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[2014] ZAWCHC 28
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J & F Le Roux Properties CC and Another v Manisi and Others (17328/13) [2014] ZAWCHC 28 (4 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 17328/13
DATE:
04 MARCH 2014
Before: The
Hon. Mr Justice Binns-Ward
In the matter between:
J & F LE ROUX
PROPERTIES CC
.............................................
First
Applicant
DISTELL
LIMITED
..................................................................
Second
Applicant
And
PONIE
MANISI
..............................................................................
First
Respondent
AND
NINE OTHERS
...................................................
Second
to Tenth Respondents
JUDGMENT
DELIVERED ON 4 MARCH 2014
[1]
In this matter the applicants have applied,
in terms of s 4 of the
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998
(‘PIE’),
for the eviction of the first respondent and those members of his
family holding under him from a labourer’s
cottage on the farm
Groenvlei, near Worcester. The first respondent had obtained
the right to occupy the premises in terms
of his erstwhile employment
on the farm by the second applicant. He resided there with his
family from 1960. When he
ceased to be employed in 2004, his
continued tenure was thereafter protected in terms of the Extension
of Security of Tenure Act
62 of 1997 (‘ESTA’) by virtue
of his status under that Act as an ‘occupier’. The
applicants allege
that the first respondent has ceased to qualify as
an occupier in terms of ESTA and that his residual possession of the
premises
in the circumstances to be described below constitutes
unlawful occupation within the meaning of PIE.
[2]
The first respondent is currently 75 years
old. It is common ground that he has been infirm in recent
years and is consequently
unable to care for himself. The
family members who initially used to attend to his needs at the
cottage where he lived have
either died or had to give up caring for
him on a daily basis because of the demands of their employment.
Those family members
who still live at the cottage (the third,
fourth, seventh and eighth respondents, being three of the first
respondent’s daughters
and his grandson, respectively) are
unable to look after him during the week because they have to go to
work during the day.
As a consequence of this situation the
first respondent has been placed in a home for the elderly in
Worcester.
[3]
According to the answering affidavit made
by the first respondent, this happened with his agreement on the
understanding that he
would stay at the home during the week and
return to the cottage on weekends and public holidays when his family
members would
be available to take care of him. The first
respondent averred that aside from ‘some clothes and personal
effects’
all his belongings, including his possessions of
sentimental value, are kept at the cottage. He maintains an
interest in
the upkeep of the garden at the premises, and when he is
there gives instructions as to its maintenance. He said, in
effect,
that he regards the cottage as his home and asserted that he
had not abandoned his right to reside at the premises. The
first
respondent characterised the time that he spends at the old age
home as ‘temporary absence’ from the cottage during
the
week.
[4]
A letter of confirmation from the home
concerning the first respondent’s position was annexed to the
answering affidavit.
It reads as follows:
Bogenoemde
[i.e. the first respondent] is inwoner van [the name of the home].
Omdat
Mnr. Manisi se kinders en kleinkinders werk en daar niemand is om na
hom om te sien het sy kinders hom in die tehuis geplaas.
Mnr.
Manisi word elke 2de naweek en wanneer van die kinders met verlof is
gehaal.
[signed]
D.
Fortuin
Bestuurder
[5]
There is a dispute on the papers as to how
regularly and frequently the first respondent comes to the premises
during weekends and
holidays, as alleged. In reply the
applicants put in evidence certain information extracted from a
register maintained at
the old age home to show when residents
checked out temporarily and returned – a so-called ‘In
and Out-Book’.
That information would on its face suggest
that the first respondent rarely left the old age home. It was
evident, however,
from the rebutting affidavits put in by the
respondents, which I admitted, without objection by the applicants’
counsel,
that the register was probably not accurately maintained.
This was borne out even on the material put in by the applicants,
which in some instances recorded details of the first respondent
having checked out of the home with no indication as to when he
had
returned. In the result, applying the well-established rules
pertaining to the treatment of evidence on paper for the
purposes of
determining applications for final relief, I must accept the first
respondent’s version of the facts.
[6]
It was alleged in the applicants’
founding papers that the first respondent had ‘vacated’
the premises and no
longer resided there, having voluntarily
‘relocated his current place of residence in the town of
Worcester’.
The applicants alleged that the alleged
vacating of the premises by the first respondent constituted an
abandonment of his rights
of occupation under ESTA. It was
conceded, however, that the first respondent was ‘in law still
in possession of the
premises’.
[7]
In argument it appeared eventually to be
common cause between counsel that the determination of the case turns
on whether or not
the first respondent is still an ‘occupier’
of the premises within the meaning of that word as defined in s 1
of ESTA;
[1]
more particularly, whether, within the ambit of that definition, he
qualifies as ‘a person
residing
’
on the land. In my judgment that is indeed the determinative
question.
[8]
Mr
Wilken
,
who appeared for the applicants, acknowledged that the words ‘reside’
and ‘residence’ were capable of
more than one meaning and
that, when used in legislation, they fall to be interpreted
contextually with reference to the objects
of the statute concerned;
cf. e.g.
Ex parte Minister of Native
Affairs
[2]
and
August and Another v Electoral
Commission and Others
.
[3]
He pointed out in this regard that the word ‘residing’
had already been interpreted by the Supreme Court of Appeal
(‘SCA’)
in the context of the definition of ‘occupier’ in ESTA in
Kiepersol Poultry Farm (Pty) Ltd v
Phasiya
.
[4]
In that matter, Mpati P, noting that the Court had in an earlier
judgment
[5]
had found ‘
that the main purpose of the Act “is to
regulate the eviction process of vulnerable occupiers of land”
and that the
Act “generally seeks to protect a designated class
of poor tenants occupying rural and peri-urban land . . . with the
express
or tacit consent of the owner against unfair eviction from
such land”’, held that the meaning of the word ‘residing’
in the definition of ‘labour tenant’
[6]
in the Land Reform (Labour Tenants) Act 3 of 1996 – a statute
with very similar objects to those of ESTA – adopted
by the
Land Claims Court
[7]
was equally applicable to the meaning of that word in the definition
of ‘occupier’ in ESTA. The Land Claims Court
had
adopted the definition applied by Baker J in
Barrie NO v
Ferris
,
[8]
namely:
[R]eside"
means that a person has his
home
at the place mentioned. It is his place of abode, the place where he
sleeps after the work of the day is done . . .. It does not
include
one's weekend cottage unless one is residing there . . .. The essence
of the word is the notion of "permanent
home
".
(my underlining)
[9]
The applicants’ counsel further
submitted that the
Kiepersol
case was ‘substantively indistinguishable’ from the
current case. The issue in
Kiepersol
concerned whether a person, who spent most of his time living at the
homes of his children, and only visited the premises in issue
occasionally, but kept his furniture and belongings there, qualified
as an ‘occupier’ as defined in ESTA. It was held
by the
SCA that he did not. In my view, however, the facts of the
Kiepersol
matter differed materially from
those in the current case. Moreover,
Kiepersol
was decided on the basis of oral
evidence, which culminated in the rejection of the respondent’s
factual allegations in that
matter.
[10]
On the facts found to have been proven in
Kiepersol
,
Sam, the alleged occupier under whom the respondent in that matter
claimed to be entitled to ESTA rights, had left the premises
in issue
in February 2004 while he was still working as an employee on the
farm in question. He had left voluntarily to live
in the more
comfortable accommodation that had become available to him at the
house acquired elsewhere by one of his sons, Martin.
Sam had
subsequently been injured in a motor vehicle accident in September
2004 and had thereafter been pensioned off. Before
that,
however, the person in charge of the land had given his son, Gideon,
who remained in occupation of the premises in which
Sam had lived,
notice to vacate them. Notice had been given by reason of Sam
having ceased to live at the premises in February
2004.
Gideon, who was employed by an attorney, had not rejected the notice
to quit on the basis of asserting that he
lived there under his
father who was still in occupation - as the SCA considered might have
been expected had his father been considered
to be still residing at
the premises. He had instead, through the offices of his
attorney-employer, prevailed on the person
in charge of the property
to extend the period of notice allowed to him to vacate. The
SCA also pointed out, in concluding
that the court of first instance
should have held that Sam no longer resided at the premises, that
evidence that Sam’s wife
had informed the person in charge of
the property that Sam did not sleep on the premises, but ‘only
comes and visits from
time to time’ had not been challenged.
In addition, there was evidence from a former work colleague of Sam
that a farm
vehicle that he was required to hand over to Sam on a
regular basis used, after February 2004, to be taken to him at
Martin’s
house instead of to the address of the premises, to
which it had previously apparently been his habit to take it.
Thus, in
Kiepersol
,
it was proven that Sam had not resided at the premises since about
February 2004. His furniture remained at the premises
because
he had no need for it and it was required there to keep the house
habitable for the other family members who continued
to reside there.
[11]
The evidence in the current matter is that
the first respondent spends most of his time at the old age home.
The reason for
this is not because he has chosen to make it his home,
but because of his need for personal care. He does not regard
the
institution where he is obliged to stay for most of the time as
his home. He is only there because of the exigencies of his
health and it is evident from the content of his answering affidavit
that it remains important to his sense of dignity, freedom
and
security, freedom of association and freedom of movement that he is
able to go back regularly to the premises to live with
his family and
enjoy his home comforts. The premises are where he keeps his
furniture and most of personal possessions because
that is the place
to which he returns whenever possible to be in his own place.
On the basis of the first respondent’s
evidence, which I must
accept for present purposes, it is at the premises that he enjoys the
sense of ‘permanence’
that is integral to the concept of
residence expressed in the interpretation given in
Barrie
.
The word ‘home’, with its connotation of the place
where one lives with one’s family,
[9]
lies at the heart of the definition of ‘residing’ given
in
Barrie
.
(It was for that reason that I emphasised the word by underlining it
in the quotation from
Barrie
set
out earlier.)
[12]
The meaning of ‘residing’ in
the relevant sense does not fall to be determined on the basis of an
arithmetical calculation
of where a person spends most of his time,
or where he sleeps most nights. During argument various
examples were postulated,
which seemed to me to illustrate the
point. Take the terminally ill cancer patient who has to spend
Monday to Friday in a
hospice because the family members who live
with him go out to work and consequently are unable to give him the
care that he needs,
but who comes home at weekends when the family is
available to look after him. Has he given up his home because
he sleeps
at the hospice on most nights of the week? I do not think
so. Take the company employee who lives in Cape Town, where he
has a family home, but whose work requires him to spend most of his
time in Johannesburg, where he stays every Monday to Friday
in a
bachelor flat provided by his employer. Is his home in Cape
Town or Johannesburg? In my view the answer is Cape
Town.
If the applicant’s case depends, as it appears to do, on the
relinquishment by the first respondent of his rights
under ESTA –
that is on an acceptance of the allegation that he has given up his
home on Groenvlei - I do not think that
that has been established on
the papers.
[13]
The object of ESTA is to address the
vulnerability of persons like the first respondent to eviction from
places that have been their
homes; to afford security of tenure; to
avoid the great hardships that attended the eviction of workers from
farms when their labour
was no longer required and the social
instability to which such evictions contributed historically.
The legislation, which
is founded upon the provisions of s 25(6)
of the Constitution, is expressly informed by the need to uphold and
promote certain
fundamental rights. Thus, s 5 of ESTA
reiterates the fundamental rights that everyone has to human dignity,
freedom
and security of the person, privacy and freedom of
movement.
[10]
In addition, as the SCA noted in
Lebowa Platinum Mines
,
[11]
the provisions of s 26(3) of the Constitution, which express the
constitutional significance of every person’s home
as part of
the enshrined framework of basic human rights, also fall to be
considered when a court interprets and applies the provisions
of
ESTA.
[14]
In my judgment there is no doubt that the aforementioned basic
rights of the first respondent would be adversely affected were he
to
be prevented from being able to return to the premises on the
weekends and holidays when his family members are available to
care
for him there. The applicant’s counsel submitted that
there would be nothing preventing the first respondent from
spending
his weekends and holidays at the houses of those of his adult
children who live elsewhere in the area. In my view,
it is
misconceived to try to equate the opportunity to stay with those
children with his current ability to return frequently and
regularly
to the place where he lived permanently for the best part of half of
a century, to sleep in his own bed in his own bedroom,
and to enjoy
the garden that he was used to tending and over which he still
exercises a supervisory role. The postulate instead
goes to
highlight the difference between the character of the premises as
the
first respondent’s
home and that of the alternative places
to which counsel suggests he should go as
his
children’s
homes.
[15]
To sum up, I am not persuaded in the given circumstances that
the fact that the first respondent is obliged by the exigencies of
his physical health to spend the greater part of his time staying in
an old age home entails that he has given up his home on the
farm.
The evidence that I have to accept on the papers establishes that the
first respondent has continued to use the premises
as his home and
that he therefore continues to qualify as an ‘occupier’
within the meaning defined in s 1 of ESTA
by virtue of his still
residing there.
[16]
The rights of an occupier under ESTA
include the right to family life as an incidence of residence on the
land concerned.
The extent of the right depends on the given
circumstances of the case and falls to be determined in a way that
strikes a fair
balance between those of the occupier, on the one
side, and those of the owner or person in charge of the land, on the
other; see
s 6(2)(d) of ESTA
[12]
and the Constitutional Court’s judgment in
Hattingh
and Others v Juta
.
[13]
In my view, the occupation of the cottage by three of his adult
daughters, who were born and raised on the property, and
a grandson
are an incidence of the first respondent’s family life.
Their presence at the premises provides the support
without which the
first respondent would not be able to exercise his right to reside
there and in large measure gives content to
many of the first
respondent’s rights acknowledged in s 5 of ESTA.
[14]
It does not impinge on the first applicant’s rights in any
significant way. The first applicant would like to
give the use
of the cottage to a labourer currently in its employ – in the
replying affidavit the question was addressed
in the following
general terms: ‘The house in which Second to Nine (sic)
Respondents reside…is earmarked for labourer’s
housing’. There was no suggestion, however, that the
first applicant would be able to use the cottage for the earmarked
purpose while the first respondent continues to reside there.
The current case thus differs in this respect from that of
Hattingh
,
in which it was the landowner’s wish to use part of the
premises occupied by Mrs Hattingh and her adult family members to
accommodate a particular worker who otherwise had to cycle 16km every
day to get to work.
[17]
In the result the application is dismissed
with costs.
A.G.
BINNS-WARD
Judge of the
High Court
[1]
‘ “
occupier”
means
a person residing on land which belongs to another person, and who
has or [sic] on 4 February 1997 or thereafter had consent
or another
right in law to do so, but excluding-
(a)
......[deleted by s 6
(a)
of
Act
51 of 2001
];
(b)
a person using or intending to use the land in question
mainly for industrial, mining, commercial or commercial farming
purposes,
but including a person who works the land himself or
herself and does not employ any person who is not a member of his or
her
family; and
(c)
a person who has an income in excess of the prescribed
amount [R5 000 per month]’.
[2]
1941 AD 53
, at 58.
[3]
[1999] ZACC 3
;
1999 (3) SA 1
(CC),
1999 (4) BCLR
363
at para 24 and note 7.
[4]
2010 (3) SA 152 (SCA).
[5]
Lebowa Platinum Mines Ltd v Viljoen
2009
(3) SA 511
(SCA) at para 9.
[6]
‘ “
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 a successor to a labour tenant in accordance with the
provisions of section 3 (4) and
(5), but excluding a farmworker’.
[7]
In
Mkwanazi v Bivane Bosbou
(Pty) Ltd and Another and Three Similar Cases
1999 (1) SA 765 (LCC).
[8]
1987 (2) SA 709
(C) at 714F.
[9]
In the Oxford Dictionary of English,
the primary meaning of ‘home’ is given as ‘
the
place where one lives permanently, especially as a member of a
family or a household
’.
[10]
Section 5 provides:
‘
Subject to
limitations which are reasonable and justifiable in an open and
democratic society based on human dignity, equality
and freedom, an
occupier, an owner and a person in charge shall have the right to-
(a)
human dignity;
(b)
freedom and security of the person;
(c)
privacy;
(d)
freedom of religion, belief and opinion and
of expression;
(e)
freedom of association; and
(f)
freedom of movement,
with due regard to the
objects of the Constitution and this Act.’
[11]
Note 5, above, at para 13.
Lebowa Platinum
Mines
was also a
case in which the meaning of the word ‘occupier’ in ESTA
was the central issue in point.
[12]
Section 6(2)(d) provides:
‘
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-
(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’.
[13]
2013 (3) SA 275
(CC),
2013 (5) BCLR 509
, especially at
para 31-40.
[14]
See note 10, above.