Kriek v Buthelezi (LCC24/01) [2003] ZALCC 39 (26 September 2003)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC24/01

Held in Vryheid on 4 June 2002, 4 - 6 March 2003, 4 September 2003

before Moloto J

Decided on : 26 September 2003

In In the matter between:

J P KRIEK Plaintiff

and

M BUTHELEZI Defendant

JUDGMENT

MOLOTO:

[1] This is an action for the eviction of the defendant from the farm commonly known as Broedersrust (also known as Tochgevonden), in the district of Ngotshe, KwaZulu-Natal. I shall refer to it as the "farm". The plaintiff is a major male farmer on and owner of the farm. The defendant is a major male resident on the farm.

[2] The plaintiff instituted the action in the Magistrate's Court for the district of Ngotshe held at Louwsburg in terms of the Extension of Security of Tenure Act.1 (The "Tenure Act"), The defendant pleaded that he was not an occupier as defined in the Tenure Act, but that he was a labour tenant as contemplated in the Land Reform (Labour Tenants) Act2 (the "Labour Tenants Act"). Section 13(1A) of the Labour Tenants Act provides:

"(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 a High Court which requires that court to interpret or apply this Act and -

(a) 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:

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

[3] A "Court" is defined in the Labour Tenants Act as "the Land Claims Court established by section 22 of the Restitution of Land Rights Act, 1994 (Act No 22 of 1994)"

[4] The case was transferred to this Court in terms of section 13 (1 A) (a) of the Labour Tenants Act. I determine first whether the defendant is a labour tenant within the meaning of that term as defined in the Labour Tenants Act. The Labour Tenants Act defines a "labour tenant" as :

"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 grandparent resided or resides on a farm and had the use of cropping or grazing land on 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 appa inted a successor to a labour tenant in accordance with the provisions of section 3(4) and (5), but excluding a farmworker."

[5] A farmworker is, in turn, defined as:

"a person who is employed on a farm in terms of a contract of employment which provides that-

(a) 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

(b) he or she is obliged to perform his or her services personally."

[6] The defendant testified that he has been on the farm for more than 20 years, having come there at the plaintiff's request. On the farm he provided labour to the plaintiff, herding the latter's cattle and wild life. The plaintiff runs a game reserve. The defendant was also a guide to hunters on the farm. The defendant testified that when he came to the farm, he had 20 cattle of his own and was later told by the plaintiff to reduce them to 12. He was paid R10,Q0 per month which was later increased to R50.00. By the time his services were terminated by the plaintiff in 2000 he was earning Rl 50,00 per month. The defendant came with his wife and children to the farm. He has 11 children.' The defendant further testified that his father Used to reside on another farm belonging to one Buys, to whom he provided labour in return for residing and using the land. He was paid nothing because the owner of that farm said the farm belonged to "them". It appears the "them" refers to Buys and the defendant's father. Defendant's father cropped and grazed his livestock on Buys' farm.

[7] The plaintiffs testimony on the working conditions of the defendant were somewhat different. The defendant is said to have worked for the plaintiff for 15 years from 1985 to 2000. According to the plaintiff the defendant was paid R50.00 per month when he started working on the farm. By the time his services were terminated he earned R 150,00 per month. He received 1 x 80kg bag of either mealies or mealie meal per month. The defendant also shared with other guides 2lA% of the amount paid by the hunters. There were three guides including defendant. Hunting took place seasonally, from April to September

each year. Hunting lasted five days at a time and income per hunt averaged R15 000,00 to R20 000,00. The defendant's children were

allowed to sell wood from wattle trees from the farm for their own account. Defendant's son made on average R300.00 per load of wood. The guides also received tips from the hunters, which, according to the plaintiff, were not included in their remuneration. The defendant was allowed to graze cattle on the farm.

[8j It is not possible to determine, from the evidence of the plaintiff, just how much the defendant earned per month. This is so because it is not stated how many hunts were conducted each month. Besides, hunting is said to have taken place during the months April to September only. This would mean that the defendant would have earned considerably less out of season. Considering all the evidence I find that the defendant satisfies the requirements of paragraphs (a), (b) and (c) of the definition of labour tenant. Therefore section 2(5) of the Labour Tenants Act applies. That subsection provides :

"(5) If in any proceedings it is proved that a person falls within paragraphs (a), (b) and (c) of the definition of 'labour tenant', that person shall be presumedrnot to be a farmworker, unless the contrary is proved

The defendant has not proved that the plaintiff is a farmworker.

[9] Requirements for eviction

The requirements for the eviction of a labour tenant are regulated in section 7 of the Labour Tenants Act. The relevant part of the section is 7(2) (b) and reads as follows:

" (2) No order for eviction in terms of section 5 shall be made unless it is just and equitable and -

(a) . . . . .

(b) the labour tenant or his or her associate has committed such a material breach of the relationship between the labour tenant or associate and the owner or lessee, that it is not practically possible to remedy it, either at all or in a manner which could

reasonably restore the relationship."

[10] The plaintiff testified that the relationship between the defendant and himself had broken down irretrievably for the following reasons which occurred over a period of time:

The defendant does not maintain the fence of the camp in which his cattle graze, with the result that they stray onto the public road running through the farm, thereby causing a hazard for vehicular traffic. The plaintiff stopped farming with cattle some time ago and when that happened, the responsibility to maintain the fence for livestock fell on the defendant who is the only person still keeping cattle on the farm.

The defendant digs herbs and other plants from the farm without the plaintiff's consent and debarks others, causing them to die. Even when the plaintiff askedhim to desist from doing so, he did not stop. The defendant is a herbalist/traditional healer, but is not registered as such with the relevant authorities. As such he also has no permission from such authorities to dig what plaintiff calls protected plants.

The defendant intimidates the plaintiff and threatens him with violence. .The plaintiff is fearful of him.

There is bird-watching on the plaintiff's farm and many people come to watch the birds. Once the defendant picked up for his own use the mealies which the plaintiff had hand-out for the birds on the farm. When plaintiff confronted defendant, he became aggressive.

The defendant was convicted in the Ngotshe Magistrate's Court for the contravention of section 39(1) of Ordinance 15 of 19743 in that he unlawfully possessed, traded in or handled game and reptiles. He had been found in possession of the skin of a python,

the skin of an iguana, the head of a vulture, two horns of an antelope (a duiker) and one horn of an impala. The python, iguana

and vulture were described in the charge sheet as protected reptiles and bird.

The plaintiff has chalets on the farm and there are sprinklers for irrigation around them. He testified that a sprinkler hose-pipe was found at the defendant's home, one kilometre from the chalets. He confronted the defendant about the sprinkler hose-pipe and since then the defendant refused to check the chalets (one of his duties) because he was "accused" of stealing the said hose-pipe.

When the plaintiff still kept cattle the defendant refused to help with the dipping and herding of the plaintiff's cattle.

[11] The defendant denied intimidating the plaintiff and dealing in the plaintiff's game, reptiles and birds. He contended that he killed the python because it was killing his chickens. The iguana appeared from an over-flowing stream and was attacked and killed by his (defendant's) dog. The horns he said he picked up near where hunters had skinned game. The rest of the reasons for the break-down in relations were not contested. As regards the criminal conviction, it is important to note that the defendant did not appeal against the conviction and sentence. A transcript of the criminal proceedings was filed. This Court cannot re-try the defendant, but can only accept the conviction and sentence.

[12] After the'conviction of the defendant for dealing'in pfotected reptiles and bird,* the plaintiff terminated the defendant's

employment and right of residence on the farm. This was done after a disciplinary inquiry was held in terms of the Labour Relations Act.4 The defendant refused to answer to the charges put to him in the disciplinary inquiry and walked out of the inquiry.

[13] I am satisfied that sufficient grounds exist for me to find that a breakdown of the relationship between the parties occurred in the manner contemplated in section 7(2) (b) of the Labour Tenants Act, and that it is not practically possible for the relationship to be restored.

[14] Formalities for eviction in terms of the Labour Tenants Act

Section 11 of the Labour Tenants Act provides that:

"(1) An owner who intends to evict a person in terms of the provisions of this Chapter, shall give the labour tenant and the Director-General not less than two calender months' written notice of his or her intention to obtain an order for eviction.

(2) The notice referred to in subsection (1) shall, in addition to any prescribed particulars, also contain the grounds on which such intended eviction is based.

(3) The Director-General shall during the period referred to in subsection (1) convene a meeting between the labour tenant and the owner in order to attempt to mediate a settlement of the dispute between the labour tenant and owner."

The defendant had pleaded that the plaintiff had not complied with the provisions of this section, therefore the action for eviction must fail. The plaintiff's case was instituted in terms of the Tenure Act as the plaintiff was of the view that the defendant is an occupier as contemplated in the Tenure Act. The Tenure Act has a provision in section 9 similar to that in section 11 of the Labour Tenants Act. The relevant pan of the provision reads as follows: -

"(2) A court may make an order for the eviction of an occupier if-

(a) . . . .

(b) . . . .

(c) . . . . .

(d) the owner or person in charge has, after the termination of the right of residence, given -

(i) the occupier;

(ii) the municipality in whose area of jurisdiction the land in question issituated: and

(iii) the head of the relevant provincial office of the Department of LandAffairs, for information purposes,

not less than two calender months' written notice of the intention to obtain an • order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based:..,"

The plaintiff gave notice in terms of the abovementioned subsection. Whereas this subsection states that the notice to the provincial

office of the Department of Land Affairs is for information purposes, subsection 11(3) of the Labour Tenants Act enjoins the Director-General to attempt to mediate the dispute between the parties. In casu Mr Etienne Cronje ("Cronje") testified on behalf of the plaintiff. He stated that he is employed as a principal planner in the provincial office of the Department of Land Affairs. He became aware of the dispute between the parties at a time when he was the acting head of the office. He attempted to mediate the dispute by finding the defendant alternative accommodation. He personally went with the defendant to two farms, one belonging to a Mr Jan du Plessis and the other to a Mr Van Niekerk. The defendant inspected both farms and rejected them. On being asked whether further alternative land should be sought, he said he was not interested. Although these attempts were in terms of the Tenure Act, and were primarily aimed at precuring suitable alternative accommodation, I find that in the circumstances of this case there was substantial compliance with the provisions of Section 11 of the Labour Tenants Act. I am satisfied that the efforts by Cronje in trying to mediate the dispute comply substantially with the provisions of section 11 of the Labour Tenants Act.

[15] Further attempts at resolving the dispute

The plaintiff testified that he made several attempts to find suitable alternative accommodation for the defendant but that the defendant rejected all offers. First, the plaintiff suggested relocating the defendant to a safe place near schools, water, grazing and ploughing land, as leopards had been seen near his house. The defendant made a counter-suggestion that the plaintiff finds him a plot in Louwsburg. The plaintiff found a 2 to 3 hectare plot at a cost of R4 500,00 which the plaintiff was prepared to pay. The defendant rejected it. The plaintiff found another, bigger and improved piece of land. It was a 3 to 4 hectares plot with three houses, one of which was incomplete. It cost R9 000,00 and the plaintiff offered to pay half the price and that the defendant pays the other half. The plaintiff further offered block bricks and corrugated iron from his farm and transporting them so that the incomplete house could be completed. The defendant said he did not have R4 500,00 to meet his side of the bargain. The plaintiff offered topay the full R9 000,00, but still the defendant rejected the offer, notwithstanding that his wife liked the place. The defendant appeared not to want to resolve the dispute. This attitude was evinced even in Court. His demeanour was one of entitlement to staying where he currently stays. The plaintiff has made out a case for eviction of the defendant from the"farm. '

[16] Consequences of an order for eviction

The defendant testified that he was illiterate. He could not provide dates or periods during which incidents were alleged to have

occurred. Healsosraied that he was innumerate. Yet he testified that his 13 huts on the farm have a value of £50 000,00. He said he cannot calculate in rands. In the event of an eviction order being granted, he wants compensation for the huts. It is not possible to determine the compensation on the evidence tendered, but the Court must make a determination to the extent that it is just and equitable. The matter had not been sufficiently canvassed at the trial, hence I requested the legal representatives of the parties to submit further argument on the point. Mr Van der Merwe submitted lengthy argument dealing with the point under both the Tenure Act and the Labour Tenants Act. In the light of my findings on the status of the defendant under the two Acts, I will deal only with the submissions relative to the Labour Tenants Act. He submitted that the Court has discretion not to make an order that the landowner pays compensation to the labour tenant upon eviction. Section 10 of the Labour Tenants Act provides as follows: -

"(1) If the Court makes an order for eviction in terms of section 7 -

(a) the Court shall order the owner to pay compensation to the extent that it is justand equitable; and

»

(b) the Court may order the owner to give the labour tenant a fair opportunity to -

(i) demolish such structures and improvements as were erected by thelabour tenant and his or her associates or predecessors, and to removematerials so salvaged; and

(ii) tend a crop to which he or she is entitled, until it is ripe and thereafterto reap and remove it

(2) The compensation referred to in subsection (1) shall be determined by the Court as being just and equitable, taking into

account -

(a) the replacement value of such structures and improvements;

(b) the value of materials which the labour tenant may remove;

(c) the value of materials supplied by the owner or his or her predecessors for the erection of such structures and improvements;

(d) if the labour tenant has not been given the opportunity to remove the crop, the value of the crop; and f

(e) the circumstances which gave rise to the eviction, including the conduct of theparties.

(3) No order for eviction made in terms of section 7 may be executed before the owner has paid the compensation which is due in terms of subsection (1)."

The conduct of the defendant leading up to the eviction proceedings is detailed above. So also the various attempts by the plaintiff and the Provincial office of the Department of Land Affairs to provide the defendant with suitable alternative accommodation. The defendant rejected all such offers out of hand. He did not try to co-operate. On the contrary he appeared to want to make it difficult to reach a settlement. He appeared to be motivated*by a belief that he is entitled to stay on the plaintiff's land irrespective of his conduct towards the plaintiff or his property. The defendant has no such absolute entitlement. In the premises I find it is not just and equitable to order the plaintiff to compensate the defendant in terms of section 10(1) (a) of the Labour Tenants Act. An order in terms of subsection (l)(b) of that section would, however, be appropriate.

[17] Costs

This Court has determined in a number of cases5 that it does not make an order for costs as it is seized herewith social legislation. Only in exceptional circumstances would an order for costs be made. The hearing of the case was previously postponed twice at the instance of the defendant. On both occasions the reason for the postponement was that the defendant had withdrawn instructions from his attorney. After withdrawing instructions on the second occasion, he instructed the earlier attorney from whom he had withdrawn instructions in the first place. Mr Van der Merwe, for the plaintiff, argued that these were exceptional circumstances justifying an order for payment of wasted costs occasioned by the postponements. The argument went on to say that the respondent had withdrawn instructions from the first attorney because the defendant did not have confidence in or trust him or her. Therefore, when he returns to the self-same attorney after withdrawing from the second one, he abused the Court process and should be mulcted with an order for costs. Mr Kabini, for the defendant, argued that the defendant had not withdrawn for lack of trust from the first attorney but because of some problems with legal aid.

The problems were not spelt out. No evidence under oath was proffered on the reasons for withdrawing instructions. The defendant should have tendered some explanation for the change of attorneys if he wanted to escape being mulcted with an order for costs. The explanation that there was a problem with legal aid does not say much, as that problem would still arise with the next legal representative. There is merit in plaintiff's case for wasted costs occasioned by the two postponements.

[18] The following order is made:

(1) The defendant is ordered to leave the farm Tochgevonden together with all those claiming to reside on the said farm through him, and remove all his livestock and other property from the said farm on or before 7 January 2004.

(2) Should the defendant not leave the farm Tochgevonden and remove his property as stated in paragraph (1), the Sheriff is authorised and ordered to evict the defendant and all those residing on the said farm through him and remove his livestock and other property on or after 14 January 2004.

(3) The plaintiff is ordered to give the defendant a fair opportunity to­-

(i) demolish such structures and improvements as were erected by the defendant and his associates or predecessors, and to remove materials so salvaged; and

(ii) tend a crop to which he is entitled, until it is ripe and thereafter to reap and remove it.

(4) The defendant is ordered to pay the wasted costs occasioned by the postponements on 25 February 2002 and 4 June 2002.

(4) But for the order in (4) above, no order as to costs is made.

JUDGE

J MOLOTO

For the plaintiff:

Mr A B T Van der Merwe from Cox & Partners, Vryheid

For the defendant:

Mr Kabini instructed by Loots Attorneys, Vryheid

LCC 24/01

JP KRIEK v M BUTHELEZI

(26 September 2003)

The plaintiff instituted an action for the eviction of the defendant from his farm in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The defendant however pleaded that he was a labour tenant as contemplated in the Land Reform (Labour Tenants) Act 3 of 1996 (hereinafter referred to as the Act).

The presiding judge compared the definitions of " farm worker" to the definition of "labour tenant" in the Act and found that the defendant was not a farm worker, but in fact a labour tenant.

It was further found that the requirements for the eviction of a labour tenant in terms of Section 7(2)(b) of the Act were complied with in that sufficient grounds existed to cause a breakdown in the relationship between the parties.

The plaintiff gave notice in terms of Section 11(1) of the Act and complied with section 9 of EST A. He furthermore referred the matter to an official of the Department of Land Affairs who attempted to mediate the dispute. The plaintiff also made several attempts to find suitable accommodation for the defendant but he rejected all offers.

The Court ordered the defendant to leave the farm and the plaintiff to grant the defendant fair opportunity to demolish structures erected by the defendant on the farm and to tend a crop until ripe and remove thereafter.

Kindly note that-

1. this summary has been prepared by the staff of the Land Claims Court to assist the parties;

2. it does not form part of the Court's reasons for judgment;

3. the Department of Justice, the Court and its staff cannot accept any liability for any loss resulting from reliance on this document.

1 Act 62 of 1997, as amended.

2 Act 3 of 1996, as amended.

3 Presumably the Natal Nature Conservation Ordinance.

4 Act No 66 of 1995.

5 City of Springs VThe Occupants of the farm Kwa-Tkema. 210 [1998] 4 All SA 155 (LCC), 2000 (1) SA 476 (LCC) at para [24]; Karabo and Others VKok and Others 1998 (4) SA 1014 (LCC). [1998] 3 All SA 625 (LCC) at para [30] and New Adventure Investments and Another VMbatha and Others 1999 (1) SA 776 (LCC) at para [6].

5 City of Springs VThe Occupants of the farm Kwa-Tkema. 210 [1998] 4 All SA 155 (LCC), 2000 (1) SA

476 (LCC) at para [24]; Karabo and Others VKok and Others 1998 (4) SA 1014 (LCC). [1998] 3 All SA

625 (LCC) at para [30] and New Adventure Investments and Another VMbatha and Others 1999 (1) SA

776 (LCC) at para [6].