REPORTABLE
Case Number  : 177 / 99
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between
BONGINKOSI ELLEN KHUMALO
Appellant
and
J C POTGIETER
Respondent
Composition of the Court :
VIVIER, OLIVIER, SCHUTZ,
ZULMAN JJA and MELUNSKY
AJA
Date of hearing :
15 MARCH 2001
Date of delivery :
26 MARCH 2001
SUMMARY
The High Court has no jurisdiction in the absence of agreement between the
parties to grant an interdict where the relief falls within the ambit of the
Extension of Security of Tenure Act 62 of 1997

J U D G M E N T
OLIVIER JA
[1] In May 1998 the appellant (then the applicant) applied on notice
of motion in the Natal Provincial Division for the following relief against
the respondent :
‘1
That respondent be and is hereby interdicted and
restrained from ejecting applicant or any of her family
members or possessions from the farm Vaalbank,
district of Vryheid;
That respondent be and is hereby interdicted and
restrained from contacting, meeting or in any manner
communicating directly with the applicant personally,
except in the presence of an official or duty member of
the South African Police Services or in circumstances
where the said applicant is represented by a member of
the Department of Land Affairs or their attorney firm
herein;
That respondent be and is hereby interdicted and

restrained from threatening, intimidating or in any
manner interfering or permitting any threats, intimidation
or interference with applicant’s occupation and use of
the farm Vaalbank, district of Vryheid, KwaZulu/Natal.’
[2] The basis of the application was that the appellant, a major
unmarried female, was living on the farm Vaalbank, the property of the
respondent and that the latter had, in various ways, endeavoured to
eject her and her family members from the farm, threatened her and
interfered with her rights of occupation.
[3] In limine the respondent denied that the High Court had
jurisdiction to consider the application.   He relied on the provisions
of the Extension of Security of Tenure Act 62 of 1997 (“the Act”).
The objection was upheld by the Natal Provincial Division, per
Nicholson J, who later granted the appellant leave to appeal to this
Court.

[4] The relevant provisions of the Act are the following:
(a)
‘S 17.   Choice of court.  -  (1)   A party may, subject to the provisions
of sections 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 proceedings consent thereto, pro-
ceedings may be instituted in any division of the High Court within whose area
of jurisdiction the land in question is situate.’   (My emphasis)
(b)
‘S 20.  Land Claims Court.  -  (1)   The Land Claims Court shall have
jurisdiction in terms of this Act throughout the Republic and shall have
all the ancillary powers necessary or reasonably incidental to the
performance of its functions in terms of this Act, including the power -
(a)
to decide any constitutional matter in
relation to this Act;
(b)
to grant interlocutory orders, declaratory
orders and interdicts;
(c)
......
(d)
......
(2)   Subject to sections 17 (2) and 19 (1), the Land

Claims Court shall have the powers set out in subsection (1) to the
exclusion of any court contemplated in section 166 (c), (d) or (e) of
the Constitution.’  (My emphasis)
(Section 19 (1) deals with the jurisdiction of Magistrate’s Courts but
is of no application in the present case.)
[5] It is common cause that
(a)
the High Court is a court contemplated in section 166 (c) of the
Constitution;
(b)
the respondent did not consent to the jurisdiction of the High
Court;
(c)
the appellant was an ‘occupier’ and the respondent an ‘owner’
as envisaged by section 1 of the Act;
(d)
the respondent had given consent to the appellant to reside on
and use the land in question (see section 3);

(e)
the appellant’s claimed entitlement to continued occupation of
a portion of the farm in question is based solely on the Act;
(f)
the farm in question is land to which the Act applies (see
section 2).
[6] From the aforegoing it follows that the appellant’s right of
residence may only be terminated in terms of section 8 of the Act,
which not only requires the termination to be lawful, but also that it be
just and equitable, having regard to a number of factors, inter alia  :
‘(a)
the fairness of any agreement, provision in an
agreement, or provision of law on which the owner or
person in charge relies;
(b)
the conduct of the parties giving rise to the termination;
(c)
the interests of the parties, including the comparative
hardship to the owner or person in charge, the occupier
concerned, and any other occupier if the right of
residence is or is not terminated;
(d)
the existence of a reasonable expectation of the

renewal of the agreement from which the right of
residence arises, after the effluxion of its time;  and
(e)
the fairness of the procedure followed by the owner or
person in charge, including whether or not the occupier
had or should have been granted an effective
opportunity to make representations before the decision
was made to terminate the right of residence.’
[7] It also follows that the limitation placed by section 9 of the Act
on the right of the respondent to evict the appellant from the farm in
question, applies in the present case.   The appellant may be evicted
only in terms of an order of court issued under the Act.   A court’s
right to issue an eviction order is limited and circumscribed by the
provisions of section 9 (2).
[8] That being the position, it would appear that the High Court had
no jurisdiction to entertain the application  :  the respondent had not
consented to its jurisdiction in terms of section 17 (1) and, in terms of

section 20 (2) read with section 20 (1) (b) the Land Claims Court has
exclusive jurisdiction to grant the interdict.
[9] Against this view counsel for the appellant argued :
(a)
The word ‘interdicts’ in section 20 (1) (b) of the Act is not
defined
in the Act itself and cannot be given an unlimited meaning, lest
it become absurd.   The Land Claims Court is a creature of
statute and can only exercise the jurisdiction given to it
expressly or by clear implication by the Act itself.   Section 20
says what that jurisdiction is  :  it has the jurisdiction to
adjudicate on matters where the provisions of the Act are
relevant and it also has
‘ ... all the ancillary powers necessary or reasonably
incidental to the performance of its functions in terms of

this Act ...’ (section 20 (1))
(b)
Counsel further argued that the appellant did not require the
High Court to exercise any power in terms of the Act.   She
relied on her common law right not to be spoliated (prayer 1).
Prayers 2 and 3, likewise, are based on the appellant’s common
law rights of personality.   The Act did not expressly, even less
impliedly, deprive the High Court of its jurisdiction to protect the
common law rights of individuals.    Suppose, argued counsel,
the parties had met one another in a neighbouring town and in
the course of an altercation in no way connected with their
contractual relationship or the appellant’s occupation of land
owned by the respondent, he had assaulted and threatened her.
She would have been entitled to approach the High Court for
an interdict, notwithstanding that she is an ‘occupier’ and the

respondent an ‘owner’ in terms of the Act.   That is so, it was
argued, because the Act has not taken away the common law
jurisdiction of the High Court.
[10] It is true that generally speaking the Act has not deprived the
High Court of its common law powers.   In the case postulated by
counsel it can hardly be doubted that the High Court would have
jurisdiction to interdict an owner from assaulting or threatening
someone who happened to be an occupier of his land.   But the
position changes where the occupier  invokes the provisions of the
Act in order to establish a cause of action or defence.   As soon as
that occurs, the Land Claims Court has exclusive jurisdiction because
it, and it alone, may apply the provisions of the Act (sections 20 (1)
and 20 (2)).

[11] The application launched by the appellant falls in the latter
category.   In order to succeed with prayer 1, the appellant had to
found her case on the provisions of the Act.   This is what she in fact
did, even though she did not expressly refer to the terms of the Act.
The respondent, in his defence, did rely on the Act.  If the merits
were to be considered by the High Court, some provisions of the Act
would become relevant, inter alia sections 6 (2), 7 (1), 8 and 9.   The
High Court would not have the jurisdiction to apply these provisions;
conversely, the Land Claims Court would clearly have jurisdiction to
do so.   By virtue of section 20 (2) of the Act, the latter court has such
jurisdiction to the exclusion of the High Court.   The same argument
goes for prayer 3, as was conceded by counsel for the appellant.
Prayer 2 is clearly dependent on and ancillary to prayers 1 and 3, and

must share their fate.   (See also Mogotsi and Others v Pienaar and
Others 2000 (1) SA 577 (T) at 580.)
[12] In the result, the appeal is dismissed with costs.
P J J OLIVIER JA
CONCURRING :
VIVIER  JA
SCHUTZ  JA
ZULMAN  JA
MELUNSKY  AJA