THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO:  439/2002
Reportable

In the matter between

MASHAU RASHAVHA                                                    APPELLANT

and

HJ VAN RENSBURG                                                     RESPONDENT

CORAM:   Mpati DP, Mthiyane,  Brand, Lewis JJA and Mlambo
AJA

HEARD:        20  NOVEMBER 2003

DELIVERED: 28 NOVEMBER 2003

Summary: Condonation for late filing of appeal refused: application of sections 8(4)
and 10(3) of the Extension of Security of Tenure Act 62 of 1997.

JUDGMENT

LEWIS JA

LEWIS JA
[1] The appellant, formerly a farm worker employed by the
respondent, appeals against a decision of the Land Claims Court
confirming a magistrate’s order of eviction from her dwelling on the
farm hired by the respondent. She is one of four farm workers, all
appellants in the court a quo, sought to be evicted by the
respondent from the farm Sandfontein, which is some 20
kilometres away from Louis Trichardt and 12 kilometers from
Maelula, both in the Northern Province. The appellant is the only
one of the four appellants who now pursues an appeal to this
Court, which she does with the leave of the Land Claims Court.
The appellant’s case is based on the provisions of the Extension of
Security of Tenure Act 62 of 1997.

[2] The appellant seeks condonation for the late filing of her
notice of appeal. The grant of condonation is opposed by the
respondent who argues that the delay of the appellant in lodging
an appeal, the absence of a proper explanation for the delay, and
the lack of merit in the appellant’s case warrant an adverse order.
It is necessary to deal with the history of the litigation between the
parties briefly before determining any of these issues.

[3] The appellant was retrenched by the respondent in October
1998. Her right to reside on the farm terminated in December
1998. The respondent applied in terms of the Act for an order of
eviction against the appellant. The appellant and her co-workers
resisted the application. They were represented throughout the
legal proceedings. In terms of s 9(3) of the Act a probation officer,
Mrs Lombaard, filed a report setting out the results of the
investigations she had made into the circumstances of the farm
workers in respect of whom the eviction was sought. I shall return
to this report, in so far as it concerns the appellant, later in this
judgment. In January 2001 the Chief Magistrate in Louis Trichardt
granted the eviction orders.

[4] The orders came before Moloto AJ, in the Land Claims
Court, on automatic review. He confirmed those in respect of the
farm workers other than the appellant. In her case, Moloto AJ
referred the order back to the Chief Magistrate for him to consider
whether s 8(4) of the Act was applicable to her, and whether the
probation officer had considered the weight of various factors
sufficiently. I shall deal with the provisions of s 8(4) later. Suffice it
to say for the moment that the court considered the section to be

inapplicable, and granted another eviction order, to come into
effect on 30 April 2001.

[5] The appellant and her co-workers who had been ordered to
vacate the farm applied for leave to appeal against this order.  The
application came before Moloto AJ, who held that the proper court
to hear the appeal was the Land Claims Court. His finding in this
regard was upheld in the decision of the Court (per Gildenhuys AJ,
Meer AJ concurring) now under appeal before this Court.  There
was no argument that this decision as to jurisdiction was incorrect
either before the Court a quo or this Court. The Land Claims Court
dismissed the appeals of all four appellants before it, and gave
leave only to the appellant to appeal further to this Court.

[6] It is important to note that the grant of leave was made on
the basis that another court might reach a different conclusion in
respect of the balancing of the comparative hardship to the
appellant as a result of the eviction, on the one hand, and to the
respondent, if he were to be deprived of possession of the dwelling
on the other hand. The Court expressly held that there was no
reasonable possibility of another court making a different finding in
respect of the application of s 8(4). Despite this, the grounds of

appeal lodged by the appellant were based on the assertion that
the Court had erred in its interpretation of s 8(4), as were the
arguments advanced to this Court by counsel for the appellant. I
shall revert to this matter later.

[7] The appellant, having been given leave to appeal, failed to
comply with the rules governing the time within which to lodge a
notice of appeal. Leave to appeal was granted on 29 January
2002. The notice of appeal should thus have been lodged by 1
March (that is within one month: rule 7, Supreme Court of Appeal
Rules). It was lodged only on 8 May 2002. The application for
condonation was served on the respondent only on 22 August
2002, and lodged with this Court on 4 September 2002. The
appellant was thus substantially out of time. Part of the explanation
given for this delay was that the appellant’s attorney had
considered that it might be ‘expedient and convenient’ to await the
outcome of the applications for leave to appeal lodged by the other
appellants against the decision of the court a quo. However, in her
application for condonation, signed on 29 April, but served and
lodged only some months later, as detailed above, the appellant
stated that she had received no information about the other

appellants’ applications and had thus been advised to consult
senior counsel on the application of s 8(4) of the Act.

[8] Counsel, Ms Cassim, was not immediately available, hence
the further delay. Once the notice of appeal had been drawn,
however, and advice taken, further delay was caused by the
attorney’s correspondent in Bloemfontein. No explanation at all
was advanced for that further delay and this Court was advised
from the Bar that the Bloemfontein correspondent had refused to
provide an affidavit explaining the failure to lodge the notice of
appeal and the application for condonation.

[9] The appellant has been ill-served by her legal advisers. The
attorney’s reasons for waiting to draw a notice of appeal are not
acceptable. The delay is inexcusable. And the failure on the part of
the Bloemfontein correspondent attorney to explain the additional
delay is to be deplored. However, the appellant is an illiterate,
impecunious and uneducated woman with no knowledge of the
workings of the legal system. In my view she should not be refused
condonation solely on the ground that her legal advisers were
negligent in the performance of their work.

[10] Generally, the most important, although not necessarily the
decisive, factor to be taken into account in determining whether
condonation should be granted is the prospect of success on
appeal. (See Finbro Furnishers (Pty) Ltd v Registrar of Deeds,
Bloemfontein 1985 (4) SA 773 (A) at 789C-E; cf Darries v Sheriff,
Magistrate’s Court, Wynberg  1998 (3) SA 34 (SCA) at 41B-D). I
turn therefore to a consideration of the merits of the appellant’s
case. As already indicated, leave to appeal to this Court was
granted on the basis that the weighing-up of the hardship caused
to the appellant by the eviction from her home on the farm against
the interests of the respondent was a sensitive and difficult task
and that another court might find that the appellant should have
been allowed to remain on the farm in order to avoid the hardship
caused to her.

[11] The respective rights of the parties are governed by sections
8 and 10 of the Act. It is necessary to set out the relevant
provisions in these sections at some length.
Section 8 provides:

‘Termination of right of residence

(1) Subject to the provisions of this section, an occupier's right of
residence may be terminated on any lawful ground, provided that such

termination is just and equitable, having regard to all relevant factors and in
particular to-

(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.
. . . .

(4) The right of residence of an occupier who has resided on the land in
question or any other land belonging to the owner for 10 years and-

(a)
has reached the age of 60 years; or

(b)
is an employee or former employee of the owner or
person in charge, and as a result of ill health, injury or disability is unable to
supply labour to the owner or person in charge,

may not be terminated unless that occupier has committed a breach
contemplated in section 10 (1) (a), (b) or (c): Provided that for the purposes of
this subsection, the mere refusal or failure to provide labour shall not
constitute such a breach.
. . . .

(6) Any termination of the right of residence of an occupier to prevent
the occupier from acquiring rights in terms of this section, shall be void.’

[12] As indicated earlier, it is section 8(4) on which the appellant
has based her appeal. Ms Cassim argued that the section should
be interpreted in line with the spirit and purpose of the Act, which is
to protect farm dwellers from eviction and to change patterns of
land tenure in South Africa. The Act, which forms part of the land
tenure reform programme of the State, is itself founded on s 25(6)
of the Constitution (Act 108 of 1996). The subsection provides that
‘A person or community whose tenure of land is legally insecure as
a result of past racially discriminatory laws or practices is entitled
to the extent provided by an Act of Parliament, either to tenure
which is legally secure or to comparative redress’.

[13] On that basis, Ms Cassim submitted that one should not
give too narrow a construction to the words in s 8(4)(a). Although
the appellant was not yet 60 when her right to reside on the farm
terminated, one should take into account the length of her service
and residence on the farm (some 20 years), and that, on the
assumption that the appellant was 58 (or even possibly 59) when
her services were terminated, the requirements of s 8(4)(a) were
met, such that she could not be evicted. Sixty, it was argued, on a
generous and purposive construction of the Act, included 58 and
59. Counsel was unable to suggest where the cut-off point should
be.

[14] The argument is absurd, and was rejected in clear terms by
the court of first instance and by the Land Claims Court. The words
of s 8(4)(b) are clear. There is no need to resort to an
interpretation of a section, generous, purposive or otherwise,
where there is no uncertainty as to its meaning. The appellant, in
order to rely upon the section, would have had to show that at the
time when the eviction was sought, she had resided on the farm
for 10 years and was at least 60 years old. That she could not do.

[15] A different argument, not itself a ground of appeal, nor
traversed in the heads of argument for the appellant, but raised
during the hearing of the appeal, was that the respondent had
deliberately terminated the appellant’s employment in order to
prevent her from acquiring any right to reside in terms of s 8. If this
were the case, then s 8(6) would apply: the termination of the right
of residence of the appellant would have been of no effect.
However, the appellant could point to nothing in the evidence to
show that there was any such intention. The respondent had
terminated the employment of several employees and reduced the
size of the workforce on the farm. There was no evidence of any
conduct on the part of the respondent to show that he had
terminated the appellant’s services in order to prevent her from
acquiring a right to remain on the farm. On the contrary: he had
offered her a different variety of work on a temporary basis, and
implicit in his offer was that her right to remain on the farm, in her
dwelling, would continue. She had declined the offer of different
work.

[16] It is not necessary to resort to artificial and unsubstantiated
arguments in relation to the Act in order to give effect to the
requirements in s 8(1) that any termination of an occupier’s right of

residence should be just and equitable. The basis upon which
the Land Claims Court considered the appeal against the eviction
order is s10(3) of the Act, which takes into account considerations
of fairness and equity in so far as both occupiers and property-
right-holders are concerned. Section 10(3) reads:
‘If –

(a)
suitable alternative accommodation is not available to the
occupier within a period of nine months after the date of termination of his or
her right of residence in terms of section 8;

(b)
the owner or person in charge provided the dwelling
occupied by the occupier; and

(c)
the efficient carrying on of any operation of the owner or
person in charge will be seriously prejudiced unless the dwelling is available
for occupation by another person employed or to be employed by the owner
or person in charge,

a court may grant an order for eviction of the occupier and of any other
occupier who lives in the same dwelling as him or her, and whose permission
to reside there was wholly dependent on his or her right of residence if it is
just and equitable to do so, having regard to-

(i)
the efforts which the owner or person in charge and the
occupier have respectively made in order to secure suitable alternative
accommodation for the occupier; and

(ii)
the interests of the respective parties, including the
comparative hardship to which the owner or person in charge, the occupier
and the remaining occupiers shall be exposed if an order for eviction is or is
not granted.’

[17] The Land Claims Court considered that the ‘threshhold’
requirements under subsections 10(3)(a),(b) and (c) had been met
in this case. Suitable alternative accommodation had not been
found by the appellant within nine months from the date of the
termination of her right to reside on the property. The respondent
had made the accommodation available to the appellant. It was
needed for the respondent’s seasonal employees.

[18] The Court thus moved to a consideration of subsections
(3)(i) and (ii). There was no evidence that the appellant or the
respondent had made efforts to find suitable alternative
accommodation. The parties had made insufficient averments in
this regard. However, the probation officer who reported on the
circumstances of the appellant in terms of s 9(3) of the Act
considered that although it would be difficult for the appellant to

leave the farm, her immediate family lived in Maelula, supported
her in any event, and that she could live with them. The court of
first instance had considered that it would be ‘fair and equitable’ for
the appellant to move to Maelula to stay with her family, who would
support her and take care of her. The Land Claims Court accepted
this finding, taking into account the right of the respondent to the
full use of the property hired by him. He should not be compelled
to accommodate erstwhile employees, said that Court, ‘unless the
hardship, conflict or social instability which their eviction might lead
to, outweighs his right to unrestricted tenancy’.

[19] Gildenhuys AJ also took into account the fact that by the time
the appeal was heard in the Land Claims Court, the respondent
had already been deprived of the use of the dwelling occupied by
the appellant for some three years after her employment had been
terminated. He considered too that the responsibility of caring for
the appellant was more appropriately to be borne by her family
than the respondent. He concluded, therefore, that the hardship
which the appellant might suffer if evicted from the farm would not
be so great that it should ‘override the property rights of the
respondent’.

[20] In my view, both the court of first instance and the Land
Claims Court had proper regard to the requirements of justice and
equity in s 8(1) of the Act, and to the comparative hardship test in
s10(3)(ii). There is no merit in the argument that the balance of the
interests of the parties was not given due consideration or that the
interests of the appellant outweighed those of the respondent.
Accordingly, there is no prospect of success on appeal.

[21] From the affidavits in the application for condonation it
appears that the appellant has already left the farm and is living in
Maelula with family. It is accordingly not necessary to change the
order of the court a quo in relation to the date when the appellant
must vacate the dwelling on the farm.

[22] Condonation for the late filing of the appeal is refused with
costs, including the costs relating to the appeal.

___________
C H Lewis
Judge of Appeal
Concur:

Mpati DP
Mthiyane JA
Brand JA
Mlambo AJA