Van Rensburg NO and another v De Bruin and others (LCC93R/02) [2003] ZALCC 1 (27 January 2003)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC 93R/02

In chambers: BAM AJP MAGISTRATE’S COURT CASE NUMBER: 3825/2002

Decided on: 27 January 2003

In the review proceedings in the case between:

VAN RENSBURG, EJ N.O. First Applicant

BRON, BJ N.O. Second Applicant

and

DE BRUIN, J First Respondent

JACOBUS, J Second Respondent

MAYEPO, S Third Respondent

ESAU, E Fourth Respondent

BAARTMAN, G Fifth Respondent

LAKAY, S Sixth Respondent

ANDERSON, P Seventh Respondent

JUDGMENT

BAM AP:

In this matter, eviction proceedings were launched by the applicants against seven respondents in the Magistrate’s Court, Worcester, under Case No 3825/02. Three months later, on 11 September 2002, the magistrate granted an order in terms of an agreement between the applicants and the first to fourth respondents as well as the seventh respondent. The fifth and sixth respondents, had, in the meantime, already vacated the farm in circumstances not spelled out in the record. The matter comes before this Court on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act1 (“the Act”).

Mr Le Roux, who appeared on behalf of the applicants, accordingly withdrew the application against the sixth respondent, but not against the fifth respondent. Again, it is not clear from the record, on what basis the distinction was made by him and accepted by the court. Indeed the magistrate was persuaded that the extension of an order for eviction of the fifth respondent was just and equitable and that the application for the eviction of the fifth respondent be granted, presumably on the same terms as apply to the settlement agreement.

I am not able to support this part of the magistrate’s order. In the case of Drumearn (Edms BPK) v Wagner and Others2 it was held by this court that an eviction order cannot be made against persons who have vacated the farm, since the Act only deals with the protection of occupiers, who are defined as persons residing on land. Someone who has, for whatever reason, vacated the farm is clearly no longer residing on the farm and cannot be then evicted in terms of the Act.

More importantly, the fifth respondent in this case does not appear to have participated in the negotiations leading up to the settlement agreement. He does not appear to have consulted with Mr Esau of the Justice Centre and to have had the benefit of his legal advice. He has not withdrawn his appearance to defend. The mere fact that he may have been aware of the date of hearing of the application, and did not appear, cannot in itself establish tacit consent to the agreement nor that he vacated the land freely and willingly while being aware of his rights in terms of the Act.

The extension of the agreement to the eviction order to include the fifth respondent

can therefore not be justified and is accordingly set aside. Should the fifth respondent return to the land, the applicants may, if they choose, apply for leave to bring an application for his eviction on the same papers.

Regarding the agreement concerning the first to fourth respondents, it is necessary in terms of section 25 of ‘the Act’ to determine whether any waiver of rights, by the occupiers is permitted or can be incorporated in any order of court. It appears from the agreement that there was consensus that the requirements of section 9(2) had been complied with and that there has been no waiver of rights in this regard. There are also no terms that are patently not just or equitable. The peremptory duties of courts applying the Act, which are sections 12(1) and (2), 13(1)(a) and (b) and 19(3) all appear to have been observed.

The agreement also states that the respondents were fully aware of their rights with the assistance of a legal representative. The agreement in respect of the first to fourth respondents is accordingly confirmed, save in regard to the determination of the date on which the order may be carried out in terms of section 12(b). This is because 29 November 2002 has come and gone before the review process could be completed. That date is hereby substituted to be 31 January 2003.

The applicants have withdrawn their application for eviction against the seventh respondent upon being satisfied that he had reached the age of 60 and had been resident on the farm for 10 years. There is nothing in the conditions set for him in the agreement that is a limitation on his fundamental rights or inconsistent with his obligations in terms of sections 5 and 6 of the Act. The order concerning the seventh respondent is confirmed.

Order:

The order of the magistrate is therefore

( a) confirmed in the part relating to the first to fourth respondents and the seventh respondent;

( b) set aside in respect of the fifth respondent; and

( c) substituted with the date 31 January 2003 in place of 29 November 2002 in respect of the eviction date for to the first to fourth respondents.

______

ACTING

PRESIDENT FC BAM

For the Applicants: For the Defendants:

Maritz Murray & Fourie Inc. Justice Centre

1 Act 62 of 1997, as amended.

2 LCC 55R/02, 02 July 2002, available from www.law.wits.ac.za at para [10].