ESTERHUYZE v KHAMADI 2001 (1) SA 1024 (LCC) Flynote : Sleutelwoorde. Headnote : Kopnota

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1 ESTERHUYZE v KHAMADI 2001 (1) SA 1024 (LCC) 2001 (1) SA p1024 Citation 2001 (1) SA 1024 (LCC) Case No LCC 48R/00 Court Land Claims Court Judge Dodson J Heard July 27, 2000 Judgment July 27, 2000 Annotations Link to Case Annotations Flynote : Sleutelwoorde Land - Land reform - Eviction - Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 not applying where person sought to be evicted previously occupied property concerned in terms of agreement with owner. Land - Land reform - Land Claims Court - Jurisdiction - Review of eviction order - Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of Act including no automatic review procedure and conferring no jurisdiction on Land Claims Court - Review in respect of magistrate's decision under Act will lie to High Court having jurisdiction over that magisterial district. Court - Land Claims Court - Jurisdiction - Review of eviction order - Order issued by magistrate's court in terms of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of Act including no automatic review procedure and conferring no jurisdiction on Land Claims Court - Review in respect of magistrate's decision under Act will lie to High Court having jurisdiction over that magisterial district. Ejectment - Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of Act not applying where person sought to be evicted previously occupied property concerned in terms of agreement with owner. Ejectment - Review of eviction order - Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of Act including no automatic review procedure and conferring no jurisdiction on Land Claims Court - Review in respect of magistrate's decision under Act will lie to High Court having jurisdiction over that magisterial district. Headnote : Kopnota The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 does not ap"ply where the person sought to be evicted previously occupied the property concerned in terms of an agreement with the owner. (Paragraph [6] at 1026F - F/G.) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act includes no automatic review procedure and confers no jurisdiction on the Land Claims Court. Only original jurisdiction is dealt with in the Act. The only courts having original jurisdiction under the Act are the magistrates' courts and the High Courts. A review in respect of a magistrate's decision under the Act will lie to the High Court having jurisdiction over that magisterial district. Moreover, in the absence of any express provision for automatic review in terms of the Act, a review to the High Court would be a review in terms of Rule 53 of the High Court Rules at the instance of one of the parties. (Paragraph [8] at

2 1028A/B - C.) Where it was abundantly clear from the particulars of claim that the defendant was a person who had previously occupied the plaintiff's property in terms of a contract, the Act simply did not apply and the plaintiff was not entitled to seek an eviction order in terms of that Act. (Paragraph [7] at 1027A/B - B/C.) Cases Considered Annotations Reported cases ABSA Bank Ltd v Amod [1999] 2 B All SA 423 (W): applied Bergboerdery v Makgoro 2000 (4) SA 575 (LCC): doubted Khuzwayo v Dludla 2001 (1) SA 714 (LCC): referred to Sentrale Karoo Distriksraad v Roman; Sentrale Karoo Distriksraad v Koopman; Sentrale Karoo Distriksraad v Krotz 2001 (1) SA 711 (LCC): applied Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC) ([1999] 2 All SA 652): applied Van Zyl NO v Maarman 2001 (1) SA 957 (LCC): referred to. Statutes Considered Statutes The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: see Juta's Statutes of South Africa 1999 vol 6 at et seq. Rules Considered Rules of Court 2001 (1) SA p1025 The Uniform Rules of Court, Rule 53: see Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of th ed (1999) Part A at 97. Case Information Review of a decision in a magistrate's court. The facts appear from the reasons for judgment. Judgment Dodson J: [1] The plaintiff issued summons for the eviction of the defendant in the Kroonstad magistrate's court. The particulars of claim read as follows: '1. Eiser is D J T Esterhuyze, 'n volwasse man van die plaas Bainsvlei, Kroonstad. 2. Verweerder is Elias Khamadi, 'n volwasse man woonagtig te die plaas Loraine, distrik Kroonstad.

3 3. Eiser is die wettige eienaar ten opsigte van die plaas Loraine, distrik Kroonstad. 4. Verweerder was in diens van die eiser, maar het die verweerder op 1 Junie 1999 die eiser se diens verlaat. 5. Verweerder woon sedert 1 Junie 1999 onwettiglik op die eiser se plaas te Loraine, Kroonstad. 6. Eiser het die verweerder ooreenkomstig die Wet op Voorkoming van Wettige Uitsetting en Onregmatige Besit van Grond 19 van 1998 behoorlik en regsgeldiglik kennis gegee om die eiendom te verlaat. 6.1 Op 18/1/2000 is die verweerder skriftelik versoek om die plaas te verlaat, soos meer ten volle sal blyk uit die aangehegte aanhangsel, gemerk A. 6.2 Op 18/1/2000 is 'n kennisgewing en afskrif van aanhangsel A aan die stadsklerk van die oorgangsraad van Kroonstad gestuur per aangetekende pos, soos meer ten volle sal blyk uit die aangehegte kennisgewing, gemerk B. 6.3 Op 18/1/2000 is 'n kennisgewing aan die Departement van Grondsake per aangetekende pos gestuur van aanhangsel A, soos meer ten volle sal blyk uit die aangehegte skrywe aan die Departement van Grondsake, gemerk C. 7. Nieteenstaande voormelde kennisgewings, en versoek aan die verweerder, weier, versuim of laat verweerder na om die plaas Loraine te verlaat en het 'n periode van twee maande reeds verstryk.' [2] The action was not opposed. Default judgment was sought and granted in the following terms: 'Die verstekvonnis word toegestaan en die datum van die uitvoering van die uitsetting word vasgestel op 10 Julie 2000 indien die verstekvonnis bekragtig word op hersiening deur die Grondeise Hof.' [3] The file was then sent by the magistrate to the Land Claims Court for 'bekragtiging van hersiening'. I understand this to mean that the magistrate wishes this Court to exercise the automatic review jurisdiction which it has in respect of certain matters (1) SA p1026 [4] Upon receipt of the file, I invited the plaintiff's attorneys and the magistrate to make submissions or give further reasons in relation to various aspects of the matter, including whether or not this Court had jurisdiction to carry out the review. The deadline for the submissions was 3 July The magistrate submitted that this Court did not have jurisdiction to review the matter and asked that it be sent to the High Court for rescission. Submissions were only received from the plaintiff's attorneys on 11 July 2000 because the letter from the Court seems to have gone astray. By the time the submissions were received, the date of 10 July 2000 set in the magistrate's order had passed. The plaintiff's attorneys submitted that the Court had no jurisdiction and that the matter should simply be referred back to the magistrate. [5] It is clear from the particulars of claim, the affidavit filed in support of the summary judgment application and the submissions made by the plaintiff's attorney that the eviction order was sought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. 1 I will refer to this Act as 'PIE'. PIE regulates the eviction of 'unlawful occupiers'. The definition of this term in PIE reads as follows:

4 '(A) person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act 62 of 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996.' [6] The first difficulty I have with the plaintiff's having sought an eviction order in terms of PIE is that PIE does not apply where the person sought to be evicted previously occupied the property concerned in terms of an agreement with the owner. This was decided in ABSA Bank Ltd v Amod, 2 where Schwartzman J held as follows: 'Section 4 of... [PIE] limits the common-law right of an owner of land to evict an unlawful occupier from his or her land. An unlawful occupier in turn means ''a person who occupies land without the express or tacit consent of the owner''. In the context of... [PIE] and notwithstanding the definition of ''evict'' the meaning I give to these words is that the person referred to is a person who has without any formality or right moved on to vacant land of another and constructed or occupied a building or structure thereon. Had it been the intention of the Legislature to affect the common-law right of property owners... [to recover their property from persons given the right to occupy it in terms of a contract], the definition of unlawful occupier would have included a person who, having had a contractual right to occupy such property, is now in unlawful occupation by reason of the termination of the right of occupation.... Furthermore, the words ''the person who occupies land'' in the context of the definition of an unlawful occupier can only, as I understand it, mean a person who moves onto the land of an owner without the permission of the owner and cannot without more be said to include a person who has, in terms of a contract or otherwise, been in lawful occupation of a property but whose common-law right to possession has ended.' (1) SA p1027 [7] The decision in Amod was followed by this Court in Van Zyl NO v Maarman. 4 It is abundantly clear from the particulars of claim in this matter that the defendant is a person who previously occupied the plaintiff's property in terms of a contract. PIE simply does not apply and the plaintiff was not entitled to seek an eviction order in terms of that Act. Even if the defendant had been an unlawful occupier, the particulars of claim do not make out a case for an eviction order in terms of s 4(7) of PIE. 5 Nor does the magistrate's order comply with s 4(8) of PIE. 6 The plaintiff having incorrectly sought an order in terms of PIE, it ought not to have been granted. [8] That, however, is not the end of the matter. In Sentrale Karoo Distriksraad v Roman and two similar cases 7 this Court was also faced with orders granted in terms of PIE and sent to it for automatic review. The Court held as follows: '[3]... What is particularly important for present purposes is that the definition [of ''unlawful occupier''] expressly excludes ''a person who is an occupier in terms of the Extension of Security of Tenure Act''. I will refer to this Act as ESTA. [4] The latter exclusion is logical because an occupier in terms of ESTA is by definition a person who has or at a certain time had consent or another right in law to occupy the land of another. Under ESTA, the Land Claims Court has both original jurisdiction to hear matters pertaining to occupiers and, more importantly, appeal and review powers over the magistrates' courts in respect of their decisions in terms of ESTA. Most important for present purposes is s 19(3)

5 2001 (1) SA p1028 of ESTA which confers an automatic review jurisdiction on the Land Claims Court in respect of eviction orders made by magistrates against occupiers in terms of ESTA. [5] PIE, by contrast, includes no automatic review procedure and confers no jurisdiction on the Land Claims Court. Only original jurisdiction is dealt with in PIE. The only courts having original jurisdiction under PIE are the magistrates' courts and the High Courts. A review in respect of a magistrate's decision under PIE would lie to the High Court having jurisdiction over that magisterial district. Moreover, in the absence of any express provision for automatic review in terms of PIE, a review to the High Court would be a review in terms of Rule 53 of the High Court Rules at the instance of one of the parties. [6] The orders in these applications were purportedly sent for automatic review to the Land Claims Court by the magistrate who gave the orders. Given that the orders were plainly made in terms of PIE and no defence was raised based on any alleged protected status as an occupier in terms of ESTA, the magistrate had no power or duty to send them on automatic review. The Land Claims Court has no jurisdiction to review the orders.' [9] As appears from this extract, this Court's automatic review jurisdiction derives from s 19(3) of the Extension of Security of Tenure Act 8 or 'ESTA'. ESTA deals with the eviction of a class of rural tenants described as 'occupiers' and defined as follows: '(A) person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding - (a) a labour tenant in terms of the Land Reform (Labour Tenant) Act 3 of 1996; (b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself and does not employ any person who is not a member of his or her family; and (c) a person who has an income in excess of the prescribed amount.' 9 The land to which ESTA applies is described in s 2(1) of ESTA as follows: '2(1) Subject to the provisions of s 4, this Act shall apply to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including - (a) (b) any land within such a township which has been designated for agricultural purposes in terms of any law; and any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.' [10] In terms of s 19(3), the Land Claims Court must review '(a)ny order for eviction by a magistrate's court in terms of this Act [ie ESTA]' 2001 (1) SA p1029 In Skhosana and Others v Roos t/a Roos se Oord and Others 10 this Court held that it would have jurisdiction in terms of s 19(3) not only where a plaintiff expressly sought and was granted an order of eviction in terms of ESTA, but also where a magistrate's

6 court failed to apply ESTA in circumstances where it ought to have done so. 11 The Court interpreted the words 'in terms of this Act' in s 19(3) of ESTA to mean 'within the sphere of law established by this Act'. 12 [11] Given that the plaintiff concedes that the defendant in this matter previously enjoyed consent to reside on his property and that the property is described as a farm, it is tempting to infer that this is a matter which ought to be have been dealt with in terms of ESTA and is therefore reviewable by this Court. However, closer scrutiny of the definition of 'occupier' reveals that previous consent and farmland 13 is not sufficient to render the defendant an occupier in terms of ESTA. 14 There are three categories of consensual occupiers of rural land who are excluded from the definition. They are labour tenants, persons using the land for what might be described loosely as purposes other than subsistence agriculture and persons earning in excess of R5 000 per month. 15 I have no information in regard to whether or not the defendant falls into one of these excluded categories. This does not appear from the particulars of claim and the defendant has not raised any defence whatsoever, let alone one based on ESTA. In Skhosana, this Court held that it was up to an occupier wishing to rely on the protection afforded by ESTA, to raise a defence based on that legislation. 16 I am bound by that decision which was a decision of two Judges of this Court. [12] I thus have no jurisdiction to carry out the automatic review which the magistrate has sought. I refer the file back to the magistrate's court and make no order. I make the observation, in passing, that the magistrate's order appears not to be enforceable, given that its execution 2001 (1) SA p1030 was conditional upon confirmation of the order by this Court. If there is any attempt to renew the application for default judgment, the magistrate will need to take into account what I have said in paras [5] - [7]. Plaintiff's Attorneys: Du Randt & Louw Inc, Kroonstad Act 19 of [1999] 2 B All SA 423 (W). Above n 2 at 429i - 430c. 4 LCC 49R/00, 24 July 2000, internet website /49r00sum.html. Note the qualification expressed at fn 11 of that judgment. (Now reported at 2001 (1) SA 957 (LCC) - Eds.) 5 Section 4(7) of PIE reads as follows: 'If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of State or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.' 6 Section 4(8) of PIE reads as follows: 'If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful

7 occupier, and determine - (a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and (b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in para (a).' 7 LCC 6R - 8R/00, 4 February 2000, [2000] JOL 6112 (LCC), internet website (Now reported as Sentrale Karoo Distriksraad v Roman; Sentrale Karoo Distriksraad v Koopman; Sentrale Karoo Distriksraad v Krotz 2001 (1) SA 711 (LCC) - Eds.) 8 Act 62 of Section 1 of ESTA. The prescribed amount referred to in para (c) is R See Regulation R1632, Government Gazette 19587, 18 December (4) SA 561 (LCC) ([1999] 2 B All SA 652). Skhosana above n 10 at para [13]. Skhosana above n 10 at para [18]. 13 In this regard, see Khuzwayo v Dludla, LCC 33R/00, 10 July 2000, internet website at para [9]. (Now reported at 2001 (1) SA 714 (LCC) - Eds.) 14 I appreciate that my view in this regard may be at variance with the decisions of this Court in Theunissen v Chibodu, LCC 70R/99, 18 November 1999, [1999] JOL 5785 (LCC), internet website /theunissensum.html and Bergboerdery v Makgoro, LCC 29R/00, 6 June 2000, internet website To the extent that the Court in those cases considered that the mention of consent and farmland in the pleadings or the record of proceedings was sufficient to confer jurisdiction in terms of s 19(3), I must respectfully differ. However, it is not entirely clear from those judgments whether the record did not contain more information to suggest that the respondents in those cases qualified in terms of the other aspects of the definition of occupier. The magistrates in both cases conceded that the orders ought to have been made in terms of ESTA. * Now reported at 2000 (4) SA 575 (LCC) - Eds See paras (a) to (c) of the definition of 'occupier' quoted in para [9]. Skhosana above n 10 at para [22].