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Van Heerden v Magaga and Others (LCC48R/2007) [2007] ZALCC 13 (11 July 2007)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Held in Chambers Magistrate’s Court case Number 1/2007

Before Ncube AJ Land Claims Court Case Number: LCC48R/2007

Decided on 11 July 2007

In the matter between:

ALBERTUS LAMBERTUS VAN HEERDEN Applicant

and

CYNTHIA MAGAGA AND OTHERS Respondents

JUDGMENT

NCUBE A J:

1. This matter came before me on an automatic review in terms of Section 19(3) of the Extension of Security of Tenure Act, 62 of 1997 (herein after referred to as “the Act”).

2. The applicant, Albertus Lambertus Van Heerden is the owner of a certain farm known as Riversdale. Riversdale is situated in the district of Hofmeyr. I shall refer to this farm as “the farm”.

3. The first respondent, Cynthia Magaga is a daughter of the late Ndoda Menzi. Ndoda Menzi died on the farm on the 13^th of October 2007.

4. The second respondent, Unathi Magaga, is the son of the first respondent Cynthia Magaga. Both the respondents were resident on the farm with the late Ndoda Menzi as a family unit until the demise of Menzi in 2006. According to the first respondent, staying with them on the farm was a ten year old school-going child who is the daughter of the first respondent.

5. The applicant has in his application cited “all the occupiers of the Riversdale farm” whom he described as “remaining respondents”.

6. On 30 March 2007, the Magistrate Hofmeyr granted an ejectment order against the two respondents and other occupiers of the farm. For reasons unknown to me, the record was not immediately submitted to this court for review purposes. The file was received by the registrar of this court on the 15^th of May 2007. The application which was before the Magistrate was for urgent proceeding for eviction in terms of Section 15 of the Act.

7. Despite the fact that section 19(5) of the Act provides for suspension of any order for eviction pending the review thereof by the land Claims Court, the Magistrate in this matter did not suspend his eviction order.

8. In terms of a warrant of eviction issued by the clerk of the court on the 12^th of May 2007, the two respondents and presumably the so-called “remaining respondents” were thrown out of the farm together with their belongings and livestock. There is no indication of the respondents’ whereabouts at the present moment and no one seems to have bothered as to what happened to them after their removal from the farm.

9. When I received the file for review purposes, I through the registrar, asked the learned Magistrate to furnish me with his submissions in the following terms:-

10. “May I please have the learned Magistrate’s submissions on the following:-

1. Did the Magistrate satisfy himself/herself that all the requirements of section 15(1) (a) to (d) had been proved?

2. In particular, was the magistrate satisfied that the damage caused to the applicant’s property was caused by the respondents? - see paragraphs 40, 42, 46, 49 and 50 of the first respondent’s answering affidavit.

3. Looking at the above mentioned paragraphs 47 and 48 of the first respondent’s affidavit, it appears to me that there were genuine disputes of fact which called for oral evidence.

2. Papers are returned herewith and should please be returned to me with the above requested submissions.”

10. The papers were not immediately returned until I asked the Registrar to write a letter to the Magistrate and ask for the record and all the relevant papers together with his submissions, if any. The request for submissions was made on the 23^rd May 2007. The file and Magistrate’s submissions were received on 04 July 2007.

11. The grounds on which the application for an order of eviction is based are set out in the applicant’s Heads of Argument as follows:-

2. The respondents are not dependants of the late Menzi and have no right to occupy the premises at all.

3. The respondents have hunted with packed dogs on the farm and killed a Steenbok and a Porcupine.

4. Cows have jumped fences and there is no adequate control of the cows and heifers.

5. The respondents have violated a court order and returned a cow that was ejected previously.

6. The respondents have broken wires and smashed locks unlawfully.

7. Dogs roam freely on the farm causing damage to property.

8. The staff of the applicant have been threatened with their lives by the respondents or people under their control.

9. The respondents have removed doors from the property.

10. Wires have been stretched to gain access to the property.

11. Poles have been damaged at the milking shed.

12. Wood is chopped without permission.

13. The applicant and his staff fear for their lives.

15. I shall deal with these grounds later on in my judgment to see if they meet the requirements of section 15 of the Act.

12. The following facts are common cause:-

12. The applicant is the owner of the farm in question.

13. The applicant took occupation of the farm on the 17^th of October 2002.

14. When the applicant took occupation of the farm the 1^st and 2^nd respondents were already resident on the farm.

15. Both the 1^st and 2^nd respondents are members of the family of Ndoda Menzi.

16. Ndoda Menzi passed away on the 13^th of October 2006 leaving the two respondents on the farm.

17. Ndoda Menzi had a designated house which he occupied with his family on the farm.

18. The first and second respondents were born on the farm. The first respondent was born in 1961 and the second respondent in 1986.

19. The applicant bought the farm from the previous owner, one Mr. I. D. Parker.

20. The applicant is farming in Merino sheep.

13. I turn now to deal with the submissions received from the Magistrate. On the question of oral evidence the Magistrate submits that both counsel assured him that the matter could be dealt with on affidavits only and that only argument was to be presented. The Magistrate submits also that he was satisfied that the requirements of section 15(1) (a) to (d) had been met and proved on a balance of probabilities.

14. In the third paragraph of his submission, the magistrate says the following:-

20. “In my opinion the matter deserved to be dealt with effectively. The first respondent in terms of the affidavit makes no secrete of her personal disdain and antagonism towards the applicant. I found it indeed strange that no attempt was made by her of (sic) any of the other respondents to at least attend court- and Advocate Sondlo was at a loss to provide me with any reason at all. To remand the matter seemed impractical as no fixed date could have been arranged due to respondent’s absence”.

15. I do not know why the learned Magistrate is making the adverse inference from the respondent’s failure to attend court since he had not referred the applications to oral evidence. The Magistrate had according to him been assured by the two advocates that the matter could be decided on affidavits supplemented by argument from both counsel. The presence of the respondents at court was not going to make any difference.

16. The right to housing is entrenched in our Constitution¹. Section 26(3) of the Constitution provides as follows;

24. “No one may be evicted from their home, or have their home demolished, without an order of the court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”.

26. In my view, the learned Magistrate did not properly apply his mind to the facts of the case, thereby failing to consider all the relevant circumstances as he was obliged to do in terms of section 26(3) of the Constitution.

17. I turn now to deal with the relevant provisions of the Act. Section 15 of the Act provides:-

28. “(1) Notwithstanding any other provisions of the Act, the owner or person in charge may make urgent application for the removal of any occupier from land pending the outcome of proceedings for a final order, and the court may grant an order for the removal of that occupier if it is satisfied that –

1. There is a real and imminent danger of substantial injury or damage to any person or property if the occupier is not forthwith removed from the Land;

2. There is no other effective remedy available;

3. The likely hardship to the owner or any other affected person if an order for removal is not granted, exceeds the likely hardship to the occupier against whom the order is sought, if an order for removal is not granted, exceeds the likely hardship to the occupier against whom the order is sought, if an order for removal is granted; and

4. Adequate arrangements have been made for the reinstatement of any person evicted if the final order is not granted.

2. The owner or the person in charge shall beforehand give reasonable notice of any application in terms of this section to the municipality in whose area of jurisdiction the land in question is situated, and to the head of the relevant provincial office of the Department of Land affairs for his or her information”.

18. The use of the conjunctive word “and” between paragraph (c) and (d) above, is indicative of the fact that all the requirements from (a) to (d) must be complied with before an order of eviction may be granted in terms of section 15. Satisfaction of only one or some of the requirements is not sufficient.

19. In the fourth line of paragraph two of his submissions the magistrate says:-

32. “The respondent (1^st respondent) admitted at least in part on each of the accusations of damage or potential damage: steenbok and porcupine had been killed, cows did utilize broken fences, dogs were present, doors were damaged and access via the gate was obtained”.

20. The first respondent emphatically denied in her answering affidavit that the second respondent had killed a steenbok and a porcupine. The first respondent even provided the name of the person who killed the animals. The name of that person is Phumzile. The applicant in his replying affidavit had an opportunity to comment on who killed the steenbok but he did not address that question, see paragraph 3.13. 2 of the applicant’s replying affidavit.

35. It appears that the two respondents were not the only people who had access to the farm. This is evident from the applicant’s allegations that there are other “remaining respondents”. What is not clear to me is the reason why the applicant maintains that such other “remaining respondents” were under the control of the two respondents. I do not agree with the Magistrate that the first respondent partly admitted the killing of the steenbok and a porcupine. The first respondent maintained that the animals were killed by Phumzile and that allegation was not disputed in the replying affidavit, consequently the allegation stands.

21. There was no evidence to suggest that the fence was broken by the respondents’ cows. According to the first respondent the cows crossed over the fence which had fallen already since the applicant had not repaired it. Surely, this is not an admission that the respondents or their cows damaged the fence. Again the applicant did not deal with this point in his replying affidavit therefore what the respondent says stays unchallenged.

22. The first respondent admitted she owns two dogs. However it is important to note that according to the first respondent, those two dogs are docile. Indeed there is no suggestion from the applicant that those dogs had attacked or even threatened to attack any person or any of the applicant’s sheep. The applicant did not reply to averments made by the respondent on the aspects of dogs.

23. The first respondent has denied that the door was damaged, she alleges that the door which the applicant refers to, is an old garage door which was long out of use even before the applicant took occupation of the farm. According to the respondent she had to make a hole on the door so as to gain access to the outside world and take her sick father to hospital. She acted in necessity as the applicant had locked the gate denying them access to the farm thereby interfering with their right to residence and freedom of movement. The first respondent has denied that one W.Swart was threatened with death. The applicant also has failed to comment on all the averments made by the first respondent in paragraphs 48, 49, and 50 of his answering affidavit.

24. In my view, the learned Magistrate, with respect, misdirected himself. He should have dismissed the application.

25. I now turn to deal with the grounds on which the applicant based his application. I have already dealt with grounds (b), (c), (e), (f), (g), (h), (i), and (l). Some of the grounds mentioned by the applicant are irrelevant for the purposes of section 15 application, like grounds (d) and (k). Ground “d” is concerned with the violation of a certain court order. “k” is concerned with the chopping of wood without the permission of the applicant.

42. According to the respondent the poles alleged to have been damaged, were damaged when the applicant brought cattle from Hill and Dale when he was trying to separate grown cattle from calves.

26. I want to deal specifically with the first ground raised by the applicant in his heads of argument. The applicant says the respondents are not dependants of the late Menzi and have no right to occupy the premises at all. I do not know how the applicant interprets the word “dependant”. Whatever interpretation is given to this word, the deceased Ndoda Menzi arrived on the farm in 1927, according to annexure AL 14. He was employed by the father of Mr. I.D. Parker, the previous owner from whom the applicant bought the farm in 2002. It seems Mr. Menzi had established a family unit on the farm and he was the head of that family unit until he passed away in 2006. The first respondent was born on the farm in 1961and the second respondent in 1986. The two respondents had a right to reside on the farm with their father. They derived that right from their relationship with their father. Mr. Parker also did not have a problem with their residence on the farm he accepted them. It seems the applicant capitilises on the fact that the respondents could not produce any documentary proof that they were dependent on their father. It is not clear how a person proves dependency by production of a document. Applicant also did not indicate the type of a document he was looking for. In any event, the onus was on the applicant to prove that the two respondents were not the dependants of Mr. Menzi.

27. The averments made by Mr. Parker in this document AL14 that he agreed with the first respondent to vacate the premises after the death of her father, do not take the matter any further. Mr. Parker did not depose to an affidavit to that effect and there is no proof of the existence of such an agreement.

28. In my view, the application did not meet the requirements of section 15 of the Act. In any event, the likely hardship to the applicant if order of removal was not granted did not exceed the likely hardship to the respondents in case the order was granted. No alternative accommodation was available to the respondents. It is safe to assume that they were thrown out in the open cold. A ten year old, school going child was disturbed in her schooling and the removal from the farm might have had an emotional as well as psychological effect on her.

29. In my view the applicant failed to make out a case for eviction of the first and second respondents.

30. In the circumstances I make the following order:-

2. The Magistrate’s order for eviction of the first and second respondents dated 30 March 2007 is set aside in its entirety.

2. The warrant of ejectment of the first and second respondents issued by the clerk of the court on 12 April 2007 is set aside.

2. Pending finalization of any proceedings in terms of section 9 of the Act, The first and second respondents’ right of occupation on Riverdale farm is restored.

2. The first and second respondents, with their children, belongings and livestock are reinstated in the premises which they occupied before the ejectment.

2. No order is made as to costs.

_________________________

ACTING JUDGE T. NCUBE

For the applicant:

Wheeldon Rushmere & Cole Attorneys

For the respondents:

Zepe & Company Attorneys