IN THE LAND CLAIMS COURT OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at DURBAN on 31 October 2001 CASE NUMBER: LCC 40/01 Before: Gildenhuys AJ Decided on: 7 November 2001 In the interlocutory application of E M MDUNGE AND OTHERS Applicants and M C HEYNS NO AND ANOTHER Respondents In the case between: M C HEYNS NO E G HEYNS NO First Applicant Second Applicant and E M MDUNGE M SMITH B MUNDE M MDUNGE First Respondent Second Respondent Third Respondent Fourth Respondent JUDGMENT GILDENHUYS AJ: [1] This is an interlocutory application for an order that the applicants in the main application furnish the respondents in the main application with a Zulu translation of the papers filed in the main application. The applicants in the main application applied in this Court for the eviction of the respondents from the farm The Wilderness, situated in the district of Dundee, KwaZulu- Natal. The application was brought in terms of the provisions of the Extension of Security of

2 Tenure Act (commonly known as ESTA ). 1 I will refer to parties as they are referred to in the main application throughout this judgment. [2] The first applicant farms on The Wilderness. The farm is owned by a trust of which the two applicants are the sole trustees. The first respondent is an erstwhile employee of the first applicant. The other respondents are members of his family. They all live with him on The Wilderness. They refused to leave the farm when first respondent s employment on the farm came to an end. [3] The notice of motion, founding affidavits and most of the annexures in the main application are in Afrikaans. The first respondent alleges that he does not understand Afrikaans. He brought the interlocutory application for an order that the applicants furnish the respondents with a translation in Zulu of the notice of motion, founding affidavit and relevant annexures, and that the eviction proceedings be stayed until such translations has been furnished. The applicants opposed the interlocutory application. The interlocutory application was heard on 31 October 2001. This judgment only relates to the relief claimed in the interlocutory application. [4] Normally a litigant is entitled to prepare his papers in court proceedings in the official language of his choice. This was held by Munnik J in Botha NO v Botha, 2 a case which was decided before the new constitutional dispensation: Daar is een ander aspek van die saak wat aandag verg en dit is die respondent se beswaar teen die feit dat die stukke wat aan hom bestel is in Engels opgestel is. Art. 108 (1) van die Grondwet van die Republiek lees as volg: Afrikaans en Engels is die amptelike tale van die Republiek en word op gelyke voet behandel en besit en geniet gelyke vryheid, regte en voorregte. Niks verhinder n gedingvoerende party om sy stukke in die amptelike taal van sy keuse op te stel nie. Daar mag gevalle wees waar sy teenparty die stukke nie kan verstaan nie; maar dit is dan die teenparty se eie skuld. Dit word van elke burger, idealisties soos dit selfs tans mag klink, verwag dat hy albei die landstale magtig moet wees. In hierdie besondere geval is die stukke ingevolge die Hofreëls deur die onderbalju bestel. Reël 4 (1) (d) lees as volg: 1 Act 22 of 1994, as amended. 2 1965 (3) SA 128 (E).

3 Dit is die plig van die balju of ander persoon wat die prosesstukke of dokumente beteken, om die aard van die inhoud daarvan aan die betrokke persoon te verduidelik en in sy relaas te meld wat hy gedoen het. 3 [5] Under the 1996 Constitution, the official languages of the Republic of South Africa are Sepedi, Sesotho, Setswana, siswati, Tshivenda, Xistonga, Afrikaans, English, isindebele, isixhosa and isizulu. 4 The Constitution furthermore provides that all official languages must enjoy parity of esteem and must be treated equitably. 5 Although the ideal of every citizen being conversant with each of the eleven official languages is hardly achievable, the principle that a litigant has a choice of language remains. This right of choice may, however, not be abused. If it is exercised to embarrass, frustrate or render impossible the smooth and efficient administration of justice, it may be curtailed. 6 There is no suggestion in this matter that the applicants prepared their papers in Afrikaans for any improper reason. [6] Ms Naidu, who acted on behalf of the respondents, submitted that in eviction proceedings under ESTA it is essential that the occupier whose eviction is sought, must understand the proceedings launched against him. This will not be achieved if the Court papers are drawn in a language which the occupier does not understand. She pointed out that the regulations under ESTA 7 require that the notice of intention to obtain an eviction order 8 must be given in a language best understand by the occupier. 9 This requirement, so she submitted, is indicative of a requirement that Court papers in eviction proceedings must also be drawn in, or be translated into, a language which the occupier understands. 3 Botha above n 2 at 130B-D. 4 Section 6(1) of the Constitution of the Republic of South Africa, Act 108 of 1996. 5 Section 6(4) of the Constitution. 6 Ernst and Young and Others v Beinash and Others 1999 (1) SA 1114 (W) at 1128C. In Beinash and Others v Ernst & Young and Others 1999 (2) SA 116 (CC) at 128B-C, the Constitutional Court refused leave to appeal against the decision. See also Matemane v Magistrate, Alberton and Another 1991 (4) SA 613 (W) at 620C. 7 The regulations are published in Regulation R1632 Government Gazette 19587, 18 December 1998. 8 The notice must be given in terms of section 9(2)(d)(i) of the Act. 9 Para 9 of the regulations.

4 [7] Regulations made under a statute cannot aid in the interpretation of the statute. That was held by Nicholas J in Hamilton-Brown v Chief Registrar of Deeds: 10 It is not, however, legitimate to treat the Act and the regulations made thereunder as a single piece of legislation and to use the latter as an aid to the interpretation of the former. The section in the Act must be interpreted before the regulation is looked at and, if the regulation purports to vary the section as so interpreted, it is ultra vires and void. It cannot be used to cut down or enlarge the meaning of the section (see Clinch v Lieb, 1939 T.P.D. at p. 125). 11 The above stance was confirmed on appeal by the Appellate Division in Chief Registrar of Deeds v Hamilton-Brown, 12 and subsequently followed in Moodley and Others v Minister of Education and Culture, House of Delegates, and Another. 13 Disregarding the regulations (as I must do), there is nothing in ESTA which suggests that Court papers for an eviction application against an occupier must be in a language understood by the occupier, or must be translated into such a language. [8] Ms Naidu next referred me to a judgment of Hlophe DJP (as he then was) in the case of Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others, 14 a case decided under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (commonly known as PIE ). 15 Section 4(2) of PIE provides that at least 14 days before the hearing of proceedings for eviction, the court must serve written and effective notice of the proceedings on the unlawful occupiers and the municipality having jurisdiction. In relation to such a notice, the court held: According to The Concise Oxford Dictionary 7th ed 'effective' means 'having an effect; powerful in effect; striking; remarkable; actually usable; fit for work or service'. Fowler's Modern English Usage 2nd ed gives a similar meaning. While the notice served on the respondents was clearly written, Mr Hodes [who appeared for the applicant] submitted, correctly in my view, that it was far from being effective. Surely an enquiry into whether the notice was effective in any given case should begin with the circumstances of the respondents, that is the people sought to be evicted from the premises. Mr Louw, 10 1968 (4) SA 735 (T). 11 Above n 9 at 737D. 12 1969 (2) SA 543 (A) at 547H. 13 1989 (3) SA 221 (A) at 233E-F. 14 2000 (2) SA 67 (C). 15 Act 19 of 1998.

5 who appeared for the applicant, did not contend otherwise. The undisputed allegations on the respondents' papers were that the overwhelming majority of the respondents are Xhosa speaking and many of them are illiterate... I agree with Mr Hodes that the copy of the order served should have been accompanied by a Xhosa translation thereof, given that the home language of the majority of the respondents is Xhosa. 16 This dictum only relates to the section 4(2) notice. It is a far cry from requiring that the Court papers in their entirety must be translated into a language best understood by the evictees. By way of comparison, it is worthy of note that the regulations under ESTA also require a notice of intention to obtain an eviction order to be served in a language best understood by the occupier. 17 The Cape Killarney judgment is no authority for the submission that the respondents in this matter must be given a translation of the full application papers into the Zulu language. [9] Ms Naidu pointed out that persons sought to be evicted under ESTA will often be unsophisticated or even illiterate, and as such will be particularly vulnerable. One of the objects of ESTA is to regulate the eviction of vulnerable occupiers from land in a fair manner. An eviction achieved through legal processes in a language that the evictee does not understand, so the argument ran, would not be fair. For that reason, a finding that the respondents are entitled to a translation of the Court papers would not set a precedent for all litigation in all matters, but only apply to eviction proceedings under ESTA. [10] The disadvantage to an unsophisticated occupier of having to deal with eviction papers in a language that he does not understand, may well be more apparent than real. Under the Land Claims Court rules, the papers through which the litigation is commenced must include a notice in all eleven official languages, warning the occupier that the papers are very important and inviting him to contact a lawyer. 18 The sheriff is under a duty, when the papers are served, to explain the nature and contents thereof. 19 The occupier is, as of right, entitled to legal 16 At 75D-F. 17 See para [6] above. 18 Rule 17(3)(c) and form 9 of the Land Claims Court rules. 19 Rule 24(1) of the Land Claims Court rules read with rule 4(1) of the Uniform Rules of Court. See also the dictum in the Botha case quoted in para [4] above.

6 representation. 20 If he is undefended, the court is under a duty to enquire why. Should it appear that there is no good reason for the lack of legal representation, it should be brought to the attention of the responsible organs of State. 21 [11] Once a legal representative is appointed, he or she can have the papers translated, to the extent necessary. The costs thereof would fall to be covered by the State as part of the legal costs, if the occupier is on legal aid. Many of the documents annexed to the papers in this case, such as the title deeds of the applicant s property and the trust deed of the applicant trust, will mean little to an unsophisticated person, even if translated. In practice, and provided the papers are in an official language which the legal representative understands, each paragraph of every relevant document can be informally translated and explained to the occupier, and instructions on how to respond, can be obtained. 22 That is likely to happen in any event, even where the documents are in a language with which the occupier is familiar, since very few unsophisticated occupiers can fully comprehend the substance and import of formal legal writing. [12] I must add a word of caution. If an occupier cannot, through his legal representative or otherwise, obtain an understanding (albeit through an informal translation) of court documents which are in a language that he is not familiar with, it may well impinge on his right to a fair hearing. Haysom and Kathla, in their commentary Language and Culture, 23 refer to the Canadian case of Societe des Acadiens du Noveau-Brunswick Inc v Association of Parents for Fairness in Education 24 in support of the requirement that legal proceedings must be understood by the parties thereto. In that case, Beetz J held: 20 Nkuzi Development Association v The Government of the Republic of South Africa, LCC 10/01, 6 July 2001, [2001] JOL 8500 (LCC), internet web site http://www.law.wits.ac.za/lcc/2001/10-01sum.html. See also the discussion of this judgment by Mohamed, Right to representation reiterated October 2001 De Rebus No 405 at 53, and the summary of the judgment in November 2001 De Rebus No 406 at 55. 21 See Theewaterskloof Holdings (Pty) Ltd, Glaser Division v Jacobs and Others, LCC 91R/01, 19 October 2001, internet web site http://www.law.wits.ac.za/lcc/2001/91r01sum.html at para [19]. 22 The first respondent s affidavits in the interlocutory application were drawn in English, and were informully translated for him into Zulu before he signed them. 23 Contained in Davis et al (ed) Fundamental Rights in the Constitution: Commentray and Cases, (Juta, Cape Town 1997) at 277. 24 [1986] I SCR 549 (Can).

7 The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights... It belongs to the category of rights which in the Charter are designated as legal rights. [ 25 ] Such legal rights do not, in my view, cast a burden on the other side to provide translations of Court papers from one official language into another. On the other hand, an occupier ought not to be disadvantaged by the language used in legal documents served upon him. If the occupier is in fact disadvantaged, some remedy, which could be competent legal assistance, must be provided. It is the duty of the state and of every presiding officer hearing a matter in court, to ensure that the hearing is fair. If a party is legally represented, the representative will usually be able to make Court documents drawn in an official language which his client does not understand, comprehensible to his client. It is beyond the scope of this judgment to give general directions on what must be done to prevent the use of a specific language from giving rise to an unfair hearing. In the present case, it does not appear to me that the first respondent has had difficulty in replying, with the assistance of his attorney, to the applicant s answering affidavit in the interlocutory application, which was drawn in Afrikaans. The same should also apply to the founding affidavit and its annexures in the main application. [13] If follows from the above that the interlocutory application cannot succeed. If the first respondent is disadvantaged by documents being in Afrikaans, his remedy is not to demand a translation from the applicant. The applicant asks for costs de bonis propriis, alternatively on the scale as between attorney and client. In my view, the respondent acted neither recklessly nor in bad faith in bringing the interlocutory application. There is no basis for a special cost order. In the absence of special circumstances, this Court would normally not make a cost order in eviction cases under ESTA. 26 I am not persuaded that I should deviate from that practice in the present instance. The first respondent is unemployed, evidently a pauper. That by itself is, in the circumstances of this case, sufficient reason for not making a cost order against him. 27 25 Quotation taken from Fundamental Rights in the Constitution, above n 22, at 281. 26 See the decisions of this Court as set out in Cilliers Law of Costs 3 rd ed (Butterworths, Durban 1997) at 15-22 to 15-23. 27 See Attwell v Guisman 1949 (3) SA 991 (E).

8 [14] For the reasons set out above, the interlocutory application is dismissed. No order is made as to costs. ACTING JUDGE A GILDENHUYS For the applicant: Phillip du Toit Incorporated, Centurion. For the respondents: Legal Resources Centre, Durban.