IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG CASE NUMBER: LCC 38R/02 In chambers: MOLOTO AJ MAGISTRATE S COURT CASE NUMBER: 18577/01 Decided on: 27 May 2002 In the review proceedings in the case between: MAAS TRANSPORT BK Applicant and BEUKES, C Respondent JUDGMENT MOLOTO AJ: [1] This is a review in terms of section 19(3) of the Extension of Security of Tenure Act 1 ( the Act ) of the order given by the Magistrate, Kuilsrivier, on 18 April 2002, evicting the respondent and her family from the property known as Portion 16 of the farm Number 725, Joostenbergvlakte, Kraaifontein and commonly known as Amanzi ( the farm ). The applicant is a registered closed corporation and describes itself as the lawful occupier of the farm. [2] The respondent lives in a house on the farm with three children and a grandchild. The two older children are majors. The youngest child and grandchild are schoolgoing minors. Preliminary issues [3] There are two issues I wish to deal with before dealing with the merits. They follow hereunder. 1 Act 62 of 1997, as amended.

2 2 (a) Representation of the parties The applicant was legally represented in the matter. The respondent mentioned that she had instructed Lawyers for Human Rights in Stellenbosch but she did not know how far they had gone with the matter. The applicant s representative made several attempts to ascertain from Lawyers for Human Rights at Stellenbosch if they represented the respondent, but to no avail. The magistrate formed the view that the Lawyers for Human Rights did not represent the respondent and he held that to avoid further prejudice to the applicant, there was no alternative but to proceed with the matter. The question of legal representation of occupiers was pertinently dealt with by this Court in the matter of Nkuzi Development Association v The Government of the Republic of South Africa and Another. 2 This Court found that the Government of the Republic of South Africa, either through its Legal Aid Board or any other government department, is duty bound to provide, free of charge, legal representation to occupiers 3 who have good cases but who cannot afford to engage legal representatives out of their own resources. The judgment also sets out guidelines for a court faced with such an occupier. The guidelines state that a judicial officer must inform litigants of their rights to representation at State s expense, how to exercise such rights and where to obtain assistance in order to do so. 4 The court is urged to assist such an occupier to access the necessary legal representation through government agencies such as the Legal Aid Board. The magistrate, in casu, did not follow those guidelines, an unfortunate situation which would, in appropriate cases, justify a referral of the case back to the court a quo to follow the guidelines. Because there are other issues I wish to deal with and the order I intend making, I am not referring the case back to the magistrate (2) SA 733 (LCC), [2001] 4 All SA 460 (LCC). 3 As defined in section 1 of the Act. 4 See para [11] of the judgment referred to in n 2 above.

3 3 (b) Locus standi of the applicant The applicant states both in the founding affidavit and in the notice in terms of section 9(2)(d)(i) to the respondent that it is the lawful occupier of the farm. The Act provides 5 that a person who may apply for the eviction of an occupier is the owner or person in charge of the land on which the occupier resides. To describe itself simply as a lawful occupier can, therefore, not confer locus standi on the applicant. It does not appear from the papers before me that the magistrate dealt with this issue and whether applicant s locus standi was established. The merits [4] Section 9(2)(b) of the Act provides that for the court to order eviction, the occupier must have, amongst others, not vacated the land in question within the notice period given to vacate such land. Nowhere in the founding and supplementary affidavits is it mentioned that the respondent was asked to vacate the farm and that she was given notice of a period within which to so vacate. It is only mentioned in the notice in terms of section 9(2)(d)(i) that the respondent was given notice on 20 July 1999 to vacate the farm. The giving of such a notice was not proved. The respondent also stated in evidence that she received notices to vacate. Nowhere was mention made of a period within which the respondent was to vacate. This is one of the requirements for an eviction order. 6 [5] The applicant states in the founding affidavit that the respondent s right of residence was terminated because she had resigned. In the supplementary affidavit it is stated that the respondent left the farm without leave for a period of two weeks, and on her return did not resume duties. This behaviour was then interpreted and accepted by the applicant as resignation and the termination of the right of residence was grounded thereon. The respondent filed no answering affidavit, but chose to testify in court. In her testimony she explained that she was absent because she was admitted to hospital for diabetes and hypertension. On her return to work 5 See the definitions of owner and person in charge in section 1, read with, inter alia, sections 6(2), 7(1) and (2), 8(7) and 9(2)(b) and (d). 6 See section 9(2)(b) of the Act.

4 4 Mrs Maas, the wife of the deponent to the applicant s supporting affidavits, required her to sign a service contract, presumably amending the service contract that existed before she allegedly went to hospital. She refused to sign this service contract because [e]k wou nie al die werk doen wat in die kontrak staan vir so min geld nie. She went on to say Mrs Maas then ordered her to leave because she was impertinent ( parmantig ). [6] The applicant relies, for the termination of respondent s right of residence, on the provisions of section 8(2) of the Act, which read: (2) 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 employment or is dismissed in accordance with the provisions of the Labour Relations Act. [7] The magistrate found that the respondent had not resigned but that her employment did not continue because she refused to sign the service contract.the magistrate found further that because the respondent did not declare a labour dispute, the dismissal was in accordance with the Labour Relations Act. 7 The magistrate made this latter finding notwithstanding a reference in the section 9(3) report to a labour dispute that was referred to the Commission for Conciliation, Mediation and Arbitration ( CCMA ) and respondent s evidence that [e]k het afdrukke van die kontrak gemaak en na Mannekrag in Bellville geneem. Daar het n man vir my gesê die kontrak is nie reg nie. Hy het na meneer Maas-hulle se kantoor gebel en gesê hulle moet die kontrak regmaak. The respondent was not questioned about the labour dispute to establish what became of the referral of the dispute to the CCMA. The magistrate should have satisfied himself that there was no outstanding labour dispute. In this regard, the provisions of section 8(3) of the Act are telling. They read: (3) Any dispute over whether an occupier's employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act. [8] There is another aspect which requires determination. The Act at section 10, provides that in considering an application for eviction, a court must have regard to the efforts made by the parties at securing suitable alternative accommodation for the occupier. The respondent states, under cross examination, that she sought suitable alternative accommodation at Bloekombos. She 7 Act 66 of 1995.

5 5 does not say whether she found it, but she told the probation officer who prepared the section 9(3) report that she foresaw that if she was evicted she would have nowhere to stay. Nothing is said about any attempts by the applicant to find suitable alternative accommodation for the respondent. All that is mentioned is that the respondent has had sufficient time to seek such accommodation. The applicant cannot circumvent the provisions of the Act by suggesting that the respondent has had enough time to look for accommodation. [9] Finally, section 9(3) of the Act requires that in considering the eviction, a court must take into account the suffering which the parties may endure if the order is either refused or granted, in particular, the constitutional rights of the children with particular reference to education. I mentioned at the beginning of this judgment that there are two school-going children. The magistrate s judgment does not deal with this aspect. It is not known whether these children will be able to continue with their schooling if the eviction order is granted. If there is no suitable alternative accommodation, as is suggested by the respondent, it is not possible to determine whether they will be able to continue with their schooling, but the probabilities are high that they will not. Order [10] The order of the Magistrate, Kuilsrivier made on 18 April 2002 in this matter is set aside in its entirety and is substituted with an order as follows: The application is dismissed. ACTING JUDGE J MOLOTO For the applicant: André Heunis Inc t/a Heunis & Heunis, Cape Town. For the respondent: In person.