IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER 51/03
Heard at JOHANNESBURG on 25 August 2003 
before Gildenhuys J
In the matter between:
JAMBLOED PHAKATHI						First Applicant
LIZZIE PHAKATHI							 Second Applicant
THOKOZANE PHAKATHI						 Third Applicant

SIFISO PHAKATHI							 Fourth Applicant

MAREZA PHAKATHI							Fifth Applicant

MAPOPANE PHAKATHI						Sixth Applicant

and
VAN VOS LENS PROPERTY DEVELOPMENT CC			Respondent

JUDGMENT

GILDENHUYS J:

[2] Van Vos Lens instituted an action in this Court in case no 51/2002 against the Phakati family for their eviction from the farm The action was not defended. On 17 June 2003 I gave default judgment against the Phakati family as follows:

"1. 	Die Eerste tot Sesde Verweerders sow el as hut familielede en Eerste Venveerder sc geassosieerdes word hiermee gelas om die plaas Ondcrverdeling 2 van "Kommissiekraal". ook bekend as “SaagkuiJsnek". Distrik  Utrecht. ic ontniim tesame met hullevee en goedere teen nie later nie as 30 Junie 2003

[3] According to a return of service forming part of the record, the Deputy Sheriff purported to serve the eviction order on Mr Jambloed Phakathi on 20 June 2003 -

"deur die oorspronklike bevel aan Jabulani Phakathi vvoonagtig saam met verwecrder Jambloed Phakathi "'n persoon vermoedelik nie jongeras 16 jaar te toon. 'n afskrif aan horn te oorhandig en terselfdcrtyd die aard en ems van die saak aan horn te verduidelik."

Mr Jambloed Phakathi alleged that the sheriffserved legal documents on his 15 year old daughter Sesi Phakathi during July 2003, and told her that the Phakathi family'must leave the farm. Mr Jambloed Phakathi does not know who Jabulani Phakathi is.

[4] On 16 July 2003 Van Vos Lens, through the sheriff, evicted the Phakathi family from the farm. They were moved in a truck belonging to Van Vos Lens to the Wakkerstroom area. They now live in informal structures erected on land which a local family allowed them to occupy on a temporary basis. Their erstwhile dwellings on the farm were demolished by Van Vos Lens.

[5]   By Notice of Motion dated 12 August 2003 the Phakathi family applied for the following relief:

"l.
2.	That the default judgment granted against the Applicants herein on 17 June 2003 incase number; 	LCC51/02 is hereby rescinded, and the Applicants are granted leave to defend the proceedings.

4       	 Further, other or alternative relief."

[7] Mr Jambloed Phakathi alleged that he first became aware of the eviction order against his family in early to mid July 2003, after the sheriff told his daughter that the family must vacate the farm. The legal document served on Sesi Phakathi was in Afrikaans, which nobody in the family could understand. Mr Jambloed Phakathi's wife handed the document to another resident on the farm, a Mr Shabangu, who undertook to take it to the Department of Land Affairs and to get the Department's assistance. Before that could happen, and on 16 July 2003, the Phakathi family was evicted.

[8] It is common cause that, at least until shortly before his eviction, Mr Jambloed Phakathi was a labour tenant as defined in the Land Reform (Labour Tenants) Act. He sets out his family's defence against the eviction application as follows:

"16.3.1 	As mentioned above. I am a 'labour tenant' and the other Applicants are my "associates' as defined 	in Act 3 of 1996. As such we may only be evicted in circumstances referred to in section 7(2) of the 	said Act. I deny that the peremptory circumstances contemplated in that section exist in this 	matter, in that:

(b)	I deny that I or the other applicants are guilty of having committed such a material bread) of the relationship between us and the Respondent such that it is not practically possible to remedy it. either at all or in a manner which could reasonably restore the relationship. As stated above, the Fourth Applicant is the only person to have been found guilty of a criminal offence, and in any event he denies that he is guilty thereof. Even in the event of indeed being guilty. I respectfully submit that the charges are not of such a serious nature that they would constitute such a material breach of the aforesaid relationship. I submit that the sentence handed-down to the Fourih Applicant in this regard relatively is indicative of this fact.

"Nadatdie Derde. Vierde en Vyfde Applikante gearresteer was op die aanklagte van huisbraak met die opset om te steel en diefstal. het Derde Applikant opgehou om diens te iewer en net die huurarbeidersooreenkoms tussen Respondent en die Eerste Applikant tot "n eindegekom. Die verhouding tussen die Respondent en die Eerste Applikant is onherstelbaar geskaad deur die optredes van die gemelde Applikante, Eerste Applikant het die huurarbeidersooreenkoms geabandoneer en geeneen van die Applikante het ooit weer gewerk nie. Hulle het ook geen dienste getender nie."

case 

[13]   In all of the above cases, a specific order for the restitution of possession was prayed for and given. Mr Goddard, who appeared for the Phakathi family, asked for such an order under the prayer for alternative relief Mr de Wet objected. He submitted that the issues relating to an order for the restoration of possession have not been fully canvassed in the affidavits. There are merits in Mr de Wet's submission. The dwellings which the Phakathi family occupied, were demolished If possession is restored to the family, where will they live? If the dwellings have to be rebuilt, who must rebuild them? May the Phakathi family take building materials (such as thatch) from the farm. In the light of the deteriorated relationship between the parties, Van Vos Lens may decide to bring a counter application under section 15 of the Land Reform (Labour Tenants) Act to secure the absence of the Phakathi family from the farm pending the outcome of proceedings for a final order in case no 51/2002.

(My underlining)

 

"	appear to have manifested a complete disinterest in the conduct of the case after the interim

J held that the purpose of the High Court rule dealing with the rescission of default judgments -

In my view, the same reasoning applies to Rule 58 of the Land Claims Court Rules.

[22] I have quoted the defence put up by the Phakathi family members against their eviction from the farm in some detail earlier in this judgment. The defence is not far-fetched or fanciful. If the averments are proved, it would entitle the family to continue living on the farm, It is clear from the facts of this case that the family never acquiesced in the eviction, and at all relevant times intended to avail themselves of their rights under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act. ,

[23] In my view, the application for the rescission of my order of 17 June 2003 must be granted. The Phakathi family should, however, be ordered to pay the wasted costs of Van Vos Lens, being the costs of obtaining the default judgment and for implementing the eviction on 16 July 2003 (including the sheriffs costs). Such costs have become wasted through no fault of Van Vos Lens, and it is not fair that Van Vos Lens should pay it. Apart from such order, and in line with the usual practice of this Court, no order as to costs will be made

[24]    It is ordered as follows:

(I)	The default judgment granted against the applicants herein on 17 June 2003 in case number LCC 51/02 is hereby rescinded, and the applicants are granted leave to defend the proceedings.

(iii)     No order is made as to the costs of this application

3 SEPTEMBER 2003

For the Applicants:

For the Respondent:

LCC51/03

JAMBLOED PHAKATHI AND 5 OTHERS v VAN VPS LENS PROPERTY DEVELOPMENT CC

The case concerns an application for the rescission of judgement taken against the applicant, his wife and 4 children. The respondent instituted action in the Landclaims Court in case no 51/2002 against tha Phakathi family for their eviction from the farm Subdivision 2 of Kommissiekraal (also known as Saagskuilsnek) of which the respondent is the owner. The action was not defended. On 17 June 2003, Gilderthuys J granted default judgement against the defendants. The applicants were evicted from the farm.

The Phakathi family brought an urgent application for rescission of the mentioned judgement which application was defended. A significant fact is that a meeting was held between Mr Jambloed and Mr Mbugisa, a member of the Natal proffessional legal team of the Natal University's Campus Law Clinic, during which meeting. Mr Phakathi instructed Mr Mbugisa to defend the action. Mr Mbugisa later stated that he forgot about the meeting mentioned above and in error omitted to carry out his mandate to defend the action.

The Phakathi family raised several issues in their defence against eviction from the farm. They for example alleged that they only became aware of the eviction order against them in early to mid July 2003. after the sherriff told the family that they must vacate the farm. Mr Phakathi was a labour tenant as defined in the Land Reform (Labour Tenants Act) until! shortly before his eviction. The respondent alleged that the rescission application was brought out of time but the late filing thereof was condoned.

Gitdenhuys J found that the defence put up by the Phakathi family was not far-fetched and not fanciful. He furthermore found that the family at all relevant times intended to avail themselves of their rights under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act.

The aplfication for rescission was granted but the applicants were ordered to pay the the costs of the repondent for obtaining default judgement and for implementing the eviction as such costs became wasted through no fault of the respondent. The applicants were fttrthemore granted leave to defend the proceedings.

Kindly note that-
1.	this summary has been prepared by the staff of the Land Claims Court to assist the parties:
2.	it dues not form part of the Court's reasons for judgment;
3.	the Department of Justice, the Court and its staff cannot accept any liability for any loss resulting from reliance on this document.