Kloof Gold Mining Limited t/a Leeudoorn Gold Mine v Mnengele and another (LCC62/01) [2003] ZALCC 5 (10 February 2003)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Heard at RANDBURG on 10 February 2003 CASE NUMBER: LCC 62/01

before Gildenhuys J

Decided on: 10 February 2003

In the case between:

KLOOF GOLD MINING LIMITED t/a

LEEUDOORN GOLD MINE Applicant

and

MNENGELE, J Q First Respondent

MNENGELE, G N Second Respondent

JUDGMENT

GILDENHUYS J:

The first respondent was previously employed by the applicant. By reason of his employment agreement, the respondents were allowed to occupy married quarters on the farm Leeudoorn, at Glenharvey (“the premises”). The first respondent was retrenched from his employment with effect from 16 October 1998. His right of residence was cancelled. The first respondent, together with other retrenched employees, instituted proceedings with the Commission for Conciliation, Mediation and Arbitration and thereafter in the Labour Court, directed at setting their retrenchment aside. Due to procedural irregularities the proceedings in the Labour Court were dismissed on 13 December 2000.

Despite the cancellation of their right of residence, the respondents did not vacate the premises. The applicant applied in this Court for their eviction in terms of the applicable provisions of the Extension of Security of Tenure Act, Act 62 of 1997. After protracted litigation, a settlement was reached. By consent between the parties, an order containing inter alia the following terms was made on 29 July 2002:

“[1] The Respondents shall be entitled to remain in occupation of House No 3, Boiketlo Street, Leeudoorn Married Quarters, Farm Leeudoorn, Glenharvie (“the premises”) until 10 January 2003.

[2] That by no later than 10 January 2003 the Respondents and all those residing through and under them shall forthwith vacate the premises.

[3] Should the Respondents fail to comply with the order as set out in 2 above, the Applicant shall be entitled to instruct the Sheriff having jurisdiction to forthwith evict the Respondents and those living through or under them from the premises and the Sheriff is hereby authorised to do so.”

The remaining provisions of the order relate to undertakings given by the applicant, details of which are not relevant for purposes of this judgment.

By 10 January 2003 the respondents were still in the premises. A few days later they were evicted by Mr Koekemoer, a deputy sheriff working in the offices of the sheriff at Westonaria. He describes the eviction in an affidavit annexed to the applicant’s papers, as follows:

“Op 13 Januarie om 13:00 is genoemde hofbevel op beide verweerders beteken nadat die Behuisingsafdeling se personeel die woonhuis oopgemaak en slotte verander het, is die hofbevel uitgevoer en die Verweerders is uit die woonhuis gesit. Om 14:10 het beide Verweerders my verset om voort te gaan met die uitsetting. Hulle het die kombuisdeur se sleutel geneem waarop die behuisings personeel weer gekontak is om die slotte te verander. Om 16h30 is die woning deur my, die Adjunk gesluit na verskeie probleme ondervind is met die Verweerders. Die sleutel is oorhandig aan die Behuisings personeel."

The first respondent, in his answering affidavit, alleged that he was away on a medical consultation when his furniture and personal effects were removed from the premises. He maintained that he never encounted Mr Koekemoer. According to him, when he returned from the medical consultation, he found his furniture and personal effects strewn outside the premises, and the premises unlocked. He then moved back in. This version is patently false, and I reject it.

During the morning of the day after the eviction, the applicant discovered that the respondents had re-occupied the premises. This caused the applicant to bring an urgent application to this Court wherein the following relief was claimed: “1. DECLARING the First and Second Respondents in contempt of the above Honourable Court order dated 29 July 2002; 2. ORDERING the South African Police Services, Westonaria, to effect the arrest of the First and Second Respondents for contempt of the court order, trespassing and housebreaking; 3. ORDERING the removal of the First and Second Respondents and those living through or under them from the premises by the sheriff of the High Court having jurisdiction; 4. THAT the First and Second Respondents pay the costs of this application; 5. FURTHER and/or alternative relief." On 10 February 2003, after hearing argument by Mr Snider for the applicant and Mr Nkuhlu for the respondent, I made an order as follows: “[1] The respondents shall vacate the dwelling known as House No 3, Boiketlo Street, Leeudoorn Married Quarters, Farm Leeudoorn, Glenharvie (“the premises”) by not later than 13 February 2003. [2] The eviction order in para 1 must be carried out by the sheriff on or after 14 February 2003, if the respondents have not vacated the premises by the date set in para [1]. [3] Paras [2] and [3] of the Order of this Court dated 29 July 2002 are hereby amended, to the extent set out in paras [1] and [2] of this Order. [4] The respondents are hereby interdicted from entering or re-occupying the premises after they have vacated the premises in terms of para [1], or have been evicted from the premises in terms of para [2]. [5] The respondents must pay the costs of the applicant in the application initiated by notice of motion dated 29 January 2003." I undertook to give reasons for the order. This judgment contains my reasons. Mr Nkuhlu suggested that the applicant did not fulfill all its undertakings incorporated in the order of 29 July 2002, and that the respondents are thereby relieved from compliance with the order. There are no merits in this suggestion. The applicant, in its papers, demonstrated clearly that it did what it had to do in terms of the Order. Even if it did not comply with the order, such failure would be no justification for the respondents to move back into the premises. Some days after the eviction, the first respondent signed an affidavit in support of an application to the Labour Court for setting aside the order granted by the Labour Court on 13 December 2000 and for the reinstatement of the Labour Court proceedings. Mr Nkuhlu submitted that this application resuscitated the Labour Court proceedings on the question of whether the first respondent’s retrenchment was in accordance with the provisions of the Labour Relations Act, Act 66 of 1995. Until that dispute has been determined, so Mr Nkuhlu argued, the respondents’ right of residence cannot be cancelled. He relied on section 8(3) of the Extension of Security of Tenure Act, which reads: “Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.” In my view, the dispute concerning the termination of the first respondent’s employment was disposed of when the proceedings were dismissed on 13 December 2000. The first respondent’s right to occupy the premises was cancelled after that date, during May 2001. The mere bringing of a belated application to reinstate the matter in the Labour Court cannot, in my view, nullify the cancellation. As stated by Bam AP in Anglo Operations Limited t/a Kriel Colliery v Welcome Madlopha (LCC 02/01, 9 October 2001, unreported): “[9] The Court, in applying ESTA, must ensure that the right of residence has only been terminated after any dispute over the dismissal has been determined in terms of the Labour Relations Act. The word “determined” in this context cannot be interpreted to mean the final and ultimate exhaustion of all conceivable remedies which the respondent might still explore or, for that matter, to

mean the final and ultimate exhaustion, on his part, of all conceivable fora in which he might still challenge the validity of his dismissal either on the merits or even procedurally. Some criteria or limitation, in conformity with the Labour Relations Act, needs to be set to prevent the stalling of the granting of eviction orders merely by an assertion on the part of a respondent that it has not exhausted all its remedies.” The applicant is entitled to relief. Section 12(1)(b) of the Extension of Security of Tenure Act provides a mechanism for the carrying out of an eviction order. It must be done through the sheriff. I am not sure whether an eviction order given under the Extension of Security of Tenure Act can be, or should be, enforced through contempt proceedings. I will make no finding on that issue. I considered it more appropriate to amend my previous eviction order, which I was entitled to do under section 12(5) of the Extension of Security of Tenure Act, so as to make it possible for the sheriff to evict the respondents for a second time, should they not vacate the premises voluntarily. It was also expedient to grant an interdict, as Mr Snider asked me to do, in favour of the applicant to restrain the respondents from re-occupying the premises after they have been evicted. The respondents gave no acceptable reason why they re-occupied the premises after they were evicted. It was patently mischievous. That is sufficient reason for the Court to deviate from its usual policy of not making cost orders, and to order the respondents to pay the applicant’s costs. For the reasons set out above, I made the order contained in para [5] of this judgment. _______________________ JUDGE A GILDENHUYS 12 February 2003 For the applicant: Adv A Snider instructed by Leppan Beech Attorneys, Woodmead. For the respondents: Adv MG Nkuhlu instructed by GWE Attorneys, Johannesburg.

During the morning of the day after the eviction, the applicant discovered that the respondents had re-occupied the premises. This caused the applicant to bring an urgent application to this Court wherein the following relief was claimed:

“1. DECLARING the First and Second Respondents in contempt of the above Honourable Court order dated 29 July 2002;

2. ORDERING the South African Police Services, Westonaria, to effect the arrest of the First and Second Respondents for contempt of the court order, trespassing and housebreaking;

3. ORDERING the removal of the First and Second Respondents and those living through or under them from the premises by the sheriff of the High Court having jurisdiction;

4. THAT the First and Second Respondents pay the costs of this application;

5. FURTHER and/or alternative relief."

On 10 February 2003, after hearing argument by Mr Snider for the applicant and Mr Nkuhlu for the respondent, I made an order as follows:

“[1] The respondents shall vacate the dwelling known as House No 3, Boiketlo Street, Leeudoorn Married Quarters, Farm Leeudoorn, Glenharvie (“the premises”) by not later than 13 February 2003.

[2] The eviction order in para 1 must be carried out by the sheriff on or after 14 February 2003, if the respondents have not vacated the premises by the date set in para [1].

[3] Paras [2] and [3] of the Order of this Court dated 29 July 2002 are hereby amended, to the extent set out in paras [1] and [2] of this Order.

[4] The respondents are hereby interdicted from entering or re-occupying the premises after they have vacated the premises in terms of para [1], or have been evicted from the premises in terms of para [2].

[5] The respondents must pay the costs of the applicant in the application initiated by notice of motion dated 29 January 2003."

I undertook to give reasons for the order. This judgment contains my reasons.

Mr Nkuhlu suggested that the applicant did not fulfill all its undertakings incorporated in the order of 29 July 2002, and that the respondents are thereby relieved from compliance with the order. There are no merits in this suggestion. The applicant, in its papers, demonstrated clearly that it did what it had to do in terms of the Order. Even if it did not comply with the order, such failure would be no justification for the respondents to move back into the premises.

Some days after the eviction, the first respondent signed an affidavit in support of an application to the Labour Court for setting aside the order granted by the Labour Court on 13 December 2000 and for the reinstatement of the Labour Court proceedings. Mr Nkuhlu submitted that this application resuscitated the Labour Court proceedings on the question of whether the first respondent’s retrenchment was in accordance with the provisions of the Labour Relations Act, Act 66 of 1995. Until that dispute has been determined, so Mr Nkuhlu argued, the respondents’ right of residence cannot be cancelled. He relied on section 8(3) of the Extension of Security of Tenure Act, which reads:

“Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.”

In my view, the dispute concerning the termination of the first respondent’s employment was disposed of when the proceedings were dismissed on 13 December 2000. The first respondent’s right to occupy the premises was cancelled after that date, during May 2001. The mere bringing of a belated application to reinstate the matter in the Labour Court cannot, in my view, nullify the cancellation. As stated by Bam AP in Anglo Operations Limited t/a Kriel Colliery v Welcome Madlopha (LCC 02/01, 9 October 2001, unreported):

“[9] The Court, in applying ESTA, must ensure that the right of residence has only been terminated after any dispute over the dismissal has been determined in terms of the Labour Relations Act. The word “determined” in this context cannot be interpreted to mean the final and ultimate exhaustion of all conceivable remedies which the respondent might still explore or, for that matter, to

mean the final and ultimate exhaustion, on his part, of all conceivable fora in which he might still challenge the validity of his dismissal either on the merits or even procedurally. Some criteria or limitation, in conformity with the Labour Relations Act, needs to be set to prevent the stalling of the granting of eviction orders merely by an assertion on the part of a respondent that it has not exhausted all its remedies.”

The applicant is entitled to relief. Section 12(1)(b) of the Extension of Security of Tenure Act provides a mechanism for the carrying out of an eviction order. It must be done through the sheriff. I am not sure whether an eviction order given under the Extension of Security of Tenure Act can be, or should be, enforced through contempt proceedings. I will make no finding on that issue. I considered it more appropriate to amend my previous eviction order, which I was entitled to do under section 12(5) of the Extension of Security of Tenure Act, so as to make it possible for the sheriff to evict the respondents for a second time, should they not vacate the premises voluntarily. It was also expedient to grant an interdict, as Mr Snider asked me to do, in favour of the applicant to restrain the respondents from re-occupying the premises after they have been evicted.

The respondents gave no acceptable reason why they re-occupied the premises after they were evicted. It was patently mischievous. That is sufficient reason for the Court to deviate from its usual policy of not making cost orders, and to order the respondents to pay the applicant’s costs.

For the reasons set out above, I made the order contained in para [5] of this judgment.

_______________________

JUDGE A GILDENHUYS

12 February 2003

For the applicant:

Adv A Snider instructed by Leppan Beech Attorneys, Woodmead.

For the respondents:

Adv MG Nkuhlu instructed by GWE Attorneys, Johannesburg.