National Union of Mineworkers and Another v Murray & Roberts Cementations (Pty) Ltd and Another (LCC193/09) [2009] ZALCC 13 (9 November 2009)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC193/09

IN RANDBURG

Before: Bam JP

Decided: 09 November 2009

In the matter between

NATIONAL UNION OF MINEWORKERS 1st Applicant

NUM MEMBERS LISTED ON ANNEXURE

“A” TO THE NOTICE OF MOTION 2nd Applicant

And

MURRAY & ROBERTS CEMENTATION (PTY) LTD 1st Respondent

AQUARIUS PLATINUM SA (PTY) LTD 2nd Respondent

JUDGMENT

BAM JP:

[1] This matter relates to an urgent application for an order authorizing restoration of residence by the respondents to the applicants brought before this court on Friday 25 September 2009. Such an application is competent in terms of section 14 of the Extension of Security of Tenure Act 62 of 1997 (the Act’).

[2] The parties were granted special leave to appear before me in chambers on Saturday 26 September 2009 and an interim order for the immediate restoration of residence was granted, subject to various directions, pending the hearing date on the 20 October 2009. At this hearing arguments were advanced in favour and against confirmation or dismissal of the interim order of 26 September 2009.

[3] The respondents had signalled, in their answering affidavit, that they would, challenge in limine the court’s jurisdiction to hear the matter on the basis that ‘the Act’ did not apply to the applicants as they were not ‘occupiers’1 within the meaning of ‘the Act’. It became common cause that the determination of this challenge would settle once and for all the confirmation or the dismissal of the interim order granted on the 26 September 2009. If the applicants fell within the scope of the ‘the Act’ their eviction was unlawful and they were entitled to confirmation of the order. If not, the order fell to be dismissed.2

[5] The main theme of the respondents’ opposition is best set out in their unusually argumentative answering affidavit in the excerpt that follows:

“(5) The applicants do no fall within the ambit of ESTA as they do not reside in the Marikana Kroondal Central and Kroondal East hostels and are therefore not protected and/ or afforded any protection in terms of that legislation. The applicants all have homes in neighbouring countries or elsewhere in this country, as appears from annexure “MCM 1”

(7) The main purpose of ESTA is to regulate the eviction process of “vulnerable occupiers of land” and ESTA generally seeks to protect a designated class of poor tenants occupying rural and peri-urban land with the express or tacit consent of an owner against unfair eviction from such land.

(8) The word “residence” is capable of more than one meaning and the construction placed upon it, must depend on the object and intention of the statute in question, in this instance ESTA. The term ‘residing’ in the definition of an “occupier’

in ESTA must therefore be construed with this purpose in mind. The essence of the word is the notion of a “permanent home”. Clearly, the hostels wherein the individual employees stayed can never be regarded by the applicants as their permanent home.

(9) In addition, the hostels are single living quarters and no family members were allowed to stay with the applicants. The applicants for all intent and purposes considered these hostels as dormitories and during periods of leave, ‘pay weekends’ (i.e weekends when contractors receive their monthly pay) and long leave all applicants returned to their homes.

[6] Mr Havenga SC for the respondents raised the level and quality of the aforegoing arguments but the message and conclusions remained the same. A combination of references to the provisions of section 25(6) of the Constitution, comparisons of the purposes of PIE,3 the Labour Tenants Act4 and ‘the Act’ leads him to conclude that mineworkers in the position of the applicants ‘cannot be regarded as occupiers within

the definition of an occupier in ESTA and should not be afforded the protection of ESTA.’5

[7] In a further reference, particularly to the preamble, of ‘the Act’ where he emphatically quotes portions identifying ‘long

term’ security of tenure’ to ‘South Africans’ of their homes and the land which they use’ as indications that applicants were not accommodated.

[8] In yet another reference, this time to the case law6, Mr. Havenga seeks to re-inforce the argument that the word ‘reside’ in terms of ‘the Act’ contemplates a ‘permanent home’ and, consequently, migrant mineworkers who live in single quarter hostels and who have their homes elsewhere clearly do not reside in the hostels as contemplated in ‘the Act’.

[9] Mr. Moultrie, for the applicants, disputes the notion that ‘permanency of home’ is a requirement in terms of Section 1 of ‘the Act’. In particular he cites a number of judgments7 of this court in which hostel dwellers and people whose accommodation arose purely because of their employment have been recognized as occupiers in terms of ‘the Act’. Of course, in all these cases, the Court had never had specifically to decide or interpret the meaning of ‘reside’ in the context of ‘the Act’. It appears to have been generally accepted that mineworkers and hostel dwellers were included.

[10] In his turn, Mr Moultrie also refers to the SCA cases of Lebowa Platinum Mines8 and Mkangeli and Others9 to make the points that (i) even though the legislature’s primary concern was a particular class of vulnerable persons, the wide provisions of ‘the Act’ accommodated persons falling outside the designated category and (ii) that the length of time evictees had been on the land was irrelevant.

[11] There is general agreement that the word ‘reside’ can have a number of meanings and connotations dependent upon the context of its usage. Even in ordinary parlance the meaning of the word ranges from the ‘literal’ to the ‘figurative’ and from narrow to expansive. One of those meanings does embrace the notion of a ‘permanent home’ but not so in every context. In the Afrikaans version of ‘the Act’ the word used is ‘woon’ which perhaps has only the connotation ‘live’- with a roof over your head and a place to sleep10.

[12] It is so that neither in the Constitution nor in ‘the Act’ is there a distinction made between unfair evictions of vulnerable

persons whose tenure on land is temporarily insecure on the one hand and permanently insecure on the other. The preamble to ‘the Act’ requires only ‘that the law should regulate the eviction of vulnerable occupiers from land in a fair manner ...’

[13] It is fair to speculate that the particular class of vulnerable persons who were the legislature’s primary concern were poor farm dwellers who performed menial tasks in the production of food on farms and were paid partly in cash and partly in kind. Such speculation would be based solely upon the notorious prevalence of this class of grossly exploited people in South Africa. However, the very next class in notoriety of grossly exploited people living on land owned by others, in South Africa, are migrant mineworkers, and their inclusion within ‘the Act’ would be direct and not merely on the basis of ‘the law of unintended consequences’11.This is clearly borne out in the definition of the word “consent” in section 1(1) of ‘the Act’ where it is stated consent

‘means express or tacit consent of the owner or person in charge of the land in question, and in relation to a proposed termination of the right of residence or eviction by a holder of mineral rights (my emphasis), includes the express or tacit consent of such holder.

[14] As for the submission that the mineworkers who are the applicants in this case were from Lesotho and Mozambique and

presumably were, for that reason, not entitled to rights of ordinary citizens, I totally disagree. Such a distinction would be contrary to the Equality Clause enshrined at section 9 of our Constitution12 and is certainly not to be found in ‘the Act’ itself. In addition section 26(3) of the Constitution states:

“No one (my emphasis) may be evicted from their home, or have their home demolished,

without an order of court made after considering all the relevant circumstances…’

[15] Finally, and still on the submission that the word ‘reside’ in ‘the Act’ was not applicable to mineworkers living in dormitories in single quarter hostels which cannot be regarded as their permanent homes, much reliance was placed on the recent SCA case of Kiepersol Poultry Farm (Pty) Ltd v Pasiya.13

[16] The court’s adoption of the concept of the ‘permanent home’ criteria in that case was not in relation to its meaning in terms of ‘the Act’ as this was neither argued nor necessary for its decision. It was a convenient tool, appropriate only in the context of determining the intention or state of mind of an elderly person who regularly paid visits to his former ‘permanent home’ or dwelling after the court accepted he had told the managing director that he was no longer staying on the farm and that he and his wife had left to live elsewhere because it was ‘a lot nicer there’ than on the farm. Such regular visits from time to time did not constitute ‘residing’ as formerly exercised by the elderly man in terms of ‘the Act’.

[17] Another factor which points to the comments in the SCA judgment regarding ‘permanent home’ as being made obiter is that the court was well aware , from the two cases to which it made reference,14 that the word ‘reside’ had a variety of meanings. It must be noted also that the emphasized quotation ‘ The essence of the word is the notion of a ‘permanent home’ by Baker J in Barrie NP v Ferris15 was written a decade before the passing of ‘the Act’ and was in relation to a stipulation in a private will.

[18] In the circumstances it is my finding that the applicant mineworkers who had the consent of the owner of the land or of the holder of mineral rights in the land are occupiers and must be declared as such in terms of ‘the Act’, irrespective of the length of the terms of their contracts.

[19] Mr. Havenga SC has, in his submissions, painted a picture of the dire consequences to the mining industry my decision might have and I am sensitive to these possible implications. However, the reverse implications for the applicants and the conditions of residence of mineworkers, should I have decided in favour of the respondents must also be emphasized, namely the exposure of this large and vulnerable sector of our society precisely to the same hardships, exploitations and indignities in effect sanctioned for occupiers on farms experienced prior to the passing of the Constitution in 1996 or ‘the Act’ in 1997. .

[20] The respondents had also signalled, in their answering affidavit, that they would challenge the implicit allegation that all the applicants earn less than the prescribed salary of R5000-00 in terms of ‘the Act’. This matter was only half heartedly pursued in argument when the court was informed that approximately one third of the applicants might not fall within the prescribed category. In this regard I am of the view that it will suffice to amend appropriately paragraph 3 of the interim order of 26 September 2009, which stands to be confirmed.

[21] On the question of costs I will deviate from the norm of not awarding costs in this court in order to demonstrate the court’s disapproval of the unnecessary hardships the applicants had to endure as a result of the unlawful and misguided evictions by the respondents.

[22] Order:

[22.1] The order granted by this court on 26 September is confirmed as a final order in terms of paragraphs 1, 2 and 3 subject to the following amendments.

(i) The order shall not apply to persons whom the respondent shall have

proved, to the satisfaction of the 1st applicant, to be earning more than the prescribed salary in terms of ‘the Act’.

(ii) The restoration of the applicants shall be to suitably repaired hostels not necessarily identical to those from which they were evicted but similar and acceptable to the applicants.

[22.2] The respondents are ordered to pay the costs of this application.

____________________

JUDGE PRESIDENT F C BAM

For the Applicants:

Adv R Moultrie instructed by Cheadle Thompson & Hayson Inc. in Johannesburg

For the Respondents:

Adv H S Havenga SC instructed by MacRobert Inc. in Pretoria

1 Definitions- (1) ‘occupier means a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding: (a)…. (b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person whop works the land himself or herself and does not employ any person who is not a member of his or her family; and (c ) a person who has income in excess of the prescribed amount;

1 Definitions- (1)

‘occupier means a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding:

(a)….

(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person whop works the land himself or herself and does not employ any person who is not a member of his or her family; and

(c ) a person who has income in excess of the prescribed amount;

2 Karabo v Kok 1998 [4] S A 1014 (LCC) paragraph 23

3 Prevention of Illegal Eviction of Unlawful Occupation of Land Act of 1998

4 Land Reform (Labour Tenancy) Act 3 of 1996

5 Acronym used by counsel for ‘the Act’

6 Department of Land Affairs v Goedgelegen Tropical Fruits 2007 [6] SA 199 (CC) Brown Mbhense & Another 2008 [5] SA489 (SCA) Skhosana & others v Roos t/a Roos se Oord & Others 2000 [4] 561 (LCC) @ paragraph 24 Kiepersol Poultry Farm Limited v Gideon Phasiya 2009 ZASCA 119 (25 September 2009) Minister of Native Affairs 1941 AD 53 Mkhwanazi v Bivane Bosbou (Pty) Ltd 1999 [1] SA 765 (LCC) Barrie N.O v Ferris 1987 [2] SA 709 C

6 Department of Land Affairs v Goedgelegen Tropical Fruits 2007 [6] SA 199 (CC)

Brown Mbhense & Another 2008 [5] SA489 (SCA)

Skhosana & others v Roos t/a Roos se Oord & Others 2000 [4] 561 (LCC) @ paragraph 24

Kiepersol Poultry Farm Limited v Gideon Phasiya 2009 ZASCA 119 (25 September 2009)

Minister of Native Affairs 1941 AD 53 Mkhwanazi v Bivane Bosbou (Pty) Ltd 1999 [1] SA 765 (LCC)

Barrie N.O v Ferris 1987 [2] SA 709 C

7 Karabo v Kok 1998 [4] S A 1014 (LCC) @ paragraph 1 Leeudoorn Gold Mine v Mnengele 1999 [3 ]ALL SA 236 (LCC)@ paragraph 7 Malan v Gordon & Another 1999 [3] SA 1033 (LCC)@ paragraphs 2-3 Du Preez v Tserema & Others 2000 [3] ALL SA 374 LCC@ paragraph 2 Bergboerdery v Mokgoro 2000 [4] SA 575 LCC @ paragraphs 2 and 9 Malelane (Edms) Bpk v Godfrey and Another 2008 [2 ]ALL SA 97 (T) @ paragraph 24

7 Karabo v Kok 1998 [4] S A 1014 (LCC) @ paragraph 1

Leeudoorn Gold Mine v Mnengele 1999 [3 ]ALL SA 236 (LCC)@ paragraph 7

Malan v Gordon & Another 1999 [3] SA 1033 (LCC)@ paragraphs 2-3

Du Preez v Tserema & Others 2000 [3] ALL SA 374 LCC@ paragraph 2

Bergboerdery v Mokgoro 2000 [4] SA 575 LCC @ paragraphs 2 and 9

Malelane (Edms) Bpk v Godfrey and Another 2008 [2 ]ALL SA 97 (T) @ paragraph 24

8 Lebowa Platinum Mines Ltd v Viljoen 2009 [3] S A 511 @

9 Mkahngeli & Others v Joubert & Others 2002 [4] S A 36(SCA)@

10 “okkupeerder” ‘n persoon wat “woon” op die ground wat aan ‘ander persoon behoort en wat beskik oor, of op 4 Februarie 1997 of daarna beskik het oor, toetemming of ‘n ander regsgeldige reg om so te doen, maar uitgesluit-.

11 cf Ndlovu v Ngcobo, Bekker and Another v Jika 2003 [1] SA (SCA) dictum in paragraph 13 as applied in Lebowa Platinum Mines (supra)

12 Act 108 of 1996

13 [2009] ZASCA 119 (25 September 2009)

14 Mkhwanazi v Bivane Bosbou (Pty) Ltd & Another 1999[1] SA 765 (LCC)@ paragraph 8, Barrie NO v Ferris 1987 [2] SA 799 C @ 714 F

15 Ibid.