Nkosi and Others v Greyling and Others (LCC45/05) [2009] ZALCC 15 (25 November 2009)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG CASE NO:LCC 45/2005

8 September 2009

Decided 25 November 2009

In the matter between:

KHULU

NKOSI FIRST APPLICANT

SHAPI

NKOSI SECOND APPLICANT

KHAWULANI

NKOSI THIRD APPLICANT

ALFRED

VILAKAZI FOURTH APPLICANT

LINDA

ZWANE FIFTH APPLICANT

THE

DIRECTOR OF THE DEPARTMENT

OF

LAND AFFAIRS SIXTH APPLICANT

And

CORNELIUS

LOURENS GREYLING FIRST RESPONDENT

WILLEM

HENDRIK GREYLING SECOND RESPONDENT

JACOBUS

MINAAR VERPLOEGH THIRD RESPONDENT

_______________

JUDGEMENT

PIENAAR AJ

[1] This is an application for leave to appeal to the Supreme Court of Appeal against a judgement of this court handed down on 3 December 2008. An application for condonation for a late filing was also lodged. The respondents oppose both the application for condonation and the application for leave to appeal. In fact, it was argued that no application is before the court on the basis that it is fatally defective. I first deal with the issue whether the application is defective. In light of the role the prospect of success plays in granting an application for condonation I will then deal with the merits of the application, followed by the application for condonation.

APPLICATION BEFORE THE COURT

[2] The respondents opposed the application for condonation on the basis that it is defective. The respondents question whether the State Attorney can act for the first to fifth applicants and whether the employee of the Department of Land Affairs (hereafter DLA) had the necessary authority to depose on behalf of the first to the fifth applicants and whether the content of the affidavit was indeed confirmed by said applicants.

[3] Although the State Attorney may act for the DLA and although no power of attorney is required in instances where the State Attorney acts in terms of the State Attorney Act, 1957 (Act No 56 of 1957), (see Reg 7(5) of the Land Claims Court Rules) it was argued by the respondents that the DLA was not a party in this application in the sense that no order was made against the DLA in the court a quo. Consequently its locus standi in this particular case was questioned. Regarding Mr Makaula’s affidavit there is neither a confirmation of Mr Makaula’s authority to act on behalf of the applicants, nor has the content of his statements been confirmed. Based on these defects it was argued that a proper application for condonation was simply not before the court.

[4] During argument Mr Jansen acting for the applicants emphasized that, although the State Attorney rarely acts on behalf of private individuals, there are indeed instances, like the present case, where the DLA is a party in the proceedings and where it is expedient and in the interest of everyone involved in the case that the State Attorney take the brief forward. According to him, the particular circumstances of this case warrant this kind of assistance to the applicants. The relevant affidavit in support of the condonation application was furthermore filed by the State Attorney, accordingly the State Attorney is before the court.

[5] Mr de Wet, acting for the respondents, underlined that the attorney of record, Mr Sekoaila, is still on record acting for the applicants and has not filed a notice of withdrawal. During argument is became clear, however, that the State Attorney does in fact act for the first to the fifth respondents. But is this possible? Section 3(1) of the State Attorney Act 56 of 1957 specifically frames the role and function of the State Attorney so as to perform work “on behalf of the government of the Republic”. However, Mr de Wet did concede that the actions of the State Attorney in this case, may be supported by section 3(3) of the State Attorney Act 56 of 1957 in that it provides that the State Attorney may act in relation to any matter in which the government or an administration thereof, although not a party, is interested or concerned in. Although this may clarify the participation of the State Attorney the next question posed by Mr de Wet was whether it ought to participate in matters like these. In this regard Mr de Wet emphasized that the practical implications of such involvement lead to government specifically choosing to support a particular private party in civil litigation to the detriment of another private party. In principle, such conduct is unfair and unreasonable, was agued. Although particularly requested to respond to this issue in the papers, the State Attorney refrained from doing so.

[6] Mr de Wet furthermore pointed out that the authorization of the affidavit and the content thereof had not been confirmed by the first to the fifth applicants. In light of all of these factors, it was argued that the application for condonation was simply defective and ought to be struck from the roll.

[7] The involvement of the State Attorney in civil litigation is problematic. Inherent problems in such participation have been pointed out by Mr de Wet. However, in the interest of justice in general and the possible finalization of a case that has dragged on since 2005 in particular, I accept that the State Attorney is involved in this case because the DLA is connected to it and has an interest in it. In fact, the DLA has been closely involved in the case since it was first postponed in 2007 (see background to case in paras [2]-[7] of the a quo judgement). Officials of the DLA, including Mr Makaula, participated actively in the numerous telephone conferences surrounding the case, and were likewise involved in various attempts to settle the matter amicably. Also for these reasons the Makaula-affidavit on behalf of the first to fifth applicants is accepted. Accordingly, in the interest of justice and for the reasons set out above, I am satisfied that an application for leave to appeal is indeed before the court. I now turn to the merits of the application for leave to appeal.

APPLICATION FOR LEAVE TO APPEAL

[8] The applicants lodged the application for leave to appeal on various grounds relating to findings of fact and findings of law respectively.

[9] Regarding errors of fact, it was pointed out that the finding that the relationship between the land owners and the labour tenants had irretrievably broken down, was incorrect as (a) there was no previous relationship that could break down and (b) there was no proper attempt to mediate disputes. Another ground of appeal linked with this one, is that the non-ordering of mediation was an error. In response, Mr de Wet argued that a relationship ex lege is established when a new lessee enters the scene. This is supported by Chapter 2 of the Act in that, when land is leased or purchased, and labour tenants meeting the requirements set out in section 1 are present on the land, a land owner/lessee – labour tenant relationship automatically becomes relevant. This concept embodies one of the main aims of the Act, namely the (automatic) protection of labour tenancy, if the requirements for labour tenancy were complied with. From the outset, (September 2004) the conduct of the applicants prevented any form of mediation, inevitably resulting in the final irretrievable breakdown of the relationship. It is within this context that the Act specifically provides for eviction when it is clear the relationship between the parties cannot be resurrected and smoothed over. It was furthermore pointed out that mediation is not a pre-condition for the granting of eviction orders. The stance

of the applicants had throughout the hearing been that they did not acknowledge the respondents as the lessees (and later owners) of the farm, they would not take any instructions from them and that the labour tenants would continue with their farming operations unhindered. The applicants’ legal counsel never raised the matter of mediation, even during the numerous telephone conferences surrounding the case. When the case was first postponed in May 2007, one of the underlying aims of the postponement was that an amicable solution could be arrived at and that various attempts to settle the matter were embarked on. Despite these numerous attempts no settlement could be reached. There is no indication that mediation, even if ordered, would have lead to any other result.

[10] It was also raised that the finding that the applicants in the present application acted aggressively was incorrect as these allegations were in dispute and no clear findings were made regarding credibility. Allegations by the respondents that the applicants acted aggressively were clearly supported during the hearing by (a) evidence placed before the court and (b) testimony of the applicants themselves. Concerning (a) a police statement before the court made by the applicants clearly indicated their aggressive attitude towards the respondents. One of the family members was furthermore convicted of intimidation of the respondents. The applicants’ own testimony furthermore underlined that they did not want the respondents on the farm, that they did not acknowledge them and that they were not going to adjust their farming practices.

[11] It was stated that the finding that the parties were unable to farm peacefully together in future, was incorrect. This ground is linked with the first ground dealing with the relationship of the parties as well as with the matter of whether the applicants were aggressive or not. The train of events are set out in detail in the a quo judgement and will not be repeated here in full. The main events that led to the breakdown of the relationship were corroborated by evidence during the hearing. The moment the new lessees came into the picture, the occupants on the farm prevented them from exercising their rights in terms of the lease agreement. Not only were their cattle removed from the land, but free access to the farm was prevented. As it happens, the respondents have not had effective use of the farmland since September 2004, despite having carried the financial burden and concomitant economic responsibilities connected to the land. What has effectively happened, is that the applicants have taken over the farm: they refuse to provide labour, they refuse to reduce their cattle numbers, they refuse to take instructions from the respondents. During the hearing they have indicated that they want to farm and use the land to the exclusion of the respondents. How is it possible that these two parties can farm peacefully together in light of these circumstances? I am convinced that there is no reasonable prospect that another court would reach a different conclusion in light of these particular facts and circumstances.

[12] It was further stated that the finding on the facts resulting in “special circumstances” enabling eviction under section 14 of the Act, was incorrect. In this regard the court is called upon to make a value judgement. In making this value judgement, all relevant facts and circumstances were evaluated by the court. The broken down relationship of the parties has already been alluded to above. The stance of the applicants regarding the use of the land and the exclusion of the respondents has also already been referred to. It is again underlined that the applicants confirmed that they did not want the respondents on the farm and that they would not adjust their farming practices. It was found that the sum total of all of these facts, including that the applicants refuse to provide labour, constituted “special circumstances”. There is no claim that the court misdirected itself in reaching this conclusion. The applicants furthermore do not proffer a basis on which another court would interfere with the value judgement passed by this court or on which basis another court would reach a different conclusion. It is trite that where there has been no misdirection on fact by the trial judge, it is presumed that the conclusion reached by the trial court is correct (R v Dhlumay & Another 1948 (2) SA677 (A) 705-706). Also, in view of the advantages enjoyed by the trial court in

seeing and hearing the witnesses and in being steeped in the atmosphere of the trial, an appeal court is in general reluctant to disturb the findings of the trial court in questions of fact (Ndlovu v A A Mutal Insurance Association Ltd 1991 (3) SA 655 (E) at 659E-F). Neither in the papers, nor in argument was indicated why and how another court would reasonably reach a different conclusion regarding the “special circumstances” at hand.

[13] Regarding findings and conclusions of law, the following grounds were stated:

[14] The finding that a labour tenant, who had brought an application in terms of Chapter III of the Act, could be required to perform labour, was incorrect. The applicants do not suggest another approach to the issue or why the conclusion reached by the court is incorrect. On the other hand, the respondents rely on the exposition set out in para [40] of the a quo judgment confirming that the mere lodging of a section 16 application does not in itself suspend the provision of labour. That obligation remains in tact for the duration of the Chapter III-proceedings. In the absence of an argument to the contrary, I stand thereby.

[15] It was further stated that the judgement was incorrect in granting an eviction order when a less drastic order or an appropriately tailored interdict or a declaration of rights relating to portions of land would have been more appropriate. In this regard it is important to note the recent judgement handed down in the Supreme Court of Appeal regarding the role of the presiding official. In Ekurhuleni Metropolitan Municipality v Dada and Six Other Respondents (Case number 280/2008, delivered on 27 March 2009, SCA) the a quo court decided that the municipality had to purchase the parcel of land that was occupied unlawfully, despite this order/result never being raised in the pleadings or requested as relief. The point of departure of the Supreme Court of Appeal was that judges, in exercising their judicial function, were themselves constrained by the law (para [1]). Presiding officials have to take note of the pleadings, papers and arguments before it. Judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision and thus obliterate the distinction between review and appeal – para [10]. In this context the application before the court a quo was one for an eviction order. It was not an application dealing with an award of land, for which Chapter III of the Act provides. Had that been the case, oral and other evidence would

have been lead relating to the size, form and extent of land to be awarded. Another relief sought, be it meaningful engagement or a structured interdict, was never raised in the pleadings. It is true that an eviction order is a drastic measure. That is why it can only be granted in “special circumstances”. As already set out above, the court found that within these particular facts and special circumstances, the granting of an eviction order was indeed warranted.

[16] It was finally stated that the finding that an irretrievable breakdown of the relationship between the landowner and the labour tenant, as well as the finding that all the facts connected herewith constituted special circumstances for purposes of Act 3 of 1996, was incorrect. Whether special circumstances were present in this case, was already dealt with in paragraph [12] above. It is reiterated here that it is not the breakdown of the relationship per se, or the non-rendering of labour in isolation that constitutes “special circumstances”. It is the cumulative impact of all of the relevant factors: the non-provision of labour, the total breakdown of the relationship, the refusal to adjust farming practices, the non-acknowledgement of the respondents as lessees (and later owners) of the farm and the hostile attitude towards the respondents that constitute “special circumstances”. As Van Zuydam v Zulu (1999 (3) SA 736 (LCC)), a judgment of this court, has already found, labour tenants effectively taking over the land, despite a section 16 application pending, would constitute special circumstances for purposes of eviction under section 14. I am satisfied that another court would not reasonably arrive at another decision.

APPLICATION FOR CONDONATION

[17] I have already found that another court would not reasonably arrive at another decision regarding the merits of the application. For the sake of completeness I set out the train of events leading up to the late filing of the application for leave to appeal and the condonation application.

[18] The depondent in the application in support of the condonation is Mr Makaula, a legal administrative officer in the employment of the DLA. According to the application he was authorized to depose the affidavit on behalf of the applicants by virtue of his office.

Although the judgement was handed down on 3 December 2008 it was received by the sixth applicant, the Department of Land Affairs on 8 January 2009 only. The attorney on record, Mr Sekoaila, from the Middelburg Justice Centre was on leave at that time. Mr Sekoaila was neither involved in the application for leave to appeal, nor has he filed a notice of withdrawal as attorney of record.

[19] In the absence of Mr Sekoaila, discussions were held with the Mpumalanga Access to Justice Centre as the matter had also been referred to them. At the end of January 2009, counsel had already been briefed. It took some time for Mr Makaula to familiarize himself with the facts of and background relating to the case resulting in him only convening with the other applicants by mid-February 2009. On 9 March 2009 the office of the State Attorney was formally approached to proceed with the appeal. Counsel only had time to read and familiarize themselves with the case at the end of March and study the judgement in the first week of April 2009. The schedule and unavailability of counsel are forwarded as reasons for this delay. Due to these particular factors the application for leave to appeal was filed first, on 7 March 2009, followed by the application for condonation, on 5 May 2009. Mr Makaula underlines that he had trouble accessing information during April due to the unavailability of staff members and the numerous public holidays within this period of time. It was also emphasized that the intention had always been to appeal against the judgement and that the first to fifth applicants were wholly dependent on the assistance of the sixth applicant in this regard. The affidavit concludes that reasonable explanations have been given for the delays, that the delay is not unreasonable and that it would not cause the respondents substantial and material prejudice, especially in light of reasonable prospects on success on appeal.

[20] During argument, Mr Jansen, acting for the applicants, emphasized that, although there was a delay in filing the matter, the deponent, Mr Makaula, continuously followed up the matter and held a close watch as to its progress. Internal difficulties within the DLA, availability of personnel as well as communication difficulties with clients impacted negatively on the smooth and timeous filing of the matter. The delay was furthermore not unreasonable in light of the particular circumstances. Balancing reasons for the delay with possible prejudice to the respondents furthermore supports grating the application for condonation. If the application for leave to appeal proceeded, the applicants would be present on the land for an unspecified period of time anyway. The respondents would therefore not be prejudiced due to the late filing of the application. Regarding the prospects of success on appeal, it was argued that another court could quite possibly reach a different conclusion regarding the issue whether special circumstances for eviction, as required by section 14 of the Land Reform (Labour Tenant) Act, 1996 (Act No 3 of 1996), were indeed present. Accordingly the application for condonation ought to be granted.

[21] The respondents’ contention that the application is fatally defective had already been dealt with in the judgement above (paras [2]-[7].)

[22] Non-compliance with Court Rules can be condoned. However, this does not mean that an application for condonation is a mere formality. When considering an application for condonation, all relevant circumstances need to be taken into account, including the degree of non-compliance, explanation of the non-compliance, the importance of the case, the prospects of success on appeal and the prejudice to both parties (Melane v Santam Insurance Company Ltd 1962 (4) SA 531 (A) at 532 (C-D)).

[23] Non-compliance lies in the fact that the filing of an application for leave to appeal was out of time by just over two months. In essence inter-departmental difficulties and constraints, unavailability and the schedules of counsel, as well as difficulties in communicating with clients, were offered as reasons for lateness. Although I find these reasons clarify, to some extent, the lateness in relation to the application for leave to appeal lodged in March 2009, it does not explain why the application for condonation was filed another two months after that date, in May 2009. Essentially the condonation application was filed four months out of time with no clear, acceptable reasons explaining its lateness. In the mean time access to and use of the farm have been problematic for the land owners (the respondents), while still carrying the financial burdens as land owners.

[24] In light of all of these factors, including that there is no prospect of success on the merits, I dismiss the application for condonation.

COSTS

[25] It is the usual practice in the Land Claims Court that costs are not awarded, except in special circumstances. Counsel for the respondents has requested costs on the basis that the application for leave to appeal was driven by the State Attorney, representing the applicants. Although such representation may pose difficulties to private land owners and lessees, I have already stated that representation in this particular case due to the active involvement of the DLA, is warranted. Accordingly I do not depart from the usual practice in this court. No award for costs is made.

DATE OF EVICTION

[26] The judgement handed down on 3 December 2008 identified 15 May 2009 as the date on which the applicants in the present application had to vacate the property. If the property was not vacated voluntarily on that date the eviction order could be executed on 31 May 2009. The application for leave to appeal and its dismissal warrants a new date for eviction. In the present circumstances a fair and equitable date is 31 December 2009, to be executed on 15 January 2010 if the property had not been vacated voluntarily by the applicants in the present application.

Order

1. The application for condonation for the late filing of the application for leave to appeal is dismissed.

2. The application for leave to appeal is dismissed.

3. Applicants in the present application to vacate land in question no later than 31 December 2009. If the property is not voluntarily vacated on 31 December 2009 the eviction order may be executed on 15 January 2010.

4. No order as to costs.

______

JM Pienaar

Acting Judge of the land Claims Court

APPEARANCES:

For the Applicants:

Mr R Jansen

Instructed by

The State Attorney - Pretoria

For Respondents:

Mr A de Wet

Cox & Partners

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