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[2016] ZACC 55
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Snyders and Others v De Jager and Others (Appeal) (CCT186/15) [2016] ZACC 55; 2017 (5) BCLR 614 (CC); 2017 (3) SA 545 (CC) (21 December 2016)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 186/15
In the matter
between:
KAREL
SNYDERS
First
Applicant
SOFIA
SNYDERS
Second
Applicant
MINOR
CHILDREN
Third
Applicant
and
LOUISA FREDERIKA
DE
JAGER
First
Respondent
WILLEM
BREDA
Second
Respondent
FAMILY MEMBERS OF
SECOND RESPONDENT
RESIDING WITH HIM
ON THE STASSEN FARM
Third
Respondent
ANY OTHER PERSON
RESIDING WITH
THE SECOND
RESPONDENT AND HIS FAMILY
ON THE STASSEN
FARM
Fourth
Respondent
Neutral citation:
Snyders and Others v de Jager and Others
[2016] ZACC 55
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J,
Mhlantla J, Nkabinde J, and Zondo J
Judgments:
Zondo J (majority)
Heard on:
2
February 2016
Decided on:
21 December 2016
Summary:
Extension of Security of Tenure Act, 1997
— eviction of
ESTA occupier — appeal of eviction order granted by the
Magistrate’s Court and confirmed by the
Land Claims Court —
section 19(3)
of ESTA — appeal lies to the Supreme Court of
Appeal — termination of employment but no termination of right
of residence
— no compliance with substantive and procedural
requirements of termination of right of residence — appeal
upheld with
costs — eviction order of lower court set aside —
eviction order granted against current occupant of property
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the Land Claims
Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Land Claims Court, the Supreme Court of Appeal
and the Magistrate’s Court for the district of Ladismith
are
set aside and that of the Magistrate’s Court is replaced with
the following:
“(a)
The application is dismissed with costs.”
4. Mr Willem Breda, his partner or common law wife and children are
ordered to vacate the dwelling or house which was occupied
by
Mr Karel Snyders and his family before 1 October 2015 within
14 calendar days from the date of this judgment.
5. Should Mr Willem Breda and his family still be in occupation of
the house or dwelling referred to in 4 above after the expiry
of the
period, the Sheriff is authorised and ordered to immediately evict
him and his family or anyone occupying the house through
him from the
dwelling or house previously occupied by Mr Karel Snyders and
his family on the farm owned by Mr F L
Stassen.
6. The orders in 4 and 5 do not authorise or order the eviction of
Mr Willem Breda and his family from the farm owned by
Mr F L Stassen and managed by Ms Louisa de Jager.
7. Ms Louisa de Jager must pay the costs of the application for leave
to appeal and the appeal in this Court, the Supreme Court
of Appeal
as well as the costs of the proceedings in the Land Claims Court.
JUDGMENT
ZONDO J (Mogoeng CJ,
Moseneke DCJ, Bosielo AJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J
and Nkabinde J
concurring):
[1]
Introduction
[1]
There will be two main issues for determination in the appeal
in this matter if we grant the applicant leave to appeal. The
first is whether an appeal lies to the Supreme Court of Appeal or the
Land Claims Court where a Magistrate’s Court has granted
an
eviction order under the Extension of Security of Tenure Act
[2]
(ESTA) and the Land Claims Court has confirmed that order in
automatic review proceedings under section 19(3) of ESTA.
[3]
The second is whether the eviction order against the applicants or
its confirmation by the Land Claims Court was correct.
There is
also a subsidiary issue of whether a certain Mr Willem Breda and his
family must be joined in these proceedings.
However, this
latter issue has been dealt with in a separate judgment that is being
handed down simultaneously with this one.
Pursuant to that
judgment, Mr Breda and his family have been joined in these
proceedings as second and further respondents.
The parties
[2]
The first applicant is Mr Karel Snyders. He is illiterate and
is only able to write his name. His mother tongue is
Afrikaans.
The second applicant is Mrs Sofia Snyders. The first
applicant is the second applicant’s husband. The first
respondent,
Ms Louisa Frederika de Jager, is an adult woman who is
employed as the manager of a farm owned by Mr FJN Stassen in Voorbaat
in
the Ladismith Magisterial district in the Western Cape Province.
For convenience I shall call the farm the “Stassen
Farm”.
The second respondent is Mr Willem Breda who is employed on the
Stassen Farm and occupies a house on that farm
that was previously
occupied by Mr Snyders and his family.
Background
[3]
Mr Snyders was born in 1962 and has spent his entire working
life in the Voorbaat area in the Ladismith district in the Western
Cape. He married the second applicant while he was working on
the “Matroos and Jan Crawford” farms in Voorbaat.
In 1992 he was employed on the Stassen Farm. At that stage the
farm was owned by a Mr de Klerk. He began working on
the farm
about a week before the birth of his son, Karel.
[4]
Mr Snyders says that they - by which he must be referring to
himself and his wife – “were granted the right to occupy
a labourer’s house on the farm” by Mr de Klerk.
He says that about two years later Mr de Klerk sold
the farm to
Mr Stassen Snr. This would have been about 1994. He
continues:
“
My contract of employment
was transferred from Mr de Klerk to Mr Stassen Senior on exactly the
same terms and conditions [and] my
employment on the farm continued
unbroken and I remained in residence with my family in a labourer’s
house.”
[5]
Mr Snyders says that he had a very “happy and harmonious
working relationship with Mr Stassen Snr and with his wife, the
current
owner’s mother. He says that they were like
parents to him. In 2000 Mr Stassen Snr passed away.
Mr Stassen
Jnr, the current owner of the farm and son to Mr
Stassen Snr, became the owner of the farm. After the death of
her husband,
Mrs Stassen left the farm and went to live with her
daughter in Pretoria. Mr Snyders says that his working
relationship with
Mr Stassen Jnr was also good. He says that,
as with Mr de Klerk and Mr Stassen Snr, there would be
small disagreements
from time to time but there were no major
problems.
[6]
In 2007 Mr Stassen Jnr appointed Ms de Jager as the farm
manager. Mr Snyders says that he found Ms de Jager
“difficult
to get along with, as did others who worked for her
on her own land and at the Stassen farm”. He continued
about her:
“
She seemed not to approve
of the caring and harmonious relationship between Mr Stassen and
his workers. Mr Stassen would
look after his workers by
assisting with advances on their wages when they required funds owing
to some or other emergencies, and
[Ms de Jager] would make it clear
to me that she did not approve of this.”
Mr Snyders goes on:
“
[Ms de Jager] did not
seem to like or trust farmworkers at all, and would repeatedly accuse
us, without justification, of being
intoxicated at work. Whilst
the working atmosphere on the Stassen farm had always been a happy
one, she appeared to assume
that cheerful workers were intoxicated
workers, and she began issuing numerous written warnings to workers
on the farm, threatening
the security of our employment.”
He went on:
“
Within less than a year
of [Ms de Jager’s] appointment, after 16 years of working on
the farm, I was dismissed at her instance
in April 2008. I was
highly aggrieved and attempted to have the fairness of my dismissal
adjudicated upon by the Commission
for Conciliation Mediation and
Arbitration. However, that body refused my application for
condonation when the dispute was
referred to it on 1 July 2009, and
it found that too much time had passed since my dismissal.”
[7]
Mr Snyders was dismissed after a disciplinary inquiry which,
according to Ms de Jager, he did not attend. It is,
however,
not clear from the record what allegations he faced in the
disciplinary inquiry and what misconduct he was found guilty of.
According to Ms de Jager, Mr Snyders was informed of his dismissal by
way of a letter dated 18 April 2008. The letter was
to the
effect that his contract of employment was terminated and it informed
him that he was required to vacate the house he was
occupying within
one calendar month. Mr Snyders’ version is that Ms de
Jager gave him a certain letter on 18 April
2008 the contents of
which she did not explain to him other than to tell him that he was
dismissed. Mr Snyders says that
Ms de Jager never told him that
his right of residence was also being terminated. Since Mr
Snyders is illiterate, he obviously
would not have been able to read
the letter to understand its contents. One expects that Ms de
Jager must have known that
Mr Snyders could not read.
Eviction
proceedings: Magistrate’s Court
[8]
For a year after Mr Snyders had been dismissed, Ms de Jager
did not take any steps to get Mr Snyders and his family to vacate the
house on the farm. It was only at about the end of March 2009
that she instituted an application in the Magistrate’s
Court,
Ladismith, for their eviction. Mr and Mrs Snyders opposed the
application and deposed to affidavits in support of
their opposition.
[9]
Ms de Jager’s case against the applicants as set out in
her affidavit was that Mr Snyders’ right of residence on
the farm was dependent upon his continued employment and that, since
he had been dismissed, he no longer had a right to reside
on the
farm. She did not say in the affidavit what it was that Mr
Snyders had done that led to his dismissal. Ms de
Jager also
said that she was in need of the house then occupied by Mr Snyders
and his family as she had a new employee that she
wanted to
accommodate in that house.
[10]
Ms de Jager also said that the applicants could get
alternative accommodation in Zoar in the district of Ladismith.
Mr Snyders
denied this. In any event it appears that Zoar was
too far from Voorbaat because it is about 20 km away. She said
that
she had notified the Department of Land Affairs, by registered
post, of her intention to have Mr Snyders evicted. Ms de Jager
said that she wanted the Court to give the applicants 14 days after
the issuing of the eviction order to vacate the premises.
She
also sought that, if the applicants failed to vacate the house within
the 14 days, the Court should authorise the Messenger
of Court or
Sheriff to evict Mr Snyders and his family.
[11]
In her affidavit Ms de Jager averred that the applicants had
enjoyed rights of occupation of the farm from some date after 17
February
1997. In his answering affidavit Mr Snyders denied the
averment. He said that they had enjoyed the right of occupation
on the farm from 1992. At the hearing, Ms de Jager’s
legal representative asked the Court to allow Ms de Jager
to give
oral evidence on her need for the accommodation and the availability
of alternative accommodation. The basis for
this request was
that a lot of time had lapsed since the time when Ms de Jager’s
affidavit had been deposed to – which
was a year earlier –
and it was desirable that the Court should be updated on the position
on this issue.
[12]
The Court permitted oral evidence to be led on Ms de Jager’s
need for accommodation and on the availability of alternative
accommodation. Ms de Jager gave evidence and was
cross-examined. Her evidence-in-chief was confined
to her need
for the house occupied by the Snyders family and to the issue of
availability of alternative accommodation. Mr
Snyders’
attorney confined his cross-examination to these issues as well.
Although in her evidence-in-chief, Ms de
Jager had referred to
accommodation that she said was available to the Snyders in certain
places including at the local town, under
cross-examination, she
conceded that that accommodation was practically unavailable to Mr
Snyders because he could not afford it.
In the result she did
not persist in saying that there was alternative accommodation
available to Mr Snyders.
[13]
In the course of giving evidence Ms de Jager went beyond the
scope of the evidence permitted by the Court. Instead of
confining
herself to evidence relating to the availability of
alternative accommodation and her need for the house occupied by the
Snyders
family, she began to give evidence on what she was unhappy
about with Mr Snyders’ occupation of the property. She
said
that he did not behave properly on the farm. She said that
he would be drunk while on duty, he kept animals that he was not
allowed to keep and failed to make sure that the animals did not go
beyond the premises where he stayed. She testified that
Mr
Snyders also did not turn up for his disciplinary inquiry. She
complained that, as the farm was a fruit farm, when there
was fruit,
his geese ate her fruit. However, it appears that some of the
things to which Ms de Jager testified had happened
after Mr Snyders
had been dismissed.
[14]
The Magistrate’s Court subsequently handed down its
judgment. It granted an order declaring that it was just and
equitable
for Mr Snyders and his family to vacate the Voorbaat Farm
as described in the application on or before 20 December 2012. It
also ordered that, if Mr Snyders (and his family) did not vacate the
premises within that time, the Sheriff should execute the
order at or
after 12h00 on 31 December 2012. The order was suspended
pending its confirmation by the Land Claims Court
in automatic
proceedings in terms of section 19(3) of ESTA. The
judgment appears to have been handed down on 14 November
2012.
[15]
The Magistrate’s Court dealt with the matter on the
basis that Mr Snyders had started living on the farm in 1992 and not
after
17 February 1997 as Ms de Jager had said was the case.
The Court conducted an inspection
in loco
on the
premises occupied by other workers on the farm and made certain
findings. It accepted that at a practical level
there was no
alternative accommodation available to Mr Snyders and his family in
Zoar and / or in Ladismith.
[16]
The Court went on to say that there was only one point of
dispute between the parties that needed to be decided. It said
that
that was whether section 10 of ESTA had been complied with by Ms
de Jager. The Court said it had no doubt that Mr Snyders’
right to occupy the house he occupied was dependent upon his
continued employment on the farm. It pointed out that that
meant that, once that employment had come to an end, his right to
occupy the house also came to an end. The Court also relied
on
the fact that Mr Snyders was keeping certain animals on the
premises which it said he was not entitled to keep.
[17]
The Court held that there had been compliance with
section 10(1), (2) and (3) of ESTA.
[4]
With regard to section 10(1), the Court said that, as an occupier,
Mr Snyders had prejudiced Ms de Jager through the
damage caused
by the geese he was keeping. The Court also said that he built
a pigsty in such a manner that it interfered
with the proper
operations of the farm. It also relied upon the fact that
Mr Snyders had brought other people to stay
on the farm with him
without Ms de Jager’s permission. The Court said that by
so doing Mr Snyders was in breach of
section 6(3) of ESTA.
[5]
[18]
With regard to section 10(2), the Court found that there was
no evidence of available alternative accommodation. However, it
said that a lot of time had lapsed since Mr Snyders’
dismissal. It said that Ms de Jager had a worker who needed to
occupy the house Mr Snyders had previously occupied and his
occupation of the house was prejudicial to Ms de Jager. With
regard to the official report required by section 9(3) of ESTA, the
Court said that the Department of Land Affairs had not submitted
the
report. The Court said that it was not prepared to delay the
matter further simply because the Department had failed
to comply
with its obligations.
Land Claims Court
[19]
In terms of section 19(3) of ESTA, an eviction order granted
by a Magistrate’s Court is subject to automatic review by the
Land Claims Court before it can operate. Under that provision
the Land Claims Court may confirm such an order in whole or
in part,
can set it aside in whole or in part, can substitute such an order in
whole or in part, or remit the case to the Magistrate’s
Court
with directions to deal with any matter in the manner as the Land
Claims Court may think fit.
[20]
On automatic review, the eviction order came before
Matojane J. He confirmed the correctness of the eviction
order as
a whole. The applicants asked for reasons. These
were provided. The applicants later applied to the Land Claims
Court for leave to appeal to the Supreme Court of Appeal against the
decision of the Land Claims Court. That Court granted
leave.
Supreme Court of
Appeal
[21]
Ms de Jager adopted the attitude that, where a Magistrate’s
Court has granted an eviction order under ESTA which is subsequently
confirmed by the Land Claims Court under section 19(3) of ESTA, an
appeal lies to the Land Claims Court and not to the Supreme
Court of
Appeal. Her counsel contended that in effect and in substance
an appeal in this situation is an appeal against the
decision of the
Magistrate’s Court and not against a decision of the Land
Claims Court and that, therefore, the Supreme Court
of Appeal may not
entertain an appeal against a decision of a Magistrate’s Court.
[22]
The applicants argued that the decision made by Matojane J
confirming the eviction order of the Magistrate’s Court was
the
decision against which they were appealing and it was a decision of
the Land Claims Court. For that and other reasons,
the
applicants argued that an appeal against a decision of the Land
Claims Court lay to the Supreme Court of Appeal. In a
judgment
by Van der Merwe AJA,
[6]
the Supreme Court of Appeal upheld Ms de Jager’s
contention that an appeal in this kind of matter lay to the Land
Claims
Court and not to the Supreme Court of Appeal.
Consequently, the Supreme Court of Appeal struck the matter off the
roll with
costs. The judgment of the Supreme Court of Appeal
was handed down on 30 September 2015.
After the Supreme
Court of Appeal judgment
[23]
On 1 October 2015 Ms de Jager caused the Sheriff to
evict Mr Snyders and his family from the house they occupied on the
Stassen Farm on the basis of the eviction order of the Magistrate’s
Court without any prior warning whatsoever either to
Mr Snyders
or his attorneys. Mr Snyders’ attorneys communicated
with Ms de Jager’s attorneys
to try and prevent his
eviction but the eviction was carried out.
In this Court
[24]
Mr Snyders and his family lodged an application in which they
sought leave to appeal to this Court against the decision of the
Supreme
Court of Appeal and an urgent interim order restoring
peaceful possession of the dwelling to them pending the decision of
this
Court on the application for leave to appeal. Ms de Jager
opposed both applications. To this end she filed answering
affidavits in support of her opposition of the applications.
[25]
On 16 October 2015 this Court, by majority, granted an interim
order in terms of which Ms de Jager was ordered to take all necessary
steps to restore to Mr Snyders and his family peaceful
possession of the dwelling they occupied immediately before their
eviction on 1 October 2015. The interim order was to
operate pending the determination of the applicants’
application for leave to appeal.
[26]
In her answering affidavit filed in opposition to the urgent
application for interim relief, Ms de Jager disclosed that she had in
the meantime given the house or dwelling to a Mr Willem Breda and his
family. She pointed out that Mr Breda was employed
on the farm
and needed accommodation. Mr Breda’s occupation of the
house was in terms of an agreement between him and
Ms de Jager.
[27]
At the time that a decision was made on the Snyders’
application for interim relief, this Court indicated that it would
give
its reasons when it hands down its judgment on the application
for leave to appeal. Those reasons appear in a separate
judgment
that is being handed down at the same time as this judgment.
Jurisdiction
[28]
The matter raises the interpretation of section 19(3) of
ESTA. ESTA is legislation that was enacted to give effect to
the
Constitution. The interpretation or application of the
legislation is a constitutional issue. That means that this
Court has jurisdiction. This Court also has jurisdiction by
virtue of the fact that the section 19(3) issue we are called
upon to
decide constitutes an arguable point of law of general public
importance that deserves to be considered by this Court.
Leave to appeal
[29]
The section 19(3) issue is a very important issue. The
issue affects not only the parties before us in this matter but will
affect many people against whom Magistrates’ Courts may
grant eviction orders under ESTA that are confirmed by the
Land Claims Court under section 19(3). On the merits
of the appeal, Mr Snyders and his family also have reasonable
prospects of success. It is, therefore, in the interests of
justice that leave to appeal be granted.
The appeal
[30]
The first question is whether, in a case where a Magistrate’s
Court has granted an eviction order under ESTA and that order
is
subsequently confirmed by the Land Claims Court, an appeal lies
to the Supreme Court of Appeal or the Land Claims Court.
[31]
Section 19(3) reads:
“
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.”
Subsection (3) must
be read together with subsections (2), (4) and (5). Subsection
(2) reads:
“
Civil appeals from
magistrate’s courts in terms of this Act lie to the Land Claims
Court.”
Subsections (4) and
(5) read as follows, respectively:
“
(4) The provisions of
subsection (3) shall not apply to a case in which an appeal has been
noted by an occupier.
(5) Any order for eviction
contemplated in subsection (3) shall be suspended pending the review
thereof by the Land Claims Court.”
[32]
Furthermore, section 37(2) of the Restitution of Land Rights
Act
[7]
and section 16(1)(c) of the Superior Courts Act
[8]
are also relevant. Section 37(2) of the Restitution of Land
Rights Act reads:
“
(2) An appeal from a
judgment or order of the [Land Claims] Court shall be heard by the
Supreme Court of Appeal.”
The Restitution of
Land Rights Act is the legislation that established the Land Claims
Court. Section 16(1)(c) of the Superior
Courts Act reads:
“
(1) Subject to section
15(1), the Constitution and any other law—
. . .
(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 15(1) is not
relevant to the present matter.
[33]
The basis of the Supreme Court of Appeal’s conclusion
was in effect that a party against whom a Magistrate’s Court
has
granted an eviction order needs to appeal to the Land Claims
Court if he remains aggrieved, even after the Land Claims Court has
confirmed the Magistrate’s Court’s eviction order in
automatic review proceedings, and not against the Land Claims
Court’s
order.
[34]
The Supreme Court of Appeal said that an order of the Land
Claims Court in automatic review proceedings under section 19(3)
confirming
an eviction order of a Magistrate’s Court does not
deal with the merits of the eviction order. The Supreme Court
of
Appeal said that, if, in automatic review proceedings under
section 19(3), the Land Claims Court set aside the eviction order of
the Magistrate’s Court, that decision is a decision of the Land
Claims Court and an appeal lies to the Supreme Court of Appeal.
However, it said that, if the decision of the Land Claims Court in
the same proceedings was to confirm the decision of the Magistrate’s
Court, there is only one decision and that is the decision of the
Magistrate’s Court and an appeal lies to the Land Claims
Court.
[35]
It is important to point out that in the present case the
decision against which the applicants sought leave to appeal to the
Supreme
Court of Appeal and in respect of which the Land Claims Court
granted them leave to appeal is the Land Claims Court’s
decision
confirming the Magistrate’s Court’s decision and
not the Magistrate’s Court’s eviction order.
[36]
I am of the view that the power given to the Land Claims Court
in section 19(3)(a) to “confirm such order in whole or
in
part” is a power to confirm that the order or judgment of the
Magistrate’s Court is correct and free from irregularities
that
would render the decision susceptible to being set aside. The
power to “set aside such an order in whole or in
part” in
section 19(3)(b) is the Land Claims Court’s power to set aside
an eviction order of a Magistrate’s Court
where the Land Claims
Court thinks that such an order should not have been made and was
wrong. The powers that ESTA gives
to the Land Claims Court
under section 19(3)(a) to (d) are as wide as any powers that a court
usually has in deciding a matter
on appeal. They do not appear
to me to be limited to powers that a court has in review proceedings.
[37]
One of the meanings of an “appeal” is a review.
[9]
In ESTA there is reference to an appeal and a reference to
automatic reviews. Furthermore, section 19(4) says that
the
automatic review provisions do not apply to a case in which an appeal
has been noted by an occupier. Normally, the launching
of a
review application does not suspend the operation of an order that is
the subject of the review but section 19(5) provides
that an eviction
order contemplated in section 19(3) is suspended pending the review
thereof by the Land Claims Court.
[38]
On the Supreme Court of Appeal’s reasoning, a litigant
who seeks to appeal that order of the Land Claims Court has no right
to appeal that order but must appeal the order of the Magistrate’s
Court. That proposition is wrong.
[39]
There is no justification in ESTA for an approach that
deprives a litigant aggrieved by a decision of a court the right to
appeal
that decision. In my view, a litigant who is aggrieved
by a decision of the Land Claims Court under section 19(3) confirming
an eviction order of a Magistrate’s Court is entitled, subject
to leave being granted, to appeal to the Supreme Court of
Appeal
against that decision. The order against which he would be
seeking to appeal is an order of the Land Claims Court
and not of the
Magistrate’s Court. Whether the decision of the Land
Claims Court in automatic review proceedings under
section 19(3) is
one confirming or setting aside the decision of the Magistrate’s
Court, the decision sought to be appealed
against is that of the Land
Claims Court and not that of the Magistrate’s Court.
[40]
This approach is consistent with, and, supported by, section
37(2) of the Restitution of Land Rights Act and section 16(1)(c) of
the Superior Courts Act.
[10]
The Supreme Court of Appeal did not consider section 37(2) of the
Restitution of Land Rights Act. The Supreme Court
of Appeal did
refer to section 16(1)(c) of the Superior Courts Act but, by
implication, held it not to be applicable to this case
because, in
its view, “the Land Claims Court did not determine the merits
of the eviction order of the Magistrate”.
[41]
This was not an answer to section 16(1)(c) because that
section refers to a “judgment or order” of a court of a
status
similar to that of the High Court without any qualification
whether that order must be one determining the merits of a matter or
not. The Land Claims Court is a court of a status similar to
the status of the High Court. In any event, a reading
of the
Land Claims Court judgment in the automatic review proceedings
reveals clearly that the Land Claims Court determined the
merits of
the matter as well.
[42]
In seeking to understand the nature of an automatic review
under section 19(3) and the extent of the powers that the Land Claims
Court has under that provision it is useful to consider the nature of
automatic reviews in criminal matters. Certain decisions
by
Magistrate’s Courts are subject to automatic review by Judges
of the High Court having jurisdiction over that Magistrate’s
Court. Under the Criminal Procedure Act,
[11]
if a Magistrate with a certain level of experience has passed a
certain sentence, the clerk of the Court must send the record of
the
proceedings in that matter to the High Court where that record will
be assigned to a Judge.
[12]
The Judge will read the judgment of the Magistrate’s Court and
the record to establish whether the proceedings were
in accordance
with justice.
[13]
[43]
If he concludes that they were, he or she certifies the
proceedings accordingly.
[14]
If he or she concludes that the proceedings were not in accordance
with justice, he or she writes a judgment which is required
to be
concurred in by another Judge and makes such order as he or she
considers will accord with justice. The Judge’s
conclusion that the proceedings were not in accordance with justice
may be reached on the basis of either ground that may be taken
into
account in an appeal or grounds that may be taken into account on
review.
[15]
In other words, the High Court effectively uses both its appellate
and its review powers in determining whether the proceedings
in a
Magistrate’s Court were in accordance with justice.
[16]
[44]
Under section 19(3) ESTA does not provide that the Land Claims
Court must certify whether the eviction proceedings in the
Magistrate’s
Court were in accordance with justice. Nor
does it give the Land Claims Court any specific standard by which it
should “review”
the Magistrate’s Court
proceedings. What section 19(3) simply does is to give the Land
Claims Court wide powers to
confirm, set aside, substitute or remit a
decision of the Magistrate’s Court. The omission in
section 19(3) to specify
the standard by which the Land Claims Court
must assess the appropriateness or otherwise of the eviction
proceedings in the Magistrate’s
Court must have been deliberate
so as to confer upon the Land Claims Court as wide powers as possible
to make that assessment.
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 section 19(3)
the Land Claims Court may confirm, set aside, substitute or remit a
Magistrate’s 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.
[45]
In reaching its conclusion, the Supreme Court of Appeal
followed a line of decisions of the Land Claims Court which are to
the same
effect. They started with
Magodi
[17]
which was followed by other cases including
Klaase,
[18]
Goosen
[19]
and ended with
Brummer
[20]
to which the Supreme Court of Appeal referred in its judgment in the
present case.
[46]
All these cases appear to be based on the proposition that,
when a Judge of the Land Claims Court confirms a decision of a
Magistrate’s
Court under section 19(3), the decision of that
Judge is not a decision of the Land Claims Court that has a legal
status and legal
effect. As a result, in those judgments the
various Judges of the Land Claims Court took the view that in
those cases
it is the decision of the Magistrate’s Court that
may be appealed against and that the appeal would lie to the Land
Claims
Court.
[47]
I can see no basis in law for this approach. The reality
is that there is a decision of the Land Claims Court. In my
view, once a Judge of the Land Claims Court has confirmed a
decision of the Magistrate’s Court under section 19(3),
the situation cannot be dealt with as if there is no decision of a
higher court than the Magistrate’s Court. As I say
elsewhere in this judgment, when a Judge of the Land Claims Court
confirms a decision of a Magistrate’s Court under
section 19(3),
the Land Claims Court confirms that the decision
of the Magistrate’s Court is correct and is free from
irregularities that
could render it susceptible to being set aside on
review. In the light of this I can see no reason why a litigant
would want
to appeal the Magistrate’s Court’s decision
instead of the Land Claims Court’s decision. Once an
eviction
order of a Magistrate’s Court has been confirmed by
the Land Claims Court under section 19(3), an appeal lies to the
Supreme
Court of Appeal.
[48]
On the basis of section 37(2) of the Restitution of Land
Rights Act, one only needs to ask the question: is a decision made
under
section 19(3) confirming an eviction order of a Magistrate’s
Court a “judgment or order” of the Land Claims Court?
If the answer is that it is, then in terms of that provision, an
appeal lies to the Supreme Court of Appeal. If the answer
is
that such a decision is not a decision of the Land Claims Court, then
an appeal does not lie to the Supreme Court of Appeal.
The
answer is clearly that such a decision is a judgment or order of the
Land Claims Court. That means that an appeal against
it lies to
the Supreme Court of Appeal.
[49]
With regard to section 16(1)(c) of the Superior Courts Act,
the only question that would need to be asked would be: is a decision
under section 19(3) confirming an eviction order made by a
Magistrate’s 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
section 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 section 15(1), the Constitution and any
other law which
militates against approaching the issue this way.
[50]
The Supreme Court of Appeal was, therefore, wrong in its
conclusion and in striking the matter off the roll. It should
have
held that the appeal lay to it. It also ought to have
considered and determined the appeal on the merits. Accordingly,
we should set aside the decision of the Supreme Court of Appeal.
Once we have done that, the next question is whether we
should
remit the matter to the Supreme Court of Appeal to deal with the
merits of the appeal or whether we should determine the
merits
ourselves. If we decide the merits ourselves, we would be
dealing with the correctness or otherwise of the decision
of the Land
Claims Court confirming the Magistrate’s Court’s order.
In my view, that would in effect take us
to the question
whether the Land Claims Court was correct in confirming the
Magistrate’s Court’s order as correct.
[51]
I am of the view that we should determine the merits
ourselves. The eviction application was launched in the
Magistrate’s
Court in March 2009. The
Magistrate’s Court’s order was granted in November
2012. That means that
the dispute between the parties has been
going on for almost eight years. If we remit the merits to the
Supreme Court of
Appeal, it might take another year for the merits to
be adjudicated and the matter may later come back to us any way.
That
will be costly for the parties and will unduly delay
finality in this matter.
Was Ms de Jager
entitled to the eviction of Mr Snyders and his family?
[52]
The starting point is to establish whether Mr Snyders was an
occupier under ESTA. The word “occupier” in ESTA is
defined as meaning “a person residing on land which belongs to
another person, and who has or on 4 February 1997 or thereafter
had
consent or another right in law to do so, but excluding”
certain categories of persons to which Mr Snyders does not belong.
This means that a person who resided on land belonging to another and
“who has or on 4 February 1997 or thereafter had consent
or
another right in law to do so” is an occupier if he or she does
not fall within the exceptions provided for in paragraphs
(b) and (c)
of the definition.
[53]
Ms de Jager appears to have accepted that on the Stassen Farm
Mr Snyders was an occupier as defined in ESTA. She said nothing
that suggests that Mrs Snyders is herself not an occupier as defined
in ESTA. In the absence of an explanation from Ms de
Jager
or the Stassen’s to the effect that the consent for Mrs Snyders
to reside on the farm was one that was dependent upon
Mr Snyders
continued right of residence on the farm, we have to assume that the
consent she had to reside on the farm was also
the one contemplated
in the definition of “occupier”. That would make
her an occupier as well. Accordingly,
for purposes of this case
we have to determine the matter on the basis that she, too, was an
occupier as defined.
[54]
Section 6(1) and (2)(a) to (f) of ESTA reads:
“
(1) Subject to the
provisions of this Act, an occupier shall have the right to reside on
and use the land on which he or she resided
and which he or she used
on or after 4 February 1997, and to have access to such services as
had been agreed upon with the owner
or person in charge, whether
expressly or tacitly.
(2) Without prejudice to the
generality of the provisions of section 5 and subsection (1), and
balanced with the rights of the owner
or person in charge, an
occupier shall have the right—
(a)
to security of tenure;
(b)
to receive
bona fide
visitors at reasonable times and for
reasonable periods:
Provided
that—
(i) the owner or person in
charge may impose reasonable conditions that are normally applicable
to visitors entering such land in
order to safeguard life or property
or to prevent the undue disruption of work on the land; and
(ii) the occupier shall be
liable for any act, omission or conduct of any of his or her visitors
causing damage to others while
such a visitor is on the land if the
occupier, by taking reasonable steps, could have prevented such
damage;
(c)
to receive postal or other communication;
(d)
to family life in accordance with the culture of that family:
Provided that this right shall not apply in respect of single
sex
accommodation provided in hostels erected before 4 February 1997;
(dA)
to bury a deceased member of his or her family who, at the time of
that person’s death, was residing on the land on which
the
occupier is residing, in accordance with their religion or cultural
belief, if an established practice in respect of the land
exists;
(e)
not to be denied or deprived of access to water; and
(f)
not to be denied or deprived of access to educational or health
services.”
[55]
Section 6(3) reads as follows:
“
(3) An occupier may not—
(a)
intentionally and unlawfully harm any other person occupying the
land;
(b)
intentionally and unlawfully cause material damage to the property of
the owner or person in charge;
(c)
engage in conduct which threatens or intimidates others who lawfully
occupy the land or other land in the vicinity; or
(d)
enable or assist unauthorised persons to establish new dwellings on
the land in question.”
[56]
Section 8 of ESTA makes provision for the termination of the
right of residence and eviction. Its heading reads:
“TERMINATION
OF RIGHT OF RESIDENCE AND EVICTION.”
Section 8(1) reads:
“
(1) Subject to the
provisions of this section, an occupier’s right of residence
may be terminated
on any lawful ground, provided that such
termination is just and equitable
, having regard to all relevant
factors and, in particular to:
(a)
the fairness of any agreement, provision in an agreement, or
provision of law on which the owner or person in charge relies;
(b)
the conduct of the parties giving rise to the termination;
(c)
the
interests of the parties, including the comparative
hardship to the owner or person in charge, the occupier concerned,
and any other
occupier if the right of residence is or is not
terminated
;
(d)
the existence of a reasonable expectation of the renewal of the
agreement from which the right of residence arises, after the
effluxion of its time; and
(e)
the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should have
been
granted an effective opportunity to make representations before the
decision was made to terminate the right of residence
.”
Section 8(1) makes
it clear that the termination of a right of residence must be just
and equitable both at a substantive level
as well as at a procedural
level. The requirement for the substantive fairness of the
termination is captured by the introductory
part that requires the
termination of a right of residence to be just and equitable.
The requirement for procedural fairness
is captured in section
8(1)(e).
[57]
Section 8(2) reads:
“
The right of residence of
an occupier who is an employee and whose right of residence arises
solely from an employment agreement,
may be terminated if the
occupier resigns from the employment or is dismissed in accordance
with the provisions of the Labour Relations
Act.”
If the owner of land
or a farm manager relies on this provision to justify the termination
of an occupier’s right of residence,
the onus would be on the
owner or manager to prove that the termination of the occupier’s
employment had a fair reason related
to the occupier’s conduct
as an employee or his or her capacity or based on the employer’s
operational requirements
as required by section 188(1)(a) of the
Labour Relations Act
[21]
and that it was effected in accordance with a fair procedure as
required by section 188(1)(b) of the LRA.
[22]
[58]
Section 9 of ESTA deals with the limitations on the right of
the owner of land or person in charge to evict an occupier.
Section
9(1), (2) and (3) reads:
“
(1) Notwithstanding the
provisions of any other law,
an occupier may be evicted only in
terms of an order of court issued under this Act
.
(2) A
court may make an order
for the
eviction of an occupier if—
(a)
the occupier’s right of residence has been terminated in terms
of section 8;
(b)
the occupier has not vacated the land within the period of notice
given by the owner or person in charge;
(c)
the conditions for an order for eviction in terms of section 10 or 11
have been complied with; and
(d)
the owner or person in charge has, after the termination of the right
of residence, given
(i) the occupier;
(ii) the municipality in whose
area of jurisdiction the land in question is situated; and
(iii) the head of the relevant
provincial office of the Department of Rural Development, for
information purpose, not less than
two calendar months’ written
notice of the intention to obtain an order for eviction, which notice
shall contain the prescribed
particulars and set out the grounds on
which the eviction is based: Provided that if a notice of
application to a court has,
after the termination of the right of
residence, been given to the occupier, the municipality and the head
of the relevant provincial
office of the Department of Rural
Development and Land Reform not less than two months before the date
of the commencement of the
hearing of the application this paragraph
shall be deemed to have been complied with.
(3) For the purposes of
subsection (2)(c), the Court must request a probation officer
contemplated in section 1 of the Probation
Service Act, 1991 (Act No.
116 of 1991), or an officer of the department or any other officer in
the employment of the State, as
may be determined by the Minister, to
submit a report within a reasonable period—
(a)
on the availability of suitable alternative accommodation to the
occupier;
(b)
indicating how an eviction will affect the constitutional rights of
any affected person, including the rights of the children,
if any, to
education;
(c)
pointing out any undue hardships which an eviction would cause the
occupier; and
(d)
on any other matter as may be prescribed.”
[59]
Section 10 governs the eviction of a person who was an
occupier on the land as at 4 February 1997. Mr Snyders
falls into
this category of occupiers. As he started residing
on the Stassen Farm in 1992 and resided there beyond
4 February 1997.
Section 10(1), (2) and (3) reads:
“
(1) An order for the
eviction of a person who was an occupier on 4 February 1997 may be
granted if—
(a)
the occupier has breached section 6(3) and the court is satisfied
that the breach is material and that the occupier has not
remedied
such breach;
(b)
the owner or person in charge has complied with the terms of any
agreement pertaining to the occupier’s right to reside
on the
land and has fulfilled his or her duties in terms of the law, while
the occupier has breached a material and fair term of
the agreement,
although reasonably able to comply with such term, and has not
remedied the breach despite being given one calendar month’s
notice in writing to do so;
(c)
the occupier has committed such a fundamental breach of the
relationship between him or her and the owner or person in charge,
that it is not practically possible to remedy it, either at all or in
a manner which could reasonably restore the relationship;
or
(d)
the occupier—
(i) is or was an employee whose
right of residence arises solely from that employment; and
(ii) has voluntarily resigned in
circumstances that do not amount to a constructive dismissal in terms
of the Labour Relations Act.
(2) Subject to the provisions of
subsection (3), if none of the circumstances referred to in
subsection (1) applies, a court may
grant an order for eviction if it
is satisfied that suitable alternative accommodation is available to
the occupier concerned.
(3) If—
(a)
suitable alternative accommodation is not available to the occupier
within a period of nine months after the date of termination
of his
or her right of residence in terms of section 8;
(b)
the owner or person in charge provided the dwelling occupied by the
occupier; and
(c)
the efficient carrying on of any operation of the owner or person in
charge will be seriously prejudiced unless the dwelling
is available
for occupation by another person employed or to be employed by the
owner or person in charge,
a
court may grant an order for eviction of the occupier and of any
other occupier who lives in the same dwelling as him or her,
and
whose permission to reside there was wholly dependent on his or her
right of residence if it is just and equitable to do so,
having
regard to—
(i) the efforts which the owner
or person in charge and the occupier have respectively made in order
to secure suitable alternative
accommodation for the occupier; and
(ii) the interests of the
respective parties, including the comparative hardship to which the
owner or person in charge, the occupier
and the remaining occupiers
shall be exposed if an order for eviction is or is not granted.”
[60]
Section 12 deals with aspects of eviction. It reads:
“
12. Further provisions
regarding eviction.
(1)
A court that orders the eviction of an occupier shall—
(a) determine a just and
equitable date on which the occupier shall vacate the land; and
(b) determine the date on which
an eviction order may be carried out if the occupier has not vacated
the land on the date contemplated
in paragraph (a).
(2)
In determining a just and equitable date the court shall have regard
to all relevant factors, including—
(a) the fairness of the terms of
any agreement between the parties;
(b) the balance of the interests
of the owner or person in charge, the occupier and the remaining
occupiers on the land; and
(c) the period that the occupier
has resided on the land in question.
(3)
A court may, at the request of the sheriff in question, authorise any
person to assist the sheriff to carry out an order for
eviction,
demolition or removal, subject to the conditions determined by the
court as to the execution thereof: Provided that the
sheriff shall at
all times be present during such eviction, demolition or removal.
(4)
Any order for the eviction of an occupier in terms of
section 10 or 11
shall be subject to
reasonable terms and conditions for further residence which may be
determined by the court, having regard to
the income of all of the
occupiers in the household
.
(5)
A court may, on good cause shown,
vary any term or condition of an
order for eviction made by it
.
(6)
Notwithstanding the provisions of sections 10 and 11, the court
shall not order the eviction of an occupier if it is of
the opinion
that one of the purposes of such intended eviction is to prevent the
occupier from acquiring rights in terms of section
8(4).”
(Emphasis added.)
[61]
Ms de Jager’s application in the Magistrate’s
Court was directed at Mr Snyders on the basis that, if Ms de
Jager
was entitled to an eviction order against him, then she was
equally entitled to an eviction order against Mrs Snyders and their
children. She did not put up any specific case against
Mrs Snyders and the children. In the view I take of this
matter, I propose to deal with whether Ms de Jager was entitled to an
eviction order against Mr Snyders. I do so because,
even on Ms
de Jager’s own approach, if she was not entitled to an eviction
order against Mr Snyders, she could not be entitled
to an eviction
order against Mrs Snyders and the children.
[62]
In her founding affidavit in the Magistrate’s Court, Ms
de Jager relied upon an averment that Mr Snyders started residing on
the Stassen Farm after 17 February 1997. In his
answering affidavit Mr Snyders disputed this and pointed out that
he
and his wife had been residing on the farm continuously from 1992.
The significance of this is that, on Mr Snyders’
version, his
eviction would be governed by section 10 but, on Ms de Jager’s
version, Mr Snyders’ eviction would be
governed by section 11.
The Magistrate’s Court decided the matter on the basis that Mr
Snyders had started residing
on the farm in 1992 and that, therefore,
his eviction was governed by section 10.
[63]
In instituting the eviction proceedings, Ms de Jager chose to
do so by way of motion proceedings. From the time the
application
was lodged to the time that it was heard a period of more
than three years had lapsed. As already indicated, on the day
of
the hearing the attorney for Ms de Jager applied from the Bar for
leave to lead oral evidence so as to update the Court on Ms de
Jager’s need for the house occupied by the Snyders family as
well as on the availability of alternative accommodation.
The
Court granted leave for this.
[64]
The evidence-in-chief that Ms de Jager gave fell within the
scope of the permission granted by the Court. During the
cross-examination
this did not change. However, in
re-examination Ms de Jager’s attorney led her on new evidence
that did not arise from
the cross-examination. Indeed, she led
her on evidence falling outside of the scope of the leave granted by
the Court.
Evidence was led that sought to make a new case
against Mr Snyders and his family that had not been made out in
Ms de Jager’s
founding affidavit or in Ms de Jager’s
evidence-in-chief. Mr Snyders’ attorney subsequently
criticised this conduct
on the part of Ms de Jager’s attorney
and said that Ms de Jager and her attorney were not entitled to lead
evidence falling
outside the scope of the leave granted by the Court.
[65]
Ms de Jager’s attorney sought to justify their conduct
on the basis that Mr Snyders’ attorney had cross-examined
Ms de Jager on Mr Snyders’ conduct on the Stassen Farm.
He contended that this had opened the door for them to lead
the
additional evidence they led in re-examination relating to Mr
Snyders’ alleged conduct on the farm. A reading of
the
transcript of the proceedings relating to the oral evidence led
reveals that Mr Snyders’ attorney did not cross-examine
Ms de
Jager on Mr Snyders’ conduct on the farm. In fact, the
Magistrate should have stopped them from going outside
the scope of
the leave he had granted.
[66]
Counsel for the Snyders family criticised the Magistrate’s
Court for relying on Ms de Jager’s evidence that was
irregularly
led and fell outside the scope of the permission the
Court had granted. Ms de Jager’s evidence falling outside
that
permitted by the Magistrate’s Court should not have been
allowed and should also not have been relied upon by the Magistrate’s
Court to justify its conclusion and order. It is true that the
Snyders family was given an opportunity to lead evidence but
declined
it. However, this does not change anything. If it was
irregular for the Magistrate’s Court to allow
that evidence to
be led, Counsel for the Snyders family was entitled to refuse to be
party to the perpetuation of that irregularity
and argue later that
the Court was wrong to have allowed it and should, therefore, not
take it into account.
[67]
If a person has a right of residence on someone else’s
land under ESTA, that person may not be evicted from that land before
that right has been terminated. In other words, the owner of
land must terminate the person’s right of residence first
before he or she can seek an order to evict the person.
However, it must be borne in mind that the termination of a right
of
residence is required to be just and equitable in terms of section
8(1) of ESTA. Section 8(2) deals with the right of
residence of
an occupier who is an employee of the owner of the land or of the
person in charge and whose right of residence arises
solely from an
employment agreement. It provides that such a right of
residence may be terminated “if the occupier
resigns from
employment or is dismissed in accordance with the provisions of the
Labour Relations Act”.
[68]
It may well be that Mr Snyders’ right of residence had
arisen solely from an employment agreement. We do not know that.
In her founding affidavit in the Magistrate’s Court Ms de Jager
did not aver that Mr Snyders’ right of residence arose
solely
from a contract of employment. Nor did she give oral evidence
to that effect when she testified in Court. When
Mr Snyders
started working on the farm, the farm was owned by a Mr de Klerk.
Mr Snyders said that his contract of employment
was transferred as it
was from Mr de Klerk to Mr Stassen Snr. Ms de Jager did not
dispute this. Nor could she, seeing
that she was not working on
the Stassen Farm in 1992. Therefore, this matter cannot be
dealt with on the basis that Mr Snyders’
right of residence
arose solely from his employment.
[69]
In any event Ms de Jager did not terminate Mr Snyders’
right of residence. She assumed that, once she had terminated
his contract of employment, that automatically terminated his right
of residence as well. She said that the part of the letter
of
dismissal that told Mr Snyders that he was to vacate the house in a
month’s time was the part that informed Mr Snyders
of the
termination of his right of residence. A copy of that letter
was attached to Ms de Jager’s founding affidavit
in the
Magistrate’s Court.
[70]
There are two difficulties with Ms de Jager’s reliance
upon the contents of that letter. The first is that Mr Snyders
is illiterate and would not have been able to read the letter. In
this regard Mr Snyders said that, when Ms de Jager gave
him that
letter, she told him that he was being dismissed but never told him
that his right of residence was also being terminated.
Ms de
Jager has not said anything different on this aspect. Since Mr
Snyders was a respondent in those motion court proceedings,
his
version is the one that prevails.
[23]
There was an obligation on Ms de Jager to have either read the letter
to Mr Snyders or to have told him specifically that
she was
terminating his right of residence if that is what she sought to do.
Whether or not it would have been proper or
just and equitable for Ms
de Jager to terminate Mr Snyders’ right of residence at that
time and in that manner is another
question. However, Ms de
Jager would have been obliged to comply with the requirements of ESTA
before she could terminate
Mr Snyders’ right of residence.
[71]
The second difficulty is that no part of the letter said that
Mr Snyders’ right of residence was being terminated. The
part on which Ms de Jager relies simply said that Mr Snyders was
required to vacate the house. The basis for the requirement
that Mr Snyders should vacate the house must have been that his
right of residence had automatically terminated when his contract
of
employment was terminated. That was not necessarily the
position. The right of residence needed to be terminated
on its
own in addition to the termination of the contract of employment.
Until Mr Snyders’ right of residence had been
terminated, he
could not be required to vacate the house. In this case Ms de
Jager has failed to show that Mr Snyders’
right of residence
had been terminated. Therefore, Ms de Jager had no right to
require Mr Snyders to vacate the house or
to seek an eviction order
against Mr Snyders. The Magistrate’s Court was wrong to
find differently. The Land
Claims Court was equally wrong to
confirm the Magistrate’s Court eviction order.
[72]
In any event, even if it were to be accepted that Ms de Jager
terminated Mr Snyders’ right of residence, she has failed
to show, as is required by section 8(1) of ESTA, that there was a
lawful ground for that termination and that, in addition, the
termination was just and equitable. At best for Ms de Jager,
she purported to show no more than that there was a lawful ground
for
the termination of the right of residence. She did not go
beyond that and place before the Magistrate’s Court evidence
that showed that the termination of Mr Snyders’ right of
residence was just and equitable.
[73]
In its judgment the Magistrate’s Court said that Mr
Snyders had acted in breach of section 6(3) of ESTA. It said
this
in the context of the requirement in section 10(1)(a) that
an order for the eviction of a person who was an occupier as at
4 February 1997 may only be granted if the occupier has
breached section 6(3) and the court is satisfied that “.
. .
the breach is material and that the occupier has not remedied such
breach”. The Court erred in concluding that
Mr Snyders
had breached section 6(3). To breach section 6(3) Mr
Snyders must have:
(a) “intentionally and unlawfully harm[ed] any other person
occupying the land”; or
(b) “intentionally and unlawfully” cause[d] material
damage to the property of the owner or person in charge; or
(c) “engaged in conduct which threatens or intimidates others
who lawfully occupy the land or other land in the vicinity”;
or
(d) “enable[d] or assist[ed] unauthorised persons to establish
new dwellings on the land in question”.
[74]
The Magistrate’s Court’s finding that Mr Snyders
had breached section 6(3) was not supported by any evidence.
Indeed, Mr Snyders had not been called upon to answer any such case
in Ms de Jager’s founding affidavit. In any event,
even
if the Magistrate’s Court was right to find that Mr Snyders had
breached section 6(3), that did not entitle the Court
to conclude
that the requirement of section 10(1) had been complied with.
This is so because section 10(1) does not
only require that an
occupier must have breached section 6(3) but it also requires that
the breach must have been material and
the occupier must have been
given an opportunity to remedy the breach but failed to do so.
In this case, the Magistrate’s
Court did not inquire into the
question whether Ms de Jager had given Mr Snyders an opportunity to
remedy the breach and Mr Snyders
had failed to remedy it.
[75]
Counsel for the Snyders family also contended that the
Magistrate’s Court should not have issued an eviction order
because
the Snyders family had not been afforded any procedural
fairness by way of an opportunity to be heard before they were
required
to vacate the property. It is common cause that the
Snyders family were never invited to make representations to Ms de
Jager
on why they should not be required to vacate the house before
they were actually required to vacate it. In my view, the
submission
by counsel for the Snyders family has merit. ESTA
requires the termination of the right of residence to also
comply
with the requirement of procedural fairness to enable this
person to make representations why his or her right of residence
should
not be terminated. This is reflected in section 8(1)(e)
of ESTA. A failure to afford a person that right will mean that
there was no compliance with this requirement of ESTA. This
would render the purported termination of the right of residence
unlawful and invalid. It would also mean that there is no
compliance with the requirement of ESTA that the eviction must
be
just and equitable.
[76]
I, therefore, conclude that the Magistrate’s Court erred
in finding that Mr Snyders’ eviction would be just and
equitable. From this it would have followed that the eviction
of the Snyders family would also have been unjust and inequitable.
The result is that the Magistrate’s Court ought to have
dismissed Ms de Jager’s application with costs. It also
follows that the Land Claims Court erred in confirming the eviction
order. The Land Claims Court should have set aside the
eviction
order granted by the Magistrate’s Court and replaced it with an
order dismissing Ms de Jager’s application
with costs.
Should we order
Mr Breda’s eviction?
[77]
The next question that arises now is whether we should grant
an eviction order against Mr Breda and his family. The eviction
that I am talking about in regard to Mr Breda and his family is
not his eviction from the Stassen Farm. It is his eviction
from
the house which Mr Snyders and his family used to occupy before their
eviction on 1 October 2015. It is also the eviction
of his
partner or “common law wife”, as he referred to her in
his affidavit, their children and anyone else who may
be living in
that house through Mr Breda. This eviction does not require
that the right of residence on the farm as Mr Breda
and his family
members may have should be terminated because, if he or they had that
right, they had it long before they moved
into the house that Mr
Snyders used to occupy with his family. They occupied the
“
saaltjie”
[24]
for about a year before they moved into the house that Mr Snyders and
his family used to occupy. In other words, the right
of
residence that Mr Breda and his family may be enjoying is not
necessarily tied to the specific house they presently occupy.
[78]
As I have indicated, after this Court had granted the interim
order on 16 October 2015 and, according to Ms de Jager, Mr Breda
had refused to vacate the house previously occupied by Mr Snyders and
his family, Ms de Jager offered Mr Snyders and his family
the
wendy house. She said that the wendy house would provide proper
accommodation to Mr Snyders and his family. Mr
Snyders and his
family did not accept that offer. I am sure that the reason why
they did not accept that offer is that they
saw no valid reason why
Ms de Jager did not move Mr Breda and his family into the wendy house
so that they could move into the
house they had previously occupied.
[79]
At the time that the wendy house was vacant and Ms de Jager
offered it to Mr Snyders and his family, Ms de Jager knew that
Mr Snyders and his family were going on with the litigation to get
back into the house they previously occupied. She would
have
known that there was a possibility that the outcome of the litigation
could be that Mr Snyders and his family have to move
back into the
house they previously occupied and that Mr Breda and his family may
have to vacate that house. It would have
been prudent of her to
keep the wendy house available so that she could move Mr Breda and
his family into that house should Mr
Snyders and his family have to
move back into the house they previously occupied.
[80]
If Ms de Jager decided to allow someone else to occupy the
wendy house, she would have told that person that in case Mr Snyders
moved back into the house he previously occupied, that person may
have to move out of the wendy house which she would make available
to
Mr Breda and his family. If she imprudently did not make such
an arrangement, she will have to see how she accommodates
Mr Breda
and his family if we make an order that they be evicted from the
house that Mr Snyders used to occupy. She cannot
be allowed to
keep on taking steps that are aimed at nothing else but to frustrate
Mr Snyders’ rights and court processes.
[81]
Mr Breda’s right of residence and those of his family
members, if they have any, are not dependent upon them occupying the
house previously occupied by Mr Snyders. In my view,
whatever right Mr Breda and his family may have had to occupy the
house will come to an end when this judgment is handed down and
Mr Snyders and his family become entitled to move back into
the
house and occupy it again. In order to ensure that Mr Breda and
Ms de Jager do not frustrate Mr Snyders’ right
to re-occupy the
house, it is necessary that an eviction order be granted against Mr
Breda and his family. To do so is just
and equitable.
Otherwise, an order of court will be frustrated and rendered
ineffective and Mr Snyders’ rights will
be rendered hollow.
[82]
I have read the separate judgment by my Colleague Froneman
J
[25]
in which he expresses the view that it is not necessary to make an
eviction order against Mr Breda and his family. He concludes
that it will suffice if we were to make an order that Ms de
Jager take the necessary steps to give peaceful possession of
the
house to Mr Snyders and his family. My difficulty with
that approach is that it may render our order ineffective
and may
make it necessary, if Mr Breda refuses to vacate the house, to start
other proceedings afresh. Those would have to
be eviction
proceedings that Ms de Jager would have to institute against Mr
Breda. She would probably institute them in the
Magistrate’s
Court. This case took almost eight years to reach us. If
new eviction proceedings were to be instituted
by Ms de Jager, they
might take another almost eight years before the dispute is finally
brought to an end. This would mean that
in total the dispute would
have taken almost 16 years to be resolved by the courts.
[83]
An approach to the matter that could lead to such a delay in
the finalisation of litigation should be avoided if there is a way to
avoid it. We have heard Mr Breda and there is, my view, no
reason why we should not avoid that by granting an eviction order
against Mr Breda and his family if it is just and equitable to do
so. In my view it is just and equitable that we grant such
an
eviction order.
[84]
It follows from all the above that the appeal must be upheld
and that the orders made by the Land Claims Court and the
Magistrate’s
Court should be set aside. The order of the
Magistrate’s Court must be replaced with an order dismissing
Ms de Jager’s
application with costs. In
addition this Court must make an order for the eviction of Mr Breda
and his family from the house
which Mr Snyders and his family
occupied before 1 October 2015.
[85]
In the result the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Land Claims Court, the Supreme Court of Appeal
and the Magistrate’s Court for the district of Ladismith
are
set aside and that of the Magistrate’s Court is replaced with
the following:
“(a)
The application is dismissed with costs.”
4. Mr Willem Breda, his partner or common law wife and children are
ordered to vacate the dwelling or house which was occupied
by
Mr Karel Snyders and his family before 1 October 2015 within
14 calendar days from the date of this judgment.
5. Should Mr Willem Breda and his family still be in occupation of
the house or dwelling referred to in 4 above after the expiry
of the
period, the Sheriff is authorised and ordered to immediately evict
him and his family or anyone occupying the house through
him from the
dwelling or house previously occupied by Mr Karel Snyders and
his family on the farm owned by Mr F L
Stassen.
6. The orders in 4 and 5 do not authorise or order the eviction of
Mr Willem Breda and his family from the farm owned by
Mr F L Stassen and managed by Ms Louisa de Jager.
7. Ms Louisa de Jager must pay the costs of the application for leave
to appeal and the appeal in this Court, the Supreme Court
of Appeal
as well as the costs of the proceedings in the Land Claims Court.
For Applicants:
For Respondent:
P R Hathorn SC
with U K Naidoo instructed by J D van der Merwe Attorneys.
J J
Botha,
instructed by Blyth &
Coetzee.
[1]
The reason why Froneman J’s name does not appear among
the Judges who concur in this judgment and yet is part of the
coram
is that he has written a separate judgment in which he indicates
that he agrees with this judgment except on the issue
of joinder and
the grant of the eviction order. See
Snyders and Others v
de Jager
[2016] ZACC 54
at para
[24]
.
[2]
32 of 1997.
[3]
See [36] below.
[4]
See [59] below for quote of section 10(1), (2) and (3) of ESTA.
[5]
See [55] below for quote of section 6(3) of ESTA.
[6]
Snyders v de Jager
[2015] ZASCA 137
;
(2016) 5 SA 218
(SCA)
(Ponnan, Salduker, Dambuza and Mathopo JJA concurring).
[7]
22 of 1994.
[8]
10 of 2013.
[9]
See
Tikly v Johannes NO
1963(2) SA 588 (T) at 590E–591A.
[10]
See [32] above.
[11]
51 of 1977.
[12]
Section 302 of the Criminal Procedure Act. See also Swanepoel
“Review” in Joubert et al
Criminal Procedure Handbook
11 ed (Juta & Co Ltd, Claremont 1994) at 377.
[13]
S v Cedars
2010 (1) SCRA 75
(GNP) at 77A-C citing
R v
Harmer
1906 TS 50
(
Harmer
) at 52.
[14]
S v Addabba; Ngeme; Van Wyk
1992 (2) SACR 325(T)
at 331 A-C
citing
Harmer
Id at 52.
[15]
R v
Madlelana
1936 E.D.L 140
;
S v Makebe
1967
(1) SA 464
(N); and
S v Katu
2001 (1) SACR 528 (E).
[16]
See Swanepoel above n 12 at 379.
[17]
Magodi v Van Rensburg
[2001] ZALCC 30.
[18]
Van Der Merwe v Klaase; In re: Klaase v Van Der Merwe
[2014]
ZALCC 15
(Klaase)
.
[19]
The Mont Chevaux Trust (IT 2012/28) v Goosen
, unreported
judgment of the Land Claims Court, Case No L16/2014 (3
November 2014)
(Goosen)
.
[20]
Brummer v Joostenberg,
unreported judgment of the Land Claims
Court, Case No LCC 16R/2014 (20 February 2015).
[21]
66 of 1995.
[22]
Section 188(1) reads:
“(1) A dismissal that is not automatically unfair, is unfair
if the employer fails to prove—
(a) that the reason for dismissal is a fair reason—
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair
procedure.”
[23]
See
Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
[1984].
[24]
Literally, translated “small hall”.
[25]
Snyders and Others v de Jager
[2016] ZACC 54.