IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG CASE NUMBER: LCC 48R/00 In chambers: DODSON J MAGISTRATE S COURT CASE NUMBER: 3001/2000 Decided on: 27 July 2000 In the review proceedings in the case between: ESTERHUYZE, DJT Plaintiff and KHAMADI, E Defendant 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 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, Wet No 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.
2 6.3 Op 18/1/2000 is &n kennisgewing aan die Dept. van Grondsake per aangetekende pos gestuur van Aanhangsel A soos meer ten volle sal blyk uit die aangehegte skrywe aan die Dept. 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 (2) 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 GROND EISE 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. [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 2000. 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: 1 Act 19 of 1998.
3 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, 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, 1996 (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. 3 [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 section 4(7) 2 [1999] 2 All SA 423 (W). 3 Above n 2 at 429i-430c. 4 LCC 49R/00, 24 July 2000, internet web site http://www.law.wits.ac.za/lcc/2000/49r00sum.html. Note the qualification expressed at fn 11 of that judgment.
4 of PIE. 5 Nor does the magistrate s order comply with section 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 Distrikraad 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 section 19(3) 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. 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 occupier, and determine- (a) (b) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and 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 paragraph (a). 7 LCC 6R-8R/00, 4 February 2000, [2000] JOL 6112 (LCC), internet web site http://www.law.wits.ac.za/lcc/6r00sum.html.
5 [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 section 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, 1996 (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 section 2(1) of ESTA as follows: 2(1) Subject to the provisions of section 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 section 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]. 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 section 19(3) not only where a plaintiff expressly sought and was granted an order of eviction in terms of ESTA, but also where a 8 Act 62 of 1997. 9 Section 1 of ESTA. The prescribed amount referred to in paragraph (c) is R5 000. See Regulation R1632 Government Gazette 19587, 18 December 1998. 10 Reported as Skhosana v Roos in [1999] 2 All SA 652 (LCC).
6 magistrate s 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 section 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 R5000 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. 11 Skhosana above n 10 at para [13]. 12 Skhosana above n 10 at para [18]. 13 In this regard, see Khuzwayo v Dludla, LCC 33R/00, 10 July 2000, internet web site http://www.law.wits.ac.za/lcc/2000/33r00sum.html at para [9]. 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 web site http://www.law.wits.ac.za/lcc/1999/theunissensum.html and Bergboerdery v Makgoro, LCC 29R/00, 6 June 2000, internet web site http://www.law.wits.ac.za/lcc/2000/29r_00sum.html. 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 section 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. 15 See paras (a) to (c) of the definition of occupier quoted in para [9]. 16 Skhosana above n 10 at para [22].
7 [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 it s execution 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 paragraphs [5] to [7]. JUDGE DODSON For the plaintiff: R D van Wyk of Du Randt & Louw Inc, Kroonstad. For the respondent: No appearance.