Zulu and Others v Van Rensburg and Others (LCC8/96) [1996] ZALCC 2 (17 May 1996)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER : 8/96

In the matter between :

VOYISI ZULU 1st Applicant

MPHIKISENI MESHACK BUTHELEZI 2nd Applicant

MAHLANZA MAZIBUKO 3rd Applicant

JOSEPH NGOVENI GAMA 4th Applicant

THEMBA THANDUYISE MABASA 5th Applicant

FALINI CATHRINE BUTHELEZI 6th Applicant

and

LOOD VAN RENSBURG 1st Respondent

BOETIE VAN RENSBURG 2nd Respondent

THE POUNDKEEPER OF

NOOITGEDACHT POUND FOR

THE DISTRICT OF VRYHEID 3rd Respondent

___________________________________________________________________

JUDGMENT

___________________________________________________________________

Dodson J : The applicants in this matter together with their families all reside on farms which are controlled by the first and second respondents. Until 28th March 1996, the applicants grazed their stock, consisting of cattle, horses, sheep and goats on the farms. The applicants regard the farms as a single unit known as Nooitgedacht. The first and second respondents point out that the farm commonly known as Nooitgedacht is made up of a number of farms and that the land to which this dispute relates includes, in addition, subdivisions of the farms Brakfontein and Umvoloosdrift. Nothing turns on this distinction.

Early in the morning on 28th March 1996 the first and second respondents, assisted by a number of other persons, rounded up 155 head of cattle, 180 head of small stock and 16 horses belonging to first, second, fourth, fifth and sixth applicants and removed them to the pound operated by the third respondent. The third respondent purported to accept the animals into the pound in terms of Natal Ordinance No. 32 of 1947 (the “pound ordinance”) under which he is appointed as a poundkeeper.

The circumstances giving rise to the actions of first and second respondents are dealt with in more detail below. The applicants (excluding third applicant) contend that:

* they were, until 28th March 1996 in peaceful and undisturbed possession of their stock;

* the actions of the first and second respondents amounted to a spoliation;

* they are labour tenants as contemplated in the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996, referred to in this judgment as “the Act”);

* this court has the jurisdiction to grant the mandament van spolie;

* an order should accordingly be granted in terms of the notice of motion .

The first and second respondents contend that:

* the applicants are not labour tenants as defined in the Act;

* even if they were, this court has no jurisdiction to grant the mandament van spolie;

* even if it did, they acted or purported to act in terms of the pounds ordinance and this precludes the granting of such relief;

* even if this does not preclude the granting of such relief, the applicants have not made out a case for it;

* in any event the application should be refused, both because the urgency was of the applicants’ own making and because the applicants ought to have foreseen that there would be irresolvable disputes of fact in these motion proceedings.

Third respondent has chosen not to defend the proceedings. References in this judgement to the “respondents” are to the first and second respondents, unless I expressly provide otherwise.

The relief sought by the applicants (as amended) is as follows:

“1. That a Rule Nisi do issue calling upon 1st Respondent and 2nd Respondent to show cause ...... why an Order should not be made:

1.1 1st Respondent and 2nd Respondent, jointly and severally is (sic) hereby ordered to immediately restore the possession of 155 head of cattle, 180 head of small stock, 16 horses to 1st Applicant, 2nd Applicant, 4th Applicant, 5th Applicant and 6th Applicant, on the farm where they were resident as at 28 March 1996 being the farm Nooitgedacht No 356, situate in the district of Vryheid, Administrative Province of KwaZulu-Natal, in extent 1604,2597 hectare;

1.2 1st Respondent and 2nd Respondent, jointly and severally, is (sic) hereby ordered to immediately remove the locks and chains from all gates on the farm Nooitgedacht;

1.3 1st Respondent is hereby ordered to immediately restore the possession of his (sic) rights as labour tenant under and in terms of the Land Reform (Labour Tenants) Act, No 3 of 1996, to 3rd Respondent;

1.4 1st Respondent and 2nd Respondent is (sic) hereby interdicted and restrained from intimidating, assaulting, injuring, murdering or threatening to intimidate or assault or injure or murder 1st Applicant, 2nd Applicant, 3rd Applicant, 4th Applicant, 5th Applicant and 6th Applicant;

1.5 1st Respondent and 2nd Respondent is (sic) hereby interdicted and restrained from locking any gate on the farm Nooitgedacht and/or restricting the free movement of 1st Applicant, 2nd Applicant, 3rd Applicant, 4th Applicant, 5th Applicant and 6th Applicant on, to and from the farm Nooitgedacht;

1.6 1st Respondent and 2nd Respondent is (sic) ordered, jointly and severally, to pay the costs of this application in accordance with the provisions of Rule 70 of the Uniform Rules of the Supreme Court of South Africa.

2. that paragraph 1.1 and 1.2 above operate as an interim order with immediate effect pending the final determination of this application;

3. that Applicant’s failure to comply with the prevailing rules of this Honourable Court be condoned.

4. further and/or alternative relief.”

Mr Roberts, who appeared for the first and second respondents, raised as points in liminethe questions of urgency and jurisdiction.

Urgency

Mr Roberts did not dispute the urgency of the application but argued that the urgency was of the applicants’ own making because they had delayed in bringing the application. On this basis he contended that the application for condonation of the non-compliance with the rules should be refused. It has been recognised that undue delay may constitute a basis for refusing to grant condonation under rule 6(12)(a).¹

The acts complained of occurred on 28th March 1996. Mr Loots, who appeared for the applicants, first “learned about this matter” on 26th March 1996 after receiving an instruction from the Legal Aid Board ( “the Board” ) to investigate the matter, report to it and to attempt to arrange a postponement of any action by the respondents. He learned of the impoundment of the stock on the day it occurred. The following day he addressed a letter by facsimile to the respondents’ attorneys demanding the return of the stock and threatening to apply to the Board for authority to bring an urgent application for relief should they fail to do so. On the same day he addressed a letter to the Board requesting authority to proceed with such an application. Thereafter the parties’ attorneys attempted to settle the matter through correspondence and a telephone call, a process which culminated in a facsimile letter from respondents’ attorneys dated 4th April putting their final position. This was obviously not acceptable to the applicants and on 9th April 1996 Mr Loots addressed a facsimile to the respondents’ attorneys saying that he could only proceed once he had heard from the Board and if his instructions were to proceed urgently, respondents would receive notice. On 12th April 1996 he sent a reminder to the Board by facsimile requesting a response the same day. Thereafter he attempted unsuccessfully to contact a Mr Brits of the Board. Eventually, on 16th April 1996 he spoke to a Mr Klingenberg who gave him the necessary authority.

The founding affidavits were signed on 18th and 19th April 1996 (a Friday). Thereafter Mr Loots approached the court for the allocation of a date for the hearing of the matter. The application was served on the respondents on 24th April 1996 at 10:30 and the matter was set down for hearing at 11:00 on 25th April 1996. Respondents justifiably complained about the short period of time they had to file opposing affidavits. However they managed to prepare fairly comprehensive affidavits and any prejudice they might have suffered was remedied by the postponement of the matter until 2nd May 1996 with the parties being granted leave to file replying and further affidavits respectively.

I am satisfied that applicants did not delay unduly in bringing the matter before the court. Mr Loots could not have been expected to proceed without an instruction from the Board. Once he received his instruction he acted with expedition. Nor did he delay in seeking an instruction from the Board to proceed. The circumstances of the matter are such that an urgent ruling by the court is called for in the interests of all the parties and it is not so that this was a situation brought about by delay on the part of the applicants. Mr Roberts conceded that this was “not his strongest point”.

Applicants’ failure to comply with the forms, service and time limits prescribed is accordingly condoned in terms of rule 6(12)(a) of the Supreme Court Rules.²

Jurisdiction

The respondents’ next point in liminewas the contention that this court lacked the jurisdiction to grant relief in the form of a mandament van spolie. Although the Land Claims Court (“the Court”) is a creature of the Restitution of Land Rights Act³the relevant provisions in determining whether it enjoys jurisdiction in the present dispute are sections 29 and 33(2) of the Act which read as follows:

“Jurisdiction

29. The Court shall have jurisdiction in terms of this Act throughout the Republic and shall have all the ancillary powers necessary or reasonably incidental to the performance of its functions in terms of this Act, including the power to grant interlocutory orders and interdicts, and shall have all such powers in relation to matters falling within its jurisdiction as are possessed by a provincial division of the Supreme Court having jurisdiction in civil proceedings at the place where the affected land is situated, including the powers of such a division in relation to any contempt of the Court.”

Additional powers of arbitrator and Court

“33. (1) ....

(2) The Court shall have jurisdiction and the necessary or reasonably incidental powers to determine any justiciable dispute which arises from the provisions of this Act.”

The Afrikaans text (which is the text which was signed by the President) in respect of section 33(2) reads as follows:

“33. (1) ....

(2) Die Hof het jurisdiksie en enige noodsaaklike of redelike bykomende bevoegdhede om oor enige regsvraag wat uit die bepalings van hierdie Wet ontstaan, te beslis.”

As Mr Roberts correctly pointed out, the Court is a creature of statute and should exercise its powers within the four corners of the provisions of the Act which confers its jurisdiction. At the same time it is clear from the sections quoted, and from other provisions of the Act⁴that the legislature intended to confer a wide jurisdiction on the Court to deal with disputes arising from the legislation.

It was suggested on behalf of the respondents that the wording of the first part of s29 requires that the functions expressly conferred on the court must first be identified and it is only in relation to those functions that one can then apply the broad provisions conferring ancillary and incidental powers on the Court. This approach would seem to be correct and finds support in the second part of that section which confers on the Court the powers of a provincial division of the Supreme Court in civil proceedings “in relation to matters falling within its jurisdiction”.

Mr Roberts then went on to identify broadly the functions expressly conferred on the court and contended that these did not include the type of relief sought in this case which related to the restoring of possession of cattle and grazing rights. What this analysis does not properly take into account are the broad functions conferred on the Court by section 33(2) of the Act which requires of the Court to determine “any justiciable dispute” arising from the provisions of the Act. However it was pointed out by Mr Roberts that, if regard is had to the Afrikaans text, there is, on the face of it, a divergence between it and the English text. The Afrikaans version uses the words “enige regsvraag” which, if narrowly construed, could limit the function which the section requires the Court to perform to a purely declaratory one of deciding questions of law (as distinct from questions of fact) arising from the Act. The effect of this interpretation would be to render the wide meaning of the English text redundant on the basis that the Afrikaans text was signed. Section 65(2) of the Constitution⁵requires that :

“In the case of a conflict between copies of an Act ...., the copy signed by the President shall prevail.”

This provision is similar to that contained in the previous Constitution.⁶

The first observation to be made in applying this provision is that there must be an irreconcilable conflict between the Acts before the section comes into play. This in turn means that the first question which must be addressed is whether the two versions can be reconciled.

As is pointed out by Devenish,⁷there are conflicting approaches to this process of reconciliation in the various decisions of the Appellate Division on the matter. In some cases it has been suggested that the attempt at reconciliation must be based purely on the language of the words in question in each text without considering their context. However, the approach which appears ultimately to have been favoured by the Appellate Division and which I intend to apply here, is that which was adopted by Diemont JA in S v Collop :

“A conflict between two versions arises only where one version says one thing and the other another. The signed text which is in English will accordingly not prevail; a reconciliation must be sought between the two texts. The will of the Legislature must be deduced from the two versions read together and the reconciliation undertaken with reference to the context in which the words appear in the statute read as a whole and the object which the statute seeks to achieve.” ⁸

If one considers the context in which the words appear, including the preamble to the Act, it is clear that the legislature intended to create a completely new legal dispensation for labour tenants who were recognised as requiring statutory protection, inter , because :

“the ...institution of labour tenancy ...is the result of racially discriminatory laws and practices which have led to the systematic breach of human rights and the denial of access to land.” ⁹

It was in this context that the legislature chose to impose on the Land Claims Court the very wide adjudicatory function accorded to it in terms of the Act. The Court was originally created to deal with claims in respect of rights in land of which persons were deprived under racially discriminatory legislation. The wide range of functions which the court must perform, including exclusive powers to hear appeals and reviews, show that the legislature intended the Court to have the jurisdiction to deal with, or oversee, all legal disputes which might arise out of the provisions of the Act. This view is reinforced by the fact that appeals from the Court lie directly to the Appellate Division or the Constitutional Court.

It is in this context that the word “regsvraag” (in English, “question of law”) must not be given the narrow meaning usually attributed to it, but rather a wider meaning of “legal dispute”, which could include ordinary legal proceedings involving disputes of fact and disputes of law. The word “vraag” or “question” is certainly capable of a wider meaning incorporating all the components of a dispute. The definition in HATincludes:

“Saak wat ’n probleem skep, wat uitgemaak moet word;”.

The definition in The Oxford English Dictionary(second edition) includes:

“A subject for discussion, a proposal to be debated or voted on, in a meeting or deliberative assembly,”

and defines the words “in question” in certain contexts as meaning:

“Under judicial examination; on trial.”.

On this interpretation, the two texts are capable of reconciliation. Thus, provided that the parties can show that the dispute is a legal or justiciable dispute arising from the provisions of the Act, even though the proceedings are not couched as one of the procedures expressly created by the Act (such as an application under section 12), the Court will have the jurisdiction and the necessary or reasonably incidental powers to hear and determine the matter.

Against that background it must be asked whether the present dispute is one which can be said to arise from the provisions of the Act. The basis on which Mr Loots contended that the court has jurisdiction is set out as follows in his heads of argument :

“2.2 By virtue of Section 5 of the ....Act..., read together with Section 1(iv) a labour tenant or his associate may only be evicted in terms of an order (of) ‘the Court issued under this Act’;

2.3 In terms of section 1(vi) ‘eviction’ includes the deprivation of a right of occupation or use of land;

2.4 In terms of Section 1(xxv) ‘right in land’ means any real or personal right in land, including a right to share cropping or grazing land.

3. It is accordingly submitted that this Court has jurisdiction to decide matters relating to the deprivation of a labour tenant’s right of occupation or use of land.”

With this argument there can be no quarrel. Section 5 plainly confers a right on those persons who can show that they are labour tenants as defined not to be evicted otherwise than in accordance with the provisions of the Act. Where there is a complaint that that right has been infringed (as is the case in this matter), there is a justiciable dispute arising from the provisions of the Act. Quite apart from any jurisdiction which might be conferred by section 33(2) of the Act, it is clearly implied by section 5 that it is the function of the court to determine disputes concerning the alleged unlawful eviction of labour tenants in breach of that section. Moreover section 29 expressly confers on the Court the ancillary power to grant interlocutory orders and interdicts which is precisely the form of relief sought in this matter. It is also recognised in our law that a mandament van spolie not the only remedy whereby possession may be restored. An interdict is also available, provided the requirements for such relief are established.¹⁰

What has tended to muddy the water is that Mr Loots then went on to argue that it was, in addition, incumbent upon all of the applicants (except the third applicant) to show that they had made out a case for the grant of the mandament van spolie. Quite what the basis was for this contention is not clear to me. It seems to have been based on the fact that the matter concerned a right of occupation of land which it is alleged applicants enjoyed before their stock was impounded. I do not agree. It is trite law that the mandamentonly contemplates an enquiry into whether the applicant for the relief was in peaceful and undisturbed possession prior to the spoliation, not whether his or her possession was based on any right.¹¹ To the extent that the applicants are able to show that:

(1) they have a prima facie under the Act which has been invaded;

(2) there is a well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(3) the balance of convenience favours the granting of interim relief; and

(4) they have no other satisfactory remedy,¹²

they are entitled to the relief sought in prayers 1.1, 1.2 and 1.5, read with prayer 2 of the notice of motion (which together make up the prayer for an interim interdict restoring possession).

It is only necessary for the court to consider whether it has the jurisdiction to grant a mandamentand, if so, to enquire into whether the applicants have made out a case therefor, if they are not able to satisfy the above requirements.

Before proceeding with this enquiry, it is necessary to deal with another jurisdictional matter. That is whether the Court is entitled to consider granting the relief contemplated by prayer 1.4 of the notice of motion (an interdict restraining respondents from assaulting the applicants). It certainly is not (at least in the form that applicants seek the relief). That aspect of the dispute, which was not seriously pursued by the applicants, plainly does not arise from the provisions of the Act nor is any such authority expressly or impliedly conferred on the Court anywhere in the Act.

Factual background

In order to consider whether the applicants have made out a case for interim relief, the factual background to the dispute must be canvassed. It appears from the respondents’ opposing affidavits and the agreements annexed thereto that in terms of the joint will (“the will”) of the late Lodewyk Janse van Rensburg (“L”) and his wife, Maria Janse van Rensburg (“M”), M acquired a life usufruct over the farms on the death of L. Although the matter was not properly canvassed in the papers, it would appear from the reference number of the Master of the Supreme Court which the will bears, namely 2033/77, that L died during or before 1977. The bare dominiumin the farms is held in trust by Volkskas Limited on behalf of two of the beneficiaries under the will, a Mrs Schreuder and a Mrs Viljoen (“the beneficiaries”). In October 1979, a Mr Benjamin Van Niekerk (“B”) took over control of the farm and farmed it on behalf of M. At some point M and B were married, but the date of the marriage is not apparent from the papers. During 1992 (again this appears from the relevant reference number in the office of the Master) M’s estate was sequestrated. On 24 July 1995, B entered into a written agreement (“the first agreement”) whereby he purported to purchase the usufruct from the trustee of M’s insolvent estate. B, whose affidavits are included in respondents’ opposing and further affidavits, avers that he has, “for all practical purposes”, exercised control over the farms from October 1979 until August 1995. This statement must however be read in the light of the clear provisions of the first agreement (which is dealt with in more detail below), as well as first respondent’s statement that B did not use the farms himself and that they were in fact used by various lessees of grazing rights in the land (and the applicants) who made use of the labour provided by the applicants and provided them with cash remuneration.

On 1st September 1995 B entered into a further written agreement (“the second agreement”) whereby he purported to sell to a partnership, of whom the respondents are the partners, and which trades as Van Rensburg Boerdery, the rights which he enjoyed in respect of the farms in terms of the first agreement. Save that the applicants dispute that the second agreement validly conferred any rights on the respondents, these facts are not disputed by the applicants.

It seems that the applicants were largely unaware of the legal significance of all these events. They viewed B as the owner of the farm. Second, third and sixth applicants were already resident on the farm at the time that B assumed control. As soon as he did so, second and third applicants, together with sixth applicant’s late husband , Mr M. Xulu (“X”) entered into agreements with him whereby they would have the right to continue residing with their families in the kraals which they had established on the farms and to graze stock on the farms. In return they were obliged to provide labour to B and to other farmers who leased grazing land on the farms from time to time. They were not obliged to provide the labour personally and could send a family member in their place to do so. The contracts were to endure indefinitely. Prior to L’s death, they had also resided on the farms with certain grazing rights in return for which they provided labour (save that B avers that X had no stock at the time when he assumed control of the farms in 1979). Subsequently and at the latest by 1989, B had entered into similar agreements with the first, fourth, fifth and sixth applicants (in the case of sixth applicant after her husband’s death in 1987). Obviously because first, fourth and fifth applicants were newcomers to the farms they had to establish kraals on the farm. That much (as far as the agreements with B are concerned) is common cause.

The parties are in dispute about a number of matters. The applicants contend that they also had the right to grow crops on the land. B claims that they had no such right in terms of the agreements with him or with L. They were only entitled to keep small gardens next to their kraals. They claim that there were no limits on the type or number of stock, save those limits which prudent farm management dictated. B says that only 10 cattle were allowed per male worker supplied by a family, that no-one was allowed to keep sheep or goats and that only those who worked as cattle herds were entitled to keep horses. B says that each worker received a salary of between R50 and R120 per month either from him or one of the lessees, together with between 10 and 25 bags of mielies per annum. The applicants admit that they received monthly payments but deny that this was an enforceable right which they enjoyed; moreover they say that the amount was R50 per month in respect of some applicants and less in respect of others. As far as the bags of mielies are concerned they appear to say that these mielies were the product of their cropping rights and not part of their remuneration.

I turn now to the first and second agreements. No mention was made in the first agreement of the applicants. However it included the following terms which impact upon this matter:

“1. The Seller hereby sells to the Purchaser who hereby purchases the assets as described in the Schedule attached hereto.

2. The purchase price of the assets are R110 510,00 [ONE HUNDRED AND TEN THOUSAND FIVE HUNDRED AND TEN RAND], (hereinafter referred to as the “PURCHASE PRICE”) exclusive of VAT, if applicable.

2.1. Payment of the aforesaid PURCHASE PRICE will be made on or before 1 SEPTEMBER 1995 ...

2.2. No interest will be charged should payment be effected as aforesaid but should the PURCHASER fail to make payment on the aforesaid due dates, interest will be charged a temporae morae from such date payment was due to the date payment was received by the SELLER, both days inclusive.

3. Reservation of Ownership :

Ownership of the assets will remain vested in the Trustee until such time (as) the purchase price and any interest due thereon, rent and/or any other legal costs incurred on an attorney-client scale for the recovery of any costs, has been paid in full.

4. Rent :

The PURCHASER will maintain his payment in the amount of R500,00 [FIVE HUNDRED RAND] in respect of the lease of the residence until such time (as) the full purchase price, interest and costs have been settled in full.

5. The Right, Title and Interest in Usufruct :

5.1 The right, title and interest in and to all grazing lease agreements entered into by the SELLER with the tenants of the various farms over which the insolvent estate holds the usufruct in its favour will remain vested in the insolvent estate and or its trustee until the purchase price, interest, rent and costs have been paid in full.

6. Risk of loss and profit :

The risk of loss and profit of the assets will pass to the PURCHASER once the amounts as aforesaid have been paid in full.

SCHEDULE

Description of assets Price

1. USUFRUCT R50 000,00

2. PIVOT R60 000,00

16.1 Die KOPER mag slegs met toestemming van die VERKOPER STATTE op enige van die eiendomme vestig of toelaat dat enige STATTE op van die eiendomme gevestig word.

16.2 Die KOPER sal alle nodige stappe neem wat nodig mag wees om gevolg te gee aan uitvoering van hierdie Klousule.

16.3 Die KOPER sal die reg hê om enige STAT(TE) wat tans op die eiendomme gevestig is te beperk ten opsigte van hoeveelheid en tipe vee wat deur sodanige STATTE aangehou mag word en sodanige STATTE sal in ruil vir vee-regte verplig wees om arbeid aan die KOPER te verskaf. Die KOPER sal die volle reg hê om waar sodanige STATTE versuim om aan sy voorwaardes te voldoen, die betrokke STATTE aan te sê om die eiendomme te verlaat sonder om verplig te wees om alternatiewe verblyf aan hulle te verskaf.”

The respondents duly took control of the farms. They held a series of meetings with the applicants. The precise dates of the meetings are in dispute, but nothing turns on this. Predictably, the parties also disagree as to what exactly was said at the meetings.

The following is however common cause (save where I indicate to the contrary). Respondents and B adopted the attitude that the second agreement had had the effect of terminating the agreements which they believed to have existed until then between B and the applicants. They accordingly informed the applicants that the only basis on which they would be entitled to continue residing on the farm would be if they entered into contracts with the respondents. The contracts were to be in writing. It was emphasised that the only basis on which they were prepared to contract with the applicants was that they should dramatically reduce the number of stock to 14 head of cattle for each labourer supplied by a family and that no small stock (sheep and goats) would be allowed. They were also to receive monetary remuneration. The respondents say that a minimum wage of R150 was proposed along with a willingness to negotiate upwards, but the applicants deny that any figure was mentioned. They also claim to have offered two bags of maize per family per month and permission to keep a small garden, but the applicants appear to dispute this. Two horses were to be allowed, the applicants say per family, the respondents say per cattle herd supplied to them. The applicants wished to involve their trade union representative, a Mr Phillips, in the negotiations but the respondents refused to agree to this . According to them, their attitude was based on past dealings with him and they would have allowed representation by someone else. In any event they considered the matter to be a simple one which did not require the applicants to be represented , particularly as they translated everything into Zulu, including the proposed contract terms.

Although interest had, according to the respondents, been expressed by some of the applicants, and some had even commenced to provide labour (again according to respondents - applicants contend that they all continued to provide labour all along), no final written agreements had been reached with any of the applicants by 20 March 1996, despite a threat of eviction made by first respondent at a meeting held with the applicants during January or February 1996 if they did not enter into written agreements on the terms proposed and reduce their stock accordingly.

On 20th March 1996, the respondents, together with B, delivered a written notice in Zulu to each of the Applicants. The notice came from respondents’ attorneys. The Afrikaans version of the notice reads as follows:

“Ons tree hierin op namens Van Rensburg Boerdery wat die huurders/bona fide okkupeerders is van die plaas Nooitgedacht, waar u tans woonagtig is, en wat hierin optree met die volle ondersteuning van die eienaar van die plaas.

Dit is ons instruksies dat daar reeds by meerdere geleenthede sedert 20 SEPTEMBER 1995 deur ons kliënte gepoog is om ’n ooreenkoms met u te beding om u voortgesette okkupasie van die plaas Nooitgedacht te reguleer ingevolge ’n diensooreenkoms wat ons kliënt bereid was om met u aan te gaan.

Dit is ons verdere instruksies dat u tot datum weier om in diens van ons kliënte te tree op die voorwaardes waarop hulle bereid is om met u ’n ooreenkoms aan te gaan, welke voorwaardes billik en regverdig is.

Dit is ons verdere instruksies dat u in besonder en onomwonde aangetoon het dat u weier om u veegetalle te verminder en ongewenste vee van die plaas te verwyder.

Ses maande het reeds verloop sedert ons kliënt met onderhandelings met u begin het en het u dus voldoende geleentheid gehad om u posisie te oorweeg en in diens by ons kliënt te tree, maar het u verkies om ons kliënt se aanbiedinge van die hand te wys.

Gevolglik word u hiermee kennis gegee dat u, u familielede, afhanklikes, vee en goedere die plaas Nooitgedacht moet ontruim nie later nie as 30 JUNIE 1996, by versuim waarvan ons kliënt sonder verdere kennisgewing sal voortgaan om regsaksie teen u in te stel vir uitsetting.

U word voorts kennis gegee dat al u vee van die plaas Nooitgedacht verwyder moet wees binne 7 dae na aflewering van hierdie kennisgewing aan u, by versuim waarvan ons kliënt sonder verdere kennisgewing alle sodanige vee sal skut met voorbehoud van sy regte om skade van u te verhaal vir enige tyd wat die vee sonder ons kliënt se toestemming of sonder ’n reëling met ons kliënt op die grond vertoef of vertoef het en wel teen R20,00 per bees per maand en R3,40 per kleinvee eenheid per maand.

U sal aanspreeklik gehou word vir enige regskoste wat ons kliënt genoodsaak sal wees om aan te gaan indien u nie aan hierdie kennisgewing voldoen nie. ”

The notice is ambiguous in that it gives the applicants until 30th June to vacate the farms, including the removal of their stock, in one paragraph, whilst in the very next paragraph they are given 7 days to remove all their stock.

The applicants did not remove their stock within the 7 day period and on 28th March 1996 their stock was impounded in the manner described above. The only exception was third applicant who concluded a written agreement with the respondents on that day. As a result his stock was not impounded. He contends that the agreement was signed under duress and that it deprives him of his rights as a labour tenant under the Act. Respondents say that the agreement was entered into willingly and that he is not and never was a labour tenant as defined in the Act. This matter will be considered below. Against that background, the question of whether applicants qualify as labour tenants must be considered.

Are the applicants labour tenants?

It was common cause that the applicants had to fall within the definition of labour tenant in the Act before the Court could proceed with the further enquiry as to whether they were entitled to any relief. Mr Loots accepted, without argument, that applicants bore the onus of proving this. The term “labour tenant” is defined in the Act as follows:¹³

“labour tenant”means a person -

(a) who is residing or has the right to reside on a farm;

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

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

This court held in the matter of Mahlangu v de Jager the definition requires that, in order to qualify as a labour tenant, there must be compliance cumulatively with paragraphs (a), (b) and ( c) of the definition.¹⁴ is indeed so that the word 殿nd�can in certain circumstances be read disjunctively.¹⁵ In Barlin v Licensing Court for the Cape¹⁶the court was concerned with a provision which permitted objections to the granting of on the basis that:

“The business is conducted in an improper manner and drunkenness permitted on the licensed premises”.

In regard to the question whether the provisions operated cumulatively or disjunctively, Innes CJ said:¹⁷

“ the words 'and’ and 'or’ are sometimes inaccurately used, and there are many cases in which one of them has been held to be the equivalent of the other. Much depends on the context and the subject-matter. I cannot think that in this instance the legislature intended to make these provisions cumulative.”

If regard is had to the context of the word “and” at the end of paragraph (b) of the definition it is plain that the word was intended to be used in its usual conjunctive or cumulative sense. To hold otherwise would give rise to absurd results. For example, an ordinary tenant could show that he or she resided on a farm and did not qualify as a farmworker. This would, on a disjunctive interpretation, qualify all ordinary lessees of farmland who reside on the farm as labour tenants. Moreover the implications of section 16 of the Act would be that they would also have an option to purchase the farmland. Plainly this was never intended by the Legislature. The Act is intended to protect a very particular class of rural tenant and in isolating that class of tenant paragraphs (b) and ( c) must come into play.

Mr Loots did not challenge the correctness of the Mahlangudecision. It was common cause that all the applicants complied with the requirements of paragraphs (a) and (b) of the definition. They all reside on the farms. They have all had, at least, the right to use grazing land on the farms and in consideration of such right have provided labour to the lessees of the farms and the holder of the usufructuary interest in the farm, namely M (through B as her agent). In conceding that the applicants complied with paragraph (b) it appears that Respondents concede that the usufructuary interest of M was synonymous with the concept of owner in paragraph (b) of the definition. “Owner” is defined in paragraph (xiii) of section 1 as meaning:

“The owner, as defined in section 102 of the Deeds Registries Act, 1936 (Act No 47 of 1937), of a farm, and where it occurs in the definition of 'labour tenant’, includes his or her successors and predecessors in title;”

The Deeds Registries Act ¹⁸in turn defines 登wner�as meaning :

“in relation to -

(a) immovable property, subject to paragraphs (b) and (c), the person registered as the owner or holder thereof and includes the, trustee in an insolvent estate ....(the section then goes on to refer to various other forms of persons who act in a representative capacity);

(b) where a right of leasehold has been granted to any person and registered in his name, such person,....; and

( c) immovable property, real rights in immovable property and notarial bonds-

(i) which are registered ....in the name of both spouses....(the paragraph goes on to deal with who is to be treated as owner when the property is owned by spouses married in community of property and various provisions of the Matrimonial Property Act, 1984 apply)”

The definition of “immovable property” in the Deeds Registries Act does not attempt to be all inclusive but simply provides that it includes registered leases of mineral rights, registered long leases and a registered right of leasehold. Even if I am wrong in understanding Respondents to have made this concession, I am satisfied that the word “holder” in the definition includes the holder of a right of usufruct. This view is reinforced by the fact that the concept of immovable property has been held to include a right of usufruct in respect of immovable property.¹⁹ Although there are no reported cases on the definition of 登wner�in the Deeds Registries Act, there is nothing in it to suggest that the common law concept of immovable property is limited by the Act. For present purposes the definition must also be interpreted in the context of the Land Reform (Labour Tenants) Act and Parliament must be presumed not to have intended the harsh consequences that would flow from the exclusion of those labour tenants who happen to have provided their labour to a usufructuary and not a lessee or a full dominium owner.²⁰

Do the applicants prove compliance with paragraph (c) of the definition of labour tenant? This issue was only dealt with by the applicants and the respondents in their replying and further affidavits respectively. This was because the parties’ legal representatives only became aware of the Mahlangu after they had filed their founding and opposing papers and because I called on the parties to deal with this aspect under the inquisitorial powers conferred on the Court by section 32(3)(b) of the Restitution of Land Rights Act read with section 30 of the Act.

Second applicant clearly complies with the requirements of paragraph (c). He maintains that his father and grandfather were born on the farms and worked as labour tenants with rights to use cropping and grazing land in return for which they provided labour to the previous owners of the farm. Of course the definition does not require of an applicant to show that his or her parents or grandparents themselves complied with all the components of the definition. It is sufficient that they resided on a farm and enjoyed cropping or grazing rights on that or another farm of the owner, and in return provided him or lessees of the farm with labour. This much is conceded by the respondents in respect of second applicant’s father. In the affidavit of Mr Charel Smit filed by the respondents he states that he farmed on the farms on behalf of M during 1978 and 1979, after L’s death. Second applicant’s father lived on the farms at the time and continued to provide labour on the same basis as he had done when the farms were owned by L. According to Smit this was on the basis that he could only graze 5 cattle, no small stock and received a salary of R120 and a bag of mieliemeal each month and 20 bags of mielies after the harvest each year. The fact that his remuneration might have exceeded the value of his grazing rights is of no relevance.

What then of the other applicants? Third and sixth applicants also aver that their respective fathers and grandfathers resided on the farms and provided labour to L or his predecessors in title as labour tenants in return for cropping and grazing rights. First, fourth and fifth applicants claim that their fathers and grandfathers resided on other farms in the Vryheid district not forming part of the farms to which this dispute relates, but similarly provided labour to the owners or lessees of those farms as labour tenants in return for cropping and grazing rights. All of this is disputed by the respondents who also claim, with justification, that they did not have sufficient time for a detailed investigation into the allegations of all the applicants in this regard. The result is that, at this stage at least, no substantial facts are set up by the respondents in contradiction of the applicants’ averments in this regard. Because this is an application for interim relief the evidence in this regard must be weighed up in accordance with the test laid down in Webster v Mitchell,²¹ modified in the case of Gool v Minister of Justice²². In the former case Clayden J laid down the test as follows :

“... the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is “prima facie established though open to some doubt” that is enough .

The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown upon the case of the applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt’. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief.”

In the latter case Ogilvie-Thompson J qualified that test as follows:

“With the greatest respect, I am of opinion that the criterion prescribed in this statement for the first branch of the inquiry thus outlined is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on an applicant’s own averred or admitted facts is : should (not could) the applicant on those facts obtain final relief at the trial. Subject to that qualification, I respectfully agree that the approach outlined in Webster v Mitchell ... is the correct approach for ordinary interdict applications.”

Applying the test I am satisfied that the inherent probabilities are, on applicants version, that their fathers or grandfathers at least provided labour in return for grazing rights on the farms which they say they occupied. Respondents’ affidavits tend also to support the impression that the practice of allowing grazing rights (even if limited) and the right to reside on farms to persons supplying them with labour was and is not uncommon. I am not satisfied that applicants have satisfied the same degree of proof in respect of the averments that their parents and grandparents themselves would have qualified as labour tenants under the Act, but for reasons explained above this is not required by the definition.

On that basis third and sixth applicants have shown prima faciecompliance with paragraph (c). As far as first, fourth and fifth applicants are concerned, Mr Roberts argued that the parents or grandparents contemplated in the paragraph must have satisfied the requirements in relation to the same farms as those on which the applicants have established the requirements of paragraph (b). On this basis these applicants would be excluded. Mr Loots contended that the farm referred to in paragraph ( c) need not be the same farm as that referred to in paragraph (b). In support of this contention he pointed out that paragraph (b) specifically refers to “the farm referred to in paragraph (a)”. This means that the applicants themselves must show that they have cropping or grazing rights on, and provide labour to the owner of the same farm as that on which they reside (subject to the exception that the cropping or grazing rights can be exercised on another farm of that owner). However paragraph ( c) only refers to “a farm”. Had parliament required that it should be the same farm as that referred to in paragraph (a) they would have said so in the same way that they did in paragraph (b). There is certainly force in this argument, particularly if one considers the context of the statute as a whole and its purpose. One of the objects of the Act is to provide labour tenants with certain protections against eviction. In the past the common law left labour tenants exposed to eviction at the whim of the owner of the land subject only to compliance with the common law requirement of reasonable notice.²³ Such a basis for eviction is now excluded by the Act if a person can show that he or she qualifies as a labour tenant under the legislation. If we are to adopt Mr Roberts�interpretation, a person whose predecessors had over the generations consistently been labour tenants (as that term was understood before the statutory definition was enacted²⁴), but had been forced by evictions to move from farm to farm, would be excluded, whilst a person whose father and who himself or herself had been fortunate enough to avoid eviction would qualify. What then in effect becomes a disqualifying criterion is the fact of past evictions, the very problem which the Act sought to deal with. A statute is presumed not to give rise to a harsh or discriminatory result.²⁵ Such a result is avoided if the interpretation contended for by Mr Loots is adopted. It is clear that the legislature intended to protect a particular class of persons whose way of life had been based, over the generations, on labour tenancy, without confining it to that part of the class who had not been subject to eviction. On this interpretation of the law I am satisfied that prima faciefirst, fourth and fifth applicants comply with paragraph (c).

Are the applicants farmworkers?

The definition of labour tenant also excludes persons who qualify under paragraphs (a) to (c) but who are farmworkers as defined in paragraph (ix) of section 1 of the Act. Gildenhuys J held in the Mahlangucase that : ²⁶

“A farmworker 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.” (my emphasis)

It is plain from the Act that the components referred to in subparagraphs (a) and (b) of the definition of farmworker must both be present for someone to qualify as a farmworker. Mr Roberts contended that it was incumbent upon the applicants to show that they were paid predominantly in the right to use and occupy land andto show in addition that they were not obliged to perform services personally. I do not agree. To interpret the Act this way requires that the word “and” at the end of subparagraph (a) be read disjunctively to mean “or”. This makes a nonsense of the definition of farmworker in the Act and cannot be accepted. The issue is important because it is common cause that the applicants, at least in terms of the agreements negotiated with B on behalf of M, were not obliged to perform their services personally. This on its own is sufficient to show that the applicants (excluding third applicant) are not farmworkers and accordingly do not fall within the exclusion.

It should also be noted that the definition is framed in the present tense (“a person who is”), unlike certain aspects of the definition of labour tenant. This would seem to suggest that the test must be applied in relation to the factual situation at the time of the events immediately giving rise to the dispute. On this basis, if respondents’ contention is correct that there are, at present, no agreements regulating the applicants occupation of the farm, they would also not qualify as farmworkers. (As far as third applicant is concerned, whether or not he is a farmworker depends on the validity and interpretation of the written agreement entered into between him and the respondents. This matter is dealt with below.)

I am accordingly satisfied that (1) the applicants are not farmworkers and (2) for the purposes of considering interim relief, the applicants (excluding third applicant) fulfill the requirements of the definition of “labour tenant”.

The meaning of “eviction”

Section 5 provides that :

“A labour tenant or his or her associate may only be evicted in terms of an order of the Court issued under this Act.”

It is common cause that the applicants themselves have not (yet) been evicted from the farms. Nor, somewhat surprisingly, do the applicants seek an order restraining the respondents from evicting them pursuant to the notice of eviction which they have received. All that has happened to date is that all their stock has been removed from the farm and impounded by the respondents. What transpired during the course of the proceedings was that the third respondent, subject to a reservation of his rights to claim damages, agreed to release the stock into one of his fields and has agreed to allow them to remain there without charge until Saturday 18th May 1996. Respondents however refuse to allow the stock to be returned to the farms. This is according to them also motivated by the fact that some of the stock have, since being impounded, been diagnosed as having European redwater disease (some of the stock have in fact perished from the disease). This aspect is dealt with below.

The term “eviction” is defined in the Act as follows:

“‘eviction’ includes the deprivation of a right of occupation or use of land;”.

I was not referred to any authority dealing with the precise meaning of the words “evict” or “eviction”, nor are dictionary definitions of any great assistance. Ordinarily and in the absence of the definition in the Act, one would have understood section 5 to refer only to the eviction of the labour tenant (or his or her associate) himself or herself and not the removal of his or her stock.

However the inclusion in the definition of eviction of the words “or use” introduces a form of deprivation additional to the deprivation of a right of occupation which can constitute eviction. If regard is had to the definition of “labour tenant”, which refers to “the right to use cropping or grazing land” , it is clear that the concept of eviction is intended to include the deprivation of the right to use grazing and cropping land. The actions of the respondents clearly had and continue to have the effect of depriving the applicants (excluding third applicant) of the use of grazing land which they had prior to the 28th March 1996. The question is whether they so used the land for grazing under a legal right or whether they were merely trespassing in doing so as is maintained by the respondents.

Did applicants have a right to graze their stock?

Because of Mr Loots preoccupation with the mandament did not really deal with this aspect of the matter. In contending that they continue to provide labour the Applicants appear to suggest that their labour tenancy contracts persist. However the respondents dispute that the applicants continue to provide them with labour and set up substantial facts in contradiction of their contention. They adopt the attitude that the applicants were employed by B until they took control of the farms on 1st September 1996, and that the effect of the second agreement was automatically to terminate the labour tenancy agreements. On that basis the applicants would have been trespassing on the farms since that date so that when no agreements could be reached the respondents were entitled to act against the applicants as they did. Moreover the respondents say that, when contracts subsisted with B, the applicants were consistently in breach of those contracts to the extent that their stock exceeded 10 cattle per labourer and included sheep, goats and excessive horses. In other words, at that time their right of use of grazing land was a right to graze 10 cattle per labourer and the odd horse where a person worked as a cattle herd and no more. Applicants on the other hand contend that their agreements allowed them throughout to keep an unspecified number of cattle (save in respect of second and third applicants who say that the number of cattle they were each permitted to graze was limited to 50) and small stock, the numbers to be determined by them in accordance with prudent farming practice.

The first question which must be considered is whether applicants had any right at all to use the farms for grazing at the time of the impoundment. Clearly they enjoyed such rights up until the time when M was divested of her estate as a consequence of her insolvency. What was the effect of the insolvency?

To answer this question one must determine what the true nature of a contract of labour tenancy is. If it is a lease, it will, in terms of section 37 of the Insolvency Act,²⁷have terminated three months after the appointment of the trustee, unless he notified the lessee that he wished to continue the lease, which certainly did not occur here. If it is a contract of service it terminates automatically on sequestration in terms of section 38 of that Act. If it is neither then it falls within that category of agreements for which no provision is made in the Insolvency Act. The position in relation to such contracts is described by Friedman J as follows:²⁸

“There is, as I see it, really only one legal principle involved and that is that there is nothing in the Law of Insolvency which affects uncompleted contracts in general; the contract is neither terminated nor modified nor in any other way altered by the insolvency of one of the parties except in one respect, and that is that, because of the supervening concursus, the trustee cannot be compelled by the other party to perform the contract. Put somewhat differently, this means that the contract survives the insolvency and, save in the respect mentioned, the trustee steps into the insolvent’s shoes. The rule that a trustee has a right of election whether or not shared by the contractor is no more than one aspect of the application of this legal principle I have annunciated.....To state the so-called rule that if the trustee does not affirm the contract he is taken to have abandoned it, is to say no more than that the trustee who does not affirm the contract must be taken to have abandoned it since the other party is unable to compel performance on his, the trustee’s, part.”

There are three approaches which have been identified in determining the nature of a contract which displays characteristics of more than one type of agreement. The contract of labour tenancy is clearly such a contract in that it displays characteristics of a lease, an employment contract and in certain respects a labour broker contract. The different approaches are described by Hathorn and Hutchison as follows:²⁹

“The agreement may either be relegated to the dominant type of contract (the absorption theory), or the naturalia of each type of contract may be applied to the relevant portion of the agreement in so far as that is possible or practicable (the combination theory), or the agreement may be considered to fall into a new category of its own, rendering the naturalia of the accepted contract types inapplicable (the sui generis theory)”.

If the absorption theory is to be applied to the present matter then the agreements will either be leases or employment contracts and the agreements will be deemed to have been terminated in terms of the Insolvency Act. If either of the other theories is to be applied then the contract would be neither a lease nor a contract of service and would fall into that category of contracts described by Friedman J in Smith v Parton. In relation to some forms of contracts such as the partiarian agricultural lease, our courts have applied the absorption theory with the result that such leases have been held to be regulated by section 37 of the Insolvency Act as leases.³⁰ There are no reported cases on the classification of a labour tenancy contract for the purposes of the Insolvency Act. The approach of the courts in relation to the classification of labour tenancy contracts in other contexts has been inconsistent. Some of the earlier Natal cases cited above refer to them loosely as contracts of lease, although that may have been a consequence of the particular wording of the legislation which regulated labour tenants in Natal at the time.³¹ The Natal Creamery is authority for the combination theory in that the court did not categorise the contract but was prepared to recognise in an obiter statement that one of the naturalia of a lease (the huur gaat voor koop rule ) applied to a labour tenancy contract. The cases of Mvubu v Herbst Crous v Crous³²are cited by Hathorn and Hutchison as authority for the adoption by our courts of the sui generisapproach in relation to labour tenancy contracts.

The Appellate Division case of De Jager v Sisana³³dealt with a labour tenancy contract and co-incidentally seems to have related to a farm which was also in the vicinity of Vryheid. Although reference was made to the nature of the contract, particularly in the minority judgement of Wessels JA, I do not consider the case to be definitive of this issue. The case was decided by the majority on the basis of a concession by counsel for the labour tenant that the contract conferred no real rights and was not a lease ( issues which had been left undecided by the court a quo). The court also left undecided the question of whether the doctrine of notice should be extended to such contracts, but accepted that there was merit in this argument.³⁴ The case was decided on the assumption that the doctrine did apply. The applicability of the doctrine is certainly not consistent with a categorisation of a labour tenancy contract as a pure contract of service. The reference in the majority decision to the contract as a contract of service³⁵must accordingly be read in this context. Wessels JA held in his minority judgement that the contract was neither a lease nor a contract of service and was an innominate contract to which neither the doctrine of notice nor the huur gaat voor koop rule applied.

The conclusion reached by Hathorn and Hutchison is that it is clear that the contract is not a lease and that the courts probably consider it to be a contract sui generis. In my view the contracts in this matter cannot be said to be either pure contracts of lease or pure contracts of service and that the application of the absorption theory would be artificial and inappropriate. Apart from anything else it would be very difficult to determine which of the contracts should be considered to be the dominant one. There are other indications that it was not a lease. For example, no rental was paid either in the form of money or in the form of a share of agricultural produce. Our courts have not yet recognised the provision of services in lieu of money rental as being consistent with a lease.³⁶ As far as the possibility of its being a contract of service is concerned, the early Natal cases cited above, as well as the Mvubu , reject the notion that such contracts are contracts of service. In some respects the impersonal nature of the contracts in the present matter is more akin to a labour broker contract than an employment contract. A labour broker contract is, in my view, a form of locatio conductio operisand not locatio conductio operarum. The application of the combination theory or the sui generistheory would seem to be both more appropriate in the circumstances and more justifiable on the basis of existing authority. It is not necessary for the purpose of deciding this aspect of the matter to express a view on which of the latter two theories is to be preferred. I accordingly hold that, at least on a prima faciebasis, the contracts did not terminate and the trustee assumed the obligations of M in relation to the contracts. The fact that the applicants continued to exercise grazing and occupation rights points to the fact that the agreements did not come to an end.

The other important consequence of the insolvency of M was that she and her husband, B, lost all legal control over the farms which thenceforth vested, upon his appointment, in the trustee (subject obviously to M’s reversionary interest). Nor did the first agreement ever give B such control as the suspensive conditions and his failure to pay the purchase price prevented him from taking up his rights of use and enjoyment (and his right to receive rental from the grazing tenants) until he sold them to the respondents (see above).

Thus from the time of his appointment, presumably in 1992, at least until 1st September 1995 when the second agreement came into force the trustee was the other party to the agreements with the applicants and neither M, nor B (in the absence of any evidence that he acted as the trustee’s agent) could have had any contractual relationship with the applicants on the basis which they had done before. Neither M nor B had any rights to use the farm other than for residential purposes in terms of their residential lease. If they did so unlawfully and contracted with the applicants to work for them those agreements (if they were valid ) existed separately from the agreements between the applicants and the trustee. The applicants for their part were probably unaware of all this and continued to make their labour available on the same basis as they had done before. The fact that the trustee may not have availed himself of his entitlement to use their labour cannot affect the validity of their continued contracts.

The result is that at the time that the respondents took control of the farms, valid agreements existed between the applicants and the trustee. What was the effect of the sale of the rights of use and enjoyment of the farms from the trustee, via the agreement with B, to the respondents?

Naturally the second agreement, even if valid, cannot confer on the respondents any real rights in respect of the farms. A usufruct per se be alienated. ³⁷ It is a personal servitude attaching to the usufructuary herself and the rights of the usufructuary persist only for as long as the instrument creating the usufruct so provides, in this case for the duration of M痴 life. However the usufructuary and the bare dominium owner may together agree to alienate the property or mortgage it. It is in such a transaction that the consent of the beneficiaries would certainly have been required.³⁸ The two agreements however do not purport to be a sale of the farms. They only purport to be an alienation of the rights of use and enjoyment of the usufructuary. This gives rise to personal rights enforceable against the trustee. To determine what the effect of the sales was, regard must be had to the first and the second agreements. The first agreement provided expressly that B would become entitled to the trustee痴 rights under the grazing leases but made no reference to the agreements with the applicants. Does this mean that the trustee wished to reserve for himself the rights he enjoyed under those agreements? This is most improbable. The trustee sold M痴 rights as usufructuary under his obligation in terms of the Insolvency Act to realise the assets in the estate.³⁹ Having sold these rights in respect of the farm there was no need for him to make use of the farm labour they provided. On the other hand there was every reason for these rights to accompany the sale of the rights of use and enjoyment of the farm. The agreement purported to be a sale of the usufruct and this suggests that the parties wished to transfer all the rights previously enjoyed by M. The usufructuary is in law entitled to all the fruits of the property, including rent, and this right is wide enough to include the entitlements which arose from the agreements with the applicants.

This finding is supported by the inclusion of the above quoted clause 16 of the second agreement. Clause 16.3 expressly provides that the respondents would be entitled to receive the benefit of the applicants’ labour, in exchange for which they would have grazing rights. (To the extent that the wording might be read so as to bind the applicants this clearly could not be so.) However the respondents could not receive from B greater rights than those which he enjoyed under the first agreement (nemo dat quod non habet). The same principle applied to B in respect of the rights he acquired under the first agreement. Stated another way, and taking into account the fact that the vesting of the rights under the usufruct in terms of the first agreement was subject to a suspensive condition, the respondents inherited the agreements with the applicants on the terms as they were between the trustee and the applicants as at 30th August 1995. There is no evidence that the applicants ever forfeited their grazing rights during the trustee’s “reign”. Moreover the duty to provide labour in these contracts was sufficiently impersonal to permit of a transfer of the right to receive their labour without the applicants’ consent. It must therefor be accepted that the respondents inherited binding agreements with the labour tenants which included the right to graze stock. (The determination of the precise ambit of the right is a more difficult matter which is dealt with below.) It was also a term of those agreements that they could only be terminated on reasonable notice (the Act did not apply then).

If I am incorrect in this analysis, and the first and second agreements are to be treated as being analogous to a sale of land, I am nonetheless of the view that the applicants enjoyed the protection, at least, of the doctrine of notice. That respondents had knowledge of the labour tenancy agreements is apparent from clause 16 of the agreement. Whilst the issue was left undecided, in the De Jagercase, Curlewis JA who gave the majority judgement, said the following :

“And though the cases quoted are not directly applicable here, because in all those cases the third party had, if not a real right, at least a right in personam to acquire a real right, which admittedly the respondent has not, still it seems to me that there may be some force in the contention that the principle laid down in those cases ought to be extended to a case like the present.”

The decision of the court a quo was made on the basis that the doctrine applied. There is also support for the extension of the doctrine amongst academic writers.⁴⁰ I am also mindful in coming to this conclusion of the provisions of section 35(3) of the Constitution which requires that :

“In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter.”

One cannot ignore the fact that the preclusion of labour tenants (who are generally black) from the protection afforded by the doctrine of notice and the huur gaat voor kooprule operates in a most discriminatory way vis-a-vis ordinary tenants (who, in the rural setting are generally white) who have the full protection of both of these principles. It is not necessary for me to decide in this case whether the huur gaat voor kooprule should also be so extended to labour tenants. On this approach then, the respondents are also bound by the agreements which subsisted with the trustee.

The respondents have since taking occupation of the farm consistently repudiated the agreements with the applicants. They adopted the attitude that no agreements existed between them and the applicants and insisted that the applicants contract with them on their terms. The applicants were entitled to adopt the attitude that they would abide by the existing agreements. The respondents were, at least until the Act came into force on 23rd March 1996, of course entitled to terminate the existing contracts on reasonable notice (subject to the provisions of section 12 of the Act, read with section 3). It has been held that such a notice must be clear and unequivocal. Because of respondents’ attitude they did not at any time give notice of the termination of the agreements. The notices handed to the applicants on 20th March did not purport to terminate the agreements. Rather they constituted a further repudiation of the agreements with the applicants. I am accordingly satisfied the applicants have shown, at least prima facie, that on the 28th March 1996 they had a right to use land for grazing on the farms and that they were deprived of that right in a manner which constituted an eviction under the Act.

Is there a right deriving purely from the statute?

What if the above analysis is incorrect, or if it is ultimately found on hearing oral evidence that the agreements with M were terminated before 28th March 1996 as a consequence of either the insolvency or the first and second agreements? On a proper interpretation of the Act, it is clear that it creates a form of statutory labour tenancy in respect of those persons who qualify under paragraphs (a), (b) and (c) of the definition, but whose labour tenancy contracts were terminated before the Act came into force. These are persons who still reside or have a right to reside on the farm in question, but who used to, but no longer, provide labour to the owner or lessee in return for cropping or grazing rights. That this is so is apparent from the use of the past tense in paragraph (b) of the definition. ⁴¹

Such persons clearly qualify as labour tenants. However, it could not have been intended by the legislature to confer on such persons a protection against eviction (which follows from section 5) without any obligation towards the owner of the farm, and without providing the owner with a basis for evicting the labour tenant in circumstances where this is justified. Section 7(2) provides as follows :

“ No order for eviction in terms of section 5 shall be made unless it is just and equitable and-

(a) subject to the provisions of section 9(1), the labour tenant has, contrary to the agreement between the parties, refused or failed to provide labour to the owner or lessee and, despite one calendar month’s written notice having been given to him or her, still refuses or fails to provide such labour; or

(b) the labour tenant or his or her associate has committed such a material breach of the relationship between the labour tenant or associate and the owner or lessee, that is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship.” (my emphasis).

It is clear from these provisions that the legislature contemplates that there must be an agreement between the parties. The terms of the statutorily imposed agreement must, in terms of the definition of labour tenant, be those which prevailed at the time of the original termination of the agreement to provide labour in return for grazing or cropping rights, subject to the minimum standards required by the Basic Conditions of Employment Act. ⁴²

To interpret the law in any other way works hardships on either the owner or the labour tenant. The hardship for the owner is clear : he will never be able to comply with the requirements of section 7(2) in order to evict a labour tenant who deserves eviction because he will not be able to show a material breach of a contract or a refusal to provide labour in terms thereof. If, on the other hand, section 7(2) is interpreted so as to impose, by implication, a separate requirement of an ongoing labour tenancy contract before a person qualifies as a labour tenant in terms of the Act, then, assuming that the huur gaat voor kooprule does not apply, a labour tenant will lose his status and statutory protection as such if the farm is sold, the new owner is unaware of the labour tenancy and does not agree to renew it.

On this basis, I am satisfied that, on 23rd March 1996, when the Act was promulgated, the applicants would have had, at least, a statutory labour tenancy which, in terms of the original contract with M, included a right to graze.

What was the content of the right to graze?

The resolution of this matter is a more difficult one. The conflicting versions of what this right included have been summarised above. If one considers the inherent probabilities in respect of the applicants contentions it is questionable whether B would have agreed to leave it completely in their discretion to determine the number of stock. It is relevant in this regard that the applicants aver in the alternative that B tacitly approved of the introduction of stock over and above any original limits which the court might find to have been agreed on. One must then turn to the affidavits of the respondents to determine whether they have cast serious doubt on the contentions of applicants as to their versions of the content of the rights. The exercise must also be conducted with regard to the words of Holmes JA in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and another:⁴³

gIn exercising its discretion the Court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience. The foregoing considerations are not individually decisive, but are interrelated; for example, the stronger the applicant’s prospects of success the less his need to rely on prejudice to himself. Conversely, the more the element of 'some doubt’, the greater the need for the other factors to favour him. The Court considers the affidavits as a whole, and the interrelation of the foregoing considerations, according to the facts and probabilities; See Olympic Passenger Service (Pty) Ltd v Ramlagan 1957(2) SA 382(D) at 383D - G. Viewed in that light, the reference to a right which, 'though prima facie established, is open to some doubt’ is apt, flexible and practicable, and needs no further elaboration.”

Needless to say the agreements for which the parties contend were never reduced to writing. In weighing up the respondents’ case the only evidence one has to go on is that of B who was responsible for the dealings with applicants which gave rise to the agreements with M. No affidavit was filed by the trustee. The affidavits of B are unsatisfactory in a number of respects. The primary problem which he faces is to provide a reasonable explanation for the fact that he has allowed a situation to develop where the number and variety of stock bear no relation to the terms of the contract for which he contends. There are a number of other difficulties. Most if not all of the instances he refers to in order to show that he has been consistent in requiring compliance with the agreements by warning the applicants that they were in breach relate to a time period when the usufruct in the farm vested in the trustee. He provides no basis on which the court might find that he acted as the agent of the trustee for the purposes of enforcing the contract. Moreover if one considers that the contracts were in force for many years before M became insolvent, there is very little evidence on his part of conduct consistent with the enforcement by him of the terms of the agreement for which he contends. On the contrary, he concedes that, at least when he first began farming on behalf of M, he was “baie toegeeflik”. On his own version therefore the possibility of waivers of his rights or variations of the agreements is not excluded. It is also noteworthy that in clause 16 of the second agreement there is no suggestion that the levels of stock to be reduced are there illegally. Also telling is the record of the first meeting between the respondents, B and the applicants on 20th September 1995 which was kept by second respondent. After all the stock had been counted and recorded as consisting of a total of 197 cattle, 33 horses, 62 goats and 98 sheep B is recorded as saying :

“Geen toestemming is verleen om bokke aan te hou nie. Perde is nie getel omdat beeswagters hulle gebruik het.”

No objection is thus raised to the numbers or presence of any stock other than goats.

In the circumstances, while it is indeed so that the respondents’ version casts some doubt on that of applicants, it is not in my view sufficient to hold that they have not made out a prima faciecase. I am accordingly satisfied that the applicants (excluding third applicant) have shown prima faciethat they have a right which has been invaded.

Irreparable harm and the balance of convenience

The current situation as far as the stock is concerned is explained above. Applicants will be severely prejudiced if they are not granted interim relief. The poundmaster has only agreed to have the cattle on his land until Saturday 18th May 1996. Thereafter he will be entitled to approach the magistrates’ court for an order entitling him to remove the stock from his farm. If he takes the view of the law taken by the respondents in this matter, or if applicants consent thereto, he will probably impound the cattle whereafter he will become entitled to sell them in terms of the pounds ordinance. The applicants will thereby suffer severe financial loss

South Africa: Land Claims Court

Zulu and Others v Van Rensburg and Others (LCC8/96) [1996] ZALCC 2 (17 May 1996)