South Africa: Land Claims Court

IN THE LAND CLAIMS COURT

HELD AT RANDBURG

Case No.: LCC66R/2015

In the matter between:

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Ngcukaitobi AJ:

1           Originally, this matter came before me by way of automatic review in accordance with the provisions of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (“the Act”). In terms of section 19(3)(b) of the Act, I overturned the order of the Magistrate which authorised the eviction of the first to 32^nd respondents (“the occupiers”). I substituted the Magistrate’s order with an order dismissing the application for the eviction of the occupiers which was instituted by the applicant, Rula Techno Park (Pty) Ltd. The applicant applies for leave to appeal against my judgment and order. This is a judgment in respect of the application for leave to appeal.

2           The test for leave to appeal, as submitted by the applicant is whether “the appeal would have a reasonable prospect of success”.[1]

3           The first ground for leave to appeal is that the applicant was denied an opportunity to be heard. As authority for this submission, the applicant relies on Rule 35A(2)(b) and (c) of the Rules of the Land Claims Court. It is necessary to cite the Rule in full. It provides:

“Before deciding a matter coming before it on automatic review, the court may –

(a) seek further information from the Magistrate;

(b) afford any party an opportunity to deliver submissions or further submissions on specific issues; or

(c) set the matter down for oral argument before the court.”

4           It is plain that the Rule affords this court a discretion when entertaining an automatic review. But the applicant submits that the word “may” must be understood to mean “must”. On that construction, the applicant submits, this court was under an obligation either to afford the applicant an opportunity to deliver submission or enrol the matter for oral argument before the court. The applicant relies on the judgments of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) and Stopforth Swanepoel and Brewis Inc v Royal Anthem (Pty) Ltd and Others 2015 (2) SA 539 (CC). The central proposition extrapolated by the applicant from the Bato Star judgment is that statutes must be construed purposively and consistently with section 39(2) of the Constitution. In Stopforth, the applicant placed emphasis on paragraph 19 which essentially confirms the duty to afford a party a right to a hearing before a court.

5           It was also submitted that the failure to afford the applicant a hearing would constitute an infringement of section 25 of the Constitution because an order of this court overturning the eviction amounts to a “deprivation of property” which is arbitrary and hence procedurally unfair.

6           None of these submissions have any merit. Rule 35A(2) does not impose a peremptory requirement. It is intended to facilitate the business of this court when it adjudicates automatic reviews referred to it in terms of section 19(3) of the Act.

7           Ms De Vos, who appeared on behalf of the occupiers, was correct ion submitting that the contention advanced on behalf of the applicant would lead to absurd outcomes. It would mean that in each and every instance where there is an automatic review the court must seek further information from the Magistrate; afford a party an opportunity to deliver submissions or further submissions on specific issues; or set the matter down for oral argument before the court. That would conflict with the plain meaning of the words.

8           A purposive interpretation does not yield a different outcome. The primary purpose of an automatic review is for this court to consider and cure any defects in the process followed and the methods of reasoning adopted by the Magistrate before granting eviction proceedings. The rule permits this court a discretion – when exercising its defect-curing powers under the legislation – to call for further information from the Magistrate or afford any party the opportunity to make submissions or enrol the matter for argument. These are powers intended to facilitate the administration of justice and must be exercised on a case by case basis. Clearly, a judge seized with an automatic review is best placed to assess the facts of each matter and to determine whether it warrants the invocation of the power in rule 35A(2). But to create a compulsory regime as contended by the applicant frustrates the efficacy of automatic review proceedings and stultify the entire institution of automatic reviews.

9           It will be noted that at no stage did the applicant in fact request an opportunity to make further submissions, despite being aware that the matter will be referred to this court for an automatic review. The applicant also does not point to any peculiar feature of this case to warrant the exercise of a discretion permitting further submissions. An appeal on this ground would not have a reasonable prospect of success.

10           In my judgment at paragraphs 28 and 29, I summarised the applicable legal principles by reference to a judgment of this court in Joosternburg v Brummer LCC16R/2014 (unreported) and Statutis Trading (Pty) Ltd v Sibonyoni and Others LCC86/2014, to be followed in an eviction in terms of section 10(1)(c), read with section 6(3) of the Act. Counsel for the applicant confirmed that they take no issue with the correctness of the legal test explained in those paragraphs.

11           The issue on the merits, it seems, relates to some of the findings of fact. The starting point is the termination of the right of residence. I concluded that the eviction could not be confirmed if there was no evidence that the right of residence of the occupiers was confirmed in a manner consistent with section 8(1)(a) to (e) of the Act.

12           On the facts herein the notices of termination were not sent to all of the occupiers. They were sent only to some. Nothing has been submitted to show that this was a wrong conclusion. Moreover, as submitted by Ms De Vos, the Constitutional Court in the case of Molusi v Voges NO [2016] ZACC 6 (1 March 2016) found that the failure to consider the fairness of the termination of the rights of residence, including the failure to consult the residence on the question of termination and the failure to give sufficient weight to the hardship that would result from such termination is fatal to an eviction application.[2]

13           The applicant’s submission was that the service of the eviction application would itself constitute a termination of the right of residence. This cannot be correct. The provisions of the Act are clear. Prior to the institution of eviction proceedings, a land owner is duty bound to terminate the right of residence. The termination is itself closely regulated by the Act since it is required to be just and equitable to pass the test of lawfulness. As such, there is no reasonable prospect of the applicant succeeding in showing that my conclusion on its failure to properly terminate the right of residence was incorrect.

14           The applicant repeated the allegations of misconduct contained in the founding affidavit to its eviction application. These have been dealt with in full in my judgment. It is not necessary to repeat my reasons. Suffice to note that the submission advanced in the application for leave to appeal that the occupiers were acting, in effect, as a group or a class was not the basis upon which the eviction was sought. And there was no evidence in the founding affidavit to sustain the case of a concerted or coordinated action on the part of the occupiers. Treating the occupiers as a group, in any event, would constitute a violation of their individual rights and entitlements which are protected under the Act. The case of the applicant, as originally brought, was brought on alleged acts of impropriety on the part of the occupiers. But I concluded that these were diffuse, lacking in specificity and not proven in relation to each of the occupiers against whom the eviction was sought. As such, I could not endorse the eviction order. The applicant has failed to demonstrate that it has reasonable prospects of success in respect of my substantive findings under sections 10 and 11 of the Act.

15           In the above circumstances, the application for leave to appeal is refused. No debate was had in respect of costs and I do not consider it just and equitable to make any award in that regard.

NGCUKAITOBI AJ

11 April 2016