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[2001] ZASCA 119
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Woerman NO and Another v Masondo and Others (428/99) [2001] ZASCA 119; [2002] 2 All SA 53 (A); 2002 (1) SA 811 (SCA) (9 November 2001)
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Reportable
Case No: 428/99
In the matter between:
H J WOERMAN and M L SCHUTTE
NNO
Appellants
and
S O MASONDO
1
st
Respondent
E SHABANGU
2
nd
Respondent
M A KHUMALO
3
rd
Respondent
Coram
:
Nienaber, Marais, Streicher, Cameron and
Navsa JJ A
Heard
:
27 August 2001
Delivered
:
9
November 2001
Land Reform (Labour Tenants) Act 3 of 1996 – S 2(5) does not apply to
actions pending at the time of its introduction.
J U D G M E N T
STREICHER J A
:
[1] Mrs E Woerman (‘the
plaintiff’) instituted an action against the three respondents in the
Magistrate’s Court
for the district of Vryheid (‘the trial
court’) in which she claimed amongst other relief the eviction of the
respondents
from the farm Grootfontein (‘the farm’) which she owned.
The respondents defended the action. In their pleas they denied
that their
occupation of the farm was unlawful. They alleged that they qualified as labour
tenants in terms of the Land Reform (Labour
Tenants) Act 3 of 1996 (‘the
Act’) and that as labour tenants they were entitled, in terms of s 3 of
the Act, to occupy
and use part of the farm. The trial court granted an
eviction order against the respondents. However, an appeal by the respondents
to
the Land Claims Court (‘the court
a quo’)
was upheld and an
order dismissing the claim for eviction was substituted. With the leave of the
court
a quo
the plaintiff appealed to this court. Since the noting of the
appeal the plaintiff has died and has been substituted by the executors
of her
estate (‘the appellants’).
[2] In terms of s 3 of the Act a
person who was a labour tenant on 2 June 1995 has a right with his family
members, to occupy and
use that part of the farm, which he was using and
occupying on that date. A labour tenant is defined in s 1 of the Act as a
person-
‘(a) who is residing or has the right to reside on a farm;
(b) who has or has had the right to use cropping or grazing land on the farm,
referred to in paragraph (a), or another farm of the
owner, and in consideration
of such right provides or has provided labour to the owner or lessee; and
whose parent or grandparent resided or resides on a farm and
had the use of cropping or grazing land on such farm or another farm
of the
owner, and in consideration of such right provided or provides labour to the
owner or lessee of such or such other farm,
including a person who has been appointed a successor to a labour tenant in
accordance with the provisions of section 3(4) and (5),
but excluding a
farmworker;’.
In
Ngcobo and Others v
Salimba CC; Ngcobo v Van
Rensburg
[1]
this court held
that paras (a), (b) and (c) of the definition had to be interpreted
conjunctively.
[3] A farmworker is defined in s 1 of the Act as –
‘a person who is employed on a farm in terms of a contract of employment
which provides that
–
in return for the labour which he or she provides to the owner or lessee of the
farm, he or she shall be paid predominantly in cash
or in some other form of
remuneration, and not predominantly in the right to occupy and use land; and
he or she is obliged to perform his or her services
personally;’.
[4] To establish
whether a person is or was a farmworker and thus disqualified from being a
labour tenant this court held in the
Ngcobo
case
[2]
that what has to be
determined is ‘the predominant quality of occupation over the whole period
during which the present occupier
has been complying [or complied] with paras
(a) and (b)’ (my insertion).
[5] It was not contended in the court
a quo
or in this court that the requirements of subsections (a) and (c)
of the definition of labour tenant had not been satisfied. The
issue which the
trial court and the court
a quo
had to decide and which is the subject of
this appeal is, in respect of each of the respondents, whether the requirements
of subsection
(b) of the definition of labour tenant were satisfied and, if they
were, whether the respondent concerned was a farmworker and thus
not a labour
tenant. The issue entails the following questions:
Did the respondent, on or before 2 June 1995, have a right to use cropping or
grazing land on the farm?
Did the respondent in consideration of such cropping or grazing right provide
labour to the owner of the farm?
Was the respondent employed on the farm in terms of a contract of employment
which provided that in return for the labour which he
provided to the owner of
the farm he would be paid predominantly in cash or in some other form of
remuneration and not predominantly
in the right to occupy and use
land?
[6] The first respondent alleged
in his plea that he provided labour to the previous owner of the farm (‘Mr
Woerman’)
and that in consideration of his services he had the right to
plant crops on the farm. According to his evidence he approached Mr
Woerman
during about 1984 for permission to live on the farm. At that stage he was
already a pensioner. Mr Woerman ‘out of
the goodness of his heart’
allowed him to stay on the farm in four houses which he, the first respondent,
built. He wanted
a ‘piece job’ and for a period of approximately 5
years he worked on the farm. He and his wife fed the chickens and
cleaned the
chicken runs. Initially he was paid R18 per week for his services and by the
time he ceased working he was being paid
R40 per week. He had no right to keep
livestock on the farm but had a field, which he could cultivate. Mr Woerman
ploughed the
land and planted mealies for him using his, Mr Woerman’s, own
seed. The field was small but provided mealies, which he used
to cut and cook
while they were still fresh. After he stopped working, on 16 March 1989, Mr
Woerman handed him a document, the first
paragraph whereof read:
‘You are allowed to live on the farm Grootfontein of Mr J WOERMAN District
Vryheid for humanitarian reasons and will not attain
the living rights on said
farm in future.’
[7] The second respondent,
likewise, alleged in his plea that he provided labour to the previous owner of
the farm and that in return
for his services he had the right to plant crops on
the farm. He testified that after having worked on the farm previously he
returned
to work on the farm during 1994. He moved onto the farm with his wife,
six children and his brothers. They occupied two existing
houses and built
another two. He drove tractors and other vehicles. He worked five days per
week from 06h00 until 16h00 and was
entitled to two weeks leave per year. He
was paid a salary of R120 per week and kept a cow, a calf, chickens, four ducks
and approximately
19 geese on the farm. Mr Woerman stipulated that five to six
cattle was the maximum number that he could keep on the farm. He planted
mealies in a field which was a bit smaller than a soccer field. Mr Woerman
supplied the tractor used for ploughing the field and
also the seed which was
planted. After Mr Woerman was killed in November 1995, he left the farm in April
1996.
[8] The third respondent alleged in his plea that he worked for Mr
Woerman in consideration of the right to plant crops and graze
animals. Of the
three respondents he alone alleged in his plea that he was entitled to grazing
rights in return for his services.
He testified that he moved to Mr
Woerman’s farm in 1973 with his wife and children. He built a kraal
consisting of eight
houses. He kept five cattle, six goats and chickens. Mr
Woerman ploughed an area approximately 20 feet wide around his house where
he
(third respondent) planted mealies using his own seed. All his children worked
on the farm and received salaries for their services.
He worked seven days a
week from 03h00 to 19h00 and was entitled to one week’s leave per year.
He was obliged to perform
his services personally. He was paid a salary which
had increased from R4 per week to between R80 and R90 per week by the time Mr
Woerman passed away.
[9] The trial started on 11 November 1997. It appears
that the respondents accepted that the onus was on them to prove that they
were
labour tenants and, by agreement, they started with their case. Evidence was
heard on 11 and 12 November 1997 when the trial
was postponed to 28 November
1997. By that time the respondents had closed their case (save in one respect,
not relevant for present
purposes, in so far as the third respondent was
concerned) and the examination in chief of the plaintiff had just been
completed.
Upon the resumption of the trial on 28 November 1997 the respondents
were granted a postponement to enable them to consider the
effect of the
Extension of Security of Tenure Act 62 of 1997
, which came into operation on
that day. The trial resumed on 13 July 1998 when the respondents were granted
an amendment of their
pleas in terms of which they added an alternative defence
based on the provisions of the
Extension of Security of Tenure Act. This
defence is no longer of any relevance in that an initial appeal against the
dismissal of the defence by the trial court was not proceeded
with.
[10] Nothing was made in the trial court of an amendment to the Act
which came into operation on 21 November 1997 in terms of which
s 2(5) was
introduced. The section provides as follows:
‘2(5) If in any proceedings it is proved that a person falls within
paragraphs (a), (b) and (c) of the definition of ‘labour
tenant’,
that person shall be presumed not to be a farmworker, unless the contrary is
proved.’
The trial court dealt with the matter
on the basis that the onus was on the respondents to prove that they were paid
predominantly
in cash or some other form of remuneration and not predominantly
in the right to occupy and use land. It found that the respondents
failed to
prove that and granted an eviction order against them.
[11] The respondents
did not argue in the court
a quo
that s 2(5) was applicable. The court
a quo
nevertheless referred to the section but found it unnecessary to
decide whether the respondents bore the onus of proving that they
were not
farmworkers. It was of the view that the respondents had in any event proved
that they were not. It stated that it was
clear that the occupation and use
rights of each of the respondents exceeded the salary and other forms of
remuneration (such as
the use of a tractor and seed) received by the respondent
concerned.
[12] The plaintiff alleged that she was the owner of the farm and
that the respondents were in occupation of a portion of the farm.
Those facts
would, in terms of the common law, have entitled her to an eviction order unless
the respondents could show that they
were entitled to so occupy a portion of the
farm.
[3]
[13] Section 26(3) of the
Constitution provides as follows:
‘No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all
the relevant circumstances.
No legislation may permit arbitrary evictions.’
In
Ross
v South Peninsula
Municipality
[4]
Josman J
(Desai J concurring) concluded that the common law as laid down in
Graham v
Ridley
[5]
had been modified
by s 26(3) to the extent that a plaintiff seeking to evict a person from his
home is now required, in terms of that
section, to allege relevant circumstances
which would entitle the court to issue such order. Reading the proposition in
its context,
Josman J would seem to suggest that an owner, in order to succeed
in an action for the eviction of a person from his home, not only
has to allege
more than that he is the owner and that the defendant is in occupation but also
has to prove more if the action is
defended. What it was that an owner should
allege and prove in addition to those facts Josman J considered to be beyond the
scope
of the appeal before him.
[6]
In
Betta Eiendomme (Pty) Ltd v
Ekple-Epoh
[7]
Flemming DJP
disagreed with the conclusion reached in the
Ross
case. Notwithstanding
an invitation to make submissions on the correctness and applicability of the
judgment in
Ross v South Peninsula Municipality
the respondents did not
place any reliance thereon. The respondents also declined an invitation to make
submissions on the question
whether, given the manner in which the proceedings
were conducted in both the trial court and the court
a quo
, it is open
to them to contend, at this stage, that the onus on the disputed issues was on
the appellants.
[14] In
Ellis v
Viljoen
[8]
Thring J
delivered the judgment of the full court of the Cape Provincial Division on
appeal from a decision by Griesel J. Referring
to Griesel J’s finding that
the judgment in
Ross v South Peninsula Municipality
did not bring about a
change as regards the incidence of the
onus,
he
said:
[9]
‘[E]ven if it was held in the
Ross
case that the incidence of the
onus
of proof had been altered by s 26(3) of the Constitution, that
conclusion was erroneous and cannot be supported. I find myself in
respectful
agreement with what was said by Flemming DJP in the passage which I have quoted
above from his judgment in the
Betta Eiendomme
case
supra
at
474I-475I. In particular, I respectfully support his conclusion that the right
of ownership as recognised before the Constitution
has not been affected by the
Constitution (at 475D), at least as regards the type of case presently under
consideration. It seems
to me to be self-evident, as the learned Deputy Judge
President says at 475F-G, that in the absence of legislative interference and
postulating that nothing more is known than that the plaintiff is the owner and
that the defendant is in possession, it is right
and proper that an owner should
be granted an ejectment order against a defendant who has no business
interfering with the plaintiff’s
possession of his own property. If those
are the only ‘relevant circumstances’ placed before the Court,
surely the owner
must be entitled to an eviction order. If there are other
‘relevant circumstances’ upon which the defendant wishes to
rely in
justifying his continued occupation, the
onus
must, on all the recognised
principles of pleading and evidence, rest on him to allege and prove them,
whatever they may be. Like
Flemming DJP, I can find nothing in those principles
which is in any way repugnant to or inconsistent with anything in the
Constitution.
On the contrary, they seem to me to be eminently consonant with
the provisions of s 25(1) of the Constitution, which reads:
“No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property”’
[15] I do not consider it necessary to
pronounce on the precise ambit of s 26(3) and, not having heard argument in this
regard, I
do not consider it advisable to do so either. For these reasons, and
save to the extent that my conclusion set out hereunder is either
at variance or
in conformity with the decisions in the
Ross, Betta,
and
Ellis
cases, I do not express any view on the correctness or otherwise of those
decisions. The respondents alleged in their plea that they
were labour tenants
and the plaintiff denied that they were. That was and is the issue to be decided
on the pleadings. Moreover,
counsel for the respondents did not contend that
there were any other relevant circumstances to consider. If the respondents are
correct, the fact that they are labour tenants is a relevant circumstance which
would have obliged the trial court to have regard
to the provisions of the Act,
more particularly the provisions restricting the owner’s right to evict.
If the respondents are
not correct, they do not contend that there are any
relevant circumstances which may persuade a court not to grant an eviction order
against them. As the respondents alleged that they were labour tenants they, in
terms of the common law, had to prove that fact.
In my view the incidence of
this onus is not affected by s 26(3) of the Constitution. The section does not
require a plaintiff to
allege and prove circumstances irrelevant to its claim
such as that the respondents are not labour tenants.
[16] The respondents
did not contend otherwise in the courts below. They alleged and, at the trial,
set out to prove that they were
labour tenants and as such, in terms of s 3 of
the Act, entitled to occupy and use part of the farm. However, in his heads of
argument
in this court counsel for the respondents submitted that the coming
into force of s 2(5) during the trial shifted the onus as regards
the question
whether the respondents were labour tenants from the respondents to the
plaintiff. He submitted that the incidence
of the onus was a procedural matter
and that a procedural amendment applied to pending suits. This submission was
not pressed in
argument before us but needs to be considered in any event.
[17] It is not correct to say that procedural amendments apply to all
pending suits.
[10]
In any event
onus, in the sense of the duty that is cast on a particular litigant, in order
to be successful, of finally satisfying
the court that he is entitled to succeed
on his claim or defence is a matter of substantive law and not of
procedure.
[11]
In
During NO v
Boesak
[12]
E M Grosskopf
JA said:
‘Die ligging van die bewyslas word deur die substantiewe reg bepaal. Soos
gestel word in Hoffmann en Zeffertt
The South African Law of Evidence
4de
uitg op 495:
“Any rule of law which annexes legal consequences to a fact . . . must, as
a necessary corollary, provide for which party is
supposed to prove that
fact.”’
[18] Even if a statute is
amended with retrospective effect the rights of the parties to a pending action
must be decided in accordance
with the law as it was when the action was
instituted, unless a contrary intention appears from the
statute.
[13]
In the present case
there is no indication to be found in the Act that the legislature intended s
2(5) to apply to pending actions
and the respondents’ counsel did not
contend that there was.
[19] It follows that, notwithstanding the provisions
of s 2(5) of the Act, the onus was on the respondents to prove that they were
labour tenants on 2 June 1995. That entailed,
inter alia,
that they bore
the onus of proving that they were not farmworkers. To discharge that onus each
one of them had to prove that in return
for the labour which he provided to the
owner of the farm he was remunerated predominantly in the right to occupy and
use land and
not in cash or some other form of remuneration.
[20] Each of
the respondents, together with his wife and in the case of the second and third
respondents, their children, resided
on the farm and had permission to harvest
mealies from a field allocated to him. The second and the third respondents
were also
allowed to graze livestock on the farm. It was submitted on behalf of
the appellants that the respondents did not have a “right”
within
the meaning of the word in the definition of labour tenant or if they did that
such right was not given to them ‘in
consideration’ of the services
they had to render. In the light of the conclusion to which I have come it is
not necessary
to deal with these arguments. I shall assume in favour of the
respondents that each of them provided labour to the owner of the
farm in
consideration of a right to use a small field for the cultivation of mealies; a
right, in the case of the second respondent,
to keep 5 to 6 cattle, chickens, 4
ducks and 19 geese on the farm; and a right, in the case of the third
respondent, to graze 5 cattle
and 6 goats on the farm. On the other hand, the
first respondent received a salary of R40 per week and had the field which was
allocated
to him ploughed by the owner and planted with mealie seed provided by
the owner; the second respondent received a salary of R120
per week, ploughed
the field allocated to him with the owner’s tractor and planted mealie
seed provided by the owner; and the
third respondent received a salary of
between R80 and R90 and used the owner’s tractor to plough the field
allocated to him.
The court
a quo
was of the view that the use of the
tractor and the seed provided by the owner constituted another form of
remuneration for the respondents’
labour. In argument before us counsel
for the respondents accepted the correctness of this view.
[21] In order to
determine whether each of the respondents was remunerated predominantly in the
right to occupy and use land and
not in cash or in some other form of
remuneration one obviously has to compare like with like and the only way to do
that would be
to place a monetary value on each component. It was, therefore,
necessary for the respondents to adduce evidence in the trial court
to enable
the trial court to do so. However, no evidence whatsoever, which could assist
in the valuation of the respondents’
residential rights, their grazing
rights, their cropping rights, the use of the tractor to plough the fields
allocated to the respondents
and the seed supplied by the owner was adduced in
the trial court. The respondents, who were legally represented at all stages,
could have adduced evidence at the trial as to the number of bags of mealies
they used to harvest per year and of the price of a
bag of mealies. If they had
done that it should have been possible to place a value on their cropping
rights. Without evidence
as to the size of the fields concerned, the crop that
could be expected and the price of mealies, the trial court was in no position
to place any value on the cropping rights of the respondents. The same applies
to the respondents’ grazing rights. Grazing
may or may not have been
available in abundance in that area. The availability thereof would obviously
affect the value of grazing
rights. It should have been possible to adduce
evidence as to what a farmer would charge for allowing animals to be grazed on
his
farm or evidence could have been led as to the value to the respondents of
the right to keep livestock on the farm. However, no
evidence was adduced on
the basis of which a value could be placed on the respondents’ grazing
rights. The value of the right
to reside on a farm will depend on the price or
rental payable for similar accommodation elsewhere in that region. Evidence
could
have been adduced as to what farmers would charge a person, who was not
expected to work for the farmer, for such accommodation.
Evidence as to the
rental payable for comparable accommodation in the nearest town could also have
been of assistance. Furthermore,
it should not have been difficult or costly to
produce evidence as to the value of the seed supplied by the owner and the cost
of
hiring the owner’s tractor to plough the fields.
[22] In the absence
of any evidence on the basis of which the respondents’ residential,
grazing and cropping rights could be
valued, the trial court correctly held that
the respondents failed to discharge the onus to prove that they were labour
tenants.
[23] In finding that it was clear that each respondent’s right
to occupy and use the plaintiff’s land exceeded the cash
and other
remuneration received by him for his services the court
a quo
relied on
the following passage in the
Ngcobo
case
[14]
:
‘There is an admitted paucity of evidence relating to the value of the
rights to residence, grazing and cultivating the land
in question, and to the
value of the remuneration paid to the appellants whether in cash or in specie.
But what is clear is that
the appellants and their forebears had for many years
received the absolute minimum in the form of remuneration for their services.
It must be overwhelmingly clear that the value of residence, grazing,
cultivation and of having a hearth and home of their own,
a place where they
could find the fundamental security of living and surviving off the land, must
have far outweighed the benefits
they received as remuneration in cash or in
kind.’
It does not appear from the judgment in the
Ngcobo
case on what evidence this court found that the value of
residence, grazing and cultivation must have far outweighed the benefits
received as remuneration in cash or in kind. Each case must be decided on its
own facts and, whatever the factual position may have
been in that case, I am
satisfied that on the evidence in this case there is no basis for such a
finding.
[24] It follows that the appeal should be upheld. Counsel for the
appellants indicated that no costs orders were sought in this court
or in the
court
a quo
, and furthermore, that the appellants abandoned the costs
order made in favour of the plaintiff in the trial court. Counsel for
the
appellants also asked that the eviction order against the third respondent be
stayed until his death.
The following order is made:
The appeal is upheld.
Paras (2) and (4) of the order by the Land Claims Court are set aside and
replaced with the following
order:
The appeal of the first, third and fourth appellants is
dismissed.
(c) The eviction order against the third respondent may not be executed during
his
lifetime.
________________
P E STREICHER
Judge of Appeal
Nienaber JA)
Marais
JA)
Cameron JA)
Navsa JA) concur
[1]
1999 (2) SA 1057
(SCA) at
1067J-1068I (para 11).
[2]
Footnote
1. At 1075H (para 27).
[3]
Graham v Ridley
1931 TPD 476
at 479; and
Chetty v Naidoo
1974 (3)
SA 13
(A) at 20A-E.
[4]
2000 (1) SA
589
(C) at 596H.
[5]
Footnote
3.
[6]
At 596I.
[7]
2000 (4) SA 468
(W).
[8]
2001 (4) SA 795
(C).
[9]
At 804J-805E.
[10]
See
Minister of Public
Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) at 753B-C and
Unitrans Passenger
(Pty) Ltd
t/a
Greyhound Coach Lines v Chairman, National Transport
Commission, and Others;
Transnet Ltd (Autonet Division) v Chairman,
National Transport Commission, and Others
199 (4) SA 1
(A) at
9H.
[11]
See
Eskom v First
National Bank of Southern Africa Ltd
[1994] ZASCA 186
;
1995 (2) SA 386
(A) at 390F-G and
During NO v Boesak and
Another
.
[12]
[1990] ZASCA 51
;
1990 (3) SA 661
(A) at 672H-I
[13]
See
Bell v
Voorsitter van die Rasseklassifikasieraad en Andere
1968 (2) SA 678
(A) at
684E-F;
Bellairs v Hodnett and Another
1978 (1) SA 1109
(A) at 1148F-G;
and
Naude en Andere v Heatlie en Andere; Naude en Andere v Worcester-Oos
Hoofbesproeiingsraad en Andere
2001 (2) SA 815
(HHA).
[14]
At 1076A-C (para
28).