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[2017] ZALCC 17
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Stargrow (Pty) Ltd v Ockhuis and Others (LCC62/2017, 199/2016) [2017] ZALCC 17; 2018 (1) SA 298 (LCC) (19 April 2017)
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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case No: LCC62/2017
Magistrate’s Court Case No: 199/2016
Heard: 19 April 2017
Judgment:
In the matter between:
STARGROW (PTY) LTD Appellant
and
HENDRIK OCKHUIS First Respondent
WILMA OCKHUIS Second Respondent
CORNVILLE BOCK Third Respondent
HAYZEL OCKHUIS Fourth Respondent
HAYLIE OCKHUIS Fifth Respondent
HAY-LIZE OCKHUIS Sixth Respondent
ANY OTHER PERSONS WHO OCCUPY
HOUSE NO 10, ROOIHOOGTE, CITRUSDAL
WITH OR UNDER THE FIRST RESPONDENT Seventh Respondent
CEDERBURG MUNICIPALITY Eighth Respondent
DEPARTMENT OF RURAL DEVELOPMENT AND Ninth Respondent
LAND REFORM
JUDGMENT
BARNES AJ
Introduction
[1] This is an appeal against the judgment and order handed down by the Clanwilliam Magistrates Court on 15 December 2016, in which Magistrate C T Claasen dismissed an application by the appellant for the eviction of the first to sixth respondents.
[2] The appellant is the registered owner of portion 85 of the farm Groot Valley, No 451, in the Cedarburg Municipality, district of Clanwilliam, Western Cape, also known as Rooihooogte (“the farm”).
[3] The second respondent has lived on the farm since she moved there with her parents as a 12 year old girl in 1988. The first respondent has lived on the farm since he married the second respondent in 2002. The third to sixth respondents are the couple’s children (one of whom, the third respondent, is an adult) and have lived on the farm all their lives.
[4] The appellant launched an application for the eviction of the first to sixth respondents in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), alternatively, the Extension of Security of Tenure Act 62 of 1997 (“ESTA”).
[5] Magistrate Claasen found that the second respondent qualified as an occupier under ESTA and that there had not been compliance with the requirements for an eviction under ESTA. He accordingly dismissed the eviction application and made no order as to costs.
[6] On appeal, the appellant submitted that the Magistrate erred in finding that the second respondent was an ESTA occupier. The appellant contended that this was because it had not been established that the second respondent’s income fell below the prescribed amount for purposes of the definition of “occupier”[1] in section 1 of ESTA. The “prescribed amount” was stipulated on 18 December 1998 as an income of R5000.00 per month.[2]
[7] The appellant’s appeal rested on two alternative submissions. First, the appellant submitted that, because they were married, the income of the first and second respondents fell to be considered jointly in order to determine whether the second respondent qualified as an ESTA occupier. The appellant submitted that on this assessment, the second respondent’s income exceeded the prescribed amount. Second, the appellant submitted that even if only the second respondent’s income was taken into account, she bore the onus to prove that her income fell below the prescribed amount and she had failed to discharge this onus.
[8] The Magistrate found that whether or not the second respondent qualified as an ESTA occupier fell to be assessed with reference to her individual income only. The Magistrate found that the second respondent did bear the onus to prove that her income fell below the prescribed amount and that she had discharged this onus. The question in this appeal is whether these findings by the Magistrate were correct.
The Pleadings
[9] As stated above, the appellant brought its eviction application in terms of PIE, alternatively ESTA.
[10] Insofar as ESTA was concerned, the appellant focused in its founding affidavit, not on the income of the second respondent but on that of the first respondent. The appellant pleaded that the income of the first respondent exceeded the prescribed amount. The appellant stated that:
10.1 the first respondent was employed by Western Cape Nature as a tour guide;
10.2 the first respondent owned two motor vehicles; and
10.3 the first and second respondents operated a shop from their home on the farm.
[11] The appellant stated that while it was not privy to precisely what the first respondent earned, the inescapable inference from the above facts was that the first respondent’s income exceeded R5000.00 per month.
[12] The appellant pleaded that ESTA was therefore not applicable and contended that it was entitled to an eviction order in terms of PIE.
[13] However the appellant pleaded, in the alternative, in the event that ESTA was found to be applicable, that it was entitled to an eviction order in terms of ESTA. Yet despite this, the appellant effectively conceded in its founding affidavit that it had not complied with the requirements of section 9(2)(d) of ESTA, stating that, in the event that ESTA was found to be applicable, it would approach the Court, by means of an interlocutory application, for directives as to how the requirements of section 9(2)(d) of ESTA should be complied with.
[14] The first to sixth respondents opposed the eviction application. The second respondent deposed to the answering affidavit on behalf of herself and her family.
[15] The second respondent admitted that her husband was employed by Western Cape Nature but as a ranger, not a tour guide. She pleaded as follows:
“My man werk wel as a verldwagter in diens van die Wes-Kaapse Natuurbewaring, maar ons is a groot gesin en my eie inkomste is karig en sporadies. My inkomste oorskry nie die maandelikse drempel inkomste van die ESTA nie.” (It is correct that my husband is a ranger in the employ of Western Cape Nature but we are a big family and my income is poor and sporadic. My income does not exceed the prescribed monthly income in ESTA – court’s translation).
[16] In relation to her income, the second respondent pleaded as follows:
“In die verband vermeld ek spesifiek dat my inkomste as a seisoenale plaaswerker uiters wisselvallig is, en in ieder geval minder as R 5000.00 per maand is.” (I state, in this regard, that my income as a seasonal farmworker is extremely precarious and is in any event less than R5000.00 per month – court’s translation.)
[17] The second respondent admitted that she and her husband ran a shop from their home on the farm and stated that they did so in order to keep their “heads above water”. She pleaded as follows:
“Dit is egter so dat ons weens n gebrek aan inkomste om ons familie te onderhou gedwing word om n winkel vanaf die woning te bedryf, en op daardie manier kop bo water to hou.” (It is however so that due to our lack of income, in order to maintain our family, we are forced to run a shop from out home in order to keep our heads above water – court’s translation).
[18] The second respondent pleaded that she was an ESTA occupier and that her family was entitled to live with her on the farm:
“my man en my gesin is geregtig op grond van familieverband by my te bly.” (My husband and family are entitled on the basis of family connection to live with me – court’s translation).
[19] In its replying affidavit, the appellant complained that the second respondent provided no evidence of her income and did not disclose her husband’s income. The appellant accused the second respondent of “not playing open cards” with the Court.
[20] The appellant pleaded further that the combined income of the first and second respondents exceeded the prescribed amount, alternatively that the second respondent had not shown that their combined income fell below the prescribed amount. The appellant pleaded that the first and second respondents were therefore not ESTA occupiers.
The Judgment of the Magistrate’s Court
[21] The Magistrate noted that the appellant sought the eviction of the first to sixth respondents in terms of PIE, alternatively ESTA. He stated that the first question to be determined was therefore which statute was applicable.
[22] The Magistrate noted, correctly, that the appellant conceded in its founding affidavit that it had consented to the first and second respondent’s occupation of the farm, either expressly or tacitly. The Magistrate asked, rhetorically, whether PIE could be said to be of application if the first and second respondents were not unlawful occupiers as defined therein.
[23] The Magistrate then went on to consider whether ESTA was applicable. He held that the income of the second respondent was critical for his determination in this regard. He rejected the appellant’s argument that the combined income of the first and second respondents should be considered, holding that it was clear from the wording of ESTA’s definition of occupier that it is the income of “a person” which must fall below the prescribed amount.
[24] The Magistrate held that the onus was on the second respondent to prove that her income fell below the prescribed amount. He found that she had discharged this onus by pleading that her income as a seasonal farmworker was precarious and, in any event, less than R5000.00 per month. The Magistrate found that the second respondent accordingly qualified as an ESTA occupier.
[25] The Magistrate noted that it was apparent from the appellant’s own papers that section 9(2) of ESTA had not been complied with.[3] The Magistrate accordingly dismissed the eviction application and made no order as to costs.
Analysis
[26] As the Magistrate noted correctly, the effect of the appellant’s concession that it had consented to the first and second respondent’s occupation of the farm was to exclude them from the definition of “unlawful occupier” under PIE. [4] There is no need to consider PIE any further.[5] The question then is whether the Magistrate was correct in finding that the second respondent qualified as an ESTA occupier. This involves a consideration of two issues: whether it is the combined or individual income of spouses that must be assessed in order to determine whether ESTA’s prescribed amount is exceeded and what the burden of proof is on the respective parties in relation to the income question under ESTA. Each of these issues will be considered in turn below.
Combined or Individual Income?
[27] The appellant relied for its submission that it is the combined income of spouses that determines whether ESTA’s prescribed amount is exceeded, on the unreported judgment of this Court in Halle and Another v Downs(“Halle v Downs”)[6] That judgment held in relevant part as follows:
“It was common cause that at the time of the institution of the action the first appellant received a rental income of R4 400.00 per month and a monthly pension of R820.00. Her income exceeded the statutory threshold of R5000.00 per month…………[7] As to the income of second appellant, on his own version he shares in the income received by first appellant. He also receives R870 per month, included in which amount is his monthly pension of R820. It is thus clear that between the first and second appellants, they have an income well in excess of R5000.00. I am inclined to accept as submitted by the respondent that in order to avoid absurdities, the income referred to in the definition of occupier as contained in Section 1(1) of the Act should be interpreted as the income accruing to spouses jointly. To hold otherwise, would result in a situation where spouses can claim the protection of ESTA in circumstances where one has the required consent but earns very little, (the prevailing situation here on second appellant’s version) or, by choice, no income, whilst the other (who may not be an occupier in her own right), is wealthy and earns a substantial income. I accordingly find that second appellant did not have an income of less than R5000.00 per month at the commencement of the action. The appellants were therefore not occupiers at the commencement of the action.”[8]
[28] The facts in Halle v Downs were highly unusual. The first appellant was the previous owner of the farm concerned and the appellants leased a portion of the farm from which their eviction was sought. The appellants did not use this portion of the farm for their personal accommodation but operated a bed and breakfast and a woodwork manufacturing business from it, earning a monthly rental of R4400.00 from these businesses. Despite this, at the time that their eviction was sought, the appellants refused to pay rent to the owner of the farm.
[29] Mr Hathorn, who appeared on behalf of the first to sixth respondents in the appeal before us, submitted that since the appellants in Halle v Downs were lessors on the portion of the farm from which their eviction was sought, they were effectively “persons in charge” as contemplated in ESTA and would not have qualified as ESTA occupiers for that reason in any event. Mr Hathorn submitted that the eviction order in Halle v Downs was therefore correctly granted. This may well be so and it may be that the Court’s dictum in relation to the combined income of the appellants in Halle v Downs was limited to the peculiar facts of that case.
[30] In the event however that the dictum in Halle v Downs may properly be regarded as one of general application, then I am of the view that it is irreconcilable with the dicta in several recent Constitutional Court judgments. Those dicta speak authoritatively to the manner in which ESTA as a whole and ESTA’s definition of occupier, in particular, must be interpreted.
[31] The first important judgment in this regard is Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC) (“Molusi”). In Molusi, the Constitutional Court held that ESTA was enacted in order to ensure the realisation of section 26(3) of the Constitution which protects everyone from being evicted from their home or having their home demolished, without an order of court made after considering all relevant circumstances and provides that no legislation may permit arbitrary evictions.
[32] In Molusi, the Constitutional Court held that:
“[Through ESTA], Parliament sought to limit homelessness by respecting, protecting, promoting and fulfilling the right of access to housing. The legislation was enacted, among other things, to improve the conditions of occupiers of premises on farmland and to afford them substantive protections that the common law remedies may not afford them.”[9]
[33] The Constitutional Court held further that:
“The pre-reform-era land law reflected the common-law-based view that existing land rights should be entrenched and protected against unlawful intrusions. The land-reform legislation – ESTA in this case – changed that view. It highlights the reformist view that the common law principles and practices of land law, that entrench unfair patterns of social domination and marginalisation of vulnerable occupiers in eviction cases, need to change.”[10]
[34] In Klaase v Van der Merwe NO and Others 2016 (6) SA 131 (CC) (“Klaase”) the Constitutional Court was required to consider the scope of the definition of an “occupier” in section 1 of ESTA. The majority of the Court[11] held that:
“In determining the meaning of ‘occupier’ as defined in s 1(1) of ESTA, the starting point is the Constitution. Section 39(2) of the Constitution enjoins courts ‘when interpreting legislation…… to promote the spirit, purport and object of the Bill of Rights. In line with a purposive approach to statutory interpretation, a meaning that places the definition within constitutional bounds must be preferred. Because we are concerned with the meaning of ‘occupier’ as defined, the definition must be read not only in the light of the purpose of ESTA but also in the context of the legislation as a whole. It is thus necessary to read the meaning of ‘occupier’ in conjunction with its purpose set out in the preamble and other relevant provisions of ESTA, for example, sections 3,6,8, and 9.
As this court said in Goedgelegen, ESTA is ‘remedial legislation umbilically linked to the Constitution.’ It seeks to protect people, like Mrs Klaase, whose tenure of land is insecure. In construing the provisions of ESTA a ‘blinkered peering’ at the language in the legislation must be avoided. An approach that will ‘afford [occupiers] the fullest protection of their constitutional guarantees’ must be adopted. This court, in Goedgelegen, per Moseneke DCJ, remarked:
“We must seek to promote the spirit, purport and objects of the Bill of Rights. We must prefer a generous construction over a merely textual or legalistic one in order to afford claimants the fullest protection of their constitutional guarantees. In searching for the purpose it is legitimate to seek to identify the mischief to be remedied. In part, that is why it is helpful, where appropriate, to pay due attention to the social and historical background of the legislation. We must understand the provision within the context of the grid, if any, of related provisions and of the statute as a whole, including its underlying values.’”
The rights implicated here include Ms Klaase’s right to have access to adequate housing, and not to be evicted from her home without an order of court made after considering all relevant circumstances, to equality and to have her human dignity respected and protected.”[12] (emphasis added)
[36] In the recent judgment of Daniels v Scribante and Others 2017 (4) SA 341 (CC), the Constitutional Court highlighted the essential link between the right to security of tenure and the rights to equality and dignity:
“This takes us to the nub of this matter: the right to security of tenure. An indispensable pivot to that right is the right to human dignity. There can be no true security of tenure under conditions devoid of human dignity. Though said in relation to the right to life, the words of O’Regan J are apt: ‘without dignity, human life is substantially diminished’ Addressing herself directly to human dignity she said
‘The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in the bill of rights.’”[13]
[37] In Klaase, the Constitutional Court considered the correctness of the distinction between “occupier” and “resident” drawn by this Court in Landbounavorsingsraad v Klaasen 2005 (3) SA 410 (LCC) (“Klassen”). In Klaasen, this Court held that the term “occupier” in ESTA is used in a narrow and a wide sense:
“The narrow one being applicable only to persons who have the consent of the owner or person in charge of the property or have another right in law to reside thereon. The wide sense refers to those who derive their right of residence through or under occupiers in the narrow sense. The persons falling within the latter groups are not occupiers in terms of ESTA. It is probably easier to distinguish between the two classes of ‘occupiers’ by using the term ‘occupier in their own right’ for persons to whom the eviction procedures of ESTA apply and, and to the others as ‘residents.’ The right of an ‘occupier in his own right’ to stay on a farm derives from the consent given by the owner or person in charge of the farm, while the right given to a ‘resident’ to stay on the farm derives from a different source, usually a family relationship with an ‘occupier in his or her own right.’”[14] (Emphasis added)
[38] The Constitutional Court held that the distinction drawn in Klaasen reflected an impermissibly narrow interpretation of the term “occupier” in ESTA:
“It impermissibly construed the definition of ‘occupier’ narrowly and without regard to the mischief ESTA sought to remedy. The narrow meaning does not take into account instances, like those in this case, where an occupier has lived for more than the prescribed period on the premises with the knowledge of an owner who sits back and does not seek the occupier’s eviction. There the ESTA presumption and deeming provision favour the occupier. If the construction of ‘occupier’ adopted by the Land Claims Court is – in the circumstances of this case - correct, occupiers like Mrs Klaase will be evicted arbitrarily from farms without being afforded their constitutional guarantees and their protection under ESTA.”[15]
[39] The Constitutional Court held that the distinction drawn in Klaasen also reflected an overly narrow interpretation of the term “consent” in ESTA:
“The Land Claims Court’s finding that the ESTA occupier must be residing with ‘apparent consent’ and ‘without any other right to do so’ is not supported by the wording of ESTA which requires only that an occupier must reside with ‘consent or another right in law to do so.’ The restricted meaning of consent is not justified. The breadth of the concept of ‘consent’ in section 3 of ESTA is not insignificant.”[16]
[40] In Klaase, the Constitutional Court found that the undisputed evidence was that Mrs Klaase had lived on the farm concerned openly and continuously for many years with the knowledge of the owners:
“By his own admission in the answering affidavit, the second respondent said that Mrs Klaase came to live with her prospective husband in a house that had been made available to him on the premises. There is no evidence to rebut the presumption that the respondents consented to Mrs Klaase’s residing on the farm. The respondents’ failure to object to Mrs Klaase’s residing on the farm for decades or taking steps to evict her is telling. It implies that they consented to her occupancy.”[17]
[41] The Constitutional Court held that:
“The Land Claims Court’s finding that Mrs Klaase occupied the premises ‘under her husband’ subordinates her rights to those of Mr Klaase. The phrase is demeaning and is not what is contemplated by s 10(3) of ESTA. It demeans Mrs Klaase’s rights of equality and human dignity to describe her occupation in those terms. She is an occupier entitled to the protection of ESTA. The construction by the Land Claims Court would perpetuate the indignity suffered by many woman similarly placed, whose rights as occupiers ought to be secured.”[18]
[42] The Constitutional Court concluded that Mrs Klaase was an occupier under ESTA and was accordingly entitled to the protections afforded by ESTA in her own right.
[43] It is clear from the above that ESTA generally and its definition of occupier in particular are to be interpreted purposively and generously in order to afford persons with insecure tenure on land the fullest possible protection of their constitutional guarantees. The interpretation given to paragraph (c) of ESTA’s definition of “occupier” in Halle v Downs does not achieve this.
[44] It will often be the case in households in which both spouses are employed that their combined incomes will exceed R5000.00 while each of them earns less than that. The interpretation in Halle v Downs, if applied generally, would mean that neither spouse would qualify as an ESTA occupier, despite the fact that each earns an income below the prescribed amount. This would substantially reduce the scope of application of ESTA and effectively deprive persons who happen to be married of the rights and protections conferred by ESTA, despite the fact that on an individual assessment they would qualify for them. This has implications not only for the right of access to adequate housing, security of tenure and protection against arbitrary and unfair evictions, but also the foundational constitutional rights of dignity and equality.
[45] As the Magistrate correctly noted, paragraph (c) of ESTA’s definition of occupier excludes from its ambit “a person who has an income in excess of the prescribed amount.” An interpretation of this portion of the definition in accordance with the dicta of Constitutional Court set out above, does not permit of a reading which encompasses “spouses” or “households”. Correctly interpreted, “a person” in paragraph (c) of ESTA’s definition of occupier means just that. To the extent that Halle v Downs found differently and such finding may be regarded as one of general application, I am of the view that it was wrongly decided.
[46] The Magistrate was accordingly correct in finding that it was the second respondent’s individual income and not the combined income of the first and second respondents that was determinative for the purposes of establishing whether ESTA’s prescribed amount was exceeded.
Burden of Proof
[47] It is well established that a person who seeks the eviction of an occupier under ESTA must make all the necessary averments and adduce the necessary evidence to make out a case in relation to every provision to which a court must apply its mind in deciding whether an eviction order is justified.[19]
[48] The appellant submitted, however, that the onus was on the second respondent to prove that she is an occupier in terms of ESTA. As authority for this submission the appellant sought to rely on two judgments of this Court: Ntuli and Others v Smit and Another 1999 (2) SA 540 (LCC) (“Ntuli”) and Skhosana and Others v Roos t/a Roose se Oord and Others 2000 (4) SA 561 (LCC) (“Skhosana”).
[49] Ntuli was an application in this Court for an order interdicting the execution of a warrant of eviction issued in the Magistrates Court. The applicants’, in their founding affidavit in support of their application, made the bare allegation that ESTA applied to them. This Court correctly held that this was insufficient stating that:
“A party who wishes to prevent ejectment proceedings on the basis that he or she is an occupier under [ESTA] and entitled to the protection given to occupiers under that Act must set out specifically the facts upon which he or she relies. His or her ipse dixit is not sufficient. Nor is it sufficient merely to repeat the wording of the applicable statutory requirements in the affidavit.”[20]
[50] Skhosana was an application in this Court for the review of an order of a Magistrate striking an application for the rescission of an eviction order from the roll. Importantly, the eviction order originally sought and granted was sought and granted not in terms of ESTA but under the common law. The applicants contended in both the rescission and review applications that they were ESTA occupiers and that an order for their eviction should therefore not have been granted. This Court held that:
“Some components of the definition of ‘occupier’ (particularly the question of whether the person concerned is a labour tenant and also the income of the person concerned) falls within his or her personal knowledge. This supports a conclusion that a person who claims to be an occupier must prove that he or she complies with all components of the definition. There are presumptions contained in ESTA which will assist such a person to establish some of the components of the definition……These provisions would not have been necessary if it fell upon the landowner to prove that a person whose eviction is sought under common law is not an ‘occupier’ under ESTA.
In the present case, the first respondent was fully entitled to formulate the particulars of claim in his action for eviction the way he did. There was no need for him to make any allegations relating to ESTA. The Magistrate….., in the absence of a plea by the applicants that they are occupiers, was also fully entitled to grant the default judgment. A judicial officer must decide a case on the issues raised by the parties. His failure to raise or consider the possibility that the applicants could be occupiers under ESTA before grating default judgment against them is not irregular. Of course, once it is conceded or established that the person sought to be evicted is an ESTA occupier, the papers under which the landowner seeks the eviction must contain the necessary factual allegations required for such an order under ESTA. Those allegations must then be proved by the landowner.”[21]
[51] In both Ntuli and Skhosana the applicants based their claim to the relief that they sought on their contention that they were ESTA occupiers. In these circumstances, the onus was clearly on them to prove that they were in fact ESTA occupiers.
[52] In Skhosana, as stated above, the original eviction order had been sought and granted, not in terms of ESTA but under the common law. This Court held that in those circumstances, it is not necessary for a landowner applicant to prove that that the occupiers in question are not ESTA occupiers. If those occupiers contend that they are ESTA occupiers, then it is for them to allege and prove that.
[53] The situation is however different where, as here, the eviction application is brought in terms of ESTA. In such a case the applicant bears the full onus to prove all the requirements necessary for an eviction order to be granted under ESTA.[22]
[54] The necessary consequence of this is that if an applicant, in an application for eviction under ESTA, contends in the first instance that the respondents are not ESTA occupiers, it needs to allege and put up evidence (at least of a prima facie nature) of this. Such prima facie evidence would generally call for an answer on the part of the respondents which would place an evidentiary burden upon them. If not effectively answered, the prima facie evidence put up by the applicants would become sufficient proof that the respondents are not ESTA occupiers.
[55] In Salmons v Jacoby 1939 AD 588 at 593, Feetham JA explained it like this:
“I use the term prima facie evidence in the sense given to it by STRATFORD, J.A., in Rex v Jacobson & Levy 1931 AD 466 at p 478-9:
‘Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue in the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side the prima facie proof become conclusive proof and the party giving it discharges his onus. It is not, however, in every case that the burden of proof can be discharged by giving less than complete proof on the issue; it depends on the nature of the case and the relative ability of the parties to contribute evidence on that issue. If the party, on whom lies the burden of proof, goes as far as he reasonably can in producing evidence, and that evidence ‘calls for an answer,’ then, in such case, he has produced prima facie proof, and, in the absence of an answer from the other side, it becomes conclusive proof and he completely discharges his onus of proof. If a doubtful or unsatisfactory answer is given it is equivalent to no answer and the prima facie proof, being undestroyed, again amounts to full proof.’
The above explanation of ‘prima facie’ evidence or ‘prima facie proof’ may perhaps be open to criticism insofar as it speaks of ‘prima facie’ proof becoming, when answered by any satisfactory explanation, ‘full’ or ‘complete’ proof: ‘sufficient proof’ would seem to be a more suitable term.’ (emphasis added)
[56] To the extent that the Magistrate found that there was a full onus resting on the second respondent to prove that she was an ESTA occupier, he was incorrect. The onus remained on the appellant (the applicant in the court a quo) throughout. In the event, that the appellant put up prima facie evidence that the first and second respondents were not ESTA occupiers, then that attracted an evidentiary burden, but no more, on those respondents to answer that evidence.
[57] In this case, the appellant did put up prima facie evidence that the first respondent was not an ESTA occupier. This was to the effect that because he was employed by Western Cape Nature, owned two motor vehicles and ran a shop from his home, he earned in excess of the prescribed amount in ESTA. That evidence was not effectively answered by either the first or the second respondents.
[58] In this case however, the appellant put up no prima facie evidence that the second respondent was not an ESTA occupier. Indeed, it did not even allege that the second respondent earned in excess of the prescribed amount. Instead it was content to rely on the joint income of the first and second respondents. That, for the reasons set out above, was incorrect. The appellant therefore failed to make out a prima facie case that ESTA did not apply to the second respondent. In those circumstances no evidentiary burden on the second respondent arose and it is accordingly unnecessary to consider the sufficiency of the evidence adduced by her.
[59] The Magistrate’s ultimate conclusion that ESTA was applicable to the second respondent was therefore correct but for different reasons. The Magistrate was also correct in finding that on the applicant’s own papers it had not complied with the requirements for an eviction in terms of ESTA. The appeal therefore falls to be dismissed.
[60] In keeping with the practice of this Court not to grant costs orders in matter such as this which fall within the genre of social litigation, I make no order as to costs.
[61] I therefore make the following order:
1. The appeal is dismissed.
2. There is no order as to costs.
_______________________
BARNES AJ
Acting Judge of the Land Claims Court
I agree.
_______________________
MOLEFE J
Judge of the Land Claims Court
Appearance:
For the appellant: Adv C Joubert SC
Instructed by: Cluver Markotter Inc
For the first to sixth respondents: Adv P Hathorn SC
Instructed by: J D Van Der Merwe
[1] Section 1 of ESTA defines an occupier as follows:
“‘occupier’ means a person residing on land which belongs to another person, and who has or [sic] on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding –
(a) …
[Para (a) substituted by s. 20 (b) of Act 61 of 1998 (wef 28 September 1998) and deleted by s. 6 (a) of Act 51 of 2001 (wef 5 December 2001).]
(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount”
[2] In Government Notice R1632 of 18 December 1998.
[3] As noted above, the appellant stated in its founding affidavit that in the event that ESTA was found to be applicable it would approach the Court by way of an interlocutory application, for directives on how the requirements of section 9(2) of ESTA should be complied with.
[4] PIE defines “unlawful occupier” as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of informal Land Rights Act, 1996 (Act 31 of 1996).” (emphasis added)
[5] This makes it unnecessary to consider the appellant’s argument that this Court may ascribe to itself jurisdiction to grant eviction orders in terms of PIE in appropriate circumstances.
[6] [LCC78R/2007] [2008] ZALCC.
[7] At para 21.
[8] At para 22.
[9] At para 7.
[10] At para 39.
[11] In a judgment delivered by Matojane AJ
[12] At paras 50 to 52.
[13] At para 2.
[14] At para 23.
[15] At para 54.
[16] At para 57.
[17] At para 60.
[18] At para 66.
[19] Karabo and Others v Kok 1998 (4) SA 1014 (LCC) at para 13; De Kock v Juggels and Another 1999 (4) SA 43 (LCC) at para 13; Land en Landbouontwikkelingsbank van Suid Afrika v Conradie 2005 (4) SA 506 (SCA) at para 15.
[20] At para 21.
[21] At paras 26 and 27.
[22] See the judgments referred to in footnote 19 above.