M M Abrahams (Pty) Ltd v Estate Late Johannes Pelepele Mnguni and Others (LCC97/2009) [2017] ZALCC 30 (18 October 2017)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG

Case No: LCC 97/2009 (B)

(1) REPORTABLE: YES / NO (2)

OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED. …………………….. ……………………

DATE

SIGNATURE

Heard: 26 June 2017

Judgment: 18 October 2017

In the matter between:

M M ABRAHAMS (PTY) LTD

Applicant (1st Defendant)

and

ESTATE LATE JOHANNES

PELEPELE

MNGUNI

First Respondent (Plaintiff)

DIRECTOR-GENERAL

OF THE Second Respondent (2nd Defendant)

DEPARTMENT OF RURAL

DEVELOPMENT AND LAND

REFORM

MARGARET

MNGUNI

3rd Respondent

THULANI

CHRIS MNGUNI

4th Respondent

NTHUTHUKO

MNGUNI

5th Respondent

SPHESILE

MNGUNI

6th Respondent

MBALI

MNGUNI

7th Respondent

OKHALHLAMA

LOCAL MUNICIPALITY

8th Respondent

_______________

JUDGMENT

BARNES AJ

Introduction

1. This is an application for the eviction of the third to seventh respondents in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”). The application was initially brought on an urgent basis in March 2017 but was postponed on various occasions and by the time it was argued before me on 26 June 2017, the applicant accepted that there was no longer any real urgency.

2. I am of the view, for reasons that will become apparent below, that the real issue for determination in this matter is how a prior order of this Court, which makes provision for the relocation of the third to seventh respondents on the applicant’s farm and for the transfer of title, should be enforced.

3. The applicant is the registered owner of Portions 1 and 12 of the Farm Nooitgedacht No 113 in Winterton, Kwa-Zulu Natal (“the farm”). I will refer to it as “the farm owner.” The third to seventh respondents are members of the Mnguni family who reside on the farm.

4. This application arises out of a long and troubled history between the farm owner and the Mnguni family.

5. In 2009, Mr Johannes Pelepele Mnguni (“Mr Mnguni”) instituted action against the farm owner in which he sought a declaration that he was a labour tenant[1] and an order awarding him the portion of the farm which he and his family had historically used and occupied.

6. The trial ran in this Court over several days in 2012 and 2013. During the trial, the farm owner conceded that Mr Mnguni was a labour tenant. The farm owner contended however that the position of Mr Mnguni’s homestead impeded its farming operations and that the Mnguni family ought to be relocated to another portion of the farm, with title thereof to be transferred to Mr Mnguni. The farm owner led evidence in support of these contentions.

7. On 19 November 2013, the Court delivered its judgment. It found that greater hardship would be done to the farm owner if Mr Mnguni and his family were not relocated than would be done to Mr Mnguni and his family if they were relocated. It therefore granted a relocation order. The order was a detailed one which, inter alia, required the farm owner to build a new homestead of equivalent size and quality for the Mnguni family on a different portion of the farm, to facilitate the subdivision of that portion and to transfer title thereof to Mr Mnguni. The order is set out in full below.

8. Late in 2013, Mr Mnguni tragically passed away.

9. Since this Court’s order was handed down in November 2013, the farm owner has fenced off an area on a portion of the farm known as Vermaakskraal and built a nine roomed homestead on it for the Mnguni family (“the new portion”). Water and electricity have been connected to the homestead. The farm owner has established that there are no obstacles to effecting the subdivision of the new portion. Neither subdivision nor transfer of the new portion have however taken place. Moreover, the Mnguni family have not relocated.

10. In the meantime, relations between the farm owner and the Mnguni family have deteriorated with allegations of hostility being levelled on both sides. In the view I take of the matter, it is not necessary to make any determinations in respect of these allegations.

11. In March 2017, the farm owner launched the present application. It launched the application under the same case number as the prior trial action between Mr Mnguni and the farm owner. In this application, the farm owner asks that the estate of Mr Mnguni be substituted as the second respondent and that Mr Mnguni’s widow and other family members be joined as the third to seventh respondents respectively. This Court made an order granting such substitution and joinder on an interim basis when this application was initially launched on an urgent basis. The respondents, in their answering affidavit, state that they do not oppose this. This Court’s interim order is accordingly confirmed.

12. In its notice of motion in this application, the farm owner seeks the eviction of the third to seventh respondents without more. However, in response to questioning from the Court, counsel for the farm owner, Ms Mahabeer, confirmed that her client would be amenable to an order relocating the third to seventh respondents to the new portion as per the prior order of this Court.

The Order of this Court dated 19 November 2013

13. On 19 November 2013, this Court granted the following order:

“RECORDAL

1. It is recorded that, in order to permit the expeditious resolution of this matter the First Defendant withdrew its opposition to the claim that the Plaintiff be declared a labour tenant.

2. It is declared in terms of section 33(2A) of Act No 3 of 1996 that the plaintiff is a labour tenant.

3. It is ordered that in terms of section 8 of Act No. 3 of 1996 the plaintiff (and his family and all persons occupying with or through him) relocate to a piece of land on the farm Vermaakskraal, which piece of land is situated opposite the ‘village’ in an area currently reserved as a communal grazing area for the village, identified by the first defendant and of an area determined for in 3(d) below. This is referred to below as ‘the piece of land.’

4. The terms of the relocation shall be:

a. The first defendant undertakes and is ordered to assist the plaintiff and his family with the relocation;

b. The first defendant agrees and is ordered to allow the plaintiff to remove and take with him any and all building materials that will assist him in the building of further rooms at the piece of land;

c. The plaintiff and first defendant are to respect each other’s right to personal dignity and make every effort to live as peacefully as possible;

d. The area of land which the plaintiff currently occupies and uses for residential purposes as well as the land surrounding the homestead which the plaintiff uses for cropping purposes will be measured in the presence of both the plaintiff and the first defendant, and the piece of land to which the plaintiff will be relocated will be equivalent to, or greater in size than, that which he currently occupies and uses for residential and cropping purposes;

e. The piece of land is to be properly demarcated and will be fenced off by the first defendant, for the sole and exclusive use of the plaintiff and his family members; the first defendant will in addition allocate areas from time to time for collection of firewood;

f. The first defendant undertakes and is ordered to build a homestead for the plaintiff on the piece of land comprising of nine (9) rooms of equivalent or greater size to that which the plaintiff and his family currently occupy, plus an additional rondavel equivalent to or greater in size to a rondavel previously built and occupied by the plaintiff;

g. The shape, form and design of the said rooms will be decided and agreed upon between the plaintiff and the first defendant’s builder, but in the absence of agreement being reached will be substantially the same as the homestead which the plaintiff currently occupies;

h. The first defendant undertakes and is ordered to allow the plaintiff to use communal grazing demarcated for the benefit of the ‘village’ on the farm Vermaakskraal to graze his cattle and goats, subject to the proviso that the plaintiff and his family are only entitled to keep and graze a maximum of ten goats, 5 cattle and 2 calves at any given time;

i. The first defendant undertakes and is ordered to connect and provide running water to the new accommodation at the cost of the first defendant;

j. The first defendant undertakes and agrees to connect and install an electricity supply to the new accommodation at the first defendant’s expense, in the form of a pre-paid meter box, provided that the charges in respect of electricity usage shall thereafter be borne by the plaintiff;

k. The existing graves located around the plaintiff’s current homestead will be properly demarcated, in the presence of the plaintiff and first defendant, will be fenced off by the first defendant at its cost, and the plaintiff and his family members shall be allowed free access to the said graves, provided that prior notice must be given to the first defendant in the event of the plaintiff’s extended family or visitors wishing to visit the graves for rituals. The plaintiff’s family shall furthermore be entitled, subject to the provisions of such laws as may apply to bury the plaintiff’s immediate family members in the immediate area where the existing graves are located and/or in a demarcated area at the plaintiff’s new accommodation;

5. The first defendant undertakes and is ordered to pay the plaintiff the sum of R10 000.00 on or before 31 March 2014, as compensation in terms of section 8(3) of Act No. 3 of 1996, to ensure that the plaintiff is not unfairly prejudiced by the relocation.

6. The first defendant is ordered to complete the building of the homestead at the plaintiff’s new accommodation by no later than 28 February 2014, and the plaintiff is ordered to relocate to the homestead by no later than 31 March 2014.

7. Insofar as the piece of land to which the plaintiff is to be relocated is concerned:

a. The piece of land shall remain the plaintiff’s sole and exclusive property and his acquisition thereof, together with all ancillary rights received in terms of the relocation order, shall be protected, preserved, enforced and applied against the first defendant and all subsequent successors in title;

b. In the event of the second defendant obtaining ownership of the property Vermaakskraal or of a portion thereof on which the piece of land is situate, the plaintiff (or his successor in title) shall retain the piece of land for their sole and exclusive use, in perpetuity.

c. The first defendant is ordered to procure the signature of all documents as may be required to facilitate the subdivision and transfer ownership of the piece of land to the plaintiff.

d. In the event that sub-division of the piece of land is not achievable, or consent to sub-divide is not obtained by the relevant government minister, than the first defendant is directed to allow a ninety nine (99) year long lease to be registered and endorsed against the title deed of Vermaakskraal Farm in favour of the plaintiff in respect of the piece of land, and inclusive of rights to the communal grazing area, which long lease shall contain a provision providing for the lease to be renewed at the instance or election of the plaintiff (or his successor in title) for a further period of ninety nine (99) years upon expiry, and provided that the first defendant shall pay R5000.00 towards the cost of the registration of such long lease.

8. The second respondent is to monitor the implementation of this order.

9. There is no order as to costs.”

The Current Position

14. Neither side has complied fully with its obligations in terms of the Court Order. The farm owner has built a nine-roomed homestead for the Mnguni family on the new portion and contends that the Mnguni family are unreasonably refusing to relocate. The farm owner has however not effected the subdivision and transfer of the new portion, despite a period of three and a half years having elapsed since the Court Order.

15. In their answering affidavit, the third to seventh respondents state that “the Court specifically directed our relocation to land that has been subdivided with transfer of ownership to my grandfather who was the plaintiff in the action.” This is not entirely correct as the Court order, as will be seen above, did not stipulate a timeframe within which subdivision and transfer were to be effected.

16. The respondents are however clearly aggrieved at the farm owner’s failure to take the necessary steps in this regard. It is important to record that in their papers, the respondents do not state that they are unwilling to relocate to the new portion. The only obstacle they raise in relation to their relocation is the farm owner’s failure to effect subdivision and transfer of the new portion.

17. The farm owner, for its part, does not dispute that it is bound to effect subdivision and transfer of ownership of the new portion. Ms Mahabeer stated that she could give the Court the assurance that her client has made the necessary enquiries and established that there is no obstacle to subdividing the new portion. This renders that part of the Court Order which makes provision for a 99 year lease, in the event that subdivision cannot be effected, redundant. What remains is for subdivision and transfer of the new portion to be effected.

18. Ms Mahabeer also confirmed that the farm owner would have no difficulty in complying with its remaining outstanding obligations in terms of the Court Order and that it undertook to do so.

19. It is well established that this Court is one of equity and has inquisitorial powers which include the power to grant relief not

limited to that which is prayed for by the parties in their respective pleadings.[2]

20. In my view the appropriate order in this case is one which gives effect to the prior Judgment and Order of this Court in a manner which takes account of prevailing circumstances and is fair to both sides. I am of the view that the order set out below achieves that. To the extent that there is any inconsistency, my order below should be read as replacing the prior Order of this Court. I accordingly make the following order:

Order

1. It is recorded that:

1.1 The applicant is the registered owner of Portions 1 and 2 of the Farm Nooitgedacht No 113 in Winterton, Kwa-Zulu Natal (“the farm”).

1.2 The applicant has demarcated a piece of land on a portion of the farm known as Vermaakskraal and fenced it off for the sole and exclusive use of the Mnguni family (“the Vermaakskraal portion”).

1.3 The applicant has built a homestead on the Vermaakskraal portion which comprises nine rooms plus an additional rondavel.

2. The applicant will take all steps necessary to effect the subdivision and transfer of the Vermaakskraal portion to the first respondent.

3. Within one month after transfer of the Vermaakskraal portion to the first respondent, the third to seventh respondents will relocate to the Vermaakskraal portion, provided that the third to seventh respondents may relocate to the Vermaakskraal portion at any time sooner than this by agreement between the parties.

4. At the time of relocation, the applicant will pay the sum of R10 000.00 (ten thousand rand) to the first respondent.

5. The applicant will ensure that at the time of relocation:

5.1 the homestead on the Vermaakskraal portion is in good repair; and

5.2 running water is connected to the homestead on the Vermaakskraal portion, and thereafter supplied at the cost of the applicant; and

5.3 electricity is connected to the homestead on the Vermaakskraal portion, at the applicant’s expense, provided that the charges in respect of electricity usage shall thereafter be borne by the third to seventh respondents.

6. The applicant agrees and is ordered to allow the third to seventh respondents to remove and take with them any and all building materials that may assist them in the building of further rooms on the Vermaakskraal portion.

7. The applicant undertakes and is ordered to allow the third to seventh respondents to use grazing demarcated for the benefit of the “village” on the farm Vermaakskraal to graze their cattle and goats, subject to the proviso that the third to seventh respondents are only entitled to keep and graze a maximum of ten (10) goats, 5, (five) cattle and 2 (two) calves at any given time.

8. The existing graves located around the third to seventh respondents’ current homestead will be properly demarcated in the presence of the applicant and those respondents or their representatives and will be fenced off by the applicant at its cost. The third to seventh respondents shall be allowed free access to the graves provided that prior notice must be given to the applicant in the event of those respondents’ extended family or visitors wishing to visit the graves for ritual purposes. The third to seventh respondents shall furthermore be entitled, subject to the provisions of such laws as may apply, to bury those respondents’ immediate family members in the immediate area where the existing graves are located and/or in a demarcated area on the Vermaarkskraal portion.

9. The second respondent is directed to monitor the implementation of this order.

10. There is no order as to costs.

_______

Acting Judge of the Land Claims Court

Appearances:

For the applicant: Adv S Mahabeer instructed by Norton Rose Fullbright South Africa Inc

For the first to sixth respondents: Adv N Nako instructed by Phumulani Ngubane & Associates

[1] In terms of section 33(2A) of the Land Reform Labour Tenants Act 3 of 1996.

[2] See in this regard Mlifi v Klingenberg 1999 (2) SA 674 (LCC).