Senamela v Mokwana NO.
| Jurisdiction | South Africa |
| Judge | Barnes AJ |
| Judgment Date | 29 March 2019 |
| Citation | 2019 JDR 1080 (LCC) |
| Docket Number | LCC05/2016 |
| Court | Land Claims Court |
Barnes AJ:
Introduction
This case began as an application, launched in January 2016, in which the plaintiff sought an order declaring her and her family to be labour tenants as defined in the Land Reform (Labour Tenants) Act 3 of 1996 ("the Act"), and consequential relief.
On 13 February 2017, the application was referred to trial.
The land to which this case relates is Portion 2 of the Farm Uitkyk 172 JS, in Limpopo Province, on which the plaintiff and her family resided until March 2013. I will refer to it in this judgment as "the farm".
The farm is presently owned by the Mokwana Family Trust of which the first to third defendants are trustees. The third defendant is the son of the first and second defendants.
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The plaintiff alleges that in March 2013, she and her family were constructively evicted from the farm by the first and third defendants. The plaintiff has, since March 2013, lived in an informal settlement in Sehleklwene.
At the commencement of the trial on 12 November 2018, Advocate Rossouw SC who appeared for the first to third defendants, applied for a separation of issues. The issue sought to be tried and determined separately was whether the plaintiff had voluntarily left the farm in March 2013. This issue is significant by virtue of section 3(3)(a) of the Act which provides as follows:
"3 Right to occupy and use land
…………….
A labour tenant shall be deemed to have waived his or her rights if he or she with the intention to terminate the labour tenancy agreement -
leaves the farm voluntarily; or
………"
Mr Rossouw submitted that the central issue in dispute between the parties was whether or not the plaintiff had left the farm voluntarily; that this issue was potentially determinative of the entire dispute between the parties and that it was accordingly convenient for it to be tried separately. Advocate Meyer, who appeared for the plaintiff, opposed the application for separation, contending that it was undesirable for the matter to be tried on a piecemeal basis. After
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hearing submissions from both counsel, I gave judgment in which I granted the application for separation.
The sole issue for determination before me is accordingly whether the plaintiff left the farm voluntarily in March 2013.
The Evidence
The Case for the Plaintiff
The Plaintiff, Mrs Mpuputlane Senamela
The plaintiff, Mrs Mpuputlane Senamela, is 76 years of age. She was born and grew up on the farm Duikerkrans in Limpopo Province. Duikerkrans was owned by a Mr Ben Roos.
Mrs Senamela married her late husband on Duikerkrans, where they lived for a time, before moving onto the farm, then also owned by Ben Roos.
Mrs Senamela testified that she worked as a domestic worker for Ben Roos on the farm. Her husband worked in the fields. They were not paid, but were entitled to keep livestock and had grazing and cropping rights on the farm.
Mrs Senamela and her husband had five children: Johannes, Marcus, Martha, Christinah and Nkoni. Nkoni died very young and was buried on Duikerkrans.
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Martha and Christinah passed away while the family lived on the farm and are buried there, in the family grave plot.
Ben Roos passed away and his sons took over the running of the farm for a time. In 2012, the Mokwanas purchased the farm.
Mrs Senamela testified that shortly after their arrival on the farm, the Mokwanas erected a fence, which enclosed the Senamela's homestead and kraal, effectively fencing them in.
Mrs Senamela testified that there were two gates in the fence: the first was the main gate which provided access to the main road. The second provided access to the river. She testified that the Mokwanas kept these gates locked and only gave the Senamela family the keys when they felt like it.
Mrs Senamela testified that when her family was without the keys, they had to climb over the main gate in order to access the main road and crawl under the fence in order to access the river. She testified further that they were forced to enlarge a small opening in the fence in order to get their cattle out of the kraal.
Mrs Senamela testified that she and her husband had always been entitled to collect and sell firewood on the farm. She testified that on Sunday 10 March 2013, persons came to the farm to buy firewood from them. When they attempted to exit the farm in their bakkie, they found the main gate locked.
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The third defendant, Mr Steve Mokwana, arrived. He was angry and demanded to know why wood was being removed from the farm. He drew his firearm and pointed it at the driver of the bakkie. Mrs Senamela testified that her husband intervened and said "don't shoot this innocent person, rather shoot me." Steve Mokwana withdrew his firearm and the group returned to the Senamela's home. The first defendant, Mr Amos Mokwana, also arrived. There was an altercation over the money paid to Mr Senamela for the firewood, with the Mokwanas attempting, at one point, to take the money from Mr Senamela. Mrs Senamela testified that the Mokwanas were angry and said to her husband "we are going to get you". They then left the Senamela homestead.
The following day was Monday 11 March 2013. At around 18:00 in the evening Mrs Senamela was fetching the cattle from the river when she noticed a private vehicle on the main road approaching their homestead.
Mrs Senamela later learned that two unknown men had come looking for her husband. Mr Senamela sent his grandson to receive them. When Mr Senamela emerged from the house, he was shot twice, in the presence of his grandson.
Mr Senamela died on the way to hospital.
Mrs Senamela testified that on Wednesday 13 March 2013, Amos and Steve Mokwana came to her home and asked what had happened. She told them
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that her husband had passed away. They instructed Mrs Senamela to leave the farm. Amos Mokwana said his son was now the owner of the farm and they did not want the plaintiff and her family there. Mrs Senamela testified that Amos Mokwana said "don't you ever put your house on our farm."
Mrs Senamela testified that thereafter, Amos and Steve Mokwana came to her home on more than one occasion and instructed her to leave the farm and to do so by no later than Monday 18 March 2013. They said "on Monday, we must not find you on this farm."
On Thursday 14 March 2013, Mrs Senamela was served with an urgent court application in which the Mokwanas sought to interdict Mr Senamela's burial on the farm. The application was brought on less than 24 hour notice and was set down for hearing in the Pretoria High Court at 10:00am on Friday 15 March 2013.
Mrs Senamela testified that she was, in the circumstances, unable to oppose the application.
On Friday 15 March 2013, the Pretoria High Court granted an order in Mrs Senamela's absence interdicting Mr Senamela's burial on the farm. The order was served on Mrs Senamela on the same day.
On Friday 15 March 2013, a night vigil was held for Mr Senamela at the Senamelas homestead. Mrs Senamela testified that Amos Mokwana arrived
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with a group of men and demanded to know why the vigil was being held. Mrs Senamela did not respond to him.
On Saturday 16 March 2013, Mr Senamela was buried, not in the family grave plot on the farm, but in a graveyard at Syplaas.
Mrs Senamela testified that on their return from the funeral, only the vehicle she was travelling in was permitted entry to the farm. The remaining vehicles in the funeral convey were locked out by the Mokwanas.
Mrs Senamela testified that on Sunday 17 March 2013 she left the farm. She moved to an informal settlement in Sehleklwene, where she built a shack.
Mrs Senamela testified that she believes that Amos and Steve Mokwana were responsible for her husband's murder. She testified that she did not wish to leave the...
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