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Labuschagne and Another v Ntshwane (LCC64/03) [2006] ZALCC 9; 2007 (5) SA 129 (LCC) (13 October 2006)

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3. Three sets of affidavits were filed by the parties, being the founding and replying affidavits from the applicants on the one hand and an answering affidavit from the respondent on the other. The founding affidavit set out in some detail its version of events upon which it based the relief sought. The respondent denied a great deal of the averments made and, in his answering affidavit, he set out his own account of events to indicate that he was a labour tenant. That account and assertion was challenged in the applicants’ reply.

4. At the close of the pleadings the matter was set down and counsel duly filed heads of arguments. Counsel for the respondent then indicated that, apart from the main defence of being a labour tenant, the respondent would raise, in limine, the further defences of lis alibi pedens as well as that the applicant ought to have proceeded by way of trial action rather than by application on affidavit since they should have anticipated material factual disputes. At the actual hearing only the argument on lis alibi pedens was pursued as a point in limine.I dismissed the application and will give reasons for the dismissal forthwith. It first transpired, from the founding affidavit of the first applicant, that during 1998 proceedings had been instituted for eviction from Vlakfontein of the respondent (and two others) at the Magistrates court in Belfast. This application had been resisted and successfully repulsed by the respondents by claiming to be labour tenants in terms of the provisions of Act 3 of 1996 ( the Labour Tenants Act). In consequence, the magistrate at Belfast was obliged in terms of section 13(1A) of the Labour Tenants Act to order that the proceedings be transferred to the Land Claims Court and that no further steps could be taken in the case in the magistrates court. The matter was not infact referred to the Land Claims Court.

5. The respondent, in his answering affidavit, and Mr Omar (his legal representative) in argument, seized upon the course of events set out in the above paragraph to mount the defence of lis alibi pedens. I do not find any merit in either law or logic for this submission. It is based on the premise that “the matters in dispute are pending under case number 303/98 at the Belfast Magistrates Court” which is obviously not the case.

6. A variation of the argument is that the effect of the order to transfer was to keep the issues alive in the Land Claims Court. In that case the proceedings before the magistrate should have been forwarded to the Land Claims Court and formed part of the referred proceedings. This may well be the case where the referral is acted upon and is pursued by the parties. Even in such a case, it is my view that such an incorporation, if allowed, would not preclude the applicant from introducing new perspectives, focuses and approaches now that the procedural requirements of the new forum are different from that of the previous forum.

7. In the present case, it is common cause that the applicant chose not to pursue the referral to the Land Claims Court in the form it had been cast before the magistrates court but to institute proceedings de novoin this court and in terms of Extension of Security of Tenure Act,62 of 1997. This was an option clearly open to him in terms of section 17(1) of the Act¹. I cannot see how the exercise of this option would have had an effect of setting up the defence of lis alibi pedens. The defence applies when the same subject matter is brought in two courts of the same country at more or less the same time or while proceedings are still pending in one or the other of the courts concerned. The court regards such a situation as being prima facie vexatious and will generally put the plaintiff to his election as to which one he intends to continue. In any event raising the plea, even when justified, does not constitute an absolute bar to the proceedings and the court has a discretion to allow them to continue if the balance of equity and convenience favours such a course. For all the above considerations, I dismissed the special plea in this case and allowed the case to continue on the merits as pleaded.

8. The submission, by Mr Omar for the respondent, that the applicant ought to have anticipated serious factual disputes, and to have proceeded by way of trial action rather than motion and affidavits brings us to consider the central issues of the case as manifested by the facts on the papers. It is true that there are numerous factual disputes on the papers which cannot be resolved without hearing of oral evidence. However, upon a careful assessment of the affidavits, I did not find any difficulty to determine where the truth was situated.

[9] It is logical and convenient to deal first with the question of labour tenancy. This is because, if the respondent has infact made out a case on the papers that he is a labour tenant, then cadit questio, he cannot be evicted in terms of the’ Security of Tenure Act’ as his eviction should have been sought in terms of the ‘Labour Tenants Act’.²

[10] A labour tenant is defined in section 1 of the Act as a person:

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

2. who has 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

2. whose parent or grand parent resided or resides on the farm and had the

right to use cropping or grazing land on the farm or has provided labour to the owner or lessee; of such or such a farm, including a person who has been appointed a successor to a labour tenant in accordance with the provisions of section 3(4) and (5), but excluding a farm worker.”

In Ngcobo and Others v Salimba CC; Ngcobo V Van Rensburg³ the Supreme Court of Appeal held that paragraphs (a), (b) and (c) of the definition had to be interpreted conjunctively. It is common cause that in the present case the respondent meets requirement (a) but both requirements (b) and (c) are contested.

[11] On the question whether the respondent has brought himself within the ambit of paragraph (b) the information emanating from his answering affidavit is scanty and confusing. He states that he worked for the former owner of the farm Vlakfontein as a young man until the farmer told him that he had no further need for him to work on the farm. Thereafter he found employment in Pretoria though he and his family continued to reside on the farm but with no labour related obligations.There is no indication how old the respondent was at this stage, nor whether his remuneration was predominantly in cash or in kind. The respondent further makes the bald statement in his affidavit:

“We have (my emphasis) rights to occupy, crop and graze land on the farm Vlakfontein and in

consideration of such rights, we provided (my emphasis) labour to the owner of the farm.”

This is confusing because it is cast in the plural and then also in the present as well as in the past tense. The confusion is further compounded when the respondent states:

“I deny that the Applicant paid me or my family members in cash fro services rended to either the

Applicants or their predecessors in the title or to the property. Our sole remuneration for the labour we

provided to the owner or person in charge of the property was our right to use, occupy, graze and crop the

land on which we resided.”

It is so that neither the respondent nor the applicant claimed they had a labour relationship at any time. The denial that the applicant never paid the respondent in cash is therefore surprising.

[12] What emerges here appears to be that the respondent is claiming labour tenancy for himself by virtue of having worked for the former owner of the farm Vlakfontein in the days of his youth. Upon being told his service was no longer needed he secured employment in Pretoria at the Government (sic) of Public Works. There is no further elaboration in respect of that earlier particular relationship to assist in determining whether it fell within the ambit of the (b) requirement. Yet, even if it did, it cannot be held that once a labour tenant then always a labour tenant. The relationship of labour tenancy is not necessarily static or indestructible simply because residence on the land is maintained. For these reasons alone, and without examining the applicant’s version of that relationship, the respondent cannot claim to have made out a case as a first generation labour tenant in his own right. The respondent has, furthermore, not made any attempt to premise his claim on any other footing other than in terms of the definition in section 1 of the ‘Labour Tenancy Act.’ He has, for instance, nowhere claimed to be an ‘associate’ or a ‘successor’ of a labour tenant in terms of that Act.

[13] It is not necessary to investigate the claim of labour tenancy any further by examining whether requirement (c) of the definition has been fulfilled because the failure to discharge the onus in respect of any one of the three requirements is fatal to such a claimant. Suffice to state that the respondent’s version, even in respect of the requirements of (c), is vague while the applicants have set out a more comprehensive and credible sequence of events overall.

[14] The affidavit made on behalf of the applicant sketches the relationship between the parties as being one that was based upon an oral lease agreement during June 1975. The agreement was between the respondent and the previous owner who passed away immediately afterwards. When the applicants acquired the farm Vlakfontein in 1994, they also took over the lease agreement with the respondent which was amended and supplemented over time in respect of the monthly rentals and grazing fees. It was also subject to a termination clause upon 2 months notice which the applicants exercised on June 1997 and the respondent’s acknowledgement of receipt was signed by him on 5 June 1997. The respondent attributes his acknowledgement of receipt as well as his name on the lease agreements to misrepresentations made to him by the applicants as regards the contents thereof. He also denies having paid any rental in respect of his occupation of the premises or of rental for grazing.

[15] On the totality of the evidence on the papers, I accept that the lease agreements reflect correctly the relationship between the parties and reject the respondent’s denials as farcical strained and unconvincing. It is on this basis that I find the respondent was an occupier in terms of the lease agreement. I now go on to consider whether there has been compliance with the procedures laid down for an eviction application under the ‘Security of Tenure Act’.

[16] Section 9(2) of the ‘Security of Tenure Act’ sets out four separate requirements which must all be fulfilled before a court my grant an order for eviction of an occupier. It reads as follows:

“(2) A court may make an order for the eviction of an occupier if-

1. the occupier’s right of residence has been terminated in terms of section 8;

2. the occupier has not vacated the land within the period of notice given by the owner or person in charge;

3. the conditions of an order of eviction in terms of section 10 or 11 have been complied with; and

4. the owner or person in charge has, after the termination of the right of residence, given-

   1. the occupier;

   2. the municipality in whose area of jurisdiction the land in questionis situated; and

   3. the head of the relevant provincial office of the Department of Land Affairs, for information purposes.

Not less than two calendar months’ written notice of the intention to obtain

an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice to a court has , after the termination of right of residence, been given to the occupier, the municipality and the head of the relevant office of the Department of Land Affairs not less than two months before the date of commencement of the hearing of the application, this paragraph shall be deemed to have been complied with.

[17] I have rejected the respondent’s denial that on 5 June 1997 he signed the written notice to him terminating the lease agreement un-aware what of its contents. Although the agreement could be terminated with a notice of two months, infact the applicants allowed the respondent six months in which to vacate in view of his long residence on the farm. The affidavit on behalf of the applicants sets out the circumstances which gave rise and led to the termination of the right of residence not only to the respondent but also to five other families. They wanted to develop the land and to establish trout farming and the presence of a number of families with grazing herds was no longer reconcilable with long term development of the land. It was not unreasonable for the applicants to terminate the leases over the land for this purpose. On the other hand, it must be taken into account that the respondent was being asked to leave a home he had lived in for the greater part of his life and in which he had built structures and reared cattle. In my evaluation, however, the rights of owners to development must ultimately prevail over sentiment in these situations

[18] It was not argued on behalf of the respondent that there existed a reasonable expectation of the renewal of the agreement clearly because of the denial of the existence of the lease agreement. Nor was it argued that the respondent had not been given effective opportunity to make representations before a decision to terminate was made clearly because it was common cause that the applicants had explored various options which did not elicit positive responses from the respondent. In all these circumstances, I am satisfied that the termination of the respondent’s right of residence was lawful, just and equitable having regard to all the factors set out in section 9(2) (a) and (b) and the cross reference in section 8(1) (a)-(e).

[19] It was argued in the respondent’s heads of argument that the applicant failed to comply with section 9(2)(d) of Security of Tenure Act. This is not correct. At paragraph 19 of the applicants’ affidavit all the relevant notices are stated to have been served and the annexures are attached.

[20] It was also argued, on behalf of the respondent, that an order for eviction cannot be granted before the court has obtained a probation officer’s report in terms of section 9(3) of the Act. The argument went on to say since the applicants prayed for eviction in disregard of the report they were reckless and ought to be mulcted in costs on a scale as between attorney and client. It is true that such a report has not been part of the proceedings but since the thrust of the respondent’s case was based on being a labour tenant the probation officer’s report in terms of section 9(3) of the ‘Security of Tenure Act’ dissipated even more into the realm of technicality⁴ than is normally the case when the respondent is ably represented by experienced counsel. The proceedings in this matter were commenced more than three years ago and cannot be further delayed by the absence of a report⁵ which is unlikely to further enlighten or assist the parties or the court in the matters in issue in this case. The applicants will not be mulcted in costs of any kind, it is not for them but for the court to make the request. In any event the applicants do make the request in their papers and their attorney filed a similar request as early as 26 November 2003.

[21] Section 9(2) (c) requires compliance with the conditions for an order for eviction either in terms of section 10 or 11. It is common cause the conditions set out in section 10 are applicable in this case because the respondent was already in occupation on 4 Feb 1997. The applicants have set out a series of events which they allege fall squarely within the scope of section 10(1) (a)(b)(c). These sections articulate distinct breaches of the relationship which, taken singly or accumulatively, irretrievably destroy the relationship between the parties and the owners of the land.

“10 (1) Order for eviction of person who was an occupier on 4 February 1997-

(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if-

(a) the occupier has breached section 6 (3) and the court is satisfied that the breach is

material and that the occupier has not remedied such breach;

(b) the owner or person in charge has complied with the terms of any agreement pertaining to

the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the

law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not yet remedied the breach despite being given one calendar month’s notice in writing to do so;

(c) the occupier has committed such a fundamental breach of relationship between him or

her and the owner or person in charge, that it is not practically possible to remedy it,

either at all or in a manner which could reasonably restore the relationship;”

[22] Some of the litany of events and incidents, which the applicants allege have soured the relationship irretrievably, include:

1. The deliberate and intentional disregard of rules of the farm by the respondent and his

family previously agreed upon by consensus

2. Leaving the gates of the farm open on a regular basis

3. Allowing visitors to the respondent’s home without the necessary permission, leading to numerous instances of theft

4. Respondent’s visitors driving recklessly over a dam wall on the farm and colliding with one of the paying guests,

5. Negligently starting a fire on the farm by the wife of the respondent destroying hectares of grazing

6. Constant and uncontrolled levels of noise and littering emanating from the respondent’s homestead

7. Damaging of the farm gate in order to gain entrance and leave a pile of wood causing an obstruction to the entrance.

8. Intimidating messages to the applicants referring to land evasions in Zimbabwe;

9. Refusal to remove cattle from grazing camp unattended and damaging the trout dams and destroying grazing on the farm while refusing to pay arrears for grazing

[23] All the above are either denied outright by the respondent or else explained or rationalized in a different context. It is not so much the veracity or otherwise of the allegations that matters nor is it the reasonableness or otherwise of the explanations or rationalisation. It is rather the manifestations of the deep levels of mistrust and suspicions over a long period of time that are undeniable. Indeed, even the prolonged tussle of these proceedings is testimony of a fractured relationship such as is envisaged in section 10(1) (c) of the ‘Security of Tenure Act’. The ‘Act’ was not intended to promote the security of opportunistic occupiers at the expense and exploitation of the rights and legitimate interests of the land owners.

[24] Finally, and for the sake of completeness, two observations need to be made to demonstrate that the respondent has committed such fundamental breaches of the relationship as make its remedy not practically possible. The first is that it transpires, not only from the papers but also during the course of the proceedings, that the respondent has adopted a hard-line and uncompromising attitude to various reasonable attempts on the part of the applicants to settle. He has scoffed at every proposal while not himself offering viable alternatives. What is more, he has, in the papers, expressed the negative attitude towards the applicant that he is devious high-handed and rude in his dealings with him and his family which effectively displays ‘a perpetuation of keeping the family and I in a servile state and failing to respect the basic human rights of my family members and which rights are entrenched in on Constitution’. These are extremely harsh sentiments openly expressed and to which the applicant has responded with anguish and indignation. The relationship between the parties is clearly strained beyond redemption. Secondly, it appears from the papers that there was an attempt on the part of the respondent to mislead both the applicant and the court. This relates to the claim by the respondent, in the context of determining whether he had alternative accommodation of his own, that he was merely leasing the enlarged house in which he lives in Belfast. The claim was made by him in papers signed 28 October 2003 whereas the respondent and his wife had purchased the property from Highlands Local Municipality on 18 March 2003 and the power of attorney to the effect transfer had already been signed on the 16 October 2003, just 12 days before. This state of affairs indicates a complete lack and loss of trust between the parties and the court’s disapproval of this lack of good faith will be reflected in the cost order that will be made.

Costs:

[25] In the course of the proceedings in this matter I became alarmed and concerned by the persistent time consuming and worthless actions on the part of the respondent’s attorney. In consequence I requested the parties to file further heads of argument in respect of costs in order to determine whether or not the said behavior constituted special circumstances justifying a deviation from this court’s normal practice of not awarding costs.

[26] From the beginning of the proceedings it was clear that the respondent intended to delay the matters at all costs. The point of lis pendenstaken in liminewas technical and without substance. On the second day of the hearing, and without giving any prior notice, the respondent sought a postponement on flimsy grounds. The postponement was not granted but much time was wasted in argument. Scurrilous and untruthful remarks abound in the respondent’s answering affidavit about the applicants and are echoed by his attorney in argument.

[27] Added to all this, is the conduct of the respondent set out in paragraph 24 above which was clear attempt to mislead the court. The respondent is, furthermore, not the usual indigent and vulnerable occupier. He is a lessee who owns 15 herd of cattle and is in full time employment. For all these reasons, there is ample justification for a cost order against him.

Order:

[28] For all the above reasons, the following order is made:

1. The respondent and all persons claiming occupation of the farm Vlakfontein through him, is ordered to vacate the form on or before 03 November 2006.

2. Should the respondent and all persons claiming occupation through him on the farm referred to in paragraph 1 above fail to vacate the said farm on 03 November 2006, then the Sherrif of the High Court is ordered and authorised to remove the respondents and all people occupying the farm through him from the said farm on or after 01 December 2006.

3. The respondent is ordered to pay the costs of the application as well as of the unsuccessful application in limine.

_________________________

JUDGE PRESIDENT F C BAM

For the applicant:

Adv Havenga Instructed by Grutter & Grobbelaar in Pretoria

For the respondent:

Z Omar of ZehirOmar Attorneys in Springs

1 “17 Choice of the court- (i) A party may, subject to the provisions of sections 19 and 20, institute proceedings in the magistrate’s court within whose area of jurisdiction the land in question is situate, or the Land Claims Court.”

2 Kusa Kusacc v Mbele 2003(1) BCLR 222(LCC)@229 E F para 15

3 1999 (2) SA 1057 (SCA) para 11

4 Land & Landbouontwikkelingsbank van S A v Conradie [2005] 4 All SA 509 (SCA) @515 d-e

5 Pannar Research Farms (Pty) Ltd & Another v Magome & Another [2002] 5 SA 621 (LCC)

@ paragraph 17 p 629 B-C