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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NO. LCC 76 / 05

In the matter between:

AMFARMS REALISATION COMPANY LIMITED First Applicant

ANGLO AMERICAN FARMS LIMITED Second Applicant

BOSCHENDAL (PTY) LIMITED Third Applicant

and

MAMALAYIKHO HONTYI First Respondent

LINDELE MATEBESE Second Respondent

NKOSINCEDILE VIKILAHLE Third Respondent

DYAKOPHU NTUSE Fourth Respondent

CASE NO. LCC 77 / 05

In the matter between:

ANGLO AMERICAN FARMS LIMITED First Applicant

ALLEË BLEUE (PROPRIETARY) LIMITED Second Applicant

and

DANIE CLAASEN First Respondent

MAGDELENE SIMONS Second Respondent

JOHANNA GEORGE Third Respondent

PATRICIA ZUKULU Fourth Respondent

LENA CLAASEN Fifth Respondent

CASE NO. LCC 78 / 05

In the matter between:

ANGLO AMERICAN FARMS LIMITED First Applicant

RHODES FOOD GROUP (PTY) LIMITED Second Applicant

and

NOSISILE JOSEPHINA LUFEFE Respondent

CASE NO. LCC 79 / 05

In the matter between:

ANGLO AMERICAN FARMS LIMITED First Applicant

BOSCHENDAL LIMITED Second Applicant

and

MOOS WILLIAMS First Respondent

FREDERICK OOSTHUIZEN Second Respondent

KOOS DE JAGER Third Respondent

CASE NO. LCC 80 / 05

In the matter between:

ANGLO AMERICAN FARMS LIMITED First Applicant

KOVACS INVESTMENTS 554 (PROPRIETARY) LIMITED Second Applicant

and

KLAAS KLAASE Respondent

CASE NO. LCC 101 / 05

In the matter between:

MXOLOSI MOSES MFAZO First Applicant

LUNGILE SIBANGA Second Applicant

MAYOYI XUZA Third Applicant

VUKILE HEM Fourth Applicant

and

AMFARMS REALISATION COMPANY LIMITED First Respondent

ANGLO AMERICAN FARMS LIMITED Second Respondent

BOSCHENDAL (PTY) LTD Third Respondent

JUDGMENT: 20 JUNE 2007

MEER, J

[1] The Applicants apply for leave to appeal to the Supreme Court of Appeal against two judgments of this court handed down on 11 October 2006 and 15 December 2006 as well as an order by agreement granted on 4 December 2006¹. Respondents oppose the application.

Application for condonation.

[2] The Applicants also seek condonation for the late filing of the application for leave to appeal. The affidavit of Korabie is the only affidavit in support of the condonation application. In essence it cites financial constraints and difficulties in obtaining legal representation as reasons for the lateness, but without proffering adequate explanations. The delay in the bringing of this application for leave to appeal is correctly characterised by respondents as gross - seven months after the time for the first eviction order, some five months after the time in respect of the second order and some four and a half months after the time in respect of the third order. Respondent’s contention that it can be easily inferred from Applicant’s conduct that the current application is just a delaying tactic is understandable in the light of Applicant’s relative inactivity over much of these periods.

[3] It is trite that a court in exercising its discretion to grant condonation, will consider all facts, including the degree of non-compliance, the Applicants’ explanation for it, the Applicants’ prospects of success in the intended proceedings and the potential prejudice to each party. See Melane v Santam Insurance Company Ltd 1962(4) SA 531(A) at 532(C-D).

[4] The explanations presented in Mr Korabie’s affidavit are wholly inadequate. The affidavit moreover does not deal with Applicants’ prospects of success in their application, the importance of the matter or the respective prejudice to both parties. I am of the view for the reasons set out below, that in relation to the merits of the application for leave to appeal, the Applicants have no prospects of succeeding in such application. I note also that the application for leave to appeal is incompetent in respect of some of the applicants and I pause here to deal with this aspect before dealing with the merits of the application.

Application for leave to appeal is incompetent in respect of some of the applicants.

[5] As was correctly submitted by Mr Breitenbach, the application for leave to appeal is incompetent in respect of the following Applicants on behalf of whom the application is lodged. These are:

5.1 Mr N Vikilahle, the third Applicant in LCC 76/05, who by the time the application for leave to appeal was served on 1 June 2007, had already been evicted some weeks previously on 15 May 2007 in accordance with the eviction order granted in respect of him. There was accordingly nothing against which Mr Vikilahle could appeal and the application in respect of him falls to be dismissed. See Tzouras SA Wimpy Ltd 1978(3) SA 204 (W);

5.2 Ms N J Lufefe, the applicant in LCC 78/05 against whom no order of eviction was made and in respect of whom the application for leave to appeal falls to be dismissed for this reason;

5.3 The Applicants in respect of whom an order of eviction was made by agreement namely the first, third, fourth and fifth applicants in LCC 77/05, the first to third applicants in LCC 79/05 and the Applicant in LCC 80/05. Such order by agreement between the parties was made on the first day of the hearing of their cases on 4 December 2006. No appeal against the order is accordingly competent in the circumstances and the application, in so far as it relates to these Applicants, also falls to be dismissed. See Gentivuco AG v Firestone SA (Pty) Ltd 1972(1) SA 589 A at 600A; Dabner v SA Railways & Harbours 1920 AD 583 at 594

Grounds for Leave to Appeal and their Merits

Jurisdiction

[6] Applicants contend that this Court was precluded from hearing the applications for the eviction of the Applicants because of an arbitration clause in the constitution of the Lanquedoc Housing Authority (“LHA”) to which both Applicants and Respondents are alleged to have belonged. The Court was further precluded by a clause in the Lanquedoc Funding and Management Agreement which provides for alternative dispute resolution. Only once an arbitration award was made in favour of the Respondents, so the argument went, could it have proceeded to court to get relief.

[7] There is no merit in these submissions. The arbitration clause in the LHA constitution and the dispute resolution provisions in the funding agreement are inapplicable to the rights that were at stake in the eviction proceedings. The arbitration clause applies to disputes between the LHA and its members whilst the eviction proceedings involved disputes between Respondents as land owners and persons in charge of land and the Applicants as occupiers thereon. Similarly the dispute resolution provisions in the Funding Agreement apply to disputes between parties to that agreement which the Applicants are not.

[8] In any event and importantly Section 25 of the Extension of Security of Tenure Act No. 67 of 1997 (“the Act”) prevents parties who are subject to its rights and obligations from validly contracting out of the Act, as is suggested by Applicant, has occurred through the clauses in question. Sections 9(1) and 17(1) and (2) of the Act moreover preclude an arbitrator from adjudicating proceedings for the evictions of occupiers. Significantly, also, none of the applicants objected to the jurisdiction of this Court in the papers filed by them – an objection which must be taken before litis contestation. See Commercial Union Assurance Company Ltd v Waymack NO 1995(2) SA 73 (TK) at 80D-81A.

Locus Standi

[9] The Applicants contend that Respondents had no locus standi to bring the eviction applications, as, by agreement between Anglo American Farms and all the entities involved in the Lanquedoc Housing Project(“LHP’) all rights and obligations under the LHP had been ceded to Amfarms Realisation Company Ltd (“Realisation”).

[10] This argument cannot be sustained for, Respondents’ standing stemmed from their capacity as former employer, landowner and persons in charge of the land in terms of the Act. They did not exercise their rights to bring eviction proceedings under the LHP as is submitted by Applicant. Applicants moreover did not object to Respondents’ locus standi in their pleadings and cannot subsequently raise such an objection. I note moreover the contention by Respondents that there has in fact been no cession of rights by Respondents to Amfarms Realisation Company Ltd and moreover that such company is in fact already a party in the proceedings under case no. LCC 76/05 and LCC 101/05.

Non Compliance with Land Claims Court Rules

[11] Applicants contend there has been no compliance with Rule 8 of the Land Claims Court Rules in that Respondents erstwhile attorneys, had no mandate to represent them on 4 December 2006. The agreement negotiated and entered into on that date where Van Vught attorneys represented the various Applicants is void ab origine on account of his lack of mandate.

Rule 8 merely provides a procedure to be followed by an attorney who withdraws and the reliance on the rule within the context that Applicant does, is misconstrued. It was quite clear to everyone present at the court proceedings on 4 December 2006 (and this includes the presiding Judges) that Van Vught Attorneys continued to represent all the Respondents who agreed to the second eviction order until after the agreement concluded had been made an order of court on 4 December 2006. I add also that the set down of the cases for 4-7 December 2006 occurred under my direction at a pre-trial conference held in August 2006.

[12] Applicants contend in addition that the conference held on 4 December 2006 was in contravention of Land Claims Court Rule 30. There is absolutely no merit in this submission whatsoever. Rule 30 provides the presiding Judge with a wide discretion in relation to the convening of such pre-trial conferences with the absence of the formalities referred to in the Rule where appropriate. We exercised our discretion to convene precisely such a conference.

[13] Another rule Applicants contend was not complied with is Rule 31 in that notices of an offer to settle were not received and they were not afforded 24 hours to consider the settlement. Rule 31 had no application to the settlement agreement. The Rule provides a mechanism for litigants to use if they wish to make a settlement proposal, to put their opponents on risk for costs if they do not accept the proposal and then obtain less relief from the court. All settlement offers do not have to be made in terms of Rule 31. It was on the contrary Rule 62 which was applicable to the settlement agreement in this matter and that Rule was fully complied with.

Applicants’ Tenure not properly evaluated

[14] Applicants contend that the tenure already secured by them was not properly evaluated, especially in respect of Applicants with a Tenure of more than 30 years or over the age of 60. There is absolutely no merit in this submission. Both judgments carefully evaluated the tenure of Applicants and concluded that a clear case for the eviction of Applicants had been made out notwithstanding their tenure.

Failure to prove Agreements

[15] The final ground of appeal is that the Respondents failed to prove the agreements in respect of which the Court found the Applicants to be in breach, in compliance with Section 10 of the Act. As is evident from the judgments most of the long term occupiers admitted the agreements that they had concluded with Respondents regarding their continued occupation and, in respect of those who did not, oral testimony was led which established the existence of the agreements.

[16] In view of my finding that Applicants have no prospects of succeeding in the application on the merits, and moreover in the light of the degree of non compliance with the time limits for lodging an application for leave to appeal and inadequate explanations therefore, the application for condonation is refused. The application for leave to appeal is also refused.

Application to Strike Out

[17] Respondents applied to strike out various paragraphs in the affidavit of Duncan Korabie filed in support of the application. The basis of the application to strike is that the portions of the affidavit referred to contain inadmissible hearsay evidence. Two affidavits handed in to court today by the son of the Second Applicant under case no. 79/2005 and the First Applicant in case no. 79/05 attempt to cure the hearsay but do not. There is no application to have the affidavit admitted in terms of Section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, and it has not been argued on behalf of Applicants that it is in the interests of justice that it be admitted. Nor, I note, were the allegations on behalf of Respondents, that the affidavit of Korabie contains falsehoods, refuted. I am satisfied that the circumstances warrant the striking of the evidence objected to as sought. See: Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No. 1) 2003(5) SA 518 (C) at 545-7 (not altered by the Constitutional Court on appeal: see Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005(2) SA 359 (CC) at para 49.)

Application for Costs de Bonis Propriis.

[18] Respondents applied for a punitive costs order de bonis propriis. Mr Breitenbach drew attention to the fact that Applicants’ attorney Korabie filed an affidavit comprising almost entirely of hearsay, and containing a number of falsehoods, which illustrated the dangers inherent in hearsay of this sort. The entire application he argued, consists of ill-taken legal technical points based on elementary misconceptions of the rules, the nature of the rights exercised in the eviction proceedings and a misreading of the papers.

[19] There is merit in these submissions. Costs de bonis propriis may be awarded against an attorney in circumstances where he or she is found to have acted in an irresponsible, grossly negligent manner, causing prejudice to the other party, or where his handling of a client’s case is “slack” and evinces a lack of concern. This is apposite to the reprehensible conduct of Mr Korabie in this application. See Washaya v Washaya 1990(4) SA 41(ZH) at 45; Khan v Mzuvuyo Investments (Pty) Ltd 1991(3) SA 47(Tk) at 48.

In the circumstances and notwithstanding the general practice in the Land Claims Court not to award costs, I am of the view that it would be appropriate to depart from such practice in this case, and for costs de bonis propriis to be ordered against Mr Korabie.

The following order² is granted:

1. The application for condonation is refused.

2. The application to strike out is granted.

3. The application for leave to appeal is dismissed with costs, such costs to be paid de bonis propriis by Mr Korabie, the Applicants’ attorney.

MEER, J

I agree

PIENAAR, AJ

For the Applicants:

Mr D Korabie

For the Respondents:

Adv. A M Breitenbach instructed by Sonnenberg Hoffmann Galombik, Cape Town.

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