THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 20469/2014

In the matter between:

KAREL SNYDERS

FIRST APPELLANT
SOFIA SNYDERS

SECOND APPELLANT
MINOR CHILDREN

THIRD APPELLANT

and

LOUISA FREDERIKA DE JAGER

RESPONDENT

Neutral citation:
Snyders v De Jager (20469/2014) [2015] ZASCA 137

(30 September 2015).

Coram:

Ponnan, Saldulker, Dambuza and Mathopo JJA and

Van der Merwe AJA

Heard:

15 September 2015

Delivered:

30 September 2015

Summary:

An appeal does not lie to the Supreme Court of Appeal
against an order of the Land Claims Court confirming an eviction order of the
magistrates‟ court on automatic review to it in terms of s 19(3) of the
Extension of Security of Tenure Act 62 of 1997.

______________________________________________________________
ORDER
______________________________________________________________

On appeal from: Land Claims Court, Randburg (Matojane J sitting as court of
first instance):
The matter is struck from the roll with costs.
______________________________________________________________

JUDGMENT
______________________________________________________________

Van der Merwe AJA (Ponnan, Saldulker, Dambuza and Mathopo JJA
concurring):

[1] The appellants, Mr Karel Snyders, his wife Ms Sofia Snyders and their
minor children, reside on the farm known as Voorbaat, in the district of
Ladismith in the Western Cape Province (the farm).1 The farm is owned by Mr
F J N Stassen, but is managed on his behalf by the respondent, Ms Louisa
Frederika de Jager.

[2] On 26 March 2009, the respondent launched an application in terms of
the Extension of Security of Tenure Act 62 of 1997 (ESTA) in the Magistrate‟s
Court, Ladismith for the eviction of the appellants from the farm. The
application was opposed by the appellants. Following upon an inspection in
loco on the farm and after consideration of the affidavits of the parties and the
viva voce evidence presented, the magistrate gave judgment on 14 November
2012 granting the order of eviction sought.

[3] The eviction order thereafter served before the Land Claims Court
(LCC) on automatic review in terms of s 19(3) of ESTA. This section provides:

1 The land that constitutes the farm is described in the deed of transfer as portions 44, 47, 48,
49, 50, 85, 86 and 111 of the farm Voorbaat no 42, the farm Waterkloof no 51 and the farm
Waterkloof, all situated in the Kannaland Municipality, Ladismith, Western Cape Province.

„Any order for eviction by a magistrate‟s court in terms of this Act, in respect of
proceedings instituted on or before a date to be determined by the Minister and
published in the Gazette,2 shall be subject to automatic review by the Land Claims
Court, which may ─
(a)
confirm such order in whole or in part;
(b)
set aside such order in whole or in part;
(c)
substitute such order in whole or in part; or
(d)
remit the case to the magistrate‟s court with directions to deal with any matter
in such manner as the Land Claims Court may think fit.‟

[4] The automatic review was dealt with by Matojane J. On 13 February
2013 he confirmed the eviction order of the magistrate‟s court. The relevant
part of the order reads:
„Having read the record of the proceedings in the Magistrate‟s Court, the whole of the
order made by the Magistrate on 14 November 2012 is confirmed, this is done in
terms of section 19(3)(a) of the Act.‟

[5] The appellants requested full reasons for this order, purportedly in
terms of LCC rule 69(1)(b)(ii). This rule provides that a party that wishes to
appeal against an order of the LCC, must apply to the LCC for leave to
appeal. It further provides that if application for leave to appeal was not made
orally at the time when the order was made, it must be made by notice
delivered within 15 days after the order was made or after full reasons for the
order were given.

[6] The court a quo responded to this request on 13 August 2013, when it
delivered what was described as a „Review Judgment‟, furnishing reasons for
the confirmation of the eviction order. The appellants thereafter filed a notice
of application for leave to appeal against the confirmation order and on 6
August 2014 the court a quo granted leave to appeal to this court. There is no
doubt that the intended appeal is limited to the merits of the eviction order.
That is clear from the grounds of appeal set out in the notice of application for

2 No date has as yet been determined by the Minister or published in the Gazette. In Lusan
Premium Wines (Pty) Ltd v Stoffels & others [2000] 2 All SA 367 (LCC) para 4 it was held that
the effect of the failure to do so is to extend the review jurisdiction of the Land Claims Court
indefinitely. This decision was not challenged before us.

leave to appeal in the LCC and the subsequent notice of appeal filed with the
registrar of this court. In any event it is only the eviction order which was
subject to automatic review by the LCC in terms of s 19(3) of ESTA.

[7] The first issue for determination is whether the matter is properly
before this court, the question being whether an appeal lies to this court
against an order of the LCC confirming an eviction order of a magistrates‟
court on automatic review to it in terms of s 19(3) of ESTA.

[8] It is necessary to deal at the outset with the argument of counsel for
the appellants that this court should exercise jurisdiction on the ground that
the respondent had consented to the jurisdiction of this court. The argument is
without merit. First, this court does not have original jurisdiction. Its jurisdiction
is determined by the Constitution and by statute. Its inherent power to protect
and regulate its own process does not extend to the assumption of jurisdiction
not conferred upon it by statute.3 It follows that this court cannot assume
jurisdiction merely because the parties consented. Secondly, the argument
has no factual basis. The respondent did not expressly consent to the
jurisdiction of this court. And counsel for the appellants was unable to point to
any conduct of the respondent that is consistent only with such consent. On
the contrary, in supplementary heads of argument filed with this court the
respondent contends that this court lacks jurisdiction.

[9] This issue has not been decided by this court. I am aware of only two
judgments of this court that dealt with a situation where an eviction order of a
magistrate‟s court had previously served before the LCC on automatic review.
These
decisions
are
Rashavha
v
Van
Rensburg4
and
Land
en
Landbouontwikkelingsbank van Suid-Afrika v Conradie.5 Both matters are
clearly distinguishable on the facts. In Rashavha, the eviction order made by
the magistrates‟ court against the appellant, was not confirmed by the LCC on

3 See Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at
7E-G; New Clicks South Africa (Pty) Ltd v Minister of Health 2005 (3) SA 238 (SCA) para 19
and S v Tonkin 2014 (1) SACR 583 (SCA) para 6.
4 Rashavha v Van Rensburg 2004 (2) SA 421 (SCA).
5 Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA).

automatic review. The LCC referred the matter back to the magistrate with
certain directions. The magistrate reconsidered the matter and issued a fresh
eviction order against the appellant. The appellant appealed to the LCC
against the latter eviction order. The LCC dismissed the appeal, but granted
leave to appeal to this court. Lewis JA6 remarked that there was no argument
that the appeal from the magistrates‟ court incorrectly served before the LCC.
In that matter the appeal to this court was therefore against the dismissal by
the LCC of the appeal to it. The facts in Conradie were that when the eviction
order of the magistrates‟ court came before the LCC on automatic review, it
was set aside by the LCC and substituted with an order dismissing the
application for eviction. The LCC granted leave to appeal to this court against
its substituted order. On appeal to this court, the order of the LCC was set
aside and replaced with an order confirming the eviction order of the
magistrate. In that matter therefore, the appeal to this court was against the
order of the LCC setting aside the eviction order of the magistrates‟ court and
dismissing the application for eviction.

[10] The LCC considered this issue in the recent judgment of Brummer &
another v Joostenberg.7 There the eviction order of the magistrate was
confirmed by the LCC on automatic review. The respondent in the
magistrates‟ court was aggrieved and applied to the LCC for leave to appeal
against the confirmation order. Meer AJP struck the matter from the roll. The
court reasoned that a magistrate‟s order of eviction that was confirmed by the
LCC on automatic review, remains an order of the magistrates‟ court.
However, if the LCC on automatic review substituted the order of the
magistrates‟ court with its own decision, so the court held, the substituted
decision becomes a decision of the LCC. The court therefore concluded that
despite the confirmation of the eviction order by the LCC on automatic review,
an appeal against the magistrate‟s decision lies to the LCC, but that when the
LCC substituted its decision for that of the magistrate, an appeal lies from the
LCC to this court.

6 At para 5.
7 Brummer & another v Joostenberg (LCC) unreported case no 16R/2013 (20 February 2015).

[11] I agree with the conclusions reached in Brummer. However, I reach
those conclusions by a different route.

[12] Section 19(2) of ESTA provides that civil appeals from magistrates‟
courts in terms of ESTA shall lie to the LCC. In terms of s 19(4), the
provisions of s 19(3) shall not apply to a case in which an appeal has been
noted by an occupier. In terms of LCC rule 71(1), any party that has appealed
against a decision of a magistrate‟s court over which the LCC enjoys
appellate jurisdiction, must prosecute such appeal in the same manner as a
civil appeal from the magistrates‟ court to the High Court. Section 20(1)(c) of
ESTA clothes the LCC with common law review power. It provides that the
LCC has the power to review an act, omission or decision of any functionary
acting or purporting to act in terms of ESTA. LCC rule 35 determines the
procedure to be followed in such a case. This procedure is similar to that
provided for in Uniform rule 53. LCC rule 35A deals with the procedure to be
followed in respect of automatic reviews.

[13] Thus, it is clear that ESTA recognises the distinction between an
appeal against an eviction order of a magistrate and the common law or
automatic review thereof. As a general rule, where the complaint is against
the result of the proceedings of the lower court, an appeal is the appropriate
remedy, whereas review is aimed at the method by which the result was
reached.8 This was explained as follows by Schutz JA when dealing with a
review in Minister of Environmental Affairs and Tourism v Phambili Fisheries:9
„During the course of the argument for Phambili we were frequently told that
something that Chief Director had done was “wrong”. This is the language of appeal,
not review. I do not think that the word was misused, because time and again it
appears that what is really under attack is the substance of the decision, not the
procedure by means of which it was arrived at. That is not our job.‟

8 D E van Loggerenberg & P B J Farlam Erasmus: Superior Court Practice at A1-32N; Lawsa,
first re-issue, vol 3, part 1 para 394.
9 Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd 2003 (6) SA
407 (SCA) para 52.

[14] In that regard our system of automatic review in the context of criminal
proceedings may not be an entirely inappropriate analogy. The system of
automatic review of certain proceedings in terms of the Criminal Procedure
Act 51 of 1977 provides a measure of protection to the large number of
undefended accused persons in criminal trials in the magistrates‟ court.10 The
power of the High Court to intervene on automatic review in terms of the
Criminal Procedure Act is not limited to cases of irregularity. Any point on
which the proceedings can be faulted, may be taken into account.11 It seems
clear that by providing for automatic review of eviction orders in terms of
ESTA, it was intended to similarly provide a measure of protection to the often
vulnerable occupiers of land as defined in ESTA. In Lategan v Koopman &
others,12 Gildenhuys J held, correctly in my view, that the unique South
African system of automatic review in terms of the Criminal Procedure Act
provides guidance in respect of the nature and import of automatic review in
terms of ESTA.13 He said that the court should, as a point of departure,
determine whether justice was done and that the court should follow a broad
approach and should not scrutinize the findings of the magistrate as
meticulously as it might do in the case of an appeal.

[15] Although there may well be a fine line between an automatic review in
terms of ESTA and an appeal, the distinction must not be blurred.14 In my
view the following statement of Ngcobo J in Sidumo & another v Rustenburg
Platinum Mines Ltd & others15 is of particular relevance:
„What must be emphasised is that there may well be a fine line between a review and
an appeal, in particular, where, as I will show later in this judgment, the reviewing
court considers the reasons given by a tribunal, not to determine whether the result is
correct, but to determine whether a gross irregularity occurred in the proceedings. At

10 For the history of automatic review in criminal matters in South Africa, see „On the System
of Automatic Review and Punishment of Crime‟ (1962) 79 SALJ 267.
11 Lawsa, 2 ed, vol 5, part 2, para 347; Albert Kruger Hiemstra’s Criminal Procedure at p 30-
21.
12 Lategan v Koopman & others 1998 (3) SA 457 (LCC) para 11.
13 See also Springs City Council v Occupants of the Farm Kwa-thema 210 2000 (1) SA 476
(LCC) para 19.
14 Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration &
others 2009 (3) SA 493 (SCA) para 28.
15 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) para
244.

times it may be difficult to draw the line. There is, however, a clear line. And this line
must be maintained.‟

[16] In my judgment all of this leads to the inescapable conclusion that an
order confirming an eviction order on automatic review in terms of s 19(3) of
ESTA is not an order on the substantive merits of the matter. Should the LCC
set aside the eviction order and substitute it with a substantive order of its own
in terms of s 19(3)(b) and (c), different considerations apply. In such case the
eviction order of the magistrate would no longer be extant and could therefore
not be appealed against. An appeal against the substituted order of the LCC
would then lie to this court, subject to the required leave to appeal having
been granted. Prima facie the test on appeal in such a matter would be to
determine which order the LCC should have made on automatic review, but it
is not presently necessary to decide this issue.

[17] It follows that if this court were to entertain the appeal on the merits, it
would in effect be hearing an appeal directly from the magistrates‟ court to this
court.16 Given the hierarchy of our courts, the undesirability of such a course
is patent. Moreover, that would be in direct conflict with s 19(2) of ESTA,
which, as I have said, provides that civil appeals from a magistrate‟s court in
terms of ESTA lie to the LCC.

[18] In terms of s 16(1)(c) of the Superior Courts Act 10 of 2013, any appeal
against any decision of a court of similar status to the High Court (such as the
LCC), lies to this court upon leave to appeal having been granted in terms of
s 17 of the Superior Courts Act by that court or, if refused, by this court. For
the reasons mentioned, the LCC did not determine the merits of the eviction
order of the magistrate. The LCC was therefore not empowered to grant leave
to appeal to this court on the merits, as it purported to do. In the
circumstances, the order of the LCC granting leave to appeal to this court is a
nullity.  In the absence of leave to appeal on the merits having properly been

16 See S v Tonkin (above) para 6.

granted in terms of ss 16 and 17 of the Superior Courts Act, this court has no
jurisdiction to entertain the matter.17

[19] As the matter is not properly before us, we can hardly enter into the
merits of the dispute, as was urged upon us by counsel for the appellant.
Consequently the matter falls to be struck from the roll. In my view the
respondent is entitled to her costs, even though the financial position of the
appellants appears such that any award of costs will in all probability be no
more than cold comfort to the respondent.

[20] The matter is struck from the roll with costs.

_______________________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL

17 Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015 (4) SA 34 (SCA)
para 13.

APPEARANCES:
For Appellants:

P R Hathorn
Instructed by:
J D van der Merwe Attorneys, Stellenbosch
Webbers, Bloemfontein

For Respondent:

J J Botha
Instructed by:
Blythe & Coetzee, Ladismith
Rosendorff Reitz Barry, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 30 September 2015
Status: Immediate
SNYDERS v DE JAGER
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

1.
The appellants, Mr Karel Snyders, his wife Ms Sofia Snyders and their minor
children, reside on the farm Voorbaat in the district of Ladismith in the Western Cape
Province (the farm). The respondent, Ms L F de Jager is the manager of the farm. The
respondent applied in the Magistrates’ Court of Ladismith for the eviction of the appellants
from the farm. The magistrate granted the order sought. The eviction order of the magistrate
was confirmed by the Land Claims Court (LCC) on automatic review to it in terms of s 19(3)
of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

2.
The appellants sought and obtained leave to appeal to the Supreme Court of Appeal
(SCA) against the confirmation order of the LCC. Today the SCA held that an appeal does
not lie to the SCA against an order of the LCC confirming an eviction order of the
Magistrates’ Court on automatic review to it in terms of s 19(3) of ESTA. The SCA therefore
struck the matter from the roll.

--ends--