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IN THE LAND CLAIMS COURT OF SOUTH

AFRICA HELD AT CAPE TOWN

COURT a quo No: U873/15

CASE NO: LCC63R/2015

Before: The Honourable Rajab-Budlender AJ

Heard on: 21September 2016.

Delivered on: 27 October 2016.

In the matter between:

JOSEPH DELPORT                                                                                                1^st Appellant

DRIEKA BURGER                                                                                                  2^nd Appellant

and

THEUNIS CHRISTOFFEL BOTHA N.O                                                          1^st Respondent

THEUNIS CHRISTOFFEL BOTHA JUNIOR N.O                                          2^nd Respondent

HILDA BOTHA N.O                                                                                             3^rd Respondent

THEUNIS CHRISTOFFEL BOTHA                                                                    4^th Respondent

JUDGMENT

RAJAB-BUDLENDER AJ

Introduction

1         This is an appeal against the whole of the judgment and order of Magistrate T. E. Theron of the Worcester Magistrates' Court ("the Magistrate") in terms of which the Magistrate ordered the eviction of the Appellants from the farm known as Portion 3 of the farm Goudyn NR 619, in the Breede Valley Municipality ("the farm").

2          The respondents brought an application in the Magistrates' Court for the District of Worcester in which they sought the eviction of the appellants from the farm in terms of the provisions of the Extension of Security of Tenure Act 62 of 1997 ("ESTA").

3          In a written judgment dated 29 September 2015, the Magistrate ordered the eviction of the appellants. The Magistrate's judgment makes clear that the parties had reached a settlement and that the court was required nevertheless to enquire as to whether such agreement was fair and just.

4          The matter was then referred to this Court in terms of section 19(3) of ESTA for automatic review. On 3 November 2015, Mpshe J confirmed the judgment of the Magistrates' Court on the basis that the proceedings were "in accordance with justice."

5          On 4 March 2016, the appellants filed a document which purported to be a "notice of application for leave to appeal' in this Court in which the grounds of appeal were set out. The appellants sought condonation for the late filing of the application for leave to appeal in the notice itself, without further amplification. The absence of a formal condonation application means that this Court has nothing before it to explain why the appellants waited between 29 September 2015 and 4 March 2016 - a period of more than 5 months - before approaching this Court on appeal. The Magistrate's order was in the interim confirmed on automatic review by Mpshe AJ on 3 November 2015. We were told in argument that the appellants only obtained legal assistance in December 2015 but this still does not explain why it took almost three months to note an appeal in circumstances where the relevant Rule provides 20 days to do so.

6         A notice of application for leave to appeal was served at the Magistrates' Court. However, this does not appear to have been placed before the Magistrate in order to allow her to "frame her reasons" as required by Rule 51 of the Magistrates Court Rules. The appellants therefore appear to have obtained the Record from the registrar in the Magistrates Court notwithstanding the fact that the proper process under Rule 51 was not followed.

7          Section 19(2) of ESTA provides that civil appeals from a magistrates' court lie to this Court. That much is clear. The difficulty in this case is the manner in which the appellants sought to note such an appeal and the process it followed in approaching this Court.

8          Adv. Tsegarie, who appeared for the appellants, contended that the correct procedure, as set out in Rule 71 of the Rules of this Court, required that an appeal from the Magistrates' Court to the Land Claims Court must be noted in the same manner as an appeal from the Magistrates Court to the High Court. Therefore, he argued, the provisions of Rule 49 of the Uniform Rules of Court must be used to determine the correct procedure for the noting of an appeal. This submission is not correct.

9          Rule 49 of the Uniform Rules of Court provides for civil appeals from the High Court and not from the Magistrates Court. In contrast, Rule 51 of the Magistrates Court Rules addresses appeals from the Magistrates Court to the High Court. Rule 51 provides in relevant part:

(3)  An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer.

(4)  An appeal shall be noted by the delivery of notice, and, unless the court of appeal shall otherwise order, by giving security for the respondent's costs of appeal to the amount of R1 000: Provided that no security shall be required from the State or, unless the court of appeal otherwise orders, from a person to whom legal aid is rendered by a statutorily established legal aid board.

(B)(a) Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 days thereafter hand to the  registrar  or  clerk  of  the  court  a  statement  in   writing showing (so far as may be necessary having regard to anv judgment in writing already handed in by him or her)-

(i)            the facts he or she found to be proved;

(ii)           the grounds upon which he or she arrived at anv finding  of fact specified  in the notice  of appeal as appealed against: and

(iii)          his or her r easons for anv ruling of Jaw or for  the  admission  or rejection  of  anv evidence so specified as appealed against.

(b)   A statement  referred  to in  paragraph  (a) shall become part of the record.

(c)     This rule shall a/so, so far as may be necessary, apply to a cross-appeal.

(9)   A party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross­ appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary.

(10)   Subject to rule 50 of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa, the registrar or clerk of the court shall, within 15 days after he or she receives notice that an appeal has been set down for hearing, transmit to the registrar of the court of appeal the record in the action duly certified. " (emphasis added)

10      Jones & Buckle in " The Civil Practice of the Magistrates  Court in South Africa" set out the objects for the noting of an appeal in terms of Rule 51.

11      They are as follows:

(a)   to enable the magistrate  to frame his or her reasons  for judgment ;

(b)    to give the respondent an opportunity of abandoning the judgment ;

(c)    to inform the respondent of the case he or she has to meet; and

(d)  to notify the appeal court of the points to be raised. "

12      In Snyders v De Jager ZASCA 137 (30 September 2015) at paragraph 16, the Supreme Court of Appeal ("SCA") held that where this Court confirms an order of the Magistrates Court on automatic review in terms of section 19(3) of ESTA, such confirmation is not an order on the substantive merits of the matter and therefore the judgment remains that of the Magistrates' Court.

13      Different considerations apply to the situation where this Court  sets aside an eviction order and substitutes it with a substantive order of its own in terms of section 19(3)(b) and (c) of ESTA. In such a case, one would be precluded from appealing against the judgment of the Magistrates' Court but would instead be required to appeal against the judgment of this Court, to a higher court.

14      In this case, the judgment of the Magistrate was confirmed by Mpshe JA on automatic review. It therefore remains a judgment of the Magistrates Court and the Rules which govern appeals from the Magistrates' Court to the High Court are applicable.

15      Therefore, the appellants followed the incorrect process in noting and prosecuting this appeal. This was despite the fact that the appellants had legal representation from at least December 2015.    The effect of the process followed, means that the Magistrates' Court was not given proper notice of the appeal in terms of Rule 51 of the Magistrates' Court Rules. Nor was security furnished as contemplated by those Rules. Finally, the Magistrate was precluded from considering the appeal and framing her reasons for judgment.

16      The effect of the process followed by the appellants is that the appeal was not addressed to the Court against which the appeal lies.

17      Counsel for the appellants argued that the failure to comply with the Magistrates' Court Rules did not prejudice the Respondents and that in substance, the Rule had been complied with because the appeal was now before this Court. The Respondents have in fact been prejudiced by the delay in noting this appeal in the proper manner, and by the lack of certainty and finality occasioned by the conduct of the Appellants. However, that is not the only consideration. The fact that the appellants failed to follow Rule 51 of the Magistrates' Court Rules has a number of implications including that the Magistrate was precluded from framing her reasons. Indeed, in Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) at para 2, the SCA confirmed the importance of allowing the Magistrate to frame his/ her reasons for judgment and held that the Rule was peremptory. (See also Kilian v Geresbode, Uitenhage 1980 (1) SA

808 (A) at 815C-D).

18       It is clear from the Record before us that the Magistrate in this case, was not notified of the appeal or given an opportunity to issue a statement in writing as contemplated by Rule 51 (8). The failure to comply with the procedure set down in Rule 51 of the Magistrates' Court Rules renders this appeal fatally defective.

The Magistrate in any event applied ESTA correctly

19       Notwithstanding this, I point out that even if the process followed had been correct, it is clear that the Magistrate applied her mind to all the requirements set down by ESTA before ordering the eviction of the Appellants. She says this specifically in her judgment and explains that she questioned both appellants in order to ensure that ESTA was complied with. In addition:

19.1     The transcript of proceedings makes clear that the Magistrate actively attempted to ensure that the Appellants were afforded the opportunity of having legal representation. To this end, she contacted the Department of Rural Development and Land Reform to attempt to secure legal assistance for the Appellants. Four months passed after this request was made to the Department and no assistance was forthcoming.

19.2    Nor was a probation officer's report provided as requested. The Magistrate noted that four months had passed between the time that the Respondents had requested a probation officers report and legal assistance for the Respondents. Referring to the judgment of this Court in Theewaterskloof Holdings (Ply) Ltd Glazer Division v Jacobs and Others 2002 (3) SA 401 (LCC), the Magistrate expressed her frustration at the lack of a response from the Department of Rural Development and Land Reform ("the Department") and held that a reasonable period of time had passed since the request for a probation officers report was made. The clerk of the court also contacted a Mr Beerwinkel from the Department to appear in court on the hearing date to explain the lack of a response from the Department. Mr Beerwinkel failed to attend at court as requested. He was telephoned again on the hearing day but informed the clerk of the court that he was unable to attend. In the circumstances, and having considered the judgment of this Court in Theewatersk/oof, the Magistrate continued with the proceedings. Moreover, it appeared that the parties had reached a settlement at that point.

19.3    The Magistrate extensively and   carefully questioned both appellants. In particular,she established the following:

19.3.1     Although he had lived on the farm for the past 17 years, Mr Delport was relatively young, at 35 years old and had been employed elsewhere on contract, for some time. Ms Burger was 33 years old at the time of the hearing before the Magistrate. Therefore, section 8(4) of ESTA had no application to the proceedings.

19.3.2     The appellants received child grants on behalf of each of their three children and Ms Burger was not employed as she cared for her ill relatives. The combined income of the appellants amounted to approximately R3260.  This is less than the R5000 contemplated by ESTA.

19.3.3        The appellants occupied the house concerned together with their children who are aged 16, 9 and 6 years old, as well as Ms Burger's aunt, Bettie Hollenbach.

19.3.4        Neither of the appellants worked for Mr Botha. There was therefore no employment contract between them and Mr Botha.

19.3.5        The relationship between the parties had soured and it was not in anyone's interests for them to occupy the same farm. Mr Delport himself confirmed this. In fact, he referred to the fact that he did not want to remain on the farm to be "terrorised" for the rest of this life.

20          We pause to note that the allegations against Mr Botha, in relation to how he treated his workers, raise significant cause for concern. The court a quo referred to various criminal cases opened against Mr Botha in this regard and Mr Delport referred to the fact that he felt threatened and scared each time he left his partner alone at home, because Mr Botha was known to assault the occupiers of the farm. Mr Delport asked the Magistrate to make the equivalent of a protection order against Mr Botha so that Mr Botha would not assault or threaten him or his family while he was at work. No such order was made nor were any findings  against  Mr  Botha  made  by  the  Magistrate  in  this  regard. However, the Magistrate advised Mr Delport to seek the assistance of the clerk of the court to obtain a protection order against Mr Botha if that was necessary.

21          Notwithstanding this interchange between the Magistrate and Mr Delport, Mr Botha's attorney, Mr Van Heerden, did not cross examine Mr Delport in relation to the allegations against his client.   Instead, he

indicated to the Court that he had undertaken to Mr Delport, to ensure that his client respected a ''ceasefire" and that he would speak to his client to ensure that the parties "stayed out of each other's way" until the eviction was complete. Mr Van Heerden also indicated to the Court that he had informed Mr Delport that he could obtain an interdict under "the Harassment Ac(' should he continue to feel threatened by Mr Botha.

22          Therefore, although there were no findings made against Mr Botha in relation to his alleged violent behaviour, such allegations were unchallenged by his attorney in cross-examination of Mr Delport. Allegations of assault and violence against farm workers and occupiers are of serious concern to this Court. Such conduct is unlawful and, if proved, will not be countenanced by our Courts.

23          In relation to the terms of the settlement offer, the Magistrate questioned Mr Delport extensively in relation to what accommodation would be available to the appellants, should they vacate the farm. It is not clear what accommodation was available but the offer of R15 000 and 6 months to vacate would go some way to ensure that the appellants were not  rendered  homeless.     Both  appellants  indicated  that  they  were satisfied with the terms of the settlement.

24           In the circumstances, the Magistrate found that section 8(1) to (3) of ESTA had been satisfied and that an eviction would be just and equitable.

25           I agree.

Costs

26           The Respondents have asked for costs against the Appellants. The usual practice in this Court is not to award costs in matters such as these, which are brought in the exercise of a constitutional right and in the genre of social litigation. (Department of Land Affairs v Witz: In re various portions of  Grassy Park 2006 (1) SA 86 (LCC) at para 31; Hlatswayo and Others v Hein 1999 (2) SA540 (LCC) at paras 15-26.)

27           However, the respondents ask for costs in view of the process followed by the appellants on the grounds that the process followed rendered the appeal "a nullity" and the notice of application for leave to appeal constituted an abuse of the rules of court governing appeals from the magistrates' court. More specifically, the Respondents asked for an order along the lines of that made in Snyders v De Jager where the Court struck the matter from the roll with costs. In Snyders, the SCA found that it had no jurisdiction to hear the appeal. That is different to the present case. In this case, this Court does in fact have jurisdiction to hear this appeal - however, the process followed in bringing this case before this Court, was defective. Striking off is the appropriate order in these circumstances.

28           In the present case, the appellants are funded by the Department. It is clear that it is not the appellants themselves who have chosen to follow a process which is clearly incorrect. However, their attorneys and counsel are paid to ensure that the correct rules of court are complied with on their behalf. This has regrettably not been done in this case.

29           I therefore make the following order:

29.1     The appeal is struck from the roll with costs.

29.2     The terms of the settlement order as recorded in the judgment of the Court a quo, remain valid.

29.3     The Appellants are ordered to vacate the farm within 6 months of the date of this judgment.

29.4     The Respondents are ordered to pay R15 000 to the Appellants within one month of the date of this judgment, in order to assist the Appellants with the costs of relocation

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Rajab-Budlender, AJ

I agree.

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Barnes, AJ

Appearances:

For the Appellants:  Adv.C. Tsegarie Instructed by Elton Shorties Attorneys

 

For the Respondent Adv.  S. Guldenpfennlg SC Instructed by Van Wyk Fouchee Inc.

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