Tlou le Tau Tribal Authority and Others v Bonnanye (CA 2/2007) [2007] ZANWHC 27 (28 June 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. CA 2/2007

In the matter between:

TLOU LE TAU TRIBAL AUTHORITY 1ST APPELLANT

OMPHILE LETLHOGILE 2ND APPELLANT

NAAS DISIPI 3RD APPELLANT

ARCHIBALD DIJWE 4TH APPELLANT

J.F. DE BEER 5TH APPELLANT

and

MODISAOTSILE ISHMAEL BONNANYE RESPONDENT

____________________________________________________________________________

JUDGMENT

MOGOENG JP.

[1] This is an appeal against the whole of the judgment of the Magistrate’s Court awarding the Respondent damages in the amount of R35 000.00 with costs against the Appellants jointly and severally the one paying the others to be absolved.

[2] The background facts are briefly that the Respondent is a policeman who is also a farmer. On 22 October 1996 and at Ganyesa, he and a Ms B. Kala entered into a written agreement in terms of which he was to:

2.1 exercise the right to farm and raise crops on a farm which was allocated to Ms Kala by the tribe, measuring 220ha;

2.2 pay Ms Kala an amount to be agreed upon.

[3] The lease agreement was countersigned by the traditional leader. It was to endure for a period of eighteen months with the right of renewal by mutual consent. Their agreement was apparently preceded by another one which had been operative since some time in 1992 until the date of the coming into operation of the aforementioned one.

[4] The Respondent enjoyed undisturbed occupation of the farm until 16 September 2004. On that day, the tribal authority (the first Appellant) held a meeting at which it was apparently resolved that some of the fences around the aforementioned farm should be removed to give all cattle farmers in that community unrestrained access to the grazing in the farm. This resolution, I may pause to mention, was preceded by a series of attempts by both the first and the fifth Appellants to remove the Respondent from the farm. Some of those attempts were: (i) the letter written by the first Appellant summoning the Respondent to a meeting which he ignored; (ii) the letters written by the fifth Appellant and his attorneys to the Respondent and his employer to the effect that the fifth Appellant was the new owner of the farm since he had bought it from Ms Kala and that the Respondent should vacate the farm; (iii) the Appellants approaching the Magistrate’s Court to try to evict the Respondent. It was only when none of the aforementioned seemed to bear the desired fruit that the first Appellant resolved to remove the fences on 16 September 2004.

[5] Pursuant to the resolution passed by the first Appellant on 16 September 2004, the second to fifth individual Appellants, together with about fifty other residents of Ganyesa drove to the farm in motor vehicles and removed the fences. This is said to have resulted in the loss allegedly suffered by the Respondent.

[6] It is not clear what kind of legal categorisation would best suit the action taken by the Appellants against the Respondent, whether it is eviction in disguise or something else. Be that as it may, in the view I take of this matter, it will not be necessary to answer that question. The issues to be decided are whether (i) the Appellants had the legal authority to do what they did. If they did, then that settles the matter; if they did not (ii) whether the Respondent suffered damages consequent upon the action taken by the Appellants; (iii) whether the Appellants are liable for those damages; and if so (iv) what the correct quantum of those damages is. I deal with these issues seriatim below.

Did the Appellants have the legal authority?

[7] Some of the Appellants’ witnesses testified that the decision to remove the fences was taken by the first Appellant sitting as the traditional court of law. The reason for the decision being that a need had arisen, as was the tribe’s tradition after harvest, to open up the camps in order to allow all the cattle of that area access to those portions of tribal land on which crops had been planted during the planting season.

[8] Before the issue of the legal authority is even settled, it is necessary to deal with the rationale behind the “opening up” of the farm once and for all. It is evident from the record of the proceedings that since the Respondent took occupation of the farm in 1992, and in terms of the aforementioned contract since 1996, the first Appellant never acted in terms of the tradition now sought to be relied on, to open up the farm. This tradition was only remembered when the need arose to remove the Respondent from the farm and he resisted the move. When all else failed, then and only then, was refuge sought in the tradition and practice of opening up the farm or the camps. All evidence and information in the record having been considered, it is clear that the farm was opened up to frustrate the Respondent’s continued enjoyment of the exclusive right to use the farm since 1996. It is probable that the farm had never been opened up since the Kala’s took occupation of the farm many years before the Respondent took over. I turn now to deal with the legal authority.

[9] To the extent that the first Appellant may have purported to act as a tribal court, s 5(2)(e) of the Bophuthatswana Traditional Courts Act No. 29 of 1979 (“the Act”) invalidates such a decision on the grounds of lack of jurisdiction. Section 5(2)(e) of the Act provides that:

“(2) A tribal court . . . shall have no jurisdiction in matters─

. . . . . .

(e) to which the tribal authority or the chief or the headman, as the case may be, is a party.”

In this matter, the tribal authority, including the senior traditional leader (chief) and his headmen were all parties to the action against the Respondent and the tribal court did not, therefore, have the authority to decide as it allegedly did. They cannot be the investigating officer, the prosecutor and the judge in their own cause.

[10] In so far as the tribal authority was constituted as a tribal council or in any other decision-making form which entitles it to take binding decisions, it also lacked the locus standi and the jurisdiction to entertain the matter. The agreement of lease is essentially between Ms Kala and the Respondent and by mutual agreement it may be renewed. Payment for the land is due to her. Although the property falls within and forms part of tribal land, it is hers. She has the exclusive right to use that property. Neither Ms Kala nor any of her children has lodged any complaint against the Respondent. She never wrote any letter to him or anything of the kind. From the look of things, she is happy and comfortable with her business relationship with the Respondent. Her authority and rights in respect of the farm were usurped and possibly even abused by the Appellants. She is the one who has the locus standi to act or initiate steps against the Respondent. She has not done that and nobody may just step into her shoes and virtually chase or crowd her tenant out of the farm as the Appellants did. Neither the senior traditional leader nor the tribal authority has the legal authority to take steps against Ms Kala’s tenant anytime and anyhow, in total disregard of her rights and authority. They also do not have the authority to arbitrarily remove the fence and gates, that she and the Respondent have kept and maintained for more than a decade, in the furtherance of the fifth Appellant’s cause or any other illegitimate cause.

Did the Respondent suffer damages?

[11] The Respondent and his herdsman said that he kept 25 herd of cattle in the farm. Though the removers of the fences did not seem to have counted the cattle, according to their testimony they saw that there were some cattle in the farm. The testimony of the Respondent is that he lost a total of 15 herd of cattle after some of the fences around the farm were removed. He subsequently recovered five of the fifteen herd of cattle which were then roaming the streets of the village in which the farm is situated.

[12] He attributes his loss to the removal of the fences. It seems to be undisputed or common cause that the Respondent had not lodged any complaint about the loss of his cattle prior to the 16 September 2004. One would imagine, without being speculative, that it would have been common knowledge among the villagers that the Respondent had lost cattle if he had lost them prior to the removal of the fences. Besides, the Respondent’s evidence that he lost cattle stands uncontroverted. The only disparity between his and his herdsman’s version relates to whether or not the lost cattle were 10 or 15. The Court a quo accepted the version that they were 10, which is a lesser of the two numbers, and nobody can cry prejudice. After all, they both say that initially 15 were lost. The question is whether or not the Appellants are liable for the loss.

Are the Appellants liable?

[13] It is evident that the Respondent had had no reason to complain about the safety of his cattle until 16 September 2004. The focus of the Appellants’ complaint about him had, among other things, been that he farms with cattle whereas the farm was set aside for crop farming, and that he should remove his cattle from the farm which is next to that of the fifth Appellant to another camp where his other cattle were. Then the fences were removed. The Appellants’ conduct, which is not sanctioned by law, is the direct cause of the Respondent’s cattle leaving the farm and disappearing from the farm. Had the fence of the farm not been removed, all things being equal, the cattle would either have had to jump or break through the fence or be driven out of the farm. Otherwise they would still be in the farm. I accordingly cannot find any reason to fault the decision of the Court a quo to the effect that the Appellants’ actions are the direct cause of the Respondent’s loss and that the Appellants are, accordingly, liable to the Respondent for the loss of his 10 herd of cattle. Quantum is, therefore, the only issue left to be determined.

Quantum

[14] In his evidence dealing with quantum, the Respondent testified that the average price of his cow was R3 500.00. Counsel for the Appellants asked him what proof he had that his cattle were worth that much. She even insisted on the production of documentary evidence. In response, the Respondent told the Court that he was the proof himself (meaning in effect that he had personal knowledge thereof) and also that that is the price that he was being paid for his cattle at the auction. He even said he could produce that documentation, given a chance. Evidently, counsel is not familiar with cattle and their average price in that area as at 2004. The presiding officer who was au fait with the pricing of cattle and what they were selling for in the area at the time, took judicial notice of that and accepted the Respondent’s estimation or assessment of the value of his cows. The Court is unable to find merit in the criticism of the quantum by the Appellants. One would have expected of them, as residents of that area, to counter the Respondent’s evaluation by saying that the cows or heifers were actually worth a particular amount which is lesser than that stated by the Respondent. The Respondent’s testimony in this regard was not contradicted.

[15] The Court is satisfied that all the questions or issues raised in paragraph 6 above should be answered in favour of the Respondent.

Order

[16] In the result, the appeal is dismissed with costs against the Appellants jointly and severally, the one paying the others to be absolved.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree

___________

A.J. SWART

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 15 JUNE 2007

DATE OF JUDGMENT : 28 JUNE 2007

COUNSEL FOR APPLICANT : DR S.J. SENATLE

COUNSEL FOR RESPONDENTS : NO APPEARANCE

ATTORNEYS FOR APPLICANT : THE STATE ATTORNEY

ATTORNEYS FOR RESPONDENTS : K.P PHASHA INC.