Rouxlandia Investments (Pty) Ltd v Oranje and Others (LCC122/2016) [2017] ZALCC 3 (28 March 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

Case No.: LCC122/2016

Before: The Honourable Justice Meer

Heard on: 22 March 2017

Delivered on: 28 March 2017

In the matter between:

ROUXLANDIA INVESTMENTS (PTY) LTD

Applicant

(previously known as MANETRADE 164 (PTY) LTD)

(Reg Nr 97/08120/07)

and

JAN JOHANNES ORANJE (JOHNNY)

First Respondent

ZILNA ORANJE

Second Respondent

WARREN ORANJE

Third Respondent

ENVER ORANJE

Fourth Respondent

THEEWATERSKLOOP MUNICIPALITY

Fifth Respondent

JUDGMENT delivered 28 MARCH 2017

MEER AJP.

[1] The Applicant applies in terms of Section 20(1)(b) of the Extension of Security of Tenure Act No 62 of 1997 (“ESTA”), for the relocation of the Respondents from House No [...] which they currently occupy on the farm Kaimansgat, (“the farm”)

Caledon, Western Cape, to another house, being house No […] on the same farm. The Applicant is the owner of the farm. He seeks the relocation for the reason that the house currently occupied by the First Respondent and his family, the Second to Fourth Respondents, is specifically reserved for management staff, the First Respondent is no longer a manager, and the house is required to accommodate the manager who was appointed in place of the First Respondent.

[2] The Respondents, in opposing the application, firstly challenge the locus standi of Mr Johannes Roux (“Roux”), the Director of the Applicant to represent it in these proceedings. Secondly, they

challenge the jurisdiction of this Court to entertain an application for relocation as opposed to one for eviction under the Act.

Thirdly, they challenge the application on its merits.

Locus Standi

[3] The Respondents take issue with the fact that the Applicant's resolution authorises Roux to apply “vir ‘n

hofbevel vir die uitsetting” or eviction of the Respondents, and not for their relocation, as is sought in the Notice of Motion.

[4] Whilst paragraph 1 of the resolution refers to an “uitsetting” or eviction the paragraph also makes clear that it is an eviction from the house that the Respondents currently occupy.

[5] Thus, notwithstanding the use of the term “uitsetting” or eviction in paragraph 1 thereof, the resolution clearly authorises the “uitsetting” or removal from a house and not the eviction from the farm or registered land unit as a whole. In Chagi and Others v Singisi Forest Products (Pty) Ltd 2007 (5) SA 513 (SCA) the Court held at paragraphs 19 and 20, that a relocation from one set of houses to another on the same piece of land does not constitute an eviction as contemplated in ESTA. The Court also held that the word “land” as used at Section 6 of ESTA and in the definition of eviction means the registered unit as a whole and not the actual piece of land used by the occupier. In this matter the notice of motion and pleadings make clear that it is a relocation to another house that is sought. The fact that the word “uitsetting” appears in the resolution does not detract from this. I am accordingly satisfied that the resolution of the directors authorised the removal of the Respondents from the house they currently occupy to another house, being the relief sought.

Jurisdiction

[6] Mr Samuels for the Respondents argued that this Court did not have jurisdiction to order a relocation as opposed to an eviction. This proposition flies in the face both of statute and established case law.

6.1 Section 20(1)(b) of the Extension of Security of Tenure Act No 62 of 1997 states:

“20. Land Claims Court- (1)

(1) The Land Claims Court shall have jurisdiction in terms of this Act throughout the Republic and shall have all the ancillary powers

necessary or reasonably incidental to the performance of its functions in terms of this Act, including the power-

(a) …

(b) to grant interlocutory orders, declaratory orders and interdicts.”

Mr Cronje for the Applicant submitted correctly in my view that the relief sought by the Applicant was in the nature of a mandatory

interdict and thus fell squarely within the ambit of section 20(1)(b).

6.2 Section 22 (cA) of the Restitution of Land Rights Act No 22 of 1994. The Section states:

“22. Land Claims Court- (1)

There shall be a Court of law to be known as the Land Claims Court which shall have the power, to the exclusion of any court, contemplated in Section 166(c)(d) or (e) of the Constitution –

(a) . . . .

(b) . . . .

(c) . . . .

(cA) at the instance of any interested person and in its discretion to grant a declaratory order on a question of law relating to Section 25(7) of the Constitution or to this Act or to any other law or matter in respect of which the Court has jurisdiction,

notwithstanding that such person might not be able to claim any relief consequential upon the granting of such order;”

I am therefore also entitled to consider the relief that is being sought by virtue of the provisions of Section 22(cA).

6.3 In Pharos Properties CC and Others v Kuilders and Others 2001(2)SA 1180 at 11[...]A-B, and Drumearn (Pty) ltd v Wagner and Others 2002(6) SA500 at 504F, this Court recognized that a relocation order could be granted under ESTA. In the former case two of the respondents were ordered to move to a smaller house on the property. Furthermore, in Chagi supra, implicit in the finding that the proposed relocation does not constitute an eviction, is an acknowledgement that this Court is

competent to entertain a relocation as opposed to an eviction.

[7] Given the clear expression of the statutes and the decisions referred to above, this Court’s jurisdiction ought to have been apparent and not raised as an issue to be considered.

Common Cause Facts

[8] The First Respondent and his family, the Second to Fourth Respondents, were granted rights of residence on the farm by virtue

of the First Respondent's employment with Kaaimansgat Boerdery. In terms of a housing agreement the First Respondent and his family were given the right to occupy house No [...]. The housing agreement makes clear that house No [...] is specifically reserved for management staff. The housing agreement in relevant part states as follows:

“BEHUISINGSOOREENKOMS (ten opsigte van

Voormanne/Voorvrou/Bestuurslede)

Aangegaan tussen

Kaaimansgat Boerdery (Edms) Bpk.

(hierna bekend as “die Werkgewer”)

En

Johnny Oranje

(Hierna bekend as “die Werknemer/Verantwoordelike Okkupeerder”)

RAKENDE BEHUISING IN HUIS No.: [...]

(Hierna genoem die woning)

Die Werkgewer verskaf behuising aan die werknemer onder die volgende voorwaardes:

1. Duur van ooreenkoms:

a. …

b. …

c. …

d. Dit is verstande dat die betrokke huis, spesifiek geallokeer word en slegs van toepassing is op bestuurslede. In die geval waar die primêre okkupeerder nie meer ‘n bestuursposisie beklee nie, vir watter rede ook al, sal hierdie behuisings ooreenkoms met 30 dae skriftelike kennis, beëindig word.”

The housing agreement was signed by the parties on 16 December 2013.

[9] The First Respondent was declared medically unfit for work on 26 June 2014. Consequently, the First Respondent's employment with the Applicant was terminated. There is no dispute with respect to the termination of his employment.

[10] The First Respondent, as a long term occupier who is medically unfit, is a protected occupier in terms of Section 8(4)(b) of ESTA and consequently cannot be evicted unless he commits a breach as referred to in that Section. Section 8(4)b) states:

“8. Termination of right of residence.-(1) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and –

(a) …..

(b) is an employee or former employee of the owner or person in charge and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge,

may not be terminated unless that occupier has committed a breach contemplated in section 10(1) (a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach.”

No such breach has been alleged.

[11] The First Respondent is therefore no longer part of the management staff as referred to in the housing agreement entered into by him. The First Respondent has been requested to move to a smaller house on the farm. It is not disputed that this house is of comparable standard to the house the Respondents are currently occupying, except for the fact that it is smaller. It is a 5 roomed house with a solid leak-free corrugated iron roof and has been newly painted inside. The house has running water with a flushing toilet and bathroom as well as electricity.

[12] On 1 September 2015 the Applicant convened a meeting with the First Respondent and requested the First Respondent to move to the new house. The Respondents have refused to vacate house no [...] which they currently occupy, and to move to the other house.

Allegations pertaining to prejudice

[13] The founding affidavit states that the Applicant urgently needs the house currently occupied by the Respondents to house the current manager. If the current manager is not housed on the farm, it is alleged that productivity is prejudiced and there are transport costs. The effective running of the Applicant’s farm, it is said, is seriously prejudiced by the Respondents continued occupation of the managers house.

[14] The Applicant contends that given the availability of alternative accommodation for the Respondents, the prejudice to the Applicant

outweighs that of the Respondents, should the application not be granted. The Respondents reply is a bald denial that the

Applicant will use the house for other workers and that the Applicant will be prejudiced. In the absence of further substantiation,

this does not amount to a material dispute of fact.

[15] The Respondents have not objected to the accommodation to which the applicant seeks to move them, on the basis that it is not suitable alternative accommodation as defined in ESTA. In this regard I note that in Drumearn supra at paragraph 9, it was recognized that relocation affects the rights of occupiers and it was therefore necessary that the accommodation to which occupiers are relocated, be suitable alternative accommodation. There is no evidence that the alternative accommodation is not suitable alternative accommodation. The evidence, in fact suggests the contrary. This being so, the Applicant's version on the question of prejudice must stand.

[16] I am satisfied that the Applicant has established on the common cause facts, the first requirement for the interdictory relief he seeks, namely a clear right. He is entitled to seek the relocation of the Respondents from a house reserved for management, given that the First Respondent is no longer a manager.

[17] Given my findings on prejudice, the applicant has shown the second interdictory requirement, namely an injury. He has shown that there is an infringement of the right and resultant prejudice.

[18] The third requirement for the interdictory relief sought, namely, no alternative remedy, has also been established. The Applicant cannot obtain the eviction of the Respondents given that Section 8(4) (b) protects them from an eviction. The only course open to the Applicant was to apply for their relocation.

[19] In view of all of the above, the Applicant has shown on a balance of probabilities that he is entitled to the mandatory interdict he seeks in terms of Section 20 (1) (b) of ESTA.

Costs

[20] In keeping with the practice of this Court not to grant cost orders in matters such as this, (save for exceptional reasons, of which I find none in the present application), being in the genre of social action litigation, I make no order as to costs.

[21] I grant the following order:

1. The First, Second, Third and Fourth Respondents and all those occupying through the First Respondent are ordered to relocate from house no [...] on the farm Kaaimansgat being, the residue of portion 3 of the farm Elandskloof no [...] M. T., Caledon, Western Cape (“the farm”) to house no […] on the farm. Such relocation shall take place within 14 days of the date of this order.

2. There is no order as to costs.

_______________________

MEER AJP

LAND CLAIMS COURT

CAPE TOWN

Appearances

Appearance for the Applicant

Mr FH Cronjé

Cronjé’s Incorporated Attorneys

11 Hoheizen Crescent, Bellville

Appearance for the Respondent

Mr A Samuels

Instructed by:

David Sauls Attorneys

30 Epping Ave

Riverton

Cape Town