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Ntuli and Another v Taag Trust and Others (LCC98/2017) [2017] ZALCC 20 (3 November 2017)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

Case No: LCC 98/2017

Before: The Honourable Judge Carelse



In the matter between:

Doris Thabile Ntuli                                                                                                       First Applicant

Phumulane Eric Nyandeni                                                                                      Second Applicant

and

Taag Trust                                                                                                                  First Respondent

Casparus Albertyn Joubert                                                                                  Second Respondent

Matthys Hendrick Joubert                                                                                      Third Respondent

Judgment

Carelse J  

[1] This matter came before the court by way of urgency in which the applicants sought a rule nisi along the following terms:

1.1     order directing the Respondents to restore to the Applicants their rights to use, possess and have access to grazing land for their livestock at Farm De Wet Stream (“the farm”);

1.2       Directing the Respondents to remove the restructured fencing placed around the grazing land which was being used and previously accessible to the Applicants and their livestock;

1.3       Directing the Respondents to restore the labour tenancy rights held by the Applicants in terms of the Act;

1.4       Interdicting and restraining the Respondents from removing the livestock of the Applicants from the farm and from the grazing pastures to any other area, especially a non-grazing area;

1.5       Interdicting and restraining the Respondents from removing or reducing in any way the number of livestock in the possession of and owned by the Applicants or their family members;

1.6       Interdicting and restraining the Respondents from fencing and reducing the grazing land used and accessible to the Applicants and their livestock;

1.7       Interdicting and restraining the Respondents from restricting in any way, the free movement of the Applicants and their livestock on the farm or the portion thereof upon which the Applicants reside;

1.8       That the Respondents are ordered to pay the costs of this application.”

[2] The applicants submit that at a pre-trial conference held prior to the trial they elected only to pursue the relief in prayers 1.1, 1.2 and 1.6 above. This was vehemently denied by the respondents.  During argument, counsel for the applicants submitted that the applicants have abandoned the relief sought in prayers 1.3, 1.4, 1.5 and 1.7.   The respondents submit that the relief sought by the applicants amounts to a declaratory order and that the interdict sought was final in nature. The applicants disputed this and insisted that notwithstanding the manner in which the relief is couched in their notice of motion, the applicants’ papers make out a case for interim relief. The applicants attempted to amend their relief which was opposed. The applicants did not pursue the amendment. Even if the applicants have abandoned in particular prayer 1.3 which is declaratory in nature, they still persist in seeking a restoration of their grazing rights and the use of the farm as well interdictory relief. In my view, the interdictory relief sought is clearly final in nature.

The Parties

[3] Ms Ntuli, the first applicant (“Ntuli”) was born in 1959 and currently resides on the Farm De Wet Stream (“the farm”) with her children and grandchildren.[1] Ntuli alleges that she and her son, Sikhumbuzo Gumede (“Gumede”) had provided labour until 2003 and 2007, respectively and continue to reside on the farm in the exercise of their labour tenancy rights as defined in the Land Reform (Labour Tenants) Act 3 of 1996 (“The Act”).  Mr Nyandeni (“Nyandeni”), the second applicant, alleges that he and his wife worked on the farm since 1996 and provided labour until 2002 and continue to reside on the farm in the exercise of their labour tenancy rights in terms of the Act. Taag Trust (“The Trust”), the first respondent is the registered owner of the farm which was acquired sometime in 2007. Mr C Joubert and Mr M Joubert, the second and third respondents (“the respondents”) are the trustees of the Trust. It bears mentioning that Mr Scholtz, (“Scholtz”) is the previous owner of Portion 5 of the farm De Wet Stream (“the farm”). Scholtz bought the farm in 1999 and sold it in 2003 to Mr Theron.[2] That the applicants are labour tenants in terms of the Act is vehemently disputed by the respondents and Scholtz.[3] Instead the respondents allege that Ntuli and Nyandeni are Occupiers in terms of the Extension of Security of Tenure Act 62 of 1997(“ESTA”). [4]

Background Facts

[4] Scholtz states that he found Ntuli on the farm when he arrived in 1999 but vehemently denies Nyandeni was on the farm in 1999. Instead Scholtz alleges that Nyandeni arrived on the farm sometime in 2001 when he married a lady that was living on the farm.[5] Nyandeni does not dispute this in the replying affidavit. The applicants have not dealt with Scholtz’s affidavit in the replying affidavit at all.

[5] Ntuli and Nyandeni complain that when the respondents acquired the farm they began to experience grazing restrictions. In 2008, the respondents moved the livestock of Nyandeni to an area closer to Ntuli’s homestead.[6] There was no objection because the area that was provided was adequate for both Ntuli and Nyandeni’s livestock to graze. This continued until 2016 when the respondents removed the livestock to another area. The result was that the new area was smaller in size, was a rocky hillside area, not suitable for grazing. The grazing land previously used between 2008 and 2016 has now been converted into a corn crop field.

[6] The respondents deny that Ntuli had any livestock on the farm. [7]  The respondents admit   that Nyandeni and Gumede[8]  were permitted to keep a limited amount of cattle but that such permission did not emanate from any agreement.  These denials are not dealt with in the reply.

[7] Attempts to resolve the impasse between the parties were unsuccessful. As a result hereof Ntuli and Nyandeni sought legal assistance from the Department of Rural Development and Land Reform (“The Department”).

[8] I pause to mention that Nyandeni represented by ZM Zuma and Company (“Zuma”) of 109 Wick Street, Verulam, launched an action out of this Court under case number LCC 142/2015 seeking inter alia to be declared a labour tenant. The farm identified in the action is De Wet Stream which is the farm in question in this application (LCC98/2017).  The respondents filed their plea in case number LCC 142/2015 as far back as April 2016 vehemently opposing the relief sought and have pleaded that Nyandeni is a general farm labourer in terms of ESTA. Gumede and one Ngcobo have filed an application to join Nyandeni under case number LCC 142/2015.  In the joinder application neither Gumede nor Ngcobo signed their affidavits attached to the application.[9] Neither Nyandeni, Gumede nor Ngcobo have done anything further to proceed with the action under LCC 142/2015. Ntuli is not a party to the proceedings under case number LCC142/2015.    Pertinently, no mention of case number LCC 142/2015 was made in the founding affidavit in this application under case number LCC 98/2017.  

[9] For the purposes of this judgment, it is necessary to deal with the legal representation provided to the applicants by the Department. Initially, Mr Khubeka from the Department appointed Mr Mpurwana sometime in 2015 to represent Nyandeni. Mr Mpurwana assisting Nyandeni instituted the action under case number LCC 142/2015. The second respondent had several meetings with Mr Mpurwana relating to, inter alia, the number of livestock to be kept, the specific area for grazing and the status of Nyandeni. On 26 October 2016, Mr Mpurwana representing Nyandeni, Ngcobo, Gumede and Methula met with the second respondent.  This meeting was minuted and emailed to Mr. Mpurwana. [10] Mr Mpurwana responded to the proposal set out in the minutes. Pertinently Mr Mpurwana informed the second respondent that he should have his legal team on standby to draft an agreement as soon as he has reached agreement with his clients. [11]  It is common cause that the first applicant has not launched an action to be declared a labour tenant. Her son Gumede appears to feature in correspondence between the attorneys. Mr Mpurwana notified the second respondent that Gumede intended to bring a Rule 12 application to be joined to the proceedings under case number LCC142/2015.  To date no such application for joinder has been served on the respondents. It appears that the application was not pursued. There is also no evidence that Ntuli has launched action proceedings to be declared a labour tenant.[12] Mr Mpurwana prepared further minutes of meetings in which Nyandeni and Gumede were present. At this meeting both Gumede and Nyandeni agreed to the number of cattle on the farm[13] and the specific area of grazing. [14] On 18 January 2017, Mr Mpurwana addressed a further e- mail to the first respondent in which Mr Mpurwana recorded:

...and incorporating in the agreement the terms and conditions that were discussed and agreed upon by all parties as per the attached minutes …”[15]

[10] The second respondent alleges that an agreement was reached between the parties. This is denied.[16]  On 19 January 2017 and 27 January 2017, the second respondent states that he received a further e-mail from Mr Mpurwana. Pertinently, in the e-mail dated 27 January 2017 Mr Mpurwana recorded that Gumede, Nyandeni, himself and the Department met where it was agreed that alternative land should be allocated.  The respondents refused.

[11] Ntuli and Nyandeni state that because they had not seen Mr Mpurwana for a while they decided to visit the offices of the Department. On 28 February 2017, the Department advised them that Mr Ngcobo from MC Ntshalintshali attorneys was appointed to represent Ntuli and Nyandeni.

[12] Ntuli and Nyandeni allege that Mr Mpurwana did not properly advise them. On 10 March 2017, the second respondent met with Mr. Ngcobo. The second respondent informed Mr. Ngcobo that an agreement had been reached and that Mr. Ngcobo should meet with Mr Mpurwana to confirm same.  Mr. Ngcobo said that he would meet with Mr Mpurwana. The period when Nyandeni arrived on the farm is hotly disputed by the respondents and Scholtz.

Points in limine

[13] The respondents  have raised  several  points in limine: firstly, urgency which was not pursued given the time from the launch to the hearing of this application; secondly, Ntuli and Nyandeni have no locus standi, have  not demonstrated a clear right; thirdly, the  abuse of process to the extent that there is already a pending action under case number LCC 142/2015, therefore this application is lis pendis; fourthly, the non-joinder of the Department because the relief claimed amounts either to declaratory relief and/or a permanent interdict; and lastly, there has always been foreseeable factual disputes which render motion proceedings wholly inappropriate. I turn now to deal with the issue of whether Ntuli and Nyandeni have the necessary locus standi to bring this application

Locus standi of Ntuli and Nyandeni

[14] The respondents have categorically disputed[17] that both Ntuli and Nyandeni have the necessary locus standi to bring this application.  It is not disputed that Mr Mpurwana is the erstwhile attorney of Gumede and Nyandeni, and Mr. Ngcobo is the current attorney for Ntuli and Nyandeni in this application (LCC 98/2017). Mr Mpurwana’s business address 109 Wick Street Verulam appears on the documents under case number LCC 142/2015.[18] The same address appears on Mr Mpurwana’s affidavit.[19]  Mr. Ngcobo states that he has communicated with Mr Mpurwana but denies that he was informed that an agreement was reached with the parties.   During the hearing of this application Mr. Ngcobo was unable to say with certainty whether he represents Nyandeni under case number LCC 142/2015. So for all intents and purposes, Zuma Attorneys (Mr Mpurwana) could still be representing Nyandeni under case number LCC 142/2015.

[15] The respondents vehemently dispute that Nyandeni and Ntuli are labour tenants within the meaning of the Act.  That Nyandeni is a labour tenant has been disputed as far back as 2015 and can be borne out by the emails sent to Mr Mpurwana by the second respondent. The respondents deny that Ntuli has any livestock on the farm.[20] Ntuli does not deal with this denial in reply. In Plascon Evans Paints v Van Riebeeck Paints [21] the court held that

“…a final order … may be granted if those facts averred in the applicants’ affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.”

Based on these established principles, that Ntuli does not have livestock is not disputed.

[16] Mr Mpurwana consistently in his affidavit[22] stated that he consulted with four families, in particular and pertinently Gumede, Ntuli’s son. The undisputed evidence before this court is that neither Gumede nor Ntuli are parties under case number LCC 142/2015. Reiterating that notwithstanding Gumede’s intention to be joined as a party under LCC 142/2015, he   has not pursued the joinder application to date and his affidavit has not been signed. For all intents and purposes, Gumede’s affidavit to join the action under case number LCC 142/2015 is not before this court and in my view, no regard is to be had to the affidavit. That Ntuli has no locus standi is not dealt with in reply and neither is there an explanation why Ntuli has not been joined to the action under case number LCC 142/2015.

[17] I understand the crux of the applicants’ submissions in so far as locus standi is concerned to be that it does not matter whether the applicants are labour tenants[23] or Occupiers[24].  Counsel for Ntuli and Nyandeni submit that what is relevant is that it is common cause that they reside on the farm and have been grazing on the farm and using the land, giving Ntuli and Nyandeni the necessary locus standi to bring this application. That they reside on the farm automatically gives them grazing rights, so Counsel for the applicants submits. I further understand Ntuli’s case to be that her case is not premised as an individual claim but as a family claim.  Counsel for Ntuli submits that the livestock belongs to the family; because in Gumede’s unsigned affidavit he states that he has been grazing on the land. In my view the “affidavit” is not an affidavit and as such cannot be relied on. That Ntuli does not have livestock was not dealt with in reply. If Ntuli is the owner of the livestock there is no explanation why Gumede has been reflected as a potential plaintiff in LCC 142/2015. That the livestock is not hers but the families has not been alleged in Ntuli’s founding affidavit.

[18] Having found that the interdict sought is final in nature, it is trite law that the applicant must establish a clear right. Counsel for the applicants submit that what is sought is a restoration of rights but does not say what these rights are and where Ntuli and Nyandeni derive their rights from.

The law

[19] According to Erasmus Superior Court Practice

The facts upon which the applicant relies for relief must be set out simply, clearly and in chronological sequence, and without argumentative matter, in the affidavits which are filed… The statement of facts must at least contain the following information:  (i) The applicants right to apply, that is, the applicant’s locus standi. In Scott v Hanekom 1980(3) SA 1182 (C) at 1188H, it is said that it is ‘trite law that appropriate allegations to establish the locus standi of an applicant should be made in the launching affidavits and not in the replying affidavits.”

[20] Section 1 of the Land Reform (Labour Tenants) Act provides:  

"labour tenant" means a person -

(a) who is residing or has the right to reside on a farm;

(b) who has or has had the right to use cropping or grazing land on the farm, referred to in paragraph (a), or another farm of the owner, and in consideration of such right provides or has provided labour to the owner or lessee; and

(c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm,

including a person who has been appointed a successor to a labour tenant in accordance with the provisions of section 3(4) and (5), but excluding a farmworker.”

[21] Having regard to the aforegoing, both Ntuli and Nyandeni do not satisfy the requirements set out in paragraph (c) herein above. There is no evidence that Ntuli in her own right has instituted an action to be declared a labour tenant. All that she does in this application is to make a sweeping statement that she is a labour tenant.

[22] Sections 16 of the Act provides for the substantive requirements to be met when claiming a right to acquire land as a labour tenant.  Section 17 of the Act provides for the procedural requirements that must be followed when applying to acquire a right in land.  

[22] Neither Ntuli nor Nyandeni have alleged compliance with sections 16 and 17 of the Act. Mr Mpurwana in his affidavit alleges that section 17 of the Act has been complied with. There is no evidence to support this. Again, the non-compliance has not been dealt with by either Ntuli or Nyandeni in reply. I understand their case to be that it is not necessary to do so.

[23] Nyandeni has not addressed the issue of locus standi in reply. Even if he has, it is trite law that an applicant cannot make out its case in reply. Nyandeni alleges that he arrived on the farm in 1996. Contradicting Nyandeni, is both his erstwhile attorney Mr Mpurwana and his current attorney Mr Ngcobo, who state that Nyandeni arrived on the farm in 1981. Both could only have received such instructions from Nyandeni himself.  Scholtz’s states that Nyandeni arrived on the farm in 2001.[25]

[24] Having regard to the aforegoing neither Ntuli nor Nyandeni have met the requirements of the definition of a labour tenant in terms of the Act and neither have they satisfied the requirements of Section 16 and 17 of the Act.

[25] The applicants have not demonstrated their right to apply for the relief they seek.  The general standard is that they have to show that they have a clear rightIn my view, the applicants’ failure to demonstrate that they have the necessary locus standi is dispositive of this matter. It is therefore, not necessary to deal with the other points in limine.

Costs

[26] I turn to deal with the issue of costs. Both parties seek costs, if successful. The respondents seek costs on an attorney client scale on the basis that there has been an abuse of process and the application itself is not justified.  The Act is social legislation. This court has in the past, refrained from making costs orders when adjudicating social issues[26] unless there are special circumstances which justify a costs order. I can find none in this case to justify a costs order on an attorney client scale or party and party costs.

[27] In the result, I make the following order:

1.      The point in limine on the issue of locus standi, of the applicants is upheld.

2.      No order as to costs is made.

_____________________

Carelse J

Judge of the Land Claims Court

Appearances

Counsel for the Applicants   : Mr G Shakoane SC

Instructed by                          : Ntshalintshali Attorneys.

 

Counsel for the Respondents: Mr G F Ackermann

Instructed by                         : Moolman Pienaar Attorneys

 

 

 



[1] Founding affidavit page 7 para 1; answering affidavit page 66 para 29.

[2] Answering affidavit page 158- Scholtz affidavit

[3] Answering affidavit page 66 para 29.2; page 67 para 35.2

[4] Answering affidavit – Scholtz affidavit page 160 para 6.1 – 6.8 and 7; page 161 para 8 and 9

[5]  Answering affidavit – scholtz affidavit page 160 para 5.2 – 6.1

[6] Founding affidavit page 12 para 14.

[7] Answering affidavit page 70 para 45

[8] Answering affidavit page 71 para 48.2

[9] Answering affidavit page 54  para 16.3.4 and 16.3.5 annexure J17

[10] Answering affidavit page 43- annexure J7 page 106

[11]  Annexure J8 page 107

[12] Respondents’ version so far as the application on the farm

[13] Answering affidavit page 45 annexure J 11 and 11.1; page 110

[14] Answering affidavit page 47 annexure J12.2; page 113

[15] Answering affidavit page 49 para 12.73; annexure 13.1 at page 114

[16] Replying affidavit page 173 para 8.2

[17] Answering affidavit page 59-60 para 23

[18] Page 87 and 92

[19] Page 197 para 1

[20] Answering affidavit page 70 para 44-45

[22] Mpurwana’s affidavit page 200 para 9-12

[23] Land Reform (Labour Tenants) Act 3 of 1996

[25] Plascon Evans supra

[26]  Ngcobo and Another v van Rensburg and Others [1997] ALL SA 537 (LCC) at 548 b-h