Tshabalala v Kwagga Kliprivier Elendoms Trust and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ncube J
• Judgment Date: 28 March 2023
• Citation: 2023 JDR 1001 (LCC)
• Hearing Date: 25 November 2022
• Docket Number: LCC203/2015
• Court: Land Claims Court

Ncube J:

Introduction:

[1]

This is opposed application for substitution. The applicant seeks an order substituting her as the applicant for purposes of an application for an award of land in terms of Section 16, of the Land Reform (Labour Tenant Act, Act 3 of 1996) ("the Act"). The first, second and third respondents have filed a counter application asking this court to clarify certain paragraphs in the judgment of this court dated 26 October 2018 (Carelse AJ) in so far as those paragraphs refer to the application in terms of Section 16 of the Act. Parties agreed that if this court finds against the applicant in the substitution application, it will not be necessary to adjudicate on the counter application.

2023 JDR 1001 p3

Ncube J

Background facts:

[2]

On 25 September 2015, Mr Luke Fourteen Binda ("Mr Binda") instituted an action in the Land Claims Court. In that action, Mr Binda sought relief to be declared a labour tenant and to be awarded part of that portion of land which he was using and resided on, on 02 June 1992. The first, second and third respondents defended that action. In a judgment (Carelse AJ) dated 26 October 2018, Mr Binda was declared to be a labour tenant in terms of Section 33 (2A) of the Act. The issue of the award of land was postponed sine die.

[3]

On 21 March 2001, Mr Binda filed an application with the Director General seeking an award of land in terms of Section 16 of the Act. Mr Henk Terblanche, the landowner, was, in undated letter reference ET6/5/5H, informed of Mr Binda's application and of the steps which Mr Terblanche could take. In his application, Mr Binda indicated that he was staying on Strekfontein farm with his family and that there were six (6) people in his family. Having been declared a labour tenant on 26 October 2018, Mr Binda passed away on 10 July 2020. It is on that basis that the applicant now seeks an order to be substituted as an applicant in respect of an application for an award of land, on the basis, she claims, she is a spouse of Mr Binda and therefore a family member.

Issues:

[4]

The respondents deny that the applicant has locus standi to bring the present application. Respondents aver that there is no evidence that the applicant is the spouse of Mr Binda apart from what she says in her founding affidavit. There is no proof that she was married to Mr Binda, they aver. Respondents also deny that the applicant can be described as being the associate of Mr Binda as she wants the court to believe. According to the respondents, the applicant in this case, can never be an "applicant" in terms of the Act.

The Law:

[5]

The Act defines the applicant thus:-

"applicant" means-

(a)

a labour tenant, an associate who has lodged an application in terms of Section 17(1); and

2023 JDR 1001 p4

Ncube J

(b)

for the purposes of the award of land or a right in land to an applicant by the court, any other person nominated by the applicant and approved by the court;"

In turn an associate is defined as:-

...