Lechoana v Cloete and Others

• Jurisdiction: South Africa
• Judge: Solomon ACJ, De Villiers JA and Kotzé JA
• Judgment Date: 05 June 1925
• Citation: 1925 AD 536
• Hearing Date: 08 April 1925
• Court: Appellate Division

De Villiers, J.A.:

This appeal raises most important questions of law. In the Orange Free State Provincial Division McGREGOR, J. at the instance of the plaintiffs, the present respondents, gave an order upon the appellant to vacate the farm Bethany within one month with costs in favour of the respondents, subject to the payment of £16 tendered by the respondents to the appellant, the value of certain building material. The case is said to be a test case, some 200 other natives being in like position as the appellant. The farm Bethany is registered in the name of The Berlin Mission Society and has been so registered for years. It is admitted that the Society holds unencumbered title to the land which was originally granted to it in the year 1834 by the Griqua Chieftan Adam Kok for the purpose of a Mission Station. But the action, which is one of ejectment, was brought by the Board of Trustees for that Society in whom by the Treaty of Versailles the property is now vested. The Society has been carrying on its religious and philanthropic work in various parts of South Africa for the best part of a century. Although the regulations provide that the whole cost of maintaining the Mission Station is to be borne by the community, funds for the purpose were for many years forthcoming from Germany. Since the Great War, however, the supply from that quarter has ceased and the Trustees have in consequence found themselves compelled to sell a portion

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of the land to raise the funds necessary for carrying on their Mission work in the Free State and elsewhere. The land which the appellant occupies is included in the area which it is proposed to sell. The appellant is a member of the community and has lived on the farm Bethany all his life as did his father before him. On the portion inhabited by him he has erected a house, consisting of two rooms with a wagon house between; he has built a kraal for his cattle and a small dam, planted some trees and put up fences. The case for the respondent is that the appellant resides on the farm by permission of the Society, which permission was granted at the will of the Society and that the respondents are entitled, upon reasonable notice, to withdraw the permission and terminate the appellant's occupancy. The respondents gave the appellant twelve months' notice to vacate the farm and offered to pay him a sum of £16, the value of the materials which he had annexed to the soil. The appellant on the other hand maintains that the permission to reside on the farm cannot be withdrawn by the Society. Alternatively he claims an amount of £150 which he alleges to be the value of the permanent improvements to the farm, that being the extent therefore to which the Society would be enriched.

In support of the contention that the permission cannot be withdrawn great stress was laid by counsel for the appellant on the old regulations which have obtained on the Station since at least the year 1867, and it must be confessed if they govern the relationship of the parties there is much to be said for this view. At first it would appear there were no written regulations. What are called the old regulations were framed by the Society in the year 1867. These were altered from time to time in consultation with the headmen of each werf as representing the natives. In 1912 a new met of rules differing in some important respects from the old regulations was drafted by the Society and the residents on the Station were asked to subscribe to them. This the appellant amongst others refused to do claiming that he falls under the old regulations and that his right to reside on the Station is governed by those regulations. Under these circumstances it becomes necessary to examine the regulations in some detail. The old regulations are headed: Regulations now existing on the Mission Station Bethany, O.R.C. Sec. 1 states the

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object of the Mission Station to be "to gather together the heathen of the various coloured races in South Africa into a Mission community and to educate them into a Christian community." Sec. 2 provides that for that purpose coloured people whether baptized or not together with their families are to be received on the land Bethany and to be subject to regular care "by word sacrament and the cure of souls." The remaining regulations then proceed to outline the scheme for the attainment of the objects of the Mission. The land, 21,000 morgen in extent is divided into 9 villages (werfen) for the purpose of erecting dwelling houses. In each of these villages a suitable number of gardens are set apart by the Superintendent of the Station, who according to the evidence combines in his person the office of hoofdleeraar (Chief Pastor) and that of Farm Superintendent or Manager (plaatsbestierder). It is the duty of the Superintendent to allocate to each family a garden for the purpose of cultivating it, the gardens in each village to be in one block. The families who enjoy the benefits of these gardens have to enclose the block either with a wall of stone 5 ft. high or with five wires. They also have to make the necessary dams and keep them in repair. The site of the dam is indicated by the Superintendent, the Society supplying the sleepblok and the necessary pipes. The person who builds the dam is entitled, for a period of three years, by way of payment for his labour, to retain seven-eighths of the harvest instead of the usual half; the remaining eighth goes to the Society. After the lapse of three years he gives one half to the Society. All families who have gardens with water rights have to build their houses in the neighbourhood of the gardens, such houses together forming one werf. Sec. 9 and 10 are important: "The gardens pointed out remain the property of the Society and are given to the several residents for their persons for life, but only for use (ten gebruik), if they behave themselves according to the laws of the Station. The right to make over these gardens to their children or friends they do not possess because these gardens have only been given to them for their use" (sec. 9). "The house, which a resident builds on the ground pointed out to him is his free property for as long as he is resident on the farm. If a resident leaves the farm for good or is told to leave the farm, he may break his house down

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and take away the materials. If he wishes to sell it to another resident, he requires the consent of the Superintendent. If it has not been broken down or sold within a period of three years, it becomes the property of the Society. If a resident dies leaving a widow or a grown up son preference is given to such widow or son when the garden which with the house is given out unless there are reasons to the contrary" (sec. 10). Further each resident with a family is entitled to keep a number of sheep, goats, cattle and horses, the fees to be paid for grazing to be fixed from time to time by the Superintendent in concert with the residents of the Station. Only the Superintendent has the right to accept families as residents or to order them to leave the farm. Every person who wishes to become a resident must obtain the leave of the Superintendent whereupon the werf where he can build his house is pointed out. Before he is admitted he has to make a declaration that he is willing to place himself under the care of the Word and Sacrament and to live and conduct himself according to the local regulations. Before he is finally accepted he has to be on probation for a year, at the end of which time the Superintendent has to decide whether he should be admitted or rejected. The person who does not live according to the regulations may at any time be warned by the Superintendent to leave the farm (sec. 21). Such person loses all rights which he has as resident (sec. 22). Every resident is bound without payment to take part in the following: to keep the roads in order, exterminate Xanthium...