In August 2015, Ms Mokwena (the Respondent) instituted an action in the Land Claims Court (the LCC) claiming an order that she be declared a labour tenant under the Land Reform (Labour Tenant) Act 3 of 1996 (the LTA). She further claimed that she be awarded a portion of Portion 50 of the farm Kromdraai 292 JS Emalahleni, Mpumalanga (the property).
The Supreme Court of Appeal (the SCA) had to rule whether the property constituted a “farm” as contemplated in the LTA.
In support of her claim, the Respondent alleged that she and her family had lived on the property since 1992. From June 1995, they continued to live on the property and exercised the right to use a portion of the property for cropping and grazing. In consideration of the right to occupy and use the subject property, the Respondent provided labour to the former owner of the property. All of these allegations were denied in the Applicant’s plea.
The SCA referred to section 1 of the LTA which defines both a labour tenant and a farm for the purpose of this Act. According to this section, a labour tenant is a person a) who is residing on or has the right to reside on a farm; b) who has or has had the right to use cropping or grazing land on the farm and in consideration of that right provides labour to the owner of the farm; and c) whose parent or grandparent resided on a farm and had the use of cropping or grazing on such farm or another farm of the owner and provided labour to the owner in consideration for the right.
Section 1 of the LTA defines a farm as meaning a portion or portions of agricultural land as defined in the Subdivision of Agricultural Land Act (the SALA). This Act defines agricultural land as any land except “land situated in
the area of jurisdiction of a municipal council, city council, town council, village council, village management board, village management council, local board, health board or health committee…”.
At all relevant times, the property fell within the area of jurisdiction of the then Witbank Municipality. Immediately prior to the first election of Witbank Transitional Local Municipality, the property was situated within the area of jurisdiction of the relevant transitional council. Currently the property is within the jurisdiction of the Emahahleni Local Municipality. The appellants contended that since 1971 the property was not agricultural land for the purposes of the relevant legislation because it had been incorporated into the area of jurisdiction of the former Witbank Municipality.
The LLC concluded that the term “agricultural land” should be purposively interpreted to include land which is situated within the area of jurisdiction of any municipality which was used for agricultural purposes or which is agricultural in nature.
The SCA held that the wording of the definition of “agricultural land” as defined in the SALA makes it clear that there is a distinction between “any land” on the one hand, and land situated in the jurisdiction of a municipal council on the other. While the former constitutes agricultural land, the latter does not. Furthermore, this definition expressly excludes land situated in the in the area of jurisdiction of a municipality. This definition says nothing about land in any municipality which is used for agricultural purposes or which is agricultural in nature. The SCA concluded that the definition of “agricultural land”, in its plain language, is the clearest indication that the legislator did not intend that municipal land used for agricultural purposes, should be regarded as “agricultural land” as defined by the SALA.
At the last point in time of the existence of the Witbank Municipality, the property was situated within the area of jurisdiction of that Municipality and was thus excluded from the definition of “agricultural land”. The property is therefore not a farm for the purposes of the LTA.
On the facts of this case, the Respondent did not qualify as a labour tenant. Rather, she qualified as an occupier in terms of the Extension of Security of Tenure Act 62 of 1997.
The Supreme Court of Appeal held that the Respondent did not qualify as a labour tenant for the purposes of the LTA. The Respondent was determined to be an occupier of the property in accordance with the ESTA.
The value of this decision is that it provides a clear distinction between labour tenants and occupiers in respect of agricultural land. If the land in question does not fall within the definition of agricultural land provided for in the Subdivision of Land Act, then the concept of labour tenancy does not apply to any person occupying or working on the land in question.
Written by Jan – Harm Swanepoel and supervised by Gary Boruchowitz, 27 August 2018