that an occupier may be evicted only in
terms of an order of court ‘issued
under this Act’. Section 9(2)
reads:
‘
A court may make an
order for the eviction of an occupier if –
(a) the occupier’s
right of residence has been terminated in terms of s 8;
(b) the occupier has not
vacated the land within the period of notice given by the owner or
person in charge;
(c) the
conditions for an order for eviction in terms of s 10 or 11 have been
complied with; and
(d)
… .’
(Subsection
(d) deals with written notices of an intention to obtain an eviction
order which the owner or person in charge of the
land is required to
give to the occupier, the municipality in whose area of jurisdiction
the land in question is situated and the
head of the relevant
provincial office of the Department of Land Affairs.)
[12] Compliance
with the requirements of ss (2)(a), (b) and (d) is not in dispute.
As to ss 2(c) the provisions of s 11 are not applicable
since the
first appellant became an occupier before 4 February 1997. The
respondents relied, for the eviction order, on s 10(1)(c),
which is
in these terms:
‘
An order for the
eviction of a person who was an occupier on 4 February 1997 may be
granted if –
(a) …
(b) …
(c) the
occupier has committed such a fundamental breach of the relationship
between him or her and the owner or person in charge,
that it is not
practically possible to remedy it, either at all or in a manner which
could reasonably restore the relationship.’
The circumstances which
the respondents allege to have constituted a fundamental breach are
(1) an unsubstantiated charge against
the first respondent of theft
of cattle, (2) conduct on the part of the first appellant which
amounted to absconding from duty and
(3) his continued insolence and
unco-operative behaviour.
[13] The
first appellant denied these charges. As to the charge of theft of
cattle he testified that when he discovered in December
1998 that one
of his calves was missing he confronted Mr Pitsi, who was employed by
the respondents as a herder. Pitsi told him
that his calf had been
sold, but did not say who had sold it. The first appellant then
enquired from the first respondent, who told
him that it would be
best if he (first appellant) looked after the cattle on the farm so
that he could look after his as well. It
is common cause that on 8
February 1999 the first respondent called a meeting to discuss,
inter
alia
, the issue of alleged missing cattle. Present at that
meeting were first and second appellants, Pitsi, the second
appellant’s
sister, Ms Phatudi and the first respondent. The first
appellant testified that he heard for the first time at that meeting
that
Ms Phatudi had also lost a calf. He admitted that the second
appellant demanded at the meeting that Pitsi tell the truth about the
missing calves. It appears that no progress was made in this regard
and the next day the second appellant, at the behest of the
first
appellant, went to the police at Nelspruit for assistance in
searching for the missing calves.
[14] The
evidence reveals that on 15 February 1999 the second appellant made
an affidavit to the police in which, in essence, she
alleged that on
15 December 1998 the first respondent loaded two young oxen that
belonged to her and sold them; that he had not
asked her and first
appellant whether he could sell the oxen; that first appellant had
heard from Frans Pitsi that the first respondent
had sold the oxen
and that the value of each of them was R1 000,00. The first
respondent was subsequently informed by the police
that a charge of
theft of cattle had been laid against him.
[15] The
first appellant denied that he had sent the second appellant to lay a
charge against the first respondent. He said that
he had merely
wanted the police to investigate the disappearance of his calf.
However, in his report in terms of s 9(3) of ESTA
the probation
officer recorded the following:
‘
The
underlying factor which led to [the first appellant’s] end of
services was because of the fact that [the first respondent] started
selling [the first appellant’s] cattle without consulting him. It
is understood that in 1993 [the first respondent] sold one cow
of
[the first appellant] without consultation and offered them R300,00
after they complained. The same situation occurred in 1988
and after
the family complained he started threatening to evict them.’
When
confronted with this report the first appellant denied that the
probation officer ever interviewed him. But on 28 April 2002,
and in
response to the report, he deposed to an affidavit in which is stated
that at the time that he was interviewed (obviously
by the probation
officer) his eldest son was working for the first respondent. He
also stated that he had had the report read and
translated to him and
that save for certain paragraphs that he wished to correct, he
confirmed that the facts contained in the report
were correct. It is
clear from all this that the allegations of theft of his cattle as
contained in the s 9(3) report came from
the first appellant. One
can safely conclude that the allegations of theft against the first
respondent made by the second appellant
to the police were made with
the concurrence of the first appellant.
[16] But
the first appellant’s denial that he ever laid a charge or made
allegations of theft against the first respondent to the
probation
officer – he denied that he had been interviewed by him – is
evidence of the fact that such charges were unsubstantiated.
I agree
with the court
a quo
that the mere bringing of the theft
charges which could not be substantiated constituted a very serious
breach of the relationship
between the first appellant and the first
respondent and that such a breach is unlikely to be healed or
remedied. This finding renders
unnecessary a consideration of the
other factors on which the respondents rely to show that the first
appellant had committed a fundamental
breach of the relationship
between them.
[17] The
following order is made:
The appeal is dismissed.
L MPATI DP
CONCUR:
STREICHER JA
NAVSA JA
HEHER JA
MOTATA
AJA