About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 19
|
|
Tadvest Industrial (Pty) Ltd formerly known as Old Abland (Pty) Ltd v Hanekom and Others; Tadvest Industrial (Pty) Ltd formerly known as Old Abland (Pty) Ltd v Jacobs and Others (83/2018) [2019] ZASCA 19; 2019 (5) SA 125 (SCA) (25 March 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 83/2018
TADVEST
INDUSTRIAL (PTY) lTD
formerly known as
OLD
ABLAND (PTY) LTD (Registration No:
1990/003968/07)
APPELLANT
and
ANTHEA
HANEKOM FIRST
RESPONDENT
STUURMAN
HANEKOM SECOND
RESPONDENT
THOSE
PERSONS UNLAWFULLY OCCUPYING
COTTAGE
NO 3, TOPSHELL PARK, BADEN
POWELL
ROAD, LYNEDOCH, STELLENBOSCH, WITH,
OR
UNDER FIRST AND SECOND RESPONDENTS THIRD
RESPONDENT
STELLENBOSCH
MUNICIPALITY FOURTH
RESPONDENT
DEPARTMENT
OF RURAL DEVELOPMENT AND
LAND
REFORM FIFTH
RESPONDENT
TADVEST
INDUSTRIAL (PTY) lTD
formerly known as
OLD
ABLAND (PTY)
LTD
APPELLANT
and
SUZIE-ANN
JACOBS FIRST
RESPONDENT
THOSE
PERSONS UNLAWFULLY OCCUPYING
COTTAGE
NO 8, TOPSHELL PARK, BADEN
POWELL
ROAD, LYNEDOCH, STELLENBOSCH, WITH,
OR
UNDER FIRST
RESPONDENT SECOND
RESPONDENT
STELLENBOSCH
MUNICIPALITY THIRD
RESPONDENT
DEPARTMENT
OF RURAL DEVELOPMENT AND
LAND
REFORM FOURTH
RESPONDENT
Neutral
citation
:
Tadvest
Industrial (Pty) Ltd v Anthea Hanekom & others
(83/2018)
[2019] ZASCA 19
(25
March 2019)
Coram
:
Ponnan, Majiedt and Swain JJA and Carelse and Matojane AJJA
Heard
:
26 February 2019
Delivered:
25
March 2019
Summary:
Section
16(1)
(b)
of
Superior Courts Act 10 of 2013
– appeal from decision
of high court sitting as an appeal court – special leave of
Supreme Court of Appeal required
–
s 16(1)
(c)
of the
Superior Courts Act – appeal
from decision of Land
Claims Court sitting as appeal court – leave to appeal granted
by Land Claims Court –
s 22(2)
(a)
of the
Restitution of Land Rights Act 22 of 1994
– powers of
Land Claims Court limited to powers of high court – special
leave of Supreme Court of Appeal required –
absence of
jurisdiction – each appeal is struck from the roll.
ORDER
On
appeal from:
Land
Claims Court, Randburg (Poswa-Lerotholi AJ and Canca AJ concurring,
sitting as the court of appeal):
Each
appeal is struck from the roll.
JUDGMENT
Swain JA (Ponnan and
Majiedt JJA and Carelse and Matojane AJJA concurring):
[1]
This
appeal has its origin in the grant of orders for the eviction of the
Hanekom family and the Jacobs family from a property situated
in
Stellenbosch, by the Magistrates’ Court for the District of
Stellenbosch. Separate applications for their eviction were
launched
by the owner of the property, Old Abland (Pty) Ltd, whose name was
subsequently changed to Tadvest Industrial (Pty) Ltd,
the
appellant.
[1]
[2]
In
the first application (the Hanekom matter) the present respondents
were Ms Anthea Hanekom, the first respondent, Mr Stuurman
Hanekom,
the second respondent and the third respondent, described as ‘those
persons occupying cottage number 3 on the property’
together
with the first and second respondents
[3]
In
the second application (the Jacobs matter) the present respondents
were Ms Suzie-Ann Jacobs, the first respondent, and the second
respondent, described as ‘those persons occupying cottage,
number 8 on the property’ together with the first respondent.
In each application the Stellenbosch Municipality and the Department
of Rural Development and Land Reform were cited as the third
and
fourth respondents. As only the first and second respondents in the
Hanekom matter and the first respondent in the Jacobs matter,
participate in this appeal, I will refer to these parties
collectively as the respondents.
[4]
In
both matters, the magistrates’ court, in addition to granting
orders evicting the respondents from the appellant’s
property,
ordered that the appellant pay the sum of R80 000 to the first
respondent in each matter, in order to assist the respondents
with
their relocation and the acquisition of alternative accommodation.
The respondents were ordered to vacate the premises within
90 days of
payment of this amount. The appellant then appealed against the
orders for payment, in both matters, to the Land Claims
Court (the
LCC). In response, the respondents cross-appealed against the orders
for their eviction.
[5]
The
LCC, sitting as an appeal court of two judges, heard the appeals in
the matters together, dismissing the appeals, but upholding
the
cross-appeals. In the result, the orders for eviction were set aside
and each party was ordered to pay their own costs in the
appeals. The
appellant applied for and was granted leave by the LCC to appeal to
this court in both matters, which were enrolled
for hearing together.
[6]
Prior
to the hearing of the appeal the registrar of this court was directed
to write to the parties as follows:
‘
At
the hearing of the above appeal, the presiding judge requires counsel
to be prepared to address the following –
Regard
being had to sections 16(1)
(b)
and
(c)
of the Superior
Courts Act 10 of 2013:
(1)
Did the Land Claims Court (LCC) have jurisdiction to entertain an
application for leave to appeal and grant leave to the appellant
to
appeal to this court?
(2)
If not,
(2.1)
Does the order of the LCC granting leave to the appellant to appeal
to this court not amount to a nullity?
(2.2)
If yes, does this court have jurisdiction to consider and determine
the appeal?
To
this end, supplementary heads of argument must be filed on behalf of
the appellant by 6 February 2019 and the respondents by
20 February
2019 in which these questions are addressed.’
[7]
In
compliance with the directive, supplementary heads of argument were
delivered and argument presented at the hearing, in which
we were
urged to decide the merits of the matter. Regrettably, this
court does not have jurisdiction to do so, with the result
that an
order was granted at the hearing striking the appeals from the roll.
An order was also granted directing the parties to
pay their own
costs in the appeals. This judgment is the fulfilment of an
undertaking to furnish reasons for the grant of these
orders.
[8]
As
it was put in
Snyders
v De Jager
[2015] ZASCA 137
;
2016 (5) SA 218
(SCA) para 8:
‘
First,
this court does not have original jurisdiction. Its jurisdiction is
determined by the Constitution and by statute. Its inherent
power to
protect and regulate its own process does not extend to the
assumption of jurisdiction not conferred upon it by statute.’
In
addition, as pointed out by this court in
S v Van Wyk &
another
[2014] ZASCA152;
[2014] 4 All SA 708
(SCA);
2015 (1) SACR
584
(SCA) para 19:
‘
The
jurisdiction of this court to hear appeals from the high court
whether as a court of first instance, or an appeal court, is
derived
from this section [s 16 of the
Superior Courts Act 10 of 2013
] and s
19 of the Act. Whereas under s 20(4) of the SC Act, [the Supreme
Court Act 59 of 1959] the special leave of this court was
only
required in respect of an appeal from a decision of the full court
(three judges) given on appeal to it, the special leave
of this court
is now also required where leave to appeal is sought in respect of a
decision of two judges given on appeal to it.’
[9]
The
provisions of s 16 of the Superior Courts Act 10 of 2013 (the Act)
read with s 19 of the Act, therefore determines the jurisdiction
of
this court to hear appeals from the high court. Section 16 of the Act
which is headed ‘Appeals generally’ provides
as follows:
‘
(1)
Subject to section 15(1), the Constitution and any other law –
(a)
An
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted –
(i)
if the court consisted of a single judge, either to the Supreme Court
of Appeal or to a full court of that Division, depending
on the
direction issued in terms of section 17(6); or
(ii)
if the court consisted of more than one judge, to the Supreme Court
of Appeal;
(b)
an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal; and
(c)
an
appeal against any decision of a court of a status similar to the
High Court, lies to the Supreme Court of Appeal upon leave
having
been granted by that court or the Supreme Court of Appeal, and the
provisions of section 17 apply with the changes required
by the
context.’
Section
19 of the Act provides for the powers of this court when hearing an
appeal and is not relevant for present purposes.
[10]
Section
16(1)
(c)
of the Act provides for an appeal against any decision ‘of a
court of a status similar to the High Court’. That the
LCC is a
court of such status appears from the provisions of
s 22(2)
(a)
of the
Restitution of Land Rights Act 22 of 1994
, which provides that
the LCC has jurisdiction throughout the Republic and has:
‘
(a)
all such powers in relation to matters falling within its
jurisdiction as are possessed by a High Court having jurisdiction in
civil proceedings at the place where the land in question is
situated, including the powers of a High Court in relation to any
contempt of the Court.’
Section
16(1)
(c)
applies to ‘any decision’ of the LCC
which therefore includes a decision of the LCC sitting as an appeal
court. The
section confers jurisdiction on the SCA to hear an appeal
from a decision of the LCC sitting as an appeal court.
[11]
In
terms of the preamble to
s 16
, its provisions are, however, subject
to ‘any other law’.
Section 16(1)
(c)
of the Act itself is therefore subject to the provisions of
s 22(2)
(a)
of the
Restitution of Land Rights Act, which
provides that the LCC
has ‘all such powers in relation to matters falling within its
jurisdiction as are possessed by a high
court having jurisdiction in
civil proceedings’. Its powers are accordingly limited to those
possessed by a high court in
civil proceedings.
Section 22(2)
(a)
therefore not only determines the status of the LCC for the purposes
of s 16(1)
(c)
of the Act, but also its powers. Consequently, because the high court
sitting as an appeal court lacks the power to grant leave
to appeal
to the SCA, as the special leave of the SCA is required in terms of s
16(1)
(b)
of the Act, the LCC must similarly lack the power to do so.
[12]
It
would be anomalous if the higher threshold of special leave was
required in the case of the high court, which possesses a far
more
extensive jurisdiction than the LCC, but ordinary leave was
sufficient in the case of the LCC. There can be no basis in logic
or
principle why such a distinction should be drawn. The higher
threshold of special leave is also justified when regard is had
to
the fact that in terms of
s 22
of the
Restitution of Land Rights Act,
the
LCC is a specialist court with exclusive jurisdiction in defined
areas. Recognition should be afforded to the fact that when it
sits
as an appeal court it performs a similar function to that of the
Competition Appeal Court (CAC) and the Labour Appeal Court
(LAC). In
so far as the SCA is concerned, the LAC is the final court of appeal
in respect of judgments and orders of the
Labour Court and the
jurisdiction of the CAC is final and exclusive with regard to those
matters set out in
s 62(1)
of the
Competition Act 89 of 1998
.
[13]
The
provisions of
ss 37(1)
and
37
(2) of the
Restitution of Land Rights
Act also
have to be considered with reference to ‘any other
law’ contained in the preamble to s 16 of the Act. These
sections
provide as follows:
‘
(1)
No appeal shall lie against a judgment or order of the Court except
with leave of the Court or, where such leave has been refused,
with
the leave of the Supreme Court of Appeal.
(2)
An appeal from a judgment or order of the Court shall be heard by the
Supreme Court of Appeal.’
If
the term ‘judgment or order of the Court’ is interpreted
to mean a judgment or order of the LCC sitting as an appeal
court,
this would mean that the leave of the LCC would be sufficient to
appeal such a decision to the SCA. These sections must,
however, be
read subject to the general limitation on the powers of the LCC,
contained in
s 22(2)
(a)
of the
Restitution of Land Rights Act
and
cannot extend the powers of the LCC beyond those of the high
court. The reference to a ‘judgment or order of the Court’
accordingly does not apply to a judgment or order of the LCC, when it
sits as a court of appeal.
[14]
Contrary to the above reasoning and conclusion, the parties sought to
persuade us that only the leave of the LCC was required
to appeal to
the SCA against a decision of the LCC, sitting as an appeal court.
The argument was that ESTA provides in
s 19(2)
that civil appeals
from magistrates’ courts in terms of this Act lie to the LCC.
In addition,
ss 37(1)
and
37
(2) of the
Restitution of Land Rights Act
provide
for an appeal from a judgment or order of the LCC to the SCA,
with the leave of the LCC or if refused, with the leave of the SCA.
When the provisions of s 16(1)
(c)
of the Act were
considered in this context, so the argument went, the leave of the
LCC was sufficient to endow this court with
the requisite
jurisdiction to decide the appeals. The argument, however, overlooks
the limitation on the powers of the LCC, to
those powers of the SCA,
in terms of
s 22(2)
(a)
of the
Restitution of Land Rights Act,
read
with s 16(1)
(c)
of the Act and accordingly falls to be
rejected.
[15]
A further argument advanced by counsel for the appellant was based
upon the decision of the Constitutional Court in
Snyders &
others v De Jager & others
[2016] ZACC 55
;
2017 (5) BCLR 614
(CC);
2017 (3) SA 545
(CC). In this case the magistrates’ court
had granted an eviction order under the Extension of Security of
Tenure Act 62
of 1997 (ESTA), which was confirmed on automatic review
by the LCC in terms of s 19(3) of ESTA, which provides as follows:
‘
Any
order for eviction by a magistrate’s court in terms of this
Act, in respect of proceedings instituted on or before a date
to be
determined by the Minister and published in the Gazette, shall be
subject to automatic review by the Land Claims Court, which
may –
(a)
confirm
such order in whole or in part;
(b)
set
aside such order in whole or in part;
(c)
substitute
such order in whole or in part; or
(d)
remit
the case to the magistrate’s court with directions to deal with
any matter in such manner as the Land Claims Court may
think fit.’
[16]
An appeal to the SCA in
Snyders
, with the leave of the LCC
against the confirmation of the eviction order, was struck off the
roll with costs on the grounds that
the order was a nullity. It was
held by the SCA that an order confirming a magistrates’ court
eviction order was not an order
on the substantive merits of the
matter. If the SCA were to entertain such an appeal on the merits, it
would in effect be hearing
an appeal directly from the magistrates’
court to the SCA. It was held that this would be contrary to the
hierarchy of our
courts, and in direct conflict with s 19(2) of ESTA,
which provides that civil appeals against magistrates’ court
decisions
in terms of ESTA lie to the LCC.
[17]
The Constitutional Court in
Snyders
held that the confirmation
by the LCC of the eviction order of the magistrates’ court
under ESTA, was an order of the LCC.
Consequently, an appeal against
the s 19(3) confirmation of the magistrates’ eviction order
under ESTA was an appeal against
an order of the LCC, and was not an
appeal against a magistrates’ court order. The appeal therefore
lay to the SCA and not
to the LCC. The Constitutional Court stated
the following at para 44:
‘
In
my view, as is the case with the High Court in respect of automatic
reviews under the Criminal Procedure Act, in automatic review
proceedings under s 19(3) the Land Claims Court may confirm, set
aside, substitute or remit a magistrates’ court’s
eviction order on the basis of either review grounds or appeal
grounds. It is not limited to review grounds or irregularities.
It,
therefore, has both review and appellate powers.’
[18]
Counsel for the appellant therefore submitted that on the basis of
this decision, the decision of the LCC on appeal, in setting
aside
the eviction order granted by the magistrates’ court was
appealable to the SCA, with the leave of the LCC. The decision
of the
Constitutional Court is, however, distinguishable on the following
grounds:
(a) The LCC in
Snyders
was not sitting as an appeal court of two judges in an appeal from
the magistrates’ court in terms of s 19(2) of ESTA, when
dealing with the eviction order granted by the magistrates’
court, but as a court consisting of a single judge, exercising
a
power of automatic review in terms of s 19(3) of ESTA. That a
distinction is to be drawn between the LCC exercising this power
of
automatic review of an eviction order granted by the magistrates’
court and an appeal against such an order, is made clear
by the
provisions of s 19(4) of ESTA, which provides as follows:
‘
The
provisions of subsection (3) shall not apply to a case in which an
appeal has been noted by an occupier.’
The fact that the LCC
when exercising an automatic power of review has both appellate and
review powers, cannot blur the clear distinction
between these two
procedures. The distinction is of particular importance in the
present case. It will be recalled that the respondents
as occupiers,
cross-appealed against the order of eviction granted by the
magistrates’ court. Consequently, an automatic
review of the
eviction order was precluded.
(b) The limitation on the
power of the LCC to grant leave to appeal to the SCA when it acts as
an appeal court, does not apply in
the case of an appeal to the SCA
against a decision of the LCC exercising a power of automatic review
in terms of s 19(3)
of ESTA. When the LCC acts as a court of
automatic review it does not act as an appeal court.
[19]
A decision by the LCC acting as a court of automatic review
accordingly falls within the definition of ‘any decision
of a
court of a status similar to the High Court’ in terms of s
16(1)
(c)
of the Act. As stated by the Constitutional Court in
Snyders
at para 49:
‘
With
regard to
s 16(1)
(c)
of the
Superior Courts Act, the
only question that would need to be
asked would be: is a decision under
s 19(3)
confirming an eviction
order made by a magistrates’ court a decision of a court of a
status similar to that of the High Court?
If the answer is yes, then
an appeal lies to the Supreme Court of Appeal. If the answer is no,
then
s 16(1)
(c)
would not be relevant. In my view, the answer is yes. Therefore, this
means that an appeal against that decision lies to the Supreme
Court
of Appeal.
Section 16(1)
(c)
begins with the words “subject to
section 15(1)
, the
Constitution and any other law”. There is, in my view, nothing
in s 15(1), the Constitution and any other law which
militates
against approaching the issue this way.’
[20]
This of course gives rise to the anomalous situation that where the
LCC exercises its powers of automatic review of an eviction
order
granted by the magistrates’ court in terms of s 19(3) of ESTA,
an appeal lies to this court with the leave of the LCC.
However,
where the LCC acts as an appeal court in respect of an eviction order
granted by the magistrates’ court, an appeal
only lies to the
SCA with the special leave of this court. Unfortunately, this is the
result of two mutually exclusive jurisdictional
avenues to the LCC
being available to challenge an eviction order granted by the
magistrates’ court.
[21]
In the result, the LCC sitting as an appeal court did not have the
power to grant leave to appeal to this court. The order
is a nullity
and this court has no jurisdiction to entertain the appeals.
[22]
When it was clear to counsel for the appellant that this court was
unable to entertain the appeals, counsel then asked that
special
leave to appeal be granted to the appellant. As pointed out by this
court in
S v Potgieter
[2015] ZASCA 15
para 4, a substantive
petition supported by an affidavit ought to have been filed by the
appellant. The parties were aware by no
later than the end of January
2019, in terms of the letter from the registrar of the concerns of
this court in relation to the
issue of jurisdiction. There was ample
time to bring such an application and afford the respondents a proper
opportunity to consider
it. Simply put, no case was made out by the
appellant why special leave should be granted and no attention was
paid to the requirements
which have to be satisfied, before special
leave may be granted by this court. The informal request was
therefore refused.
[23]
The parties were agreed at the hearing that if the appeals were to be
struck from the roll they should each pay their own costs.
An order
was therefore granted in the following terms:
Each
appeal is struck from the roll.
K
G B Swain
Judge
of Appeal
Appearances:
For
the Appellant: Ms I Oschman
Instructed
by:
Cluver
Markotter Inc, Stellenbosch
McIntyre
Van Der Post, Bloemfontein
For
the Respondents: Mr S Magardie
Instructed
by:
JD
Van der Merwe Attorneys, Stellenbosch
Webbers,
Bloemfontein
[1]
LCC
Case Nos: LCC178/2016 & LCC179/2016.