Magodi and Others v Van Rensberg (LCC29R/01) [2002] ZALCC 5 (7 February 2002)

[1] On 23 October 2001 Meer AJ and I heard appeals by the four appellants against eviction orders granted against them in terms of the Extension of Security of Tenure Act¹by a magistrate in the MagistrateCourt for the district of Soutpansberg, held at Louis Trichard. The appellants are occupiers on the farm Sandfontein. The respondent is the owner of the farm and the applicant (in the magistratecourt) for the eviction orders. I will throughout this judgment refer to the occupiers as the appellants and to the farm owner as the respondent. On 29 November 2001 we dismissed all four appeals.²On 21 December 2001 the four appellants gave notice of an application for leave to appeal to the Supreme Court of Appeal against the aforesaid judgment. Meer AJ and I heard the application on 24 January 2002. We refused leave to appeal to the first three appellants and granted leave to appeal to the fourth appellant.

[2] On 17 January 2002 the respondent delivered a notice of application to this Court for an order that the suspension of the eviction orders against the appellants will not come into effect or is lifted, in the event that leave to appeal is granted to the appellants.³After only the fourth appellant was given leave to appeal, the respondent indicated that he will proceed with his application against the fourth appellant only. The appellants, on their part, delivered on 30 January 2002 a notice of an application for an order that our judgment of 29 November 2001-

be stayed pending the Appeal to the Supreme Court of Appeal by the Fourth Applicant [Appellant] and the application for leave to appeal to the Supreme Court of Appeal[⁴] by First, Second and Third Applicants [Appellants].

Answering and replying affidavits were delivered in the two applications, and they were argued together before me on 1 February 2002.⁵

[3] Rule 65 of the rules of this Court deal with the suspension of orders, and is relevant to the applications now before me. It reads:

(1) Subject to subrule (2), where -

(a) notice of an application has been delivered for leave to appeal against an order of the Court, either to the Court or to any other court having jurisdiction to hear the application;

(b) an appeal against an order of the Court has been noted after leave to appeal has been obtained; or

the operation and execution of the order in question is suspended pending the determination of the application or appeal.

(2) The Court may, on application by any party, order that the suspension referred to in subrule (1) will not come into effect or is lifted.

(3) The Court may, upon application by any party or of its own accord, suspend any order of the Court for a given period or until the happening of a particular event.

[4] I will first consider the position of the fourth appellant. The operation of the eviction order against her will be suspended when she notes her appeal to the Supreme Court of Appeal.⁶There is no need for this Court to suspend the order. The noting of the appeal is not a cumbersome procedure, and can be done forthwith.

[5] The respondent, however, prayed for an order that the suspension of the eviction order which will come into effect upon the noting of the appeal, shall not come into effect, or is lifted. The respondent motivated this on the basis that the fourth appellant, since her right of residence was terminated as long ago as October 1998, has had free occupation of the room in which she lives on the farm, without having made or tendered any reparation.⁷The respondent alleged that there is no vacant accommodation on the farm, and that he needs the fourth appellantdwelling for workers who are prepared to work for him. There is no indication that the fourth appellant can afford to pay for the room which she occupies. Nor did the respondent apply to the Court for an order determining reasonable terms and conditions for her continued residence, as he might have done.⁸There is also no allegation that the fourth appellant misbehaves while living on the farm. The only place available for her to move to is her familyplace at Maelula, where one of the existing buildings will have to be extended to accommodate her. The probation officer who reported on the case stated that it will be difficult for the fourth appellant to start a new life elsewhere, if she is ordered to leave the farm. She is no longer young. The disruption of moving will be repeated if she wins her appeal and decides to move back to the farm. There may at that time be somebody else in her room, who might be unwilling to move out.⁹The respondent endeavoured to meet this difficulty by alleging as follows in his answering affidavit:

It is not necessary to allocate the same rooms presently occupied by the Respondents [Appellants] to them, should the Supreme Court of Appeal intervene in the judgment of this Court. If need be, I shall make available to the Respondents similar accommodation than that presently occupied by them. I am in the process of extending my farming operation and intend in due course to erect more accommodation on the farm. I shall commence with such construction within the next 12 to 18 months.

It is not satisfactory to subject the availability of accommodation for the fourth appellant on the farm, should her appeal succeed, to the erection of future accommodation. The future accommodation may not be erected, or may not be suitable, or there could be a dispute over its suitability.

[6] If leave is granted to execute the eviction order against the fourth appellant, she is likely to suffer irreparable harm and prejudice if her appeal succeeds, particularly emotional trauma in having to move twice, and possibly also moving costs and expenditure to get herself installed at Maelula. The respondent will also suffer irreparable prejudice if the fourth appellant remains on the farm, namely the loss of use of the room which she will continue to occupy pending the appeal. His prejudice is financial. It cannot be very great, and there is no indication that he will not be able to afford it. Where there is the potential of irreparable harm or prejudice to both the fourth appellant and the respondent, I must have regard to the balance of hardship or convenience.¹⁰In my opinion, the hardship which the fourth appellant will suffer if she is evicted from the farm pending her appeal, is greater than the financial prejudice which the respondent will suffer through the continuation of her occupation. The balance of convenience also favours retaining the status quo pending the appeal, thereby avoiding the possibility of the fourth appellant having to move twice.

[7] I now turn to the first, second and third appellants. They pray for a suspension of the eviction order for a sufficient period to allow them to apply to the Supreme Court of Appeal for leave to appeal.¹¹Mr Krьger, who appeared on behalf of the respondent, submitted that this Court has no jurisdiction to suspend the eviction order in the absence of any pending application for leave to appeal against it. I do not agree. Rule 65(3) of the rules of this Court allows the Court to suspend any order of the Court for a given period or until the happening of a particular event.¹²Cloete J had to deal with similar circumstances in the High Court, where the Uniform Rules of Court apply, which are silent on this issue.¹³He found that the High Court has the power to suspend the operation and execution of an order for a period sufficient to allow respondents to petition the Chief Justice for leave to appeal, on the basis that the High Court has the power to regulate its own orders in the interests of justice.¹⁴The Land Claims Court has similar powers, which it must exercise where justice so requires.¹⁵Where it is apparent that the first, second and third appellants intend to apply to the Supreme Court of Appeal for leave to appeal, it is just and equitable that the eviction orders against them be suspended to allow them sufficient time to prepare the application. The facts and law involved are relatively simple, and it should not take long to prepare the papers. A suspension of the eviction order until 14 February 2002 should give them ample time.

[8] I am mindful of the fact that the eviction orders against the appellants were given by a magistrate. This Court, after hearing the appeal, did no more than dismiss the appeal against the orders. This does not, in my view, prevent this Court from dealing with the eviction orders in the manner I intend doing, where justice so require.¹⁶None of the parties submitted, as I understood their legal representatives, that I am so prevented.

(a) that the application by the respondent for an order that the suspension of the eviction order against the fourth appellant will not come into effect or is lifted pending her appeal to the Supreme Court of Appeal, is dismissed; and

(b) that the operation and execution of the eviction orders against the first, second and third appellants be suspended until 14 February 2002.

Adv T A N Makhubele instructed by Nkuzi Land Rights Legal Center, Pietersburg.

Adv T P Krьger instructed by Coxwell, Steyn, Vise & Naudй Attorneys, Louis Trichardt.

[10] On 23 October 2001 Meer AJ and I heard appeals by the four appellants against eviction orders granted against them in terms of the Extension of Security of Tenure Act¹⁷(hereinafter Tenure Act) by a magistrate in the MagistrateCourt for the district of Soutpansberg, held at Louis Trichard. On 29 November 2001 we dismissed all four appeals.¹⁸On 21 December 2001 the four appellants gave notice of an application for leave to appeal to the Supreme Court of Appeal against the aforesaid judgment. Meer AJ and I heard the application for leave to appeal on 24 January 2002. We refused leave to the first three appellants and granted leave to the fourth appellant. Subsequent to our decision, the legal representatives of the parties indicated that they did not require reasons for our decision. We have, however, decided to give these concise reasons.

First Appellant

[11] The first and second grounds of appeal set out in the notice of application, relate to the first appellant. They can conveniently be considered together. They read:

1. The Honorable Court erred in finding that first respondent [first appellant] became an occupier only when he was re-employed on the farm.

2. The Honorable Court erred in finding that the first respondents [first appellants] right of residence arose solely from an employment agreement as contemplated in section 8(2) of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

A person residing on land will only be an as defined in the Tenure Act,¹⁹if there is a legal nexus²⁰between that person and the owner or person in charge of the land. The legal nexusin this case was constituted by an agreement of February 1991, in terms whereof the first appellant was re-employed on the farm. That agreement contains the consent given to the first appellant to reside on the farm. The first appellant seems to suggest that the allegation in his answering affidavit that he had any other home besides the farmis sufficient (if accepted) to make him an occupier of the farm, irrespective of the employment agreement.²¹In my view, the first appellant derives his status as occupier from the consent given to him when he was re-employed during 1991. Whatever consent the first appellant might have had to live on the farm prior to his re-employment, was overridden by the specific consent granted to him at the time of his re-employment. I do not consider that there is a reasonable possibility that another Court may hold otherwise.

[12] An occupier (as defined) is entitled family life in accordance with the culture of that family.²²Family members living with an occupier do not thereby become occupiers (as defined) in their own right, although the Tenure Act in some places loosely refers to such family members as occupiers. The difference between occupiers (as defined) and family members has been demonstrated and analysed in the judgment I gave in the case of Die Landbou Navorsingsraad v Klaasen.²³The first appellant has family members living on the farm, some of whom may be occupiers (as defined). Such family members have a right to family life.²⁴The first appellant seems to suggest that the right to family life which vests in those family members entitles him to reside on the farm, albeit no longer in the capacity of an occupier (as defined), if the termination of his employment agreement also brings his status as an occupier to an end. The necessary factual foundation to support such an entitlement was not laid. Nor was any family member joined as a party in the eviction proceedings.

[13] I now turn to the third and fourth grounds of appeal advanced by the first appellant. I will deal with them together. They read:

3. The Honorable Court erred in its finding in not considering the fact that there is no suitable alternative accommodation available to the first respondent [first appellant] as contemplated in section 10(2) of ESTA.

4. The Honorable Court erred in finding that accommodation for the fourth respondent [obviously intended to refer to the first appellant] with his in laws is suitable alternative accommodation, despite the practical and cultural arguments against such an arrangements.

[14] The first appellant did not, in any of his affidavits, dispute that the accommodation available to him at Maelula is alternative accommodation.²⁵His counsel, Ms Makhubele, submitted that he is reluctant to avail himself of that accommodation because it is made available by his in-laws, which according to her submission militates against the culture of his family. None of that is supported by any evidence. It is also not a persuasive submission because the first appellant had been using that accommodation for many years in the past to accommodate his wife and children.

[15] If suitable alternative accommodation is available to the first appellant, that is sufficient to justify his eviction under section 10(2) of the Tenure Act. Even if the accommodation at Maelula does not comply with the definition of suitable alternative accommodation, an eviction order is still possible, but under section 10(3) of the Tenure Act.²⁶The first appellant does not seem to dispute, according to his grounds of appeal, that section 10(3) is applicable and that its requirements for an eviction order against him have been met.

Second and Third Appellant

[16] The only ground for an appeal by the second and third appellants were formulated as follows:

5. The Honorable Court erred in finding that no effort was made by the second and third respondents [second and third appellants] to secure suitable alternative accommodation, as such granted their eviction.

Efforts by the parties to secure suitable alternative accommodation are relevant as one of the criteria to determine whether an eviction order under section 10(3) of the Tenure Act would be just and equitable.²⁷In that connection we found as follows:

In this matter, none of the parties gave particulars of any efforts they made to secure suitable alternative accommodation.²⁸

We did not find (as was alleged) that the second and third appellants made no effort to secure suitable alternative accommodation. We concluded that an eviction order against the second and third appellants is possible under section 10(3) of the Tenure Act. We took into account that both appellants have alternative accommodation available to them, although such accommodation may not be as defined.

Fourth Appellant

[17] The fourth appellant originally advanced three grounds of appeal, numbered 6, 7 and 8. During argument Ms Makhubele, for the fourth appellant, abandoned ground number 7. The other two grounds read as follows:

6. The Honorable court erred in finding that the termination of residence of the fourth respondent [fourth appellant] was not to prevent her from acquiring rights under section 8(4) of the Extension of Security of Tenure Act No. 62 of 1997.

7. . . .

8. The Honorable Court erred in finding that the hardship to be suffered by the fourth respondent [fourth appellant] cannot override the property rights of the applicant [respondent].

In my view, the necessary factual foundation was not laid to justify a finding that the right of residence of the fourth appellant was terminated in order to prevent her from acquiring rights under section 8(4) of the Tenure Act.²⁹I do not consider there to be a reasonable possibility of another Court making a different finding.

[18] In the judgment of 29 November 2001, I came to the conclusion that an eviction order against the fourth appellant is justified under section 10(3) of the Tenure Act.³⁰The threshold requirements in section 10(3)(a), (b) and (c) have all been met. I also found that an eviction order against the fourth appellant would be just and equitable, taking section 10(3)(ii) into account, which require me to have regard to:

(ii) the interests of the respective parties, including the comparative hardship to which the owner or person in charge, the occupier and the remaining occupiers shall be exposed if an order for eviction is or is not granted.

The hardship which an eviction order will cause for the fourth appellant is much greater that the hardship which any of the other appellants will suffer, should they be evicted. None of the other appellants advanced the manner in which we applied the comparative hardship test contained in section 10(3)(ii) to their particular circumstances, as a ground for appeal. They relied on other grounds. In applying the comparative hardship test to the circumstances of the fourth appellant, we bore in mind that the only place available for her to move to is her familyplace at Maelula, where one of the existing buildings will have to be extended to accommodate her. The probation officer who reported on the case stated that it will be difficult for the fourth appellant to start a new life elsewhere, if she is ordered to leave the farm. She is no longer young, and she has lived on the farm for a long time. The disruption of moving will be traumatic for her. On the other hand, the respondent has at this point in time been deprived of the use of the room which she occupies on his farm for about three years, without having received any payment or reparation from her.

[19] We concluded that the hardship which the fourth appellant will suffer if she is evicted, will not be so great that it must continue to override the constitutional property rights of the respondent. Another Court might, however, come to a different conclusion. The application of the comparative hardship test contained in section 10(3)(ii) and its impingement on the constitutional property rights of a land owner are difficult and important issues, on which the Supreme Court of Appeal have not yet pronounced. For these reasons, leave to appeal was granted to the fourth appellant.

Adv T A N Makhubele instructed by Nkuzi Land Rights Legal Center, Pietersburg.

Adv T P Krьger instructed by Coxwell, Steyn, Vise & Naudй Attorneys, Louis Trichardt.

South Africa: Land Claims Court

Magodi and Others v Van Rensberg (LCC29R/01) [2002] ZALCC 5 (7 February 2002)