Ndala and Another v Visagie and Another (LCC 70/2009) [2009] ZALCC 3 (28 May 2009)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG

CASE NO: LCC 70/2009

Date of Hearing: 19 May 2009

Decided on: 28 May 2009

In the matter between:

REKIE NELLIE NDALA 1ST

APPLICANT

ANDREAS MAHLANGU 2ND

APPLICANT

And

J VISAGIE 1ST respondent

DEPARTMENT OF LAND AFFAIRS 2ND respondent

JUDGEMENT

MIA A J:

[1] On the 22 May 2009 I granted an order in favor of the applicants to hold an initiation ceremony in accordance with the culture, custom and tradition of the Ndebele tribe, which in essence allowed an initiation school to be held on the respondent’s farm by the applicants. The reasons for my order appear from this judgement.

[2] The first applicant is an adult female pensioner aged sixty one years old and resides on the portion of the farm Yzervarkfontein 194 IR, Bapsfontein, Gauteng (hereafter referred to as the Farm). She is a senior member of the Ndala family.

[3] The second applicant is an adult male member of the Ndala family, and the nephew of the first applicant. He is also the organizer of the initiation ceremony on behalf of the Ndala family to be held for four male members of the Ndala family, namely: Bongani Ndala, Jafta Ndala, Siphiwe Ndala and Montuza Mtimunye (hereafter “the initiates”).

[4] The first applicant is an occupier in terms of section 6 of the Extension of Security of Tenure Act 1997, Act No. 62 of 1962 (hereafter referred to as “ESTA”). The legislation in terms of which this application is brought and the argument before this court was in terms of “ESTA”. The occupier’s rights are set out in section 6 of “ESTA”.

[5] The first respondent is the sole member of JT Boerdery Closed Corporation, which is the owner of Portion 6 of the farm Yzervarkfontein 194 IR, Bapsfontein, Gauteng. The first respondent indicates that the farm was registered in the name of the Closed Corporation on 30 April 2007.

[6] The first applicant relies on her rights as an occupier in terms of section 6 of “ESTA” and specifically section 6 (2) (d) read with sections 30 and 31 of the Constitution of the Republic of South Africa Act 1996, Act No. 108 of 1996.

[7] The applicants are members of the Ndala family of the Ndebele tribe and seek to hold an initiation ceremony in accordance with the culture, custom and tradition of the Ndebele tribe.

[8] The applicants allege they had the use of the farm to run an initiation school in previous years when JT Boerdery CC was not the owner of the farm. They have sought permission from both the respondent and his wife, who they believed were the owners of the farm. Permission has been refused.

[9] The applicants rely on their rights in terms of “ESTA” and allege that the initiates will be prejudiced should they not be permitted to proceed with the initiation school, in that they will be denied their right to family life in accordance with the culture of their family as provided for at section 6 (2) (d) of ESTA and further that they will not be permitted to be received as adults within their community and that they will not be permitted to marry. They point out that the initiation school is only held every two to four years and this group of initiates cannot be initiated with a younger group. The four young initiates will be prejudiced if they are not initiated this year in the initiation ceremony that commences on 20 May 2009 and ends on 27 August 2009.

[10] The first respondent does not dispute that the previous owner permitted an initiation school to be hosted on the farm. The first respondent acknowledges that the applicant may have been permitted to do so in previous years but indicates that he is not willing to permit this whilst he is in charge of the farm and JT Boerdery CC is the owner of the farm.

[11] The first respondent accordingly filed a notice to oppose the relief sought by the applicants. He placed in dispute the following:

11.1 that the first applicant enjoys any particular status in terms of the traditions of the Ndebele tribe;

11.2 that the first applicant has by virtue of the traditions of the Ndebele tribe or for any other reason, the right to have an

initiation school on the farm where she resides;

11.3 that Andreas Ndala is the second applicant in this matter;

11.4 that Mr. Andreas Ndala has a right to organize an initiation ceremony on the farm belonging to JT Boerdery CC;

11.5 that first and second applicants have the requisite locus standi to bring the application as it is the four initiates who are undergoing the ceremony and ought to have brought the application;

11.6 that the Department of Land Affairs is the correct Department cited and served in this application. He also expressed that the Department of Land Affairs was not given an opportunity to find alternative land for the initiation school to be held;

11.7 that the matter is urgent

[12] The first respondent’s objection to the hosting of the initiation school is explained as follows:

12.1 “the applicants have not addressed his concern about the risk associated with initiation schools. He referred to a report of the South African Human Rights Commission, and attached an extract thereof to his notice of opposition. These include possible abductions deadly infections and callous atrocities which he believes become defining characteristics of initiation schools;

12.2 the initiates may lose their reproductive organs and spread diseases like HIV/Aids and Tetanus;

12.3 he cannot allow mutilation or uncontrolled circumcisions on the farm;

12.4 he is concerned for the health of the initiates who he believes must live in the veldt for a period of time during the winter months;

12.5 he is concerned about having strangers on the farm in view of the high incidence of crime in the area;

12.6 it is against his religion to allow the initiation school on the farm.”

[13] In considering the dispute between the first applicant as occupier and the first respondent, the sole member of the Closed Corporation, which owns the farm regard must I believe, be had to the legislature’s intention as stated in the preamble to ESTA, which is stated inter alia as follows:

“To promote the achievement of long term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, land owners, and government bodies;

to extend the rights of occupiers, while giving due recognition to the rights, duties and legitimate interests of owners;

that the law should regulate the eviction of vulnerable occupiers from land in a fair manner, while recognizing the right of the land owners to apply to court for an eviction order in appropriate circumstances;

to ensure that occupiers are not further prejudiced;”

[14] The intention of the legislature is reflected also in section 6 (2) (d) of “ESTA” which provides as follows:

“Rights and duties of occupier

(1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly.

(2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or the person in charge, an occupier shall have the right –

(a)

(b)

(c)

(d) to family life in accordance with the culture of that family: Provided that this right shall not apply in respect of single sex accommodation provided in hostels erected before 4 February 1997.”

[15] Of great relevance to the right to family life and culture referred to at section 6 (2) (d) are sections 30 and 31 of the Constitution of the Republic of South Africa 1996, Act 108 of 1996 9hereafter “the Constitution”) which provide as follows:

“Section 30 Language and culture

Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Section 31 Cultural, religious and linguistic communities

(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community-

(a) to enjoy their culture, practise their religion and use their language; and

(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”

[16] The initiation school as a cultural practice of the Ndebele tribe falls within the ambit of the right to culture at section 6 (2) (d) of “ESTA” and that to culture and religion as embodied at sections 30 and 31 of the Constitution. In keeping with the tenor of the Act, such rights of an occupier under “ESTA” must be balanced [ my emphasis]

with the rights, duties and legitimate interests of the owner.1

[17] The concern raised by the first respondent that the applicant does not enjoy a particular status in terms of the traditions of the Ndebele tribe is not supported by any evidence by the first respondent. The first applicant has explained the role that she will play in supporting the initiates by providing food and ensuring the hygiene and health of the initiates are catered for during the initiation school. The second applicant appears to be responsible primarily for the education and further physical and other support of the young initiates during the approximately four months that they will be accommodated separately from the family. The first applicant’s version on this accordingly stands.

[18] The first respondent’s concern that Andreas Mahlangu is not the same person as Andreas Ndala and Andreas Ndala is not before this court is satisfactorily explained in the applicant’s replying affidavit, where it is explained that Andreas Ndala takes on the name of the chief of the tribe namely Mahlangu and that it is done out of respect. This appears to be a custom and practice within the Ndebele tribe.

[19] The first respondent’s concern regarding the joinder of the initiates and JT Boerdery CC is noted and valid. In view of the

interest of the various persons and the entity referred to, who all have a substantial interest in the matter, this is an appropriate

instance for the Court to mero motu join such parties in terms of rule 12(5) of the Land Claims Court Rules. The four initiates: Bongani Ndala, Jafta Ndala, Siphiwe Ndala and Montuza Mtimunye and JT Boerdery are accordingly joined.

[20] The first respondent indicates that the National Department of Land Affairs is the incorrect department to serve the notice upon. Having regard to the definitions of “ESTA”, the definitions of the “Director General” and “the Minister” both refer to the Department of Land Affairs, whilst regulation 9 of “ESTA” specifically refers to the provincial office of the Department of Land Affairs when serving a notice in terms of section 9 (2) (d) (ii) (iii) of “ESTA”. The reason for this appears to be to enable the provincial office that has knowledge of the area to facilitate solutions and find alternatives where evictions of occupiers are necessary or by order of court. It does not appear from “ESTA” that there is a requirement to join the Department of Land Affairs except where as provided for in the relevant sections. In my view it is strictly speaking not necessary to join the Department of Land Affairs in a case like the present.

[21] I note however that the Department of Land Affairs has attempted to mediate between the parties and a report marked “RNN2” is attached to the applicant’s founding affidavit. Contrary to the view held by the respondent, the report indicates that the question of hosting the initiation school was raised and the mediation in this regard was not successful.

[22] With regard to the first respondent’s objections based on the SAHRC report, it is nowhere suggested therein that initiation schools not be permitted or that any person’s right to practice their culture be denied.

[23] The concern pertaining to circumcision on the farm is addressed as appears from first applicant’s replying affidavit that the circumcisions occur at the Kings kraal. This appears to be under controlled circumstances and takes into account the health concerns raised in regard to the initiates. That the health and well being of the initiates will be managed and catered for by the first and second applicants addresses the first respondent’s concern regarding their health and well being whilst on the farm. According to the applicants papers and counsel’s address on this aspect, there is no real risk of contamination and spread of disease to the other inhabitants of the farm or the surrounding areas. Whilst the first respondent questions this he tenders no evidence to back this up.

[24] On the papers before this court there was no indication that the initiation school will result in a huge influx of strangers on the farm. The applicants have indicated who will be required to visit the farm and have undertaken to introduce such person to the first respondent should he require an introduction.

[25] Counsel for the respondent argued that there was a dispute of fact and the matter should be referred for evidence. I am of the view that there is no material dispute that requires evidence to assist this court in determining the relief requested in this application.

[26] The first respondent avers that he cannot allow the initiation school to proceed on the farm as it is in conflict with his religious beliefs. The first respondent’s right to religion is protected in terms of sections 30 and 31 of the Constitution. The Constitution gives content to the right in that the first respondent enjoys the right to choose his religion and may practice his religion and form and maintain religious associations. This court recognizes as did the Constitutional Court that religious and cultural beliefs may be strongly held. Further that sections 30 and 31 of the Constitution protects the rights of all linguistic, cultural and religious groups in South Africa.2

[27] The applicants’ exercise of their cultural rights does not require the first respondent to participate in any way in their cultural

practice. Our courts have recognized the diversity of religious and cultural groups and that all groups require protection, not only “those who happen to speak with the most powerful voice in the present cultural conversation.”3 The applicants’ Ndebele culture enjoys the same protection as the respondent’s right to practice his religion. Given that both

parties have rights with regard to religion or culture the respondent’s right does not entitle him to prevent the applicants

from exercising their cultural rights.

[28] The present application and the relief sought to order a landowner to allow an occupier to exercise a right to practice one’s culture by permitting the hosting of the initiation school is the first such application before this court. My attention was drawn by way of comparison to the case of Buhrmann v Nkosi and Another [1999] JOL 5433(T), which required the occupier to use the land in a manner that limits the landowner’s right to use the land, where the occupier

sought the right to bury a deceased relative on the land. The matters are similar in that it requires the Court to consider an application for the extension of the occupier’s rights where the occupier seeks to use the land in a manner that limits the landowner’s right to use the land when the occupier exercises his or her right to family life in accordance with the culture of that family as referred to in “ESTA”.

[29] Subsequent to the court’s decision in Buhrmann v Nkosi and Another [1999] JOL 5433(T), the legislature extended the rights of occupiers to family life in accordance with the culture of that family, and in doing so

limited the rights of the owner of land, by amending “ESTA” and specifically incorporating into “ESTA” at section 6 (2) (d A) the right of an occupier to bury a deceased member of his of or her family if an established practice in respect of the land exists.

[30] The relief sought in the present matter is not as far reaching as the relief sought in Buhrmann v Nkosi and Another [1999] JOL 5433 (T), in that it is not “permanent in nature” and does not require the “allocation of land exclusively and permanently for this purpose” as decided in the aforementioned case. The relief sought is for use of the land for a period of four months in the present case and is not permanent in nature and allows the owner the right to use of the property as he/she deems appropriate once the ceremonies have been concluded.

[31] On a careful conspectus of all the submissions and argument, I indicated to the parties that I was inclined to grant the relief sought by the applicants. To this end, I invited the parties themselves to draft an order for my consideration, such order to take due cognizance of the respective rights of the applicant occupiers and the respondent landowner. The order reached by agreement follows:

THE ORDER:

In the result I make the following order:

The application for access to portion 6 of the farm Yzervarkfontein 194 IR, Bapsfontein in order to hold an initiation school is granted, subject to the following conditions:

The school will be held from 22 May 2009 to 27 August 2009;

A place is to be designated for the school upon consultation by the parties. The initiates and teacher must restrict themselves to this area as well as the family house of the first applicant. They will refrain from moving around on any other part of the farm.

The only persons who will be allowed on the farm during the initiation school will be:

Bongani Ndala, initiate;

Montuza Mtimunye, initiate;

Jafta Ndala, initiate;

Siphiwe Ndala, initiate;

George Mtsweni, teacher;

Martha Mothawu, family member, who will only be allowed to visit the farm from 6h00 to 18h00 each day and will not sleep over on the farm. The First respondent is to be informed prior to any visit by Martha Mothawu;

The four initiates and the teacher will not be allowed to make any fires at any place or time during the duration of the school. Should there be any damage from a fire made by the initiates or the teacher, the Ndala family will be responsible for all such damage;

The initiates and teacher will not be allowed to make contact with any of the farm workers or other occupiers on the farm;

The initiation school will not interfere with any of the farm activities, even if the activities occur on the designated place as described in (b) above;

The initiates and teacher shall not cause any damage to the farm, the infrastructure on the farm, or any of the livestock.

The initiates or the teacher are not allowed to make any noise that will cause any public disturbance to occupants of the farm.

No order is made with regards to costs.

Shanaaz Mia

Acting Judge of the Land Claims Court

Appearances:

Counsel for Applicant

Advocate I. Goodman

Instructed by L du Plessis Attorneys

Counsel for Respondent

Advocate J. J. Botha

Instructed by Mc Robert Attorneys

1 Section 6 (2) of “ESTA”

2 MEC of Education: Kwazulu-Natal and others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) at para 52.

3 Ibid at para 54

13