Moladora Trust v Mereki and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cowen J
• Judgment Date: 11 November 2022
• Citation: 2023 (3) SA 209 (LCC)
• Hearing Date: 11 November 2022
• Counsel: I Oschman for the applicant.
• Docket Number: LCC 70/2022
• Court: Land Claims Court

Cowen J:

Introduction and factual background

[1] This case concerns the connection between occupation of land in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and cattle-grazing. More specifically, it concerns the nature of rights held by ESTA occupiers when grazing cattle on the land they occupy and what protections apply when these rights are terminated.

[2] The applicant, the Moladora Trust (the Trust), has approached this court for an order directing the first to third respondents to remove all of their grazing animals under their control from one of the Trust's farms. If they fail to do so within 30 (thirty) days, the Trust seeks an order directing the sheriff, with the assistance of the South African Police Services, to remove the cattle to the poundmaster for the district where the farm is situated. The farm is known as the Remainder Wildebeeslaagte, No 282, situated in the Dr Kenneth Kaunda district, North West Province (the farm). The first to third respondents are Magalone Mereki, Topies Mereki and Dikhotso Mereki, and I refer to them, for convenience, as the respondents. [1]

[3] According to the applicant, the respondents are the children of a former employee of the Trust, the late Mrs Meriam Mereki. Mrs Mereki passed away on an unspecified date, but 'before 2017'. Her children continued to reside on the farm after their mother's death. The Trust accepts that the respondents are ESTA occupiers. The Trust, however, contends that the respondents' rights of occupation are only for residential or housing purposes and it says that the occupiers have never sought

Cowen J

or obtained any consent to graze livestock on the farm. Before instituting proceedings, there was a known dispute about the respondents' entitlement to graze cattle and, apparently, the number of cattle that, at least, Mrs Mereki was entitled to graze: the Trust says only Mrs Mereki had a right to graze cattle, and only five. There are at present nine head of cattle. Mr Marius Nel, who is a trustee of the Trust and who deposes to the founding affidavit on its behalf, says that, after Mrs Mereki passed away, he made 'some efforts to engage' about the absence of consent to keep any livestock on the farm. He says that during these 'incidents' he was 'verbally abused' and informed that the livestock will not be removed. He then says that, in circumstances where 'he' had bought the farm from a previous owner, and to afford a reasonable opportunity to make alternative arrangements for their livestock, he served formal notices in January 2018, calling on the first to third respondents to remove their livestock within 30 days (the 2018 notices). The Trust has supplied the 2018 notices to the court with proof of service.

[4] The 2018 notices record, in relevant part, that —

[4.1]

the Trust acquired ownership of the farm on 5 November 2003 and that, according to the trustees' knowledge, the respondents occupy the farm 'solely and by virtue of the employment of [their] parents on the farm';

[4.2]

any agreement regarding grazing of livestock was a personal agreement entered into between the owner and the persons employed on the farm, allowing the keeping of five cattle, which rights were not transferrable to the respondents through succession;

[4.3]

the respondents' keeping of cattle on the farm was said to be unlawful and the Trust demanded that the respondents remove all of the cattle within 30 days.

[5] Mr Nel explains that there was no response to the January 2018 notices and the respondents did not remove the cattle. It appears that nothing then happened for some 19 months when, in August 2020, the Trust was confronted by officials of the Department with claims, allegedly false, that the Trust had arbitrarily reduced and deliberately burnt the respondents' grazing, and the Department threatened legal proceedings. On 21 August 2020 the Trust sent a letter to the Department advising that the allegations were denied and that it would oppose legal proceedings. The Trust further responded by advising the Department, amongst other things, that the Trust would now take steps against the occupiers, who, they said, did not have consent to keep livestock. The Trust referred to the authority of the Supreme Court of Appeal (SCA) in Adendorffs Boerderye, [2] which holds that the right of ESTA occupiers to graze cattle is a personal right derived from consent.

Cowen J

[6] The Trust then sent further notices to the respondents, served by the sheriff on 5 October 2020 (the October 2020 notices). These notices refer to the January 2018 notices and the occupiers' failure to remove their livestock in response. The notices also refer to a recent fire which reduced available grazing on the farm and the allegedly false allegations lodged with the Department pertaining to the Trust's conduct. The notices continue as follows: [3]

'4.

Despite the fact that there may be a dispute about whether you had permission to keep your livestock on the farm or not, it is our instructions to hereby give you 1 month's notice to in terms of the common law of the determination of the right to keep livestock on our client's farm.

5.

You are therefore requested to make arrangements to have your livestock removed from the farm before the expiry of the notice period, failing which we will bring an application to have your livestock removed from the farm.

6.

We trust that our client will be able to rely on your co-operation, but nonetheless and if our client is compelled to pursue litigation herein our client will be citing the Department of Rural Development and yourself as respondents and will also be seeking an appropriate cost order.'

[7] The sheriff's returns of service reveal that it was not possible for the sheriff to effect personal service:

'With our arrival the people were aggressive and extremely violent. The interpreter tried to translate the meaning of the letter and explain the contents thereof but they said they do not know who the Court is and refused to take the document. We tried to get hold of the recipient of the letter but as the people got more violent we served the letter on A Shuping.'

[8] There was no response. However, a further 19 months then passed before the Trust took any action by instituting these proceedings on 11 May 2022. The application was served on a tenant residing at the respondents' residence, one Kediemetse Lephadi. The respondents did not deliver any notice to participate or answering affidavit. The Trust then set the application down on the unopposed roll for 25 July 2022. The sheriff served the notice of set-down on the respondents by affixing it to the main gate. The returns record: [4]

'The respondents were very aggressive towards us, refused to communicate by taking this Notice he called the police for us, and they did arrive at given address. After the Police arrived did explain to them where we from and we need to serve this Notice on the Respondents, but still they refused to take this Notice, that's why it is served by affixing at the main gate.'

[9] On 25 July 2022 Ms Oschman appeared for the applicant. There was no appearance for the respondent. Ms Oschman sought an opportunity to correct certain difficulties the court raised with the application, and I

Cowen J

stood the matter down until Wednesday 27 July 2022 to afford the Trust an opportunity to do so. On 26 July 2022, before the matter was recalled, I issued directions requesting the Trust to make submissions on whether there are sufficient allegations in the founding affidavit to ground relief in circumstances where (1) the SCA has accepted that, in some circumstances, the removal of cattle may amount to an eviction; [5] and (2) there was no engagement with the respondents prior to the purported termination of any right to keep cattle during 2020. After argument on 27 July 2022, I afforded the Trust an opportunity to prepare written heads of argument, filed on 3 August 2022.

[10] The following two issues require determination in this case:

[10.1]

Whether the respondents enjoyed any right to graze cattle on the farm.

[10.2]

If so, whether the protections of ESTA apply when an owner or person in charge seeks to terminate the right or whether the applicant may terminate the right on reasonable notice.

The Constitution, ESTA, security of tenure and livestock

[11] The Constitutional Court has described ESTA as 'remedial legislation umbilically linked to the Constitution' which seeks to protect people whose tenure of land is insecure. [6] When interpreting ESTA, that constitutional purpose must be advanced, [7] a 'blinkered peering' at the language must be avoided and an approach must be adopted that promotes the spirit, purport and objects of the Bill of Rights. Moreover, the court must prefer a generous construction over a merely textual or legalistic one in order to afford occupiers the 'fullest protection of their constitutional guarantees'. [8] Also relevant for present purposes is the Constitutional Court's injunction in Goedgelegen that, when interpreting legislation, courts —

Cowen J

'must understand the provision within the context of the grid, if any, of related provisions and of the statute as a whole, including its underlying values. Although the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to context. This is so even when the ordinary meaning of the provision to be construed is clear and unambiguous.' [9]

[12] ESTA expressly protects various constitutional rights of occupiers and owners or persons in charge [10] of land to which it applies, which is largely rural areas, including many places where cattle are grazed. [11] However, ESTA is, centrally, legislation that seeks to give effect to s 25(6) of the Constitution, which provides that '(a) person or community whose...