Gate Development (Pty) Ltd and Another v Mahlangu and Others (LCC103/08) [2009] ZALCC 2 (4 March 2009)

IN THE LAND CLAIMS COURT OF

SOUTH AFRICA

In

RANDBURG CASE NUMBER: LCC103/08

Before Bam JP

Decided on: 04 March 2009

In the case of:

GATE DEVELOPMENT (PTY) LTD 1st Applicant

VAN BREDA, WILLEM WEHLBURG N.O

EXECUTOR IN THE ESTATE OF LATE

ANDER STEINBEL 2nd Applicant

and

MAHLANGU, MRENSNSELULA 1st Respondent

MTHOMBENI,

MALALELO MARTHA 2nd Respondent

MAHLANGU ZOEL 3rd Respondent

MTHOMENI

WILLEM 4th Respondent

MTHOMBENI

THOMAS 5th Respondent

JUDGMENT

BAM JP:

[1] In this matter an application for a further postponement has been made by the legal representative on behalf of the respondents. The case had originally been set down to proceed from 02 March 2009 for four days.

[2] The dates of set down had been confirmed as early as 05 September 2008, after the case was remitted from the Magistrates’ Court in Belfast when a special plea was entered on behalf of the Respondents asserting that they are Labour Tenants in terms of the Land Reform (Labour Tenants) Act 3 of 1996.

[3] The legal representatives for the respondents ought to have been fully prepared when they entered such a plea that it would require extensive oral evidence to prove all the necessary requirements for labour tenancy. However, on the day of hearing Mr Nkosi, who appeared on behalf of the respondents sought a postponement stating that he had not had any consultations with the witnesses as he had only recently taken over the case from Ms Matsepe.

[4] This indulgence was granted by the court with the concurrence of the legal representatives of the applicants. The case was then postponed to today (4/3/2009) on condition that Mr Nkosi on condition that Mr Nkosi would spend the whole of the next day (Tuesday 3/3/2009) consulting with the respondents and then bring them to testify in court today.

[5] When legal representatives came to my chambers this morning Mr Nkosi indicated that he would seek another postponed since he had been unable to gain access to the farm where the respondents resided. Mr Van Rensburg of the applicants immediately signalled he would oppose the application for postponements whereupon I directed that a substantive be argued formally and on record in court.

[6] The granting of an application for postponement is in the nature of an indulgence and lies entirely in the court’s discretion1. The discretion is a judicial one and can be corrected on appeal if exercised improperly.

[7] In the case of Madnistileng v Rosenberg2 the Appellate Division held that a court should be slow to refuse granting postponements where the true reason for the party’s

non-preparedness had been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands

that he should have further time for the purpose of presenting his case.

[8] I have carefully considered the submissions made by counsel on both sides in regard to this application. The reasons adduced by Mr F Nkosi for his inability to have access to the respondents and to consult with them on Tuesday 3/3/2009 are sound and relate to matters completely beyond his control. He was simply not granted access to the farm on which the respondents were residing and there is no way he could force his entry into a closely guarded area with security fencing and security guards. It may be that, in seeking access, he failed to convince or even persuade the person in- charge that he was an officer of the court and that he was on official business. It is directly as a result of this failure to gain access to his witnesses yesterday that the case cannot proceed today. The court accepts that, as of yesterday, he made the effort to carry out the court’s directives given on Monday but simply could not persuade the person in charge for the security of the premises. This is by no means to condone the dilatory and, in my view, inexcusable conduct on his part or on the part of Ms Matsepe for having failed between September 2008 and 2 March 2009 to have taken the trouble to prepare their witnesses for trial. Mr Van Rensurg’s opposition is based on entirely this failure which occurred prior to yesterday’s events and is therefore, irrelevant to the present application. Indeed, even the application for a punitive cost order on his part is also based on this blameworthy conduct before yesterday’s events and is, therefore, also irrelevant to the present application.

[9] The second ground upon which the application was challenged was to maintain that there was no longer an established practice of burial on the property as of the date of death of the deceased. In her founding affidavit the applicant stated that several burials of occupiers had been permitted on the land since 1971 and that the most recent were during 2006 and 2007 respectively.

[10] The opposing affidavit of Mrs Jeniffer Miles confirms that fact but with some qualifications. Firstly, she states that she and her late husband had for some time prior to 2003 been reluctant to agree to further burials on the farm due to the increasing frequency thereof and to attendant health risks.

[11] Secondly, she states that such burials were not an invariable practice as some people chose to bury their relatives elsewhere.

Finally, she states that the burials that

took place during 2006 and 2007 were carried out without their consent and after objections thereto were overruled by the Department

of Land Affairs.

[12] Mr Mc Connachie, on behalf of the 1st and 2nd respondents submits that the sets of facts outlined in the above scenario do not constitute an established practice as defined in ‘the Act’ i.e. a practice in terms of which the owner or person in charge routinely gave permission to people residing on the land to bury on the land.3 In the alternative, he submitted that the practice had, in any event, been discontinued even before section 6(2) (d A) of ‘the Act’ was enacted.4

[13] Once it is conceded that there is a burial site in existence, though perhaps not utilized with the frequency or regularity of an urban cemetery and even intermittently, an established practice exists in the context and intention of the Act. The Legislature

introduced section 6(2) (d A) precisely in order to oblige owners and persons in charge, in the circumstances of the present case, the creation of further graves5. The mere fact of irregularity or inconsistency does not suffice to negate such an obligation.6 Furthermore, a right is conferred on the occupier by the section to bury which may not be wiped out by temporary non usage or be

withdrawn unilaterally without rendering the entire purpose of the section nugatory.7

[14] It is, perhaps, the appreciation of last mentioned hurdle that compelled the respondents to rely heavily on the third ground of their challenge to the effect that the deceased had entered into an agreement with the former owner of the farm not to be buried on Rocky Ridge. Annexture RYW2 was included in the respondents’ papers purporting be a document signed by the deceased and two witnesses on the 12 March 2003 in which he affirmed that neither he nor his descendants would demand to be buried on Rocky Ridge. This was on the occasion when deceased sought permission from the owner to bury his own parents on the farm and the ‘waiver’ of his own right was in exchange for being granted that permission.

[15] There is a material factual dispute emanating from the applicant’s replying affidavit and supported by one of the witnesses who signed the document. It is to the effect that the true meaning of the document was not explained to the deceased. All that was stated by the owner of the farm was that it was an agreement, on his part, to permit the burial of the deceased’s parents on Rocky Ridge. Suffice to state I am of the view there is an inherent improbability that the deceased would condemn himself and his descendants to be buried in strange lands having been fully informed of his rights in terms of the Act.

[16] I have not attempted to resolve the above factual dispute on the papers and only address the argument pursued by both counsel on whether the waiver was hit by section 25 of the Act.

[17] Section 25 is simple and straight forward and states:

“25 Legal status of agreements. - (1) The waiver by an occupier of

his or her rights in terms of this Act shall be void, unless it is permitted

by this Act or incorporated in an order of court. (2) A court shall have

regard to, but not be bound by, any agreement in so far as that

agreement seeks to limit any of the rights of an occupier in terms of

this Act.”

[18] Mr Mc Mconnachie has argued that to the extent that the right conferred on the occupier to bury is premised on section15 of the Constitution which guarantees inter alia, freedom of religious belief, it can be exercised both positively and negatively. Therefore, quoting the case of Garden Cities Inc v Northpine Islamic Society8, he submits a contractual undertaking to waive a constitutional right is permissible.

[19] The point at issue in the Garden City case was in regards to the inability or otherwise to waive the fundamental right to freedom of religion in terms of an agreement concluded in the pre- constitutional period. It was accepted that where strong public policy considerations are involved a purported waiver would not be valid or enforceable.9 In other words the importance of the right that is constitutionally protected must outweigh the importance attached to the principle

pucta sunt servada.10 The decision in that case is authority only for the proposition that a non essential aspect of the religious practice is permissible.

[20] The Act takes matters even further and requires that the waiver be actually sanctioned by a court and that such court be not bound by it in so far as it seeks to limit any of the rights of an occupier.11

[21] The historical background and motivation for the Act requiring that waiver agreements be sanctioned under careful scrutiny by a court is succinctly stated by Heher J A in Agrico Masjinerie (Edms) BPK v Swiers.12

“The Legislature, in enacting ESTA, recognized the land on which

they live. It intended to provide ample protection to such occupiers

who would in all probability be disadvantaged by lack of means and

inadequacy of education and thus constitute an easy prey to a

landowner seeking to take advantage of them.”

[22] It follows that, in my judgment, the applicant, as an occupier, has established that the 1st and 2nd respondents, being persons in charge of Rocky Ridge farm, were legally bound to allow the burial of her husband on the farm.

[23] It must be recorded that Mr Malusi, who appeared on behalf of the applicant, correctly did not pursue an assertion that the

application was based on section 6(5) of the Act but confined himself in terms of section 6(2) (d A) of the Act.

[24] The application was granted with no order as to costs.

____

JUDGE PRESIDENT F C BAM

For the applicant:

Adv Malusi Instructed by Malusi Attorneys in East London

For the respondent:

Adv Mcconnachie Instructed by Elliot Attorneys in Stuterheim

1 P666: Herbstein & Van Wassen

2 1949 (2) S A 392

3 Section 1(1)

4 Both section 6(2) (d A) and the definition of ‘established practice’ were inserted into the Act by the Land Affairs General Amendment Act of 2001 93) section 1 of the Act

5 Nhlabathi v Fick 2003 [2] All SA 323 LCC para 24p 7

6 Mahlangu v Koos Dyker- unreported lcc97/06 para 16 p5

7 Dlamini and Another v Joosten and Others 2006[3] 7@par 24(SCA)

8 1999 [2] SA 268

9 ibid p 271 A-B

10 ibid p 271 D

11 Section 25

12 Agrico Masjinerie (Edms) BPK v Swiers 2006 [6] SA 334 (C) @ 341 E F