IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA CASE NUMBER : 8/96 In the matter between : VOYISI ZULU 1st Applicant MPHIKISENI MESHACK BUTHELEZI 2nd Applicant MAHLANZA MAZIBUKO 3rd Applicant JOSEPH NGOVENI GAMA 4th Applicant THEMBA THANDUYISE MABASA 5th Applicant FALINI CATHRINE BUTHELEZI 6th Applicant and LOOD VAN RENSBURG 1st Respondent BOETIE VAN RENSBURG 2nd Respondent THE POUNDKEEPER OF NOOITGEDACHT POUND FOR THE DISTRICT OF VRYHEID 3rd Respondent JUDGMENT Dodson J : The applicants in this matter together with their families all reside on farms which are controlled by the first and second respondents. Until 28th March 1996, the applicants grazed their stock, consisting of cattle, horses, sheep and goats on the farms. The applicants regard the farms as a single unit known as Nooitgedacht. The first and second respondents point out that the farm commonly known as Nooitgedacht is made up of a number of farms and that the land to which this dispute relates includes, in addition, subdivisions of the farms Brakfontein and Umvoloosdrift. Nothing turns on this distinction. Early in the morning on 28th March 1996 the first and second respondents, assisted by a number of other persons, rounded up 155 head of cattle, 180 head of small stock and 16 horses belonging to first, second, fourth, fifth and sixth applicants and removed them to the pound operated by the third respondent. The third respondent purported to accept the animals into the pound in terms of Natal Ordinance No. 32 of 1947 (the pound ordinance ) under

2 which he is appointed as a poundkeeper. The circumstances giving rise to the actions of first and second respondents are dealt with in more detail below. The applicants (excluding third applicant) contend that: * they were, until 28th March 1996 in peaceful and undisturbed possession of their stock; * the actions of the first and second respondents amounted to a spoliation; * they are labour tenants as contemplated in the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996, referred to in this judgment as the Act ); * this court has the jurisdiction to grant the mandament van spolie; * an order should accordingly be granted in terms of the notice of motion. The first and second respondents contend that: * the applicants are not labour tenants as defined in the Act; * even if they were, this court has no jurisdiction to grant the mandament van spolie; * even if it did, they acted or purported to act in terms of the pounds ordinance and this precludes the granting of such relief; * even if this does not preclude the granting of such relief, the applicants have not made out a case for it; * in any event the application should be refused, both because the urgency was of the applicants own making and because the applicants ought to have foreseen that there would be irresolvable disputes of fact in these motion proceedings. Third respondent has chosen not to defend the proceedings. References in this judgement to the respondents are to the first and second respondents, unless I expressly provide

3 otherwise. The relief sought by the applicants (as amended) is as follows: 1. That a Rule Nisi do issue calling upon 1st Respondent and 2nd Respondent to show cause... why an Order should not be made: 1.1 1st Respondent and 2nd Respondent, jointly and severally is (sic) hereby ordered to immediately restore the possession of 155 head of cattle, 180 head of small stock, 16 horses to 1st Applicant, 2nd Applicant, 4th Applicant, 5th Applicant and 6th Applicant, on the farm where they were resident as at 28 March 1996 being the farm Nooitgedacht No 356, situate in the district of Vryheid, Administrative Province of KwaZulu Natal, in extent 1604,2597 hectare; 1.2 1st Respondent and 2nd Respondent, jointly and severally, is (sic) hereby ordered to immediately remove the locks and chains from all gates on the farm Nooitgedacht; 1.3 1st Respondent is hereby ordered to immediately restore the possession of his (sic) rights as labour tenant under and in terms of the Land Reform (Labour Tenants) Act, No 3 of 1996, to 3rd Respondent; 1.4 1st Respondent and 2nd Respondent is (sic) hereby interdicted and restrained from intimidating, assaulting, injuring, murdering or threatening to intimidate or assault or injure or murder 1st Applicant, 2nd Applicant, 3rd Applicant, 4th Applicant, 5th Applicant and 6th Applicant; 1.5 1st Respondent and 2nd Respondent is (sic) hereby interdicted and restrained from locking any gate on the farm Nooitgedacht and/or restricting the free movement of 1st Applicant, 2nd Applicant, 3rd Applicant, 4th Applicant, 5th Applicant and 6th Applicant on, to and from the farm Nooitgedacht; 1.6 1st Respondent and 2nd Respondent is (sic) ordered, jointly and severally, to pay the costs of this application in accordance with the provisions of Rule 70 of the Uniform Rules of the Supreme Court of South Africa. 2. that paragraph 1.1 and 1.2 above operate as an interim order with immediate effect pending the final determination of this application; 3. that Applicant s failure to comply with the prevailing rules of this Honourable Court be

4 condoned. 4. further and/or alternative relief. Mr Roberts, who appeared for the first and second respondents, raised as points in liminethe questions of urgency and jurisdiction. Urgency Mr Roberts did not dispute the urgency of the application but argued that the urgency was of the applicants own making because they had delayed in bringing the application. On this basis he contended that the application for condonation of the non compliance with the rules should be refused. It has been recognised that undue delay may constitute a basis for refusing to grant condonation under rule 6(12)(a).1 The acts complained of occurred on 28th March Mr Loots, who appeared for the applicants, first learned about this matter on 26th March 1996 after receiving an instruction from the Legal Aid Board ( the Board ) to investigate the matter, report to it and to attempt to arrange a postponement of any action by the respondents. He learned of the impoundment of the stock on the day it occurred. The following day he addressed a letter by facsimile to the respondents attorneys demanding the return of the stock and threatening to apply to the Board for authority to bring an urgent application for relief should they fail to do so. On the same day he addressed a letter to the Board requesting authority to proceed with such an application. Thereafter the parties attorneys attempted to settle the matter through correspondence and a telephone call, a process which culminated in a facsimile letter from respondents attorneys dated 4th April putting their final position. This was obviously not acceptable to the applicants and on 9th April 1996 Mr Loots addressed a facsimile to the respondents attorneys saying that he could only proceed once he had heard from the Board and if his instructions were to proceed urgently, respondents would receive notice. On 12th April 1996 he sent a reminder to the Board by facsimile requesting a response the same day. Thereafter he attempted unsuccessfully to contact a Mr Brits of the Board. Eventually, on 16th April 1996 he spoke to a Mr Klingenberg who gave him the necessary authority. The founding affidavits were signed on 18th and 19th April 1996 (a Friday). Thereafter Mr 1 20th Century Fox Film Corp v Black Films 1982(3) SA 582 at 586, Schweizer Reneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbou en Andere 1971(1) PH F11(T).

5 Loots approached the court for the allocation of a date for the hearing of the matter. The application was served on the respondents on 24th April 1996 at 10:30 and the matter was set down for hearing at 11:00 on 25th April Respondents justifiably complained about the short period of time they had to file opposing affidavits. However they managed to prepare fairly comprehensive affidavits and any prejudice they might have suffered was remedied by the postponement of the matter until 2nd May 1996 with the parties being granted leave to file replying and further affidavits respectively. I am satisfied that applicants did not delay unduly in bringing the matter before the court. Mr Loots could not have been expected to proceed without an instruction from the Board. Once he received his instruction he acted with expedition. Nor did he delay in seeking an instruction from the Board to proceed. The circumstances of the matter are such that an urgent ruling by the court is called for in the interests of all the parties and it is not so that this was a situation brought about by delay on the part of the applicants. Mr Roberts conceded that this was not his strongest point. Applicants failure to comply with the forms, service and time limits prescribed is accordingly condoned in terms of rule 6(12)(a) of the Supreme Court Rules.2 Jurisdiction The respondents next point in liminewas the contention that this court lacked the jurisdiction to grant relief in the form of a mandament van spolie. Although the Land Claims Court ( the Court ) is a creature of the Restitution of Land Rights Act3 the relevant provisions in determining whether it enjoys jurisdiction in the present dispute are sections 29 and 33(2) of the Act which read as follows: Jurisdiction 29. The Court shall have jurisdiction in terms of this Act throughout the Republic and shall have all the ancillary powers necessary or reasonably incidental to the performance of its functions in terms of this Act, including the power to grant interlocutory orders and interdicts, and shall have all such powers in relation to matters falling within its jurisdiction as are possessed by a provincial division of the Supreme Court having jurisdiction in civil proceedings at the place where the affected land is situated, including the powers of such a division in relation to any contempt of the Court. Additional powers of arbitrator and Court 2 Which apply in terms of section 24 of the Restitution of Land Rights Act, 1994 (Act 22 of 1994) read with section 30 of the Act. 3 See n2 above.

6 33. (1)... (2) The Court shall have jurisdiction and the necessary or reasonably incidental powers to determine any justiciable dispute which arises from the provisions of this Act. The Afrikaans text (which is the text which was signed by the President) in respect of section 33(2) reads as follows: 33. (1)... (2) Die Hof het jurisdiksie en enige noodsaaklike of redelike bykomende bevoegdhede om oor enige regsvraag wat uit die bepalings van hierdie Wet ontstaan, te beslis. As Mr Roberts correctly pointed out, the Court is a creature of statute and should exercise its powers within the four corners of the provisions of the Act which confers its jurisdiction. At the same time it is clear from the sections quoted, and from other provisions of the Act4 that the legislature intended to confer a wide jurisdiction on the Court to deal with disputes arising from the legislation. It was suggested on behalf of the respondents that the wording of the first part of s29 requires that the functions expressly conferred on the court must first be identified and it is only in relation to those functions that one can then apply the broad provisions conferring ancillary and incidental powers on the Court. This approach would seem to be correct and finds support in the second part of that section which confers on the Court the powers of a provincial division of the Supreme Court in civil proceedings in relation to matters falling within its jurisdiction. Mr Roberts then went on to identify broadly the functions expressly conferred on the court and contended that these did not include the type of relief sought in this case which related to the restoring of possession of cattle and grazing rights. What this analysis does not properly take into account are the broad functions conferred on the Court by section 33(2) of the Act which requires of the Court to determine any justiciable dispute arising from the provisions of the Act. However it was pointed out by Mr Roberts that, if regard is had to the Afrikaans text, there is, on the face of it, a divergence between it and the English text. The Afrikaans version uses the words enige regsvraag which, if narrowly construed, could limit the function which the section requires the Court to perform to a purely declaratory one of deciding questions of law (as distinct from questions of fact) arising from the Act. The effect of this interpretation would be to render the wide meaning of the English text redundant on the basis that the Afrikaans text was signed. Constitution5 requires that : Section 65(2) of the In the case of a conflict between copies of an Act..., the copy signed by the President shall prevail. 4 See, for example, section 32 which gives the Court wide and exclusive powers of judicial review over officers and functionaries acting in terms of the Act 5 Constitutionof the Republic of South Africa Act, 1993 (Act 200 of 1993).

7 This provision is similar to that contained in the previous Constitution.6 The first observation to be made in applying this provision is that there must be an irreconcilable conflict between the Acts before the section comes into play. This in turn means that the first question which must be addressed is whether the two versions can be reconciled. As is pointed out by Devenish,7 there are conflicting approaches to this process of reconciliation in the various decisions of the Appellate Division on the matter. In some cases it has been suggested that the attempt at reconciliation must be based purely on the language of the words in question in each text without considering their context. However, the approach which appears ultimately to have been favoured by the Appellate Division and which I intend to apply here, is that which was adopted by Diemont JA in S v Collop : A conflict between two versions arises only where one version says one thing and the other another. The signed text which is in English will accordingly not prevail; a reconciliation must be sought between the two texts. The will of the Legislature must be deduced from the two versions read together and the reconciliation undertaken with reference to the context in which the words appear in the statute read as a whole and the object which the statute seeks to achieve. 8 If one considers the context in which the words appear, including the preamble to the Act, it is clear that the legislature intended to create a completely new legal dispensation for labour tenants who were recognised as requiring statutory protection, inter, because : the...institution of labour tenancy...is the result of racially discriminatory laws and practices which have led to the systematic breach of human rights and the denial of access to land. 9 It was in this context that the legislature chose to impose on the Land Claims Court the very wide adjudicatory function accorded to it in terms of the Act. The Court was originally created to deal with claims in respect of rights in land of which persons were deprived under racially discriminatory legislation. The wide range of functions which the court must perform, including exclusive powers to hear appeals and reviews, show that the legislature 6 Act 110 of 1983, section Interpretation of Statutes at (1) SA 150 at 162H to 163A. 9 Preamble to the Land Reform (Labour Tenants) Act.

8 intended the Court to have the jurisdiction to deal with, or oversee, all legal disputes which might arise out of the provisions of the Act. This view is reinforced by the fact that appeals from the Court lie directly to the Appellate Division or the Constitutional Court. It is in this context that the word regsvraag (in English, question of law ) must not be given the narrow meaning usually attributed to it, but rather a wider meaning of legal dispute, which could include ordinary legal proceedings involving disputes of fact and disputes of law. The word vraag or question is certainly capable of a wider meaning incorporating all the components of a dispute. The definition in HATincludes: Saak wat n probleem skep, wat uitgemaak moet word;. The definition in The Oxford English Dictionary(second edition) includes: A subject for discussion, a proposal to be debated or voted on, in a meeting or deliberative assembly, and defines the words in question in certain contexts as meaning: Under judicial examination; on trial.. On this interpretation, the two texts are capable of reconciliation. Thus, provided that the parties can show that the dispute is a legal or justiciable dispute arising from the provisions of the Act, even though the proceedings are not couched as one of the procedures expressly created by the Act (such as an application under section 12), the Court will have the jurisdiction and the necessary or reasonably incidental powers to hear and determine the matter. Against that background it must be asked whether the present dispute is one which can be said to arise from the provisions of the Act. The basis on which Mr Loots contended that the court has jurisdiction is set out as follows in his heads of argument : 2.2 By virtue of Section 5 of the...act..., read together with Section 1(iv) a labour tenant or his associate may only be evicted in terms of an order (of) the Court issued under this Act ; 2.3 In terms of section 1(vi) eviction includes the deprivation of a right of occupation or use of land; 2.4 In terms of Section 1(xxv) right in land means any real or personal right in land, including a right to share cropping or grazing land. 3. It is accordingly submitted that this Court has jurisdiction to decide matters relating to the

9 deprivation of a labour tenant s right of occupation or use of land. With this argument there can be no quarrel. Section 5 plainly confers a right on those persons who can show that they are labour tenants as defined not to be evicted otherwise than in accordance with the provisions of the Act. Where there is a complaint that that right has been infringed (as is the case in this matter), there is a justiciable dispute arising from the provisions of the Act. Quite apart from any jurisdiction which might be conferred by section 33(2) of the Act, it is clearly implied by section 5 that it is the function of the court to determine disputes concerning the alleged unlawful eviction of labour tenants in breach of that section. Moreover section 29 expressly confers on the Court the ancillary power to grant interlocutory orders and interdicts which is precisely the form of relief sought in this matter. It is also recognised in our law that a mandament van spolie not the only remedy whereby possession may be restored. An interdict is also available, provided the requirements for such relief are established.10 What has tended to muddy the water is that Mr Loots then went on to argue that it was, in addition, incumbent upon all of the applicants (except the third applicant) to show that they had made out a case for the grant of the mandament van spolie. Quite what the basis was for this contention is not clear to me. It seems to have been based on the fact that the matter concerned a right of occupation of land which it is alleged applicants enjoyed before their stock was impounded. I do not agree. It is trite law that the mandamentonly contemplates an enquiry into whether the applicant for the relief was in peaceful and undisturbed possession prior to the spoliation, not whether his or her possession was based on any right.11 To the extent that the applicants are able to show that: (1) they have a prima facie under the Act which has been invaded; (2) there is a well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; (3) the balance of convenience favours the granting of interim relief; and (4) they have no other satisfactory remedy,12 10 Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994(1) (SA) 616 (W) at 619F. 11 See, for example, Yeko v Qana 1973(4) SA 735(A) at 739D to G. 12 See Erasmus Superior Court Practice E8 8 and the authorities referred to at footnote 9 on that page.

10 they are entitled to the relief sought in prayers 1.1, 1.2 and 1.5, read with prayer 2 of the notice of motion (which together make up the prayer for an interim interdict restoring possession). It is only necessary for the court to consider whether it has the jurisdiction to grant a mandamentand, if so, to enquire into whether the applicants have made out a case therefor, if they are not able to satisfy the above requirements. Before proceeding with this enquiry, it is necessary to deal with another jurisdictional matter. That is whether the Court is entitled to consider granting the relief contemplated by prayer 1.4 of the notice of motion (an interdict restraining respondents from assaulting the applicants). It certainly is not (at least in the form that applicants seek the relief). That aspect of the dispute, which was not seriously pursued by the applicants, plainly does not arise from the provisions of the Act nor is any such authority expressly or impliedly conferred on the Court anywhere in the Act. Factual background In order to consider whether the applicants have made out a case for interim relief, the factual background to the dispute must be canvassed. It appears from the respondents opposing affidavits and the agreements annexed thereto that in terms of the joint will ( the will ) of the late Lodewyk Janse van Rensburg ( L ) and his wife, Maria Janse van Rensburg ( M ), M acquired a life usufruct over the farms on the death of L. Although the matter was not properly canvassed in the papers, it would appear from the reference number of the Master of the Supreme Court which the will bears, namely 2033/77, that L died during or before The bare dominiumin the farms is held in trust by Volkskas Limited on behalf of two of the beneficiaries under the will, a Mrs Schreuder and a Mrs Viljoen ( the beneficiaries ). In October 1979, a Mr Benjamin Van Niekerk ( B ) took over control of the farm and farmed it on behalf of M. At some point M and B were married, but the date of the marriage is not apparent from the papers. During 1992 (again this appears from the relevant reference number in the office of the Master) M s estate was sequestrated. On 24 July 1995, B entered into a written agreement ( the first agreement ) whereby he purported to purchase the usufruct from the trustee of M s insolvent estate. B, whose affidavits are included in respondents opposing and further affidavits, avers that he has, for all practical purposes, exercised control over the farms from October 1979 until August This statement must however be read in the light of the clear provisions of the first agreement (which is dealt with in more detail below), as well as first respondent s statement that B did not use the farms himself and that they were in fact used by various lessees of grazing rights in the land (and the applicants) who made use of the labour provided by the applicants and provided them with cash remuneration. On 1st September 1995 B entered into a further written agreement ( the second agreement ) whereby he purported to sell to a partnership, of whom the respondents are the partners, and which trades as Van Rensburg Boerdery, the rights which he enjoyed in respect of the farms

11 in terms of the first agreement. Save that the applicants dispute that the second agreement validly conferred any rights on the respondents, these facts are not disputed by the applicants. It seems that the applicants were largely unaware of the legal significance of all these events. They viewed B as the owner of the farm. Second, third and sixth applicants were already resident on the farm at the time that B assumed control. As soon as he did so, second and third applicants, together with sixth applicant s late husband, Mr M. Xulu ( X ) entered into agreements with him whereby they would have the right to continue residing with their families in the kraals which they had established on the farms and to graze stock on the farms. In return they were obliged to provide labour to B and to other farmers who leased grazing land on the farms from time to time. They were not obliged to provide the labour personally and could send a family member in their place to do so. The contracts were to endure indefinitely. Prior to L s death, they had also resided on the farms with certain grazing rights in return for which they provided labour (save that B avers that X had no stock at the time when he assumed control of the farms in 1979). Subsequently and at the latest by 1989, B had entered into similar agreements with the first, fourth, fifth and sixth applicants (in the case of sixth applicant after her husband s death in 1987). Obviously because first, fourth and fifth applicants were newcomers to the farms they had to establish kraals on the farm. That much (as far as the agreements with B are concerned) is common cause. The parties are in dispute about a number of matters. The applicants contend that they also had the right to grow crops on the land. B claims that they had no such right in terms of the agreements with him or with L. They were only entitled to keep small gardens next to their kraals. They claim that there were no limits on the type or number of stock, save those limits which prudent farm management dictated. B says that only 10 cattle were allowed per male worker supplied by a family, that no one was allowed to keep sheep or goats and that only those who worked as cattle herds were entitled to keep horses. B says that each worker received a salary of between R50 and R120 per month either from him or one of the lessees, together with between 10 and 25 bags of mielies per annum. The applicants admit that they received monthly payments but deny that this was an enforceable right which they enjoyed; moreover they say that the amount was R50 per month in respect of some applicants and less in respect of others. As far as the bags of mielies are concerned they appear to say that these mielies were the product of their cropping rights and not part of their remuneration. I turn now to the first and second agreements. No mention was made in the first agreement of the applicants. However it included the following terms which impact upon this matter: 1. The Seller hereby sells to the Purchaser who hereby purchases the assets as described in the Schedule attached hereto. 2. The purchase price of the assets are R ,00 [ONE HUNDRED AND TEN THOUSAND FIVE HUNDRED AND TEN RAND], (hereinafter referred to as the PURCHASE PRICE ) exclusive of VAT, if applicable Payment of the aforesaid PURCHASE PRICE will be made on or before 1 SEPTEMBER

12 2.2. No interest will be charged should payment be effected as aforesaid but should the PURCHASER fail to make payment on the aforesaid due dates, interest will be charged a temporae morae from such date payment was due to the date payment was received by the SELLER, both days inclusive. 3. Reservation of Ownership : Ownership of the assets will remain vested in the Trustee until such time (as) the purchase price and any interest due thereon, rent and/or any other legal costs incurred on an attorneyclient scale for the recovery of any costs, has been paid in full. 4. Rent : The PURCHASER will maintain his payment in the amount of R500,00 [FIVE HUNDRED RAND] in respect of the lease of the residence until such time (as) the full purchase price, interest and costs have been settled in full. 5. The Right, Title and Interest in Usufruct : 5.1 The right, title and interest in and to all grazing lease agreements entered into by the SELLER with the tenants of the various farms over which the insolvent estate holds the usufruct in its favour will remain vested in the insolvent estate and or its trustee until the purchase price, interest, rent and costs have been paid in full. 6. Risk of loss and profit : The risk of loss and profit of the assets will pass to the PURCHASER once the amounts as aforesaid have been paid in full. SCHEDULE Description of assets Price 1. USUFRUCT R50 000,00

13 2. PIVOT R60 000,00 3. FURNITURE R510,00 R It appears from the second agreement that the purchase price in terms of the first agreement was not paid until 1st September 1995, as the second agreement made provision for R of the purchase price payable to B to be paid directly to the trustee in settlement of the purchase price under the first agreement. The effect of this was that the suspensive conditions contained in clauses 3, 5 and 6 of the first agreement prevented B from deriving any rights in respect of the farms (except as a tenant in the residence on the farm) thereunder until 1st September 1995 when he entered into the second agreement, in terms of which respondents purported to acquire his rights in respect of the farms with immediate effect. In terms of the second agreement the respondents purported to purchase from B his entire right, title and interest in the farms under the first agreement for a period of five years, but subject to the conditions of the will, including the limitation of the usufruct rights to the life term of M. To the extent that the agreement purports to confer rights of use and enjoyment for 5 years even if M dies before the expiry of this period, the agreement relies on the consent of the beneficiaries to the terms of the agreement. In terms of clause 8, these consents were to be in writing, were to be annexed to the agreement and were to form an integral part thereof. However no such consents are annexed to the copy of the second agreement which formed an annexure to the first respondent s opposing affidavit. It is on this basis that Mr Loots contended that the consent of the beneficiaries had not been obtained and that the second agreement accordingly conferred no rights on the respondents. Respondents were never given the opportunity of dealing with this averment as it was not squarely raised in the papers, save in the form of a broad denial in the replying affidavits that the agreement vested any rights. It is not necessary for me to decide this point in order to reach a decision in this matter. Nor was the matter properly raised. I therefore proceed on the assumption that the second agreement was valid. Clause 16 of the second agreement purported to regulate the position of the applicants as follows: 16 STATTE 16.1 Die KOPER mag slegs met toestemming van die VERKOPER STATTE op enige van die eiendomme vestig of toelaat dat enige STATTE op van die eiendomme gevestig word Die KOPER sal alle nodige stappe neem wat nodig mag wees om gevolg te gee aan uitvoering van hierdie Klousule Die KOPER sal die reg hê om enige STAT(TE) wat tans op die eiendomme gevestig is te beperk ten opsigte van hoeveelheid en tipe vee wat deur sodanige

14 STATTE aangehou mag word en sodanige STATTE sal in ruil vir vee regte verplig wees om arbeid aan die KOPER te verskaf. Die KOPER sal die volle reg hê om waar sodanige STATTE versuim om aan sy voorwaardes te voldoen, die betrokke STATTE aan te sê om die eiendomme te verlaat sonder om verplig te wees om alternatiewe verblyf aan hulle te verskaf. The respondents duly took control of the farms. They held a series of meetings with the applicants. The precise dates of the meetings are in dispute, but nothing turns on this. Predictably, the parties also disagree as to what exactly was said at the meetings. The following is however common cause (save where I indicate to the contrary). Respondents and B adopted the attitude that the second agreement had had the effect of terminating the agreements which they believed to have existed until then between B and the applicants. They accordingly informed the applicants that the only basis on which they would be entitled to continue residing on the farm would be if they entered into contracts with the respondents. The contracts were to be in writing. It was emphasised that the only basis on which they were prepared to contract with the applicants was that they should dramatically reduce the number of stock to 14 head of cattle for each labourer supplied by a family and that no small stock (sheep and goats) would be allowed. They were also to receive monetary remuneration. The respondents say that a minimum wage of R150 was proposed along with a willingness to negotiate upwards, but the applicants deny that any figure was mentioned. They also claim to have offered two bags of maize per family per month and permission to keep a small garden, but the applicants appear to dispute this. Two horses were to be allowed, the applicants say per family, the respondents say per cattle herd supplied to them. The applicants wished to involve their trade union representative, a Mr Phillips, in the negotiations but the respondents refused to agree to this. According to them, their attitude was based on past dealings with him and they would have allowed representation by someone else. In any event they considered the matter to be a simple one which did not require the applicants to be represented, particularly as they translated everything into Zulu, including the proposed contract terms. Although interest had, according to the respondents, been expressed by some of the applicants, and some had even commenced to provide labour (again according to respondents applicants contend that they all continued to provide labour all along), no final written agreements had been reached with any of the applicants by 20 March 1996, despite a threat of eviction made by first respondent at a meeting held with the applicants during January or February 1996 if they did not enter into written agreements on the terms proposed and reduce their stock accordingly. On 20th March 1996, the respondents, together with B, delivered a written notice in Zulu to each of the Applicants. The notice came from respondents attorneys. The Afrikaans version of the notice reads as follows: Ons tree hierin op namens Van Rensburg Boerdery wat die huurders/bona fide okkupeerders is van die plaas Nooitgedacht, waar u tans woonagtig is, en wat hierin optree met die volle ondersteuning van die eienaar van die plaas.

15 Dit is ons instruksies dat daar reeds by meerdere geleenthede sedert 20 SEPTEMBER 1995 deur ons kliënte gepoog is om n ooreenkoms met u te beding om u voortgesette okkupasie van die plaas Nooitgedacht te reguleer ingevolge n diensooreenkoms wat ons kliënt bereid was om met u aan te gaan. Dit is ons verdere instruksies dat u tot datum weier om in diens van ons kliënte te tree op die voorwaardes waarop hulle bereid is om met u n ooreenkoms aan te gaan, welke voorwaardes billik en regverdig is. Dit is ons verdere instruksies dat u in besonder en onomwonde aangetoon het dat u weier om u veegetalle te verminder en ongewenste vee van die plaas te verwyder. Ses maande het reeds verloop sedert ons kliënt met onderhandelings met u begin het en het u dus voldoende geleentheid gehad om u posisie te oorweeg en in diens by ons kliënt te tree, maar het u verkies om ons kliënt se aanbiedinge van die hand te wys. Gevolglik word u hiermee kennis gegee dat u, u familielede, afhanklikes, vee en goedere die plaas Nooitgedacht moet ontruim nie later nie as 30 JUNIE 1996, by versuim waarvan ons kliënt sonder verdere kennisgewing sal voortgaan om regsaksie teen u in te stel vir uitsetting. U word voorts kennis gegee dat al u vee van die plaas Nooitgedacht verwyder moet wees binne 7 dae na aflewering van hierdie kennisgewing aan u, by versuim waarvan ons kliënt sonder verdere kennisgewing alle sodanige vee sal skut met voorbehoud van sy regte om skade van u te verhaal vir enige tyd wat die vee sonder ons kliënt se toestemming of sonder n reëling met ons kliënt op die grond vertoef of vertoef het en wel teen R20,00 per bees per maand en R3,40 per kleinvee eenheid per maand. U sal aanspreeklik gehou word vir enige regskoste wat ons kliënt genoodsaak sal wees om aan te gaan indien u nie aan hierdie kennisgewing voldoen nie. The notice is ambiguous in that it gives the applicants until 30th June to vacate the farms, including the removal of their stock, in one paragraph, whilst in the very next paragraph they are given 7 days to remove all their stock. The applicants did not remove their stock within the 7 day period and on 28th March 1996 their stock was impounded in the manner described above. The only exception was third applicant who concluded a written agreement with the respondents on that day. As a result his stock was not impounded. He contends that the agreement was signed under duress and

16 that it deprives him of his rights as a labour tenant under the Act. Respondents say that the agreement was entered into willingly and that he is not and never was a labour tenant as defined in the Act. This matter will be considered below. Against that background, the question of whether applicants qualify as labour tenants must be considered. Are the applicants labour tenants? It was common cause that the applicants had to fall within the definition of labour tenant in the Act before the Court could proceed with the further enquiry as to whether they were entitled to any relief. Mr Loots accepted, without argument, that applicants bore the onus of proving this. The term labour tenant is defined in the Act as follows:13 labour tenant means a person (a) who is residing or has the right to reside on a farm; (b) who has or 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 rights provided or provides labour to the owner or lessee of such or such other farm, including a person who has been appointed as a successor to a labour tenant in accordance with the provisions of sections 3(4) and (5), but excluding a farmworker; This court held in the matter of Mahlangu v de Jager the definition requires that, in order to qualify as a labour tenant, there must be compliance cumulatively with paragraphs (a), (b) and ( c) of the definition.14 is indeed so that the word 殿 ndcan in certain circumstances be read disjunctively. 15 In Barlin v Licensing Court for the Cape16 the court was concerned with a provision which permitted objections to the granting of on the basis that: 13 Section 1(xi) of the Act. 14 Unreported decision of the Land Claims Court under Case No 1/96 at pages 5 to See Maxwell Interpretation of Statutes 11th edition at 229, Binda v Binda 1993(2) SA 123(W) at 125C to 126B and the authorities there cited AD 472.

17 The business is conducted in an improper manner and drunkenness permitted on the licensed premises. In regard to the question whether the provisions operated cumulatively or disjunctively, Innes CJ said:17 the words 'and and 'or are sometimes inaccurately used, and there are many cases in which one of them has been held to be the equivalent of the other. Much depends on the context and the subjectmatter. I cannot think that in this instance the legislature intended to make these provisions cumulative. If regard is had to the context of the word and at the end of paragraph (b) of the definition it is plain that the word was intended to be used in its usual conjunctive or cumulative sense. To hold otherwise would give rise to absurd results. For example, an ordinary tenant could show that he or she resided on a farm and did not qualify as a farmworker. This would, on a disjunctive interpretation, qualify all ordinary lessees of farmland who reside on the farm as labour tenants. Moreover the implications of section 16 of the Act would be that they would also have an option to purchase the farmland. Plainly this was never intended by the Legislature. The Act is intended to protect a very particular class of rural tenant and in isolating that class of tenant paragraphs (b) and ( c) must come into play. Mr Loots did not challenge the correctness of the Mahlangudecision. It was common cause that all the applicants complied with the requirements of paragraphs (a) and (b) of the definition. They all reside on the farms. They have all had, at least, the right to use grazing land on the farms and in consideration of such right have provided labour to the lessees of the farms and the holder of the usufructuary interest in the farm, namely M (through B as her agent). In conceding that the applicants complied with paragraph (b) it appears that Respondents concede that the usufructuary interest of M was synonymous with the concept of owner in paragraph (b) of the definition. Owner is defined in paragraph (xiii) of section 1 as meaning: The owner, as defined in section 102 of the Deeds Registries Act, 1936 (Act No 47 of 1937), of a farm, and where it occurs in the definition of 'labour tenant, includes his or her successors and predecessors in title; The Deeds Registries Act 18 in turn defines 登 wneras meaning : in relation to (a) immovable property, subject to paragraphs (b) and (c), the person registered as the owner or holder thereof and includes the, trustee in an insolvent estate...(the section then goes on to refer to various other forms of persons who act in a representative capacity); 17 At Act 47 of 1937.

18 (b) where a right of leasehold has been granted to any person and registered in his name, such person,...; and ( c) immovable property, real rights in immovable property and notarial bonds (i) which are registered...in the name of both spouses...(the paragraph goes on to deal with who is to be treated as owner when the property is owned by spouses married in community of property and various provisions of the Matrimonial Property Act, 1984 apply) The definition of immovable property in the Deeds Registries Act does not attempt to be all inclusive but simply provides that it includes registered leases of mineral rights, registered long leases and a registered right of leasehold. Even if I am wrong in understanding Respondents to have made this concession, I am satisfied that the word holder in the definition includes the holder of a right of usufruct. This view is reinforced by the fact that the concept of immovable property has been held to include a right of usufruct in respect of immovable property.19 Although there are no reported cases on the definition of 登 wner in the Deeds Registries Act, there is nothing in it to suggest that the common law concept of immovable property is limited by the Act. For present purposes the definition must also be interpreted in the context of the Land Reform (Labour Tenants) Act and Parliament must be presumed not to have intended the harsh consequences that would flow from the exclusion of those labour tenants who happen to have provided their labour to a usufructuary and not a lessee or a full dominium owner.20 Do the applicants prove compliance with paragraph (c) of the definition of labour tenant? This issue was only dealt with by the applicants and the respondents in their replying and further affidavits respectively. This was because the parties legal representatives only became aware of the Mahlangu after they had filed their founding and opposing papers and because I called on the parties to deal with this aspect under the inquisitorial powers conferred on the Court by section 32(3)(b) of the Restitution of Land Rights Act read with section 30 of the Act. Second applicant clearly complies with the requirements of paragraph (c). He maintains that his father and grandfather were born on the farms and worked as labour tenants with rights to use cropping and grazing land in return for which they provided labour to the previous owners of the farm. Of course the definition does not require of an applicant to show that his 19 Fine Wool Products of SA v Director of Valuations 1950(4) SA 490(E) at 499D, Ex parte Scott 1950 (3) SA 638(O) at 639F. See also Voet and D G Kleyn and A Boraine Silberberg and Schoeman s The Law of Property at L Du Plessis The Interpretation of Statutes at 83.

19 or her parents or grandparents themselves complied with all the components of the definition. It is sufficient that they resided on a farm and enjoyed cropping or grazing rights on that or another farm of the owner, and in return provided him or lessees of the farm with labour. This much is conceded by the respondents in respect of second applicant s father. In the affidavit of Mr Charel Smit filed by the respondents he states that he farmed on the farms on behalf of M during 1978 and 1979, after L s death. Second applicant s father lived on the farms at the time and continued to provide labour on the same basis as he had done when the farms were owned by L. According to Smit this was on the basis that he could only graze 5 cattle, no small stock and received a salary of R120 and a bag of mieliemeal each month and 20 bags of mielies after the harvest each year. The fact that his remuneration might have exceeded the value of his grazing rights is of no relevance. What then of the other applicants? Third and sixth applicants also aver that their respective fathers and grandfathers resided on the farms and provided labour to L or his predecessors in title as labour tenants in return for cropping and grazing rights. First, fourth and fifth applicants claim that their fathers and grandfathers resided on other farms in the Vryheid district not forming part of the farms to which this dispute relates, but similarly provided labour to the owners or lessees of those farms as labour tenants in return for cropping and grazing rights. All of this is disputed by the respondents who also claim, with justification, that they did not have sufficient time for a detailed investigation into the allegations of all the applicants in this regard. The result is that, at this stage at least, no substantial facts are set up by the respondents in contradiction of the applicants averments in this regard. Because this is an application for interim relief the evidence in this regard must be weighed up in accordance with the test laid down in Webster v Mitchell,21 modified in the case of Gool v Minister of Justice22. In the former case Clayden J laid down the test as follows :... the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is prima facie established though open to some doubt that is enough. The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown upon the case of the applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief. In the latter case Ogilvie Thompson J qualified that test as follows: (1) SA 1186(W) at (2) SA 682 (C) at 688.

20 With the greatest respect, I am of opinion that the criterion prescribed in this statement for the first branch of the inquiry thus outlined is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on an applicant s own averred or admitted facts is : should (not could) the applicant on those facts obtain final relief at the trial. Subject to that qualification, I respectfully agree that the approach outlined in Webster v Mitchell... is the correct approach for ordinary interdict applications. Applying the test I am satisfied that the inherent probabilities are, on applicants version, that their fathers or grandfathers at least provided labour in return for grazing rights on the farms which they say they occupied. Respondents affidavits tend also to support the impression that the practice of allowing grazing rights (even if limited) and the right to reside on farms to persons supplying them with labour was and is not uncommon. I am not satisfied that applicants have satisfied the same degree of proof in respect of the averments that their parents and grandparents themselves would have qualified as labour tenants under the Act, but for reasons explained above this is not required by the definition. On that basis third and sixth applicants have shown prima faciecompliance with paragraph (c). As far as first, fourth and fifth applicants are concerned, Mr Roberts argued that the parents or grandparents contemplated in the paragraph must have satisfied the requirements in relation to the same farms as those on which the applicants have established the requirements of paragraph (b). On this basis these applicants would be excluded. Mr Loots contended that the farm referred to in paragraph ( c) need not be the same farm as that referred to in paragraph (b). In support of this contention he pointed out that paragraph (b) specifically refers to the farm referred to in paragraph (a). This means that the applicants themselves must show that they have cropping or grazing rights on, and provide labour to the owner of the same farm as that on which they reside (subject to the exception that the cropping or grazing rights can be exercised on another farm of that owner). However paragraph ( c) only refers to a farm. Had parliament required that it should be the same farm as that referred to in paragraph (a) they would have said so in the same way that they did in paragraph (b). There is certainly force in this argument, particularly if one considers the context of the statute as a whole and its purpose. One of the objects of the Act is to provide labour tenants with certain protections against eviction. In the past the common law left labour tenants exposed to eviction at the whim of the owner of the land subject only to compliance with the common law requirement of reasonable notice.23 Such a basis for eviction is now excluded by the Act if a person can show that he or she qualifies as a labour tenant under the legislation. If we are to adopt Mr Roberts interpretation, a person whose predecessors had over the generations consistently been labour tenants (as that term was understood before the statutory definition was enacted24 ), but had been forced by evictions to move from farm to farm, would be excluded, whilst a person whose father and who himself or herself had been fortunate enough to avoid eviction would qualify. What then in effect becomes a disqualifying criterion is the fact of past evictions, the very problem which the Act sought to deal with. A 23 Puputa v Potterill (1900) 21NLR 201, Wood v Maqaqa (1909) 30NLR 29, Natal Creamery Limited v Mahakana (1912) 33NLR 587, Makala Zikalala v Groenewald (1922) 43NLR 150, Tshabalala v Van der Merwe (1926) NPD See, for example, the definition contained in M Hathorn and D Hutchison Labour Tenants and the Law in C Murray and C O Regan (eds) No Place to Rest : Forced Removals and the Law in South Africa at page 194.