Normandien Farms (Pty) Ltd v Mathimbane

• Jurisdiction: South Africa
• Judge: Meer AJP
• Judgment Date: 05 November 2015
• Citation: 2017 JDR 0692 (LCC)
• Docket Number: LCC 196/2013
• Court: Land Claims Court

Meer AJP:

Introduction

The Main Application

[1]

The Applicant, as the owner of the farm Albany, situated in Normandien District, Newcastle, KwaZulu-Natal, (''the farm") instituted an application ("the main application") in December 2013 for the removal from the farm of all the livestock belonging to the First to Twelfth Respondents who are labour tenants residing on the farm. The removal was sought on the ground that the First to Twelfth Respondents have caused the farm to be totally overgrazed contrary to the provisions of the Conservation of Agricultural Resources Act 43 of 1983 ("CARA"), to the extent that the farm requires rehabilitation.

[2]

The Applicant sought also that the Thirteenth, Fourteenth and Fifteenth Respondents, ("the State Respondents") be ordered to facilitate the removal of the livestock to alternative land to be made available by either of them. In the

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event of the Respondents failing to remove the livestock, the Applicant sought an order for the Sheriff to secure the removal.

[3]

In a counter application the First to Twelfth Respondents sought a declaration that the main application is subversive of an order of this Court of 2 April 2014 under Case No. LCC 31/2013, and their rights emanating therefrom. They contend that they have elected in terms of that order to acquire the farm Normandien No. 3303 and they seek an order that this Court award the land to them and determine the just and equitable compensation to be paid by the Minister of Rural Development and Land Affairs, the Fourteenth Respondent, to the Applicant in acquiring the land for them. In addition they challenge the Applicant's locus standi to invoke the provisions of CARA.

[4]

The Thirteenth Respondent, the Minister mandated to administer and enforce the provisions of CARA, and the Fourteenth Respondent, the Minister mandated to assist labour tenants in acquiring land in terms of the Land Reform Labour Tenants Act 3 of 1996 ("the Labour Tenants Act") oppose the relief sought against them. Their stance is that neither of these Acts nor indeed any legislation sanction the relief relied upon by the Applicant. The Fourteenth Respondent maintains that he does not have a policy, mandate, budget or programme to comply with the relief sought by the Applicant. He abides the decision of the court in respect of the counter application.

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[5]

The Fifteenth Respondent, the Regional Land Claims Commissioner, KwaZulu-Natal opposed the application on the basis that he has been misjoined, as his mandate is limited to processing claims for restitution of rights in land under the Restitution of Land Rights Act No. 22 of 1994, and does not extend to matters pertaining to labour tenants. The misjoinder was ultimately conceded by the Applicant, and this application accordingly does not concern the Fifteenth Respondent.

Background Facts

[6]

In March 2013 the First to Twelfth Respondents instituted an action as Plaintiffs under case No. LCC 31/2013, in which they sought inter alia a declaration in terms of section 33(2A) of the Labour Tenants Act, that they were labour tenants. The Applicant opposed the application. Thereafter in December 2013, the Applicant instituted the present application for the removal of their livestock.

[7]

The First to Twelfth Respondents have been in occupation of the farm for many years. The Applicant purchased the farm Albany, in 2001. Since that date, it is contended in the Applicant's founding affidavit, the entire area used by the First to Twelfth Respondents has been grazed for 365 days a year. This adversely affected the quality of the grazing and was in contravention of applicable environmental legislation, namely the Conservation of Agricultural Resources Act 43 of 1983 (CARA), and the National Environmental

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Management Act 107 of 1998, (NEMA read with the relevant provisions of the Constitution of the Republic of South Africa 108 of 1996, the objects of which are to provide for the conservation of the natural agricultural resources. The situation was exacerbated by the actions of the First to Twelfth Respondents, the affidavit goes on to state, in that they failed to heed requests by the Applicant since 2001 to reduce their livestock to within normal limits. Despite requests by the Applicant the Thirteenth Respondent failed in his obligation to enforce control measures under section 6 of CARA. These allegations are not disputed by the Respondents.

[8]

During July 2002 at the Applicant's request, the Newcastle Office of the Department of Agriculture, which the Applicant refers to as an office of the Thirteenth Respondent, investigated the area. A report by a professional agricultural scientist of that office, stated inter alia that the veld is severely overgrazed around the labourers' houses causing erosion and other adverse conditions. A further report of the Kwa-Zulu Natal Department of Agriculture and Environmental Affairs in 2012, stated inter alia that the area was so heavily overstocked, that it exceeded the carrying capacity of the total area by 73%, the overstocking had caused a very poor animal condition and the soil erosion should be addressed as a matter of urgency. These reports are also not disputed.

[9]

The answering affidavit of the Second Respondent indicated that the First to Twelfth Respondents collectively possess and graze in the region of 285

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cattle, 10 horses and 133 goats on the farm. The animals are kept for personal use. The milk from the cows is used for daily living and some of the livestock are sold to raise funds to pay school fees. Most of the occupants on the farm, he states are unemployed and rely heavily on their livestock to sustain their livelihood. They have not been educated in modern farming methods and they find it strange and suspicious, he says, for the Applicant to contend that all their cattle should be removed from the farm. He emphasises the cultural importance of cattle to the labour tenant Respondents.

[10]

The Applicant's supplementary affidavit in reply of Robin Hoatson, a director of the Applicant and its General Manager, states that there are currently 360 cattle on the farm, which is way in excess of the number that can be accommodated when the veld has been rehabilitated. The situation, he states amounts to animal cruelty which will be exacerbated in the winter months.

[11]

Expert reports for the purposes of this application were compiled on behalf of the Applicant, the First to Twelfth Respondents and on behalf of the State Respondents. The report of Dr Mottram, the agricultural expert and specialist appointed by the First to Twelfth Respondents themselves, states that the livestock of the First to Twelfth Respondents should be removed from the farm Albany immediately. A joint minute of experts emanating from a meeting of all experts on 22 June 2015 records inter alia, that the following was agreed:

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(a)

overgrazing is the cause of degradation of the species composition, vigour and basal cover;

(b)

overstocking has occurred based upon the number of animals tabled;

(c)

there is no evidence that the Respondents acted responsibly by reducing their animal numbers to adhere to acceptable grazing capacity norms; and

(d)

there should be a total withdrawal of all domestic livestock (horses, donkeys, goats, sheep and cattle) from the area in question and the adjacent steep slopes before 31 August 2015.

[12]

The experts recommended moreover that a strict Resource Management Plan be drafted before October 2015. This plan would be carried out by suitably qualified professionals approved by the experts. The plan, it was stated must include the following:

(a)

Veld Management Plan;

(b)

Fodder Management Plan;

(c)

Assessment of the production potential of the area; and

(d)

Remedial Plan for soil erosion.

[13]

The experts recommended further an exclusion period of five years, during which period the plan would be put into action. All the experts accordingly agreed that there should be a total withdrawal of all animals off the

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area on or before 31 August 2015 and that the livestock would be removed for a period of 5 years. The Applicant submits that by virtue of the concession by all the parties that the livestock must be removed, it is entitled to the order sought as set out in the Notice of Motion against the First to the Twelfth Respondents.

[14]

On 14 March 2014 by an order of this Court granted by agreement in the first action under case No. LCC 31/2013, the First to Twelfth Respondents (in this application) as Plaintiffs, were declared to be labour tenants. Paragraph 4 of the order of 14 March 2014 orders the Director General of Land Affairs, the relevant official in the Fourteenth Respondent's office, to provide a comprehensive report within 6 months on:

"The election that the Plaintiffs have made insofar as their acquisition of alternative land and/or compensation."

The order was amended on 2 April 2014. Paragraph 4 (a) of the amended order, orders the Director General of Land Affairs to provide a report within 6 months on:

"The election that the Plaintiffs have made insofar as "their acquisition of the land or alternative land or compensation."

[15]

I mention at this juncture that there is a dispute about which order correctly records what was agreed between the parties, the Applicant opting for the March order and the First to Twelfth Respondents for that of April. But more

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of that later. As aforementioned the First to Twelfth Respondents' counter-application is grounded on the order of 2 April 2014.

[16]

The First to Twelfth Respondents elected pursuant to the amended order, to remain on the farm for the reason that...