Combrinck v Nhlapo

• Jurisdiction: South Africa
• Judge: Gildenhuys AJ
• Judgment Date: 15 March 2002
• Citation: 2002 (5) SA 611 (LCC)
• Docket Number: LCC 115/99
• Hearing Date: 04 March 2002
• Counsel: A P Brandmüller (attorney) for the applicant. Defendant in person.
• Court: Land Claims Court

Gildenhuys AJ: A

History of the proceedings

[1] The plaintiff in this matter is the owner of the farm Twyfelaar, in the district of Carolina, Mpumalanga. The defendant lives on the farm, so does his father. The plaintiff issued summons in the magistrate's court of Carolina for the defendant's eviction. B He alleged in his particulars of claim that the defendant is an occupier as defined in the Extension of Security of Tenure Act [1] (herein referred to as 'ESTA'). The plaintiff applied for summary judgment. In his opposing affidavit, the defendant alleged:

'I submit that I am protected by the provisions of the Land Reform (Labour Tenants) Act 3 of 1996 as I am a member/associate of my C father who qualifies to be a labour tenant or alternatively I am protected by the Provisions of the Extension of Security of Tenure Act 62 of 1997 as I was on the land long before 4 February 1997 and continued to reside there to today.'

The defendant, in his plea, denied the allegation that he is an occupier (as defined), and pleaded 'that he is a labour tenant in terms of the Provisions of the Land Reform (Labour Tenants) Act 3 of D 1996'. [2] There was no alternative plea that he is an 'occupier' as defined in ESTA, and entitled to protection under ESTA. The magistrate's court has no jurisdiction to adjudicate on the plea that the defendant is a labour tenant. [3] As required by s 13(1A) of the Land Reform (Labour Tenants) Act, the magistrate transferred the case to E this Court.

[2] Originally the defendant was represented by a firm of attorneys. They withdrew before the hearing. The case was heard in this Court before my Colleague, Moloto AJ, on 4 and 24 April 2001. The plaintiff was represented by Mr Brandmüller. The defendant appeared in person. He gave evidence, and also called his father as a F witness. The proceedings, including the opening address and the argument at the end, were electronically recorded and transcribed.

[3] In his opening address on 4 April 2001 Mr Brandmüller said: G

'In my preparation for the trial I have also come to the conclusion that the defendant and his attorneys at the time were right, and . . . (t)hat he [the defendant] is in fact not an occupier, and that the dispute in this matter, which should be before this Court, is whether he is a labour tenant or not, and that I will concede that para 3 of the particulars of claim is in fact incorrect, and insofar as it may be necessary I would apply in terms of Rule 22(7) of the Rules of this Court, for an amendment to that H effect.' [4]

There is no indication in the papers before me that the amendment was ever applied for, nor that para 3 of the particulars of claim was ever I

Gildenhuys AJ

amended. Immediately before the commencement of evidence, the A following exchange occurred between Moloto AJ and Mr Brandmüller:

'Court: Okay. Then maybe you may proceed then Mr Brandmüller?

Mr Brandmüller: On the basis that the only point in dispute is that he is a . . . (intervenes)

Court: Whether he is a labour tenant or not?

Mr Brandmüller: Labour tenant.' [5] B

It is apparent from the record that Mr Brandmüller proceeded with the case on the basis that the only issue in dispute was whether the defendant is a labour tenant, or an associate of a labour tenant.

[4] At the conclusion of the hearing on 24 April 2001 Moloto AJ reserved judgment. He handed down a written judgment on C 29 May 2001. [6] He found that the defendant is not a labour tenant, or an associate of a labour tenant. He then proceeded with his judgment as follows:

'I now need to determine whether the defendant is an occupier in terms of ESTA, and if so, whether he stands to be evicted. The plaintiff alleges in his particulars of claim that the defendant is D an occupier. . . .

I do not know how much the defendant earns[[7] ] so I am unable to make any order in terms of ESTA at this stage. I do, however, need to make some comments on the application of ESTA to the facts of this case. Before an occupier may be evicted the land owner must lawfully terminate the right of residence. The plaintiff alleges that he is entitled to evict the defendant because the defendant does not work for him. This E allegation cannot be accepted because the defendant does not derive the right to reside on Twyfelaar from an employment relationship with the plaintiff. Twyfelaar has been the defendant's home from the time of his birth. I am not satisfied that the right of residence of the defendant has been lawfully terminated.' [8] F

Moloto AJ concluded his judgment by dismissing the plaintiff's claim.

[5] Following upon the dismissal of his claim and by notice dated 30 May 2001, the plaintiff applied to this Court that the order of Moloto AJ dated 29 May 2001 be set aside and substituted by the following order: G

'Defendant is ordered to vacate the farm Twyfelaar within 30 days of service on him of this order, failing which the Sheriff is authorised to remove him from the land immediately on expiry of the 30 day notice period.'

The application was supported by an affidavit by Mr Brandmüller, the relevant portions of which read as follows: H

'6.

At the commencement of the hearing, I, on behalf of applicant/plaintiff conceded that respondent/defendant was not an occupier as defined in ESTA.

7.

This concession was in line with the defendant's papers as prepared by I

Gildenhuys AJ

defendant's attorneys, Ntuli, Noble and Spoor, where defendant denies specifically that he is an occupier as defined in A ESTA.

. . .

11.

The Court held that respondent was not a labour tenant or an associate in para [11] of the judgment.

12.

It is respectfully submitted that once the Court has held that defendant is not a labour tenant and it is common cause that defendant is not an occupier then the defendant is not entitled B to the protection of Act 3 of 1996 or Act 62 of 1997 and that the Court then can and must proceed with the eviction of defendant.

13.

It is respectfully submitted that the order to dismiss the applicant/plaintiff's action is based on a patent error as described above.' C

[6] On 28 August 2001 Moloto AJ heard the application for the setting aside of his order of 29 May 2001. On the same day, he made the following order:

'The matter will be:

(a)

re-heard on the question whether the defendant is an occupier as defined in terms of the Extension of Security of D Tenure Act 62 of 1997.

(b)

heard by another Judge.

(c)

heard in Carolina, Mpumalanga.'

After the order was made, the case was transferred to me, and I became the presiding Judge in this matter. E

[7]...