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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 546/2002

In the matter between

MARGRE PROPERTY HOLDINGS CC

and

NQABENI SWARTBOOI JEWULA

JUDGMENT

PICKERING J:

Applicant is Margre Property Holdings CC, a close corporation having its principal place of business at Riverside farm, Barkly East. Respondent is Nqabeni Swartbooi Jewula, an adult male presently residing on the aforesaid farm.

Applicant has instituted proceedings against respondent for an order in the following terms:

“1. That respondent be ordered to decrease:

1. his livestock, presently kept on applicant’s farm, Riverside, Barkly East, to 80 units; and

2. His family members, presently occupying the said farm to 13 persons;

in accordance with the written agreement entered into between the parties dated 10 September 1999.

2. That respondent be ordered to pay the costs of this application.”

Applicant has, however, since abandoned the relief sought in paragraph 1.2 of the Notice of Motion relating to respondent’s family members. The application is therefore only concerned with the relief sought in paragraphs 1.1 and 2 thereof.

In response to this application first respondent has raised an objection in limine. He contends that, in substance, the relief sought against him by applicant constitutes a curtailment of his right to the use of land which is linked to his right of residence on the farm Riverside, and, as such, constitutes an eviction such as is contemplated in the Extension of Security of Tenure Act, 62 of 1997 (“the Tenure Act”). He refers in this regard to the provisions of s 17 (1) and (2) of the Tenure Act which read as follows:

“(1) A party may, subject to the provisions of s 19 and 20, institute proceedings in the magistrate’s court within whose area of jurisdiction the land in question is situate, or the Land Claims Court.

(2) If all the parties to the proceedings consent thereto, proceedings may be instituted in any division of the High Court within whose area of jurisdiction the land in question is situate.”

He states that he has specifically withheld his consent to these proceedings being instituted in the High Court and that this Court is therefore obliged to decline to hear the matter.

Applicant, in turn, submits that this Court does have the requisite jurisdiction to entertain the matter.

It was common cause between Mr. Plasket, who appeared for applicant, and Mr. Kincaid, who appeared for respondent, that Riverside farm falls within the definition of land to which, in terms of s 2 thereof, the Tenure Act applies. It was further common cause that respondent is an “occupier” of Riverside farm within the meaning of that term as defined in s 1 of the Tenure Act. That definition reads as follows:

“‘Occupier’ means a person residing on land which belongs to another person, and who has or (sic) on 4 February 1997 or thereafter had consent or another right in law to do so…”

Mr. Kincaid, in support of his submission that this Court has no jurisdiction to entertain this application, referred further to the definition of “evict” in s 1 of the Tenure Act, namely:

“‘Evict’ means to deprive a person against his or her will of residence on land or the use of land or access to water which is linked to a right of residence in terms of this Act, and ‘eviction’ has a corresponding meaning.”

With reference to the above definitions Mr. Kincaid’s argument in essence amounted to the submission that, immediately an owner sought to limit the use of an “occupier’s” land, the jurisdiction of the High Court was ousted. It was then only a Court as defined in the Tenure Act which was vested with the necessary jurisdiction to deal with the matter. The High Court, so he submitted, lacked the jurisdiction even to enquire into the issue as to whether the order sought would in fact constitute an eviction as defined.

I disagree.

In my view in a case such as the present, the High Court is entitled and, indeed, obliged to enquire into this issue and will and can only decline to exercise jurisdiction once it is satisfied that the relief sought by applicant, if granted, would constitute an eviction as defined in the Tenure Act, thus bringing the matter within the exclusive jurisdiction of a court as defined therein. (Compare: Khumalo v Potgieter 2001 (3) SA 63 (SCA); Nkosi and another v Bührmann 2002 (1) SA 372 (SCA).

For purposes of the determination of the question of jurisdiction in this matter it is necessary, in my view, to decide whether respondent’s use of the farm for purposes of grazing his livestock is linked to his right of residence on the farm in terms of the Tenure Act and, whether the agreement, annexure D, deprived him of such use of the land against his will.

In this regard Mr. Kincaid submitted that the use by respondent of the land for grazing his livestock was indeed linked to his right of residence in terms of the Tenure Act inasmuch as such use was necessarily incidental to his right of residence. For this reason, so he submitted, an occupier of a farm, wishing to graze his livestock thereon, was not obliged to obtain the prior consent of the owner of the farm thereto. For the following reasons I do not agree.

S 39 (2) of the Constitution, Act no 108 of 1996 provides as follows:

“When interpreting any legislation, and when developing the common law or customary law, every Court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

S 25 of the Constitution deals with property rights under the Bill of Rights. In terms of s 25 (1):

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

S 25 (6) provides as follows:

“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory law or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

It is clear from the aforesaid provisions of the Constitution that a balance is required to be struck between the rights of an owner not to be arbitrarily deprived of his property and the rights of a person whose tenure of land is legally insecure as a result of past racially discriminatory laws to tenure which is legally secure. The authors of Budlender, Latsky and Roux; Juta’s New Land Law state at 7 A – 6 that the Tenure Act has three main objects:

“To protect people defined as ‘occupiers’ against unfair eviction (ss 1 – 3 and 8 – 25);

To bring legal certainty to the day-to-day relationship between owners and occupiers of rural and peri-urban land (ss 5 – 7);

And as a long term solution to the problem of unfair evictions, to provide a mechanism in terms of which occupiers can acquire independent tenure rights, either on the land on which they are staying, or on other land (ss 4 and 26).”

The learned authors state further at 7A-3 that the Tenure Act “attempts to transform historically entrenched power relationships so as to bring justice to the present.”

S 5 and s 6 (1) and 6(2) of the Tenure Act set out the rights of occupiers in respect of the use of land. These sections provide as follows:

“5. Fundamental rights

Subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an occupier, an owner and a person in charge shall have the right to –

(a) human dignity;

(b) freedom and security of the person;

3. privacy;

(d) freedom of religion, belief and opinion and of expression;

(e) freedom of association; and

(f) freedom of movement,

with due regard to the objects of the Constitution and this Act.

6. Rights and duties of occupiers

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 person in charge, an occupier shall have the right –

1. to security of tenure;

2. to receive bona fide visitors at reasonable times and for reasonable periods…;

3. to receive postal or other communication;

4. to family life in accordance with the culture of that family…;

5. not to be denied or deprived of access to water; and

6. not to be denied or deprived of access to educational or health services.

Mr. Plasket submitted that it was clear from the provisions of s 6 (2) in particular that the right to the use of land afforded an occupier is not an open-ended, unlimited or unfettered right. He referred in this regard to Serole and another v Pienaar [1999] 1 All SA 562 (LCC) at 569H – 570C; 2000 (1) SA 328 (LCC) at 335 D – G where the following was stated:

“S 6 (2) sets out some instances of use. All of them relate to the occupation of the land, and do not bear upon the land itself… Although all the specific instances of use in s 6 (2) are set out ‘without prejudice to the generality’ of the provisions of s 5 and 6 (1), they still serve as an illustration of what kind of use the legislature had in mind when granting to occupiers the right to ‘use the land’ on which they reside… A Court will not interpret a statute in a manner which will permit rights granted to a person under that statute to intrude upon the common-law rights of another, unless it is clear that such intrusion was intended.”

I respectfully agree.

I would refer also to Nkosi and another v Bührmann supra at 389 E – G where the decision in Serole’s case was approved. At 388 A Howie J.A. stated:

“As far as s 6 (1) is concerned, it confers the rights of residence, ‘use’ and services, subject to the owner’s consent or agreement”,

and, at 388 E the learned Judge stated further that:

“the land use intended is use in association with the right of residence.”

The right of an occupier of a farm to use the land by grazing livestock thereon is a right of a very different nature to those rights specified in s 6 (2). In my view such use was clearly not the kind of use contemplated by the legislature when granting to occupiers the right to use the land on which they reside. Such a right would obviously intrude upon the common-law rights of the farm owner and would, in my view, thereby amount to an arbitrary deprivation of the owner’s property. There is no clear indication in the Tenure Act that such an intrusion was intended. It is relevant in this regard that respondent is neither an employee nor a labour tenant as defined by s 1 of the Land Reform (Labour Tenants) Act 3 of 1996. His right, if any, to graze stock on the farm does not derive from that Act. In my view the use of land for purposes of grazing stock is pre-eminently a use which would be impossible to regulate in the absence of agreement between the parties. I am satisfied in all the circumstances that an occupier is not entitled as of right to keep livestock on the farm occupied by him as an adjunct of his right of residence. His entitlement to do so is dependant on the prior consent of the owner of the property having been obtained. Accordingly Mr. Kincaid’s submissions in this regard cannot be sustained.

Mr. Kincaid’s further submission was that the agreement, annexure D, was in any event vitiated by duress or undue influence.

In considering the validity of that agreement it is necessary to set out in some detail the background to this matter.

Applicant entered into negotiations to purchase Riverside farm from the then owner thereof, one Steyn, during 1999. The property was eventually transferred to applicant during February 2000. Respondent was employed as a shepherd on the farm by Steyn and he and his family had been resident on the farm for some considerable period of time. According to applicant, respondent had resided there for approximately 10 years whereas, according to respondent, he had been resident and employed on the farm for approximately 29 years. Nothing, however, turns on this issue.

It is common cause that during 1998 the aforesaid Steyn had threatened to evict respondent from the farm. This had led to certain negotiations between Steyn and respondent at which, inter alia, the police and representatives of two non-governmental organisations known respectively as Tralso and the Land and Housing Support Centre were present. Arising out of these negotiations an agreement (annexure C1) was entered into on 20 November 1998 between Steyn and respondent, the relevant portion of which reads as follows:

“All areas of disputes were put in (sic) the table and discussed substantially and the following issues were agreed on.

That a negotiated settlement on the issues of livestock of the farm worker will be discussed possible (sic) before the 16/12/98 and within those negotiations D.L.A., Labour Dept and the farmer’s legal representative will be invited.

Meanwhile the farmer, Mr. N.J. Steyn will pay the farm woker (sic), Mr. Swartbooi on the 26/11/98 to November but less 11 days.

At the moment the two parties, the farmer and the farm worker, live a happy relationship.

All parties here have committed themselves to this process.”

Applicant avers that on 2 December 1998, the negotiated settlement contemplated in annexure C1 was entered into between Steyn and respondent which agreement (annexure C2) provides:

“Bokke - almal weg na kersfees

Perde 1 los (bly) - res weg na kersfees

Beeste 4 sal bly - res weg na kersfees

Skaap 8 sal bly - res weg na kersfees

Begin weer betaal en kos gee wanneer vee weg is.

Geen betaling tot vee op getal is.

40 kg meel gee ek vandag”

The sole member of applicant, one Ib Hansen, who is resident in Denmark, deposed to the founding affidavit on behalf of applicant and stated therein that during his negotiations with Steyn concerning the purchase of Riverside farm in 1999 he had become aware of some existing animosity between Steyn and respondent. This animosity apparently arose out of the number of livestock which respondent had on the farm at the time, a number which Hansen established as being approximately 200 “units”, one sheep being equivalent to one unit.

According to Hansen he made it clear to Steyn that he would not purchase the farm unless an agreement could be reached concerning a drastically reduced number of livestock which respondent could have on the farm. He then entered into what he termed as being “almost endless negotiations at five or six different times” with respondent. During the course of these negotiations respondent was at all times assisted by advisers from, inter alia, the Barkly East Advice Office.

Eventually, during September 1999, an agreement was reached between applicant and respondent which agreement was reduced to writing and signed by Hansen and by respondent (by the affixation of his thumb print) in the presence of two of respondent’s advisers who signed as witnesses representing respondent, namely Mbulelo Mafilika of the Barkly East Advice Office and Mzoxolo Ncise of the Land and Housing Support Centre.

The relevant portion of this agreement (annexure D) reads as follows:

“And whereas the said Margre Holdings CC will be the new owner of the farm Riverside, the above parties now agree to the following:

1. N. Swartbooi Jewula and his family, consisting out of 13 members can stay on the farm as long as he wishes;

2. N. Swartbooi Jewula will, on or before 30 October 1999, reduce his stock to 80 units. The following will be counted as an unit:

A sheep or goat will be counted as ONE UNIT

A horse will be counted as TEN UNITS

A cow will be counted as SIX UNITS

N. Swartbooi Jewula may use his 80 units as he wishes.”

Hansen states that he was, at the time, under the impression that the potential maximum carrying capacity of the farm was 400 units. It appears from the affidavit of one Hardie, a farmer in the Barkly East district since 1965 and a member of the Soil Conservation Committee from 1978 until its dissolution in 1999, that, in his opinion, the carrying capacity of Riverside farm is 74 large stock units or 444 small stock units.

Despite having signed the agreement respondent failed to reduce the numbers of his livestock in accordance therewith. Because of this, further negotiations took place in consequence whereof applicant agreed, against payment of a fee of 2 sheep, to allow respondent to keep his extra livestock on Riverside farm until 1 January 2000.

On 17 March 2000 Hansen visited the farm from Denmark, only to discover that respondent was now running 178 units of livestock thereon. Respondent told Hansen that he was not prepared to make any further reductions, a standpoint which he reiterated to Hansen during a further meeting in June 2000.

Hansen thereupon addressed a letter to the Barkly East Advice Office for the specific attention of Mafilika and Ncise. This letter (annexure G) reads as follows:

“Yesterday Mr. Kobus Schoeman and I had a meeting with Mr. N.S. Jewula at Riverside farm as it had come to my attention that Mr. Jewula had not started to reduce his livestock according to the contract of 11/09/99 and my letter of 07/03/00.

At the meeting Mr. Jewula declared that he had not and would not reduce his livestock at Riverside farm neither now or later.

I ask you therefore to contact Mr. Jewula and once again explain to him the consequences if he neglects the contract as described in my letter of 07/03/00.”

I should mention that the letter of 7 March 2000 has not been included in the papers before me.

No response was received to this letter and Hansen accordingly instructed his attorney, Mr. Spence, to address a letter of demand to respondent. Spence did so on 3 November 2000 (annexure H). Respondent was, in terms thereof, afforded a period of 14 days within which to reduce his livestock to the agreed amount of 80 units. Respondent reacted to this letter through a certain Mrs. Janet Liebenberg of the Border Rural Committee (a section 21 Company, not for profit). Liebenberg requested Spence to stay any Court proceedings pending her investigation of the matter. She also inquired whether applicant would be prepared to sell a portion of the farm to respondent, a proposal which applicant rejected out of hand. On 6 June 2000 negotiations took place between Spence and, inter alia, Liebenberg which led to a further meeting on 24 June 2000 between Hansen and respondent, the latter again being represented by advisers from the Land and Housing Support Centre as well as from the East Cape Land Committee. It was agreed at that meeting that, inter alia, respondent’s livestock in excess of 80 units would be sold at market value within 4 days thereof but that should respondent experience difficulty in selling the stock Hansen would purchase it at market value. The concluding paragraph of the minutes of this meeting (annexure J) read:

“It is hoped that the agreements reached are with commitment, respect and will restore confidence on the occupier by the owner if implemented accordingly. It is also hoped that the owner will emerge from here, understanding the plight of the occupiers of South Africa with regard to tenure insecurity and the glaring differences in power relations between the owner and occupiers in farms.”

Respondent, however, failed to comply with his obligations to sell the stock. Accordingly a further meeting was held on 9 November 2000 at which were present, Hansen, respondent, Liebenberg and one Mbewu of the East Cape Land Committee. At this meeting respondent’s right to graze only 80 units of livestock was confirmed. The relevant portions of this agreement (annexure K) read as follows:

“After much discussion between the parties the following terms were agreed to:

1. Mr. Jewula would maintain the following stock levels: 2 horses, 9 cows, 6 goats or sheep, in terms of his 80 units that have been allocated to him.

2. All additional stock (1 horse, 2 cows and 7 goats) must be sold by November 16. However, 4 goats will be retained for December ceremonies and grazing fees of R40 would be paid for this. On 16 November at 3:00pm, a stock count will be held and any stock that have not been sold, should be sold to Mr. Hansen at a market related price.

3. To maintain this arrangement and to ensure that lambs and calves are sold after 6 months, a stock count will be held every 6 months i.e. on 1 May 2001 and 1 November 2001. All stock exceeding the 80 units and calves and lambs older than 6 months should be sold within 14 days. If not, they may be sold to Mr. Hansen for a market related price.”

Yet again, however, respondent failed to comply with his undertakings in terms of the agreement. At a further meeting with Hansen on 24 March 2001 he informed Hansen that he would not respect the contract of 10 September 1999 or, indeed, any of the later agreements and that he would not reduce his livestock to 80 units.

It is common cause that on 26 June 2001 respondent had 153 units of livestock on the farm, a fact which was conveyed by applicant’s attorney to Border Rural Committee which was still representing respondent. This stock was made up as follows according to annexure M:

“12 Cows at 6 units 72

8 Calves at 3 units 24

12 Goats at 1 unit 12

4 Kids at ,5 unit 2

13 Sheep at 1 unit 13

3 Horses at 10 units 30

TOTAL UNITS 153”

On 23 July 2001 yet another letter (annexure N) was addressed by applicant’s attorney to Border Rural Committee in which the following was stressed:

“1. Mr. Hansen was aware of the dispute Mr. Jewula had with the previous owner of the farm Riverside, Mr. N.J. Steyn and for that very reason an agreement was negotiated in terms whereof Mr. Jewula is allowed to keep 80 stock units on the farm.

2. Mr. Jewula has refused and/or neglected to reduce his stock to and maintain same at 80 units since the agreement was concluded on 10 September 1999.

3. We have no objection to another meeting but must stress the utmost importance of your client now complying with the agreement.”

This letter led to a meeting between applicant’s attorney and one Matilda Smith of Border Rural Committee at which meeting certain proposals were made on behalf of respondent by Smith. These proposals, according to Hansen, amounted to no more than a suggestion that the entire matter be renegotiated from the beginning. The proposals were accordingly rejected. The proposals were, however, reiterated in a letter written by Smith to applicant’s attorneys on 4 October 2001 (annexure P) in which Smith stated, inter alia, as follows:

“We requested that the following proposals be put to your client:

1. That Mr. Hansen make the property available for sale to Mr. Jewula as an “on-farm settlement” of the matter. If Mr. Hansen indicated that he was willing to investigate this solution, our department would investigate how it would be able to assist Mr. Jewula in this purchase. We would thus attempt to resolve the matter in terms of section 4 of the Extension of Security of Tenure Act, 62 of 1997.

2. That, given the current case law re farm worker agreements, that is apart from other legal requirements for valid contract, we were of the opinion that the agreement between placed before us (sic) would not be favourably regarded by the Land Claims Court. Thus to ensure that the matter can be resolved within the provisions of the law we suggested that the department of Agriculture do an assessment of the carrying capacity of Riverside farm, that we do a Land Rights Enquiry and that a proper agreement then be drawn up which will not only satisfy all the parties concerned but also comply with all the requirements of the law.”

On 13 November 2001 Hansen again met respondent at Riverside farm in the company of the police and representatives from Barkly East Advice Office. It is common cause that respondent’s livestock now amounted to 226 units made up as follows:

“25 cows - 150

8 calves - 8

8 sheep - 8

30 goats - 30

3 horses - 30

TOTAL UNITS 226”

Hansen avers further that applicant has leased the farm to a certain Kobus Schoeman at an agreed rental of R20 000 per annum in terms whereof Schoeman is entitled to graze 320 units of stock thereon. This figure was apparently arrived at bearing in mind the 80 units to which respondent was entitled in terms of annexure D and what Hansen considered the carrying capacity of the farm to be, namely 400 units. Hansen avers that because respondent was grazing 226 units of stock the rights of Schoeman, as lessee, were adversely affected and states that he is concerned that Schoeman may decide to terminate the lease agreement. Schoeman himself confirms this in an affidavit, stating that the number of livestock which he can graze on the farm is reduced in direct proportion to the number of excess livestock respondent has on the farm.

In his answering affidavit respondent avers that his tenure during the period that Steyn was the owner of Riverside was tenuous at best and that he endured in great measure, a degree of exploitation especially inasmuch as he received a meagre salary and was, from time to time, obliged by Steyn to sell off stock to Steyn at a price well below the market value thereof. He states that he signed the two agreements with Steyn (annexures C1 and C2) whilst under duress and the threat of eviction at a time when Steyn had withheld both his salary and his rations and had reported him to the police, Steyn’s complaint being that respondent had allowed his stock numbers “to increase to more than twenty sheep.”

He admits that on 20 September 1999 he affixed his thumb print to the agreement, annexure D. He states, however, that he is “an elderly illiterate and uneducated shepherd from the remote rural areas of Mount Fletcher” with no grasp of the law or understanding of the terminology and language used in the agreement. He states in this regard that he has “no idea of what a unit is or why a horse and a cow should constitute a greater number of units than a sheep or goat.” He avers further that it was his understanding, gleaned from discussions with his advisers and Hansen that the agreement would be effective for a very short period of time, the true purpose for the stock reduction being applicant’s expressed desire to rehabilitate the farm and to allow it to recover from the effects of over-grazing. According to respondent he understood the agreement to be effective for only as long as it took for this to occur. Mollified by this, so he says, but under duress and pressure placed on him by applicant, he assented to the terms of the agreement.

He states further that the terms of the agreement (annexure D) have in any event been varied by later agreements between the parties as is evidenced by annexures J and K.

He does not deal at all in his affidavit with the averments by Hansen concerning the various events and negotiations which occurred between April 2000 and November 2001 which I have detailed above other than to admit his reluctance to reduce his stock and to state that he has not yet had sight of the content of the various annexures and therefore prefers not to comment thereon. He does not, however, seek in any way to deny the allegations which were made therein.

With regard to the allegations made by Schoeman he states merely that these allegations are “bald and general.” He denies that the increased number of stock grazed by him on the farm have impacted on the “ability’ of Schoeman to graze his own livestock thereon and states that the number of units of livestock previously grazed by Steyn was far in excess of the number which Schoeman intends grazing. As to the carrying capacity of Riverside farm he states that he admits neither the expertise nor the opinion of Hardie in this regard. He does not, however, state what, in his opinion, he considers the carrying capacity of the farm to be nor does he state how many units of livestock he considers he should be entitled to graze thereon.

An affidavit by the aforementioned Mzoxolo Ncise who witnessed the signing of the agreement (Annexure D) was filed in support of respondent’s averments in that regard. According to Ncise, Hansen had informed him prior to 10 September 1999 that he intended to develop Riverside farm as a tourist destination and that he therefore wished to regenerate the flora on the farm which had been affected by overgrazing. He therefore requested that respondent reduce the number of livestock maintained by him on the farm. Ncise states that he, Mafilika and Mbewu then “brought pressure to bear” on respondent as they were conscious of the benefits occurring from foreign investment which applicant would bring to the area. He concludes by stating that:

“I can confirm from my understanding of the discussions prior to signature of the agreement that the reduction of stock was not permanent and that it would endure for the period in which veld rehabilitation took place. I am not legally trained and in the circumstances the omission of this term in the agreement did not have significance for me.”

In reply to these averments applicant filed affidavits by the aforementioned Steyn as well as by one Johanna Buys. In his affidavit Steyn confirms the averments made by Hansen in his founding affidavit. He states that at the time that the agreement (annexure C1) was entered into respondent was represented by various advisers from Tralso and the Land and Housing Support Centre. The main spokesperson for respondent was Mbewu. He denies that any duress whatsoever had been brought to bear upon respondent. With regard to the agreement (annexure C2) he said that the terms thereof were written out by himself on 2 December 1998 after respondent had approached him together with another worker who acted as an interpreter. Respondent freely and voluntarily signed the agreement. According to Steyn the agreement (annexure C2) permitted respondent to have 42 units of stock on the farm. Anything in excess of 42 units of livestock was, in his opinion, extremely generous.

In her affidavit Buys stated that she is employed as a professional assistant by applicant’s attorney. She was present at the time that the agreement (annexure D) was signed by the parties and the witnesses. She stated that she is fluent in the Xhosa language and that she explained the terms of the agreement to respondent and to his advisers Mafilika and Ncise. At no stage did she ever convey to them that the agreement was to be of application for only a limited period nor did Hansen do so. After the parties had reached consensus as to the terms and conditions of the agreement the respondent’s advisers left the office stating that they were going to telephone Mbewu of the Border Rural Committee. On their return to the office respondent agreed to sign the document.

As will be apparent from the above exposition of the averments in the various affidavits there is a dispute of fact between the parties as to whether the agreement, annexure D, was entered into voluntarily or not by respondent.

In Administrator, Transvaal, and others v Theletsane and others [1990] ZASCA 156; 1991 (2) SA 192 the following was stated at 197 A – D:

“[I]n motion proceedings, as a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities, unless the Court is satisfied that there is no real and genuine dispute on the facts in question, or that the one party’s allegations are so far-fetched or clearly untenable as to warrant their rejection merely on the papers, or that viva voce evidence would not disturb the balance of probabilities appearing from the affidavits. This rule, which is trite, applies to instances of disputes of fact (see eg Sewmungal and Another N.N.O v Regent Cinema 1977 1) SA 814 (N) at 818 G – 821 G and the authorities discussed there) and also in cases where an applicant seeks to obtain final relief on the basis of the undisputed facts together with the facts contained in the respondent’s affidavits (see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 E – 635 C and the authorities cited there).”

For the reasons which follow I am of the view not only that there is no real and genuine dispute on the issue on the voluntariness of the agreement, annexure D, but also that respondent’s averments which give rise to the alleged dispute are clearly untenable. I am satisfied too that viva voce evidence would not disturb the probabilities appearing from the affidavits.

I am of the view that in the circumstances of this case where it is common cause that the negotiations between Hansen and respondent were entered into entirely independently of Steyn and without reference to the provisions of the agreements, annexures C1 and C2, those agreements are of no relevance to the determination of this issue. I should mention, however, that the agreement, annexure C2, is, in my view, very far from being the negotiated settlement referred to in the agreement, annexure C1. In terms of C1 the “D.L.A, Labour Dept and the farmer’s legal representative” would be invited to the further negotiations. No such representatives were present on 2 December 1998 when the agreement, annexure C2, was entered into. Furthermore, the references in annexure C2 to the withholding of salary and rations are startling to say the least. The “agreement” constitutes, in my view, a striking illustration of the historically entrenched power imbalances which the Tenure Act seeks to redress. It does not, however, in my view, affect the validity of annexure D in any way. Applicant does not seek to rely upon it in order to justify the number of units of livestock referred to in annexure D. Nor does respondent, in seeking to impugn the validity of annexure D, rely upon its invalidity other than as an illustration of the exploitation visited upon him in the past. He does not aver that the figure of 80 units of livestock referred to in annexure D was in any way influenced by the terms of annexure C2. He also does not allege that, prior to agreement being reached per annexure D he had acquired any right to graze a number of livestock in excess of 80 units on the farm. It is clear, in my view, that when Hansen and respondent commenced negotiations they did so with a clean slate.

It appears from the averments made by Hansen, which are not disputed by respondent, that the negotiations which were entered into between himself and respondent, were very extensive and that the latter was at all times represented by advisers from the Barkly East Advice Office as well as from the Land and Housing Support Centre. Whilst it must be accepted, as stated by Ncise, that members of these organisations are not necessarily legally trained, it must also, in my view, be accepted that they are well versed in land matters such as the present otherwise, presumably, they would not hold themselves out as advisers to persons such as respondent. I am therefore satisfied that the playing fields had been leveled insofar as the existence of any previous power imbalances is concerned. The averment contained in a letter (annexure O) addressed by applicant’s attorney to one of respondent’s advisers, a certain Majeke, who was apparently employed by the Department of Land Affairs, to the effect that all those who advised respondent prior to the signing of annexure D were agreed that the offer to respondent was “extra-ordinarily good” has not been denied. Furthermore, the agreement, annexure D, thereafter came under the scrutiny of yet other advisers from, inter alia, such well respected non-governmental organisations as the East Cape Land Committee and the Border Rural Committee. (See annexures J and K). As is apparent from the minutes contained in annexures J and K it was agreed by all concerned not only that the agreement, annexure D, had to be adhered to by respondent, but also that he would dispose of his excess stock within four days of each meeting. What is immediately striking is that at no stage during the numerous negotiations subsequent to the signing of annexure D did respondent inform his advisers of the fact that he had allegedly signed the agreement under duress, or pressure, or in consequence of any undue influence having been brought to bear upon him by Hansen or any other person, or that his understanding of the agreement was that it would be of a limited duration only.

Even when he eventually received the assistance of Matilda Smith, who, as is evidenced by the extract of her letter (annexure P) cited above, was of the view that the agreement would not be favourably regarded by the Land Claims Court, he failed to inform her of these facts. It was only when he attested to his affidavit nearly three years after having signed the agreement, that he raised these averments for the first time. If these averments are correct then, it is in my view, utterly improbable that he would not have raised these matters with his advisers at the time that the meetings referred to in annexures J and K took place. Furthermore, his assertion of duress and pressure is stated in the baldest of terms and is not sufficient to raise a genuine dispute of fact. He states:

“Under the duress and pressure placed on me by the applicant to reduce stock and to sign the agreement but mollified by the assertion that the agreement was of a limited duration I assented to the terms thereof.”

There is, in his affidavit, no hint as to when or how such duress and pressure was brought to bear upon him nor as to how or why it should have induced him to enter into the contract. He does not state that Ncise or Mafilika pressurised him, although this appears to be the import of Ncise’s affidavit where the latter states:

“In bringing pressure to bear on the respondent myself, Mafilika and Mbewu considered the benefits accruing from foreign investment which Hansen and the applicant would bring to the area.”

In any event, even were it to be accepted that Ncise in some way unduly influenced or pressurised respondent this fact is of no assistance to respondent. As stated by Christie; Law of Contract 4^th Ed, at page 361, undue influence brought to bear by a third party does not give the party influenced a right to rescind unless the other party was aware at the time the contract was made that undue influence had been exercised. No such averment is made by respondent.

In my view also, respondent’s averments concerning his lack of understanding of the terms of the agreement do not bear scrutiny. With reference to his lack of education and sophistication he states that he had no understanding of the terminology or language used therein. Suffice to say that the agreement is couched in the most simple and clear terms which bear repeating here:

“N. Swartbooi Jewula will, on or before 30 October 1999, reduces (sic) his stock to 80 units. The following will be counted as a unit:

A sheep or goat will be counted as ONE unit

A one horse will be counted as TEN units

One cow will be counted as SIX units.

N. Swartbooi Jewula may use his 80 units as he wishes.”

It is difficult to appreciate what there is about the wording of this agreement that respondent did or could not understand, especially bearing in mind that he was at all times assisted by advisers and that the agreement was translated to him.

Respondent avers further that he has “no idea of what a unit is.” This averment overlooks the fact that the agreement spells out clearly precisely what constituted a unit.

Respondent states that he has no idea why “a horse or cow should constitute a greater number of units than a sheep or goat.” This assertion, emanating as it does from a man who has been a life-long shepherd, can only be described as disingenuous.

Having stated that he did not understand the agreement respondent then states, in virtually the same breath, that his understanding was that the requisite stock reduction had to be undertaken for a limited period only in order to allow the farm to rehabilitate itself. It is apparent from this averment that he must have understood the terms of the agreement. That he did fully understand the terms thereof is also apparent from the fact that he agreed to pay 2 sheep as a “fee” for not having reduced his stock in accordance therewith. Furthermore, Ncise’s vague and improbable averments concerning his understanding of the discussions are categorically denied by Buys.

In my view, the averments by respondent of duress and undue pressure are clearly untenable and the probabilities are overwhelmingly to the effect that he well understood the terms and import of the agreement, annexure D, and that he entered into such agreement voluntarily and without any duress or undue influence having been brought to bear upon him. Thereafter he has acted with a cavalier disregard for the constitutional rights of applicant.

In all the circumstances I am satisfied that the relief sought by applicant in terms of paragraph 1.1 of the Notice of Motion does not constitute an eviction within the meaning of that term in the Tenure Act and that this Court accordingly has the requisite jurisdiction to grant such order.

Mr. Kincaid submitted finally that an order for specific performance would occasion unreasonable hardship to respondent. In this regard he drew to his aid the well known case of Haynes v King William’s Town Municipality 1951 (2) SA 371 (A) where, at 378 H – 379 A, De Villiers AJA stated that a degree of specific performance would not be granted where, inter alia:

“[I]t would operate unreasonably hardly on the defendant, or where the agreement giving raise to the claims is unreasonable, or where the decree would produce injustice or would be inequitable under all the circumstances.”

The immediate problem confronting respondent in this regard is that nowhere in his answering affidavit does he specifically allege what undue hardship he would suffer should the order be granted. It must obviously be accepted that the income derived by him from 80 units of livestock would be less than that derived from an amount in excess thereof but this does not constitute an unreasonable hardship in the circumstances of this case. Respondent has, in my view, failed to raise any grounds justifying the exercise of the Court’s discretion to refuse to grant the order sought. On the contrary, it is abundantly clear that his present use of the land constitutes a massive intrusion upon applicant’s common-law property rights. Accepting Hardie’s evidence as to the carrying capacity of the farm (in respect of which respondent offered only a bare denial) it is apparent that the number of respondent’s livestock at present grazing on the farm amounts to approximately half such capacity. This obviously impacts extremely negatively on the ability of applicant to comply with its contractual obligations vis-à-vis Schoeman. In my view, therefore, applicant is entitled to the relief sought in paragraph 1.1 of the Notice of Motion.

I turn to consider the question of costs.

The application was served upon respondent on 15 May 2002. For various reasons, which it is not necessary to detail here, but which relate in the main to difficulties experienced by respondent’s attorneys in arranging a consultation with counsel (not Mr. Kincaid) and respondent at a time suitable for all, a consultation with respondent was eventually only held on 9 July 2002, the matter at that time having already being set down for hearing on 8 August 2002. For some reason which is entirely unexplained by respondent his answering affidavits were thereafter only delivered to applicant’s attorneys on 7 August 2002 and handed into Court on 8 August 2002, the day of the hearing. This necessitated the postponement of the matter to 22 August 2002. Mr. Kincaid did not seriously contend in these circumstances that respondent was not liable for the wasted costs occasioned by that postponement.

He submitted, however, with regard to the remaining costs, that inasmuch as this matter involved the application of social legislation and inasmuch as applicant has abandoned the relief sought by it in paragraph 1.2 it would be equitable to order each party to pay their own costs.

In my view, in the light of the abandonment by applicant of the relief originally sought by it in paragraph 1.2 of the Notice of Motion, respondent is entitled to such costs as were occasioned by his opposition to such relief. There is, however, in my view no good reason in the particular circumstances of this case why applicant should be deprived of its remaining costs especially where I have specifically found that the social legislation referred to does not apply to the matter. Furthermore, respondent’s cavalier approach to applicant’s rights and his refusal to comply with the various agreements to which he was party, do not justify an order that each party pay their own costs.

The following order will therefore issue:

1. The respondent is hereby ordered to decrease his livestock, presently kept by him on applicant’s farm Riverside, Barkly East, to 80 units, in accordance with the written agreement (annexure D) entered into between the parties on 10 September 1999.

2. Such decrease is to be effected by respondent within 30 days of the date of this order.

2.1 The applicant is ordered to pay such of respondent’s costs as were occasioned by respondent’s opposition to the relief sought in paragraph 1.2 of the Notice of Motion.

2.2 Respondent is ordered to pay the remaining costs of the application including the wasted costs occasioned by the postponement of the application on 8 August 2002.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

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