Geldenhuys v Thwala and Others (LCC18/05) [2005] ZALCC 7 (21 September 2005)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC18/05

Held in Randburg on 06 September 2005

Before Moloto J

Decided on: 21 September 2005

In the matter of :

HERMANUS CHRISTIAAN GELDENHUYS Applicant

And

THOMAS THWALA First Respondent

PIKI FRANCINA THWALA Second Respondent

BONGANI THWALA Third Respondent

THEMBA THWALA Fourth Respondent

THOMASANA THWALA Fifth Respondent

JUDGMENT

MOLOTO J:

The applicant seeks an order that the respondents remain evicted from the farm Waterval No. 138, Registration Division H.S., District Volksrust, Mpumalanga Province (“the farm”), pending the automatic review of the order of the Magistrate Volkrust, evicting the respondents from the farm. The magistrate’s order was granted in terms of the provisions of the Extension of Security of Tenure Act1 (“the Tenure Act”). Before the Magistrate’s order could be reviewed, the applicant approached this Court for an order that the respondents be evicted pending such review. The order was granted by default on 22 April 2005. The respondents applied for rescission of this Court’s order of 22 April 2005 on 26 April 2005. The application was dismissed on 3 May 2005, and the applicant caused the respondents to be removed from the farm in the period 4 to 11 May 2005.

The respondents subsequently launched two applications in the Land Claims Court under two separate case numbers LCC 39/2005 and LCC 52R/2005. It is not quite clear what the two applications entailed. It appears though, that one of the applications was before Bam P and the other before Meer J. what precipitated this application is the order by Meer J. She gave the following order in case number LCC 52R/2005 on 4 August 2005.

“The matter is remitted to the Magistrate’s Court. In view of paragraph 6.1 of

the Probation Officer’s report, the learned Magistrate is directed to deal with

this matter in terms of section 13 (1A) of the Land Reform (Labour Tenants)

Act, No.3 of 1996.”

Following the above order, a dispute arose between the parties or their legal representatives on the effect the order had on the order of this Court granted on 22 April 2005. Mr. Omar, acting for the respondents addressed a letter dated 22 August 2005 in the following terms to Mr. Grobler, attorney for the applicant:

“Our clients will bury their father, Mr. Thomas Thwala who has passed away

onto (sic) the farm.

On the 22nd April 2005 Judge Bam made the following order:-

‘That pending the automatic review of the order that was granted by the Magistrate’s Court for the District Volkrust under Case No. 222/2004 on the 4th April 2005, the respondents and any person claiming occupation through or under him or her be evicted from the farm Waterval 138 District Volkrust Mpumalanga Province…”

The automatic review was successful in favour of our client in that Judge Meer ordered:

‘The matter is remitted to the Magistrate’s Court. In view of paragraph 6.1 of the probation officers report, the learned Magistrate is directed to deal with this matter in terms of section 13(1A) of Act 3 of 1996’

The order secured by your client on 26th (sic) April 2005 was conditional upon the happening of an event. This event has now happened.

Our clients have been advised to move back onto and occupy the portion of the farm that they previously occupied, cropped and grazed. Our clients have also been advised that their rights as labour tenants onto (sic) the farm entitle them to bury their father on the farm.

If your client disagrees for any reason you are urged to launch an urgent application to the Land Claims Court. We will accept the service by way of fax.

The funeral of Bab Thomas Thwala is scheduled to take place on Saturday the 27th August 2005.”

The order of 22 April 2005 was not granted by Bam P, but by me.

In response, the applicant launched the present application. The application prays for an order varying the order of 22 April 2005 to read as follows:-

“That pending the finalization of the proceedings pending in the Magistrate’s Court for the District of Volkrust, under case number 222/04 including any

review thereof by the above Honourable Court, the respondents and any person

claiming occupation through or under him or her (sic), remain evicted from the

farm Waterval No. 318, district Volkrust, Mpumalanga Province (hereinafter

referred to as ‘the farm’), together with all their possessions and livestock”.

The respondents joined issue with the applicant on three in limine points before dealing with the merits, namely-

(1) the locus standi of the applicant

urgency and cause of action.

I deal with them seriatim.

(1) Locus standi

It was contended on behalf of the respondents that inasmuch as the applicant is not the owner of the farm, he had no real right to the farm hence had no standing to bring these proceedings. As authority for this proposition the court was referred to the case of Red Stripe Trading 68 CC v Khumalo Mudau Joseph2. That case is distinguishable on the facts from the this one. In that case – Red Stripe Trading – the applicant was neither the owner of the property or in possession (occupation) of such property to confer a right on him to evict the respondent. The applicant relied on a contract of purchase and sale. A contractual provision that a purchaser is deemed to be in possession or is obliged to take possession on a certain date, does not place such purchaser in such possession until he/she takes physical control (detentio) with the requisite intention to possess (animus possidendi) the property.

In casu the applicant leases the farm since 1991. He farms on it. The owner, who is also his father, gave him a Power of Attorney in 2003 to evict the respondents. The applicant is in physical control of the farm and has the necessary intention to exercise that control and be in possession of the farm. The owner of the farm deposed to an affidavit albeit with applicant’s Replying Affidavit, in support of the action taken by the applicant. The applicant is, accordingly, a person in charge as defined in the Tenure Act. The applicant has standing to bring these proceedings.

Urgency:

Mr. Omar contended that the application was not urgent, because, as he argued, the respondents had never threatened to go back to the farm. What happened, so the argument went, was that he advised them that they could go back because, the order of 22 April 2005 was no longer operative, and they in turn instructed him to communicate that viewpoint to the applicants’ attorneys. He further argued that the respondents merely wanted to bury the late Mr. Thomas Thwala on the farm. It was not intended that the second and third respondents would go to the farm as they were forbidden to do so by their bail conditions.

The above argument is not borne out by the letter of 22 April 2005 quoted above. In that letter, Mr Omar clearly informs the applicant’s attorney that:

his clients (respondents) will bury the late Mr. Thomas Thwala on the farm. The automatic review had been successful in favour of the respondents. the respondents (the second and third respondents not excluded) have been advised to move back on the farm. as labour tenants, the respondents are entitled to bury the late Mr. Thomas Thwala on the farm the funeral is scheduled for 27 August 2005. if the applicant disagrees with the above, the he is “urged to launch an urgent application” the respondents will accept service by facsimile.

The letter states clearly what the respondents intend, indeed threaten to do. There is no room for negotiation. The intention is to impose their will and within five days of the writing of the letter. That created urgency if a confrontation was to be avoided. There is a history, not absolutely relevant to the determination of the present dispute, of animosity between the parties. The tone of the letter underscores that animosity and respondent’s attorney urges an application on an urgent basis. I am satisfied that the matter was urgent.

(3) Cause of Action

The third point in limine was cause of action. It was argued that the requirements for the grant of the order prayed for by the applicant is urgency. In this regard reference was made to Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makins Furniture Manufacturers)3

I have already found that there was urgency, created by the letter of 22 August 2005 from respondents attorney. In the result, the applicant was justified in approaching this Court on an urgent basis to seek the relief sought in the notice of motion. To do otherwise might have resulted in an unpleasant confrontation, if the contents and tone of the letter of 22 August 2005 referred to, are anything to go by. (4) Merits:

On the merits it was argued, as the letter of 22 August 2005 states, that the effect of the order by Meer J on 4 August 2005 was to dispose of the automatic review and set aside both the order of the magistrate and that of this Court granted on 22 April 2005.

The order of Meer J is quoted above. It makes no reference to the order of the magistrate or of this Court. The order merely remits the matter to the magistrate for the magistrate to deal with the matter in terms of section 13(1A) of Act 3 of 1996. This, because of paragraph 6.1 of the probation officer’s report which reads:-

“6.1 The respondent strongly believes that he is a labour tenant and he has lodged a land claim with the Department of Land Affairs in terms of the

Labour Tenants Act”.

Mr. Omar further argued that in dealing with the matter in terms of section 13(1A) of the Land Reform (Labour Tenants) Act4, the magistrate would have to refer the matter back to the Land Claims Court without doing anything else because no oral evidence will have been led. Section 13(1A) provides that:

“(1A) With the exception of issues concerning the definition of ‘occupier’ in section 1(1) of the Extension of Security of Tenure Act, 1997, (Act No. 62 of 1997), if an issue arises in a case in a magistrate’s court or High Court which requires that court to interpret or apply this Act and –

no oral evidence has been led, such court shall transfer the case to the Court and no further steps may be taken in the case in such court;

any oral evidence has been led, such court shall decide the matter in accordance with the provisions of this Act”.

The argument that the magistrate will have to refer the matter to the Land Claims Court may be right. In such event it appears to me, the Land Claims Court would have to hear evidence and make a relevant finding. The order by Meer J. is silent on the order of 22 April 2005 and there is no reason for that order (of 22 April 2005) not to remain operative pending finalization of the matter.

Order:

1. The order that was granted by this Court on 22 April 2005 is varied to read as follows:-

That pending the finalization of the proceedings pending in the Magistrate’s Court for

the district Volkrust, under case number 222/2004, including any review thereof by the above Honourable Court, the Respondents and any person claiming occupation through or under him or her, remain evicted from the FARM WATERVAL No. 138, district VOLKRUST,

Mpumalanga Province (hereinafter referred to as ‘THE FARM’), together will all their possession and livestock”;

2. The respondents are ordered to pay the costs of this application jointly and severally, the one paying the others to be absolved.

____

JUDGE J MOLOTO

For the applicant :

Mr Verster instructed by Hennie Grobler attorneys

For the respondents:

Mr Omar from Zehir Omar Attorneys

1 Act No. 62 of 1997, as amended

2 Unreported Case No. 31039/04 WLD.

3 1977(4) S.A. 135 WLD

4 Act 3 of 1996, as amended