CDH Watson NO and others v Tsoanyane & Another [2020] ZALCC 35 (21 December 2020)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC102/2020

Before: The Honourable Acting Judge Cowen

Heard on: 2 December 2020

Delivered on: 18 December 2020

REPORTABLE:

NO OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

In the matter of:

CDH WATSON NO and others

(in their capacity as Trustees

of the HFG Trust)

First applicant

and

BANNIE

THAMSANQA TSOANYANE First respondent

LEONARD

VUSUMUZI TSOANYANE Second respondent

JUDGMENT

COWEN AJ

1. The applicants are the trustees for the time being of the HJG Trust cited in their official capacities.[1] The Trustees own the property known as Portion 5 of (2) of the Farm Hartebeeste Fontein 119, Mount Currie District, also known as Mvelashona Farm (the property).

2. The respondents are Bannie Tamsanqua Tsoanyana and Leonard Vusumuzi Tsoanyana. The respondents occupy a portion of the property constituting residential dwellings, land and a roadway of approximately 2.5 hectares, which is referred to in the papers as ‘the occupied portion’ and to which I will refer as ‘the occupiers’ area’. The occupiers’ area is depicted on a diagram attached to the notice of motion as NM1. The respondents reside there with their families.

3. The applicants seek an interim interdict pending the finalization of an action that has been instituted under case number LCC227/2015, in which the Trustees seek to evict the respondents from the property in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). In those proceedings, the applicants allege that they have terminated the respondents’ rights of occupation under section 8 of ESTA, that the respondents have breached the terms and conditions of their occupation, and that the relationship between them has irretrievably broken down. The respondents are defending the action. The respondents have, further, filed a counterclaim in which they seek an order declaring them to be labour tenants in terms of the Land Reform (Labour Tenants) Act 62 of 1997 (Labour Tenants Act) and an order that the land they were on as at 2 June 1995 be acquired for them. This, I was told by the applicants’ counsel, includes the occupiers’ area and areas adjacent thereto. The history underlying the disputes in the claim and the counterclaim in LCC227/2015 is complex and contested. And there have been various engagements with a view to settlement, to date unsuccessful. In this regard, the respondents are willing to relocate should a suitable alternative be made available to them.

4. The interim relief the Trustees seek in the notice of motion in the proceedings before me would operate pending the finalization of the above actions and is:

4.1. To interdict and restrain the respondents from a) erecting or building any structures or dwellings on the property and b) ploughing or planting on the property other than on the occupiers’ area, and

4.2. Directing the respondents to a) remove two new structures that they have erected or are erecting (one in the occupiers’ area and one outside of it) and b) to retain all livestock in the occupiers’ area and to take steps to prevent the livestock from straying onto land outside the occupiers’ area.

5. The Trustees instituted the application for interim relief on 19 August. It was set down on the unopposed roll on 26 October 2020. However, it became opposed and, with the Court’s leave, it was postponed by agreement until 2 December 2020 to enable the exchange of affidavits. On 2 December 2020, the Court convened a hearing via Zoom video-conferencing in view of the ongoing COVID-19 pandemic. Mr Duminy appeared for the applicants and Ms Cele appeared for the respondents. At the commencement of the hearing, Mr Duminy informed me that the applicants were no longer seeking an order to remove the new structure erected in the occupiers’ area nor relief that would preclude the erection of further structures or dwellings on the occupiers’ area. In my view this entailed a responsible approach on the part of the applicants in view of the nature of the rights of ESTA occupiers in terms of section 6 of ESTA and the Constitutional Court’s decision in Daniels.[2]

Factual background

6. The material facts are, substantially, common cause on the affidavits before me. This is in circumstances where the respondents address the applicants’ allegations only scantily. It is common cause that the respondents are ESTA occupiers, that they occupy the occupiers’ area and have consent to do so. Further, it is common cause that they do so either by virtue of a tacit consent effective after the Trustees became the owner of the property in 2009 or by virtue of a court order granted by agreement on 19 March 2010 under case no LCC50/2010 (the 2010 court order) or both. The 2010 court order confirms the grant to the respondents of access to water and grazing by way of a well for drinking water, access to a perennial water source for two head of cattle along a fenced area on a roadway and to a 9000 square metre grazing area for the cattle in a fenced off area, which is part of the occupiers’ area. The 2010 court order also requires the respondents to ensure that gates are closed and the cattle do not stray and that the five sheep are kept within the fenced area of the residential and cropping area (in other words the occupiers’ area). On the affidavits before me, it is also common cause that the respondents have no consent to reside, crop or graze their livestock outside of the occupiers’ area.

7. There is a dispute between the parties which concerns the circumstances surrounding the grant of the 2010 order. Where the applicants allege that the 2010 order was granted by consent and in circumstances where the respondents were legally represented, the respondents allege that the order was not properly explained to them at the time. Ms Cele contends that on a proper understanding of the answering affidavit, the respondents say that it was not explained to them in their own language, isiZulu. For purposes of this judgment and notwithstanding the sparse allegations in the affidavit, I assume, without deciding, that that is so. I do so because it ultimately does not affect the conclusion that I reach. Further, the respondents allege, and I accept, that they had misunderstood the order which they thought entailed that they were being given land. However, there is no dispute that the respondents have, at least since December 2015, been aware of the 2010 order and that they have for a long time been aware of its implications. Despite having access to legal representation, there is no pending application to rescind it or to vary it.[3]

8. The events that gave rise to this application for interim relief are relatively recent and are, substantially, not in dispute. In early 2020, Mr Guy Watson, one of the Trustees, caused pastures to be planted in the fields adjacent to the occupiers’ area for the Trust’s livestock. This was an expensive exercise and required to sustain the Trust’s livestock as part of the Trust’s business. In March 2020, Mr Watson caused a new fence to be erected around the occupiers’ area in order to contain the respondents’ livestock within it. He had done so in circumstances where prior to this, the respondents’ livestock would stray outside of the occupied area by breaking through what was old fencing. After the new fence was erected and until 29 July 2020, the livestock did not stray. However, on that day, a Trust employee reported that the new fence had been cut and that the respondents’ livestock had entered the new fields and were consuming the newly planted feed. Mr Watson inspected the area and noted that the fence had been cut in a vertical line across the strands. Mr Watson and Mr Tsoanyana, the first respondent, then had an exchange. While they accuse each other of acting aggressively and argumentatively, it is common cause that Mr Tsoanyana informed Mr Watson that he would be ploughing the lands around the occupied area in the coming season. It is also common cause that he then called his wife and asked her to request their children to herd their sheep back into the Trust’s pasture, which then occurred. Mr Watson then requested the Trust’s employees to herd the sheep back and fix the fence.

9. On 3 August 2020, when monitoring the situation, he noticed that a structure was being erected outside the occupiers’ area. Mr Watson explains that this was the first time that the respondents had attempted to erect any structure outside of the occupiers’ area. The respondents do not dispute this but say that they did not know that they were obliged to request consent to build there, which the applicants dispute. When Mr Watson deposed to the founding affidavit on 19 August 2020, the structure was no more than poles inserted in the ground with wattle lattice to hold mud walls which at that stage had not been erected. When Mr Tsoanyana deposed to the answering affidavit on 6 November 2020, the structure was substantially completed.

10. According to the first respondent, he now has 20 cattle and some 32 sheep on the property. He says he has eleven children. He explains that it was necessary to build new dwellings because the small mud house in which he and his family currently live, is leaking and in bad condition. He explains further that he and his family are willing to relocate provided the relocation is to suitable alternative accommodation as contemplated by ESTA. During the hearing, Ms Cele informed the Court that the dwelling outside of the occupiers’ area is now occupied and used residentially. She explained that the respondents accept that they had no consent to erect the structure and that they may not build any further structures outside the occupiers’ area, but she says that they did not know that when they built it. The applicants dispute the respondents’ bona fides and contend in effect that this is an intentional and unlawful invasion of land. However, Mr Duminy was not in a position to dispute that the dwelling is now occupied for residential purposes, but contended rather that the applicants were proceeding to build at risk in view of the institution of these proceedings.

Applicable legal principles

11. An applicant seeking an interim interdict must show:[4]

11.1. A clear right or, if not clear, a prima facie right though open to some doubt.

11.2. If the right is only prima facie established, that there is a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.

11.3. A balance of convenience in favour of the grant of the interim relief.

11.4. The absence of any other satisfactory remedy.

12. In an ordinary vindicatory claim, it is presumed that a party will suffer irreparable loss if an interim interdict is not granted and the party need not accept value for the property.[5]

13. These principles must however be applied consistently with the laws governing evictions which are sourced in the Constitution. Section 26(3) of the Constitution and the provisions of ESTA which give effect thereto are of primary relevance. Section 26(3) provides that: ‘No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.’ ESTA regulates the process of obtaining an eviction order in respect of persons who are ESTA occupiers as defined in that Act and its procedural and substantive requirements must be complied with before a court can grant any eviction order.

14. In my view, and viewed in light of the applicable legal principles, the relief sought can conveniently be divided into two categories. The first category of relief is relief that concerns the erection of structures outside of the occupied portion and which may, if already erected, have the effect of resulting in an eviction. As mentioned above, the applicants are no longer seeking relief that will result in the removal of structures in the occupiers’ area nor any relief that will result in preventing the respondents from erecting or building structures or dwellings on the occupiers’ area. In the result, the relief that falls into the first category is limited to the prayer to remove the new structure that has been erected outside of the occupiers’ area and to restrain the erection of any further such structures.

15. The second category of relief is relief that does not entail or concern the erection of any new structures. The remainder of the relief falls into the second category. It includes the prayers to interdict and restrain the respondents from ploughing or planting on the property other than on the occupiers’ area, to retain their livestock on the occupiers’ area and to prevent their livestock from straying outside of the occupiers’ area. It is convenient to deal with the second category first.

Relief concerning livestock, ploughing and planting outside of the occupiers’ area

16. It is common cause that the property is Trust property and used by the Trust for purposes of Trust business including livestock and growing pasture to feed it. It is also common cause that the respondents have no consent or other right to plough, plant or keep their own livestock on the Trust’s property outside of the occupiers’ area. On the affidavits before me, the respondents have intentionally caused their livestock to stray and graze on the Trust property outside of the occupiers’ area and that this has interfered with the Trust’s use of its property, specifically to grow pasture to sustain its own livestock.

17. As regards this category of relief, the applicants have established not only a prima facie but a clear right. They have also established that they suffer harm in that they require the pastures that they have grown to sustain their livestock. Ms Cele submitted, however that such harm as may be suffered is not irreparable and that the applicants have an alternative remedy in that they can claim damages from the respondents should the respondents allow their livestock. Moreover, she submitted that the balance of convenience weighs in favour of the respondents. I disagree.

18. It is common cause that the respondents’ livestock have significantly increased in number over recent years. Moreover, the applicants allege and the respondents do not dispute that they are now operating a commercial livestock operation. In view of the limited size of the occupiers’ area, it is encumbent upon the respondents to source stock feed for their own livestock and to maintain their livestock at numbers that are affordable for them within the occupiers’ area. There is nothing on the affidavits before me to suggest that the respondents cannot or should not be required to do this. Furthermore, on the information before me, any claim for damages would likely be a futile pursuit. In any event, the applicants’ claim is vindicatory in nature and the respondents have not rebutted the presumption that the applicants will suffer irreparable loss if an interim interdict is not granted. The applicants need not accept value for their property.

19. In the result, in my view, the applicants are entitled to the interim relief sought to the extent that it restrains and interdicts the respondents from ploughing or planting outside of the occupiers’ area and confines their livestock thereto.

The new structure and further building outside the occupied portion

20. In my view, the applicants are entitled to an interim interdict to interdict the erection of any further structures on the property outside the occupiers’ area. There is no dispute that the respondents have no right or consent to erect any further structures. Even if, as Ms Cele contended, the respondents were not aware that they were not permitted to build further outside of the occupiers’ area (which I need not decide) they are now so aware but pertinently have failed to give any undertaking that no further structures will be erected. Indeed, Ms Cele expressly informed the court that she was not in a position to provide such an undertaking on behalf of her clients. Given the history of these proceedings and the conduct that gave rise to their institution, I am of the view that the applicants reasonably apprehend that further structures may be built outside of the occupiers’ area if relief is not granted.

21. However, the relief sought to remove the structure outside of the occupiers’ area stands on a different footing as it may amount to an eviction. There is no eviction application before the Court.

22. It is clear on the evidence before the Court that the respondents erected the new structure during the course of these proceedings. The applicants approached the Court promptly and upon ascertaining that a structure was in the process of being erected. However, the applicants did not seek any urgent interim relief when instituting the proceedings. Rather, the applicants set the application down on the unopposed roll. It was then postponed by agreement, again, with no request made for urgent interim relief.

23. In my view, the prevailing circumstances, described in paragraph 10 above, are such that this Court cannot grant relief that may well amount to an eviction without being satisfied either that the relief sought – demolition of the structure – will not amount to an eviction or that the procedural and substantive requirements of ESTA have been complied with. While the evidence supplied by the respondents in this regard is cursory and unsatisfactory, this Court cannot turn a blind to the known reality that by the time the application was argued, members of the respondents’ families may well have been residing in the new structure, albeit in breach of the terms and conditions of their occupation and thus unlawfully. The circumstances in which a new portion of the Trust property was so occupied will be relevant to whether and when any eviction order should be granted. However, those circumstances must be duly ventilated before the Court pursuant to the laws governing evictions.

24. I am mindful of the practical implications of this conclusion for landowners, such as the Trustees, who promptly seek to protect their property rights during the process of an unlawful occupation of land. In this regard, the Trustees cannot be faulted for approaching the Court for assistance and not taking the law into their own hands.

25. However, the applicants did not request urgent interim relief at the commencement of the proceedings. Had they done so, the Court may have been in a position to halt the process of unlawful occupation.[6] This Court’s procedures and practice have been specifically designed to cater for the exigencies of land disputes that fall within its jurisdiction. They enable the effective, economic and expeditious ventilation of disputes. This Court can convene pre-hearing conferences in accordance with Rule 30 to promote the effective, economic and expeditious disposal of a case. These can be convened on short notice and telephonically albeit that parties may be situated far afield. Parties may approach the Court to obtain interim relief on a critically urgent basis if warranted by the circumstances. In appropriate circumstances, the Court will grant ex parte relief on the same day or shortly after urgent proceedings are instituted in order to maintain the status quo while allowing parties to exchange papers on an expedited basis. If interim relief is granted ex parte, parties may then anticipate any return day on 24 hours’ notice in accordance with Rule 34(4).

26. In the circumstances, this Court cannot grant the applicants relief to authorize the demolition of the newly erected structure, at least at this stage. Nevertheless, in the circumstances of this case, justice demands that the applicants should be permitted to further pursue any necessary relief, including any eviction proceedings, in respect of the new structure on the same papers supplemented where necessary. The applicants may wish to adduce evidence to support a contention that eviction protections of ESTA are inapplicable, they may seek the respondents’ eviction from the new structure at this stage or they may seek to pursue that in the main action and effect any necessary amendments to those pleadings. To the extent necessary, the applicants may request the Court to convene a pre-hearing conference in order to facilitate the economic, expeditious and effective disposal of the proceedings. This may include to effect any necessary joinders. In turn, the respondents are entitled to defend any eviction application in light of all relevant circumstances. In these circumstances, I am of the view that the prayer to seek the demolition of the new structure outside of the occupied portion must be postponed sine die.

Costs

27. In my view the costs of this application, including the costs of 26 October 2020, should stand over for determination with case number LCC 227/2015.

Order

28. The following order is made which shall operate pending the finalization of the dispute between the parties under case number LCC227/2015:

28.1. ‘The property’ means Portion 5 of (2) of the Farm Hartebeeste Fontein 119, Mount Currie District, also known as Mvelashona Farm;

28.2. ‘The occupiers’ area’ means the area depicted as X on Annexure NM1 attached to the notice of motion.

28.3. The respondents are interdicted and restrained from erecting, building or constructing, or causing the erection, building or construction of, any structures, buildings or dwellings on the property outside of the occupiers’ area.

28.4. The respondents are interdicted and restrained from ploughing or planting any area of the property other than the occupiers’ area.

28.5. The respondents are directed to retain all their livestock in the occupiers’ area and to take all steps necessary to prevent them from straying onto land on the property outside of the occupiers’ area.

28.6. Any reference in this order to the respondents shall include a reference to all those who occupy the property, including the occupiers’ area, through them.

28.7. The costs of this application stand over for determination with case number LCC 227/2015.

28.8. The proceedings for relief to remove the new structure erected on the property outside of the occupiers’ area is postponed sine die.

28.9. The applicants are granted leave to approach the Court on the same papers supplemented where necessary to apply for any eviction order in respect of occupation of the new structure referred to in paragraph 28.8.

______

Cowen AJ

Delivered electronically and

unsigned

Appearances:

For the applicants: A Duminy instructed by Elliot and Walker Attorneys

For the respondents: S P Cele instructed by Xaba Attorneys

Date of hearing: 2 December 2020

Date of judgment: 18 December 2020

[1] Registration number: IT 110/1997/PMB. The Trustees are Christopher Watson NO, Guy Watson NO, Peta Watson NO, Andrew Watson NO and Hylton Watson NO.

[2] Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC).

[3] Ms Cele withdrew a contention to the effect that such an application was pending. During the hearing, both parties confirmed that there is no such application pending.

[4] Chief Nchabeleng v Chief Phasa 1998(3) SA 578 (LCC) at para 6.

[5] Erasmus Superior Court Practice D6-21.

[6] Difficult questions arise as to when the protections of eviction laws arise during the process of an unlawful occupation. This is the subject of litigation pending before the Western Cape High Court in a dispute between the South African Human Rights Commission and the City of Cape Town. See (judgment granting interim relief) South African Human Rights Commission and Others v City of Cape Town and Others (8631/2020) [2020] ZAWCHC 84 (25 August 2020). See too Zulu and Others v eThekwini Municipality and Others (CCT 108/13) [2014] ZACC 17; 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC) (6 June 2014), Barnett and Others v Minister of Land Affairs and Others [2007] ZASCA 95; 2007 (6) SA 313 (SCA) at para 37 and Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA) at para 22.