---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC 26R/02
In chambers: BAM JP MAGISTRATE'S COURT CASE NUMBER: 5655/02

Decided on: 11 September 2003

In the review proceedings in the case between:

SMITH SJPK, Applicant
and

KGOLENG NE, First respondent

SHIBA UF, Second Respondent

SHIBA SV, Third Respondent

KGOLENG K, Fourth Respondent

JUDGMENT

BAM JP:

[1] This matter came before me on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act¹ (hereinafter referred to as "ESTA").

[2] I set aside the order granted by the Magistrate, Nelspruit in its entirety and indicated that I would give reasons in due course.

[3] The applicant, in this case, had applied by Notice of Motion to the Magistrate's Court in Nelspruit for an order evicting the respondents from the farm Voorentoe (Portion32) and Portion 17 of the farm Hermannsburg situated in the district of Nelspruit. The application initially was supported only by the founding affidavit of the applicant and also by a confirmatory affidavit of one J Nadler.

[4] A notice of intention to oppose was filed by the 1^st respondent and supported by an opposing affidavit from her dated 10/05/02. A further "answering affidavit" was filed by her dated 26/06/02. These affidavits prompted the applicant to file yet two more affidavits in support, namely one from Yvonne Nadler and another from Liselle Bruwer. I still do not understand or appreciate the admissibility or not of this unorthodox sequence of filing affidavits save to say that they did not add value to the original affidavits on either side.

[5] The decision subsequently taken by the Court a quo, that the matter proceed on viva voce evidence, exacerbated matters and unleashed the chaos that is evident from the record of proceedings. It led to unnecessary complications and obfuscated the real issues.

[6] The reason given for pursuing such a procedure is unconvincing and unprecedented. The magistrate states that it was to prevent a piecemeal adjudication of the issues simply because the legal representatives for the respondent had taken three points in limine. In fact, it was counter productive and had precisely the opposite effect resulting in a record of proceedings totalling almost 900 pages.

[7] There is abundant authority against the habit of turning matters into trials which were brought as applications to be decided on affidavits. It should be permitted only when there are material and substantial factual disputes essential to making a decision². The taking of points in limine did not constitute a dispute on the facts necessary to grant or refuse an order for eviction in the present case. They were points of law relating to jurisdiction and procedures.

[8] Although much effort and labour was expended by the legal representatives on both sides, there is very little of merit or enlightenment that I was able to find as there was too much quibbling and wrangling on petty and irrelevant points. It was a classical case of where 'the mountains laboured and produced a mouse'. The approach, on the part of applicant, was to throw as much dirt and mud at the respondent in the hope that some would stick. Equally, on the part of the respondent, the approach was to take up defensive positions on every conceivable and inconceivable point also in the hope that one or another might succeed.

[9] It is only in the magistrate's judgment that I was able to discern a logical pattern of legal reasoning but whose conclusions I have found unacceptable nonetheless.

[10] The factors for determination in this case were largely common cause and capable of decision without the posturings of calling unnecessary witnesses and of lengthy and inane examinations and submissions including the identification of '32 contradictions'. The issues for determination are set out almost exhaustively in sections 9(2) and (3) of the Act. It is stated in section 9(2) that an occupier may be evicted firstly if the occupier's right of residence has been terminated in terms of section 8. That section reads as follows:

8 Termination of rights of residence

(1) Subject to the provisions of this section, an occupier's right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to-

(a) The fairness of any agreement, provision in an agreement or provision of law on which the owner or

person in charge in charge relies;

(b) The conduct of the parties giving rise to termination;

( c) The interest of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned, and any other occupier if the right of residence is or is not terminated

(d) The existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time ;and

(e) the fairness of the procedure followed by the owner or person in charge, including whether

or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence.

[11] It is common cause that a letter of termination had been sent to the respondents (dated 29 January 2002) by the attorneys acting on behalf of the applicant. The grounds for the termination were that the respondents' occupation was without the consent of the applicant; that the first respondent was a sangoma and ran a shebeen; that as such a lot of traffic from his customers is created on the applicant's farm and that some of these customers had engaged in conduct which posed a threat to the legal tenants. Furthermore, the letter stated that the respondents littered the farm with garbage, destroyed trees for firewood, kept two dogs ridden with disease, killed small animals for muti in the sangoma practice and caused material damage to the farm. The applicant was in the process of converting the farm to a game farm and consequently could not tolerate the respondents' occupation. What is more, the applicant had information that the respondents had alternative accommodation in Barberton.

[12] The magistrate painstakingly sought verification for all these allegations from the witnesses called by the applicant. He found them all to be true though he conceded that most of the evidence in respect of some of the issues was hearsay. The magistrate then immediately jumped to the conclusion that there was, therefore. lawful termination of the respondents' right of residence and compliance with section 9(2)(a) of. I do not agree. The magistrate failed to enquire whether any or all of these allegations, even if true, constituted a lawful ground for termination or whether that termination was, therefore, just and equitable. In my view, it is manifestly unjust to deprive someone of hearth and home simply because their way of life is distasteful to the owner or person in charge of the property³. In particular, the magistrate failed in not having regard to sections 8(c) and 8(e)⁴ which were relevant to the case before him. In this he erred and, on that score alone, the order he gave cannot be confirmed.

[13] The nextlegis to determine, in terms of section 9(2)(b), whether the occupier has not vacated the land within the period of notice given by the owner or person in charge. It was common cause that notice had indeed been given and that the respondents had nonetheless, failed to vacate the land.

[14] Section 9(2)(c) requires determination into whether the conditions for an order in terms of section 10 or 11 have been complied with. It was common cause that the respondents in the present case were in occupation already on 4 February 1997 and that provisions of section 10 rather than of section 11 applied.

[15] Section 10( 1) allows that the Court may evict an occupier in the category of the respondents if such occupier has breached prohibitions of section 6(3) and if the Court is satisfied that the breach is material and has not been remedied. Section6(3) provides that:

"An occupier may not-

( a) intentionally and unlawfully harm any other person occupying the land:

(b) intentionally and or unlawfully cause material damage to the property of the owner or
person in charge;

(c) engage in conduct which threatens or intimidates others who lawfully occupy the land or other land in the vicinity; or

(d) enable or assist unauthorised persons to establish new dwellings on the land in question."

[16] The magistrate's finding as to whether there had been a breach of section 6(3) was truly ambiguous. On the one hand, the Court states that although there is no evidence to substantiate that there has been a transgression of any of the prohibitions of section 6(3), it nonetheless has to take into account irrelevant evidence from witnesses who opine that the other lawful residents are afraid to go out at night because of fear of the respondents' visitors. Also the same witnesses, although not sure, thinks that the respondent had once come out of her house and sworn at him. I cannot confirm an order motivated in this fashion

[17] Section 10(l)(c) states that the occupier must have committed such a fundamental breach of the relationship between her and the employer that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship. This is a very difficult test toapply especially when it does not relate to an employment relationship. The section primarily envisages the breakdown of asocial rather than a legal relationship. In other words, the mere fact that the parties are involved in eviction proceedings, ought not to be construed as indicative of a breach of relationship impossible to remedy. On the other hand the theft and slaughter of some of the applicant's sheep might indeed constitute such a fundamental breach. Do any of the habits attributed to the respondents (listed in the letter of termination⁵) constitute such a fundamental breach of the relationship? I do not think so. In my view the section refers to words and deeds of deep animosity and constant mistrust. The magistrate has formed an impression that the applicant and the respondent will never be able to have an amicable and workable relationship because of certain negative attitudes on her part. That is not the test. There must be the committing of an act which is practically impossible to restore.

[18] The requirements of section 9(2)(d) have been complied with and it appears from the evidence that the language used in the notices did not occasion any prejudice to the respondents.

[ 19] The situation now brings us to consider the provisions of section 10(2) which are to the effect that the Court may still grant an order for eviction if it is satisfied that suitable alternative accommodation is available to the occupier. This is a question that could have been established objectively and without squeezing bits and pieces of hearsay from witnesses or bludgeoning the respondent in cross examination as if in a criminal trial. Quite clearly the respondent was being evasive on the issue whether or not she had a piece of land in Zeerust, but that does not lead ipso facto lead to the conclusion that she has suitable alternative accommodation there nor does it establish malice. An approach more sensitive to equity and the values enshrined in the Bill of Rights would have been to have a search conducted of property that might have been registered in the name of the respondent in Zeerust or Barberton. This can still be done because property cannot be hidden.

[20] I deal finally with the cost order which is clearly inappropriate. Costs de bonis propriis against attorneys are awarded in serious cases, such as dishonesty⁶. The mere fact of inexperience, muddled thinking, excessive or pointless cross examination and a misconception of one's appropriate remedies can never form the basis of the cost order granted in this case. It is true that much time was wasted dealing with a weak and irrelevant defence that the respondents were labour tenants. However, by far the greatest waste of time was occasioned by the Court itself in allowing matters that should have been decided on papers to go to trial. Nor has the applicant's attorney in this case been free from blame in the matter of excessive and over-zealous argumentations. Consequently I find that there is no reason to depart from the usual practice in this Court of not making a cost order.

JUDGE PRESIDENT F C BAM

For the respondents:

Justice Centre

NELSPRUIT

NELSPRUIT

For the applicant:

Buitendag, Townsend Attorneys

Fax No: (013) 752 3947 Fax No : (013) 755 1540

CC 26R/02

Smith v Kgoleng & Others

(11 September 2003)

An eviction order was granted in the Magistrate's Court. Nelspruit. under the Extension of Security of Tenure Act. 1997 ("EST A"). The case was sent to the Land Claims Court for automatic review-in terms of section 19(3) of ESTA.

The reviewing judge found that both the applicant's and the respondent's legal representatives quibbled on petty and irrelevant points. Both parties followed an unorthodox procedure in the sequence of filing of affidavits which resulted in unnnecessary complications and caused confusion on the real issues at hand.

A letter of termination had been sent to the respondents by the attorneys acting on behalf of the applicant. Several grounds for the termination were set out in this letter. The magistrate found these grounds to be true although he conceded that some of the issues were hearsay. He then erred in that he assumed that there was lawfull termination of the respondents' right of residence and compliance with section 9(2)(a) of ESTA. He failed to enquire whether any or all of the allegations constituted a lawful ground for termination and whether termination was just and equitable.The reviewing judge found that on this score alone, the order could not be confirmed.

It was furthermore held that the respondent did not vacate the land within the prescribed period in terms of section 9(2)(b). Section 9(2)(c) requires determination into whether conditions for an order in terms of section 10 and 11 have been complied with. It was common cause that the provisions of section 10, rather than 11 applied. Section 10(1) allows that a court may evict an occupier if such occupier has breached the prohibitions of section 6(3). It was held that the magistrate's finding that there had been a breach of section 6(3) was ambiguous.

Furthermore, the reviewing judge found that the test prescribed in section 10( I )(c) that an accupier must have committed such a fundemental breach of the relationship between him and the employer that it is impossible to remedy it, was erroneously applied. It was held that the habits of the respondents did not cosntitute such a fundamental breach.

No cost order was made. The Court set aside the eviction order.

Kindly note that-

1. this summary has been prepared by the staff of the Land Claims Court to assist the parties:

2. it does 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.

---