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[1999] ZASCA 22
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Ngcobo and Others v Salimba CC, Ngcobo and Others v Van Rensburg (50/98, 631/97) [1999] ZASCA 22; [1999] 2 All SA 491 (A); 1999 (2) SA 1057 (SCA); 1999 (8) BCLR 855 (SCA) (26 March 1999)
REPORTABLE
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No : 50 / 98
In the matter between
:
ZWELAKE NGCOBO
First Appellant
BUKIWE NGCONGO
Second Appellant
JOSEPHINA ZUNGU
Third Appellant
NOMZINTO MTHEMBU
Fourth Appellant
and
SALIMBA CC
Respondent
Case No : 631 / 97
And in the matter between
:
FIKILE
NGCOBO Appellant
and
B.W.J. VAN
RENSBURG Respondent
Composition of the Court
: Mahomed CJ; Grosskopf and Olivier
JJA; Farlam and Madlanga AJJA
Date of hearing
: 16 March 1999
Date of judgment
: 26 March 1999
Labour tenant - eviction - interpretation of definition of
labour
tenant in the Land Reform (Labour Tenants) Act, 3 of 1996
________________________________________________________________
JUDGMENT
________________________________________________________________
OLIVIER JA
OLIVIER JA
:
[1]
The two appeals before us require an interpretation of the definition
of
“labour tenant” as the term is used in the Land
Reform (Labour Tenants) Act 3 of 1996 (“the Act”). The appeals
were
heard on the same day, deal with some common issues, and are conveniently
decided in one judgment. For the sake of clarity
they will be referred to as
the Salimba and the Van Rensburg appeal respectively. Central to both appeals
is the interpretation
of sec 1 of the Act.
[2]
Sec 1 of the Act provides :
In this section
“labour tenant” means 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
(c) 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 as a successor to a labour tenant in
accordance with the provisions of section 3 (4) and
(5), but excluding a
farmworker.
A “farmworker” is
defined as
a person who is employed on a farm in terms of a contract of employment which
provides that -
(a) 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
(b) he or she is obliged to perform his or her services
personally.
“Owner” is
defined with reference to
sec 102
of the
Deeds Registries Act 47 of 1937
, with
the addendum ...and where it occurs in the definition of ‘labour
tenant’ includes his or her successors and predecessors
in title.
[3]
The Salimba appeal
At the end of a trial in the court
a quo,
Hurt J found that the
Respondent
(Salimba) was the owner of a farm known as Rose
Cottage in the Byrne area in KwaZulu-Natal; that the Appellants and members of
their
families, though occupiers of the land, were not labour tenants in terms
of the Act. The learned judge consequently granted an order
ejecting them from
the land in question. The appeal is before us with leave of the court
a
quo
.
The land under discussion has been owned since 1936 by various
owners. Salimba became the owner in 1994. The Appellants claim
that they and
their family predecessors were, at all times relevant to this action, residing
in the farm and rendering certain duties
to the owners in consideration of their
being allowed to cultivate lands and pasture stock for their own
benefit.
Salimba instituted action in the Natal High Court for an order
ejecting the Appellants. Following
Graham v Ridley
1931 TPD 476
and
Chetty v Naidoo
1974 (3) SA 13
(A) it merely alleged that it
was the owner of the land and that the Appellants were occupying the
land.
However, sec 5 of the Act clearly states that, subject to certain
exceptions, a labour tenant or his or her associate may be evicted
only in terms
of an order of the
Land Claims Court
(“the LCC”) issued under
the Act. The effect of this provision is that if a person is a “labour
tenant”
in terms of the Act, the High Court has no jurisdiction to eject
him or her from the property in respect of which tenancy is claimed.
The issue
before the court
a quo
and now this Court is whether the Appellants are
“labour tenants” in terms of the Act - a question of
interpretation
properly within the jurisdiction of the High Court and also of
this Court. If the High Court correctly found that the Appellants
were not
labour tenants then it could grant an ejection order, there being no other
ground upon which they claimed a right to occupy.
If, on the other hand, the
court
a quo
had correctly found that the Appellants were labour tenants,
then not it but only the LCC could adjudicate upon a claim for
ejectment.
The issue, then, is simply whether, on the facts found by the
court
a quo
and the correct interpretation of the Act, Hurt J was right
in holding that the Appellants were not labour tenants and thus ordering
their
ejectment.
[4]
It was common cause in the court
a quo
that the
second
and the
fourth
Appellants had not brought themselves
within the ambit of requirement (c) of the definition of labour tenant in the
Act, because neither
of them had tendered any evidence to the effect that their
parents or grandparents had rendered services in return for rights of
occupation
and use of the portion of the farms on which they worked. If the definition
requires a person to bring herself or himself
within all three paragraphs of the
definition,
i.e.
(a), (b) and (c), the second and fourth Appellants have
no defence to the action for ejectment brought against them by Salimba.
The
crux of the legal issue in respect of these two Appellants, therefore, is this :
should paragraphs (a), (b) and (c) of the definition
be read conjunctively (or,
what amounts to the same, cumulatively) or, what was termed by counsel
disjunctively, so that compliance
with paragraphs (a) and (b) would suffice.
Hurt J found in favour of the conjunctive interpretation.
[5]
In respect of the
first
and
third
Appellants two other
issues arose:
firstly, whether the “owner” of the
farm as defined, where the Appellant’s parent or grandparent lived and
provided
tenant labour, or a successor of that owner, must be the owner also of
the farm on which the Appellant lives and provides labour.
Secondly, on whom
the
onus
rests to prove that the alleged labour tenant was not a
farmworker. On both issues Hurt J found against the Appellants.
In the
result, Hurt J also ordered these Appellants to vacate the land
occupied by
them.
[6]
The Van Rensburg appeal
The Appellant and
another applicant applied in the LCC for an interdict preventing the Deputy
Sheriff for the magisterial district
of Babanango from executing a warrant for
their ejectment from the land occupied by them, issued at the instance of the
owner, Mr
van Rensburg. The application was refused on the basis that the
Applicants were not labour tenants as defined in the Act.
At the trial it
was found by Dodson J, delivering the judgment of the
LCC, that neither of
the applicants had complied with paragraph (b) of the definition, because they
had never worked or provided labour
to Mr van Rensburg or his predecessors in
title. The application was refused.
This factual finding was not attacked
on appeal before us. The legal dispute is in essence similar to the one in
respect of the
second and fourth Appellants in the Salimba appeal : should
paragraphs (a), (b) and (c) of the definition be read conjunctively,
to the
detriment of the Appellant, or disjunctively, in which case compliance with only
paragraphs (a) and (c) would still be sufficient
for the appeal to be
upheld.
[7]
On behalf of the Appellants it was argued in both courts
a quo
that, on a
proper interpretation of the Act, a person qualifies
as a “labour tenant” if he or she satisfies paragraphs (a) and
either
(b)
or
(c). It was argued that paragraphs (a), (b) and
(c) of the definition fall to be read disjunctively for the following
reasons : -
The intention of the legislature could not have been that
the three paragraphs be read conjunctively, because such a reading would
in
substantial
measure stultify the object of the Act and lead to injustice. The
object of the Act is to protect those who traditionally rendered
labour in
exchange for the right to occupy and use land from eviction at the whim of the
owner of the land subject only to compliance
with the common law requirement of
reasonable notice. If a 70 year old person claims to be a labour tenant on a
farm where she or
he was born and has lived all her or his life and to have
satisfied the requirements of paragraph (b), the legislature could not
have
intended that the enquiry be extended to determine what such a person’s
parents’ occupations had been or where they
had lived. In practice this
would more often than not be impossible to determine or check or verify.
It
was argued that the widest possible meaning should be given to the concept of a
labour tenant to ensure that as many as possible
of the victims of this form of
racial discrimination are protected. In order to achieve this a disjunctive
reading of the definition
is called for, because a conjunctive interpretation
would not give effect to this intention and in fact would result in unfair
consequences,
for example :
(i) The so-called first generation labour tenant is afforded no
protection,
notwithstanding the fact that such a person may have
been a labour tenant for many years, perhaps all his working life, whereas the
second generation labour tenant is protected, notwithstanding the fact that he
and his parent combined may not have been labour tenants
for long at all.
(ii) The situation described by Meskin J in his judgment in the
Tselentis
Mining (Pty) Ltd and Another v
Mdlalose
and Others
1998 (1) SA 411
(N) case at 418 H - 419 B,
could arise :
A person (A) who qualifies as a labour tenant as at 2 June 1995 in terms of
paragraphs (a) and (b) of the definition of “labour
tenant” has a
son (B). A person (C) who qualifies as a labour tenant as at 2 June 1995 in
terms of paragraphs (a) and (b)
of the definition of “labour tenant”
has a son (D). As at 2 June 1995 each of B and D resided or had a right to
reside
on the relevant farm, but neither B nor D had the rights envisaged by
paragraph (b) of the definition. A is alive as at 22 March
1996, the date of
commencement of the Act. A can ensure that B has the benefits of the occupation
and use of the relevant part of
the farm and the concomitant rights by
appointing B as his successor (section 3 (3) (b)) or, if A dies without
appointing a successor,
A’s family can appoint B as A’s successor
(section 3(4)). C has died before 22 March 1996. There is no way in which
(absent paragraph (c) of the definition of “labour tenant”) D can
acquire the relevant benefits notwithstanding that
C, his father, enjoyed such
benefits. This is manifestly unfair to D, who is prejudiced, as against B, by
the mere accident that
C has died before 22 March 1996, whereas A is alive as at
such date. The legislature can hardly have intended such prejudice to
exist.
Certainly no reason for such discrimination as between B and D occurs to me or,
in my opinion, appears from the Act.
These
injustices outweigh the suggested anomalies resulting from the disjunctive
approach.
Professor J.M. Pienaar in an article entitled “
Labour
tenancy : recent
developments in case law
” in volume
9, no
3
Stellenbosch Law Review
,
1998
at 311
et seq.
argued
that a person could qualify as a labour tenant for purposes of the Act if his
or her grandparent or parent provided labour
against the right to grazing
while residing on the farm. Persons could therefore qualify as labour tenants
in terms of paragraphs
(a) and (b) when the actual physical use and occupation
of the farm was
through
parents or grandparents, although the right to
reside on the farm and the rights of cropping and grazing were in fact vested in
the
person establishing labour tenancy (see p 321).
As regards the meaning of
paragraph (c) Professor Pienaar relies on
the following
dictum
of
Meskin J in the
Tselentis
-
case,
supra
, at 418 F-G:
The intention of the Legislature is not ... to make it a
sine qua non
of
qualification as a labour tenant that as at 2
June 1995 one’s parent or grandparent had these rights in addition to
the fact that one oneself had such rights as at such date
; the intention
was to create an
additional means
by which a person who as at 2 June 1995
resided or had the right to reside on the farm but who did not have in his own
right the
rights to use cropping or grazing on such farm can nevertheless
qualify as a labour tenant if his parent or grandparent in the latter’s
own right had such rights. One can readily understand why the Legislature has
made such provision.
It was finally submitted on behalf of the
Appellants that the decisions in
Tselentis Mining (Pty) Ltd and Another v
Mdlalose & Others
,
supra
, at 420 G - H
and
Klopper and Others v Mkhize and Others
1998 (1) SA 406
(NPD) at 408
are to be preferred to the decisions of
Mahlangu
v De Jager
1996 (3) SA 235
(LCC) and
Zulu and Others v Van Rensburg
and
Others
1996 (4) SA 1236
(LCC) and
Ngcobo and
Another v Van Rensburg
and Others
1997 (4) All SA 537
(LCC).
[8]
The Respondents relied on the following arguments as support for
their
contention that paragraphs (a), (b) and (c) should be read
conjunctively.
They supported the analysis by Dodson J in the court
a
quo
in the Van Rensburg case, reported as
Ngcobo and Another v van
Rensburg and Others
,
supra
,
at 541 c - h :
. There can be no quarrel with the suggestion that the definition must be read
in its context and with due regard to the objects
of the Act. However, there
are flaws in Mr Rall’s argument. The interpretation of the definition for
which he contends does
not require a simple disjunctive reading of the word
‘and’ between paragraphs (b) and (c). A simple disjunctive reading
would give ‘and’ the meaning ‘or’. This the courts will
quite readily do if the proper application of the
rules of statutory
interpretation justify it. Hence the following extract from the judgment of
Dowling J in
R v La Joyce (Pty) Ltd and
another
:
The authorities .. show that the Courts are not so slow to read
‘and’ for ‘or’ or ‘or’ for ‘and’
in cases where such a course appears better to give effect to the obvious
intention of the Legislature and the scheme of the
Act.
But this is not what we are asked by counsel for the appellants to find.
Rather, the meaning which he seeks to attribute to the
word ‘and’
requires a significant modification of the definition, so that a labour tenant
would in fact be a person -
(a) who is residing
or has the right to reside on a farm;
and
either
(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]
or
(c) 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 s 3(4) and (5), but
excluding a farm
worker.
Thus one must read in the word ‘and either’ at the end of paragraph
(a), delete the word ‘who’ in paragraph
(b) and read
‘or’ for ‘and’ at the end of paragraph
(b).
The word ‘and’ at the end of
paragraph (b) would in its ordinary grammatical sense only indicate that
paragraph (c) contains
an additional requirement to be complied with. If
regard is had to the context of the word “and” at the end of
paragraph
(b) of the definition, it is clear that the word was intended to be
used in its usual conjunctive or cumulative sense. By doing
so the result would
not be unreasonable, inconsistent or unjust.
The Act is intended to protect
a very particular class of rural tenant and in determining that class of tenant
paragraphs (b) and
(c) must also be complied with.
Zulu and Others v
van
Rensburg and Others
,
supra
,
page 1254 C - E.
To conclude as Galgut J did in
Klopper and Others v Mkhize and
Others
,
supra
, that :
It may well have been intended that paragraph (a) and (b) must read
conjunctively, but it seems ... that the further intention was
that paragraph
(c) must either be read on its own or conjunctively with paragraph (a) only ...
could lead to absurd results. If paragraph (c)
is read on its own then a person living in the city who does not reside on a
particular
farm and never did and has no right to reside on that particular
farm, but whose grandparents at the turn of the century happened
to have resided
on a particular farm and had the use of cropping or grazing land on not even
that farm but another farm owned by
the same owner and in consideration provided
labour to the owner or lessee, would qualify as a labour tenant and have rights
in terms
of the Act. The legislature could hardly have intended such a
result.
If paragraph (c) of the definition is to be read conjunctively with
paragraph (a) only, then the qualification contained in paragraph
(b) would be
ignored, which is also an untenable interpretation as it ignores the express
wording of paragraph (b).
In interpreting the definition of “labour
tenant” it is important to bear in mind that although a purposive approach
might be appropriate, a finding that a person qualifies as a “labour
tenant” detracts from the registered owner’s
real rights in and to
his property which
(i) he enjoys at common law;
(ii) are guaranteed in terms of Section 25 of the Constitution Act No 108 of
1996.
In the final analysis, a bald
statement that a conjunctive reading of the requirements would “in
substantial measure stultify
the object of the Act and lead to injustice”
(Appellants’ words) is of no assistance as it must be kept in mind that
the Act seeks to strike a balance between labour tenants and owners. In the
words of Hurt J in the court
a quo
in the Salimba appeal :
The important feature of the Act insofar as the disputes in this action are
concerned, is that it affects and regulates the rights
of ‘labour
tenants’ (who may fairly be called the ‘beneficiaries’ of its
provisions) on the one hand and
owners of the property to which the
‘labour tenants’ lay claim (whether in the form of rights of use and
occupation or
as aspirant owners) on the
other.
Finally it could not have been the
intention of the legislature that the provisions of paragraph (b) should be
excluded. The providing
of labour by the person who seeks to be declared a
labour tenant or who alleges that he is a labour tenant is a necessary
ingredient
of the concept of labour tenancy. It is unthinkable that the
legislature had in mind to declare a person a labour tenant if he
himself had
not provided any labour as is required by paragraph (b) of the definition and
only his father or grandfather had done
so as referred to in paragraph (c) of
the definition.
[9]
As far as the decisions of the High Court and the LCC are concerned,
only those of Galgut J in
Klopper and Others v Mkhize and
Others
,
supra
,
and of Meskin J in
Tselentis Mining
(Pty) Ltd and Another v Mdlalose and Others
,
supra
, for the
reasons mentioned above, support the view advanced by the Appellants.
[10]
On the other hand, there are a number of decisions that firmly
favour the
view taken by the Respondents. I mention them and the
main reasons advanced in the judgments.
In the case of
P.A. Jacobz
N.O. and Others v G. Mbongwa and
Others
, an unreported decision
in Case No 3700/95 in the High Court of South Africa, Natal Provincial Division,
delivered on 29 March 1996,
Thirion J said the following :
To my mind it is clear that in the definition of labour tenant paragraphs
(a), (b) and (c) should be read conjunctively. That
much I think becomes clear
from a reading of the recital of the objects of the Act. There is also a
recital of the history of discriminatory
laws and practices which are said to
have led to the systematic breach of human rights and the denial of access to
land. It is clear
that the Act sets about to deal with an historical situation
- a situation which has been of long standing in this province, where
farmers
used to permit labourers to reside on their farms and graze cattle and plant
crops on a piece of land set aside for that
purpose - all this in return for
their providing
labour
for the farmer. I have come to a conclusion
therefore that the definition of labour tenant embraces all three paragraphs
(a), (b)
and (c).
In
Mahlangu v de Jager
,
supra
, a full bench decision,
Gildenhuys J delivering the judgment, rejected the argument that only paragraph
(a) needs to be complied
with. He stated (at 242 B) that if that were the case,
it is difficult to understand why paragraphs (b) and (c) were included in
the
definition.
In
Zulu and Others v Van Rensburg and Others
,
supra
, Dodson J firmly rejected the disjunctive approach and said the
following at 1253 H - 1254 E :
This Court held in the matter of
Mahlangu v de Jager
that the definition
requires that, in order to qualify as a labour tenant, there must be compliance
cumulatively with paragraphs
(a), (b) and (c) of the definition. It is indeed
so that the word
and
can in certain circumstances be read disjunctively
..... If regard is had to the context of the word
and
at the end of
paragraph (b) of the definition, it is plain that the word was intended to be
used in its usual conjunctive or cumulative
sense. To hold otherwise would give
rise to absurd results. For example, an ordinary tenant could show that he or
she resided on
a farm and did not qualify as a farmworker. This would, on a
disjunctive interpretation, qualify all ordinary lessees of farmland
who reside
on the farm as labour tenants. Moreover the implications of sec 6 of the Act
would be that they would also have an option
to purchase the farmland. Plainly
this was never intended by the Legislature. The Act is intended to protect a
very particular
class of rural tenant and in isolating that class of tenant
paragraphs (b) and (c) must come into
play.
In the court
a quo
in
Salimba’s case, Hurt J in a well-reasoned judgment held that paragraphs
(a), (b) and (c) of the definition of labour tenant
should be read
conjunctively. He stated the following :
The interpretation arrived at in the
Tselentis
case postulates that a
person who satisfies requirements (a) and (c) will fall within the definition of
a ‘labour tenant’.
The result would be that any person, other than
a farm worker, as defined, who has the right to reside on a farm and whose
grandparent
satisfied the requirements in paragraph (c) would fall within the
ambit of the definition. For reasons which I will state later,
I consider that
the words ‘a farm’ in paragraph (c) must be given a restrictive
interpretation, but even if this is not
done the consequences of an
interpretation which requires only elements (a) and (c) to be met for a person
to qualify as a ‘labour
tenant’ provide a broad spectrum of
absurdity. It would result in people who do not fall within what the preamble
to the Act
refers to as ‘the present institution of labour tenancy in
South Africa’ being given the statutory protection and benefits
conferred
by the Act upon ‘labour tenants’. In deciding whether such a result
is absurd, one does not look only at the
position of the ‘labour
tenant’ but also at the position of the ‘owner’ who is,
obviously, the ‘other
party’ affected by the provisions of the Act.
The Act stated the legislator’s general intention fairly clearly in the
preamble. I do not think that it can, by the furthest stretch of imagination,
be said that the Act was intended to benefit a class
of people who do not fall
within the ambit of element (b) of the definition but whose grandparents were
‘labour tenants’
within the meaning of that term as used before the
advent of the Act. It follows that I am of the view that the so-called
disjunctive
interpretation is not in accordance with the intention of the
legislator and I consider that a person cannot be treated as a ‘labour
tenant’ unless he satisfies all three elements of the definition and is
not a ‘farmworker’ as defined.
The learned Judge dealt with the conflicting decisions in
Klopper
and
Others v Mkhize and Others
,
supra
and
Tselentis
Mining (Pty) Limited and Another v
Mdlalose and Others
,
supra
, and came to the conclusion that they
were based on a wrong interpretation of the definition of labour tenant.
In
the judgment of the court
a quo
in the Van Rensburg appeal, reported
as
Ngcobo and Another v Van Rensburg and Others
to which I have
previously referred, Dodson J, in a particularly lucid and helpful judgment,
pointed out, as mentioned above, that
what the Appellants contend for was not a
simple disjunctive reading (see paragraph [7] above). But Dodson J also dealt
with the
anomalies that would result from a conjunctive reading of paragraphs
(a), (b) and (c), to which I have already referred. Apart from
technical
responses to the anomaly relied on by Meskin J in the
Tselentis
-case (as to which, see 543 b - g of the
Van
Rensburg
judgment), Dodson J, conceding the harshness in some cases
where the conjunctive approach is applied, stated (at 543 g - h) that
the
introduction of legislation which confers new rights will always result in
unfortunate cases where qualifying criteria are not
met by certain persons
because of events which preceded the coming into force of the new legislation.
Such cases, the learned judge
remarked (at 543 h), cannot afford a basis for the
adoption of an interpretation which amounts to a modification of the
legislation.
He also stated that the anomaly contemplated by Meskin J (if it is
one - see paragraph [7] above) is outweighed by the anomalies
which arise on the
disjunctive interpretation. Dodson J was also of the opinion that the
conjunctive approach cannot be said to
give rise to anything as extreme as
absurdity
. It requires no modification of the definition, nor even the
adoption of any secondary or unusual meaning for any of the words in
the
definition (at 542 e - f).
However Dodson J (at 544 paragraphs [20] and [21] ) proceeded to point out that
absurd
results do flow from a disjunctive interpretation of the
definition.
What are the anomalies which arise on the disjunctive interpretation? Take the
example of a person who, on 2 June 1995, was and
continues to be, a farm worker
who provides her services personally and is paid predominantly by way of a cash
salary but in part
by way of rights to live on the farm and graze a few cows or
keep a vegetable patch. Such a person is clearly not intended to qualify
(no
matter what her ancestry may be) because farm workers are expressly excluded
from the definition of a labour tenant. However
the farm worker has children
who are allowed to live with her and have done so since at least 2 June 1995.
Those children would
then qualify as labour tenants in their own right because
they comply with paragraphs (a) and (c). Those children would then have
the
significant rights afforded labour tenants under the Act, including the right to
have family members living with them. Family
members would by definition
include their farm worker parent. That parent would then be able to derive most
of the benefits which
she was excluded from by reason of her farm worker status
because she is a family member of her children. If she were dismissed,
eviction
from the farm could be avoided by ensuring as guardian of the children that they
exercised their right under section 16
to acquire the portion of the farm where
they lived. This is an absurd situation which could never have been
intended.
The situation is all the more absurd if one considers that the farm referred to
in paragraph (c) of the definition need not be the
same as the farm referred to
in paragraph (a). Thus in the example referred to above, the children would, on
the disjunctive interpretation,
still have the rights of a labour tenant in
relation to the farm where they resided even if their parent is or was employed
as a
farm worker on similar terms by a different farmer on a different farm.
There are other anomalies which are conceivable on the disjunctive
interpretation, but in my view those already mentioned are sufficient to
illustrate the point.
Finally, Dodson J rejected the solution offered by Meskin J in the
Tselentis
- case (and by Professor Pienaar in the article
mentioned above),
viz
that in satisfaction of paragraph (b) of the
definition the labour can be provided by the tenant’s parent or
grandparent.
He held that sec 3 (1) cannot be used to redefine paragraphs (a),
(b) and (c) of the definition (at 546, paragraph [24] ), and
held that the
suggested interpretation of Meskin J could not possibly have been intended as an
acceptable interpretation of the Act
(at 546, paragraph [25]
).
In
Van Niekerk v Nqonwange
, an unreported
judgment delivered on 19 August 1997 in the Transvaal High Court under case
number 24921/96 (mentioned by Dodson J
in the
Van Rensburg
- case
at 547 footnote 29), Du Plessis J differed from the judgment of Galgut J in
Klopper and Others v Mkhize and Others
, and held that paragraph
(c) cannot be read on its own (see the quotation from this case by Dodson J in
Van Rensburg
at 547, paragraph [26] ).
Finally, the
Respondents’ interpretation was held to be the correct one in
Mosehla v Sancor cc
1999 (1) SA 614
(T) in a decision of the full
bench of the Transvaal Provincial Division (Van Dijkhorst and De Villiers JJ),
Van Dijkhorst J delivering
the judgment. The learned judge firmly favoured the
conjunctive interpretation, rejected the views expressed in
Klopper
and
Tselentis Mining
, and agreed with the
decisions of the LCC in
Mahlangu v De Jager
and
Zulu and
Others v Van Rensburg and Others
. As regards the judgments of Galgut J
and Meskin J, he remarked (at 620 H - 621 A) , after referring to the object of
the
Act :
Whereas it may be perceived as unfair that a family which has for decades
occupied premises on a farm be evicted, there could be
no injustice should a
worker who on 31 May 1995 joined the corps of employees on the basis that his
remuneration would be predominantly
his use of land, be discharged for thieving
one month later and evicted from the farm. The Legislature could not have
intended to
grant such employees security of tenure. Yet this is the
consequence of the two Natal judgments. This result is
absurd.
[11]
In my view, the conjunctive or cumulative interpretation of
paragraphs (a),
(b) and (c) of the definition now under
discussion is clearly the correct one.
It is unfortunately true that the
words “and” and “or” are sometimes inaccurately used by
the legislature,
and there are many cases in which one of them has been held to
be the equivalent of the other (see the remarks of Innes CJ in
Barlin v
Licensing Court for the Cape
1924 A D at 478). Although much depends on
the context and the subject matter (
Barlin
at 478), it seems to me
that there must be compelling reasons why the words used by the legislature
should be replaced;
in casu
why “and” should be read to mean
“or”, or
vice versa
. The words should be given their
ordinary meaning “ ... unless the context shows or furnishes
very
strong grounds
for presuming that the legislature really intended”
that the word not used is the correct one (see Wessels J in
Gorman v
Knight
Central GM Co Ltd
1911 TPD 597
at 610; my
underlining). Such grounds will include that if we give “and” or
“or” their natural meaning,
the interpretation of the section under
discussion will be
unreasonable
,
inconsistent
or
unjust
(see
Gorman
at 611) or that the result will be
absurd
(
Greyling and Erasmus (Pty) Ltd v Johannesburg Local Road Transportation
Board and Others
,
1982 (4) SA 427
(A) at 444 C-D) or, I would add,
unconstitutional
or
contrary to the spirit, purport and objects of the
Bill of Rights (sec 39 (2) of the 1996 Constitution
.) In this respect I
draw attention to what was said by Mahomed AJ in
S v Acheson
,
1991
(2) SA 805
(NmHC) at 813 A - B :
The constitution of a nation is not simply a statute which mechanically defines
the structures of government and the relations between
the government and the
governed. It is a ‘mirror reflecting the national soul’, the
identification of the ideals and
aspirations of a nation; the articulation of
the values bonding its people and disciplining its government. The spirit and
tenor
of the constitution must therefore preside and permeate the processes of
judicial interpretation and judicial
discretion.
In my view, none of these grounds
is applicable when paragraphs (a), (b) and (c) of the definition are given their
ordinary grammatical
meaning, in particular when “and” at the end of
paragraph (b) is read to mean “and”. As pointed out above,
there
are possible anomalies created by such interpretation (see especially the
examples developed by Meskin J in the
Tselentis
-case). Some or all of
these postulated anomalies may even result in unjust consequences. On the other
hand, there are also anomalies
and unjust and even absurd consequences flowing
from the disjunctive approach, as pointed out by Dodson J in
Zulu and
Others v Van Rensburg and Others
,
supra
, at 1253 H - 1254 E;
again by Dodson J in
Ngcobo and Another v Van Rensburg and Others
,
supra
, at 544 paragraphs [20] and [21] and Van Dijkhorst J in
Mosehla v Sancor cc
,
supra
, at 620 H - 621 A. I have
hereinbefore fully quoted the remarks of these judges in the relevant cases and
do not intend to dwell
upon them in further detail. Suffice it to say that I
agree with the judgments that adopted the so-called conjunctive approach,
and
reject the judgments in
Klopper and Others v Mkhize and Others
,
supra
, and
Tselentis Mining (Pty) Ltd and Another v Mdlalose and
Others
,
supra
, as regards this aspect of the
case.
[12]
The result of this finding is that the appeal of the
second
and
fourth
Appellants in the Salimba appeal must fail as
the Appellants have not brought themselves within the ambit of paragraph (c) of
the
definition. Likewise the appeal of the Appellant in the Van Rensburg appeal
fails as the Appellant has failed to prove compliance
with paragraph (b) of the
definition.
[13]
I have not come to this conclusion without a sense of
sympathy for these Appellants. They had to come to this Court at great expense
simply because of the bad and slovenly draftsmanship of the Act. They may have
believed their cause just and their case to have merit.
They and many other
occupiers of land may be severely prejudiced by the anomalies and absurdities
pointed out in the cases to which
I have referred. The legislature may wish to
address these anomalies.
It is important to keep in mind that the Act was
intended to reform the legal relationship that had prevailed between the owner
of
a farm and labour tenants since the apartheid era. Under that regime, the
‘rights’ of those who served an owner in return
for the privilege of
working and grazing pieces of land for their own benefit were as illusory as
they were precarious. These labour
tenants occupied the land at the whim of the
landowner, who could eject them subject only to compliance with the common-law
requirement
of reasonable notice. In our country, land ownership was
effectively beyond the reach of the majority of black people - people
who were,
because of the apartheid system and its concomitant discriminatory education
system, kept in ignorance even of their rudimentary
rights. Rural people had
little choice but to become either farmworkers, with no prospect of building up
even a minuscule estate,
or tenant labourers, with no legal protection of their
tenancy. The last group was thus reduced to feudal
dependency :
they had either to comply with the orders of the land owner, even if harsh and
unjust, or face the prospect of nomadic
trekking and seeking, in an
unsympathetic environment, new land to occupy.
One of the main objects of
the Act is to give labour tenants greater security. The preamble of the Act
reads as follows :
To provide for security of tenure of labour tenants and those persons occupying
or using land as a result of their association with
labour tenants; to provide
for the acquisition of land and rights in land by labour tenants; and to provide
for matters connected
therewith.
WHEREAS the present institution of labour tenancy in South Africa is the result
of racially discriminatory laws and practices which
have led to the systematic
breach of human rights and denial of access to
land;
WHEREAS it is desirable to ensure the adequate protection of labour tenants, who
are persons who were disadvantaged by unfair discrimination,
in order to promote
their full and equal enjoyment of human rights and
freedoms;
WHEREAS it is desirable to institute measures to assist labour tenants to obtain
security of tenure and ownership of land;
AND WHEREAS it is desirable to ensure that labour tenants are not further
prejudiced.
Meticulous and unambiguous
craftsmanship when it comes to spelling out the rights and duties of those to
whom the legislation is
applicable is the first principle of legislative
drafting. A draftsperson should give careful consideration to the policy it is
intended to enshrine in legislation and then formulate appropriate enactments,
not in vague or polyphonous terms, but in exact terms,
having in mind the
consequences of what is intended to be said. I am not convinced that the
draftsperson has properly thought through
all the situations that can and will
arise as a consequence of the wording of the definition of “labour
tenant” in the
Act. The sheer number of cases that have come before the
Courts since the Act was put on the statute book as recently as 1996 speaks
for
itself and must be a cause for grave concern.
[14]
This brings me to the appeals of the
first
and
third
Appellants in the
Salimba appeal. As indicated above, two issues
have to be decided : firstly, whether the owner (or his successors) of the farm
on
which the Appellant’s parent or grandparent lived and provided tenant
labour must be the same as the owner of the farm on
which the Appellant was now
living and providing tenant labour; and, secondly, on whom the
onus
rests to prove that the alleged labour tenant was not a farmworker. On both
issues Hurt J found against the Appellants and found
that they failed to acquit
themselves thereof.
It is clear that in order to succeed in their appeal
the said Appellants have to be successful on both issues.
[15]
Must the owner (or his successors) of the farm on which the
Appellant’s
parent or grandparent lived and provided tenant
labour be the same as the owner of the farm on which the Appellant was now
living
and providing tenant labour?
On the evidence, it is clear that the
first Appellant’s parents were labour tenants on the farm Kamby. He lived
there with
his parents, but when he married he became a labour tenant on the
farm now under discussion, viz. Rose Cottage. There is no evidence
that any of
the owners of Rose Cottage owned Kamby. His parents, therefore, were labour
tenants on
a
farm owned by an owner other than the owner of,
the
farm from which the first Appellant’s eviction is being sought. A similar
problem arose in respect of the third Appellant’s
case.
[16]
On
behalf of said Appellants it was contended that paragraph (c) is cast in wide
terms, and only requires that the parents or grandparents
of the present
defendant were or had been tenant labourers on
a
farm, owned by an
owner irrespective of whether such owner (or his successors) is also the owner
of
the
farm on which the present occupier is a labour tenant.
The
contention was claimed to be supported by the consideration that whereas
paragraph (b) specifically refers to the farm “in
paragraph (a)”,
requiring an applicant applying in terms of paragraph (b) to satisfy
requirements of paragraph (a), paragraph
(c) refers only to “a”
farm. Had the legislature intended the farm in paragraph (c) to be associated
with that in paragraph
(a) it would have said so as it did in paragraph
(b).
It was also submitted that Dodson J in the LCC in the case of
Zulu and Others v van Rensburg
, supra
, at page 1257 F correctly
stated the position as follows :
One of the objects of the act is to provide labour tenants with certain
protection against eviction. In the past the common law left
labour tenants
exposed to eviction at the whim of the owner of the land subject only to
compliance with the common law requirement
of reasonable notice. Such a basis
for eviction is now excluded by the act if a person can show that he or she
qualifies as a labour
tenant under the legislation. If we are to adopt Mr
Roberts’ interpretation, a person whose predecessors had over the
generations
consistently been labour tenants (as that term
was understood
before the statutory definition was enacted), but had been forced by evictions
to move from farm to farm, would be
excluded, whilst a person whose father and
who himself or herself had been fortunate enough to avoid eviction would
qualify. What
then in effect becomes a disqualifying criterion is the fact of
past evictions, the very problem which the act sought to deal with.
A statute
is presumed not to give rise to harsh or discriminatory
result.
It was finally submitted that there is
no justification in narrowing the interpretation of the definition to require
the existence
of a historical relationship between the labour tenant’s
family and a particular owner and his or her successor in
title.
[17]
The Respondent took the opposite approach :
If
paragraph (c) would be satisfied if the parent or grandparent of the labour
tenant resided on
any
other farm (“a farm”)where they had the
use of cropping or grazing land, then the words “or another farm of the
owner” in the
paragraph would be superfluous, because ownership of the
farm in question would be irrelevant. This is contrary to the accepted canon
of
interpretation that every word or phrase must be given a meaning.
In order
for paragraph (c) to be satisfied, it was submitted, the parents or grandparents
of the person claiming to be a labour tenant
residing on a particular farm must
also have resided on that particular farm and had the use of cropping or grazing
land on that
same farm or “another farm of the owner” of such farm
i.e. there must be common ownership of the farm on which the labour
tenant now
resides and the farm where his parent or grandparent resided (coupled with the
fact that in consideration of such right
a parent or grandparent had to provide
labour to the owner or lessee of such or such other farm). The reference to
“such farm
or another farm of the owner” clearly could only refer
to “such farm” of the owner or “another farm of the
owner”.
[18]
The court
a quo
upheld the
Respondent’s submission on this aspect, Hurt J holding that the words
“a farm” in paragraph (c) were
not intended by the legislature to
bear the wide meaning of “ ... any farm, wheresoever situated and owned
by whomsoever.”
The learned Judge stated :
Such a wide interpretation would mean that one of requirements for qualification
as a ‘labour tenant’ is, simply, that
the claimant must have a
grandparent or a parent who was once a labour tenant under the old system. It
must be borne in mind that
the Act is intended to entrench rights of occupation
of property and confer rights of acquisition of property to protect people who
had, for practical purposes, been bound to that property or its owner by the
bonds of the feudal tenant system over an appreciable
period. It is clear that,
in enacting the requirement in paragraph (c) of the definition (referred to in
the
Ngcobo
-case as ‘a second generational
requirement’), the legislator was narrowing down the class of people who
would qualify
for benefits under the Act to those whose history of ‘labour
tenancy’ stretched back more than a generation. As I have
already
indicated, I think that it is fundamental to a proper construction of the
definition to bear in mind that the Statute was
intended to regulate the
dealings as between ‘labour tenant and ‘owner’. Requirement
(c) refers in general terms
to ‘a farm’ but it also refers to
‘the owner’. It is not without significance that the Statute
defines ‘owner’
with specific reference to the occurrence of that
word in the definition of ‘labour tenant’. The definition of
‘owner’
is as follows :
-
‘Owner’ means the owner as defined in
section 102 of the
Deeds Registries Act 1937 (Act 47 of 1937), of a farm, and where it occurs in
the definition of ‘labour
tenant’ includes his or her successors
and predecessors in title.
It seems to me that the existence of a historical relationship between
the labour tenant’s family and ‘the owner’
(who will include
all of the present owner’s predecessors in title) was what was
contemplated in requirement (c) and that this
paragraph should properly be so
interpreted. Thus, in those cases where families established themselves on a
portion of a farm and
that farm was then subdivided and sold with the result
that a grandchild was in occupation of a portion of one subdivision and the
grandparent in occupation of a portion of another, requirement (c) would be
satisfied, because the original owner of the undivided
farm would be included
within the term ‘owner’ as used in requirement (c). Conversely,
this interpretation avoids the
anomaly which would result from the wide
interpretation of ‘a farm’ without reference to the identity of the
owner where,
for instance, a person who has satisfied (a) and (b)
for a
matter of months on the farm of X would be able to claim the benefits of the Act
as against X on the ground that, many years
ago, his grandparent had been a
labour tenant (in the old sense) on a farm belonging to
Y.
[19]
Hurt J, however, quite fairly also highlighted the other side of the
argument :
There is a significant change in language between paragraph (b) and paragraph
(c) of the definition of ‘labour tenant’.
When paragraph (b)
speaks of the farm on which the ‘labour tenant’ has rights of use,
it speaks of ‘the farm’,
referred to in paragraph (a). Paragraph
(c) contains no such explicit reference to the farm contemplated in paragraph
(a). A significant
change of language such as this does, of course, give a
clear indication that the legislator did not intend that the farm on which
the
parent or grandparent resided or resides should be the farm referred to in
paragraph (a) of the definition and there are clear
reasons why this should not
be so. In many instances in the old labour tenant system, when a farmer sold a
farm and moved to a new
one, the labour tenants on that farm moved with him.
Moreover, until the advent of statutory limitations on the subdivision of
agricultural
land, there were many instances where farms were subdivided and
subdivisions were sold while the labour tenants remained in occupation
and
continued to render services to the new owner of the subdivision on which they
were dwelling. Equally, as time passed and the
children of labour tenants grew
to maturity, the farmer might have required the children to take up residence
and render services
on a different farm to that on which the parents or
grandparents were residing. In such situations it would, in my view, be
inconsistent
with the purpose of the legislator to construe paragraph (c) in
such a manner as to require the parent or grandparent to reside,
or to have
resided, on the same farm as that in respect of which the progeny claim
rights.
[20]
I respectfully disagree with the decision of Hurt J in the court
a quo
that the
rights under discussion should have been
exercised by the present tenant and his or her parent or grandparent on a farm
or farms belonging
to the same owner or his or her predecessors or
successors.
I am of the view that the change from “
the
”
farm to “
a
” farm in the definition cannot be ignored,
i.e.
that “
a
” cannot simply be replaced by
“
the
”. The same reasoning which I have applied earlier in
this judgment in respect of “and” and “or” would
seem to
me to be applicable.
I am not convinced that Hurt J in the court
a
quo
was correct in saying that the Act was intended to protect only those
who had been bound to a property of the same owner (or his
predecessors or
successors) by the bonds of a feudal labour tenant system over an appreciable
period, nor in saying that it was intended
to narrow down the class of persons
who would qualify for benefits under the Act.
I believe on the contrary,
that the view taken by Dodson J in
Zulu and Others v Van Rensburg
,
supra
, and the contentions there advanced by him (see the quotation in
paragraph [10] hereinbefore) are correct (see also on this point
Meskin J in the
Tselentis
- case at 419 J - 420 B for the correct perspective).
The object of the Act was to give a wide and equitable protection to labour
tenants without ignoring the rights of the owners of farms. This balance can be
achieved more justly and equitably by adhering to
the text of paragraph (c) of
the definition, rather than by substituting “the” for
“a” farm.
[21]
In the result, the first and third Appellants in the
Salimba
Appeal are
successful on this aspect of the
case.
[22]
It must still be decided, finally, whether these two Appellants
were
“farmworkers” as defined in the Act and,
therefore, disqualified from being “labour tenants”.
The
definition of “labour tenant” in the Act (see paragraph [2]
hereinbefore) makes it clear that a farmworker cannot
be a labour tenant at the
same time. A “farmworker” is defined as a person employed on a farm
who in terms of his contract
of employment is paid in cash or in some other form
of remuneration and not predominantly in the right to occupy and use land, and
who is obliged to perform his or her services personally (see paragraph [2]
hereinbefore).
On behalf of the Respondent in the
Salimba
Appeal it was argued, on the facts, that the first and third Appellants were
farmworkers; the Appellants denied that they fell within
the terms of the
definition.
Two questions arose : firstly, what stage and what duration in a
person’s occupancy of land must be considered to determine
whether he is a
“farmworker” or a “labour tenant”? And, secondly who
bears the
onus
of proving whether the status in question is that of
farmworker or labour tenant?
[23]
As regards the relevant time or period that must determine whether a
tenant
is a labour tenant as defined in the Act, and thus not a
farmworker, several options were debated in this Court. (It should be noted
that the amendments to sections 2 (5) and (6) of the Act in 1997 are not
applicable to the present appeals.)
On behalf of the Appellants it was
initially argued that the relevant time is the moment when the juristic act of
eviction is initiated
by the owner of the land. It is at this moment that one
has to establish whether the Appellants are or are not protected by the
Act. It
was submitted by the Appellants that the definition of a
“farmworker” is phrased in the present tense, and
that the
legislature’s intention was that the question whether a person is a farm
worker must be investigated with regard to
his status at the time when the
matter comes before Court as a result of an attempted eviction. The LCC (so it
was argued) correctly
held the following in
Zulu & Others vs Van
Rensburg
,
supra
, at page 1258 G :
It should also be noted that the definition is framed in the present tense (a
person who is), unlike certain aspects of the definition
of labour tenant. This
would seem to suggest that the test must be applied in relation to the factual
situation at the time of the
events immediately giving rise to the dispute. On
this basis, if respondents’ contention is correct that there are at
present
no agreements regulating the applicants’ occupation of the farm,
they would also not qualify as farm workers.
It
was common cause that the Appellants’ contracts of employment were
terminated during November 1994 (except that of the first
Appellant
who
retired during about 1991), long before the matter came before Court.
The Appellants were thus not farmworkers. As regards this
aspect, therefore,
it was argued on behalf of the Appellants that the use of the present tense in
the definition of “farmworker”
was significant. Whereas the
question of whether a person complies with the requirements of the definition of
a“labour tenant”
is answered with reference to the history of his
residence on a property, the question of whether he is a
“farmworker”
must be investigated with regard to his status at the
time when the matter comes before the court.
[24]
To conclude as the Appellants do that the relevant time is the
present (i.e.
when the present litigation was initiated) can have
unexpected, even absurd results.
Consider, for example, the case where a
person has for his or her working life provided labour to a landowner, and has
enjoyed rights
of residence and of cropping and grazing, and yet has been
remunerated predominantly in cash. In formal terms he or she would be
a
“farmworker”. Should such a person now retire and, as happens
frequently, be allowed by the landowner to remain on
the farm with the
continuing right to cropping and grazing, and in exchange provide labour in the
form of “light” work
such as housekeeping, herding, helping with
dipping and dosing cattle, supervising younger employees and caretaking, he or
she would
now formally no longer be a “farmworker”. If the
definition of “farmworker” is taken in the present tense
only and
refers to the moment of the attempted termination of his occupancy, such a
tenant as that being described could, if threatened
with eviction, conceivably
claim the right to remain on the land as a “labour tenant”. This
would be consistent with
paragraph (b), and would seem just and equitable. On
the other hand, if one were to extend the definition of “farmworker”
into the past (
i.e.
to paragraphs (b) and (c)), the tenant, being then a
“farmworker”, would not qualify for occupancy as a “labour
tenant” and would be subject to eviction. So whimsical a result is
patently unjust and could not have been contemplated by
the legislature, the
more so if the preamble of the Act is kept in mind.
Or, to take another
example : The person in question resides on a farm and has the right to use
cropping or grazing land on the farm,
but is also paid a salary in cash. In
good years, his or her rights to use cropping or grazing are more valuable than
the salary
he or she receives, but in bad years of drought, the converse is
true. One can thus say that at some times in the past he or she
was a
farmworker, if the definition is to be applied to a past state of affairs. To
contend that a person who complies with the
requirements of paragraphs (a), (b),
and (c), but who was in the past intermittently and through no choice of his or
hers a “farmworker”,
is not protected by the Act, is not
acceptable.
Or take the case of one who has been a labour tenant for many
years. Shortly
before his or her eviction the owner of the land raises the
remuneration to such an extent that the tenant is now clearly a farmworker.
Is
it fair to accept that he or she cannot legally resist eviction?
For these
reasons, the present time cannot be the relevant time for establishing whether
the occupier was a farmworker or not.
[25]
In some cases it was held that the relevant moment is 2 June 1995
(see
Meskin J in
Tselentis
at 417 H-J; Hurt J in
Salimba
a quo;
Van
Dijkhorst
J
in
Mosehla v Sancor cc
at 621 A-F). In these cases, reliance was placed
on section 12 (1) of the Act. Section 12 of the Act, however, deals with the
reinstatement
of labour tenants who, at that date, would have met the
requirements of this Act had it been in force, and who, between that date
and
22 March 1996, the date of the commencement of the Act, had vacated the farm or
had been for any reason by any process evicted.
Read in this context, the
provisions of section 12 are not applicable to cases, such as the present, where
it is not alleged that
the occupiers have, between 2 June 1995 and 22 March
1996, vacated the land or been evicted therefrom. The date 2 June 1995 is,
therefore, in the present context inappropriate as a time for establishing
whether the present occupiers are labour tenants or farmworkers
for purposes of
the Act. It obviously could never have been the intention of the Legislature
to exclude from the protection of
the Act anyone who has, since 2 June 1995,
become a labour tenant as defined in the Act.
[26]
In my view, the only way to make sense of the confusion reigning in
this
area is to conclude that the proviso relating to
“farmworker” cannot, for the reasons advanced above, refer only to
the
present time. It must refer to the whole period in respect of which the
present occupier, whose occupation is under attack, has
been occupying the land
in question. The proviso relating to farmworker applies not only to paragraph
(a), but also to (b), which
also refers to the past.
[27]
If one approaches the definition in this holistic or continuous
sense, it
follows that what has to be established is the
predominant quality of occupation over the whole period during which the present
occupier
has been complying with paragraphs (a) and (b). It may be, as
illustrated above, that in respect of some periods, the remuneration
paid to the
occupier in cash or some other form of remuneration (see paragraph (a) of the
definition of farmworker) may have exceeded
the value of the right to occupy and
use the land; and
vice versa
. What we have to find is the overall sense
and value of the occupation. The present time is but one moment in this
continuum.
[28]
The final question then takes this form : who bears the
onus
to prove or
disprove the overall sense and value of the
occupation?
Interesting as this question may be, it is not necessary
to decide the issue in this appeal. For, assuming that the
onus
is on
the Appellants, they have succeeded on a balance of probabilities in proving
that they were not farmworkers at the relevant
time.
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.
[29]
There is a further basis on the evidence for finding that the
Appellants were
not farm workers.
During the
cross-examination of Craig Stone, the sole member of Salimba, counsel for the
Appellants asked him whether it was the
practise throughout the area that people
who live on farms must work there. He agreed and explained that if the tenant
could not
perform the work himself,
... there must be either a son or if all the sons are living on the farm
than they must come and work there or all the daughters
are living on a farm
they must come and work there.
It
is clear from this evidence that the appellants were not obliged to perform
their services personally. It follows that the contract
between Salimba and the
Appellants did not contain a provision such as is referred to in paragraph (b)
of the definition of “farmworker”
with the result that the
Appellants were not farmworkers as defined.
[30]
In the result, I find that the first and third Appellants in the
Salimba appeal
have proved that they were “labour
tenants” and are entitled to the protection of the Act.
[31]
The following orders are made
:
A In the appeal of
Zwelake Ngcobo and Others v Salimba cc
(case
no 50/98) :
(i) The appeal of the
second
and
fourth
Appellants is dismissed
with
costs.
(ii) The appeal
of the first and third Appellants succeeds with costs including the costs
attendant upon the employment of
two counsel and in their case the judgment of
the court
a quo
is set aside and replaced by the following order :
“Plaintiff’s claim is dismissed with costs”.
B In the appeal of
Fikile Ngcobo v Van Rensburg
(case no 631/97)
the following order is made :
The appeal is
dismissed with costs.
P.J.J. OLIVIER JA
CONCURRING
:
MAHOMED CJ
GROSSKOPF
JA
FARLAM AJA
MADLANGA
AJA