IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG CASE NUMBER: LCC 82R/02 In chambers: Gildenhuys AJ MAGISTRATE S COURT CASE NUMBER: 1214/2001 Decided on: 29 August 2002 In the review proceedings in the case between: R & V BELEGGINGS (EDMS) BPK Plaintiff and LUKHELE, V Defendant JUDGMENT GILDENHUYS AJ: [1] The Magistrate for Piet Retief referred this matter to this Court for automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 1 (herein referred to as ESTA ). [2] The plaintiff is the owner of the farm generally known as Springbokkraal, in the district of Piet Retief, Mpumalanga province. The defendant, a major female person, lives on the farm. The plaintiff issued summons in the Magistrate s Court of Piet Retief for the eviction of the defendant from the farm, firstly under common law, or alternatively, in the event of the Court finding that the defendant is an occupier as defined in ESTA, under the applicable provisions of ESTA. The defendant did not enter an appearance to defend the action. The Magistrate, by default, granted an eviction order against the defendant under common law. 1 Act 62 of 1997, as amended.
2 [3] ESTA protects a particular class of indigent person who has or has had permission to live on rural and semi-rural land, against eviction from that land. 2 According to the evidence before the Magistrate s Court, the plaintiff did not give the defendant permission to live on the farm. The defendant is a granddaughter of the late Mr Meshack Lukhele, and was ostensibly a member of his household. The late Mr Lukhele lived on the farm with the plaintiff s consent for many years. He passed away in 1997. The plaintiff only became aware of the defendant s presence on the farm shortly before the institution of the action against her. The plaintiff submitted that she is not an occupier as defined in ESTA. 3 [4] The difference between the legal position of occupiers (as defined in ESTA) and the legal position of household members who are not occupiers (as defined), has been set out by this Court in Landbou Navorsingsraad v Klaasen 4 as follows: A person residing on land will not be an occupier (as defined) unless there is a legal nexus between that person and the owner or person in charge of the land. There is no such nexus between family members living with that person on the one hand, and the owner or person in charge of the land on the other hand. The family law rights of the family members do not turn them into occupiers. 5 To succeed in an action for the eviction of a household member of an occupier, the owner or person in charge will have to show that the occupier himself no longer lives on the farm, or that he or she no longer enjoys protection under ESTA, or that there are other grounds 6 warranting his or her eviction. 7 In this connection, I must respectfully disagree with a conclusion which Dodson J seems to have reached in Atkinson v Van Wyk and Another, 8 namely that the mere 2 Mkangeli and Others v Joubert and Others 2002 (4) SA 36 (SCA) at para [9]. 3 The definition is contained in section 1 of ESTA. 4 LCC 83R/01, 29 October 2001, available from www.law.wits.ac.za at para [19] - [36]. 5 At para [23]. See also Venter NO v Claasen en Andere 2001 (1) SA 720 (LCC) at para [9] and Dique NO v Van der Merwe en Andere 2001 (2) SA 1006 (T) at 1011D-H 6 A legally justifiable ground might conceivably be misbehavior by the household member as envisaged in section 6(3), or if the household member is not family of the occupier, as contemplated in the culture of that family. 7 Landbou Navorsingsraad v Klaassen above n4 at para [34]. 8 1999 (1) SA 1080 (LCC).
3 awareness of an owner of the presence of a family member living with an occupier on a farm could constitute tacit consent for the family member to live on the farm, and so turn the family member into an occupier (as defined in ESTA) in his or her own right. 9 [5] Section 3(4) of ESTA does not militate against the conclusion that the defendant is not an occupier, as defined. Section 3(4) reads as follows: For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved. The term consent is defined in ESTA as the express or tacit consent of the owner or person in charge of the land. 10 Consent must originate from an agreement, or exist by operation of law. 11 The presumption in section 3(4) will not generate consent. It does nothing more than cast an onus on the owner or person in charge to prove that there is no consent, if that is factually the position. That onus was discharged in the present case. [6] The protection given by ESTA against eviction is directed at specific persons, called occupiers. 12 People who wish to avail themselves of that protection must allege and prove that the legislation applies to them. 13 That was not done in this case. Nonetheless, ESTA is social interest legislation. Notwithstanding the absence of a defence specifically based on ESTA, a court should not grant an eviction order if it is apparent from information before it that ESTA is applicable, and that its requirements were not complied with. 14 There is, however, no duty on a court to investigate meru moto whether the demands of ESTA were met if there is no indication before the Court that ESTA could be applicable. 15 In this case, it was shown that ESTA is not 9 At para [9] of the judgment. See also Dique NO v Van der Merwe en Andere above n5 at 1011I-1012D. 10 See the definition of consent in section 1(1) of ESTA. 11 See Landbou Navorsingsraad v Klaasen above n4, para [34]. 12 Skhosana v Roos 2000 (4) SA 561 (LCC); [1999] 2 All SA 652 (LCC) at para [24]. 13 Skhosana v Roos above n12 at para [22] and [27]; Khuzwayo v Dludla 2001 (1) SA 714 (LCC) para [9]. 14 De Villiers v Msimango 1999 (4) SA 59 (LCC) at para [9]. 15 Skhosana v Roos above n12 at para [27]; Khuzwayo v Dludla above n13 at para [10].
4 applicable. Consequently the magistrate was, in my view, fully entitled to grant an eviction order under the common law. [7] This brings me to the question as to what a magistrate must do when the information before him indicates a possibility that ESTA might be applicable, and he comes to the conclusion that it is not applicable. Following the broad interpretation given to this Court s function of automatic review in Skhosana v Roos, a magistrate should, in cases where the provisions of ESTA were at issue when an eviction order was made, refer the order to the Land Claims Court for automatic review, even if he or she came to the conclusion that ESTA is not applicable. 16 In the past this Court has, in a few instances, set eviction orders aside which were not granted in accordance with the provisions of ESTA, where the magistrate wrongly concluded that ESTA is not applicable. 17 In this case the Magistrate, quite correctly, submitted the eviction order to this Court to consider whether it is reviewable. [8] I must moreover decide what this Court should do if an eviction order comes before it on automatic review which, although ESTA was at issue, had not been granted under ESTA because the magistrate held that ESTA is not applicable, and this Court agrees with the magistrate s decision that ESTA does not apply. This Court has no authority to review or confirm an eviction order made by a magistrate under common law or under a different Act, if it was correctly held that the case falls outside the ambit of ESTA. 18 In such circumstances this Court should, in my view, content itself with a finding that ESTA is not applicable. 16 Skhosana v Roos above n12 at para [12]: However, the Legislature in providing for the automatic review of ESTA cases clearly intended that the Land Claims Court must scrutinise the records of those cases to ensure that the provisions of ESTA were correctly applied. It would be absurd if, on the one hand an eviction order made under the provisions of ESTA has to be reviewed by this Court while, on the other hand, an eviction order under common law consequent upon a decision that ESTA does not apply, is not subject to such review. This dictum was cited with approval by Meer J in Bergboerdery v Makgoro, LCC 29R/00, 6 June 2000 available from www.law.wits.ac.za at para [4]. See also De Villiers v Msimango above n14 at para [3] read with para [6]. 17 For an example, see De Villiers v Msimango above n14 at para [9]. 18 Khuzwayo v Dludla above n13 para [11]-[14].
5 [9] Having agreed with the magistrate that ESTA is not applicable to the circumstances under which the eviction order was made in this case, no order is made under section 19(3) of the Extension of Security of Tenure Act, 1997. It follows that the suspension of the magistrate s order pending its review will terminate. ACTING JUDGE A GILDENHUYS For the plaintiff: Cox & Partners, Vryheid For the defendant: Absent.