Mabaso and others v Goble NO and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ncube J
• Judgment Date: 16 February 2023
• Docket Number: LCC219/2015
• Hearing Date: 16 February 2023
• Court: Land Claims Court

Ncube J:

Introduction:

[1]

This matter was heard on 16 and 17 of January 2023. It was finalised on the 17th of January 2023. An ex tempore judgment was delivered and the action was dismissed with no order as to costs. On 18 January 2023, the Plaintiff's attorneys wrote to the court's registrar requesting that the ex tempore judgment delivered on 17 January 2023 be supplied to them in a written form. Hence this written judgment.

Facts:

[2]

The first plaintiff, together with her three children who were cited as second, third and fourth plaintiffs at the time, instituted an action in this court to be declared labour tenants. During the course of that trial, the second to fourth plaintiffs ("children") withdrew their claim. The first plaintiff who is their mother, remained as the only plaintiff in that matter. On 24 May 2018, the first plaintiff was in terms of section 33(2A) of the Land Reform (Labour Tenants) Act, Act No 3 of 1996, ("the Act") declared a labour tenant.

[3]

The first plaintiff, now seeks relief in terms of section 16 of the Act, awarding her the portion of that part of the farm which she is or was using on 2 June 1995. Apart from this relief, the first plaintiff also seeks a declaratory order to the effect that the application in terms of section 16 of the Act, which was filed by the late Jabulani Alpheus Mabaso, dated 17 March 2000 be deemed to include the first plaintiff. The

2023 JDR 0464 p3

Ncube J

first plaintiff states in her amended statement of claim that her late brother Jabulani Alpheus Mabaso ("Jabulani") was designated by the Mabaso family to lodge an application with the fifth defendant for the acquisition of land in terms of section 16 of the Act. A copy of the section 16 application form was annexed to the amended statement of claim as annexure "D". The first plaintiff states further in her amended statement of claim that her name was "inadvertently omitted" from the form at the time the form was completed and lodged with the fifth defendant.

[4]

The action is defended by the first to the fourth defendant on the basis that:-

(a)

the first plaintiff never lodged the application to acquire land in terms of section 16 of the Act before 31 March 2001.

(b)

there has been no compliance with section 17 of the Act, in that the application to acquire land was never served on the defendants or their successor in title.

(c)

In terms of section 16 of the Act, only a labour tenant may apply for an award of land and Jabulani was never declared a labour tenant.

(d)

Annexure D having been lodged by Jabulani, is of no relevance to the first plaintiff and it does not entitle the first plaintiff to an award of land.

(e)

Jabulani could not have lodged a claim to be a labour tenant on behalf of other people.

(f)

Labour tenancy is a status which is person specific. One person cannot apply on behalf of another person to be declared and labour tenant and that other person to be awarded land.

(g)

The fact that Jabulani might have been the brother of the first plaintiff is an irrelevant consideration in respect of section 16 of the Act.

The fifth defendant filed a notice to abide by the decision of the court, without filing a plea.

2023 JDR 0464 p4

Ncube J

The Law:

[5]

Chapter III of the Act deals with the "acquisition of ownership or other rights in land by labour tenants." Section 16 provides for the right to acquire land and it states:

"16

Rights to acquire land-

(1)

subject to the provisions of this Act, a labour tenant or his or her successor may apply for an award of –

(a)

the land which he or she is entitled to occupy or use in terms of section 3;

(b)

the land which he or she or his or her family occupied or used during a period of five years immediately prior to the commencement of this Act, and of which he or she or his or her family was deprived contrary to the terms of an agreement between the parties;

(c)

rights in land elsewhere on the farm or in the vicinity which may have been proposed by the owner of the farm, and

(d)

such servitudes of right of access to water, rights of way or other servitudes as are reasonably necessary or are reasonably consistent with the rights which he or she enjoys or had...