Klaase and Another v Van der Merwe NO and Others

• Jurisdiction: South Africa
• Citation: 2016 (6) SA 131 (CC)

Klaase and Another v Van der Merwe NO and Others
2016 (6) SA 131 (CC)

2016 (6) SA p131

Citation	2016 (6) SA 131 (CC)
Case No	CCT 23/15
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Madlanga J, Matojame AJ, Nkabinde J, Van Der Westhuizen J, Wallis AJ and Zondo J
Heard	September 3, 2015
Judgment	July 14, 2016
Counsel	P Hathorn SC (with C de Villiers) for the applicants; A Breitenbach SC (with L Wilkin and M Adhikari) for the first and second respondents.; K Pillay SC (with J Williams) for the amicus curiae, the Women on Farms Project.

Flynote : Sleutelwoorde F

Land — Land reform — Statutory protection of tenure — Protected occupation of land — Wife residing on farm with occupier husband — Legal basis for — Whether husband's right to family life, or that wife was occupier — Extension of Security of Tenure Act 62 of 1997, ss 1 and 6(2)(d). G

Headnote : Kopnota

Mr and Mrs Klaase had lived for 30 years on land now farmed by Mr Van der Merwe. Mr Klaase had begun working for Mr Van der Merwe's father and continued to work for Mr Van der Merwe when he took over. The agreement was that Mr Klaase could reside on the farm, for as long as he worked there. Mrs Klaase worked seasonally on the farm. H

Ultimately, an employment dispute developed between Mr Klaase and Mr Van der Merwe, which was settled. Under the settlement agreement Mr Klaase received a sum of money, and he agreed to vacate the farm by a certain date. However, he failed to, and Mr Van der Merwe applied to a magistrates' court for an order evicting Mr Klaase and all occupying through him. (Mrs Klaase was not cited as a party in the application.) The court granted the I order and the matter went on automatic review to the Land Claims Court.

That court confirmed the eviction order and also dismissed an application by Mrs Klaase for joinder in the eviction proceedings and stay of execution pending determination of her rights.

It held that the Van der Merwes had not given Mrs Klaase express consent to reside on the farm (see [21], [55], [57]); that she was thus not an occupier J

2016 (6) SA p132

A (see [21]); and not subject to the protections against eviction in ss 8, 9 and 10 of the Extension of Security of Tenure Act 62 of 1997 (see [19]).

In its view Mrs Klaase's presence on the farm was protected by Mr Klaase's right to family life (s 6(2)(d)) (see [19] – [21]); and she could reside there for as long as he had a right to reside there.

The Klaases then approached the Constitutional Court, which dismissed B Mr Klaase's appeal of the confirmation of eviction (see [44]); but upheld Mrs Klaase's appeal of the dismissal of her application (see [48], [68]).

The Constitutional Court held that 'consent' included tacit consent (see [53], [55], [57]); that the Van der Merwes had given tacit consent (see [60], [64]); and that Mrs Klaase was an occupier (see [65]). Thus, the procedure C for eviction of an occupier ought to have been followed (see [65]); it had not been; and the eviction order, insofar as it applied to her, had to be set aside (see [67] – [68]).

In a separate judgment, Zondo J distinguished persons whose right to reside on land was dependent on the right to reside of other persons; and persons whose right to reside was not so dependent (see [97]). It was only consent D to reside independently of any other person's right that was 'consent' under s 1 (see [118] – [119]).

Here, the consent to Mrs Klaase to reside on the land was dependent on the right of residence of Mr Klaase (see [122], [141]); and Mrs Klaase was thus not an 'occupier' (see [130], [152]). She was a s 6(2)(d) resident (see [152]).

Nevertheless, Mrs Klaase had a direct and substantial interest in the eviction E order the respondents sought against Mr Klaase (see [146]); and this entailed that they should have joined her (see [147]). Their failure to do so vitiated the eviction order (see [153]). That order ought to be set aside, Mrs Klaase joined, and given an opportunity to deliver affidavits (see [153]).

In a further separate judgment, Jafta J's view was that leave had to be granted, F and that Mrs Klaase's appeal should succeed (see [155]). His position was that non-joinder of Mrs Klaase justified setting aside the eviction order insofar as it applied to her (see [160]). But the order should stand insofar as it applied to Mr Klaase: the respondents had complied with the Act in obtaining it against him (see [156]); and Mrs Klaase had not asserted her right to live with him (see [157]).

G Jafta J's further view was that two types of occupier were envisaged by the Act: those defined in s 1; and those referred to as 'other occupier[s]' in s 10(3) ('a court may grant an order for eviction of the occupier and any other occupier who lives in the same dwelling as him'). Mrs Klaase was an occupier, but it was unnecessary to decide of what type (see [158], [160]).

Cases Considered

Annotations H

Case law

Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others 2015 (6) SA 32 (CC) (2015 (10) BCLR 1139): referred to

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): dictum in paras [31] – [32] applied I

Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA) ([2007] ZASCA 80): referred to

Brown v Mbhense and Another 2008 (5) SA 489 (SCA): referred to J

2016 (6) SA p133

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd A 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): dictum in para [53] applied

Ellerine Brothers (Pty) Ltd v McCarthy Ltd 2014 (4) SA 22 (SCA): referred to

Floral Displays (Pty) Ltd v Bassa Land and Estate Co (Pty) Ltd 1965 (4) SA 99 (D): referred to B

Gajraj v Hoosen 1958 (2) SA 630 (D): referred to

Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others 2013 (3) BCLR 251 (CC) ([2012] ZACC 28): referred to

Hattingh and Others v Juta 2013 (3) SA 275 (CC) (2013 (5) BCLR 509; [2013] ZACC 5): referred to

In re Certain Amicus Curiae Applications: C Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023; [2002] ZACC 13): dictum in para [8] applied

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): dictum in paras [11] – [12] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: D In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): dictum in para [26] applied

Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239; [2012] ZASCA 115): E dictum in paras [11] – [12] applied

Landbounavorsingsraad v Klaasen 2005 (3) SA 410 (LCC): dictum in para [21] overruled

Loureiro and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) (2014 (5) BCLR 511; [2014] ZACC 4): referred to

Magodi and Others v Van Rensburg 2002 (2) SA 738 (LCC): referred to F

Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013] ZACC 45): referred to

Mkangeli and Others v Joubert and Others 2002 (4) SA 36 (SCA) ([2002] 2 All SA 473): referred to

MM v MN and Another 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; G [2013] ZACC 14): dictum in para [16] applied

Ntai and Others v Vereeniging Town Council and Another 1953 (4) SA 579 (A): referred to

Rashavha v Van Rensburg 2004 (2) SA 421 (SCA): referred to

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) (2009 (9) BCLR 847; [2009] ZACC 16): H referred to

Simonsig Landgoed (Edms) Bpk v Vers and Others 2007 (5) SA 103 (C) ([2007] 4 All SA 1288): referred to

Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others 2012 (5) SA 392 (SCA) ([2012] ZASCA 77): dictum in para [3] applied I

Syntheta (Pty) Ltd (formerly Delta G Scientific (Pty) Ltd) v Janssen Pharmaceutica NV and Another 1999 (1) SA 85 (SCA): referred to

Van der Merwe and Another v Klaase: In re Klaase v Van der Merwe and Others [2014] ZALCC 15: reversed on appeal

Van der Merwe NO and Another v Klaase LCC 09R/2014: reversed on appeal. J

2016 (6) SA p134

Statutes Considered

Statutes A

The Extension of Security of Tenure Act 62 of 1997, ss 1 and 6(2)(d): see Juta's Statutes of South Africa 2015/16 vol 6 at 4-423 – 4-425.

Case Information

P Hathorn SC (with C de Villiers) for the applicants.

A Breitenbach SC (with L Wilkin and M Adhikari) for the first and B second respondents.

K Pillay SC (with J Williams) for the amicus curiae, the Women on Farms Project.

An appeal against a decision of the Land Claims Court.

Order C

1.

Leave to appeal is granted to Mr and Mrs Klaase.

2.

Condonation for the late filing of additional documents by the amicus curiae is refused.

3.

The applications for the admission of new evidence by Mrs Klaase and the amicus curiae are dismissed.

4.

D The appeal by Mr Klaase is dismissed.

5.

The appeal by Mrs Klaase succeeds.

6.

The decision of the Land Claims Court confirming the Clanwilliam Magistrates' Court order for the eviction of Mrs Klaase is set aside.

7.

The application by Mr Klaase for suspension of the execution of the eviction order against him pending the determination of the rights of E Mrs Klaase in terms of the Extension of Security of Tenure Act 62 of 1997 is refused.

8.

There is no order as to costs.

Judgment

Matojane AJ (Moseneke...