IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at DURBAN on 22 September 1999 before Bam P and Moloto J In the case between: CASE NUMBER: LCC139/98 E WOERMAN and SIKHOVA OBED MASONDO ENOCH SHABANGU MHLOMELENI AMOS KHUMALO Applicant First Respondent Second Respondent Third Respondent JUDGMENT MOLOTO J: Introduction [1] This is an application for leave to appeal against the judgment of this Court handed down on 4 August 1999 in an appeal by the respondents against the judgment of the Magistrate’s Court, for the district of Vryheid. The facts are set out in my judgment and I do not intend repeating them. [2] Respondents appealed to this Court against the judgment of the Magistrate declaring them not to be labour tenants in terms of the Land Reform (Labour Tenants) Act1 (hereinafter referred to as the “Labour Tenants Act”). This Court upheld their appeal. Applicant now applies for leave to appeal to the Supreme Court of Appeal against the judgment of this Court. The grounds of appeal are set out as follows: - “1. The Learned Judges erred in holding that the First, Second and Third Respondents are Labour Tenants as defined in Section 1(xi) of the Land Reform (Labour Tenants) Act, 3 of 1996 (“the Labour Tenants Act”), and in particular by finding that the Respondents have satisfied the requirements set forth in paragraph (b) of the definition of Labour Tenant in Section 1(xi) of the Labour Tenants Act. 1 Act 3 of 1996, as amended 2 2. The Learned Judges erred in finding that the First, Second and Third Respondents are not farmworkers, in particular if regard is being (sic) had to the fact that the onus was on the First, Second and Third Respondents to prove that they were not farmworkers.” I propose dealing with each ground of appeal separately. First ground of appeal [3] Argument in support of the first ground of appeal with respect to first respondent was as follows: (1) Normally the value of the right of residence referred to in paragraph (a) of the definition of labour tenant must be added to the value of cropping and grazing rights referred to in paragraph (b) of the definition, when comparing these values with the cash or kind remuneration referred to in the definition of farmworker.2 However, in this case the value of the right of residence must be excluded, because at the time of entering into the contract of employment, the right to reside on the farm was not given to the first respondent in consideration of labour. (2) The labour that first respondent provided to applicant’s late husband was a “piece job”, hence does not qualify as “provision of labour” as contemplated in the Act. [4] I do not agree with these arguments. Firstly, to argue that the value of the right to reside must be excluded because that right was not given in consideration of labour contradicts section 2(6) of the Labour Tenants Act which stipulates: “for the purpose of establishing whether a person is a labour tenant, a court shall have regard to the combined effect and substance of all agreements entered into between the person who avers that he or she is a labour tenant and his or her parent or grandparent, and the owner or lessee of the land concerned.”(my emphasis) 2 This comparison is made when determining whether a person is a labour tenant or a farmworker 3 Clearly the Court is not going to look only at the beginning of the relationship between the parties, the Court must rather consider the entire relationship, including the fact that in time, respondent provided labour. Applicant’s late husband did not ask a third party who lived elsewhere to come and provide labour on the farm. He asked respondent, who was residing on the farm, to provide the necessary labour. When the Court considers the relationship it must take into account the combined effect and substance of the agreements between the parties. It is common cause that applicant’s late husband allowed first respondent to reside on the farm and that the first respondent provided labour to him. [5] Secondly, the argument that the labour provided was “piece work” and, therefore, did not qualify as “provision of labour” in terms of the Act, must fail simply because the Act does not prescribe a minimum quantity or quality of labour to be provided to qualify as “provision of labour.” It is interesting to note the difference in the terminology used in the definition of a farmworker. A farmworker is a person who is employed in terms of a contract of employment and is paid predominantly in cash. (my emphasis). None of the emphasised terms are used in the definition of “labour tenant”. Second ground of appeal [6] The second ground relates to the finding that respondents are not farmworkers and the fact that respondents bore the onus of showing that they were not farmworkers. It was argued that they had not discharged this onus, because they failed to adduce evidence of the value of rights they enjoyed in comparison with the cash or kind remuneration they received; as was done in Mahlangu v De Jager3 (the Mahlangu case). This argument does not take into account the reservations expressed in the Mahlangu case, namely that the valuation given was that of the land and not the right to graze and crop.4 Mr Roberts, for the applicant, rightly conceded, in my view, that the value must be from the point of view of the tenant.5 The other reservation expressed in 3 4 5 [1999] 1 All SA 691 (LCC) Mahlangu above n 3 at 701i. Which does not mean that I am advocating a subjective test. I am satisfied that the test must always be an objective one. See the comments of Van Zijl J in Gallman v Dombrowsky 1973 (2) SA 261 (c) at 263. 4 the Mahlangu case relates to the difficulty of valuing the non-economic right of residence,6 or the security and peace of mind afforded by the “hearth and home”.7 I do not take the Mahlangu case to be the only way in which labour tenant cases should be resolved. [7] The argument further went on to say that certainty on the question of onus should be obtained from the Supreme Court of Appeal. Had I come to the conclusion that the onus rested on the applicant, I could understand the need to allow the Supreme Court of Appeal to clarify the matter. As that is not the case8, I see no reason to refer the matter to the Supreme Court of Appeal for consideration based on that argument. [8] Following the Supreme Court of Appeal’s approach in the Salimba9 judgment (“the Salimba appeal”), this Court came to the conclusion that the remuneration, whether in cash or kind, received by the respondents over time was so minimal that it was clearly outweighed by the right to reside and graze or crop. On this point, Mr Roberts argued that this Court must be careful not to elevate a single statement in the Salimba appeal, that notwithstanding the paucity of evidence on the value of the rights in question they clearly outweighed the cash or specie remuneration, to the status of a legal principle. I agree with this statement. However, as was clear from my judgment, I was satisfied that, on the facts before me, because the minimal remuneration paid to the respondents was so small, it was outweighed by the right to reside and graze or crop. I would be extremely surprised if there were instances to be found where a labour tenant’s remuneration in cash or kind would outweigh the value of the right of residence which, embodies inestimable values like security, dignity and privacy. 6 7 8 Mahlangu above n 2 in the judgment of Meer J at 707 - 711 Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg [1999] 2 All SA 491(A) at 510 Masondo and Others v Woerman, LCC139/98, 4 August 1999, as yet unreported. Internet web site address : http://www.law.wits.ac.za/lcc/1999/masondosum.html at para [51] Above n 7 9 5 General test in applications for leave to appeal [9] The general test in applications for leave to appeal is whether or not the applicant has a reasonable prospect of success on appeal.10 It is always difficult to determine whether an applicant has a reasonable prospect of success on appeal when one is called upon to question one’s own judgment. However, we are dealing with nascent jurisprudence and it is in the interests of justice to make the application of the law as certain as possible for those who are expected to apply it. In addition the cash amounts in this case and in the Salimba appeal are different hence one must find that another court might reach a different conclusion. In the circumstances I intend granting the applicant leave to appeal. [10] The order I make is a general one, not limited only to the above grounds of appeal. Order [11] I make the following order: (1) the application is granted; (2) there is no order as to costs. __________________ JUDGE J MOLOTO I agree _________________ JUDGE F BAM 10 Botes and another v Nedbank Ltd 1983 (3) SA 27 (A) at 28 6 Heard on: 22 September 1999 Handed down: 11 October 1999 For the applicant: Adv M G Roberts instructed by Cox & Partners, Vryheid For the respondents: Adv C G Van der Walt instructed by Loots Attorney, Pietermaritzburg