Joosten v Dlamini (LCC 122/2006) [2010] ZALCC 28 (30 November 2010)

1

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD IN DURBAN)

CASE NO.: LCC 122/2006

In the matter between:

ANDRE LUDWIG JOOSTEN ….........................................................APPLICANT

and

MZOKUFA DLAMINI ….................................................................RESPONDENT

Heard on : 23 November 2010

Delivered on : 30 November 2010

_____________

JUDGMENT

NCUBE AJ

Introduction

[1] The respondent, Mzokufa Hinot Dlamini, is a 63 year old African male, residing at Sand Spruit farm in the district of New Hanover in the Province of KwaZulu-Natal. I shall hereinafter refer to the said farm as (“the farm”). He seeks an order declaring him to be a labour tenant in terms of the provisions of the Land Reform (Labour Tenant Act 3 of 1996). I shall hereinafter, refer to this Act as (“the Act”).

Background

[2] This case has a long history. It is also unique in nature. It is unique in the sense that it proceeded to finality in the absence of the Applicant and his Attorney, Mr Justin Forster, of Foster Attorneys.

[3] On 29 August 2002, the Applicant obtained an eviction order against the Respondent from the Magistrate, New Hanover. The matter was referred to the Land Claims Court (LCC) for automatic review in terms of Section 19 (3) of the Extension of Security of Tenure Act1. (“ESTA”).

[4] The matter served before my sister Meer AJ (as she then was) who set aside the eviction order since there was no compliance with mandatory requirements for the granting of an eviction order set out in section 9 of ESTA2.

[5] On 5 October 2005, the Applicant filed another eviction application at the Magistrate Court, New Hanover, at the same time, alleging that mandatory statutory requirements had then been complied with3.

[6] On 25 April 2006, the Respondent deposed to an Answering Affidavit opposing the eviction application. The Respondent raised an argument, in a form of a special plea (point in limine), that he is a Labour Tenant4. Pursuant to the provisions of Section 13 (1A) of the Act, the Magistrate referred the eviction application to the LCC.

[7] Section 13 (1A) of the Act provides as follows:

“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 the Magistrate’s court or a 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.

-------------------------------------.”

[8] Section 1 of the Act defines the “Court” as meaning the “Land Claims Court established by Section 22 of the Restitution of Land Rights Act, (Act 24 of 1994).” It was therefore encumbent on the Magistrate to transfer the matter to the LCC as he did.

[9] The matter was initially allocated to Meer J who, on 05 November 2007 held a pre-trial conference. Paragraph 3 of the minutes of that particular pre-trial conference states as follows:

“3. It would appear that the following are the issues to be determined;

1) Are the (sic) ground for eviction of respondents under the Labour Tenant Act and ESTA;

2) Is respondent a labour tenant;

3) Is respondent an occupier,

[10] Later, the matter served before me. On 27 October 2008, I made the following order:

“Having read the papers filed of record

IT IS ORDERED

1. THAT the matter be and it is hereby referred to oral evidence

2. THAT the issues be and they are hereby seperated in terms of Rule 57

3. THAT the question of whether or not the respondent is a labour tenant is separated from the main application and will be determined

first.

4. THAT should there be potential witnesses who did not file affidavits, summaries of their evidence be prepared and exchanged

between the parties accordingly.

5. THAT documents and photographs to be used, if any, are to be exchanged in terms of the rules.

6. THAT depending on the availability of Counsel, the matter is set down for hearing at Pietermaritzburg High Court on 26 November 2008 at 10am.”

[11] On 10 November 2008, a letter reference JR Foster/ykb/SEE1.73, Foster Attorneys wrote to the Respondent’s Attorneys advising them that the dates 24 and 25 (should be 26) of November 2008, were no longer suitable to their client as he had other commitments. The matter was then adjourned sine die. On 21 November 2008, Forster Attorneys again wrote to Mr Nyathi of the LCC asking him to confirm that the matter had been removed from the trial roll on 26 November 2008.

[12] On 14 May 2010, the Registrar to Meer J, as she was then dealing with the matter, wrote to all the parties informing them that the matter would proceed to trial on 23 November 2010 in Durban at a venue to be determined. In a letter dated 2 September 2010 the Respondent Attorneys wrote to Forster Attorneys confirming that the matter was set down for 23 November 2010.

[13] On 17 September 2010 the Applicant’s Attorneys wrote to the Respondent’s Attorneys seeking an adjournment of the matter Paragraph 3 of that letter states:

“The dates which have been allocated for trial in November coincide with a most critical time for our client’s farming

operations, namely harvesting. The situation is even more critical because of the drought which has badly affected the area. As such, it is essential for our client to be present on the farm to oversee this process. In the circumstances, our client wishes to apply to adjourn the matter.”

[14] On 21 September 2010, the Respondent’s Attorney, Mr Singh, wrote to Applicant Attorneys referring to their letter dated 17 September 2010. Paragraph 2 of Mr Singh’s letter states:

“ Kindly take note that this matter was set down previously and on your request adjourned and is continuously being adjourned to the detriment of our client, as our client has waited a long time for this matter to be finalized and in this regard we do not consent to this matter being adjourned once again.”

Paragraph 3 of the same letter states:

“Our instructions are that if you intend pursuing for an application for an adjournment then in that event a formal application will need to be brought.”

Paragraph 4 of the same letter states:

“ Our client is suffering severe prejudice in the delay of being rightfully declared as a labour tenant and presently his tenure rights are being slowly eroded by your client, who initially instructed Eskom to cut of (sic) the electricity connections and subsequently our client has been deprived of access to water in terms of Section 27 and 27 (1) (a) of the Constitution of the Republic of South Africa, Act 108 of 1996 and despite the application being brought, your client is now unlawfully charging our client astronomical amounts for the water consumption, thereby precluding our client from the continued access to water.”

[15] On 28 October 2010, Mr Singh wrote to the Registrar of LCC asking for a pre-trial conference to be held. A telephonic pre-trial conference was arranged for the 16th of November 2010.

On 01 November 2010, the Applicant’s Attorneys wrote to Mr Singh stating:

“Our client has today instructed us that he wishes to withdraw the application to evict the Respondents. We note from the Rules of Court that, once a date for trial has been set, this can only be done by consent between the parties, or with the leave of Court. In the circumstances, kindly advise us whether you are prepared to consent to withdrawal of the application, our client tenders your wasted costs.”

Mr Singh responded to the above mentioned letter and stated in paragraph 2 thereof:

“We have concerns hereto as it is our submission that our client has lodged a counter application to be declared a labour

tenant and that matter can proceed to trial on that date”

Pre-trial conference

[16] A telephonic pre-trial conference was held on 16 November 2010. The Applicant’s intention to withdraw the application was discussed. Mr Forster who represented the Applicant at the pre-trial conference, confirmed that the Applicant intended withdrawing the application. Mr Singh repeated his concerns about the Respondent’s counter application. In fact there was no counter application but a point in limine which had to be decided first. It was immediately clear that Mr Singh was not consenting to the withdrawal of the application. Needless to say, in the absence of any formal application, the Court could not have granted leave to withdraw the application.

[17] At the pre-trial conference, Mr Forster indicated that the matter could proceed to trial on 23 November 2010 in his absence and that of his client. In addition, on 12 November 2010, Forster Attorneys had written to Mr Singh stating:

“There is nothing to prevent you from proceeding with your counter application”

Withdrawal of Cases

[18] Rule 27 of the Rules of LCC provides:

“(1) Any party that has initiated a case in the Court may withdraw that case by delivering a Notice of Withdrawal 

(a) at any time before a date for the hearing has been determined;

or

(b) thereafter, only with the consent of all participating parties or by leave of the Court;

(2) -------;

(3) --------“.

Notice of withdrawal

[19] Despite the fact that Mr Singh never consented to the withdrawal of the application, on 16 November 2010 Forster Attorneys went on and filed a Notice purporting to withdraw the application at the same time tendering to pay the Respondent’s wasted costs. There is no doubt that a Notice of Withdrawal which is filed in contravention of the Rules is invalid and ineffective5.

Is the Respondent a labour tenant ?

[20] Section 1 of the Act defines a “labour tenant” as meaning a person:

(a) who is residing or has the right to reside on a farm;

(b) who has or has had the right to use cropping or grazing land on the farm, referred to in paragraph (a) or another farm of the owner, and in consideration of such right provides or has provided labour to the owner or lessee; and

(c) whose parent or grand parent resided or resides on a farm and had the use of cropping or grazing land in such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm,

including a person who has been appointed a successor to a labour tenant in accordance with the provisions of section 3 (4) and (5), but excluding a farm worker.

A “farm worker” is defined as:

“A person who is employed on a farm in terms of a contract of employment which provides that –

in return for the labour which he or she provides to the owner or lessee of the farm, he or she shall be paid predominantly in cash or in some other form of remuneration and not predominantly in the right to occupy and use land; and

he or she is obliged to perform his or her services personally.”

Evidence

[21] In the absence of the Applicant, the Respondent was the only witness who gave evidence at the trial. He testified to the effect that he was born on a farm called Bloemfontein in the district of New Hanover. His father was Nkunzana Dlamini (Nkunzana) who was

also born on the same farm. Nkunzana resided on Bloemfontein. He also worked there. That farm was owned by one Jerry Maritz (Mr Maritz). Nkunzana was given the right to reside, crop, graze and bury the deceased members of his family on Bloemfontein farm. Those rights formed part of Nkunzana’s remuneration. In addition to those rights, he was paid an amount of fifteen (15) shillings per month.

[22] At some stage, Nkunzana retired. He left Bloemfontein and relocated to the farm which was, by that time owned by Mr Horgan Joosten, the father of the Applicant in this case. The Respondent and his brothers remained on Bloemfontein farm. The Respondent’s elder brother was the first one to provide labour on Bloemfontein after Nkunzana had left. At some stage, the Respondent’s elder brother absconded. The Respondent was then the next in line to provide labour on Bloemfontein. As payment for his services, the Respondent was given the right to reside, crop and graze cattle on that farm. He was not married by then, but he had four children born out of wedlock. As part payment, he was also paid one (1) pound and five (5) shillings.

[23] Respondent fell sick and could no longer provide labour to Mr Maritz. His younger brother took over. People on the farm informed Mr Maritz that as the Respondent was sick, he was about to become an isangoma. Mr Maritz expelled them from his farm. They vacated Bloemfontein and relocated to the farm where their father was. It is important at this stage to mention that the Respondent’s

father never provided labour to Mr Horgan Joosten. He was merely given a plot to build his homestead, he was also given the right to crop and graze cattle. He had ten cattle which he brought to the farm from Bloemfontein.

[24] It was in 1974 when the Respondent arrived at the farm. He, together with his two younger brothers provided labour on the farm. He was cutting sugar cane, peeling off wattle bark and performing general farm duties. Three years later, he was made an Induna on the farm. On his arrival on the farm, the Respondent was residing in his father’s kraal. At this stage, he started purchasing his own cattle. He was given the right to reside and graze his cattle. At that stage the right to crop only vested in his father.

[25] In 1979 the Respondent was given a plot to build his own kraal. By this time, he had ten cattle and nine children. The farm was still under the ownership of Mr Horgan Joosten. In addition to the right to graze stock, which had been given earlier on, the

Respondent was given the right to crop, reside and to bury the deceased members of his family. In consideration of these rights, he provided labour to Mr Horgan Joosten. As a further compensation for his services, he was also paid six (6) pounds (R12.00) per month.

[26] The Respondent testified that without the right to crop and graze cattle he would not have been able to support himself, his wife and nine (9) children with the salary of twelve (R12.00) rands which he earned. He milked his cows, cropped potatoes, maize

and beans.

[27] Later on Mr Horgan Joosten transferred the ownership of the farm to the Applicant. Respondent continued providing labour to the Applicant. In 2001, there was some misunderstanding between them and the Respondent was dismissed. By that time, he was earning one thousand one hundred (R1, 100.00) rands. That is when trouble started. He was ordered to reduce his sixteen (16) herd of cattle to eight (8). He was not allowed to crop on a large scale, only a small plot was allocated to him for cropping purposes. When his wife passed away, he was not allowed to bury her on the farm. He approached the LCC but he lost the case. He took the matter up with the Supreme Court of Appeal. The appeal was allowed and he was able to bury his wife on the farm.

[28] There was no evidence led on behalf of the Applicant to gainsay the version of the Respondent. For a person to be a labour tenant he must fit the definition of “labour tenant” in the Act. There can be no doubt that the Respondent satisfies the definition of a “labour tenant.” He resides on the farm and he has resided there since 1974. He has and has had the right to use cropping and grazing land on the farm and in consideration of those rights he provided labour to Mr Horgan Joosten and later, to the Applicant who were owners of the farm and the Respondent’s father, Nkunzana, was a labour tenant on Bloemfontein farm which was owned by Mr Maritz.

[29] I must hasten to add that the Respondent’s father, Nkunzana was never a labour tenant on the Joostens farm. However, the Act requires the parent or grandparent to have been a labour tenant on any farm not necessarily the same farm on which the Respondent is resident. This is apparent from the use of “a farm” and not “the farm” in paragraph “c” of the definition6.

Costs

[30] Mr Singh has asked me to make an order of costs against the Applicant. It is the practice in this Court not to make costs orders unless there are exceptional circumstances justifying such an order. However, each case must be treated on its own merits. In my view, this is one of those cases where exceptional circumstances are shown to exist, justifying an award of costs. The manner in which the case was handled by the Applicant leaves much to be desired.

[31] The Respondent’s troubles started in 2002. The Applicant is the one who dragged the Respondent to Court. The case was constantly adjourned at the request of the Applicant. After the case had been set down for the hearing, the Applicant requested

yet another adjournment. The only reason given for the adjournment was that the Applicant had to oversee the harvesting process as it was the harvesting season. When the request was rejected, the Applicant simply “withdrew” the application. In my view, the application was initiated in order to harass the Respondent. A costs order is justified under these circumstances.

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

It is declared in terms of Section 33 (2A) of the Land Reform (Labour Tenants) Act 3 of 1996 that the Respondent is a Labour Tenant.

The Applicant is ordered to pay the costs.

____

NCUBE A J

LAND

CLAIMS COURT

For Applicant: No Appearance

For Respondent: Mr S Singh

Sundeep Attorneys

Pietermaritzburg

1Act 62 of 1997 as amended

2See Case LCC 94R/02

3See paragraph 7 of the Founding Affidavit.

4See page 5 paragraph 2.6 of the Answering Affidavit.

5See Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460 (E) at 465 G

6Ngcobo and Others v Salimba cc, Ngcobo and Others v Van Rensburg 1999 (2) SA 1057 (SCA) at 1072 H-I