IN THE LAND CLAIMS COURT OF SOUTH AFRICA

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1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at VRYHEID on 16 to 17 February 1999 before MEER J CASE NUMBER: LCC27/98 In the case between A VAN ZUYDAM Plaintiff and ALBERT ZULU Defendant JUDGMENT MEER J: [1] This matter originated in the Magistrate s Court, Vryheid in June 1997 as an action for the eviction of the defendant from plaintiff s farm, Mooiplaas, district of Vryheid, KwaZulu-Natal (hereinafter referred to as the farm ). The eviction was sought on the grounds that the defendant was unlawfully occupying plaintiff s property. Plaintiff, in the summons issued out of the Magistrate s Court, Vryheid, prays for judgment against the defendant as follows: (a) (b) (c) An order for the eviction of Defendant together with his family, dependents, livestock and possessions, from the Plaintiff s property; Costs of suit; Further and/or alternative relief. [2] The case was transferred to the Land Claims Court in terms of section 13(1A)(a) of the Land Reform (Labour Tenants) Act, No 3 of 1996 (hereinafter referred to as the Labour Tenants Act ). Section 13(1A)(a) states: 13(1A) If an issue arises in a case in a magistrate s court or a High Court which requires that court to interpret or apply this Act and - (a) no oral evidence has been led, such court shall transfer the case to the Court and no further steps may be taken in the case in such court;

2 2 The defendant pleaded in a special plea that he qualifies as a labour tenant under the Labour Tenants Act. This required the Magistrate s Court, Vryheid to interpret the Labour Tenants Act. No oral evidence was led and the matter was referred to this Court. In addition to the special plea the defendant pleaded that the Magistrate s Court, Vryheid did not have the necessary jurisdiction to grant an order for the eviction of the defendant as section 5 of the Labour Tenants Act provides that a labour tenant may only be evicted by an order of the Land Claims Court. [3] After the transfer of the case to the Land Claims Court, the defendant amended his plea to include a plea in the alternative that he was occupier as defined in the Extension of Security of Tenure Act, No 62 of 1997(hereinafter referred to the Tenure Act ). Section 20(3) of the Tenure Act is similar to section 13(1A)(a) of the Labour Tenants Act. It states: (3) If in any proceedings in a High Court at the date of commencement of this Act that Court is required to interpret this Act, that Court shall stop the proceedings if no oral evidence has been led and refer the matter to the Land Claims Court. Hence the question of defendant s status as an occupier also falls to be determined by this Court. [4] The amended plea also included a further special plea which states: SPECIAL PLEA 1 The Defendant has lodged a claim in terms of Section 16 of the Land Reform (Labour Tenants )Act (the Act) for an award of the land owned by the plaintiff which he was using and occupying as at 2 June The defendant s application is still pending. 3 In the premises the defendant may not be evicted from the farm Mooiplaas, district of Vryheid, KwaZulu-Natal. WHEREFORE the defendant prays for an order adjourning this action until his application has been finalised. [5] At a pretrial conference the parties identified and simplified the issues to be tried by the Court as follows: (i) (ii) Is the defendant a labour tenant as defined in the Labour Tenants Act? Is the defendant an occupier as defined in the Tenure Act? They also agreed that the burden of proof operated in the following way:

3 3 (i) (ii) (iii) The defendant bears the onus of proving that he falls within paragraphs (a), (b) and (c) of the definition of a labour tenant under the Labour Tenants Act; The plaintiff bears the onus of proving that defendant is a farmworker under the Labour Tenants Act should he wish to do so. The defendant bears the onus of proving that he is an occupier as defined in the Tenure Act, to the extent that the defendant relies on the defence that he is an occupier. It was furthermore agreed that the hearing would commence with defendant s special plea seeking an adjournment as a result of his application under section 16 of the Labour Tenants Act for an award of land owned by plaintiff. History of ownership of the farm and defendant s association therewith. [6] The issues to be tried can best be determined and understood within the context of the defendant s long association with the farm and the history of its ownership, factors which emerged as common cause. [6.1] The defendant has resided in the area for approximately 30 years. Throughout this period he has been in the full-time employ of the Railways and is still so employed. Initially he lived on a farm owned by the Corporation across the river from the farm Mooiplaas. In approximately 1985, he moved to Mooiplaas which was then owned by the Roman Catholic Church (hereinafter referred to as the Church ) but leased by a certain Mr Nel. Mr Nel gave the defendant permission to live on the farm in return for which the defendant looked after Nel s cattle, personally when he returned from work each day and during weekends. Whilst the defendant was at work during the week his wife looked after the cattle in his stead. [6.2] Mr Nel s lease on the farm expired in about 1990, when he departed for Kimberley. Whilst the defendant therefore stopped working for Nel on that date, he did not leave the farm but continued residing and grazing his cattle thereon. The defendant testified that some time after Nel left, he worked for a man who leased the farm from the Church for a short while. Thereafter he continued enjoying occupation of the farm without working thereon until [6.3] In June 1994, the Church sold the farm to Olaf and Gloria Hughes. The Hughes and defendant had been friends since the 1970's. When the Hughes took over ownership they permitted defendant to continue residing on the farm and enjoy grazing rights in return for the provision of some labour. Defendant resided on the part of the farm known as Sub 3 and the Hughes lived on Sub 4. Initially things went well and defendant helped the Hughes in fighting off squatters from the farm. On 14 March 1995, the agreement between defendant and the Hughes pertaining to his residence on the farm in return for looking after it, was recorded in writing.

4 4 [6.4] Thereafter the Hughes decided to sell Sub 3 where defendant lived to plaintiff. Accordingly, in June 1995, Sub 3 was transferred from the Hughes to plaintiff. It was a condition of the sale that defendant would move from Sub 3. Mrs Hughes communicated this to defendant, invited him to take up residence on Sub 4 and continue working for them but defendant did not do so and currently refuses to move from Sub 3. On the contrary he has come to regard himself as being the owner of Sub 3 and will not give plaintiff access thereto. Relations between the Hughes, who have been authorised to manage Sub 3 for plaintiff, and the defendant have soured, to such an extent that their offer for him to live on Sub 4 with them no longer stands. Special plea [7] Defendant s special plea for an adjournment on the basis that an application in terms of section 16 of the Labour Tenants Act is pending, was dismissed. My reasons for the dismissal are as follows: [8] The relevant section of the Labour Tenants Act pertaining to the special plea, section14, prevents a labour tenant from being evicted by the court while an application for an award of land by him or her is pending, except where there are special circumstances which make an eviction just and equitable. Section 14 reads as follows: No labour tenant may be evicted while an application by him or her in terms of Chapter III is pending: Provided that the Court may order eviction if it is satisfied that special circumstances exist which make it fair, just and equitable to do so, taking all the circumstances into account. [my emphasis] [9] From the plain and unambiguous wording of the section, it is clear that in order to enjoy the protection of section 14, one must have the status of a labour tenant. This one acquires by satisfying 1 all the requirements of the definition of a labour tenant prescribed in the Labour Tenants Act, no more, no less. [10] An aspirant or potential labour tenant whose labour tenancy status is disputed and still to be determined (like the defendant in this case) who applies for an award in land is, in my view, not protected by section 14. Were such a category of persons contemplated at section 14, the section would have stated [n]o person claiming to be a labour tenant may be evicted..., or words to that effect, as Mr De Wet for the plaintiff suggested. The only rationale for extending the ordinary meaning of the words in section 14 in this way would be to give expression to the intention of the 2 legislature and to establish the legal meaning of words using the context of the legislation. This appears clearly from the section itself and its context within the Labour Tenants Act. The section gives expression to the intention of the Labour Tenants Act, which is to provide security of tenure 1 2 Infra n 5. Devenish, Interpretation of Statutes, (Juta & Co, Cape Town 1992) at 289.

5 5 3 and protection to labour tenants and not aspirant labour tenants. The legal meaning of the term labour tenant within the context of the legislation does not lend itself to be extended to include anyone other than a person who has already acquired the status of a labour tenant as defined in the Labour Tenants Act. In the present case, where defendant s labour tenancy is disputed, it is only once he is determined to be a labour tenant, that section 14 of the Act can apply to him. [11] Were the provisions of section 14 not confined to labour tenants alone, it could arguably lay the way open for unlawful occupiers to delay their evictions by pleading labour tenancy status, applying for an award of land under chapter III and thereafter claim protection from eviction under section 14. This would frustrate the intention of the Labour Tenants Act which is clearly aimed at protecting labour tenants, and not unlawful occupiers, from eviction. The section was not intended to be used as a delaying tactic by unauthorised persons. [12] There not having been certainty as to the defendant s labour tenancy status at the hearing of the special plea, the issue still falling to be determined by the Court, the special plea was dismissed. [13] I note in passing that defendant, as an aspirant labour tenant, pursued two routes almost simultaneously to reach a determination of his labour tenancy status. He approached the Court directly when the case was transferred to it and also applied to the Director-General of Land Affairs for an award of land under section 16 of the Labour Tenants Act. Mr Groenewald, for the defendant, failed to furnish the court with any details of the latter application apart from stating that there had been no response from the Director-General. [14] We know from the Labour Tenants Act that where there has been an application for an award of land under section 16 and the owner of land does not admit that an applicant is a labour tenant 4 the Director-General refers the application to this Court. Given that the plaintiff disputes defendant s labour tenancy status, the application to the Director-General under section16 would no doubt have found its way to this Court. A determination of this Court would therefore in any event still have to be made about defendant s disputed labour tenancy status pursuant to the application under section16. Given the absence of a response by the Director-General to the section 16 application for an award in land, one would have assumed that defendant would have welcomed the determination of precisely that issue at an early date. Instead he asked for a postponement by way of special plea, a request which is perplexing in the circumstances. [15] Clearly the most expeditious and efficient way of dealing with this case necessitated the hearing of the matter without waiting for the outcome of the section 16 application. There may well be other instances where efficiency and expediency dictate that a section 16 application to the Director-General takes precedence over litigation before the Court and for which the postponement 3 4 Pre-amble to the Labour Tenants Act. Section 17(6) of the Labour Tenants Act.

6 6 of the latter is most appropriate.. This is clearly not one of them. I now turn to consider defendant s labour tenancy status. Is the defendant a labour tenant as defined in the Labour Tenants Act? [16] In conducting this enquiry, I must examine whether the defendant has shown that he satisfied 5 all three requirements of the definition of labour tenant as set out at section 1(xi) of the Labour 6 Tenants Act and that he fulfilled these requirements on 2 June [17] I shall examine compliance with each paragraph of the definition in turn. The defendant must 7 show compliance with all requirements contained in the definition. If defendant is determined to be a labour tenant, I then need to consider whether there are special circumstances under section 14 of the Labour Tenants Act which will enable this Court to order defendant s eviction pending his application for acquisition of rights in land under section 16 of the Labour Tenants Act. 5 Labour tenant means a person - (a) (b) (c) who is residing or has the right to reside on a farm; who has or has had the right to use cropping or grazing land on the farm, referred to in paragraph (a), or another farm of the owner and in consideration of such right provides or has provided labour to the owner or lessee; and whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm, including a person who has been appointed a successor to a labour tenant in accordance with the provisions of sections 3(4) and (5), but excluding a farmworker. 6 Section 3(1) of the Labour Tenants Act states: (1) Notwithstanding the provision of any other law, but subject to the provisions of subsection (2), a person who was a labour tenant on 2 June 1995 shall have the right with his or her family - (a) (b) to occupy and use that part of the farm in question which he or she or his or her associate was using and occupying on that date; to occupy and use that part of the farm in question the right to occupation and use of which is restored to him or her in terms of this Act or any other law. See also Mlifi v Klingenberg [1998] 3 All SA 636 (LCC) at 643a; 643e; 643g and 645b. 7 Dhladhla and Others v Erasmus, LCC11/98, 24 November 1998, as yet unreported at par [6]; Mlifi v Klingenberg supra n 6 at 642g-650d; Ngcobo and Another v Van Rensburg and Others [1997] 4 All SA 537 (LCC) at 540i-547h; Zulu and Others v Van Rensburg and Others 1996 (4) SA 1236 (LCC) at 1253H-1254E; Mahlangu v De Jager 1996 (3) SA 235 LCC at 241C-242A.

7 7 Has defendant complied with paragraph (a) of the definition? [18] Paragraph (a) of the definition states: (xi) labour tenant means a person - (a) who is residing or has the right to reside on a farm; (b)... (c)... It is common cause that defendant was residing on the farm on 2 June 1995 and currently still resides there. The defendant has therefore shown compliance with paragraph (a) of the definition. Has defendant complied with paragraph (b) of the definition? [19] Paragraph (b) of the definition states: (xi) labour tenant means a person - (a)... (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 for such right provides or has provided labour to the owner or lessee; and (c)... [20] From the evidence, I am satisfied that as from 2 June 1995 a written agreement existed between the defendant and the owners of the farm at that time, Olaf and Gloria Hughes. In terms of this agreement, defendant was given the right to occupy a portion of land and graze cattle thereon, in return for looking after the farm. The agreement was entered into on 14 March 1995 between Mrs Gloria Hughes, the defendant and his wife, Nomfundo Zulu. The following is an excerpt from the agreement:... Our agreement is that he [Albert Zulu] and his wife are going to look after my farm for the time that they are living there. We have also agreed that he is only going to have one wife staying on the farm, with her children from him which is Nomfundo and I am allowing him to have only 10 head of cattle on the farm We have also agreed that he will not have more than five rooms on the farm until I give him written permission to build more rooms or should I decide to use the farm for planting purposes we have agreed that he will remove his cattle from my farm. This agreement is valid for six months. After every six months we will renew this agreement if we are still living in harmony together. But if he does not abide with my rules he will be given thirty days to leave the farm. [21] The agreement made no provision for remuneration. The defendant initially denied that the signature on the agreement was his but later claimed that he was hijacked into signing by Mrs Gloria Hughes while he was drunk. Mrs Hughes denied this. She testified that she had gone to defendant s house to have the agreement signed. She had taken along an ink pad for defendant s wife

8 8 who had placed her thumb prints on the agreement. Mrs Hughes also testified that she had explained the agreement to defendant and his wife in Zulu. The defendant s wife denied that the thumb prints on the agreement were hers. I do not accept this. I find on a balance of probabilities, after carefully 8 weighing up the evidence for the defence and the plaintiff on this issue, that Mrs Hughes testimony was credible, reliable and consistent as compared with that of defendant and his wife. I am therefore able to accept Mrs Hughes version, that the signature on the agreement is indeed that of the defendant and the thumb prints those of his wife. I accept also Mrs Hughes testimony that she explained the agreement to the defendant and his wife. I therefore find that the defendant and his wife signed the agreement, understood it and are bound by it. [22] The other significant employment relationship defendant had on the farm was with Mr Nel some years previously, as explained in paragraph [6.1] above. The issue arose whether defendant could claim compliance with paragraph (b) of the definition of labour tenant on the basis of this 9 relationship. In Mlifi v Klingenberg this Court found that the use of the past tense in paragraph (b) ( has provided ) means that if on 2 June 1995 a person had provided labour in the past in exchange for grazing and cropping rights, he or she fulfills the requirements of paragraph (b). On this basis the question was posed as to whether defendant could rely on his employmwnt with Nel for the purposes of paragraph (b) of the definition. Mr de Wet argued that a labour tenancy contract could not have existed between defendant and Mr Nel as defendant was never in full-time employment for Mr Nel. He furthermore argued that defendant s wife could not have been his nominee in relation to Mr Nel, as a nominee can only be appointed by a labour tenant who has worked full-time, thereafter ceases so to do and appoints a nominee to work in his stead. I do not believe that it is necessary for me to make a finding whether a labour tenancy agreement existed between Mr Nel and defendant, given that I have already found there to have been a labour tenancy agreement between defendant and the Hughes on 2 June 1995 in terms of which he provided labour in return for the rights to occupy and graze. Defendant therefore does not need to rely on his employment with Nel to prove that he complied, on 2 June 1995, with paragraph (b) of the definition of labour tenant. [23] Thus I am able to find that as of 2 June 1995 the defendant had the right to use grazing land on the farm and in consideration of such right he provided labour to the owner. He accordingly satisfies the requirements of paragraph (b) of the definition. Has defendant complied with paragraph (c) of the definition? [24] Paragraph (c) of the definition states: (xi) labour tenant means a person - (a)... (b)... 8 th Hoffman & Zeffert, South African Law of Evidence 4 ed (Butterworths, Durban 1988) at Supra n 6 at 645b-c.

9 9 (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, [25] The defendant testified that his father had worked as a bricklayer on a farm in the Swart Umfolozi area. In return he received no cash remuneration but was given the right to live on the farm and to keep cattle and plough the fields. When his father became old and was no longer able to work, defendant took over his work on the farm. Later defendant s father moved onto tribal land owned by the chief at the location of Kwa Ceza. [26] Defendant s testimony about his father s employment on the farm was credible and consistent and I am able to find that his evidence in this regard can be relied upon. I am therefore satisfied that the defendant has shown on a balance of probabilities that his father lived on a farm and had the use of cropping and grazing land thereon, in consideration for which he provided labour as is required at paragraph (c) of the definition. [27] The defendant has therefore complied with paragraph (c) of the definition of a labour tenant. The plaintiff lead no evidence to show that defendant was a farmworker on 2 June [28] I accordingly find that the defendant, having satisfied paragraphs (a), (b) and (c) of the definition of labour tenant on 2 June 1995, was a labour tenant on that date. Are there special circumstances as set out in section 14 of the Labour Tenants Act which permit the court to order defendant s eviction as a labour tenant pending the application for acquisition of rights in land by him under section16? [29] Section 14 enables the Court to order a labour tenant s eviction, even if there is an application pending for acquisition of rights in land if it is satisfied that special circumstances exist which makes it fair, just and equitable to do so, taking all the circumstances into account. I now turn to consider whether such special circumstances existed. [30] When the Hughes purchased the farm from the Church in 1994 it comprised two portions known as Sub 3 and Sub 4 as appears in a map of the area handed into Court as Exhibit B. Defendant as was explained in paragraph [6.3] above, occupied the portion Sub 3 whilst the Hughes occupied Sub 4. The written agreement between them, at that stage pertained to Sub 3 which was then owned by the Hughes and which defendant had the right to occupy. Soon after the conclusion of the written agreement on 14 March 1995, the Hughes decided to sell Sub 3 to plaintiff. Plaintiff agreed to buy Sub 3 on condition that the defendant would vacate that area of the farm. [31] In about April 1995, the Hughes informed the defendant of their intention to sell Sub 3 and invited him to come and stay on Sub 4, to which the written agreement would attach and where it

10 10 would continue. They informed him that plaintiff was not prepared to purchase Sub 3 if he was occupying that portion of the farm. The defendant agreed to move to Sub 4 within three months. The understanding was that he would move by July [32] On 10 May 1995, Sub 3 was sold to the plaintiff for R80 000,00 and the Hughes introduced him to the defendant who confirmed that he would be moving to Sub 4. Plaintiff himself, on that occasion, asked defendant what time period he would require to move and defendant indicated three months. [33] On 14 June 1995, ownership of Sub 3 was transferred to the plaintiff and he appointed the Hughes as managers of his property for a period of three years. Soon thereafter plaintiff and the Hughes met once again with defendant and asked him exactly when he was going to move to Sub 4. The defendant said he would not be moving to Sub 4. Instead he would be moving to an area near Mgobozi. Plaintiff gave defendant an extension of a further three month period in which to move and notified defendant that he intended occupying his farm in December On this occasion plaintiff even offered to pay R600,00 towards defendant s relocation expenses. [34] The agreement between defendant and the Hughes was not affected by the change of ownership to plaintiff of Sub 3 on 14 June The announcement by defendant on 14 June 1995, contrary to his agreement with the Hughes in April 1995, that he would not be moving to Sub 4, constituted a material breach by defendant of the relationship between him and the Hughes. [35] The defendant committed a further material breach of the relationship between himself and the Hughes in July 1995 (the expiry of the three months notice period agreed to between himself and Mrs Hughes in April 1995) when he failed to move from Sub 3 to Sub 4. [36] Yet another material breach can be said to have been committed by the defendant in September 1995, six months after the written agreement of March 1995 was entered into. The agreement was was not renewed due to defendant s failure to move to Sub 4. That agreement expressly stated that it is valid for six months whereafter it will be renewed if the parties are still living in harmony. If they are not, defendant will be given thirty days notice to leave the farm. Clearly they were not living in harmony because of defendant materially breaching the relationship between them. The agreement was never renewed. The Hughes have subsequently on numerous occasions requested defendant to leave Sub 3 which he refuses to do. [37] Each time defendant materially breached the relationship as explained above, he repudiated the respective agreements with the Hughes. The Hughes accepted the repudiations and the 10 agreements were cancelled. However, the effect of the Labour Tenants Act being a retrospective 10 See, for example, Culverwell and Another v Brown 1990 (1) SA 7 (A), headnote at 7G-H; Street v Dublin 1961 (2) SA 4 (W) at 10B; Van Rooyen v Minister van Openbare Werke en Gemeenskapsbou 1978 (2) SA 835 (A) at 844-6; Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) at 784F-G; Gero and Another v Linder 1995 (2) SA 132 (O) at 134I-J; Christie, The Law of Contract in South Africa 2 ed (Butterworths, Durban 1991) at 590.

11 11 11 statute, and of section 3 giving rights to persons who were labour tenants on 2 June 1995 to occupy and use land they were occupying on that date, is to accord greater significance to defendant s statutory labour tenancy rights than to the contractual dealings between him and the Hughes. [38] Around November 1995, the defendant informed the Hughes that he was not moving at all. He said his union had told him that land is free and that he could stay where he was. He claimed also that he was the owner of Sub 3. Thereafter the relationship between defendant and the Hughes deteriorated to such an extent that I do not believe it can be restored. Defendant, on his own admission, claims the right to threaten anyone who comes onto the plot with arrest and injury. He admits also to regularly chasing the Hughes cattle from the plot and even impounding them on one occasion. Defendant will not allow the Hughes onto the plot and plaintiff has simply not been able to occupy Sub 3 since he purchased it in The situation has become intolerable, compounded further by the unexplained death by poisoning of cattle belonging to the Hughes. [39] From all of the above, I believe that the train of events which occurred after the agreement of March 1995 right up to the present stalemate situation (where not only does defendant claim ownership of Sub 3 and refuses to move, but consistently denies the lawful owner access to his own farm, and has done so since he purchased it in 1995), must comprise special circumstances as contemplated in section 14 of the Labour Tenants Act. I consider defendant s material breaches to be so serious as to constitute not only grounds for eviction under section 7(2)(b) of the Labour 12 Tenants Act (in that it is not practically possible to remedy the relationship between the defendant and the then owner of the farm, the Hughes, either at all or in a manner which could reasonably restore the relationship, due to the material breaches), but also special circumstances permitting the Court to order defendant s eviction under section14. I am therefore able to make a finding that special circumstances exist which make it fair just and equitable for defendant to be evicted under section 14 of the Labour Tenants Act. [40] Notwithstanding the above, I am unable, at this stage, to grant plaintiff an order for defendant s eviction. This is so because the evicton I am permitted to order under section 14, must take place in accordance with the provisions of sections 5 to 11 of the Labour Tenants Act and Supra n 6. Section 7(2)(b) of the Labour Tenants Act states: (2) No order for eviction in terms of section 5 shall be made unless it is just and equitable and - (a)... (b) the labour tenant or his or her associate has committed such a material breach of the relationship between the labour tenant or associate and the owner or lessee, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship.

12 12 plaintiff has not complied with the the mandatory notice provisions stipulated at section 11 of the Labour Tenants Act. Section 11 states: 11 Notice of intended eviction (1) An owner who intends to evict a person in terms of the provisions of this Chapter, shall give the labour tenant and the Director-General not less than two calendar months written notice of his or her intention to obtain an order for eviction. (2) The notice referred to in subsection (1) shall, in addition to any prescribed particulars, also contain the grounds on which such intended eviction is based. (3) The Director-General shall during the period referred to in subsection (1) convene a meeting between the labour tenant and the owner in order to attempt to mediate a settlement of the dispute between the labour tenant and owner. Once section 11 has been complied with, the Court will be able to grant an order for defendant s eviction under section 14, because special circumstances exist which make it fair, just and equitable for him to be evicted, notwithstanding the fact that an application by him under chapter III of the Labour Tenant s Act is pending. Were eviction orders permitted under section 14 without compliance with the provisions of sections 5 to 11 of the Labour Tenants Act, it would open the way for shortcut evictions to occur under that section, in total disregard of the notice and other provisions of the Act. This would undermine and subvert the purpose of the legislature. Unfortunately for plaintiff (given the lengths he has already gone to secure defendant s eviction and the frustration he has endured in the process), there is yet another hurdle for him to overcome before defendant s eviction can be ordered by the Court. [41] As I am unable to grant an order for defendant s eviction until plaintiff has complied with section 11 of the Labour Tenant s Act, I can do no more at this stage than to declare that defendant is a labour tenant and that special circumstances exist as contemplated at section 14 of the Labour Tenants Act, enabling his eviction. I am also inclined to decree absolution from the instance. This will enable plaintiff, once he has complied with section 11 of the Labour Tenant s Act, to approach the Court for an order for defendant s eviction. It is a well established principle of our law that a decree of absolution from the instance allows the plaintiff to bring another action on the same facts without providing a basis for res judicata. 13 Hoffman and Zeffert explains it as follows: The decree of absolution from the instance is specifically intended to allow the plaintiff to bring another 14 action if he can find better evidence in support of his claim. 13 See, for example, African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 556E-F. 14 th Hoffman & Zeffert, South African Law of Evidence 4 ed (Butterworths, Durban 1988) at 344.

13 It was held in African Farms and Townships Ltd v Cape Town Municipality as follows: 13 Gering et al state: Absolution from the instance may mean in particular circumstances either that plaintiff s case has not been proved, or that although a conclusion has been reached, the plaintiff may nonetheless be 15 able to succeed in some other form of action; Erasmus states: At the close of the defendant s case and after hearing argument, the court may enter one of three judgments, namely, judgment for the plaintiff or for the defendant or absolution from the instance. Having regard to the onus, the court will in every case decide whether the party who bears it has discharged it. If the onus is upon the plaintiff (as it usually is) and the court is so satisfied it will grant judgment for the plaintiff. If the plaintiff has not discharged the onus the court may grant absolution from the instance (or its equivalent namely dismissal of the claim). Dismissal of plaintff s claim is interpreted to mean absolution from the instance. If it is satisfied that the balance of probabilities favours the defendant, the court may grant judgment in his favour. In such cases the defendant may, at the time of judgment insist on judgment in his favour and the court will grant it unless it is satisfied that the plaintiff may still have some alternative basis for a claim. The distinction is important because in the case of judgment of absolution from the instance the plaintiff may recommence action on the 16 same grounds, whereas if judgment is given for the defendant the matter is res judicata. Where no order is made on an application or leave is granted to apply again on the same papers the order is the equivalent of an order of absolution from the instance. 17 [42] As I have found defendant to be a labour tenant, it is not necessary for me to determine his status as an occupier under the Tenure Act. I accordingly make no finding in that regard Supra n 13 at 558E-F. Gering et al Civil Procedure: High Court in Joubert (ed) The Law of South Africa, 3 ed, Part 1 (Butterworths, Durban 1997) at 189. Erasmus, Superior Court Practice, Service (Juta, Cape Town 1996)at B1-52. See also African Farms and Townships Ltd v Cape Town Municipality supra n 13 at 563F. On absolution from the instance, see, for example, also Hoffman and Zeffert supra n 14 at 481 and 507; Gering et al supra n 16 at 86; Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4 ed (Juta & Co Ltd, Cape Town 1997) at 684; Damont, NO v Van Zyl 1962 (4) SA 47 (C) at 52F; Dada & Sons v Makhetle 1949(2) SA 485 (T); Claude Neon Lights SA (Ltd) vdaniel) 1976 (4) SA 403 (A) at 409G-H, 413D-G, 414B-C; Irwin v Mather 1951 (2) SA 552 (N) at 554C-555C.

14 14 Costs [43] I turn now to the question of costs. The Land Claims Court has a wide discretion in dealing 18 with costs. I am of the view that the discretion granted to me to make such order for costs as I deem just would be properly exercised if no order for costs is granted. Two factors in particular influence my decision, namely the deterrent effect of an adverse cost order to indigent litigants and the public interest nature of litigation under the Labour Tenants Act. I am fortified in my view by the following dicta by Dodson J in Hlatswayo & Others v Hein at 642c 19 and at 643a: [T]he risk of an adverse costs order might deter legitimate litigants from approaching the Court, thereby undermining the entire object of the Act. The Court can in my view take judicial notice of the fact that most rural black people have, by reason of a barrage of discriminatory laws applied to them over the years, in most instances been prevented from accumulating substantial wealth. Given the current costs of litigation, potential applicants will always be faced with the risk of losing what few capital assets they might have managed to accumulate when approaching the court if the costs follow the result rule is generally applied. Those assets may be their sole means of pursuing a livelihood, such as livestock or farming equipment. The Act was passed specifically to deal with the legitimate demands for remedial action to deal with past, large-scale breaches of the human rights of a class of rural, black people. In my view that places this matter squarely in the sphere of public interest litigation, notwithstanding that the parties to litigation under the Act will usually be private persons. In the United States and more importantly, in Canada the question of costs may, in certain circumstances, be approached differently in matters of public interest. I say more importantly in respect of Canada because it, unlike the United States, shares our general rule that costs follow the result. [44] The following order is made: [44.1] It is hereby declared that: [44.1.1] the defendant is a labour tenant; [44.1.2] special circumstances exist in terms of section 14 of the Labour Tenant s Act which make it fair, just and equitable for defendant to be evicted, taking all the circumstances into account, notwithstanding the fact that an application by defendant in terms of chapter III of the Act is pending. [44.2] A decree of absolution from the instance is granted Section 35(2)(g) of the Restitution of Land Rights Act No 22 of See also Hlatswayo and Others v Hein [1997] 4 All SA 630 LCC at 640b. Ibid.

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