IN THE LAND CLAIMS COURT OF SOUTH AFRICA CASE NO by rLUa144Z

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									      IN THE LAND CLAIMS COURT OF SOUTH AFRICA
                                       CASE NO. LCC 76 / 05

In the matter between:


AMFARMS REALISATION COMPANY LIMITED       First Applicant
ANGLO AMERICAN FARMS LIMITED             Second Applicant
BOSCHENDAL (PTY) LIMITED                         Third
Applicant

and

MAMALAYIKHO HONTYI                       First Respondent
LINDELE MATEBESE                         Second Respondent
NKOSINCEDILE VIKILAHLE                   Third Respondent
DYAKOPHU NTUSE                              Fourth Respondent

                                        CASE NO. LCC 77 / 05
In the matter between:

ANGLO AMERICAN FARMS LIMITED              First Applicant
ALLEË BLEUE (PROPRIETARY) LIMITED         Second Applicant

and

DANIE CLAASEN                            First Respondent
MAGDELENE SIMONS                           Second Respondent
JOHANNA GEORGE                           Third Respondent
PATRICIA ZUKULU                             Fourth Respondent
LENA CLAASEN                             Fifth Respondent

                                      CASE NO. LCC 78 / 05
In the matter between:

ANGLO AMERICAN FARMS LIMITED              First Applicant
RHODES FOOD GROUP (PTY) LIMITED          Second Applicant

and

NOSISILE JOSEPHINA LUFEFE                      Respondent
                                        2

                                               CASE NO. LCC 79 / 05
In the matter between:

ANGLO AMERICAN FARMS LIMITED                    First Applicant
BOSCHENDAL LIMITED                                     Second
Applicant

and

MOOS WILLIAMS                                          First
Respondent
FREDERICK OOSTHUIZEN                            Second Respondent
KOOS DE JAGER                                   Third Respondent

                                               CASE NO. LCC 80 / 05

In the matter between:

ANGLO AMERICAN FARMS LIMITED                 First Applicant
KOVACS INVESTMENTS 554 (PROPRIETARY) LIMITED Second Applicant

and

KLAAS KLAASE                                    Respondent

                                              CASE NO. LCC 101 / 05
In the matter between:

MXOLOSI MOSES MFAZO                                    First
Applicant
LUNGILE SIBANGA                                 Second Applicant
MAYOYI XUZA                                     Third Applicant
VUKILE HEM                                      Fourth Applicant

and

AMFARMS REALISATION COMPANY LIMITED             First Respondent
ANGLO AMERICAN FARMS LIMITED                    Second Respondent
BOSCHENDAL (PTY) LTD                             Third Respondent



JUDGMENT:                20 JUNE 2007


MEER, J
                                                        3



[1]        The Applicants apply for leave to appeal to the Supreme Court of
Appeal against two judgments of this court handed down on 11 October
2006 and 15 December 2006 as well as an order by agreement granted on 4
December 20061. Respondents oppose the application.


Application for condonation.
[2] The Applicants also seek condonation for the late filing of the
application for leave to appeal. The affidavit of Korabie is the only affidavit
in support of the condonation application. In essence it cites financial
constraints and difficulties in obtaining legal representation as reasons for
the lateness, but without proffering adequate explanations. The delay in the
bringing of this application for leave to appeal is correctly characterised by
respondents as gross - seven months after the time for the first eviction
order, some five months after the time in respect of the second order and
some four and a half months after the time in respect of the third order.
Respondent’s contention that it can be easily inferred from Applicant’s
conduct that the current application is just a delaying tactic is understandable
in the light of Applicant’s relative inactivity over much of these periods.

[3] It is trite that a court in exercising its discretion to grant condonation,
will consider all facts, including the degree of non-compliance, the
Applicants’ explanation for it, the Applicants’ prospects of success in the
intended proceedings and the potential prejudice to each party. See Melane v
Santam Insurance Company Ltd 1962(4) SA 531(A) at 532(C-D).


[4] The explanations presented in Mr Korabie’s affidavit are wholly
inadequate. The affidavit moreover does not deal with Applicants’ prospects
of success in their application, the importance of the matter or the respective
prejudice to both parties. I am of the view for the reasons set out below, that

1
    In the cases of the first, third, fourth and fifth Applicants in LCC77/05, the first to third Applicants in
                                            4


in relation to the merits of the application for leave to appeal, the Applicants
have no prospects of succeeding in such application. I note also that the
application for leave to appeal is incompetent in respect of some of the
applicants and I pause here to deal with this aspect before dealing with the
merits of the application.


Application for leave to appeal is incompetent in respect of some of the
applicants.
[5] As was correctly submitted by Mr Breitenbach, the application for
leave to appeal is incompetent in respect of the following Applicants on
behalf of whom the application is lodged. These are:
       5.1 Mr N Vikilahle, the third Applicant in LCC 76/05, who by the
        time the application for leave to appeal was served on 1 June 2007,
        had already been evicted some weeks previously on 15 May 2007 in
        accordance with the eviction order granted in respect of him. There
        was accordingly nothing against which Mr Vikilahle could appeal and
        the application in respect of him falls to be dismissed. See Tzouras SA
        Wimpy Ltd 1978(3) SA 204 (W);
5.2 Ms N J Lufefe, the applicant in LCC 78/05 against whom no order of
eviction was made and in respect of whom the application for leave to
appeal falls to be dismissed for this reason;

        5.3     The Applicants in respect of whom an order of eviction was
        made by agreement namely the first, third, fourth and fifth applicants
        in LCC 77/05, the first to third applicants in LCC 79/05 and the
        Applicant in LCC 80/05. Such order by agreement between the parties
        was made on the first day of the hearing of their cases on 4 December
        2006. No appeal against the order is accordingly competent in the

LCC 79/05 and the Applicant in LCC 80/05.
                                     5


      circumstances and the application, in so far as it relates to these
      Applicants, also falls to be dismissed. See Gentivuco AG v Firestone
      SA (Pty) Ltd 1972(1) SA 589 A at 600A; Dabner v SA Railways &
      Harbours 1920 AD 583 at 594


Grounds for Leave to Appeal and their Merits
      Jurisdiction
[6]   Applicants contend that this Court was precluded from hearing the
applications for the eviction of the Applicants because of an arbitration
clause in the constitution of the Lanquedoc Housing Authority (“LHA”) to
which both Applicants and Respondents are alleged to have belonged. The
Court was further precluded by a clause in the Lanquedoc Funding and
Management Agreement which provides for alternative dispute resolution.
Only once an arbitration award was made in favour of the Respondents, so
the argument went, could it have proceeded to court to get relief.


[7]   There is no merit in these submissions. The arbitration clause in the
LHA constitution and the dispute resolution provisions in the funding
agreement are inapplicable to the rights that were at stake in the eviction
proceedings. The arbitration clause applies to disputes between the LHA and
its members whilst the eviction proceedings involved disputes between
Respondents as land owners and persons in charge of land and the
Applicants as occupiers thereon. Similarly the dispute resolution provisions
in the Funding Agreement apply to disputes between parties to that
agreement which the Applicants are not.


[8]   In any event and importantly Section 25 of the Extension of Security
                                     6


of Tenure Act No. 67 of 1997 (“the Act”) prevents parties who are subject to
its rights and obligations from validly contracting out of the Act, as is
suggested by Applicant, has occurred through the clauses in question.
Sections 9(1) and 17(1) and (2) of the Act moreover preclude an arbitrator
from adjudicating proceedings for the evictions of occupiers. Significantly,
also, none of the applicants objected to the jurisdiction of this Court in the
papers filed by them – an objection which must be taken before litis
contestation. See Commercial Union Assurance Company Ltd v Waymack
NO 1995(2) SA 73 (TK) at 80D-81A.


Locus Standi


[9]   The Applicants contend that Respondents had no locus standi to bring
the eviction applications, as, by agreement between Anglo American Farms
and all the entities involved in the Lanquedoc Housing Project(“LHP’) all
rights and obligations under the LHP had been ceded to Amfarms
Realisation Company Ltd (“Realisation”).


[10] This argument cannot be sustained for, Respondents’ standing
stemmed from their capacity as former employer, landowner and persons in
charge of the land in terms of the Act. They did not exercise their rights to
bring eviction proceedings under the LHP as is submitted by Applicant.
Applicants moreover did not object to Respondents’ locus standi in their
pleadings and cannot subsequently raise such an objection. I note moreover
the contention by Respondents that there has in fact been no cession of rights
by Respondents to Amfarms Realisation Company Ltd and moreover that
such company is in fact already a party in the proceedings under case no.
                                     7


LCC 76/05 and LCC 101/05.


Non Compliance with Land Claims Court Rules
[11] Applicants contend there has been no compliance with Rule 8 of the
Land Claims Court Rules in that Respondents erstwhile attorneys, had no
mandate to represent them on 4 December 2006. The agreement negotiated
and entered into on that date where Van Vught attorneys represented the
various Applicants is void ab origine on account of his lack of mandate.
Rule 8 merely provides a procedure to be followed by an attorney who
withdraws and the reliance on the rule within the context that Applicant
does, is misconstrued. It was quite clear to everyone present at the court
proceedings on 4 December 2006 (and this includes the presiding Judges)
that Van Vught Attorneys continued to represent all the Respondents who
agreed to the second eviction order until after the agreement concluded had
been made an order of court on 4 December 2006. I add also that the set
down of the cases for 4-7 December 2006 occurred under my direction at a
pre-trial conference held in August 2006.

[12] Applicants contend in addition that the conference held on 4
December 2006 was in contravention of Land Claims Court Rule 30. There
is absolutely no merit in this submission whatsoever. Rule 30 provides the
presiding Judge with a wide discretion in relation to the convening of such
pre-trial conferences with the absence of the formalities referred to in the
Rule where appropriate. We exercised our discretion to convene precisely
such a conference.


[13] Another rule Applicants contend was not complied with is Rule 31 in
that notices of an offer to settle were not received and they were not afforded
24 hours to consider the settlement. Rule 31 had no application to the
settlement agreement. The Rule provides a mechanism for litigants to use if
they wish to make a settlement proposal, to put their opponents on risk for
                                    8


costs if they do not accept the proposal and then obtain less relief from the
court. All settlement offers do not have to be made in terms of Rule 31. It
was on the contrary Rule 62 which was applicable to the settlement
agreement in this matter and that Rule was fully complied with.


Applicants’ Tenure not properly evaluated
[14] Applicants contend that the tenure already secured by them was not
properly evaluated, especially in respect of Applicants with a Tenure of
more than 30 years or over the age of 60.   There is absolutely no merit in
this submission. Both judgments carefully evaluated the tenure of Applicants
and concluded that a clear case for the eviction of Applicants had been made
out notwithstanding their tenure.


Failure to prove Agreements
[15] The final ground of appeal is that the Respondents failed to prove the
agreements in respect of which the Court found the Applicants to be in
breach, in compliance with Section 10 of the Act. As is evident from the
judgments most of the long term occupiers admitted the agreements that they
had concluded with Respondents regarding their continued occupation and,
in respect of those who did not, oral testimony was led which established the
existence of the agreements.


[16] In view of my finding that Applicants have no prospects of succeeding
in the application on the merits, and moreover in the light of the degree of
non compliance with the time limits for lodging an application for leave to
appeal and inadequate explanations therefore, the application for
condonation is refused. The application for leave to appeal is also refused.
                                      9




Application to Strike Out
[17] Respondents applied to strike out various paragraphs in the affidavit
of Duncan Korabie filed in support of the application. The basis of the
application to strike is that the portions of the affidavit referred to contain
inadmissible hearsay evidence. Two affidavits handed in to court today by
the son of the Second Applicant under case no. 79/2005 and the First
Applicant in case no. 79/05 attempt to cure the hearsay but do not. There is
no application to have the affidavit admitted in terms of Section 3(1)(c) of
the Law of Evidence Amendment Act 45 of 1988, and it has not been
argued on behalf of Applicants that it is in the interests of justice that it be
admitted. Nor, I note, were the allegations on behalf of Respondents, that
the affidavit of Korabie contains falsehoods, refuted. I am satisfied that the
circumstances warrant the striking of the evidence objected to as sought.
See: Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail
and Others (No. 1) 2003(5) SA 518 (C) at 545-7       (not   altered    by   the
Constitutional Court on appeal: see Rail Commuters Action Group and
Others v Transnet Ltd t/a Metrorail and Others 2005(2) SA 359 (CC) at
para 49.)


Application for Costs de Bonis Propriis.
[18] Respondents applied for a punitive costs order de bonis propriis. Mr
Breitenbach drew attention to the fact that Applicants’ attorney Korabie filed
an affidavit comprising almost entirely of hearsay, and containing a number
of falsehoods, which illustrated the dangers inherent in hearsay of this sort.
The entire application he argued, consists of ill-taken legal technical points
based on elementary misconceptions of the rules, the nature of the rights
exercised in the eviction proceedings and a misreading of the papers.
                                    10


[19] There is merit in these submissions. Costs de bonis propriis may be
awarded against an attorney in circumstances where he or she is found to
have acted in an irresponsible, grossly negligent manner, causing prejudice
to the other party, or where his handling of a client’s case is “slack” and
evinces a lack of concern. This is apposite to the reprehensible conduct of
Mr Korabie in this application. See Washaya v Washaya 1990(4) SA 41(ZH)
at 45; Khan v Mzuvuyo Investments (Pty) Ltd 1991(3) SA 47(Tk) at 48.
In the circumstances and notwithstanding the general practice in the Land
Claims Court not to award costs, I am of the view that it would be
appropriate to depart from such practice in this case, and for costs de bonis
propriis to be ordered against Mr Korabie.
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        The following order2 is granted:
        1.       The application for condonation is refused.
        2.       The application to strike out is granted.
        3.       The application for leave to appeal is dismissed with costs, such
                 costs to be paid de bonis propriis by Mr Korabie, the
                 Applicants’ attorney.




                                                                               MEER, J



I agree



                                                                               PIENAAR, AJ




For the Applicants:
Mr D Korabie

For the Respondents:
Adv. A M Breitenbach instructed by Sonnenberg Hoffmann Galombik,
2
  The Order was handed down at the hearing on 20 June 2007, with reasons to follow., as per this
judgment.
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Cape Town.

								
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