Mahlangu v De Jager (LCC1/96) [1996] ZALCC 1 (25 April 1996)

Gildenhuys J : The applicant was a worker on a farm of the respondent and lived on the farm. He earned a salary and, in addition, had the right to receive certain produce, to live on the farm with his family, to utilise limited grazing and (according to the applicant) also the right to plant crops. The exact terms of his employ are in dispute. It is common cause that the applicant’s employment terminated on 29 August 1995. The applicant maintained that the respondent unfairly dismissed him. The respondent maintains that the applicant resigned his employ. It is not necessary, for purposes of this judgement, to resolve these disputes.

The applicant failed to vacate the farm. The respondent obtained an order in the Magistrates’ Court of Bethal for the eviction of the respondent. According to par B(ii) of the notice of motion, the order was granted on 9 February 1996. Pursuant to the eviction order, the applicant was physically evicted from the farm on 9 April 1996.

The applicant applied to this Court on an urgent basis for an order as follows (I quote verbatim) :

(A) condoning the non-compliance with the rules relating to form and service in terms of rule 6(12) of the rules of This Honourable Court;

(B) (i) applicant be regarded as a labour tenant in terms of ection 1(xi) of the Land Reform (Labour Tenants) Act, No 3 of 1996;

(ii) that the respondent restore applicant occupation of portion of the farm Banklaagte (district Bethal) which portion applicant and his family occupied immediately prior to 9 February 1996 when the learned Magistrate of the Bethal Magistrate’s Court under case number 15/96 granted an order for the eviction of the applicant and his family from the said portion;

(iii) that the respondent restore to applicant his (applicant’s) house and contents in the same condition/state as it was prior to the date referred to in (ii) above;

(iv) that respondent restore possession to applicant of applicant’s 24 (twenty four) cattle, 8 (eight) goats, 30 (thirty) chickens and 5 (five) dogs which respondent had removed consequent upon the aforesaid order of the learned Magistrate Bethal under case number 15/96;

(v) that respondent restore applicant that portion of the farm aforesaid which the cattle, goats, chickens and dogs occupied prior to the learned Magistrate’s order aforesaid made on 9 February 1996;

(vi) that respondent restore applicant with possession of a light blue 1300 Datsun Bakkie and without detracting from the specificity of the aforegoing respondent restore possession to applicant of all applicant’s belongings which were removed and/or destroyed consequent upon the order of the learned Magistrate - Bethal aforesaid.

( C) that the order embraced in (B) above operate as an interim order until the Director General has adjudicated upon applicant’s claim contained in Annexure “A” annexed hereto;

(D) that the respondent be ordered to pay applicant’s costs on the attorney/own client scale;

Until such time as the president of the Court has made rules to govern the procedure of the Land Claims Court, the rules of procedure applicable in civil actions and applications in a provincial division of the Supreme Court apply to proceedings of the Land Claims Court¹. The president of the Court has not yet made any rules. The provisions of the uniform rules of the Supreme Court, particularly rule 6 (dealing with applications) are therefore applicable to this case.

Apart from a general allegation by the applicant that “the acquisitions I amassed throughout my life were seized and/or destroyed by the respondent”, the founding affidavit of the applicant sets out no facts on which his claim for the restoration of the movable assets described in par (B)(iii) en par (B)(iv) of the notice of motion can be based. Mr Omar, who appeared for the applicant, did not advance any argument in support of these claims, and was not anxious to pursue them.

The claims for restoration contained in par (B) of the notice of motion are brought on the basis of interim relief, until the Director General of Land Affairs has ruled on a claim by the applicant in terms of Chapter 3 of the Land Reform (Labour Tenants) Act, 1996 (Act No 3 of 1996) (“the Act”) to buy that portion of respondent’s farm which was previously occupied and used by the applicant and his family.

The application was set down for hearing at 14:00 on 17 April 1996. During the morning of 17 April 1996, the respondent filed answering affidavits. Despite the fact that the answering affidavits raised important disputes of fact, the applicant did not file replying affidavits, nor did he apply for a postponement of the hearing to prepare and lodge replying affidavits. On the contrary, his attorney, Mr Omar, argued the case on the basis of the founding and answering affidavits only.

In reply to a question from me, Mr Omar told me that the applicant’s claim for relief is intended to be brought in terms of section 12 of the Act. Section 12(1) of the Act reads as follows :

(a) in terms of section 3 would have had a right to occupy and use land if the provisions of this Act had been in force on 2 June 1995; and

(b) between 2 June 1995 and the commencement of this Act vacated a farm or was for any reason or by any process evicted,

may institute proceedings in the Court for an order of reinstatement of such rights.

Section 3 of the Act, to which section 12(1)(a) refers, relates to a person who was a labour tenant on 2 June 1995. The Act contains the following definition of a labour tenant² :

(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 right provided or provides labour to the owner or lessee of such or such other farm,

including a person who has been appointed a successor to a labour tenant in accordance with the provisions of sections 3(4) and (5), but excluding a farm worker.”

Accordingly, to succeed under section 12(1), the applicant must show that he was a labour tenant on 2 June 1995, and that he vacated the farm or was evicted between 2 June 1995 and the date of commencement of the Act³. To achieve that, the applicant must set out facts to establish every requirement of the definition, including the negative requirement that he must not be a farm worker⁴.

It is common cause that on 2 June 1995, the applicant was employed by the respondent, that he resided on the farm and that he, in addition to other remuneration, had the right to graze a number of cattle on the farm in partial consideration of providing labour to the respondent. This would satisfy the requirements of par (a) and par (b) of the definition. The applicant alleges that he also had the right to “cropping (farming)”, which is denied by the respondent.

The requirements of par ( c) of the definition create a problem. It is common cause that applicant’s father and grandfather lived on the farm. No allegation was made and no facts were set out either by the applicant or the respondent to show whether the employment conditions of the applicant’s father and grandfather included the right to use land on the farm for cropping or grazing purposes. In the result, all the requirements of par ( c) are not met.

Mr Omar argued that the because the word “and” does not appear at the end of par (a) of the definition of labour tenant, as it does at the end of par (b), par (b) and par ( c) together constitute alternative requirements to the requirements of par (a). Accordingly, so he argued, it is sufficient for the applicant to comply only with par (a) by showing that he resided on the farm on 2 June 1995, and the requirements of par (b) and par ( c) need not be met at all. If his argument is correct, it is difficult to understand why par (b) and par ( c) were included in the definition.

The applicant must also show that he is not a farm worker. A farm worker is defined in the Act⁵ as follows :

“farm worker” means a person who is employed on a farm in terms of a contract of employment which provides that

(a) in return for the labour which he or she provides to the owner or lessee of the farm, he or she shall be paid predominantly in cash or in some other form of remuneration, and not predominantly in the right to occupy and use land; and

There are no allegations or facts set out in applicant’s founding affidavit to show that applicant is not a farm worker. On this requirement of the definition of labour tenant, Mr Omar submitted that the exclusion of a farm worker relates only to successors of a labour tenant, and not to non-successors. This interpretation conflicts with the plain wording of the definition, and cannot be accepted.

A farm worker is, by definition, a person who is paid predominantly in cash or in some other form of remuneration for the services he or she has to render, and not predominantly in the right to occupy and use land, and who is obliged to perform his or her services personally. Mr Omar suggested that such predominance should not be interpreted as being a monetary predominance. The word “predominantly” relates to a weighing up of what the worker is being paid in the form of cash and other remuneration against his payment by way of a right to occupy and use land. In my view, the concept of payment⁶ comprises the giving of something which, although it need not sound in money, still has economic value⁷. If this was not the case, it would be well nigh impossible to weigh payment in cash or in some other form of remuneration up against payment in the right to occupy and use land in order to determine which of the two is predominant.

There is nothing in the founding affidavits to suggest that the alleged right of the applicant to occupy and use land on the farm was worth more than the applicant’s other remuneration. The respondent says in her answering affidavit that the applicant had the right to graze eighteen head of cattle only, and that such right is worth R10,00 per month per head of cattle. She puts the value of applicant’s right to live on the farm at R40,00 per month, and she denies that the applicant is entitled to cultivate any land. Valued as aforesaid, the right of the applicant to occupy and graze land on the farm is worth less than the other monthly remuneration to which the applicant (on both his own and on the respondent’s version of his employment terms) is entitled. The respondent does not, however, indicate how she has determined the value of R10,00 per month per head of cattle or R40,00 per month for the right of occupation, nor does she allege that she has any expert knowledge in making such determinations. Although suitably qualified persons other than valuers will be permitted to give valuation evidence, unmotivated determinations of what something is worth, especially by a witness who does not disclose any qualifications to make such determinations, are of no evidential value⁸. In this respect it may be significant that the respondent, in the summons issued by her for the eviction of the applicant from the farm, claimed that she suffered damages equal to R640,00 per month as result of the applicant’s alleged illegal occupation of the farm. The sum of R640,00 exceeds the value of the rest of applicant’s remuneration, even on respondent’s version of the employment terms.

In my view, the plain words of the definitions of labour tenant and farm worker lend no support to the constrained interpretations suggested by Mr Omar, and those interpretations must be rejected. The applicant has therefore not discharged the burden of proof that he was a labour tenant on 2 June 1995, nor has the respondent placed sufficient evidence before the Court upon which the Court can make a positive finding that the applicant is not a labour tenant.

Mr Omar argued that the mere allegation by the applicant that he is a labour tenant shifts the onus to the respondent to show that the applicant is not a labour tenant. I do not agree. Substantive law determines where the burden of proof lies, and such burden is not shifted in the course of the litigation. The evidential burden of combatting evidence presented by a party may shift⁹. Applicant bore the onus of showing that he was entitled to the relief claimed under section 12 of the Act, which is only available to persons who were labour tenants on 2 June 1995. However, the applicant did not place sufficient evidence before the Court to show that he was a labour tenant on 2 June 1995. As a result, there cannot even be a shift of any evidential burden to the respondent.

Because it has not been proved that the applicant was a labour tenant on 2 June 1995, the applicant is not entitled to any relief under section 12 of the Act. A possible further obstacle to such relief might be the fact that the actual physical eviction of the applicant from the farm occurred after the Act came into force, thereby placing the applicant outside of the ambit of section 12(1)(b). Mr Omar tried to meet this difficulty by arguing that the eviction order issued by the Bethal Magistrates’ Court on 9 February 1996 constitutes the eviction, and that an actual physical eviction is not a necessary prerequisite under section 12(1)(b). In support of his argument, he relied on the words “by any process” which precede the word “evicted”in that section. This argument is not without force. Circumstances which, to some extent, are comparable present themselves when the purchaser of a thing is confronted with an irresistible claim for possession of that thing from a third party. The purchaser need not wait until he is actually deprived of possession of the thing before he can hold the seller of the thing liable on the common law warranty against eviction¹⁰. On the other hand, eviction can also mean physical eviction.The Afrikaans text of the Act (which is the signed text) refer to “uitgesit”. “Uitgesit” means “removed from”, which has the connotation of a physical removal¹¹. Unfortunately, the definition of “eviction” in the Act¹² does not seem to take the matter any further. In the light of my finding that the applicant did not prove that he was a labour tenant on 2 June 1995, it is not necessary for me to decide this issue, and I make no finding thereon.

It might be argued that the execution of the writ of ejectment on a date after the Act came into force was in contravention of section 5 of the Act, which provides that a labour tenant may only be evicted in terms of an order of the Land Claims Court issued under the Act, and that the Court, under section 33(2) of the Act, has jurisdiction to make an order which would remedy any such illegal eviction. Mr Omar did not raise this argument, and I make no finding thereon.

The remedy provided in terms of section 12 of the Act is not the restoration of possession of the land and movables from which the applicant was evicted, but the re-instatement of the applicant as a labour tenant. This includes the restoration of the occupational and use rights in respect of the land which the applicant had before his eviction, and it also includes the obligations of the labour tenant, particularly the obligation to render services.

The right of a labour tenant to apply for an award of the land on a farm which he or she occupies and uses is dependant upon the applicant being a labour tenant when the application for such award is made in terms of section 16 of the Act. It is common cause that applicant’s employment with respondent terminated on 29 August 1995. Assuming, without deciding, that the applicant’s labour tenancy (if it existed at all) could, in law, not survive the termination of his employment, his application for an award of land in terms of section 16 of the Act would be premature, because only a labour tenant may bring such an application. If this assumption is correct, the applicant must first be re-instated as a labour tenant under section 12 (if he is able to make out a case for such re-instatement) before he can apply for an award of land under section 16. The applicant’s application of 12 April 1996 to the Director General might be premature.

The relief prayed for by the applicant, particularly the prayer that the restoration order should operate as an interim order until the Director General has adjudicated upon the applicant’s (possibly premature) claim for an award of land under section 16 is inappropriate. A claim under section 12 must be for the reinstatement of the applicant as a labour tenant, and not only for the restoration of the land and movables of which he was deprived. If the applicant is entitled to re-instatement as a labour tenant under section 12, such order would have to be granted under applicant’s prayer for alternative relief.

Mr van Strijp, who appeared for the respondent, submitted that the applicant did not show that the application, which was brought on the basis of urgency, was in fact urgent. An applicant bringing an urgent application must set forth the circumstances which render the matter urgent and the reasons why he or she will not be afforded substantial redress at a hearing in due course¹³. The applicant’s papers may well fall short in this regard. However, the respondent did not apply to argue the question of urgency before Mr Omar commenced his argument on the merits, and only raised the issue towards the end of his answering address. A party disputing that a case brought to Court on the basis of urgency, is in fact urgent, should apply for this issue to be decided before the Court hears argument on the merits. There is little sense in dismissing or postponing the application for lack of urgency after the merits of the application have been argued.

The application was submitted to the Court in an inept manner. Essential allegations are absent from the papers. The prayers are inappropriate to the relief to which the applicant may be entitled. I am not convinced that the issues have been fully canvassed or that all relevant facts have been placed before the Court by either party. Accordingly, I ought not to close the door to a properly motivated application by the applicant for relief under section 12(1) of the Act by dismissing the application at this stage¹⁴. Instead, I will follow the route open to me under rule 6(6) of the uniform rules¹⁵.

Both parties asked for special cost orders. I am not persuaded that the conduct of either party justifies a departure from the general rule that costs must follow the result.

(a) no order is made on any of the prayers contained in the applicant’s notice of motion;

(b) the applicant is granted leave to renew the application on notice to the respondent, on the same papers supplemented by such further affidavits as the case may require;

( c) the applicant is ordered to pay the costs of the respondent, to be taxed by the registrar of the Court on the Supreme Court scale as contained in rule 70 of the uniform rules.

Mr N T Ndou, the assessor who sat in this matter, agrees with this judgement insofar as the judgement contains findings on factual issues

1Section 24 of the Restitution of Land Rights Act, 1994 (Act No 22 of 1994) read with section 30 of the Land Reform (Labour Tenants) Act, 1996 (Act No 3 of 1996).

6gPayment” is the delivery of what is owed by a person competent to deliver to a person competent to receive. And when made it operates to discharge the obligation of the debtor (Grotius 3.39.7; Voet 46.3.1, etc)” - per Innes, CJ in Harrismith Board of Executors v Odendaal, 1923 AD 530 at 539.

7“The word payment has a wide as well as a narrow meaning. In its wide sense it means the satisfaction or performance of an obligation. See Voet 46.3.1 (Gane’s translation Vol 7 at 93); Harrismith Board of Executors v Odendaal 1923 AD 530 at 539; Woudstra v Jekison 1968 (1) SA 453 (T) at 457E-H. In its narrow sense it means something which can be calculated in money. See R v Hatsimoyo and Mwahamba 1944 SR 41 at 44; Terblanche v Archdeacon 1979 (3) SA 201 (T) at 206F. Whether the word is to be given a wide or a literal meaning depends entirely on the intent and purpose of the enactment in which it appears” per Gubbay JA in S v Harvey and Another 1987 (3) SA 40 (25C) at 43C D.

8See the authorities referred to in Gildenhuys, Onteieningsreg on 281, notes 78 and 80, and on 283, notes 101, 102 and 103

10Olivier v Van den Bergh 1956 (1) SA 802( C) at 805G-H; Garden City Motors v Bank of OFS1983 (2) SA 104 (N) at 107F-G

11HAT Verklarende Woordeboek van die Afrikaanse Taal defines uitsitas “verwyder uit : Die hond uitsit. ‘n Ongewensde vreemdeling die land uitsit. ‘n Huurder wat in gebreke bly om die huurgeld te betaal, laat uitsit.”

Labuschagne en Eksteen, Verklarende Afrikaanse Woordeboek, defines uitsitas “uitjaag; uitgooi (uit ‘n vergadering)”.

14Compare Purchase v Purchase1960 (3) SA 383 (D) at 384 - 385 and Damont N O v Van Zyl1962 (4) SA 47 ( C) at 52E-H.

South Africa: Land Claims Court

Mahlangu v De Jager (LCC1/96) [1996] ZALCC 1 (25 April 1996)