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Joubert v Hendricks and Another (LCC55/05) [2007] ZALCC 6 (19 March 2007)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC55/05

Before: Bam P & Pienaar AJ

Decided 19 March 2007

In the appeal between:

VALERIE JOUBERT Appellant

and

MICHEAL HENDRICKS 1^st Respondent

KATHLEEN HENDRICKS 2^nd Respondent

__________________________________________________________________________________

JUDGMENT

[1] This is an appeal against the decision of the magistrate in Stellenbosch on 28 June 2005 dismissing an application for an eviction order in terms of Extension of Security of Tenure Act 62 of 1997 (‘the Act’). In the court a quo the appellant (then the applicant) lodged an application for the eviction of the respondent and all persons who derive their right of occupation through him. The applicant is the owner of the property- Portion 1 of the farm no 01324/08 in the municipality of Stellenbosch. The respondent and his wife occupy a house on the property with their family of four children and a grandchild.

[2] The respondent’s right of residence arose solely from a contract of employment entered into between the applicant and the respondent during 2002. The respondent had, however, occupied the land since 1990. Although the employment contract had not been signed by the first respondent, both parties had acted in accordance with its terms and it could thus be concluded that a tacit agreement had in fact been concluded between the appellant and the first respondent.

[3] The application before the magistrate consisted of three sets of affidavits-the founding and replying affidavits of the applicant and the answering affidavit of the respondent. Both parties were legally represented.

[4] The essence of the case before the magistrate, which indeed was also the central theme in this appeal, is whether or not the applicant has fulfilled the threshold requirements of section 8 of the Act¹ for terminating the respondent’s right of residence. In turn, the termination of the right of residence as a prerequisite to an order of eviction is made obligatory in terms of section 9 (2)(a) of the Act in these terms:

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

(a) the occupier’s right of residence has been terminated in terms of section 8”

[5] As to be expected, the affidavits emanating from the applicant were to the effect that there had been compliance with the section 8 requirements, whereas the import of the respondents’ affidavit was to the contrary. Apart from the differences in interpretation there were also factual disputes both material and immaterial to the issue. There we, however, sufficient facts that were common cause for a picture to emerge from which a decision could be derived.

[6] It is common cause that the respondent is an ‘occupier’ (as defined by the Act) who has resided on the farm Waterloo owned by the appellant for the past 15 years. The appellant runs a business on the farm on which the respondent was employed until 25 August 2004. On that day the respondent was dismissed from his employment following upon an allegation of theft of farm property.

[7] The appellant, in her affidavit in reference to the theft, makes a bald statement that

”’n Behoorlike dissiplinêre verhoor het plaasgevind onder die voorsitterskap van ‘n

onafhanklike persoon en daar is voldoen aan al die vereistes soos gestel deur die Wet op

Arbeidsverhoudinge.”

This is denied by the respondent in these terms;

“Ad Paragraph 9- The contents thereof are denied to the extent that the dismissal of the First

Respondent had not been in compliance with the Labour Relations Act as averred, and it was for exactly this reason that the dispute of Unfair Dismissal was lodged at the CCMA, as confirmed by the Applicant in paragraph 10 of her founding affidavit.”

[8] The dispute as to whether the dismissal was in accordance with the provisions of the Labour Relations Act could only have been resolved by the production of the record of the proceedings of the disciplinary enquiry which was not made available and so the magistrate was not able to make a determination in that regard.

[9] Section 8(3) of the Act regulates the situation where there is precisely the problem that arose here as set out in paragraphs 7 & 8 above. It provides that such a dispute shall be dealt with in accordance with the provisions of the Labour Relations Act and that actual termination shall take effect when that dispute has been determined in accordance with that Act. This effectively stalls the eviction process until finalization of the dispute.

[10] It was common cause that the dispute had then been referred to the CCMA and that on 16 December 2004 the CCMA negotiated a settlement agreement between the parties. What is contested is whether the settlement agreement between the parties put finality to the dispute over the termination of right of residence in terms of section 8. Again the magistrate could not tell from the terms of the agreement whether or not finality of the dispute over the dismissal had been reached. This was because the terms of the settlement agreement related only to cash payments and to dates of vacating the farm cottage which was the subject of the proceedings for eviction in terms of the Act. According to the settlement agreement the applicant was to pay an amount of R5000 in two installments to the first respondent (on 31 January 2005 and again on 28 February 2005). The first respondent had to vacate the property at the latest on 28 February 2005. The appellant averred that the first respondent accepted the first payment, but rejected the second payment and consequently refused to vacate the property.

[11] The impasse sketched in the preceding paragraph might conceivably also have been resolved by the issuing of a certificate from the CCMA to the effect that the agreement was a final determination of the dispute over the dismissal. Such a certificate was not filed or made available. Instead, apart from the settlement agreement itself having been entitled “Without Prejudice”, it was common cause that it had been repudiated by the respondent who refused a second payment and did not vacate the premises.

[12] Now faced with a double dilemma, and with reference to the case Jaco Hough Boerdery Trust v Paul Smith & 3 others (LCC15R/04) the court a quo found that it was not in a position to find that the disciplinary procedures were fair, as required by section 8(1)(e) of the Act in arriving at its decision.

[13] Although, during the hearing of the appeal in this matter, the court became acutely aware of the deeper implications of the issues for the proper demarcation of the sphere of operation of the ordinary courts on the one hand as against the various fora and institutions of the Labour Relations Act on the other, the court has resisted the temptation to plunge into this unchartered territory for the time being and to confine itself to the narrow grounds set out in the notice of appeal.

[14] Although only two grounds were mentioned in the notice of appeal, a third argument surfaced during the hearing on appeal and has been addressed in paragraphs 9-11. It relates to whether or not the settlement agreement brought finality to the dispute involving fairness of the dismissal.

[15] The first ground of appeal was that the court a quo erred in applying section 8(1)(e) of the Act. It was submitted that the section does not apply to disciplinary enquiries leading to dismissal and that these are the preserve of the Labour Relations Act in terms of sections 8(2) and 8(3) of the Act.² To the extent that the court a quo was obliged to consider the fairness of the disciplinary enquiry and the dismissal it had to do so with reference to the provisions of the Labour Relations Act and not in terms of section 8(1)(e) of the Act. This submission was elaborated during argument and it was argued that the court a quo should in fact apply the Code of Good Practice of the Labour Relations Act.

[16] The submission paraphrased in the above paragraph was not backed up by any authority nor was this court able to find any on its own. On the face of it the submission implies that the full operation of section 8(1)(e) must be suspended once an occupier in terms of the Act is one whose right of residence is dependent on an employment agreement and has been dismissed following upon a disciplinary enquiry. Another implication is that, should that be the case, then the court that is seized with the matter, albeit the magistrate’s court or this court, may now, however briefly, adorn the mantle of the structures within the Labour Relations Act and determine whether there has been compliance or not with the Code of Good Practice of the Labour Relations Act.

[17] The short answer is that section 9 2(a) makes it obligatory to apply section 8 of the Act and there is nothing in the Act itself to justify the exclusion, wholly or partially, of the application of section 8(1)(e) in favour of the application only of sections 8(2) and 8(3). However, the shorter and even more pertinent answer is that there is ample authority that when considering whether the granting of an eviction order is just and equitable, all relevant circumstances may be considered.³

[18] In regard to the second ground of appeal, the fact of the matter is that the court a quo did not have a record of the disciplinary hearing and only had the disputed and bald assertion of an interested party and not that, of the officials participating in the disciplinary enquiry including that of the independent presiding official. In that event, even if the court a quo had the capacity to apply the Code of Conduct of the Labour Relations Act there was no reliable evidence to reach a conclusion one way or another. There is accordingly no substance in the submission that the court a quo erred in finding that the disciplinary procedure adopted by the appellant was not fair or that the court a quo was not in a position to determine that it was fair.

[19] In summing-up. None of the grounds set out in the notice of appeal are upheld and the refusal of the court a quo of the application for the eviction of the respondent is confirmed.

(i) The court a quo was obliged to apply all the relevant parts of section 8

in determining if the respondent’s right of residence had been

terminated in terms of that section.

2. In the absence of credible proof on a balance of probabilities or of any record or certification of the procedures in the disciplinary enquiry, the court a quo was not able to pronounce the termination as just and equitable.

3. The ‘Without Prejudice’ settlement agreement signed at the CCMA is not a final determination of the dispute over the termination in terms of the provisions of the Labour Relations Act. Even as an ordinary contract it was repudiated with a clear intention not to be bound.

[20] Order:

The appeal is dismissed with costs.

_______________________

BAM P

Acting Judge Pienaar concurred

__________________

PIENAAR AJ

LAND CLAIMS COURT

For the Appellants:

PH Cronje, instructed by Cronje Incorporated Attorneys

For the respondents:

OP Luvuno instructed by Lawyers for Human Rights