Rashavha v Van Rensburg (439/2002) [2003] ZASCA 132; [2004] 1 All SA 168 (SCA) (28 November 2003)

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[2003] ZASCA 132
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Rashavha v Van Rensburg (439/2002) [2003] ZASCA 132; [2004] 1 All SA 168 (SCA); 2004 (2) SA 421 (SCA) (28 November 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE NO: 439/2002
Reportable
In the matter between
MASHAU RASHAVHA
APPELLANT
and
HJ VAN RENSBURG
RESPONDENT
CORAM
:
Mpati DP, Mthiyane, Brand, Lewis JJA and Mlambo AJA
HEARD:
20 NOVEMBER 2003
DELIVERED
:
28 NOVEMBER 2003
Summary:
Condonation for late filing of appeal refused: application of
sections 8(4)
and
10
(3) of the
Extension of Security of Tenure Act 62
of 1997
.
JUDGMENT
LEWIS JA
LEWIS JA
[1] The appellant,
formerly a farm worker employed by the respondent, appeals against a
decision of the Land Claims Court confirming
a magistrate’s order
of eviction from her dwelling on the farm hired by the respondent.
She is one of four farm workers, all appellants
in the court
a
quo
, sought to be evicted by the respondent from the farm
Sandfontein, which is some 20 kilometres away from Louis Trichardt
and 12 kilometers
from Maelula, both in the Northern Province. The
appellant is the only one of the four appellants who now pursues an
appeal to this
Court, which she does with the leave of the Land
Claims Court. The appellant’s case is based on the provisions of
the
Extension of Security of Tenure Act 62 of 1997
.
[2] The appellant seeks
condonation for the late filing of her notice of appeal. The grant of
condonation is opposed by the respondent
who argues that the delay of
the appellant in lodging an appeal, the absence of a proper
explanation for the delay, and the lack
of merit in the appellant’s
case warrant an adverse order. It is necessary to deal with the
history of the litigation between the
parties briefly before
determining any of these issues.
[3] The appellant was
retrenched by the respondent in October 1998. Her right to reside on
the farm terminated in December 1998. The
respondent applied in terms
of the Act for an order of eviction against the appellant. The
appellant and her co-workers resisted
the application. They were
represented throughout the legal proceedings. In terms of
s 9(3)
of
the Act a probation officer, Mrs Lombaard, filed a report setting out
the results of the investigations she had made into the
circumstances
of the farm workers in respect of whom the eviction was sought. I
shall return to this report, in so far as it concerns
the appellant,
later in this judgment. In January 2001 the Chief Magistrate in Louis
Trichardt granted the eviction orders.
[4] The orders came
before Moloto AJ, in the Land Claims Court, on automatic review. He
confirmed those in respect of the farm workers
other than the
appellant. In her case, Moloto AJ referred the order back to the
Chief Magistrate for him to consider whether
s 8(4)
of the Act was
applicable to her, and whether the probation officer had considered
the weight of various factors sufficiently. I
shall deal with the
provisions of
s 8(4)
later. Suffice it to say for the moment that the
court considered the section to be inapplicable, and granted another
eviction order,
to come into effect on 30 April 2001.
[5] The appellant and her
co-workers who had been ordered to vacate the farm applied for leave
to appeal against this order. The
application came before Moloto AJ,
who held that the proper court to hear the appeal was the Land Claims
Court. His finding in this
regard was upheld in the decision of the
Court (per Gildenhuys AJ, Meer AJ concurring) now under appeal before
this Court. There
was no argument that this decision as to
jurisdiction was incorrect either before the Court
a quo
or
this Court. The Land Claims Court dismissed the appeals of all four
appellants before it, and gave leave only to the appellant
to appeal
further to this Court.
[6] It is important to
note that the grant of leave was made on the basis that another court
might reach a different conclusion in
respect of the balancing of the
comparative hardship to the appellant as a result of the eviction, on
the one hand, and to the respondent,
if he were to be deprived of
possession of the dwelling on the other hand. The Court expressly
held that there was no reasonable
possibility of another court making
a different finding in respect of the application of
s 8(4).
Despite
this, the grounds of appeal lodged by the appellant were based on the
assertion that the Court had erred in its interpretation
of
s 8(4)
,
as were the arguments advanced to this Court by counsel for the
appellant. I shall revert to this matter later.
[7] The appellant, having
been given leave to appeal, failed to comply with the rules governing
the time within which to lodge a notice
of appeal. Leave to appeal
was granted on 29 January 2002. The notice of appeal should thus have
been lodged by 1 March (that is
within one month:
rule 7
, Supreme
Court of Appeal Rules). It was lodged only on 8 May 2002. The
application for condonation was served on the respondent only
on 22
August 2002, and lodged with this Court on 4 September 2002. The
appellant was thus substantially out of time. Part of the
explanation
given for this delay was that the appellant’s attorney had
considered that it might be ‘expedient and convenient’
to await
the outcome of the applications for leave to appeal lodged by the
other appellants against the decision of the court
a quo.
However, in her application for condonation, signed on 29 April, but
served and lodged only some months later, as detailed above,
the
appellant stated that she had received no information about the other
appellants’ applications and had thus been advised to
consult
senior counsel on the application of s 8(4) of the Act.
[8] Counsel, Ms Cassim,
was not immediately available, hence the further delay. Once the
notice of appeal had been drawn, however,
and advice taken, further
delay was caused by the attorney’s correspondent in Bloemfontein.
No explanation at all was advanced
for that further delay and this
Court was advised from the Bar that the Bloemfontein correspondent
had refused to provide an affidavit
explaining the failure to lodge
the notice of appeal and the application for condonation.
[9] The appellant has
been ill-served by her legal advisers. The attorney’s reasons for
waiting to draw a notice of appeal are not
acceptable. The delay is
inexcusable. And the failure on the part of the Bloemfontein
correspondent attorney to explain the additional
delay is to be
deplored. However, the appellant is an illiterate, impecunious and
uneducated woman with no knowledge of the workings
of the legal
system. In my view she should not be refused condonation solely on
the ground that her legal advisers were negligent
in the performance
of their work.
[10] Generally, the most
important, although not necessarily the decisive, factor to be taken
into account in determining whether
condonation should be granted is
the prospect of success on appeal. (See
Finbro Furnishers (Pty)
Ltd v Registrar of Deeds, Bloemfontein
1985 (4) SA 773
(A) at
789C-E; cf
Darries v Sheriff, Magistrate’s Court, Wynberg
1998 (3) SA 34
(SCA) at 41B-D). I turn therefore to a consideration
of the merits of the appellant’s case. As already indicated, leave
to appeal
to this Court was granted on the basis that the weighing-up
of the hardship caused to the appellant by the eviction from her home
on the farm against the interests of the respondent was a sensitive
and difficult task and that another court might find that the
appellant should have been allowed to remain on the farm in order to
avoid the hardship caused to her.
[11] The respective
rights of the parties are governed by sections 8 and 10 of the Act.
It is necessary to set out the relevant provisions
in these sections
at some length.
Section 8 provides:
‘Termination of right of residence
(1) Subject to the provisions of this
section, an occupier's right of residence may be terminated on any
lawful ground, provided
that such termination is just and equitable,
having regard to all relevant factors and in particular to-
(a) the fairness of any agreement,
provision in an agreement, or provision of law on which the owner or
person in charge relies;
(b) the conduct of the parties
giving rise to the termination;
(c) the interests of the parties,
including the comparative hardship to the owner or person in charge,
the occupier concerned, and
any other occupier if the right of
residence is or is not terminated;
(d) the existence of a reasonable
expectation of the renewal of the agreement from which the right of
residence arises, after the
effluxion of its time; and
(e) the fairness of the procedure
followed by the owner or person in charge, including whether or not
the occupier had or should
have been granted an effective opportunity
to make representations before the decision was made to terminate the
right of residence.
. . . .
(4) 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-
(a) has reached the age of 60 years;
or
(b) is an employee or former
employee of the owner or person in charge, and as a result of ill
health, injury or disability is unable
to supply labour to the owner
or person in charge,
may not be terminated unless that
occupier has committed a breach contemplated in section 10 (1) (a),
(b) or (c): Provided that for
the purposes of this subsection, the
mere refusal or failure to provide labour shall not constitute such a
breach.
. . . .
(6) Any termination of the right of
residence of an occupier to prevent the occupier from acquiring
rights in terms of this section,
shall be void.’
[12] As indicated
earlier, it is section 8(4) on which the appellant has based her
appeal. Ms Cassim argued that the section should
be interpreted in
line with the spirit and purpose of the Act, which is to protect farm
dwellers from eviction and to change patterns
of land tenure in South
Africa. The Act, which forms part of the land tenure reform programme
of the State, is itself founded on
s 25(6) of the Constitution (Act
108 of 1996). The subsection provides that ‘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 comparative redress’.
[13] On that basis, Ms
Cassim submitted that one should not give too narrow a construction
to the words in s 8(4)(a). Although the
appellant was not yet 60 when
her right to reside on the farm terminated, one should take into
account the length of her service
and residence on the farm (some 20
years), and that, on the assumption that the appellant was 58 (or
even possibly 59) when her services
were terminated, the requirements
of s 8(4)(a) were met, such that she could not be evicted. Sixty, it
was argued, on a generous
and purposive construction of the Act,
included 58 and 59. Counsel was unable to suggest where the cut-off
point should be.
[14] The argument is
absurd, and was rejected in clear terms by the court of first
instance and by the Land Claims Court. The words
of s 8(4)(b) are
clear. There is no need to resort to an interpretation of a section,
generous, purposive or otherwise, where there
is no uncertainty as to
its meaning. The appellant, in order to rely upon the section, would
have had to show that at the time when
the eviction was sought, she
had resided on the farm for 10 years and was at least 60 years old.
That she could not do.
[15] A different
argument, not itself a ground of appeal, nor traversed in the heads
of argument for the appellant, but raised during
the hearing of the
appeal, was that the respondent had deliberately terminated the
appellant’s employment in order to prevent her
from acquiring any
right to reside in terms of s 8. If this were the case, then s 8(6)
would apply: the termination of the right
of residence of the
appellant would have been of no effect. However, the appellant could
point to nothing in the evidence to show
that there was any such
intention. The respondent had terminated the employment of several
employees and reduced the size of the
workforce on the farm. There
was no evidence of any conduct on the part of the respondent to show
that he had terminated the appellant’s
services in order to prevent
her from acquiring a right to remain on the farm. On the contrary: he
had offered her a different variety
of work on a temporary basis, and
implicit in his offer was that her right to remain on the farm, in
her dwelling, would continue.
She had declined the offer of different
work.
[16] It is not necessary
to resort to artificial and unsubstantiated arguments in relation to
the Act in order to give effect to the
requirements in s 8(1) that
any termination of an occupier’s right of residence should be just
and equitable. The basis upon which
the Land Claims Court considered
the appeal against the eviction order is s10(3) of the Act, which
takes into account considerations
of fairness and equity in so far as
both occupiers and property-right-holders are concerned. Section
10(3) reads:
‘
If –
(a) suitable alternative
accommodation is not available to the occupier within a period of
nine months after the date of termination
of his or her right of
residence in terms of section 8;
(b) the owner or person in charge
provided the dwelling occupied by the occupier; and
(c) the efficient carrying on of any
operation of the owner or person in charge will be seriously
prejudiced unless the dwelling
is available for occupation by another
person employed or to be employed by the owner or person in charge,
a court may grant an order for
eviction of the occupier and of any other occupier who lives in the
same dwelling as him or her, and
whose permission to reside there was
wholly dependent on his or her right of residence if it is just and
equitable to do so, having
regard to-
(i) the efforts which the owner or
person in charge and the occupier have respectively made in order to
secure suitable alternative
accommodation for the occupier; and
(ii) the interests of the respective
parties, including the comparative hardship to which the owner or
person in charge, the occupier
and the remaining occupiers shall be
exposed if an order for eviction is or is not granted.’
[17] The Land Claims
Court considered that the ‘threshhold’ requirements under
subsections 10(3)(a),(b) and (c) had been met in
this case. Suitable
alternative accommodation had not been found by the appellant within
nine months from the date of the termination
of her right to reside
on the property. The respondent had made the accommodation available
to the appellant. It was needed for the
respondent’s seasonal
employees.
[18] The Court thus moved
to a consideration of subsections (3)(i) and (ii). There was no
evidence that the appellant or the respondent
had made efforts to
find suitable alternative accommodation. The parties had made
insufficient averments in this regard. However,
the probation officer
who reported on the circumstances of the appellant in terms of s 9(3)
of the Act considered that although it
would be difficult for the
appellant to leave the farm, her immediate family lived in Maelula,
supported her in any event, and that
she could live with them. The
court of first instance had considered that it would be ‘fair and
equitable’ for the appellant
to move to Maelula to stay with her
family, who would support her and take care of her. The Land Claims
Court accepted this finding,
taking into account the right of the
respondent to the full use of the property hired by him. He should
not be compelled to accommodate
erstwhile employees, said that Court,
‘unless the hardship, conflict or social instability which their
eviction might lead to,
outweighs his right to unrestricted tenancy’.
[19] Gildenhuys AJ also
took into account the fact that by the time the appeal was heard in
the Land Claims Court, the respondent
had already been deprived of
the use of the dwelling occupied by the appellant for some three
years after her employment had been
terminated. He considered too
that the responsibility of caring for the appellant was more
appropriately to be borne by her family
than the respondent. He
concluded, therefore, that the hardship which the appellant might
suffer if evicted from the farm would not
be so great that it should
‘override the property rights of the respondent’.
[20] In my view, both the
court of first instance and the Land Claims Court had proper regard
to the requirements of justice and equity
in s 8(1) of the Act, and
to the comparative hardship test in s10(3)(ii). There is no merit in
the argument that the balance of the
interests of the parties was not
given due consideration or that the interests of the appellant
outweighed those of the respondent.
Accordingly, there is no prospect
of success on appeal.
[21] From the affidavits
in the application for condonation it appears that the appellant has
already left the farm and is living
in Maelula with family. It is
accordingly not necessary to change the order of the court
a quo
in relation to the date when the appellant must vacate the dwelling
on the farm.
[22] Condonation for the
late filing of the appeal is refused with costs, including the costs
relating to the appeal.
___________
C H
Lewis
Judge of
Appeal
Concur:
Mpati DP
Mthiyane JA
Brand JA
Mlambo AJA