IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE … · CASE NO: 546/2002 In the matter between...

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)CASE NO: 546/2002

In the matter between

MARGRE PROPERTY HOLDINGS CC

and

NQABENI SWARTBOOI JEWULA

JUDGMENT

PICKERING J:

Applicant is Margre Property Holdings CC, a close corporation having its

principal place of business at Riverside farm, Barkly East. Respondent is

Nqabeni Swartbooi Jewula, an adult male presently residing on the aforesaid

farm.

Applicant has instituted proceedings against respondent for an order in the

following terms:

“1. That respondent be ordered to decrease:

1.1 his livestock, presently kept on applicant’s farm, Riverside,

Barkly East, to 80 units; and

1.2 His family members, presently occupying the said farm to 13

persons;

in accordance with the written agreement entered into between the parties

dated 10 September 1999.

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2. That respondent be ordered to pay the costs of this application.”

Applicant has, however, since abandoned the relief sought in paragraph 1.2 of

the Notice of Motion relating to respondent’s family members. The application is

therefore only concerned with the relief sought in paragraphs 1.1 and 2 thereof.

In response to this application first respondent has raised an objection in limine.

He contends that, in substance, the relief sought against him by applicant

constitutes a curtailment of his right to the use of land which is linked to his right

of residence on the farm Riverside, and, as such, constitutes an eviction such as

is contemplated in the Extension of Security of Tenure Act, 62 of 1997 (“the

Tenure Act”). He refers in this regard to the provisions of s 17 (1) and (2) of the

Tenure Act which read as follows:

“(1) A party may, subject to the provisions of s 19 and 20, institute

proceedings in the magistrate’s court within whose area of

jurisdiction the land in question is situate, or the Land Claims Court.

(2) If all the parties to the proceedings consent thereto, proceedings

may be instituted in any division of the High Court within whose

area of jurisdiction the land in question is situate.”

He states that he has specifically withheld his consent to these proceedings

being instituted in the High Court and that this Court is therefore obliged to

decline to hear the matter.

Applicant, in turn, submits that this Court does have the requisite jurisdiction to

entertain the matter.

It was common cause between Mr. Plasket, who appeared for applicant, and Mr.

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Kincaid, who appeared for respondent, that Riverside farm falls within the

definition of land to which, in terms of s 2 thereof, the Tenure Act applies. It was

further common cause that respondent is an “occupier” of Riverside farm within

the meaning of that term as defined in s 1 of the Tenure Act. That definition

reads as follows:

“‘Occupier’ means a person residing on land which belongs to another

person, and who has or (sic) on 4 February 1997 or thereafter had

consent or another right in law to do so…”

Mr. Kincaid, in support of his submission that this Court has no jurisdiction to

entertain this application, referred further to the definition of “evict” in s 1 of the

Tenure Act, namely:

“‘Evict’ means to deprive a person against his or her will of residence on

land or the use of land or access to water which is linked to a right of

residence in terms of this Act, and ‘eviction’ has a corresponding

meaning.”

With reference to the above definitions Mr. Kincaid’s argument in essence

amounted to the submission that, immediately an owner sought to limit the use of

an “occupier’s” land, the jurisdiction of the High Court was ousted. It was then

only a Court as defined in the Tenure Act which was vested with the necessary

jurisdiction to deal with the matter. The High Court, so he submitted, lacked the

jurisdiction even to enquire into the issue as to whether the order sought would in

fact constitute an eviction as defined.

I disagree.

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In my view in a case such as the present, the High Court is entitled and, indeed,

obliged to enquire into this issue and will and can only decline to exercise

jurisdiction once it is satisfied that the relief sought by applicant, if granted, would

constitute an eviction as defined in the Tenure Act, thus bringing the matter

within the exclusive jurisdiction of a court as defined therein. (Compare:

Khumalo v Potgieter 2001 (3) SA 63 (SCA); Nkosi and another v Bührmann 2002

(1) SA 372 (SCA).

For purposes of the determination of the question of jurisdiction in this matter it is

necessary, in my view, to decide whether respondent’s use of the farm for

purposes of grazing his livestock is linked to his right of residence on the farm in

terms of the Tenure Act and, whether the agreement, annexure D, deprived him

of such use of the land against his will.

In this regard Mr. Kincaid submitted that the use by respondent of the land for

grazing his livestock was indeed linked to his right of residence in terms of the

Tenure Act inasmuch as such use was necessarily incidental to his right of

residence. For this reason, so he submitted, an occupier of a farm, wishing to

graze his livestock thereon, was not obliged to obtain the prior consent of the

owner of the farm thereto. For the following reasons I do not agree.

S 39 (2) of the Constitution, Act no 108 of 1996 provides as follows:

“When interpreting any legislation, and when developing the common law

or customary law, every Court, tribunal or forum must promote the spirit,

purport and objects of the Bill of Rights.”

S 25 of the Constitution deals with property rights under the Bill of Rights. In

terms of s 25 (1):

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“No one may be deprived of property except in terms of law of general

application, and no law may permit arbitrary deprivation of property.”

S 25 (6) provides as follows:

“A person or community whose tenure of land is legally insecure as a

result of past racially discriminatory law or practices is entitled, to the

extent provided by an Act of Parliament, either to tenure which is legally

secure or to comparable redress.”

It is clear from the aforesaid provisions of the Constitution that a balance is

required to be struck between the rights of an owner not to be arbitrarily deprived

of his property and the rights of a person whose tenure of land is legally insecure

as a result of past racially discriminatory laws to tenure which is legally secure.

The authors of Budlender, Latsky and Roux; Juta’s New Land Law state at 7 A –

6 that the Tenure Act has three main objects:

“To protect people defined as ‘occupiers’ against unfair eviction (ss 1 – 3

and 8 – 25);

To bring legal certainty to the daytoday relationship between owners and

occupiers of rural and periurban land (ss 5 – 7);

And as a long term solution to the problem of unfair evictions, to provide a

mechanism in terms of which occupiers can acquire independent tenure

rights, either on the land on which they are staying, or on other land (ss 4

and 26).”

The learned authors state further at 7A3 that the Tenure Act “attempts to

transform historically entrenched power relationships so as to bring justice to the

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present.”

S 5 and s 6 (1) and 6(2) of the Tenure Act set out the rights of occupiers in

respect of the use of land. These sections provide as follows:

“5. Fundamental rights

Subject to limitations which are reasonable and justifiable in an

open and democratic society based on human dignity, equality and

freedom, an occupier, an owner and a person in charge shall have

the right to –

(a) human dignity;

(b) freedom and security of the person;

c) privacy;

(d) freedom of religion, belief and opinion and of expression;

(e) freedom of association; and

(f) freedom of movement,

with due regard to the objects of the Constitution and this Act.

6. Rights and duties of occupiers

1. Subject to the provisions of this Act, an occupier shall have

the right to reside on and use the land on which he or she

resided and which he or she used on or after 4 February

1997, and to have access to such services as had been

agreed upon with the owner or person in charge, whether

expressly or tacitly.

2. Without prejudice to the generality of the provisions of

section 5 and subsection (1), and balanced with the rights of

the owner or person in charge, an occupier shall have the

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right –

a) to security of tenure;

b) to receive bona fide visitors at reasonable times and

for reasonable periods…;

c) to receive postal or other communication;

d) to family life in accordance with the culture of that

family…;

e) not to be denied or deprived of access to water; and

f) not to be denied or deprived of access to educational

or health services.

Mr. Plasket submitted that it was clear from the provisions of s 6 (2) in particular

that the right to the use of land afforded an occupier is not an openended,

unlimited or unfettered right. He referred in this regard to Serole and another v

Pienaar [1999] 1 All SA 562 (LCC) at 569H – 570C; 2000 (1) SA 328 (LCC) at

335 D – G where the following was stated:

“S 6 (2) sets out some instances of use. All of them relate to the

occupation of the land, and do not bear upon the land itself… Although all

the specific instances of use in s 6 (2) are set out ‘without prejudice to the

generality’ of the provisions of s 5 and 6 (1), they still serve as an

illustration of what kind of use the legislature had in mind when granting to

occupiers the right to ‘use the land’ on which they reside… A Court will

not interpret a statute in a manner which will permit rights granted to a

person under that statute to intrude upon the commonlaw rights of

another, unless it is clear that such intrusion was intended.”

I respectfully agree.

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I would refer also to Nkosi and another v Bührmann supra at 389 E – G where

the decision in Serole’s case was approved. At 388 A Howie J.A. stated:

“As far as s 6 (1) is concerned, it confers the rights of residence, ‘use’ and

services, subject to the owner’s consent or agreement”,

and, at 388 E the learned Judge stated further that:

“the land use intended is use in association with the right of residence.”

The right of an occupier of a farm to use the land by grazing livestock thereon is

a right of a very different nature to those rights specified in s 6 (2). In my view

such use was clearly not the kind of use contemplated by the legislature when

granting to occupiers the right to use the land on which they reside. Such a right

would obviously intrude upon the commonlaw rights of the farm owner and

would, in my view, thereby amount to an arbitrary deprivation of the owner’s

property. There is no clear indication in the Tenure Act that such an intrusion

was intended. It is relevant in this regard that respondent is neither an employee

nor a labour tenant as defined by s 1 of the Land Reform (Labour Tenants) Act 3

of 1996. His right, if any, to graze stock on the farm does not derive from that

Act. In my view the use of land for purposes of grazing stock is preeminently a

use which would be impossible to regulate in the absence of agreement between

the parties. I am satisfied in all the circumstances that an occupier is not entitled

as of right to keep livestock on the farm occupied by him as an adjunct of his

right of residence. His entitlement to do so is dependant on the prior consent of

the owner of the property having been obtained. Accordingly Mr. Kincaid’s

submissions in this regard cannot be sustained.

Mr. Kincaid’s further submission was that the agreement, annexure D, was in any

8

event vitiated by duress or undue influence.

In considering the validity of that agreement it is necessary to set out in some

detail the background to this matter.

Applicant entered into negotiations to purchase Riverside farm from the then

owner thereof, one Steyn, during 1999. The property was eventually transferred

to applicant during February 2000. Respondent was employed as a shepherd on

the farm by Steyn and he and his family had been resident on the farm for some

considerable period of time. According to applicant, respondent had resided

there for approximately 10 years whereas, according to respondent, he had been

resident and employed on the farm for approximately 29 years. Nothing,

however, turns on this issue.

It is common cause that during 1998 the aforesaid Steyn had threatened to evict

respondent from the farm. This had led to certain negotiations between Steyn

and respondent at which, inter alia, the police and representatives of two non

governmental organisations known respectively as Tralso and the Land and

Housing Support Centre were present. Arising out of these negotiations an

agreement (annexure C1) was entered into on 20 November 1998 between

Steyn and respondent, the relevant portion of which reads as follows:

“All areas of disputes were put in (sic) the table and discussed

substantially and the following issues were agreed on.

That a negotiated settlement on the issues of livestock of the farm worker

will be discussed possible (sic) before the 16/12/98 and within those

negotiations D.L.A., Labour Dept and the farmer’s legal representative will

be invited.

9

Meanwhile the farmer, Mr. N.J. Steyn will pay the farm woker (sic), Mr.

Swartbooi on the 26/11/98 to November but less 11 days.

At the moment the two parties, the farmer and the farm worker, live a

happy relationship.

All parties here have committed themselves to this process.”

Applicant avers that on 2 December 1998, the negotiated settlement

contemplated in annexure C1 was entered into between Steyn and respondent

which agreement (annexure C2) provides:

“Bokke almal weg na kersfees

Perde 1 los (bly) res weg na kersfees

Beeste 4 sal bly res weg na kersfees

Skaap 8 sal bly res weg na kersfees

Begin weer betaal en kos gee wanneer vee weg is.

Geen betaling tot vee op getal is.

40 kg meel gee ek vandag”

The sole member of applicant, one Ib Hansen, who is resident in Denmark,

deposed to the founding affidavit on behalf of applicant and stated therein that

during his negotiations with Steyn concerning the purchase of Riverside farm in

1999 he had become aware of some existing animosity between Steyn and

respondent. This animosity apparently arose out of the number of livestock

10

which respondent had on the farm at the time, a number which Hansen

established as being approximately 200 “units”, one sheep being equivalent to

one unit.

According to Hansen he made it clear to Steyn that he would not purchase the

farm unless an agreement could be reached concerning a drastically reduced

number of livestock which respondent could have on the farm. He then entered

into what he termed as being “almost endless negotiations at five or six different

times” with respondent. During the course of these negotiations respondent was

at all times assisted by advisers from, inter alia, the Barkly East Advice Office.

Eventually, during September 1999, an agreement was reached between

applicant and respondent which agreement was reduced to writing and signed by

Hansen and by respondent (by the affixation of his thumb print) in the presence

of two of respondent’s advisers who signed as witnesses representing

respondent, namely Mbulelo Mafilika of the Barkly East Advice Office and

Mzoxolo Ncise of the Land and Housing Support Centre.

The relevant portion of this agreement (annexure D) reads as follows:

“And whereas the said Margre Holdings CC will be the new owner of the

farm Riverside, the above parties now agree to the following:

1. N. Swartbooi Jewula and his family, consisting out of 13 members

can stay on the farm as long as he wishes;

2. N. Swartbooi Jewula will, on or before 30 October 1999, reduce his

stock to 80 units. The following will be counted as an unit:

A sheep or goat will be counted as ONE UNIT

A horse will be counted as TEN UNITS

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A cow will be counted as SIX UNITS

N. Swartbooi Jewula may use his 80 units as he wishes.”

Hansen states that he was, at the time, under the impression that the potential

maximum carrying capacity of the farm was 400 units. It appears from the

affidavit of one Hardie, a farmer in the Barkly East district since 1965 and a

member of the Soil Conservation Committee from 1978 until its dissolution in

1999, that, in his opinion, the carrying capacity of Riverside farm is 74 large stock

units or 444 small stock units.

Despite having signed the agreement respondent failed to reduce the numbers of

his livestock in accordance therewith. Because of this, further negotiations took

place in consequence whereof applicant agreed, against payment of a fee of 2

sheep, to allow respondent to keep his extra livestock on Riverside farm until 1

January 2000.

On 17 March 2000 Hansen visited the farm from Denmark, only to discover that

respondent was now running 178 units of livestock thereon. Respondent told

Hansen that he was not prepared to make any further reductions, a standpoint

which he reiterated to Hansen during a further meeting in June 2000.

Hansen thereupon addressed a letter to the Barkly East Advice Office for the

specific attention of Mafilika and Ncise. This letter (annexure G) reads as

follows:

“Yesterday Mr. Kobus Schoeman and I had a meeting with Mr. N.S.

Jewula at Riverside farm as it had come to my attention that Mr. Jewula

had not started to reduce his livestock according to the contract of

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11/09/99 and my letter of 07/03/00.

At the meeting Mr. Jewula declared that he had not and would not reduce

his livestock at Riverside farm neither now or later.

I ask you therefore to contact Mr. Jewula and once again explain to him

the consequences if he neglects the contract as described in my letter of

07/03/00.”

I should mention that the letter of 7 March 2000 has not been included in the

papers before me.

No response was received to this letter and Hansen accordingly instructed his

attorney, Mr. Spence, to address a letter of demand to respondent. Spence did

so on 3 November 2000 (annexure H). Respondent was, in terms thereof,

afforded a period of 14 days within which to reduce his livestock to the agreed

amount of 80 units. Respondent reacted to this letter through a certain Mrs.

Janet Liebenberg of the Border Rural Committee (a section 21 Company, not for

profit). Liebenberg requested Spence to stay any Court proceedings pending her

investigation of the matter. She also inquired whether applicant would be

prepared to sell a portion of the farm to respondent, a proposal which applicant

rejected out of hand. On 6 June 2000 negotiations took place between Spence

and, inter alia, Liebenberg which led to a further meeting on 24 June 2000

between Hansen and respondent, the latter again being represented by advisers

from the Land and Housing Support Centre as well as from the East Cape Land

Committee. It was agreed at that meeting that, inter alia, respondent’s livestock

in excess of 80 units would be sold at market value within 4 days thereof but that

should respondent experience difficulty in selling the stock Hansen would

purchase it at market value. The concluding paragraph of the minutes of this

13

meeting (annexure J) read:

“It is hoped that the agreements reached are with commitment, respect

and will restore confidence on the occupier by the owner if implemented

accordingly. It is also hoped that the owner will emerge from here,

understanding the plight of the occupiers of South Africa with regard to

tenure insecurity and the glaring differences in power relations between

the owner and occupiers in farms.”

Respondent, however, failed to comply with his obligations to sell the stock.

Accordingly a further meeting was held on 9 November 2000 at which were

present, Hansen, respondent, Liebenberg and one Mbewu of the East Cape

Land Committee. At this meeting respondent’s right to graze only 80 units of

livestock was confirmed. The relevant portions of this agreement (annexure K)

read as follows:

“After much discussion between the parties the following terms were

agreed to:

1. Mr. Jewula would maintain the following stock levels: 2 horses, 9

cows, 6 goats or sheep, in terms of his 80 units that have been

allocated to him.

2. All additional stock (1 horse, 2 cows and 7 goats) must be sold by

November 16. However, 4 goats will be retained for December

ceremonies and grazing fees of R40 would be paid for this. On 16

November at 3:00pm, a stock count will be held and any stock that

have not been sold, should be sold to Mr. Hansen at a market

related price.

3. To maintain this arrangement and to ensure that lambs and calves

are sold after 6 months, a stock count will be held every 6 months

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i.e. on 1 May 2001 and 1 November 2001. All stock exceeding the

80 units and calves and lambs older than 6 months should be sold

within 14 days. If not, they may be sold to Mr. Hansen for a market

related price.”

Yet again, however, respondent failed to comply with his undertakings in terms of

the agreement. At a further meeting with Hansen on 24 March 2001 he informed

Hansen that he would not respect the contract of 10 September 1999 or, indeed,

any of the later agreements and that he would not reduce his livestock to 80

units.

It is common cause that on 26 June 2001 respondent had 153 units of livestock

on the farm, a fact which was conveyed by applicant’s attorney to Border Rural

Committee which was still representing respondent. This stock was made up as

follows according to annexure M:

“12 Cows at 6 units 72

8 Calves at 3 units 24

12 Goats at 1 unit 12

4 Kids at ,5 unit 2

13 Sheep at 1 unit 13

3 Horses at 10 units 30

TOTAL UNITS 153”

On 23 July 2001 yet another letter (annexure N) was addressed by applicant’s

attorney to Border Rural Committee in which the following was stressed:

“1. Mr. Hansen was aware of the dispute Mr. Jewula had with the

previous owner of the farm Riverside, Mr. N.J. Steyn and for that

15

very reason an agreement was negotiated in terms whereof Mr.

Jewula is allowed to keep 80 stock units on the farm.

2. Mr. Jewula has refused and/or neglected to reduce his stock to and

maintain same at 80 units since the agreement was concluded on

10 September 1999.

3. We have no objection to another meeting but must stress the

utmost importance of your client now complying with the

agreement.”

This letter led to a meeting between applicant’s attorney and one Matilda Smith

of Border Rural Committee at which meeting certain proposals were made on

behalf of respondent by Smith. These proposals, according to Hansen,

amounted to no more than a suggestion that the entire matter be renegotiated

from the beginning. The proposals were accordingly rejected. The proposals

were, however, reiterated in a letter written by Smith to applicant’s attorneys on 4

October 2001 (annexure P) in which Smith stated, inter alia, as follows:

“We requested that the following proposals be put to your client:

1. That Mr. Hansen make the property available for sale to Mr. Jewula

as an “onfarm settlement” of the matter. If Mr. Hansen indicated

that he was willing to investigate this solution, our department

would investigate how it would be able to assist Mr. Jewula in this

purchase. We would thus attempt to resolve the matter in terms of

section 4 of the Extension of Security of Tenure Act, 62 of 1997.

2. That, given the current case law re farm worker agreements, that is

apart from other legal requirements for valid contract, we were of

the opinion that the agreement between placed before us (sic)

would not be favourably regarded by the Land Claims Court. Thus

to ensure that the matter can be resolved within the provisions of

16

the law we suggested that the department of Agriculture do an

assessment of the carrying capacity of Riverside farm, that we do a

Land Rights Enquiry and that a proper agreement then be drawn

up which will not only satisfy all the parties concerned but also

comply with all the requirements of the law.”

On 13 November 2001 Hansen again met respondent at Riverside farm in the

company of the police and representatives from Barkly East Advice Office. It is

common cause that respondent’s livestock now amounted to 226 units made up

as follows:

“25 cows 150

8 calves 8

8 sheep 8

30 goats 30

3 horses 30

TOTAL UNITS 226”

Hansen avers further that applicant has leased the farm to a certain Kobus

Schoeman at an agreed rental of R20 000 per annum in terms whereof

Schoeman is entitled to graze 320 units of stock thereon. This figure was

apparently arrived at bearing in mind the 80 units to which respondent was

entitled in terms of annexure D and what Hansen considered the carrying

capacity of the farm to be, namely 400 units. Hansen avers that because

respondent was grazing 226 units of stock the rights of Schoeman, as lessee,

were adversely affected and states that he is concerned that Schoeman may

decide to terminate the lease agreement. Schoeman himself confirms this in an

affidavit, stating that the number of livestock which he can graze on the farm is

reduced in direct proportion to the number of excess livestock respondent has on

17

the farm.

In his answering affidavit respondent avers that his tenure during the period that

Steyn was the owner of Riverside was tenuous at best and that he endured in

great measure, a degree of exploitation especially inasmuch as he received a

meagre salary and was, from time to time, obliged by Steyn to sell off stock to

Steyn at a price well below the market value thereof. He states that he signed

the two agreements with Steyn (annexures C1 and C2) whilst under duress and

the threat of eviction at a time when Steyn had withheld both his salary and his

rations and had reported him to the police, Steyn’s complaint being that

respondent had allowed his stock numbers “to increase to more than twenty

sheep.”

He admits that on 20 September 1999 he affixed his thumb print to the

agreement, annexure D. He states, however, that he is “an elderly illiterate and

uneducated shepherd from the remote rural areas of Mount Fletcher” with no

grasp of the law or understanding of the terminology and language used in the

agreement. He states in this regard that he has “no idea of what a unit is or why

a horse and a cow should constitute a greater number of units than a sheep or

goat.” He avers further that it was his understanding, gleaned from discussions

with his advisers and Hansen that the agreement would be effective for a very

short period of time, the true purpose for the stock reduction being applicant’s

expressed desire to rehabilitate the farm and to allow it to recover from the

effects of overgrazing. According to respondent he understood the agreement

to be effective for only as long as it took for this to occur. Mollified by this, so he

says, but under duress and pressure placed on him by applicant, he assented to

the terms of the agreement.

He states further that the terms of the agreement (annexure D) have in any event

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been varied by later agreements between the parties as is evidenced by

annexures J and K.

He does not deal at all in his affidavit with the averments by Hansen concerning

the various events and negotiations which occurred between April 2000 and

November 2001 which I have detailed above other than to admit his reluctance to

reduce his stock and to state that he has not yet had sight of the content of the

various annexures and therefore prefers not to comment thereon. He does not,

however, seek in any way to deny the allegations which were made therein.

With regard to the allegations made by Schoeman he states merely that these

allegations are “bald and general.” He denies that the increased number of stock

grazed by him on the farm have impacted on the “ability’ of Schoeman to graze

his own livestock thereon and states that the number of units of livestock

previously grazed by Steyn was far in excess of the number which Schoeman

intends grazing. As to the carrying capacity of Riverside farm he states that he

admits neither the expertise nor the opinion of Hardie in this regard. He does

not, however, state what, in his opinion, he considers the carrying capacity of the

farm to be nor does he state how many units of livestock he considers he should

be entitled to graze thereon.

An affidavit by the aforementioned Mzoxolo Ncise who witnessed the signing of

the agreement (Annexure D) was filed in support of respondent’s averments in

that regard. According to Ncise, Hansen had informed him prior to 10 September

1999 that he intended to develop Riverside farm as a tourist destination and that

he therefore wished to regenerate the flora on the farm which had been affected

by overgrazing. He therefore requested that respondent reduce the number of

livestock maintained by him on the farm. Ncise states that he, Mafilika and

Mbewu then “brought pressure to bear” on respondent as they were conscious of

19

the benefits occurring from foreign investment which applicant would bring to the

area. He concludes by stating that:

“I can confirm from my understanding of the discussions prior to signature

of the agreement that the reduction of stock was not permanent and that it

would endure for the period in which veld rehabilitation took place. I am

not legally trained and in the circumstances the omission of this term in

the agreement did not have significance for me.”

In reply to these averments applicant filed affidavits by the aforementioned Steyn

as well as by one Johanna Buys. In his affidavit Steyn confirms the averments

made by Hansen in his founding affidavit. He states that at the time that the

agreement (annexure C1) was entered into respondent was represented by

various advisers from Tralso and the Land and Housing Support Centre. The

main spokesperson for respondent was Mbewu. He denies that any duress

whatsoever had been brought to bear upon respondent. With regard to the

agreement (annexure C2) he said that the terms thereof were written out by

himself on 2 December 1998 after respondent had approached him together with

another worker who acted as an interpreter. Respondent freely and voluntarily

signed the agreement. According to Steyn the agreement (annexure C2)

permitted respondent to have 42 units of stock on the farm. Anything in excess

of 42 units of livestock was, in his opinion, extremely generous.

In her affidavit Buys stated that she is employed as a professional assistant by

applicant’s attorney. She was present at the time that the agreement (annexure

D) was signed by the parties and the witnesses. She stated that she is fluent in

the Xhosa language and that she explained the terms of the agreement to

respondent and to his advisers Mafilika and Ncise. At no stage did she ever

convey to them that the agreement was to be of application for only a limited

20

period nor did Hansen do so. After the parties had reached consensus as to the

terms and conditions of the agreement the respondent’s advisers left the office

stating that they were going to telephone Mbewu of the Border Rural Committee.

On their return to the office respondent agreed to sign the document.

As will be apparent from the above exposition of the averments in the various

affidavits there is a dispute of fact between the parties as to whether the

agreement, annexure D, was entered into voluntarily or not by respondent.

In Administrator, Transvaal, and others v Theletsane and others 1991 (2) SA 192

the following was stated at 197 A – D:

“[I]n motion proceedings, as a general rule, decisions of fact cannot

properly be founded on a consideration of the probabilities, unless the

Court is satisfied that there is no real and genuine dispute on the facts in

question, or that the one party’s allegations are so farfetched or clearly

untenable as to warrant their rejection merely on the papers, or that viva

voce evidence would not disturb the balance of probabilities appearing

from the affidavits. This rule, which is trite, applies to instances of disputes

of fact (see eg Sewmungal and Another N.N.O v Regent Cinema 1977 1)

SA 814 (N) at 818 G – 821 G and the authorities discussed there) and

also in cases where an applicant seeks to obtain final relief on the basis of

the undisputed facts together with the facts contained in the respondent’s

affidavits (see PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd

1984 (3) SA 623 (A) at 634 E – 635 C and the authorities cited there).”

For the reasons which follow I am of the view not only that there is no real and

genuine dispute on the issue on the voluntariness of the agreement, annexure D,

but also that respondent’s averments which give rise to the alleged dispute are

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clearly untenable. I am satisfied too that viva voce evidence would not disturb

the probabilities appearing from the affidavits.

I am of the view that in the circumstances of this case where it is common cause

that the negotiations between Hansen and respondent were entered into entirely

independently of Steyn and without reference to the provisions of the

agreements, annexures C1 and C2, those agreements are of no relevance to the

determination of this issue. I should mention, however, that the agreement,

annexure C2, is, in my view, very far from being the negotiated settlement

referred to in the agreement, annexure C1. In terms of C1 the “D.L.A, Labour

Dept and the farmer’s legal representative” would be invited to the further

negotiations. No such representatives were present on 2 December 1998 when

the agreement, annexure C2, was entered into. Furthermore, the references in

annexure C2 to the withholding of salary and rations are startling to say the least.

The “agreement” constitutes, in my view, a striking illustration of the historically

entrenched power imbalances which the Tenure Act seeks to redress. It does

not, however, in my view, affect the validity of annexure D in any way. Applicant

does not seek to rely upon it in order to justify the number of units of livestock

referred to in annexure D. Nor does respondent, in seeking to impugn the

validity of annexure D, rely upon its invalidity other than as an illustration of the

exploitation visited upon him in the past. He does not aver that the figure of 80

units of livestock referred to in annexure D was in any way influenced by the

terms of annexure C2. He also does not allege that, prior to agreement being

reached per annexure D he had acquired any right to graze a number of livestock

in excess of 80 units on the farm. It is clear, in my view, that when Hansen and

respondent commenced negotiations they did so with a clean slate.

It appears from the averments made by Hansen, which are not disputed by

respondent, that the negotiations which were entered into between himself and

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respondent, were very extensive and that the latter was at all times represented

by advisers from the Barkly East Advice Office as well as from the Land and

Housing Support Centre. Whilst it must be accepted, as stated by Ncise, that

members of these organisations are not necessarily legally trained, it must also,

in my view, be accepted that they are well versed in land matters such as the

present otherwise, presumably, they would not hold themselves out as advisers

to persons such as respondent. I am therefore satisfied that the playing fields

had been leveled insofar as the existence of any previous power imbalances is

concerned. The averment contained in a letter (annexure O) addressed by

applicant’s attorney to one of respondent’s advisers, a certain Majeke, who was

apparently employed by the Department of Land Affairs, to the effect that all

those who advised respondent prior to the signing of annexure D were agreed

that the offer to respondent was “extraordinarily good” has not been denied.

Furthermore, the agreement, annexure D, thereafter came under the scrutiny of

yet other advisers from, inter alia, such well respected nongovernmental

organisations as the East Cape Land Committee and the Border Rural

Committee. (See annexures J and K). As is apparent from the minutes

contained in annexures J and K it was agreed by all concerned not only that the

agreement, annexure D, had to be adhered to by respondent, but also that he

would dispose of his excess stock within four days of each meeting. What is

immediately striking is that at no stage during the numerous negotiations

subsequent to the signing of annexure D did respondent inform his advisers of

the fact that he had allegedly signed the agreement under duress, or pressure, or

in consequence of any undue influence having been brought to bear upon him by

Hansen or any other person, or that his understanding of the agreement was that

it would be of a limited duration only.

Even when he eventually received the assistance of Matilda Smith, who, as is

evidenced by the extract of her letter (annexure P) cited above, was of the view

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that the agreement would not be favourably regarded by the Land Claims Court,

he failed to inform her of these facts. It was only when he attested to his affidavit

nearly three years after having signed the agreement, that he raised these

averments for the first time. If these averments are correct then, it is in my view,

utterly improbable that he would not have raised these matters with his advisers

at the time that the meetings referred to in annexures J and K took place.

Furthermore, his assertion of duress and pressure is stated in the baldest of

terms and is not sufficient to raise a genuine dispute of fact. He states:

“Under the duress and pressure placed on me by the applicant to reduce

stock and to sign the agreement but mollified by the assertion that the

agreement was of a limited duration I assented to the terms thereof.”

There is, in his affidavit, no hint as to when or how such duress and pressure

was brought to bear upon him nor as to how or why it should have induced him to

enter into the contract. He does not state that Ncise or Mafilika pressurised him,

although this appears to be the import of Ncise’s affidavit where the latter states:

“In bringing pressure to bear on the respondent myself, Mafilika and

Mbewu considered the benefits accruing from foreign investment which

Hansen and the applicant would bring to the area.”

In any event, even were it to be accepted that Ncise in some way unduly

influenced or pressurised respondent this fact is of no assistance to respondent.

As stated by Christie; Law of Contract 4th Ed, at page 361, undue influence

brought to bear by a third party does not give the party influenced a right to

rescind unless the other party was aware at the time the contract was made that

undue influence had been exercised. No such averment is made by respondent.

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In my view also, respondent’s averments concerning his lack of understanding of

the terms of the agreement do not bear scrutiny. With reference to his lack of

education and sophistication he states that he had no understanding of the

terminology or language used therein. Suffice to say that the agreement is

couched in the most simple and clear terms which bear repeating here:

“N. Swartbooi Jewula will, on or before 30 October 1999, reduces (sic) his

stock to 80 units. The following will be counted as a unit:

A sheep or goat will be counted as ONE unit

A one horse will be counted as TEN units

One cow will be counted as SIX units.

N. Swartbooi Jewula may use his 80 units as he wishes.”

It is difficult to appreciate what there is about the wording of this agreement that

respondent did or could not understand, especially bearing in mind that he was at

all times assisted by advisers and that the agreement was translated to him.

Respondent avers further that he has “no idea of what a unit is.” This averment

overlooks the fact that the agreement spells out clearly precisely what constituted

a unit.

Respondent states that he has no idea why “a horse or cow should constitute a

greater number of units than a sheep or goat.” This assertion, emanating as it

does from a man who has been a lifelong shepherd, can only be described as

disingenuous.

Having stated that he did not understand the agreement respondent then states,

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in virtually the same breath, that his understanding was that the requisite stock

reduction had to be undertaken for a limited period only in order to allow the farm

to rehabilitate itself. It is apparent from this averment that he must have

understood the terms of the agreement. That he did fully understand the terms

thereof is also apparent from the fact that he agreed to pay 2 sheep as a “fee” for

not having reduced his stock in accordance therewith. Furthermore, Ncise’s

vague and improbable averments concerning his understanding of the

discussions are categorically denied by Buys.

In my view, the averments by respondent of duress and undue pressure are

clearly untenable and the probabilities are overwhelmingly to the effect that he

well understood the terms and import of the agreement, annexure D, and that he

entered into such agreement voluntarily and without any duress or undue

influence having been brought to bear upon him. Thereafter he has acted with a

cavalier disregard for the constitutional rights of applicant.

In all the circumstances I am satisfied that the relief sought by applicant in terms

of paragraph 1.1 of the Notice of Motion does not constitute an eviction within the

meaning of that term in the Tenure Act and that this Court accordingly has the

requisite jurisdiction to grant such order.

Mr. Kincaid submitted finally that an order for specific performance would

occasion unreasonable hardship to respondent. In this regard he drew to his aid

the well known case of Haynes v King William’s Town Municipality 1951 (2) SA

371 (A) where, at 378 H – 379 A, De Villiers AJA stated that a degree of specific

performance would not be granted where, inter alia:

“[I]t would operate unreasonably hardly on the defendant, or where the

agreement giving raise to the claims is unreasonable, or where the decree

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would produce injustice or would be inequitable under all the

circumstances.”

The immediate problem confronting respondent in this regard is that nowhere in

his answering affidavit does he specifically allege what undue hardship he would

suffer should the order be granted. It must obviously be accepted that the

income derived by him from 80 units of livestock would be less than that derived

from an amount in excess thereof but this does not constitute an unreasonable

hardship in the circumstances of this case. Respondent has, in my view, failed to

raise any grounds justifying the exercise of the Court’s discretion to refuse to

grant the order sought. On the contrary, it is abundantly clear that his present

use of the land constitutes a massive intrusion upon applicant’s commonlaw

property rights. Accepting Hardie’s evidence as to the carrying capacity of the

farm (in respect of which respondent offered only a bare denial) it is apparent

that the number of respondent’s livestock at present grazing on the farm amounts

to approximately half such capacity. This obviously impacts extremely negatively

on the ability of applicant to comply with its contractual obligations visàvis

Schoeman. In my view, therefore, applicant is entitled to the relief sought in

paragraph 1.1 of the Notice of Motion.

I turn to consider the question of costs.

The application was served upon respondent on 15 May 2002. For various

reasons, which it is not necessary to detail here, but which relate in the main to

difficulties experienced by respondent’s attorneys in arranging a consultation with

counsel (not Mr. Kincaid) and respondent at a time suitable for all, a consultation

with respondent was eventually only held on 9 July 2002, the matter at that time

having already being set down for hearing on 8 August 2002. For some reason

which is entirely unexplained by respondent his answering affidavits were

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thereafter only delivered to applicant’s attorneys on 7 August 2002 and handed

into Court on 8 August 2002, the day of the hearing. This necessitated the

postponement of the matter to 22 August 2002. Mr. Kincaid did not seriously

contend in these circumstances that respondent was not liable for the wasted

costs occasioned by that postponement.

He submitted, however, with regard to the remaining costs, that inasmuch as this

matter involved the application of social legislation and inasmuch as applicant

has abandoned the relief sought by it in paragraph 1.2 it would be equitable to

order each party to pay their own costs.

In my view, in the light of the abandonment by applicant of the relief originally

sought by it in paragraph 1.2 of the Notice of Motion, respondent is entitled to

such costs as were occasioned by his opposition to such relief. There is,

however, in my view no good reason in the particular circumstances of this case

why applicant should be deprived of its remaining costs especially where I have

specifically found that the social legislation referred to does not apply to the

matter. Furthermore, respondent’s cavalier approach to applicant’s rights and his

refusal to comply with the various agreements to which he was party, do not

justify an order that each party pay their own costs.

The following order will therefore issue:

1.1 The respondent is hereby ordered to decrease his livestock, presently

kept by him on applicant’s farm Riverside, Barkly East, to 80 units, in

accordance with the written agreement (annexure D) entered into between

the parties on 10 September 1999.

1.2 Such decrease is to be effected by respondent within 30 days of the date

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of this order.

2.1 The applicant is ordered to pay such of respondent’s costs as were

occasioned by respondent’s opposition to the relief sought in paragraph

1.2 of the Notice of Motion.

2.2 Respondent is ordered to pay the remaining costs of the application

including the wasted costs occasioned by the postponement of the

application on 8 August 2002.

_______________ J.D. PICKERINGJUDGE OF THE HIGH COURT

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IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE … · CASE NO: 546/2002 In the matter between...

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