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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Heard at Durban on 5^th September 2006 CASE NUMBER: LCC 33/05

Before Meer, J

Decided on: 11 October 2006

In the case between:

DANO AGNES MBHENSE Plaintiff

And

HEDLEY JAMES BROWN First Defendant

DEPARTMENT OF LAND AFFAIRS Second Defendant

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JUDGMENT

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MEER J:

1. This is an action in terms of Section 33(2)(A) of the Land Reform (Labour Tenants) Act No. 3 of 1996 (hereinafter referred to as “the Act”) in which the Plaintiff seeks a declaration that she is a Labour Tenant. The affected land is portion 1 and 2 of the farm Highgate (“the farm”), Farm No. 16635 situated in Dargle, district of Umgeni, in the Province of KwaZulu-Natal. The Plaintiff Dano Agnes Mbhense, a pensioner aged 67 currently resides on the farm. The first Defendant, Hedley James Brown (“the Defendant”) is the current owner of the farm and he opposes the action. The second Defendant has not opposed the action and abides the decision of the Court.

2. The Plaintiff has also lodged a claim with second Defendant in terms of Section 16 of the Act for acquisition of that land on the farm that she was entitled to use on 2 June 1995, which claim is pending. That claim is not relevant for the purposes of this judgment.

3. Labour Tenant is defined at Section 1 of the Act as follows:

4. “ ‘Labour tenant’ means a person -

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

8. (b) who has or has 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

10. (c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm

12. including a person who has been appointed a successor to a labour tenant in accordance

13. with the provisions of sections 3 (4) and (5), but excluding a farm worker.”

4. Section 3(1) of the Act specifies the right of a labour tenant to occupy and use land and states as follows :

18. “(3) Right to occupy and use land

20. (1) Notwithstanding the provisions of any other law, but subject to the provisions of subsection (2), a person who was a labour tenant on 2 June, 1995 shall have the right with his or her family members –

1. to occupy and use that part of the farm in question which he or she or his or her associate was using and occupying on the date;

23. (b) to occupy and use that part of the farm in question the right to occupation and use of which is restored to him or her in terms of this Act or any other law.”

5. A farm worker is defined also at Section 1 of the Act as follows:

26. “ ‘farmworker’ means a person who is employed on a farm in terms of a contract of employment which provides that:–

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

30. (b) he or she is obliged to perform his or her services personally.”

6. The onus which rests upon the Plaintiff to prove that she is a labour tenant is set out at Section 2(5) of the Act, which states :

34. “If in any proceedings it is proved that a person falls within paragraphs (a), (b) and (c) of the definition of 'labour tenant', that person shall be presumed not to be a farmworker, unless the contrary is proved.”

7. Section 2(5) was added to the Act by a 1997 amendment thereto, introduced by Act No. 63 of 1997. Prior thereto an aspirant labour tenant had the onus of proving both that he or she falls within paragraphs (a) (b) and (c) of the definition of labour tenant, and that he or she was not a farmworker¹. The effect of the amendment is that once an applicant proves that he or she falls within paragraphs (a), (b) and (c) of the definition of labour tenant, the onus shifts to the respondent to prove that the applicant is a farmworker².

8. In accordance with the onus as specified at Section 2(5), therefore should Plaintiff establish the requirements of Section 1(a), (b) and (c) of the definition of labour tenant, she shall be presumed to be a labour tenant. The onus will then shift to this first Defendant to rebut the presumption by providing evidence to the contrary that Plaintiff is in fact a farmworker.

9. Against the background of the legal framework, I set out to consider in the light of the evidence presented, whether each party has discharged the requisite onus which they bear.

10. Four witnesses testified at the hearing of this matter. They were the Plaintiff herself and her aunt Mrs Zondekile Ngubane, the first Defendant and Mr Dennis Raw who operated the farm in 1968 and 1969.

11. The farm was initially owned by Mr. William Raw and remained in the Raw family for several years during which William Raw’s son Joe Raw and his grandsons, Dennis and Robert farmed there at various times. At that time it was known as Myhill. The Raws sold the farm to a Mr. Ross who renamed it Highgate. Ross in turn sold the farm to one Kibler who sold it to the first Defendant in 1995. Portion 1 of the farm was used by the families that provided labour on the farm, including the Plaintiff’s families. These families were allowed to plough and graze cattle thereon.

41. Plaintiff’s testimony

12. The Plaintiff referred to the farm as Ntabaskop, the name by which it is commonly known in the area. She was born on the farm some 67 years ago. At the time of her birth the owner according to her was Mr Willy Raw. Her family has had a long association with the farm. Her grandfather, Fusi Mhlongo had resided and worked on the farm as had her father, Skhwebu Mhlongo, her brother, Machibi and her mother, Nonhlonze Mhlongo. The latter had worked on a part-time basis only. She estimated that her father had earned in the region of two pounds a month.

13. For their labour, Plaintiff said, her family was given the right to occupy land on the farm, plough and graze thereon. Her father, she said had ploughed corn, maize and beans for the family’s consumption. The Plaintiff herself had also ploughed the fields, in the early years of her life. Her family kept cows and goats for grazing and also owned horses. There was no restriction on the number of cattle they were allowed to graze. They, together with other families who lived and worked on the farm, were moreover permitted to plough and graze all over the farm except for that portion used by the farm owner. Plaintiff estimated that the size of the land on which they cropped was twelve (12) times the size of a soccer field.

14. The Plaintiff married Mfesi Mbhense in March 1962 and came to live with her husband’s family on the part of the farm they occupied. They too had cropping and grazing rights similar to those enjoyed by Plaintiff’s parents and also cropped for subsistence purposes. The farm owner provided them with a tractor for ploughing. Plaintiff’s husband and three other members of his family provided labour on the farm. According to Plaintiff her husband received 4 x R20 rand notes a month (R80,00) as well as a sack of maize. He personally did not own cattle but his parents did.

15. Plaintiff herself worked as a domestic worker on the farm over a long period of time and for successive farmers. Her employment as a domestic worker commenced with Mr Joe Raw. She cooked and looked after his children, Dennis and Robert Raw. When they grew up the Plaintiff worked for them as a cook. She said she received a small amount in cash as wages, R3 for six months.

16. Plaintiff herself also personally grew crops on the farm. She stopped working after giving birth but could not say what year this was. The pleadings suggest this was in 1979. Upon the death of her parents in law her husband’s brother inherited their assets. Plaintiff’s husband continued working for Mr. Ross when the farm was sold to him by the Raws. The status quo pertaining to conditions of employment on the farm continued under Mr Ross. Plaintiff’s husband died on 13 February 1987. She however continued to live on the farm and to use the land for cropping. Plaintiff currently resides on the farm with an elderly relative, Mr Khumalo and her cropping is confined to a small vegetable garden in front of her dwelling.

17. Under cross examination when it was put to plaintiff that Mr Dennis Raw would testify that she earned 50c a day when she worked for him, she said she could not remember what her daily earnings had been, but maintained it was the sum of R3 after six months she had referred to earlier.

18. When it was put to her that she and her husband were paid for their services and there was no agreement that they would receive payment in the form of cropping or grazing rights, she insisted that there had been such an agreement.

19. Under cross-examination Plaintiff also stated she had no knowledge about the value of grazing rights in the sixties, when Dennis Raw’s version, that such value was 50c per head of cattle between 1968 – 1969. She however agreed that each employee was given a bag of mealie meal every month and could not dispute the value per bag being R5.00. She admitted also that each employee received breakfast and lunch at work and that the crops employees grew were harvested once a year, each family receiving 12 bags from the harvest.

20. It was put to her that Dennis Raw would testify that cropping and grazing rights were given to the men and she agreed with this statement.

52. Testimony of Zondekile Ngubane

21. Ms Ngubane is Plaintiff’s father’s sister. She was familiar with conditions on the farm, and had often visited the Plaintiff’s parents when they lived there. She confirmed Plaintiff’s testimony that they had cropping and grazing rights. She could not say what Plaintiff’s father had earned.

22. She said Plaintiff had worked as a domestic on the farm before and after her marriage. Ms Ngubane was aware that Plaintiff’s in laws had cropping and grazing rights. After Plaintiff’s husband’s death, Plaintiff continued cropping. Ms Ngubane said she knew this as Plaintiff and her are neighbours, explaining that she (Ngubane) lives on a neighbouring farm. The Plaintiff, whom she would see on a daily basis, informed her the crops were hers.

23. At the close of Plaintiff’s case an application for absolution from the instance by first Defendant was refused.

57. Testimony of Dennis Raw

24. Mr Dennis Raw, a vegetable farmer is the son of Joe Raw, one of the earlier owner’s of the farm. The farm, he said was originally known as St Ives. During his father’s ownership it was called Myhill, but known to the locals as Ntabaskop. It is upon this portion that the Plaintiff and her family lived.

25. Mr Raw grew up on the farm but left as a young man to pursue his studies. He returned to the farm in 1968 and ran the farm himself for 2 years, in 1968 and 1969. Thereafter his brother took over the farm from him. Both Plaintiff and her husband had worked for him in the two years that he farmed. He was able to testify about the conditions of employment of Plaintiff and her husband during the two years he was in charge.

26. The Plaintiff’s husband, he said, earned R30 – R40 per month as a labourer In addition he received an 80kg bag of mealie meal per month, valued at R5 and a daily meal. The Plaintiff worked for him as domestic worker in 1968 and 1969 and earned a salary of 50c a day.

27. Each family received half a hectare of land for cropping. During the time of Mr. Joe Raw, that gentleman (Joe Raw) would plough, fertilize and plant for each family. The yield per year from these fields was on average 12 bags of maize meal, from which was derived the 80kg bag received each month by labourers. This would be given to the male member of the family.

28. During the two year period Raw farmed, each family was allowed to graze 5 head of cattle. They could graze anywhere on the outlying areas of the farm as long as they did not impact on the farm owner’s grazing. Raw estimated the value of the grazing to have been 50c per head of cattle per month.

29. Raw stated “We never saw cropping and grazing as part of the salary”. According to him Plaintiff’s husband was definitely paid predominantly in cash.

30. He said the Plaintiff was obliged to render her services personally and did not herself have cropping or grazing rights, as these belonged to her husband. No women, he said had such rights. There had been no arrangement with the Plaintiff that part of her salary comprised cropping and grazing rights.

31. After Dennis Raw left the farm, his brother Robert continued farming. The Raw family sold the farm to a Mr Ross in the early eighties. Under cross examination Raw conceded that he could only testify with certainty about the situation on the farm in 1968 and 1969 when he farmed there personally. He was however 99% certain that his brother did not change the system and stated that as far as he was aware the system remained the same from the time he left the farm until it was sold.

67. Testimony of first Defendant Hadley James Brown

32. The first Defendant purchased the farm in 1995 from a Mr Kibler. Kibler had not farmed the property and it fell to the first Defendant when he bought it, to “fix up the lands” and install an irrigation system. When first Defendant was negotiating to buy the farm he was informed that an elderly woman, the Plaintiff resided there. He had in fact become aware that Plaintiff resided on the farm when he first attempted to purchase it in 1993 from Mr Ross.

33. Plaintiff, he said lives in an area where wattle trees are planted, keeps no cattle, but has a small area in front of her dwelling where she grows pumpkins and mealies. She lives with Mr. Khumalo, an elderly man. Neither of them are employed on the farm.

71. Argument

34. Mr Mbhense for Plaintiff argued that Plaintiff had discharged the onus of proving that she falls within paragraphs (a) (b) and (c) of the definition of labour tenant. Mr Forster for the first Defendant, relying on the pre 1997 amendment formulation of the onus to prove labour tenancy, as set out in Mahlangu v De Jager ³ and referred to above, submitted that the Plaintiff bore the onus of proving every requirement of the definition of labour tenant including the negative requirement that she is not a farmworker. He said she had failed to discharge the onus of proving that she is a labour tenant and also that she is not a farmworker. This is clearly an incorrect formulation of the onus, which does not take cognisance of the 1997 amendment to the Act.

35. The amendment as mentioned above inserted Section 2(5) which significantly lightened the burden of proof which the Plaintiff in a case like this has to bear, to proving only that she falls within paragraphs (a), (b) and (c) of the definition of labour tenant. She no longer is required to prove that she is not a farmworker, such being the first Defendant’s onus. Mr Forster’s submissions on the onus, relying as they do on the pre 1997 amendment formulation thereof, can accordingly not be accepted. It nonetheless falls upon me to consider whether the parties have discharged the onus upon each of them as specified at Section 2(5) of the Act.

75. Is the Plaintiff a labour tenant as defined in the Labour Tenant’s Act?

77. Has the plaintiff complied with paragraph (a) of the definition of labour tenant?

36. Paragraph (a) of the definition states:

80. “labour tenant means a person –

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

83. (b) . . .

84. (c) . . .”

37. It is common cause that Plaintiff has resided on the farm since birth and currently resides there. The Plaintiff has therefore shown compliance with paragraph (a) of the definition.

88. Has Plaintiff complied with paragraph (b) of the definition?

38. Paragraph (b) of the definition states:

91. “labour tenant means a person –

93. (a) . . .

94. (b) who has or has had the right to use cropping or grazing land on the farm,

95. referred to in paragraph (a), or another farm of the owner, and in

96. consideration for such right provides or has provided labour to the owner or lessee; and

97. (c) . . .”

39. Plaintiff’s undisputed testimony is that she used cropping land on the farm whilst she worked thereon during her husband’s lifetime and thereafter. Her undisputed testimony was that she continued to use cropping land on the farm after her husband’s death and that she still does so today in a small vegetable garden in the front of her dwelling. There can therefore be no quarrel with the fact that Plaintiff personally used cropping land whilst she worked on the farm, and that she uses cropping land thereon. The all important enquiry is whether she had the right to use cropping land and whether she provided labour in consideration of such right.

40. Her insistence under cross examination that there had been an agreement that they (she and her husband) would receive pay in the form of cropping or grazing rights for their labour, was not significantly challenged. This is suggestive of the right to use cropping land in consideration for labour, as contemplated at paragraph (b) of the definition of labour tenant.

41. Plaintiff’s unchallenged testimony that she personally used cropping land on the farm whilst her husband was alive and after his death, and the testimony of Ms Ngubane that plaintiff used cropping land thereafter was also not challenged. There was no evidence on behalf of the first Defendant that Plaintiff’s use of the land for cropping was unauthorized or that she was instructed not to crop after the death of her husband. This is also suggestive of and indeed points to a right held by Plaintiff to use land for cropping.

42. There was, of course the evidence of Dennis Raw that cropping and grazing rights were given only to men during the two year period when he farmed, a statement with which plaintiff appeared to agree. Raw’s evidence, on this aspect however pertains with certainty only to the two year period when he personally farmed, albeit his view that this situation continued thereafter and must be treated with the requisite caution. Raw’s testimony moreover throws no light on what the agreement with plaintiff was when she commenced employment.

43. Regard being had to all of the evidence for Plaintiff as compared to that for first Defendant on this aspect, I find that on a balance of probabilities Plaintiff had the right to use cropping land, an entitlement which she exercised unfettered over a period of time both during her employment and thereafter, and in consideration for which right she provided labour. I note that whilst she no longer provided labour as of 2 June 1995, the date specified at Section 3 of the Act quoted above, as at that date she had provided labour in the past, in keeping with the use of the past tense, “has provided” at paragraph (b) of the definition⁴. I accordingly find that there has been compliance with paragraph (b) of the definition of labour tenant.

105. Has plaintiff complied with paragraph (c) of the definition?

44. Paragraph (c) of the definition states:

108. “ ‘labour tenant= means a person –

110. (a) . . .

111. (b) . . .

112. (c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm …”

45. The undisputed testimony of Plaintiff is that her parents resided on the farm, had the use of cropping or grazing rights thereon, and in consideration of such right and a meager salary of 2 pounds, presumably a month, earned by each or one of them, provided labour to the owner. This comprises compliance with the second generation right specified at paragraph (c) of the definition of labour tenant.

46. I accordingly find that plaintiff has discharged the onus of proving that she falls within paragraphs (a) (b) and (c) of the definition of “labour tenant”. Plaintiff is thus presumed not to be a farmworker, unless the contrary is proved, as specified at Section 2(5) of the Act.

47. The burden of proof, must in the circumstances shift to first Defendant, who bears the onus of proving that Plaintiff is a farmworker. As first Defendant did not understand the onus to operate in this manner, his stance, incorrectly, was that the Plaintiff bore the onus of proving also that she was not a farmworker.

48. The only testimony adduced by Defendant as to the remuneration Plaintiff received pertains to two years of her working life on the farm, during 1968 and 1969. According to Raw she received 50c a day. This would amount to R12 a month, if one assumes, which I shall, that she worked a six day week, paid to her personally, and a share in an 80kg bag of mealie meal per month, valued at R5, which was given to her husband. This would put her earnings during 1968 and 1970 in the region of just under R17 per month. First Defendant led no evidence on her remuneration at any other time. Nor did first Defendant lead any evidence of relevance about the value of the right to use and occupy the land, the evidence on this aspect being confined to Raw’s estimate of grazing rights during the two years he ran the farm.

49. Such evidence as was presented by first Defendant fell far short of proving that Plaintiff was a farmworker who was paid predominantly in cash or some other form of remuneration and not predominantly in the right to occupy and use land.

50. It is worth noting here that the non economic value of the right to occupy and use land has been commented upon in various cases. In Mahlangu v De Jager⁵, Msiza & Others v Uys & Other⁶ and Ngcobo v van Rensburg⁷ the benefits of the non economic value to the labour tenant of the right to use and occupy land have in essence been equated to the value of security. In the latter case Olivier JA stated :

120. “… but what is clear is that the appellants and their forebears had for many years received the absolute minimum in the form of remuneration for their services. It must be overwhelmingly clear that the value of having hearth and home of their own, a place where they could find the fundamental security of living and surviving off the land, must have far outweighed the benefits they received as remuneration in cash or in kind.”⁸

123. In contrast however, commenting on this passage, Streicher JA in Woerman and Schutte NNO v Masondo and Others⁹ stated:

125. “It does not appear from the judgment in the Ngcobo case on what evidence this Court found that the value of residence, grazing and cultivation must have far outweigh the benefits received as remuneration in cash or in kind. Each case must be decided on its own facts and, whatever the factual position may have been in that case, I am satisfied that on the evidence in this case there is no basis for such a finding”

127. [50] Whatever the value of the rights of use and occupation of the land in this case, I am satisfied that it would be ludicrous if the value of less than R17 a month (which from Raw’s evidence is in effect what Plaintiff was remunerated in cash and kind over the two year period), could have been greater than the monthly value of the right to use and occupy the land and the security to Plaintiff inherent therein. In the circumstances the presumption that Plaintiff is not a farm worker, must stand and Plaintiff must accordingly succeed in her application to be declared a labour tenant.

51. Plaintiff has asked for costs to be awarded to her. The practice in the Land Claims Court is not to award costs in matters such as these, which fall under the genre of public interest litigation, unless there are exceptional reasons for doing so.¹⁰ I am unable to find exceptional circumstances in this case which warrant a deviation from the practice.

52. The following order is made.

131. (1) It is declared in terms of Section 33(2A) of the Land Reform (Labour Tenants) Act 3 of 1996 that the Plaintiff is a labour tenant.

133. (2) There is no order as to costs.

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JUDGE Y S MEER

LAND CLAIMS COURT

For the plaintiff:

Mr T Mbhense of the University Law Clinic, Pietermaritzburg

For the first defendant :

Mr J R Forster of Barkers Attorneys, Durban

For the second defendant

Mrs S Naidoo of the State Attorneys’s Office, Durban

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