Isedor Skog N.O. and Others v Koos Agulus and Others (LCC88/2019) [2021] ZALCC 13 (7 July 2021)

REPUBLIC

OF SOUTH AFRICA

IN THE LAND

CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG

CASE NO: LCC88/2019

REPORTABLE:

NO OF INTEREST TO OTHER JUDGES: NO REVISED: NO

In the matter between:

ISEDOR

SKOG N.O. 1st Applicant

REINETTE SKOG N.O. 2nd Applicant

HENDRIK

COLLINS GERRYTS N.O. 3rd Applicant

and

KOOS AGULUS AND 25 OTHERS 1st to 26th Respondents

DRAKENSTEIN

MUNICIPALITY 27th Respondent

HEAD:

WESTERN CAPE PROVINCIAL DEPARTMENT

OF RURAL DEVELOPMNET AND LAND REFORM 28th Respondent

JUDGMENT

NCUBE AJ

Introduction

[1] This is an application for leave to appeal. The Applicants seek leave to appeal to the Supreme Court of Appeal against the whole judgment and order of this court, delivered on 18 February 2021, dismissing the Applicants’ eviction application (“original application”). The Applicants also seek leave to appeal against this court’s refusal to grant an order of costs against the Department of Rural Development and Land Reform (“the Department”).

Grounds of Appeal

[2] There are several grounds of appeal. The first and main ground is that this court erred in dismissing the application on the basis that the Applicants failed, in their original application to attribute specific acts of wrongdoing to any individual Respondent. I now deal with that ground of appeal.

1.1. In the main, the original application was premised on irretrievable breakdown of a relationship between the Applicants and the first to twenty sixth respondents (“occupier Respondents”) in terms of section 10(1)(c) of the Extension of Security of Tenure Act, Act 62 of 1997 (“ESTA”). It might be useful to revisit section 10 of ESTA. It provides:

“Order for eviction of person who was occupier on 4 February 1997

10. (1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if—

(a) the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;

(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar months’ notice in writing to do so;

(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or

(d) the occupier—

(i) is or was an employee whose right of residence arises solely from that employment; and

(ii) has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act.”[1]

1.2. There are different families, including children and elderly people who reside on this particular farm as occupiers with the consent or knowledge of the owner or person in charge. The Trust which owns the farm contends that the cottages occupied by the Respondents are dilapidated, that the sewage system has been destroyed as a result of baby nappies and large amount of toilet paper being flushed down the toilet, the electrical installation has been destroyed, there are stray dogs on the property, there are people walking on the property, strangers, water and human waste are disposed of below the cottages.

1.3. Since the Applicants cannot say who is causing all the damage complained of, they contend that all the families, without exception should leave the farm. There is no justification for this mass eviction. The occupier Respondents deny that they are responsible for all the atrocities mentioned by the Applicants. In fact, the occupier Respondents say some wrongdoings might even be attributed to the Applicants’ present employees and the Applicants cannot deny this since they do not know who is responsible for all these wrongdoings. The Applicants could not point to any authority which says the owner of the farm can evict all occupiers from the farm if the owner does not know which occupier is responsible for certain acts on the farm.

1.4. In terms of ESTA, the occupier Respondents have a right of residence on that particular farm. The source of that right is the consent, express or tacit granted by the Trust. That right can be terminated by following the procedure prescribed by section 8 of ESTA. Reasons for termination of the right of residence of each occupier must be given. In terms of section 8(4) of ESTA, the right of residence of a long term protected occupier may not be terminated, unless that occupier has committed an act mentioned in section 10(1)(a), (b) or (c). If there were long term protected occupiers amongst the occupier Respondents, it was incumbent on the Trust to say what exactly those occupiers did.

2. The further ground of appeal which the Applicants rely upon, is that the Occupier Respondents can have no greater right than employees. In this ground of appeal, the Applicants rely on the provisions of section 10(3) of ESTA. The Applicants forget that ESTA provides that in the circumstances mentioned in section 10(3), an order of eviction can be granted only if it is just and equitable to do so. The Occupier Respondents were on the farm before the Applicants came with their employees. It can never be just and equitable to evict the occupiers just because they are not employed on the farm and the owner needs cottages to accommodate his employees. The Occupier Respondents’ right of residence flows from consent not from employment. Therefore, it is wrong to say since the Occupier Respondents are not employed there, they must simply leave the farm.

2.1. The fact that this court did not mention section 10(3) in its judgment, does not mean that the section was not considered. In R v Dhlumayo and Another[2]- dealing with principle No 12, in that judgment, Davis AJA said:

“An Appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial judge. No judgment can ever be perfect and all- embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.”

Costs

[3] The Applicants contend that the court erred in not ordering the Department to pay to pay costs occasioned by the adjournment on 25 November 2019, although the Department had failed to give reasons why it should not pay the costs. During the hearing of the application, Mr Wilkin, counsel for the Applicants, never insisted on the payment of costs by the Department. Had he done so, the Department was to be ordered to pay the costs occasioned by the adjournment on 25 November 2019 on a punitive scale as between attorney and client.

The Law

[4] Leave to appeal is granted only in those instances where there is a reasonable prospect of success on appeal. Section 17(1) of the Superior Courts Act[3] provides:

“leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)(i) the appeal would have a reasonable prospect of success, or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matters under consideration….”

[5] In MEC Health Eastern Cape v Mkhitha[4]

Schippers AJA said:

“An Applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”

In this case, although there is no reasonable prospect of success on appeal, in my view, there is a compelling reason in terms of section 17(1)(a)(ii) why the appeal should be heard. The Supreme Court of Appeal will be required to pronounce on the application by the landowners for an order of mass or blanket eviction of all Respondent Occupiers based on the irretrievable breakdown of the relationship without attributing specific acts of wrongdoing to specific occupiers or families. Secondly, the Supreme Court of Appeal will be required to order the Department to pay costs occasioned by the adjournment of the matter on 25 November 2019.

Order

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

1. Leave to Appeal to the Supreme Court of Appeal is granted.

2. Costs will be costs on appeal.

M

T NCUBE

Acting Judge of the Land Claims Court of

South Africa, Randburg

Date judgment reserved: 14 June 2021

Date judgment delivered: 07 July 2021

Appearances

For the Applicant: Adv. L.F. Wilkin

Instructed by: Meyer Sarkas Inc, 8 Kloof Street, Gardens, Cape Town.

For the First to Twenty Sixth Respondents: Adv. Dzai

Instructed by: Wakaba & Partners Inc, 29 Guillaume Avenure, Bordeaux, Randburg

[1] Section 10(1)(c) of Act 62 of 1997

[2] 1948 (2) SA 677 at 706

[3] Act 10 of 2013

[4] (1221/15) [2016] ZASCA 176 (25 November 2016) para 17