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Salimba v Ngcobo and Others (340/96) [1997] ZAKZHC 1 (4 November 1997)

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REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION


CASE NO: 340/96


In the matter between:

SALIMBA Plaintiff


and


ZWELAKE NGCOBO 1" Defendant


BUKXWE NGCONGO 2nd Defendant


JOSEPHINA ZUNGU 3rd Defendant


NOMZINTO MTHEMBU 4lh Defendant






JUDGMENT




Hurt J




The plaintiff is a close corporation of which the sole member is a Mr C Stone. Mr Stone carries en a farming operation through the plaintiff on a farm which is known as "Rose Cottage" and which consists of two immovable; properties, the remninder of sub 533 and sub 535 of 533 of die farm Dunbar Estate. Ross Cottage is situated in the Byrne area and is bounded on its southern side by the main rone between Byrne and Richmond, which road can easily be identified in the aerial photograph, exhibit B, handed in during die trial of this action.



In January 1996 the plaintiff instituted aoticn against four defendant:.. Mr. Ngcobo (first defendant), Ms B Ngcobo (second defendant), Ms J Zur.si. (third defendant) and Ms N. Mthembu (fourth defendant), their ejectment from Rose Cottage on tlie simple ground that die plaintiff is the owner of the properly and that die defendants and members of their families are hi unlawful occupation. The defendants each served a notice of intention to defend and an application for summary judgment was successfully opposed by them. Their defence to die action was firstly that they are "labour tenants" as defined in the Land Reform Labour Tenants) Act, Act No. 3 of 1996 and, accordingly, that they can only be elected hi terms of section 5 read with section 7 of dint Statute (to which I shall hereinafter refer as "the Act"). Secondly, and in the alternative, the defendants pleaded that they had acquired a right of occupation in the form of a servitude of habitatio or usus. This alternative defence was abandoned da.nine die trial. At the centre of the dispute between the plaintiff and the defendant.; is the interpretation of the term "labour tenant" which, is deiJned in section 1 of the Act as follows : -


“Labour Tenant.' means a person

(a) who is residing or has the right to reside on a farm;

(b) who has or has had the right to use cropping or grazing land on the farm referred to in paragraph (a), or another farm of the owner, and in consideration of such right provides or lias provided labour to the owner or lessee; and

(c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm,


including a person who has been appointed as a successor to a labour tenani in accordance with the provisions of section 3(4) and (5), but excluding a farmworker"




A "farmworker" is defined as follows: -

" 'farmworker' means a person who is employed on a farm in terms of a contract of employment which provides that -

(a) in return for the labour which he or she provides to "he owner or lessee of the farm, he or she snail be paid predominantly in cash or in some other of remuneration, and not predominantly in the r.uin tc uorupy and use

and

(b) he or she is obliged to perform his or her services personally;"

Mr de Wet (who appeared for the defendants) contended, firstly, that the defendants do not have to prove that they were not "farmworkers" in order to bring themselves within the definition. He submitted that it was incumbent on the plaintiff to prove that the defendants are (or were) "farmworkers" if the plaintiff sought to exclude them from the defined class to which the Act refers. Developing tliis argument, Mr de Wet submitted that the use of the present tense in the definition of "farmworker" was significant. Whereas the question of whether a person complies with the requirements of the definition of a "labour tenant" is answered with reference to the history of his residence on a property, the question of whether he is a "farm worker" must be investigated with regard to his status as at the time when the matter comes before the court. Accordingly, he submitted, the Act itself gives a clear indication that the exclusion forms a separate part of the definition and the party seeking to invoke it bears the onus of placing the requisite degree of proof before the court. In my view neither of these submissions is supportable. It is apparent from a reading of the Act as a whole, that it has not been drafted with meticulous attention to the grammar which has been used. I do not think that, for the purpose of deciding where the burden of proof lies, it is correct to attribute significance to the omission, in the definition of "farm worker", of the past tense and the inclusion of that tense in portions of the definition of "labour tenant" The intention of the legislator was plainly to narrow the class of "labour tenant" down to those people who had been required to render services as the quid pro quo for the right to live, plant crops and allow their cattle to graze on the owner's property. It says, in effect, that a person who is not "paid" by permitting him rights of occupation and use, is not a labour tenant, It also says, in effect, that a person cannot qualify as both a farmworker and a labour tenant at the same time. The definition limits the class of beneficiaries under the Act by excluding "farmworkers" In order to satisfy the court that he or she is a "labour tenant", therefore, the person concerned must show that his situation falls within the limits set by the definition and it follows that a person claiming to be a "labour tenant" must prove that he is not (or was not at the material time) a "farmworker".



Mr. de Wet's second main contention was that, on a proper interpretation of the definition, a person qualifies as a 'labour tenant" if he satisfies requirement (a) and cither requirement (b) or requirement (c). These contentions about the interpretation of the definition and, more particularly, the question of whether only two of the tlircc defined requirements need be fulfilled for a person to qualify' as n "labour tenant" require more detailed investigation.




Before dealing with the interpretation of the definition, however, if is necessary to make some comments on the structure arid scope of the Act. Its basic objects and its preamble are self-explanatory and read as follow;



To provide for security of tenure of labour tenants and those persons occupying or using land as a result of their association with labour tenants; to provide for the acquisition of land and rights in land by labour tenants; and to provide for matters connected therewith.


WHEREAS the present institution of labour tenancy in South Africa is the result of racially discriminatory laws and practices which have led to the systematic breach of human rights and denial of access to land;


WHEREAS it is desirable to ensure the adequate protection of labour tenants, who are persons who were disadvantaged by unfair discrimination, in order to promote their full and equal enjoyment of human rights and freedoms;


WHEREAS it is desirable to institute measures to assist labour tenants to obtain security of tenure and ownership of land;


AND WHEREAS it is desirable to ensure that labour tenants are not further prejudiced;"



Chapter I contains the definitions and a provision subjugating the rights conferred or created by the Act to rights of expropriation and mineral rights accruing to any person other than the owner of the property. Chapter II is concerned with the labour tenants' rights to occupy and use land and their obligation to provide labour as a reciprocation. It also contains some far-reaching provisions limiting the owner's right to evict a labour tenant and stipulating the basis on wlu'ch an eviction order can be granted. This chapter ousts the jurisdiction of the High Court entirely (section 5), save in respect of proceedings already pending on the date on which the Act took effect, and invests the Land Claims Court (LCC) with "exclusive" appellate jurisdiction in respect of the decision of any court in such pending proceedings (section 13). Save for the ouster of jurisdiction, which is relevant to this action, an appraisal of the scope and effect of these provisions falls outside the ambit of this judgment; Chapter III deals with the labour tenant's right to acquire ownership of land, subject to appropriate compensation to the owner, and the procedures by which disputes in regard to such acquisition arc to be resolved either by the LCC or by arbitration. Chapter IV defines the jurisdictional powers of the LCC and the arbitrators which it appoints. In terms of section 29, the LCC is vested with jurisdiction 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 to grant interlocutory orders and interdicts, and shall have all such powers in relation to matters falling within its jurisdiction as arc possessed by a provincial division of the Supreme Court having jurisdiction in civil proceedings at the place where the affected land is situated, including the powers of such a division in relation to any contempt of the Coun."


Chapter V contains certain miscellaneous provisions none of which arc directly relevant to the matters with which this judgment is concerned.

The important feature of the Act insofar as the disputes in this action are concerned, is that it affects and regulates the rights of "labour tenants" (who may fairly be called the "beneficiaries" of its provisions) on the one hand and owners of the property to which the "labour tenants" lay claim (whether in the form of rights of use and occupation or as aspirant owners) on the other.



The defendants have pleaded that they are "labour tenants" as defined and, further, that they were labour tenants on 2nd June 1995 and that they accordingly have a right of occupation. It will be noted that section 3(1) of the Act vests rights of occupation and use of property in "a person who was a labour tenant on 2nJ June 1995". There was some debate, during argument by counsel, as to whether it was necessary for this Court to examine the defendants' status in this regard as at 2nd June 1995. In my view it is not. As I understand the Act, the intention was to vest the LCC with jurisdiction to rule on the existence and scope of labour tenants* rights to occupy, use and/or acquire the land on which they reside. What is being sought in this action is the eviction of the defendants and those claiming to occupy portions of Rose Cottage through the defendants. Section 5 of the Act states that:

“subject to the provisions of section 13, a labour tenant or his or her associate, may only be evicted in terms of an order of the court issued under this act "


"The Court" is defined in section 1 as the LCC. The clear effect of section 5 is that if a person is a "labour tenant" this Court has no jurisdiction to eject him from the properly in respect of which he claims his tenancy. The question of whether he was a labour tenant as at 2nd June 1995 and whether he has a right of occupation under the Act is a question which the LCC must resolve. The issue before this Court, then, does not revolve around whether the defendants have rights of occupation of the relevant portions of the plaintiff's property (as it usually does in ejectment actions) but whether this Court can grant the plaintiff the relief which it seeks. If the defendants are not labour tenants then it can (there being no other ground upon which the defendants claim a right to occupy): if the defendants are labour tenants, then it cannot, The issue is as simple as that.



As to the stage at which a person must be a "labour tenant" if this Court is to be divested of jurisdiction to order his ejectment, it seems to me to be significant that the definition is formulated with reference to both the present and the past. It is fundamental to an action for ejectment of this type that the person sought to be ejected from a property must be in occupation of it. In most cases involving labour tenants, the occupation will be constituted by the residence requirement stipulated in paragraph (a) of the definition. The fact that the labour tenancy arrangement may have been terminated by the owner prior to the action for ejectment will not necessarily preclude the defendant from contending that the LCC is the court with jurisdiction, because requirement (b) of the definition contemplates a person "has or itas had" rights of use and occupation and who "provides or has provided" labour in consideration for such rights. In my view, the exercise of ascertaining whether the defendants qualify as "labour tenants" is performed with reference to both their current situation and their history of dealing with the owner and his predecessors in title. With that approach in mind, I turn now to a consideration of the proper interpretation of the definition of a "labour tenant".



The LCC has dealt with the definition in two reported cases. They are Mahlangu v Dc Jager 1996(3) SA 235 and Zulu and Others v Van Rensburg and Others 1996(4) SA 1236 . In the Mahlangu case the court rejected a contention that the definition of "labour tenant" was to be construed disjunctively and held that, to qualify as a "labour tenant", a person must satisfy paragraphs (a), (b) and (c) of the definition. It also held that the onus was on the aspirant "labour tenants" to prove that they were not "farmworkers".



The correctness of these findings was not challenged in the Zulu case. In the latter case, the LCC held that requirement (c) of the definition is fulfilled if the "parent or grandparent" was a labour tenant (in the sense in wluch mat expression was usee before the Act came into being) on any farm and that it was not necessary for that farm to be, or have been, in common ownership with the farm referred to in paragraphs (a) and (b). The basis upon which this decision was reached was that, in the past and prior to the commencement of the Act, many labour tenants had perforce led a nomadic existence because they could be evicted from the farm on which they were staying "at the whim of the owner". There would thus in many instances be a situation where, because of a series of evictions, a parent or grandparent in a family which had been labour tenants for generations had not occupied property owned by "the owner" in question. The court took the view that since'the object of the Act was to redress the plight of labour tenants it would be anomalous to restrict the field covered by paragraph (c) of the definition by giving the words "a farm" a narrow interpretation. At page 1257 to 1258, Dodson J said




" One of the objects of the Act is to provide labour tenants with certain protections against eviction. In the past the common law left labour tenants exposed to eviction at the whim of the owner of the land subject only to compliance with the common-law requirement of reasonable notice. Such a basis for eviction is now excluded by the Act if a person can show that he or she qualifies as a labour tenant under the legislation. IT we are to adopt Mr. Roberts' interpretation, (sc. requiring an ownership link between the farm referred to in paragraph (b) of the definition), a person whose predecessors had over the generations consistently been labour tenants (as that term was understood before the statutory definition was enacted), but had been forced by evictions to move from farm to farm, would be excluded, whilst a person whose father and who himself or herself had been fortunate enough to avoid eviction would qualify. What then in effect becomes a disqualifying criterion is the fact of past evictions, the very problem which the Act sought to deal with. A statute is presumed not to give rise to a harsh or discriminatory result. Such a result is avoided if the interpretation contended for by Mr Loots (sc. that "a farm" means "any farm whatsoever") is adopted. It is dear that the Legislature intended to protect a particular class of persons whose way of life had been based, over the generations, on labour tenancy, without confining it to (hat part of the class who had not been subject to eviction."



Although the judgments in the Mahlangu and Zulu cases were given by two LCC judges, they are not, as far as I am aware, bmding on this court. Those charged with the duty of drafting the Act apparently overlooked the possibility that there might be conflicring decisions in the High Court and in the LCC as to the interpretation of the Act and, more particularly, as to the interpretation of the term "labour tenant" which is the very pivot about which the Act turns and upon which the jurisdiction of the LCC is founded. As it happens and as I shall demonstrate shortly, such a conflict in interpretation has arisen. It could have the remarkable consequence that, until the conflict is resolved by the Supreme Court of Appeal, an owner of property seeking to eject people from it might find himself non-suited in the High Court (because that court takes the view that the occupiers are "labour tenants" as defined) and also in the LCC (because that court applies a narrower interpretation to the definition). The immediate question for decision is whether the decisions of this court wliich opt for the broader interpretation of the definition arc correct. If 1 am unable to say that they are incorrect, they must, of course, be treated as binding upon me.


There have been two judgments (as far as I am aware) in tin's division in which the interpretation of the definition has been dealt with. The first is an unreported judgment by Galgut J in the case of Klopper and Others v hfldiize and Others (Case No. 2169/96) which was delivered on 3 March 1997. In that case the applicants sought the ejectment of the respondents who had been residing on the applicants' farms and working for the applicants but who had, for some months before the application was launched, refused to render services and to vacate the premises in which they were living. In their answering affidavits, the respondents claimed that they were "labour tenants" and that the application for their ejectment did not comply with the requirements of the Act. There was a sharp dispute of fact on the affidavits but the applicants nevertheless contended that they were entitled to the relief sought, without the dispute of fact being referred to oral evidence, because on the respondents' own case, they did not satisfy the requirements in paragraphs (a), (b) and (c) of the definition. Dealing with this submission, Galgut J said (at page six of the unreported judgment): -

" It seems to me that in MAHLANGU's case no more was said, however, than that what must be read conjunctively are paragraphs (a) and (b). It is true that in ZULU'S case it was said that all three paragraphs must be read conjunctively, but this may well have been the result of a misunderstanding by the court of what had been said in MAHLANGU's case. 1 am in any event unable, with respect, to iisjrce with the interpretation given in ZULU'S case. The definition is in more than one respect obscurely worded, but in my view it would in substantial measure stultify the object of the Act if paragraph 9(c) were required to be read conjunctively with both paragraphs

(a) and (b). It may well have been intended that paragraphs (a) and (b) must be read conjunctively, but it seems to me that the further intention was that paragraph (c) must either be read on its own or conjunctively with paragraph (a) only. I, in any event, see no warrant for reading all three paragraphs conjunctively."



The approach adopted by Galgut J in the Klopper case was followed by Meskin J , in a judgment delivered on 15 July 1997 (also unreported) in the case of Tselentis Mining (Pty) Limited and Another v Mdlalose and Others. Meskin J dealt in somewhat more detail than had Galgut J with the judgments in Mahlangu and Zulu and he came to the conclusion that, on a proper approach to the interpretation of the definition, read in its context of the Act as a whole, what was required to constitute a person a "labour tenant" was compliance with the requirement in paragraph (a) and either that in (b) qt that in (c).



Having given anxious consideration to the judgments in the Klopper and Tselentis cases, I regret to say that I cannot reconcile my views as to the proper interpretation of the definition of "labour tenant", with those reflected in the judgments in those cases. I may say that, as I read the judgment by Galgut J in trie Klopper, case his views on the interpretation of the definition were expressed en passant, as it were, and he apparently did not think it necessary to rationalise his views because or the interlocutory form of order which he considered should be made in that case.


The basis upon which Meskin J came to his conclusion in the Tselentis case (as I understand the judgment) was, firstly, that he was following the approach indicated in Klopper case and, secondly, that to require a person to satisfy all tliree of the elements in (a), (b) and (c) of the definition would give rise to absurd, anomalous or inequitable results in certain instances. I find myself respectfully unable to agree with these conclusions for the reasons which follow.



The literal meaning of a stipulation that a person must comply with requirements "A, B and C" is, plainly and simply, that the person is to comply with all three of those requirements. It is true that in certain cases our courts have decided that the word "and" is to be interpreted as "or". But before deciding to do so, a court must be satisfied that the ordinary literal meaning does not "carry out the true intention of the legislature". (See Venter v Rex 1907 TS 910 at page 914.) In what 1 think is the leading case in our courts for the so-called disjunctive interpretation of the word "and", Inncs CJ stressed that "much depends on the context and the subject matter." {Barlm v Licensing Court for the Cape 1924 AD 472 at page 47S.)



In Barlin's case the absurdity of confining the word "and11 to a conjunctive interpretation was manifest and affected all of the hypothetical cases to which Innes CJ made reference. Moreover by giving the word a disjunctive interpretation in its context in the statute there under consideration, absurd results were totally avoided. However, treating the word "and" as "or" where it acts as a conjunction between requirement (b) and requirement (c) in the definition of "labour tenant" does not achieve the same happy result.. The literal meaning of a stipulation that one must fulfil requirements "A, B or C" is that only one of the requirements need be met. In the context of the definition, this would mean that a person who "is residing or has the right to reside on a farm" (other than a "farmworker" as defined) would qualify as a "labour tenant". Meskin J agreed with the (obviously correct) view which had already been expressed in the Mahlangu case that such an interpretation could not possibly conform with the intention of the legislator. (See page 242 of the Mahlangu case.) Meskin J, however, found himself unable to agree with the approach adopted by the LCC and, by reference to sections 3 and A of the Acr, the learned Judge came to the conclusion that a person who satisfies elements (a) and (b) or elements (a) and (c) of the definition qualifies as a "labour tenant". (This analysis is developed, and the conclusion reached, at pages 8 to 12 of the unreported judgment.) It follows that the interpretation arrived at by Meskin J requires not only that the word "and" appear at the end of paragraph (a) of the definition but that the word "or" be substituted for "and" at the end of paragraph (b). Now the basis for regarding the definition in this implicitly amended form was the; apparent absurdity of certain hypothetical situations mooted by the learned judge as being a consequence of giving the definition its literal meaning. Such a rcductio in absurdum is, of course, often a useful tool in deciding whether a literal interpretation must be modified or rejected. It is based on the fundamental presumption that the legislator does not intend an absurd or inequitable result. But it can be something of an "unruly horse" and it must be rejected as an aid to interpretation if the modified version itself leads to absurdity. (See Cohen v Rapidol Ltd 1934 AD 137 at page 141 and Principal Immigration Officer v Hawabu and Another 1936 AD 26 at page 35.)



Meskin J apparently did not consider the interpretation for which he opted for the purpose of ascertaining whether it resulted in any anomaly or inequity. In my view, this exercise establishes conclusively that the rcductio in absurdum is an inappropriate tool to employ in construing the definition. The interpretation arrived at in the Tseientis case postulates that a person who satisfies requirements (a) and (c) will fall within the definition of a "labour tenant". The result would be that any person, other than a farm worker, as defined, who has the right to reside on a farm and whose grandparent satisfied the requirements in paragraph (c) would fall within the ambit of the definition. For reasons which I will state later, I consider that the words "a farm" in paragraph (c) must be given a restrictive interpretation, but even if this is not done the consequences of an interpretation which requires only elments (a) and (c) to be met for a person to qualify as a "labour tenant" provide a broad spectrum of absurdity. It would result in people who do not fall within what the preamble to the Act refers to as "the present institution of labour tenancy in South Africa" being given the statutory protection and benefits conferred by the Act upon, "labour tenants". In deciding whether such a result is absurd, one does not look only at the position of the "labour tenant" but also at the position of the "owner" who is, obviously, the "other party" affected by the provisions of the Act. The Act stated the legislator's general intention fairly clearly in the preamble. I do not think that it can, by the furthest stretch of imagination, be said that the Act was intended to benefit a class of people who do not fall within the ambit of element (b) of the definition but whose grandparents were "labour tenants" within the meaning of that term as used before the advent of the Act. It follows that I am of the view that the so-called disjunctive interpretation is not in accordance with the intention of the legislator and I consider that a person cannot be treated as a "labour tenant" unless he satisfies all three elements of the definition and is not a "farmworker" as defined.



Since coming to this conclusion, I have had my attention drawn to a recent judgment of three judges in the Land Claims Court in the case of' Ngcobo and Another v van Rensburg and Others (case no. 18/97). The conclusion of the Land Claims Court is also that all three elements of the definition must be satisfied and I agree with the reasons for this conclusion as set out in the judgment.



That brings me to the third aspect of interpretation with which I must deal before turning to the merits of the case. It relates to the scope and meaning of the words "a farm" in paragraph (c) of the definition. Mr. dc Wet has contended that ttue words are equivalent to "any farm'*. This would mean that a person would qualify as a "labour tenant" if he satisfies (a) and (b) and. if he has a parent or a grandparent who wasa "labour tenant" under the "old system". He would qualify for protection under the Act and for the rights conferred in chapter three regardless of where the farm on which his parent or grandparent lived and worked was situated. In support of this contention he has referred me to the LCC decision in the Zulu case which I have summarised earlier in this judgment.




i

There is a significant change in language between paragraph (b) and paragraph (&) of the definition of "labour tenant". When paragraph (b) speaks of the farm in which the "labour tenant" has rights of use, it speaks of "the farm, referred to in paragraph (a)Paragraph (c) contains no such explicit reference to the farm contemplated in paragraph (a). A significant change of language such as this does, of course, give a clear indication that the legislator did not intend that the farm on which the parent or grandparent resided or resides should be the farm referred to in paragraph (a) of the definition and there are clear reasons why tin's should n't be so, ini many instances in the old labour tenant system, when a farmer sold a fam and moved to a new one, the labour tenants on that fann moved with hiflt. Moreover, until the advent of statutory limitations on the subdivision of agricultural land, there were many instances where farms were subdivided and subdivisions were sold while the labour tenants remained in occupation and continued to render services to the new owner of the subdivision on which they were dwelling. Equally, as time passed and the children of labour tenants grew to maturity, the farmer migkt have required the children to take up residence and render services on a different farm to that on winch the parents or grandparents were residing. In such situations it would, in my view, be inconsistent with the purpose of the legislator to construe paragraph (c) in such a manner as to require the parent or grandparent to reside, ox to have resided, on the same farm as that in respect of which the progeny claim rights.



On the other hand, I do not think that the intention of the legislator was to give the word "a fann" in paragraph (c) the wide meaning of "any farm, wheresoever situated and owned by whomsoever". Such a wide interpretation would mean that one of the requirements for qualification as a "labour tenant" is, simply, that the claimant must have a grandparent or a parent who was once a labour tenant under the old system. It must be borne in mind that tile Act is intended to entrench rights of occupation of property and confer rights of acquisition of property to protect people who had, for practical purposes, been bound to that property or its owner by the bonds of the feudal tenant system over an appreciable period. It is clear that in enacting the requirement in paragraph (c) of the definition (referred to in the Ngcobo case as "a second generational requirement"), the legislator was narrowing down the class of people who would qualify for benefits under the Act to those whose history of "labour tenancy" stretched back more than a generation. As I have already indicated, I think that it is fundamental to a proper construction of the definition to bear in mind that the Statute was intended to regulate the dealings as between "labour tenant" and "owner". Requirement (c) refers in general terms to "a farm" but it also refers to "the owner". It is not without significance that the Sta$ite defines "owner" with specific reference to the occurrence of that word in the definition of "labour tenant". The definition of "owner" is as follows: -

" 'Owner* means the owner as defined in section 102 of the Deeds Registries Act 1937 (Act 47 of 1937), of a farm, and where it occurs in the definition of "labour tenant, includes his or her successors and predecessors in title".


It seems to me that the existence of a historical relationship between the Ial?pur tenant's family and "the owner" (who will include all of the present owner's predecessors in title) was what was contemplated in requirement (c) and that this paragraph should properly be so interpreted. Thus, in those cases where families established themselves on a portion of a farm and tliat farm was then subdivided and sold with the result that a grandchild was in occupation of a portion of one subdivision and the grandparent in occupation of a portion of another, requirement (c) would be satisfied, because the original owner of the undivided farm would be included widiin the term "owner" as used in requirement (c). Conversely, this interpretation avoids the anomaly which would result from the wide interpretation of "a farm" without reference to the identity of the owner where, for instance, a person who has satisfied (a) and (b) for a matter of months on the farm of X. would be able to claim the benefits of the Act as against X on the ground that, many years ago, his grandparent had been a labour tenant (in the old sense) on a farm.belonging to Y.



To sum up, therefore, I consider that, to qualify as a "labour tenant" for the purposes of the Act, a person must

(a) satisfy the requirements in paragraphs (a), (b) and (c) of the definition and, in relation to requirement (c), he must show-that the farm on which his parent or grandparent resided and had usage rights in return for labour is or was a farm belonging to Hie owner of the farm referred to in requirement

(b) or to such owner's predecessors in title; and (b) show that he is not a "farmworker" as defined. On that basis I now turn to consider the merits of the defences raised.



Mr de Wet conceded in argument, that the second defendant and the fourth defendant had not brought themselves within the ambit of requirement (c) of the definition because neither of them had tendered any evidence to the effect that their parcnts or grandparents had rendered services in return for rights of occupation and use of portion of the farms on which they worked. He accordingly conceded that, if the definition requires the person to bring herself within all three paragraphs, (a), (b) and (c), the second and fourth defendants have no defence to the action.



Mr de Wet contended that he had established that the first defendant fulfilled all of the requirements of the definition. Briefly summarised, the evidence of the first defendant is as follows. He was born in 1923 on a farm which was variously referred to in the evidence as "Campbell's Farm" or "Kamby Farm". This farm is situated across the road from Rose Cottage. He lived on Kamby Farm with his parents until he got married, at which stage he set up his home in the area marked X, in the aerial photograph, Exhibit "B", i.e. on Rose Cottage. He said that the owner of Kamby Fann at the time of his birth and during his youth was a person called "Hosking" or "Hoskin" and that this person had also been the owner of Rose Cottage. Counsel agreed upon the following succession of owners of the farm Rose Cottage: -



PERIOD

NAME

prior to 1936

Anderson

1936 - 1948

Gibb (referred to by some witnesses as "Keep")

1948- 1973

Ford

1973- 1981

Van Broekhuizen

1981 - 1987

Wareing

1987 - 1989

Davidson

1989- 1994

Guage

1994 onwards

Salimba CC


As will be seen there is no reference to a person called "Hosking" or "Hoskin" in the succession of owners of Rose Cottage. Nor is there any indication in the evidence, that any of the owners of Rose Cottage owned Kamby. The first defendant has accordingly failed to prove the requirements of paragraph (c) of the definilion in that he has not proved that the owner of the farm on which his parents were, apparently, labour tenants in the old sense was, at some stage, an owner of the property which is now described as Rose Cottage

Even if I take the first defendant's evidence to the effect that Kamby Farm and Rose Cottage were under a common ownership when he was a youth at its face value, and assume that he has proved compliance with paragraph (c) of the definition, it seems to me his defence must faij. The first defendant insisted that, throughout Ins tenure of Rose Cottage, he was paid what he described as "meagre wages" by the successive owners. He said that he retired from working while Guage was the owner (and based on his estimate of the time which had elapsed since he retired, this would have been in about 1990 or 1991) and that at that stage Guage had been paying him RSO per month. This evidence was challenged in cross-examination by Mr. Koen, for the plaintiff, and it was put to the first defendant that he had been paid R200 per month plus certain rations by Mr. Wareing, This he denied. He conceded that Mr. Davidson had given him weekly rations comprising 6,25kg mielic meal, 400g of means, 500g of sugar and an unspecified amount of salt but he would not concede that he ever received more than RSO per month as wages until the time of his retirement.



The plaintiffcalled Messrs Wareing and Davidson to give evidence. Mr. Wareing's evidence was unsatisfactorily vague and unconvincing. He tendered a number oi slips of paper having various dates from September 19S1 to May 1984 which, indeed, appeared to support the first defendant's evidence to the effect that, at least in about 1983 and I9S4, he was receiving RSO per month. Mr. Warcing told the court that between 1984 and 1987 the wage rose to about R200 per month but he could produce no proof of this, saying, somewhat lamely, that this was the figure he could recall.




Mr. Davidson, however, was in my view an excellent witness. He was a trustee of the trust which owned Rose Cottage between 1987 and 1989 (I have not made specific reference to the actual trust in the table of owners which is set out above). He told the court that the indunas on the various farms owned by the trust and administered by him were all paid at approximately the same rate. His evidence was that, between September 1988 and September 1989, this rate was roughly of the order of R7 per day or about R182 per 26-day month. He confirmed that the indunas had received weekly rations comprising the items which the first defendant had conceded having received and also "two stock cubes and one toilet roll". Each employee received two weeks' paid leave per year. It was put to Mr. Davidson that the first defendant recalled being paid R80 each fortnight (which contradicted the first defendant's evidence in chief) but Mr. Davidson insisted that payment was made at a rate of about R160 per month at the time when he was administering the farm. In resolving the conflict between the- evidence given by the first defendant and that given by Mr. Davidson, it is necessary for me to say that the first defendant did not make a good impression in the witness box. I formed the opinion, as he gave his evidence, that he had rehearsed a version which fitted best with the defence which he was trying to establish and he doggedly stuck to that version even when its inconsistencies and contradictions were put to him in cross-exainination. Where there is conflict between the evidence of Mr. Davidson and the that of the first defendant, I have no hesitation in accepting Mr. Davidson's version as the correct one.



In the result, I find that, at least during the period from 1987 onwards, the first defendant was employed as an tnduna by the owner of Rose Cottage and was paid approximately R170 per month together with the weekly rations to which I have referred. The first defendant bore the onus of proving that he was not a "farmworker". In the context of this case (where it seems to be common cause that there was a contract of employment) this meant that he had to prove that he was not paid "predominantly in cash or in some other form of remuneration".



To determine whether the cash or "other form of remuneration" predominates over the value of the right to occupy and use land, evidence must obviously be placed before the court which will enable it to make a meaningful comparison. The first defendant made no attempt to place a value on the rights of occupation which he had on Rose Cottage, I may say that both Mr. Davidson and Mr. Stone denied the defendant's allegations that he had between S and 17 cattle grazing on Rose Cottage. But be that as it may, the only piece of evidence which goes even vaguely toward placing a value on the right of occupation and use was an indication (I can place it no higher than that) by Mr. Stone that grazing is currently leased at about R200 per hectare per year in the area where Rose Cottage is situated. In the result, I have no reliable basis upon which to conclude that the rights of occupation and use enjoyed by the first defendant predominated, in value, over the remuneration which he was paid by Mr. Davidson. Nor did the first defendant give any acceptable evidence to establish that, during the period while he worked for Mr. Guage, his monthly income dirninished to an extent which would have excluded him from the "farmworker" status.




In these circumstances the first defendant's defence can therefore not prevail.



The third defendant stated that she did not know her date of birth but produced an identity document which indicated that she was born in 1932. Her evidence is a mass of contradiction and it was fairly clear that she was overwhelmed and terrified at the prospect of having to give evidence. Indeed, during cross-examination she succumbed to chest pains and, in the end, was unable to complete her evidence. Although she gave certain evidence to the effect that she had been born at the site of the first defendant's present residence, she subsequently changed this to say that she was bom on Kamby Farm and that her father had lived on Kamby Farm. As is the case with the first defendant, this evidence is not sufficient to prove compliance with requirement (c) of the definition. She said that she had worked on Rose Cottage for an income of R20 per fortnight. This income, she said, was paid to her by Van Brockhuizen, who was the owner from 1973 to 1981. It appears that she and her husband were living on Rose Cottage while it was under the aegis of Van Broekhuizen and that her husband had died at some stage before 1981. She continued to work on the farm and live in the kraal which her husband had built until illness overtook her at a time when Guage had become the owner. She told the court that she worked because she "wanted some money and wanted to live on the farm". There was no quantitative evidence, other than the amount of R20 per fortnight, which she gave relating to her earnings. Apart from her failure to prove compliance with requirement (c), I am constrained to find, in her case as well, that she has not discharged the onus of proving that she was not a "farmworker".



In the circumstances I find that none of the defendants has proved that he or she is, or was at any material time, a "labour tenant". Accordingly the plaintiffs claim for their ejectment must succeed.


The parties have not addressed any argument to me on the question of costs. I am aware that the defendants are in receipt of legal aid, but I do not think that that necessarily affects the usual order, i.e. that the successful party should get lus costs. Because I have not heard specific submissions in this regard I will, however, make the costs order a provisional one.



I make the following order : -

(a) ' The defendants and all persons who claim title to occupy the immovable properties described as -

(i) Remainder of Sub 533 of the farm Dunbar Estate No. 1478 situate in the administrative district of KwaZulu/Natal in extent 168,6247 ha;

(ii) Sub 535 of 533 of the farm Dunbar Estate No. 1478 situate in the administrative district of KwaZulu/Natal in extent 1,3358 ha;
(hereinafter referred to as "the Property') are ordered to vacate the Property within one month of the date of the service of this
order upon them.

(b) In the event of the defendants or any of the other persons referred to in paragraph (a) hereof failing to vacate the Property by the date stipulated, the Sheriff of this Court is directed and authorised to eject such persons from the Property forthwith.

(c) The defendants are ordered to pay the plaintiffs costs of suit (including the costs of the applications for summary judgment) jointly and severally, the one paying, the others to be absolved, This costs order will be provisional for a period of ten days after the date of delivery of this judgment whereafter it will be a final order unless any party delivers written notice, before the expiry of the said ten day period, of intention to make submissions on the question of costs. In the event of such notice being delivered, the question of costs will stand adjourned to a date to be arranged with the Registrar.


DATE OF HEARING: 25th June 1997

DATE OF JUDGMENT: 4th November 1997



FOR THE PLAINTIFF: Mr P A Koen

INSTRUCTED BY: J Leslie Smith and Company

FOR THE DEFENDANTS MrAde Wet

INSTRUCTED BY: Loots Attorneys