THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 119/07
Reportable

In the matter between:

HEDLEY JAMES BROWN
Appellant
and

DANO AGNES MBHENSE
First Respondent

DEPARTMENT OF LAND AFFAIRS
Second Respondent

Coram:
Scott, Mthiyane, Nugent, Van Heerden et Maya JJA
Heard:
10 March 2008
Delivered:
28 May 2008

Summary:
Land Reform (Labour Tenants) Act 3 of 1996 – action in terms
of s 33(2A) – definition of ‘labour tenant’ – requirements for
proof of

Neutral citation: This judgment may be referred to as Brown v Mbhense
(119/07) [2008] ZASCA 57 (28 May 2008)

VAN HEERDEN JA:
Introduction
[1] This appeal concerns an illiterate 67-year-old woman (the first
respondent before us, but henceforth referred to as the plaintiff), who sought
an order in the Land Claims Court declaring her to be a ‘labour tenant’, as
contemplated by the Land Reform (Labour Tenants) Act 3 of 1996 (the Act).
The action, which was brought in terms of s 33(2A) of the Act, was opposed
by the appellant (defendant), the present owner of the farm in question. The
second respondent (Department of Land Affairs) did not oppose the action
and abided the decision of the court. The plaintiff’s claim succeeded in the
court a quo (Meer J), sitting in Durban. The appeal comes before us with
leave granted by the court a quo.

[2] At the heart of the matter lies the question whether the plaintiff falls
within the definition of ‘labour tenant’, as contained in s 1 of the Act, by
which is meant a person –
‘(a) who is residing 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, referred to
in paragraph (a), or another farm of the owner, and in consideration of such right
provides or has provided labour to the owner or lessee; and
(c)  whose parent or grandparent resided or resides on a farm and had the use of cropping
or grazing land on such farm or another farm of the owner, and in consideration of such
right provided or provides labour to the owner or lessee of such or such other farm,
…, but excluding a farm worker’.

[3] A ‘farmworker’, in turn, means –
‘a person who is employed on a farm in terms of a contract of employment which
provides that –

(a) in return for the labour which he or she provides to the owner or lessee of the farm, he
or she shall be paid predominantly in cash or in some other form of remuneration, and not
predominantly in the right to occupy and use land; and
(b) he or she is obliged to perform his or her services personally’.

[4] In terms of an amendment introduced into s 2 of the Act,1 the onus
resting on a plaintiff was eased somewhat by the following provision:
‘(5) If in any proceedings it is proved that a person falls within paragraphs (a), (b) and (c)
of the definition of “labour tenant”, that person shall be presumed not to be a farmworker,
unless the contrary is proved.’

Factual background
[5] The plaintiff was born on the farm in question and has lived there all
her life. Her parents, who were also born on the farm, lived there and
worked for the owner, Mr Willy Raw. Her father looked after the owner’s
horses and sheep and was paid two pounds per month. One of her brothers
also provided labour on the farm and was already doing so at the time of her
birth. Her mother also had to help out with weeding the maize fields when
the owner requested her and the other people living on the farm to do so.
According to the plaintiff, ‘[her parents] had all rights to own stock [and]
plough’. She claimed that there was an agreement between her parents and
the owner, entered into before she was born, that they could keep stock and
also plough portion of the lands. They ‘were given everything’ and were not
restricted with regard to the number of cattle they were allowed to keep.
Both her parents died and were buried on the farm.

1 Introduced by s 33 of Act 63 of 1997.

[6] The plaintiff married her late husband during 1962 and he – as well as
his siblings, and their parents before them – also worked for the owner of the
farm. Her parents-in-law were both buried on the farm. Her husband worked
inter alia as a tractor driver, earning R80 periodically until his death in 1987.
It is not clear from the plaintiff’s evidence whether this was the amount paid
to him monthly or in respect of longer periods of time. In addition he
received a sack of maize every month.

[7] The plaintiff testified that she herself had worked on the farm ‘for a
long period of time’ during the ownership of different generations of the
Raw family. She was initially ‘looking after the babies’ and later worked in
the kitchen, doing the cooking. She was paid an amount of R3 for six
months’ work. While she was working for Mr Joe Raw (the son of Mr Willy
Raw) and later for Mr Robert Raw, one of Mr Joe Raw’s sons, she worked
for a period of six months at a time, thereafter returning to her kraal for the
next six months while somebody from her family took over from her and
worked in her stead. After those six months the pattern was repeated.

[8] The plaintiff conceded that during the years that she worked for Mr
Dennis Raw, Mr Joe Raw’s other son, she worked for the full year, still
earning only R3 every six months.  She stopped working when she gave
birth to her children, which was approximately during 1979. In return for
their labour, she and her husband had cropping rights on the farm. She
insisted that they had an agreement with the owner that these cropping rights
constituted part of the pay for their labour on the farm.

[9] It was put to the plaintiff during cross-examination that, during the
few years that Mr Dennis Raw was managing the farm with his father, the
grazing and cropping rights were ‘given to the menfolk on the farm . . . as
was tradition’. She agreed that this was so.

[10] As the learned judge in the court a quo stated (at para 39 of the
judgment):
‘Plaintiff’s undisputed testimony is that she used cropping land on the farm whilst she
worked thereon during her husband’s lifetime and thereafter.  Her undisputed testimony
was that she continued to use cropping land on the farm after her husband’s death and
that she still does so today in a small vegetable garden in the front of her dwelling. There
can therefore be no quarrel with the fact that Plaintiff personally used cropping land
whilst she worked on the farm, and that she uses cropping land thereon. The all important
enquiry is whether she had the right to use cropping land and whether she provided
labour in consideration of such right.’

[11] Ms Zondekile Ngubane, the plaintiff’s paternal aunt, gave evidence to
the effect that she was familiar with the conditions on the farm as she often
visited the plaintiff’s parents when they were living and working there.  She
confirmed the plaintiff’s testimony that they (the parents) had cropping and
grazing rights and that the area on which they cropped was quite large.

[12] According to Ms Ngubane, the plaintiff had worked as a domestic
worker on the farm from the time she was ‘still a girl’ and that after her
marriage, she immediately returned to work.  She was aware of the fact that
the plaintiff’s parents-in-law also had both grazing and cropping rights. At
the time the plaintiff’s husband died, a certain Mr Ross was the owner of the
farm and the plaintiff and her husband still enjoyed cropping rights.

[13] The plaintiff continued cropping on the farm after her husband died,
but her cropping rights were apparently summarily terminated after Mr Ross
died and the farm passed into new ownership.  Ms Ngubane knew this
because she and the plaintiff live on neighbouring farms and she had seen
the plaintiff’s crops ‘in the land’ after the plaintiff’s husband had passed
away.

[14] The defendant testified that he only took transfer of the farm in
question during 1995. In order to rebut the plaintiff’s evidence concerning
the basis of her tenancy, he relied on the evidence of Mr Dennis Raw, whose
family owned the farm during the relevant period referred to by the plaintiff
and who operated the farm with his father during the period 1968–1969.

[15] Mr Dennis Raw confirmed that, during those two years, there was an
arrangement whereby a certain piece of land had been set aside for the
workers on the farm and where they were allowed to plant crops. He stated
that the various families of workers were allowed up to five head of cattle
per family to graze on the farm. In addition, the male workers of the family
were given an 80 kg bag of mealie meal each per month.

[16] According to Mr Dennis Raw, the plaintiff’s husband was in full-time
employment on the farm, and the Raw family ‘never saw it [the cropping
rights which he had] as part of his salary’. The plaintiff herself had no
cropping or grazing rights on the farm – none of the women had such rights,
so he alleged. The plaintiff worked as a domestic worker for the Raw family,
rendering her services personally.  Mr Dennis Raw denied that there was any

agreement with the plaintiff that part of her salary would be ‘her cropping,
grazing and accommodation rights’. He conceded, however, that he
personally could not be sure what the arrangements in respect of cropping
and grazing rights were on the farm before and after the two years during
which he had operated the farm with his father, but stated that, to the best of
his knowledge, his brother, Robert, did not change ‘the systems’ after he
(Dennis Raw) left the farm.  Of importance is that, in respect of the prior
years, the material evidence on behalf of the plaintiff is unchallenged.

Discussion
[17] On the evidence as a whole, it is common cause that the plaintiff has
satisfied the requirement of para (a) of the definition of ‘labour tenant’,
having resided on the farm her whole life. The attempt by Mr Dennis Raw
(referred to in the preceding paragraph) to prove that the plaintiff is or was a
‘farmworker’ as contemplated by the Act is, in the light of the totality of the
evidence – discussed further hereafter – weak and unconvincing. The present
appeal accordingly turns on the question whether or not the plaintiff has
proved both requirements (b) and (c) of the definition quoted above.2
The para (b) requirement
[18] It is convenient to repeat the relevant requirement, which requires the
plaintiff to be a person –
‘who has or has had the right to use cropping or grazing land on the farm, referred to in
paragraph (a), or another farm of the owner, and in consideration of such right provides
or has provided labour to the owner or lessee’.

2 In Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg 1999 (2) SA 1057 (SCA) para 11, this
Court held that paras (a), (b) and (c) of the definition had to be interpreted conjunctively.

[19] The plaintiff’s evidence presented at the trial lacked precision insofar
as dates and the specific terms of agreements were concerned. This,
however, given her advanced age and lack of sophistication, is to be
expected. That notwithstanding, it is nevertheless clear that she and her
family have at all relevant times enjoyed the right to use cropping or grazing
land on the farm.

[20] It was also conceded that the plaintiff did provide labour to the
various owners of the farm. According to her, she was remunerated at the
rate of R3 for six months. According to Mr Raw, the amount was 50c per
day. Be that as it may, the conclusion that the remuneration was so paltry
because it was augmented by the right enjoyed by her also to use cropping
land on the farm is irresistible. In this regard, her insistence that there had
been an agreement to the effect that she and her husband would receive
remuneration partly in the form of cropping rights was not seriously
challenged on behalf of the defendant and, in my view, is supported by the
remaining evidence as well as the overall probabilities.

[21] In deciding whether or not a person is a labour tenant, the court must
have regard to ‘the combined effect and substance of all agreements entered
into between the person who avers that he or she is a labour tenant and his or
her parent or grandparent, and the owner or lessee of the land concerned’.3

[22] The precarious position of labour tenants and their widespread loss of
rights in the mass shift to wage labour farming in twentieth century South

3 Section 2(6) of the Act.

Africa is referred to by DL Carey Miller (with Anne Pope) Land Title in
South Africa (2000) at para 1.2.5.6. Carey Miller and Pope state the
following:
‘The relevant legislative history . . . was driven by considerations of agricultural policy.
But, of course, the policy was determined primarily on a sectional basis with the end
result demonstrating the vulnerability of a disenfranchised people.
Reform political thinking in South Africa has, from a relatively early stage, recognised
the need for the protection of the position of labour tenants. Albie Sachs, writing at a
stage when the reform agenda was taking definite shape, identified the unfairness of the
existing position and predicted reform driven by recognition of a far wider spectrum of
entitlement than the traditional narrow proprietary basis.

“Share-cropping and labour tenancy in the past were examples of the co-

involvement between black and white in production on a single farm.  The black

and white families occupied and farmed the same piece of land, and defined the

mutual rights and responsibilities between them.  In the conditions of the time, the

parties contracted on a grossly unequal basis, in terms of which the white farmer

was accorded a dominant position and the black farmer a subordinate one. What

will become possible in the period of democratic transformation in which the

human rights of all are acknowledged by the constitution, is a recognition of the

terms of shared occupancy and use, but this time on the basis of objectively

determinable criteria and in an atmosphere of equality”.
The 1996 Green Paper comments on labour tenancy as an instance of a general problem
of “[t]enants inadequately protected from arbitrary dispossession”:

“The unequal distribution of wealth and power between blacks and whites along

with severe restrictions on black land ownership has inevitably resulted in the

emergence of various forms of tenancy. Under labour tenancy, tenants are obliged

to provide labour to farm owners in exchange for the right to occupy and use a

portion of the farmland.  There was an ongoing attempt by the previous

government to formally outlaw labour tenancy on a district by district basis during

the period between 1966 and 1980.” ’4 (Footnotes omitted.)

[23] In Department of Land Affairs v Goedgelegen Tropical Foods (Pty)
Ltd, 5 Moseneke DCJ stated the following:6
‘In any event, at its very core, labour tenancy under the common law arises from a so-
called innominate contract between the landowner and the labour tenant, requiring the
tenant to render services to the owner in return for the right to occupy a piece of land,
graze cattle and raise crops. In name, it is an individualised transaction that requires
specific performance from the contracting parties. This means that labour tenancy does
not sit well with commonly held occupancy rights. It is a transaction between two
individuals rather than one between the landlord and a community of labour tenants.  It
must however be recognised that despite the fiction of the common law in regard to the
consensual nature of labour tenancy, on all accounts, the labour tenancy relationships in
apartheid South Africa were coercive and amounted to a thinly veiled artifice to garner
free labour.’ (Emphasis added.)

[24] In the same judgment, Moseneke DCJ, dealing with the correct
approach to the interpretation of various sections of the Restitution of Land
Rights Act 22 of 1994, emphasised the fact that this ‘is remedial legislation
umbilically linked to the Constitution’. He continued as follows:7
‘Therefore, in construing “as a result of past racially discriminatory laws or practices” in
its setting of s 2(1) of the Restitution Act, we are obliged to scrutinise its purpose.  As we
do so, we must seek to promote the spirit, purport and objects of the Bill of Rights.  We
must prefer a generous construction over a merely textual or legalistic one in order to
afford claimants the fullest possible protections of their constitutional guarantees. In
searching for the purpose, it is legitimate to seek to identify the mischief sought to be

4 Pages 526-527.
5 2007 (6) SA 199 (CC).
6 Para 46.
7 Paras 53 and 55.

remedied. In part, that is why it is helpful, where appropriate, to pay due attention to the
social and historical background of the legislation.  We must understand the provision
within the context of the grid, if any, of related provisions and of the statute as a whole,
including its underlying values. Although the text is often the starting point of any
statutory construction, the meaning it bears must pay due regard to context. This is so
even when the ordinary meaning of the provision to be construed is clear and
unambiguous.
. . .
It is indeed so that the Restitution Act is an enactment intended to express the values of
the Constitution and to remedy the failure to respect such values in the past, in particular,
the values of dignity and equal worth. To achieve this remedial purpose . . . the history
and context within which land rights were dispossessed and in particular the manner in
which labour tenancy operated and was terminated must be considered.’

[25] In my view, the same approach must be adopted in respect of the
interpretation of the relevant provisions of the Act with which we are
dealing in this appeal. The Preamble to the Act points out that:
‘The present institution of labour tenancy in South Africa is the result of racially
discriminatory laws and practices which have led to the systematic breach of human
rights and denial of access to land;
. . .  it is desirable to ensure the adequate protection of labour tenants who are persons
who were disadvantaged by unfair discrimination, in order to promote their full and equal
enjoyment of human rights and freedoms; . . .
. . . it is desirable to institute measures to assist labour tenants to obtain security of tenure
and ownership of land; . . .
. . . it is desirable to ensure that labour tenants are not further prejudiced’.
[26] The following words of Moseneke DCJ in the Goedgelegen case8 are
also relevant for the purposes of this judgment:

8 Para 86.

‘Finally, it is appropriate to observe that the rights of the individual applicants [labour
tenants] were not merely economic rights to graze and cultivate in a particular area. They
were rights of family connection with certain pieces of land, where the aged were buried
and children were born and where modest homesteads passed from generation to
generation.  And they were not simply there by grace and favour. The paternalistic and
feudal-type relationship involved contributions by the family, who worked the lands of
the farmer. However unfair the relationship was, as a relic of past conquests of land
dispossession, it formalised a minimal degree of respect by the farm owners for the
connection of the indigenous families to the land. It had a cultural and spiritual dimension
that rendered the destruction of the rights more than just economic loss.’

[27] Of course, in order to determine whether the labour tenancy asserted
by the plaintiff has been established, one must have regard to the evidence
concerning her right to lay claim as a labour tenant to the relevant portion of
the farm. In so doing, it is important to appreciate that when labour tenants
‘conclude’ contracts with farm owners, they are not assisted by lawyers.
They represent a vulnerable section of society, are almost always
impecunious, unsophisticated and unschooled. One should not lose sight of
the power imbalance in the relationship between the farm owner and the
labour tenant and the truism that only free men and women can
meaningfully negotiate.9

[28] It is simplistic to approach the relationship between a farm owner and
a labour tenant as necessarily one in respect of which only one member of a
household or family unit has the right to be or remain on the farm as a labour
tenant. Complexities abound. For example, it might well be inferred in
appropriate cases that each member of a family unit consisting of a father,

9 See the Goedgelegen Tropical Foods (Pty) Ltd case para 46, cited in para 23 above.

mother and child agreed with the farm owner that he or she be afforded
labour tenancy rights in return for his or her providing labour individually
and not necessarily in equal measure. Furthermore, the arrangements in
respect of the time periods during which and the manner in which labour is
provided by each member of the family unit might mutate over time and in
relation to successive owners of the farm, depending on the changing
requirements of the farm and the demands of the owner. That
metamorphosis would have led inexorably to labour tenancy relationships
between the farmer and each individual member of the family unit. In those
circumstances, to ask when the labour tenancy relationship commenced
serves not just to obfuscate the enquiry but also to ignore our historical
reality. Naturally, however, successive owners assume the responsibilities
brought about by already established relationships and existing rights.

[29] As pointed out above, the attempt made by Mr Dennis Raw to prove
that the plaintiff was a ‘farmworker’ is, in the light of the totality of the
evidence and against the probabilities, wholly unconvincing. Thus, in the
present case there are really only two hypothetical possibilities. The first is
that the plaintiff is indeed a labour tenant, as defined in the Act. The second
is that suggested by counsel for the appellant, namely that, in rendering
labour to successive owners of the farm, the plaintiff was simply discharging
the labour tenancy obligations of her father and, after her marriage, of her
husband – the plaintiff being only the means by which the ‘actual’ labour
tenant (her father or her husband) fulfilled his obligation to provide labour.
Counsel contended that the plaintiff’s ‘right’ to crop flowed simply from the
fact that she was living on the farm with her husband and family and not in
consideration for any obligation on her part to provide labour to the farm

owner. To my mind, this proposition needs only to be stated to be rejected: It
is not disputed that the plaintiff herself provided labour for more than 17
years, and her evidence that she was remunerated for this labour
predominantly through her right to use cropping land on the farm was not
seriously challenged.

[30] The attempt by the appellant to deny the plaintiff the rights of a labour
tenant by asserting that such labour tenancy arrangements as were made
were limited to the male members (or perhaps even only to the male head) of
a family unit smacks of opportunism, is not supported by the facts and
would render her presently liable to discrimination of a kind not
countenanced by the Constitution. To gauge the existence of a labour
tenancy agreement in the technical and precise manner akin to that
applicable to usual residential or commercial tenancies is far too restrictive
an approach and one that goes against the objective and general tenor of the
Act.

[31] For the reasons set out above and having regard to the overall effect of
the evidence on this aspect, I can find no ground to interfere with the finding
of the court a quo that the plaintiff did indeed have ‘the right to use cropping
land, an entitlement which she exercised unfettered over a period of time,
both during her employment and thereafter, and in consideration for which
right she provided labour’.10

10 Para 43 of the judgment of the court a quo.

The para (c) requirement
[32] In the context of the present case, the requirement in terms of para (c)
of the definition entails a threefold enquiry: (i) whether the plaintiff’s parent
or grandparent resided on the farm; (ii) whether he/they had the use of
cropping or grazing land on such farm or another farm of the owner; and
(iii) whether he/they provided labour to the owner of such farm in
consideration of such right.

[33] The first two elements were not seriously disputed on behalf of the
defendant. It was contended on behalf of the defendant that the plaintiff has
not proved that the right to use cropping or grazing land was ‘in
consideration of the obligation to provide labour’.

[34] In this regard, the plaintiff stated that the agreement her parents had
with the landowner was ‘to the effect that they were to have a number of
stock as they wanted to, and they were being paid as well.’ The plaintiff’s
evidence in this regard was largely confirmed by the evidence of Ms
Ngubane.

[35] Having regard to the ‘meagre salary’ (in the words of the trial judge)
of two pounds paid to the plaintiff’s father, again the conclusion seems in-
escapable that he (the plaintiff’s father) provided labour at least partly in
consideration of the right also to use cropping or grazing land on the farm.

Conclusion
[36] In the circumstances, I conclude that there are no grounds to interfere
with the order of the court a quo. The appeal is therefore dismissed with
costs.

____________________

BJ VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
MTHIYANE JA
MAYA JA

NUGENT JA:
[37] I have read the judgment of my colleague but I regret that I cannot
concur in the order she proposes.  The difference between us relates to the
construction of the evidence. I indeed assert the proposition that my
colleague regrettably believes needs only to be stated in order to be rejected.
I think the evidence of the respondent establishes without doubt that she is
not and never has been a labour tenant as that term is defined in the Act.
That her husband was a labour tenant is clear but labour tenancy is not
capable of being acquired derivatively.

[38] A statute is not a mere statement of a legislative objective but is rather
the route chosen by the legislature to achieve that objective.  In Goedgelegen
Tropical Foods (referred to by my colleague) Moseneke DCJ made the point
that labour tenancy is a relationship between two individuals – the tenant
and the landlord – rather than a relationship between a landlord and a group
(whether it be a community or a family).  That is not to say that more than
one member of a community or a family might not be labour tenants, but
only that the enquiry is to be directed at the individual who claims to be a
labour tenant.   At the core of that relationship is an obligation undertaken by
the tenant to provide labour to the landlord (whether his or her own labour or
that of others) in return for the right to use land for cropping or grazing.
That essential feature of the relationship is expressed in subparagraph (b) of
the definition of a labour tenant, which requires that the person concerned
‘has or has had the right to use cropping or grazing land…and in consideration of such
right provides or has provided labour…’ (my emphasis).

[39] The circumstances in which labour tenancy can be expected to arise
will seldom produce evidence of the relationship in the form of explicit
contractual formalities. More often the relationship will be the product of
long practice or custom, or of the conduct of the parties or their
predecessors, and any oral expression of their intent will have been lost over
time.  In those circumstances a court must take particular care to examine all
the circumstances surrounding the relationship to determine whether it was
one of labour tenancy.  Needless to say, the mere assertion by one or other of
the protagonists that the relationship was or was not of that kind will not be
helpful.  Indeed, such assertions are strictly not even admissible, because it
is for a court, and not a witness, to determine what conclusion is to be drawn
from the facts.

[40] In most cases inferences to be drawn from the manner in which the
parties have conducted themselves will provide the most cogent evidence of
the existence or absence of such a relationship.  For the relationship is one
that entails reciprocal rights and obligations that both manifest themselves
overtly in their exercise or performance. If a relationship is indeed one of
labour tenancy the exercise of the rights will necessarily correlate with the
performance of the reciprocal obligations. And if it is not a relationship of
labour tenancy there will conversely be no such correlation.

[41] The respondent, Mrs Dano Mbhense (born Mhlongo), was born on the
farm that is now in issue.  The farm was then owned and operated by Mr
Willy Raw.  Later it passed to his son Mr Joe Raw.  For a while Mr Joe Raw
operated the farm in association with his son Mr Dennis Raw. Thereafter it
was operated by Mr Joe Raw’s second son, Mr Robert Raw.  The farm then

passed to a Mr Ross (that seems to have been in about 1980).  After the
death of Mr Ross it seems first to have passed to a Mr Kibler and then to the
appellant, Mr Brown.

[42] At the time Mrs Mbhense was born her father, Mr Sikhwebu
Mhlongo, worked on the farm and the household grazed livestock and
planted crops.  Mrs Mbhense’s mother was not in full time employment but
worked on the farm from time to time according to the seasons. When Mrs
Mbhense was young she and her young sisters alternated in providing
domestic service on the farm in return for a wage. (Precisely what the wage
was is a matter of dispute but I have accepted that it was paltry.)

[43] In 1962 she married Mr Mfesi Mbhense, who was also born on the
farm.  He had three brothers – Mr Mxhantini Mbhense, Mr Row Mbhense
and Mr Mponono Mbhense.  At the time of the marriage Mr Mfesi Mbhense
and his three brothers all worked on the farm.  Their parents were still alive
but were no longer working.  Mr Mbhense senior owned cattle that were
grazed on the land, and the family also planted crops.

[44] After the marriage Mrs Mbhense continued to provide domestic
service.  Whether she did so continuously is not clear but I have assumed
that she did.   At some time in the course of the marriage Mr Mbhense senior
died.  His cattle were inherited by his son, Mr Mxhantini Mbhense.  From
then on Mr and Mrs Mbhense only planted crops.

[45] Mrs Mbhense stopped working for the occupier of the farm when she
commenced bearing children – which seems to have been in about 1979 –

and she did not resume work again.  In 1987 her husband died.  At that time
the farm was owned by Mr Ross who died approximately a month later.  It
was at about that time that cropping came to an end.  Whether it was the
death of her husband or the death of Mr Ross that brought that about is not
altogether clear because Mrs Mbhense’s evidence on that issue is rather
ambiguous (she said that ‘after my husband had passed away, Ross also
passed away, therefore I could not plough any lands anymore’) but I do not
think that is material.   Mrs Mbhense continued to live on the farm and at the
time of the proceedings in the court below she was living in a dwelling that
had a small vegetable garden.

[46] When determining whether a particular relationship existed – whether
it be one of labour tenancy or any other relationship – I think it is always
useful to ask when and in what manner the relationship is said to have
begun. For every individualized relationship – like that of labour tenancy –
must have had a beginning if it existed at all.  No person is born into labour
tenancy nor does the relationship arise spontaneously. It might be that the
claimant and the farmer concerned were themselves party to the creation of
the relationship whether expressly or merely by their conduct.   It might also
be that the relationship came into being by succession of the claimant to a
practice or custom established by a previous owner – which is how Mr
Mbhense became a labour tenant.  I am not sure why it obfuscates the
enquiry to ask when the relationship began.  I prefer analyzing the effect of
the evidence over relying upon its general impression and that question
seems to me to provides a structure for that analysis.

[47] The cropping and grazing rights that were enjoyed by the Mhlongo
household existed before Mrs Mbhense was born. Quite evidently those
rights – and the obligation to provide labour in consideration for those rights
– adhered to someone other than herself. It is also evident that those rights
(and the corresponding obligation to provide labour) were not transferred to
Mrs Mbhense during the time that she lived in that household because they
continued to be exercised by the household after she left it upon her
marriage.

[48] That Mrs Mbhense was not under an obligation to provide labour (and
was thus not the holder of the corresponding rights) is confirmed by the fact
that she rendered service only periodically.  It is quite possible that the
holder of the rights (her father or her mother) was obliged in return to ensure
that domestic service was provided, and that the services of Mrs Mbhense
and her sisters were rendered in fulfillment of that obligation, but that would
not make Mrs Mbhense (or her sisters) a labour tenant.  Her services would
merely be the means by which the labour tenant (her father or her mother)
fulfilled his or her obligations to provide labour. Absent an independent
right enjoyed by Mrs Mbhense, and an independent obligation to provide
labour in return, she was not a labour tenant.

[49] Clearly Mrs Mbhense was not a labour tenant during the time that she
was in the household of her parents.  It is also clear that her marriage did not
alter her status in that regard.  The Mbhense household had its own cropping
and grazing rights at the time it was joined by Mrs Mbhense.  There is no
suggestion that additional cropping and grazing rights accrued to the
Mbhense household after the marriage.  It is also clear that the continuance

of those rights was not dependant upon Mrs Mbhense providing labour to
the occupier because they continued unabated even though she stopped
working (in about 1979). Once again the fact that the rights continued to be
exercised unabated notwithstanding that Mrs Mbhense provided no labour
confirms that the obligation to provide labour (and the corresponding right to
crop and graze) did not adhere to her.

[50] After the death of Mr Mbhense senior the households of his
descendants (including the household of Mr and Mrs Mbhense) continued to
enjoy cropping and grazing rights. (Mr Mbhense had no cattle and only
exercised cropping rights.)  But there is nothing to suggest that the right to
plant crops from that time adhered to Mrs Mbhense.  On the contrary, it is
clear that it did not, for she provided no labour.  I think it is clear that the
rights adhered to her husband, for which he provided his labour in return,
and indeed, the cropping rights terminated upon his death.  (If Mrs Mbhense
continued to grow crops for a short time thereafter then clearly that was a
gratuitous disposition because there was no accompanying obligation to
provide labour.)

[51] It is difficult, then, to see when Mrs Mbhense might have become a
labour tenant. I think that difficulty arises only because she never was a
labour tenant. I think the evidence establishes that she never had an
independent right to grow crops or graze animals, and that she never had an
independent obligation to provide labour (which are two sides of the same
coin).

[52] In his evidence Mr Dennis Raw said that it was the custom of his
family to grant cropping and grazing rights to the male head of each
household in return for which they were to provide labour.  All the evidence
is consistent with that having occurred. That Mrs Mbhense was the daughter
of a labour tenant is clear. That she was the wife of a labour tenant – who
succeeded to that relationship in accordance with established practice – is
also clear.  But it is also clear that she was not a labour tenant herself.

[53] We were told by counsel for the appellant that the appellant
acknowledges that Mrs Mbhense enjoys the protection against eviction that
is provided by the Extension of Security of Tenure Act 62 of 1997.  Indeed,
we were told that the appellant has no intention of attempting to evict her
from the farm.  What was in issue in these proceedings was only whether she
was entitled to be awarded real rights in the farm.

[54] I would accordingly uphold the appeal and substitute the order of the
court below with an order dismissing the application.

_______________________

R.W. NUGENT

JUDGE OF APPEAL

CONCUR:

SCOTT JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

28 May 2008

STATUS: Immediate

Brown v Mbhense and another
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today (by a majority of three judges, two judges
dissenting) dismissed an appeal against a judgment of the Land Claims Court,
holding that the Land Claims Court was correct in its conclusion that the
respondent (Ms Mbhense) falls within the definition of a ‘labour tenant’ as
contained in section 1 of the Land Reform (Labour Tenants) Act 3 of 1996.

Ms Mbhense (a 67 year old woman) was born on Highgate Farm in the
Umgeni district of KwaZulu-Natal and has lived there all her life. Her parents
were also born on the farm, lived there and worked for the owner. She
claimed that there was an agreement between her parents and the owner,
entered into before she was born, that they could keep stock and also plough
portions of the land. Her parents and parents-in-law were buried on the farm.
From the time that Ms Mbhense was a girl until the time that she herself had
children (a period of more than 17 years), she worked for the owner of the
farm, first looking after his children and thereafter as a cook. When she
married, her husband (like his parents before him) was also working for the
owner of the farm and he continued to do so until his death. Ms Mbhense and
her husband used cropping land on the farm throughout their marriage. She
continued to do so after her husband’s death and she still does so today in a
small vegetable garden in front of her dwelling

It was undisputed that Ms Mbhense complied with requirement (a) of the
definition of ‘labour tenant’, having resided on the farm her whole life. The
appeal turned on whether or not she had proved that: (b) she had the right to
use cropping or grazing land in consideration for providing labour to the owner
or lessee of the farm; and (c) that her parent or grandparent resided on the
farm and had the right to use cropping or grazing land in consideration for
providing labour to the owner or lessee of the farm.

In the majority judgment, the SCA referred to the precarious position of labour
tenants and the fact that they represent a vulnerable section of society, are
almost always impecunious, unsophisticated and unschooled. It is important
to appreciate the power imbalance in the relationship between the farm owner
and the labour tenant and that labour tenancy relationships in apartheid South
Africa were by and large coercive. It is simplistic to approach the relationship
between a farm owner and a labour tenant as necessarily one in respect of
which only one member of a household or family unit has the right to be or
remain on the farm as a labour tenant. To gauge the existence of a labour
tenancy agreement in the technical and precise manner akin to that applicable
to usual residential or commercial tenancies is far too restrictive an approach
and one that goes against the objective and general tenor of the Act.

With regard to requirement (b), the majority of the SCA held that Ms Mbhense
herself did indeed have the right to use cropping land on the farm, an
entitlement which she exercised unfettered over a lengthy period of time, both
during her employment and thereafter, and in consideration for which right
she provided labour.

With regard to requirement (c), the majority held that it was only the last
element that was seriously disputed, namely whether Ms Mbhense had
proved that her parents’ right to use cropping or grazing land was in
consideration of the obligation to provide labour. Ms Mbhense testified that
the agreement between her parents and the owner was to the effect that they
were to have cropping rights and the right to graze a number of stock on the
farm, and that they were paid as well. The SCA held that this, together with
the meagre salary paid to Ms Mbhense’s father, compelled the conclusion that
her father had provided labour at least partly in consideration for the right to
use cropping and grazing land on the farm.

ends