Department of Rural Development and Land Reform: Eastern Cape v Phahla and Another (178/2021) [2024] ZAECMHC 97 (20 August 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, MTHATHA HIGH COURT)

Date Heard: 20 June 2024

Date Delivered: 20 August 2024

CASE NO: 178/2021

In the matter between:

THE DEPARTMENT OF RURAL DEVELOPMENT

AND LAND REFORM: EASTERN CAPE

Applicant

and

KATLEHO JOHANNES PHAHLA

First Respondent

BETHWEL NTSIKELELO MPUNYUKA

Second Respondent

JUDGEMENT

MJAME AJ:

[1] In this matter, the respondents took occupation of the applicant’s farms situated in Matatiele in terms of the caretaker’s agreement concluded between the applicant and the respondents. The applicant is now approaching this court seeking an order confirming the cancellation of the agreement and evicting the respondents together with their personal belongings, but not limited to their stock on the grounds the respondent have breached the terms of the agreement.

The respondents are opposing the application disputing the fact that they breached the terms of the agreement.

FACTUAL BACKGROUND

[2] The applicant (Rural Development & Land Reform) is the registered owner of the immovable

properties described as remaining extent of Portion O and Portion 1 of farm Duckpond, No. 17022 under ES Registration Division situated at Matatiele Local Municipality within Alfred Nzo District Municipality.

The Applicant is also the bearer of a policy titled “State Land and Lease Disposal Policy “(the Policy)

[3] The policy provides at sub-clause 36.6 that Caretaker agreements may be granted to any

suitable person or body, for any period, at the discretion of the applicant. Furthermore, the clause further provides that, on the expiry of the initial period, the applicant may extend it once or more, for as long as the identified threat on the security of Property is reasonably conceivable or still exists. The threat referred to relates to the security of the Property and the objectives of these kinds of agreement is to provide security threat.

[4] The first and second respondents in enjoyment of the existing Policy submitted application respectively on 29 August 2012 and 15 January 2013.

An agreement was entered into between the applicant and first and second respondents to be appointed as caretakers of the said farms. The first respondent was appointed as caretaker on the 14th of April 2014 and second respondent appointed on the 22nd of May 2014.

[5] The duration of the agreement entered into between the applicant and the first respondent was from the 1st April 2014 to 30 September 2014 and was always extended subject to compliance by the relevant caretaker with the terms and conditions of the agreement.

[6] It came to the attention of the relevant officials of the applicant that the first and second respondents were in breach of the agreement by sub-letting the properties to the third parties.

On the 17 August 2015 the applicant gave the Respondents notices of breach of the agreement in which applicant threaten termination of the agreement if the respondents do not refrain from the said sub- leasing actions.

[7] The applicant’s property Management attended a meeting with a certain Mr Freddie Peterson who was also occupying the said farms as part of their investigations of the alleged sub-leasing by the respondents.

Subsequent to the said investigations a report was compiled by the investigating team which revealed that there was a subleasing of the said properties by the respondents, and as such during the period April to October 2016 certain sums of moneys ranging from R3100 to R12 000 were paid by Mr Peterson to the first respondent.

[8] During April to September 2016 the same Mr Peterson paid various sums of moneys ranging from R2000 to R12000 to the second respondent.

As a way forward, the investigation report recommended inter alia the removal of the first and second respondent from the properties.

[9] On the 20 September 2017 officials of the Applicant conducted farm assessments for the verification of livestock at the properties amongst others, in order to address the issue of subletting.

According to the report it was established that, the first respondent had a sublease with Mr Tsepe and Dr Nakin whose livestock were found at the said farms.

[10] On 5 December 2019 the applicant approved the recommendation that the respondent’s occupation of the said farms be terminated.

The termination was occasioned by the continued breach by the respondents of the terms and conditions of the Caretakers agreements and in particular the subleasing.

[11] On 12 December 2012 respondents were served with notices terminating their occupation and to vacate the said properties.

On 26 February 2020 the respondents were further served with final notices to vacate the properties. The second respondent refused to acknowledge receipt of the final notice and wrote a letter to the applicant notifying it that the matter was dealt with by his

attorneys.

[12] Despite the notices served on the respondents they continued occupying the said properties. The respondent’s occupation of the said properties is illegal and unlawful.

FIRST RESPONDENT’S CASE

[13] The first respondent confirms that on the 30 March 2014 he entered into agreement with the applicant after he applied for the occupation of the said farm and submitted completed forms, which was approved by the applicant.

He signed the agreement. He was rushed to into signing the contractual agreement without having read it properly because it was stated that it was needed in Pretoria.

[14] He was not given a copy of the agreement. He moved to occupy the farm two weeks after signing the agreement. He only received contract, after he and other farming colleagues had approached an attorney after receiving the eviction letters.

[15] His livestock, that is, cattle and sheep are on the farm. He also plants crop in the form of mealies.

He denies breaching the caretaker agreement. He is not aware of any valid termination of his caretaker agreement and if there is one, it was done without consultation with him. Any application to vacate the property would be unfair and without just cause.

[16] He disputes having a sub-lease with Mr Peterson. Mr Peterson was assisting with the management of the farm/property,

and in return he kept his livestock at the farm. The payment received from Mr Peterson was not for rental and subletting but paid for grazing material or maize stalk. He allowed Dr Nakin to graze his cattle in the mealie field. The arrangement was for three (3) months. There was no sublease between him and Dr Nakin.

The cattle were there for specific purpose and specific time frame, to help in cleaning the mealie fields after harvest.

He admitted that he received both notices to vacate and final notice. He did not know the clauses that were referred to, which allegedly

breached.

[17] He contends that the termination of the agreement is not valid and that his refusal to vacate the property is consistent with his denial that he has not breached the caretaker’s agreement. He maintains that the occupation of the property is both lawfully and legal.

2nd RESPONDENT’S CASE

[18] The second respondent admits having entered in agreement with the applicant.

During 2016 he and a certain Mr Harris and Koali (both deceased) approached one Mr Freddie Pieterse, a seasoned farmer in the area, for assistance on skilled development on farming in order to improve farm functionality, which he agreed.

[19] Mr Pieterse expressed a desire to have his cattle graze husks material left after harvesting mealies on the farm. They agreed to allow his cattle to graze on the farm in return for payment in monetary value.

[20] The applicant became aware of the presence of Mr Pieterse’s cattle on the farm and investigated under which circumstances were those cattle on the said farm. Mr Pieterse immediately removed his cattle from the farm after consultation with the applicant’s officials. According to the second respondent he was never served with the notification letter informing him of unlawful subleasing. He does not deny that there were monies paid by Mr Pieterse to him but claims that they were not for subleasing, but were for the charges of grazing husk material left after harvesting. He admits that there were cattle on the farm, belonging to Mr Mantangana which were found by the applicants investigating officials. These cattle were not on the farm through subleasing.

[21] He further contended that he was not given opportunity by the applicant to present his side of the story before concluding to terminate the agreement. He disputes that there is a valid notice to vacate the premises issued or served by the applicant.

APPLICANT’S SUBMISSIONS

[22] It was submitted on behalf of the applicant that the applicant has made out its case. It contends that the respondents have breached the agreement entered into.

Mr Mhambi, who appeared for the applicant directed me in argument to Clause 18.5 of the agreement which provides as follows:

“any subletting or cession on the part of the lessee shall constitute grounds for immediate termination of the lease agreement, without any notification period to remedy the breach “.

[23] It was further argued that he respondents have breached clause 3.6 of the agreement which provides that the caretaker shall not cede or assign any of his rights or obligations under the agreement to any third party, including subletting or other arrangement, without prior written approval of the owner first being obtained.

The respondents were not allowed by the applicant to sublet the said property. In their answering affidavit there is no mention of the consent obtained from the applicant to sublease the property to the third party. There is no reasonable explanation given by the respondents.

[24] It was further submitted that Clause 11.1 of the said agreement provides that: - “Should the Caretaker breach any condition of this agreement, the owner shall have the right to terminate the agreement with immediate effect, after giving fourteen (14) days notification to the Caretaker of its intention to cancel the agreement and the breach not having been rectified within the said period.”

It was submitted that the said properties are utilized as grazing pastures for the respondent’s animals. They do not constitute

primary residence of the respondents.

Despite the notices served to the respondents they failed or neglected to vacate the said properties.

RESPONDENT’S SUBMISSIONS

[25] Respondent submitted that the application should fail because the respondents had not breached the caretaker’s

agreement. It was contended that there was no sublease by the respondents to the third parties. Mr Peterson was assisting the first

respondent with the management of the farm. It was contended further that the agreement was that Mr Peterson would assist the beneficiaries with fire belts, fencing and bales, and in return to keep his livestock in the farm. The respondent maintained that it was not a sublease agreement but a work relationship and that the payments received from Mr Peterson were for grazing material or maize stalk.

It was further submitted that the cattle of Dr Nakin were not on the farm due to subleasing, but it was a three months’ temporal

arrangement for them to clean up the mealie fields after harvesting. The cattle were immediately removed by Dr Nakin following a complaint by the applicant.

[26] It is undisputed that the agreement which was entered into provided clauses to be adhered to by respondents.

The respondents contended that the applicant is not entitled to the relief it seeks for it has failed to prove that the respondents had subleased the property to the third parties. There is no affidavit filed by Mr Peterson and Dr Nakin to confirm the existence of the subleasing.

[27] On the same breath the respondents do not dispute that the livestock of Mr Peterson, Mr Pieterse, Dr Nakin and that of Mr Mantangana were kept at Hentiq farm. They do not dispute that there was no consent received from the applicant allowing the respondents to keep third party’s livestock in the premises. Their argument is that the monies received from Mr Peterson and Mr Pieterse were not for subleasing purpose.

[28] I shall deal with the disputes by respondents having regard to the principle set out in Plascon _Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[1] .

In terms of the Plascon -Evans principle, an applicant who seeks final relief in motion proceedings must, in the event of a dispute, accept the version set up by his or her opponent unless they are, in the opinion of the Court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the Court is justified in rejecting them on papers.

[29] I am of the view that the dispute raised by the respondents is not genuine, and is farfetched and untenable.

In Clause 3.6 of the agreement, Annexure “ZP 6” deals with and provided the following:

“The Caretaker shall not cede or assign any of his rights or obligation under this agreement to any third party including any subletting or other arrangement without the prior written approval of the owner first being obtained”.

[30] Clause 10 of the agreement deals with cession and subletting and provided the following: “The Caretaker shall not, except with the prior written consent of the owner sublet the property, cede or assign any of the rights and the obligation arising from the agreement.”

In Clause 11.1 of the agreement deals with the breach of agreement and provided the following:

Should the Caretaker breach any condition of this agreement the Owner shall have the right to terminate the agreement with immediate effect, after giving 14(fourteen) days written notification to the Caretaker of the intention to cancel the agreement, and the breach not having been rectified within the said period.

[31] The respondents elected to abide by the agreement entered by signing the caretaker’s agreement contract, they are bound by all the terms of the agreement.

The applicant is entitled to cancel the agreement pursuant to the respondent’s breach of material term thereof.

[32] I am satisfied that the applicant has made out a case for the termination and eviction of the respondents, based on the latter’s breach in terms of clause 3.6 and 10.1 of the agreement.

COSTS

[33] The general principles of costs are well established. The purpose of an award of costs is to indemnify a successful party who has incurred expenses in instituting or defending an action.

In awarding costs, a court has a discretion which should be exercised judicially. A court should consider the circumstances of each case, weighing the issues in the case, the conduct of the parties and any other circumstance which may have a bearing on the issue of costs and then make such order as would be fair and just between the parties.

[34] I accordingly order as follows:

1. The cancellation of the caretaker agreement entered into on the 14 April 2014 between applicant and the first respondent in respect of premises described as Potion 1 of Farm Duckpond, No. 17022 known as Hentiq Farm 2161, Matatiele be and is hereby confirmed.

2. The first respondent and his livestock is directed to vacate from the premises described as Portion 1 of Farm Duckpond, No. 17022 otherwise known as Hentiq Farm 2161, Matatiele.

3. The first respondent is directed to do all things necessary to cause the removal of any person who may be occupying the property described as Portion 1 of Farm Duckpond, No. 17022 otherwise known as Hentiq Farm 2161, Matatiele on his behalf including his livestock within 14 days from the date of the order.

4. The cancellation of the Caretaker agreement entered into on 22 May 2014 between applicant and the second respondent in respect of the premises described as remaining extent of Farm Duckpond, No. 17022 otherwise known as Hentiq Farm 2161, Matatiele, be and is hereby confirmed.

5. The second respondent and his livestock is directed to vacate from the premises described as Portion 0 of Farm Duck Pond, No. 17022 otherwise known as Hentiq Farm 2161, Matatiele.

6. The second respondent is directed to do all things necessary to cause the removal of any person who may be occupying the property described as remaining extent of Farm Duckpond, No. 17022 otherwise known as Hentiq farm 2161, Matatiele on his behalf including his livestock within 14 days from the date of this order.

7. The first and second respondents are ordered to pay costs of this application jointly and severally.

P.C.N. MJAME

Acting Judge of the High Court

Appearances:

For the Applicant

: Mr Mhambi

Instructed by State Attorney

Broadcast House

94 Sisson Street

Fort Gale

Mthatha

For The Respondents : Mr Linganiso

1st Respondent attorneys

N.Z. Mtshabe Incorporated

No. 137 York Road

MTHATHA

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51, 1984(3) SA 623 (A). Also Wightman t/a JW Construction v Headfour (Pty) Ltd& another [2008] ZASCA 6, 2008 (3) SA 371 (SCA) principle was discussed as follows: Bozalek J thought that the court was justified in subjecting the apparent disputes in closer scrutiny. When he did so he concluded that many of the disputes were not real, genuine, or bona fide. For the reasons which follow I respectively agree with the learned Judge. “recognizing that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must , in the event of conflict, accept the version set up by his opponent unless, the latter’s allegations are, in the opinion of the court , not such as to raise a real , genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on papers”

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51, 1984(3) SA 623 (A). Also Wightman t/a JW Construction v Headfour (Pty) Ltd& another [2008] ZASCA 6, 2008 (3) SA 371 (SCA) principle was discussed as follows: Bozalek J thought that the court was justified in subjecting the apparent disputes in closer scrutiny. When he did so he concluded that many of the disputes were not real, genuine, or bona fide. For the reasons which follow I respectively agree with the learned Judge.

“recognizing that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must , in the event of conflict, accept the version set up by his opponent unless, the latter’s allegations are, in the opinion of the court , not such as to raise a real , genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on papers”