THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 652/17

In the matter between:

FRIEDSHELF 325 (PTY) LIMITED
FIRST APPELLANT
IAN RICHARD BAILIE

SECOND APPELLANT

and

SIZANE BETTY MOKWENA

RESPONDENT

Neutral citation: Friedshelf 325 (Pty) Ltd & another v Mokwena (652/17)
[2018] ZASCA 102 (5 July 2018)

Coram:
Maya P, Mbha, Van der Merwe and Schippers JJA and Mothle
AJA

Heard:
11 and 29 May 2018

Delivered: 5 July 2018

Summary: Land reform – labour tenant – person who has a right to reside on a
farm under the Land Reform (Labour Tenants) Act 3 of 1996 – ‘farm’ defined
as a portion of land under the Subdivision of Agricultural Land Act 70 of 1970
– subject land in area of jurisdiction of a municipality – not agricultural land –
respondent not a labour tenant but an ‘occupier’ as defined in the Extension of
Security of Tenure Act 62 of 1997– appeal upheld.

ORDER

On appeal from: Land Claims Court, Randburg (Ncube AJ sitting as court of
first instance):
The appeal is upheld.
The order of the Land Claims Court is set aside and replaced with the
following order:
‘The plaintiff’s claim is dismissed. There is no order as to costs.’

JUDGMENT

Schippers JA (Maya P, Mbha and Van der Merwe JJA and Mothle AJA
concurring):

[1] Two issues arise in this appeal. The first is whether certain land known
as Portion 50 of the farm Kromdraai 292 JS, Emalahleni, Mpumalanga (the
subject property), on which the respondent (Ms Mokwena) resides, constitutes
a ‘farm’ as contemplated in the Land Reform (Labour Tenants) Act 3 of 1996
(the LTA). The second, which has to be determined only if the first issue is
decided against the appellants, is whether Ms Mokwena had the right to use
cropping and grazing land on the subject property and in consideration of such
rights provided her labour to the owner thereof.

[2] The basic facts can be shortly stated. Ms Mokwena, who was 71 when
the case was heard in 2016, has been living on the subject property since 1992.
It was previously owned by her former employer, Mr Neil Francis. It is now in

the registered ownership of the first appellant, Friedshelf 325 (Pty) Ltd. The
second appellant, Mr Ian Bailie, is the sole shareholder and director of the first
appellant.

[3] In August 2015 Ms Mokwena instituted an action in the Land Claims
Court (LCC). She claimed an order that she be declared a labour tenant under
the LTA, and that she be awarded that portion of the subject property that she
and her family were using on 2 June 1995. In support of her claim for labour
tenancy, Ms Mokwena alleged the following in her statement of case. She and
her family lived on the subject property since 1992. As at 2 June 1995 they
resided and continued to reside on the subject property, exercised the right to
use a portion thereof for cropping and grazing purposes, and in consideration
of the right to occupy and use the subject property, provided labour to its
former owner, Mr Francis. Ms Mokwena did not terminate her labour tenancy
by leaving the farm, appointing a successor or waiving her rights. Her late
father had lived on the farm Elasfontein, near Arnot, had the right to crop and
graze on it and in consideration of that right, provided labour to the owner of
that farm. All of these allegations were denied in the plea.

[4] The parties agreed that the question whether Ms Mokwena was a labour
tenant would be decided first, and that her claim for a portion of the subject
property would be postponed. In the ensuing trial, Ms Mokwena testified that
in 1982 she left Groblersdal in search of employment in Witbank, where Mr
Francis employed her as a domestic worker. She looked after his children and
did the washing, ironing and cooking. She was paid R150 per month and
received annual salary increases.

[5] The Francis family left Witbank when Mr Francis bought the subject
property. He told Ms Mokwena that he would be farming on it and that the

same would apply to her. The Francis family moved to the subject property in
1992, together with Ms Mokwena, her children, grandchildren and mother. She
continued to receive her monthly salary and said that she had an oral
arrangement with Mr Francis that she would look after his children and he
would give her a piece of land, on which she now lives. He built a four-roomed
house for Ms Mokwena and her family. In terms of their arrangement she was
also allowed to grow crops and keep livestock. She planted vegetables and
maize, and kept cows and chickens. According to Ms Mokwena, Mr Francis
gave her the piece of land, granted her cropping and grazing rights and paid her
a salary, in return for the domestic work she did and her labour in raising Mr
Francis’ children.

[6] Mr Francis left the subject property in 2002. The first appellant bought
the property at a sale in execution in 2003. Ms Mokwena and her family
continued living on it. She said that she never worked for Mr Bailie. He came
to her home and told her that the entire property was his, as she put it, ‘the land
is all … one thing’. She denied this. In her words,
‘I said no, this piece belongs to me, referring to where I was residing’.

[7] Ms Mokwena said that when she left Groblersdal to look for work, her
father was already working on the farm Elasfontein, where he lived. Mr
Francis was not the registered owner of Elasfontein which Mr Mokwena
worked and ploughed. He was not paid for that work but was given a piece of
land to plough and a home on that farm. Her father kept cattle, horses, sheep
and chickens, and also planted crops such as maize and beans. All of this
evidence went unchallenged.

[8] Mr Bailie did not testify and the appellants closed their case without
adducing any evidence. But they raised a preliminary point that the subject

property was not a farm as contemplated in the LTA, on the basis that it was
located within the area of jurisdiction of the Emalahleni Local Municipality.

[9] The LCC dismissed the preliminary point. It held that the subject
property was ‘agricultural land’ within the meaning of that term in the
Subdivision of Agricultural Land Act 70 of 1970 (the Agricultural Land Act),
and therefore was a ‘farm’ as envisaged in the LTA. The court found that had
Ms Mokwena not provided labour to Mr Francis, she would not have been
permitted to reside, plant crops or graze stock on the subject property. The
contract of labour tenancy was not one concluded between equals and, having
regard to the combined effect of the substance of the arrangements entered into
between Ms Mokwena and Mr Francis, Ms Mokwena was a labour tenant. The
appeal against this decision is with the leave of the LCC.

[10] I turn to consider the first issue – whether the subject property is a
‘farm’ as defined in the LTA. Section 1 of the LTA provides that a labour
tenant means 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), … and in consideration of such right provides or has provided labour to the
owner …; and
(c)
whose parent or grandparent resided 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’.

[11] 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 Agricultural Land Act, in relevant part, defines ‘agricultural land’ as
meaning any land except–
‘(a)
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 … and in the province of the Transvaal, an area in respect
of which a local area committee has been established under section 21(1) of the Transvaal
Board for the Development of Peri-Urban Areas Ordinance, 1943 (Ordinance 20 of 1943 of
the Transvaal), but excluding any such land declared by the Minister after consultation with
the executive committee concerned and by notice in the Gazette to be agricultural land for
the
purposes of this Act;
…
(f)
land which the Minister after consultation with the executive committee concerned
and by notice in the Gazette excludes from the provisions of this Act:
Provided that land situated in the area of jurisdiction of a transitional council as defined in s
1 of the Local Government Transition Act, 1993 (Act 209 of 1993), which immediately
prior to the first election of the members of such transitional council was classified as
agricultural land, shall remain classified as such’.

[12] The following facts were common cause in the LCC. At the relevant
times and from 1971, the subject property fell within the area of jurisdiction of
the Witbank Municipality. Immediately prior to the first election of the
members of the Witbank Transitional Local Municipality, it was situated
within the area of jurisdiction of the relevant transitional council. The subject
property is currently situated within the area of jurisdiction of the Emalahleni
Local Municipality. The title deed of the subject property states that it shall be
used solely for residential and agricultural purposes, ie the number of buildings
shall not exceed one residence, together with further buildings and structures
required for the purposes of agriculture. According to its zoning certificate, the
subject property is zoned ‘AGRICULTURAL (Primary uses: Agricultural
buildings and Dwelling house)’.

[13] On the first issue the appellants’ case was straightforward. They
contended that since 1971 the subject property was not agricultural land
because it had been incorporated into the area of jurisdiction of the former
Witbank Municipality. Therefore, it was exempted from the definition of
‘agricultural land’ in the Agricultural Land Act and consequently did not fall
within the definition of a ‘farm’ as contemplated in the LTA.

[14] The LCC concluded that the term ‘agricultural land’ in the Agricultural
Land Act should be interpreted ‘to include land which is situated within the
area of jurisdiction of any municipality which is used for agricultural purposes
or which is agricultural in character’. It came to this conclusion apparently on
the basis of a ‘purposive interpretation’ of the word, ‘farm’ as defined in the
LTA, and ‘agricultural land’ in the Agricultural Land Act, having regard to s
25(6) of the Constitution;1 the purposes of the LTA; and s 39(2) of the
Constitution.2

[15] It is a settled rule of statutory interpretation that words in a statute must
be given their ordinary grammatical meaning and be construed in the light of
their context. That context is not limited to the language of the rest of the
statute, but includes the subject matter of the statute, its apparent scope and
purpose and within limits, its background.3 Put tersely, when interpreting
legislation, what must be considered is the language used; the context in which

1 Section 25(6) of the Constitution provides:
‘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 comparable redress.’
2 Section 39(2) of the Constitution reads:
‘When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’
3 Jaga v Dönges, NO & another; Bhana v Dönges NO & another 1950 (4) SA 653 (A) at 664E-H, affirmed in
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & others [2004] ZACC 15; 2004
(4) SA 490 (CC) para 89.

the relevant provision appears; and the apparent purpose to which it is
directed.4

[16] It is also settled that s 39(2) of the Constitution requires courts to ‘adopt
the interpretation which better promotes the spirit, purport and objects of the
Bill of Rights’.5 As in the case of the interpretation of the Restitution of Land
Rights Act 22 of 1994 (the Restitution Act), which must be understood
purposively because it is remedial legislation linked to the Constitution, when
interpreting the LTA, ‘a generous construction over a merely textual or
legalistic one in order to afford claimants the fullest possible protection of their
constitutional guarantees’ must be preferred.6 However, while s 39(2) of the
Constitution enjoins courts to prefer interpretations of legislation that fall
within constitutional bounds over those that do not, it is subject to the proviso
‘that such an interpretation can be reasonably ascribed to the section’.7

[17] The main purposes of the LTA, according to its long title, are to provide
for the acquisition of land and rights in land by labour tenants, and for security
of tenure of labour tenants and those occupying or using land as a result of
their association with labour tenants. The preamble to the LTA states that it
was passed because labour tenancy in this country is the result of racially
discriminatory laws and practices that led to the systematic breach of human
rights and denial of access to land; to ensure the protection of labour tenants
who are persons disadvantaged by unfair discrimination so as to promote their

4 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18; AB & another v Minister of Social Development [2016] ZACC 43; 2017 (3) SA 570 (CC) para 274.
5 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another [2008] ZACC 12; 2009 (1) SA 337 (CC) para 45.
6 Department of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA
199 (CC) para 53.
7 Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd &
others In re: Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others [2000] ZACC 12; 2001 (1)
SA 545 (CC) para 23; University of Stellenbosch Legal Aid Clinic & others v Minister of Justice and
Correctional Services & others [2016] ZACC 32; 2016 (6) SA 596 (CC) para 135.

full and equal enjoyment of human rights and freedoms; and to ensure that
labour tenants are not further prejudiced.

[18] With these principles in mind, I turn to the construction of ‘agricultural
land’ as defined in the Agricultural Land Act. The inevitable starting point is
the language of the provision.8 It states that agricultural land is any land, except
land situated in the area of jurisdiction of a municipal council and various other
local authorities and structures. The wording of the definition makes it clear
that there is a distinction between ‘any land’ on the one hand, and land situated
in the area of jurisdiction of a municipal council on the other. The former
constitutes agricultural land, the latter not. The definition expressly excludes
land situated in the area of jurisdiction of a municipality. It says nothing about
land in ‘any municipality which is used for agricultural purposes or which is
agricultural in character’.9 The definition, on its plain language, is the clearest
indication that the legislature did not intend that municipal land used for
agricultural purposes, should be regarded as ‘agricultural land’ as defined in
the Agricultural Land Act.

[19] This brings me to the proviso to the definition of ‘agricultural land’. The
reason for its inclusion in the definition was explained in Wary Holdings as
follows:10
‘The introduction of the proviso into the definition of “agricultural land” was dictated by the
fact that, in terms of the Transition Act, transitional councils were established resulting in
the then existing “agricultural land” falling within the jurisdiction of the transitional
councils and thereby becoming municipal land. It was in order to ensure (at least pro
tempore) that “agricultural land” retained its status, despite its falling within the jurisdiction
of a transitional council, that the proviso was added to the definition. The corollary thereof
…. is that the intention was that the functional area of agriculture continue (at least pro

8 Natal Joint Municipal Pension Fund fn 4 para 18.
9 Emphasis added.
10 Wary Holdings fn 5 para 56.

tempore) to repose in the Minister, including the administration of the Agricultural Land
Act. No doubt it was realised by the legislature that, despite the establishment of transitional
councils, it was necessary for the existence of “agricultural land”, and the Minister’s control
and administration thereof in order to achieve the purpose of the Agricultural Land Act, to
continue, so as to ensure that “agricultural land”, and its productive capacity, would not be
eradicated as a result of the transition to democracy. This fact was recognised by the
Supreme Court of Appeal in terms of its comment that the situation would otherwise have
been untenable.’

[20] The interpretation to be given to the proviso, the Constitutional Court
said,
‘is that the duration of the classification of land as “agricultural land” was not
tied to the life of transitional councils, and that the reference therein to “land
situated within the jurisdiction of a transitional council” was dictated by the
factual position which then obtained and which had to be addressed, and the
way that was done was … by pinpointing the stage from which land classified
as “agricultural land” would remain so classified.’11

[21] As mentioned above, the subject property had been incorporated into the
area of jurisdiction of the Witbank Municipality in 1971. From that date it was
no longer agricultural land because it fell within the area of jurisdiction of a
municipality. As was said in Kotzé:12
‘It was submitted by the first respondent, correctly in my view, that the language of the Act
must be interpreted to mean what it meant when the Act was promulgated …. Agricultural
land therefore still exists for the purposes of the relevant Act. It is all land, except land that
was situated within the area of jurisdiction of the structures named in section 1 of Act 70 of

11 Wary Holdings fn 5 para 62.
12 Kotzé v Minister van Landbou en andere 2003 (1) SA 445 (T) at 454I-455B. The relevant passage reads:
‘Namens die eerste respondent is myns insiens tereg aangevoer dat die bewoording van die Wet uitgelé moet
word om te beteken wat dit beteken het toe die Wet gemaak is. … Landbougrond bestaan gevolglik steeds vir
die doeleindes van die betrokke Wet. Dit is alle grond, behalwe grond wat geleë was binne die regsgebied van
die strukture wat in art 1 van Wet 70 van 1970 genoem word, op die laaste tydstip wat daardie strukture
inderdaad nog bestaan het. Landbougrond wat as sodanig geklassifiseer is en binne die regsgebied van ‘n
vroeëre oorgangsraad in terme van Wet 209 van 1993 geleë is, is dus ook steeds landbougrond.’

1970, at the last point in time at which those structures actually still existed. Agricultural
land that was classified as such and was situated within the area of jurisdiction of an earlier
transitional council in terms of Act 209 of 1993, therefore also remains agricultural land.’
(My translation.)

[22] At the last point in time of the existence of the former Witbank
Municipality, the subject land was situated within the area of jurisdiction of
that Municipality. As such, it was excluded from the definition of agricultural
land. Immediately prior to the first election of the members of the transitional
council, the subject land was situated in the area of jurisdiction of that council,
but it was not classified as agricultural land.

[23] Thus, on the plain wording of the definition of ‘agricultural land’ in the
Agricultural Land Act, having regard to its placement and purpose in the
statutory scheme, the subject property is not a ‘farm’ as envisaged in the LTA.
This plain wording is supported by the immediate context – the subject matter
of the Agricultural Land Act and its purpose – to prevent the fragmentation of
agricultural land into small uneconomic units, in the national interest.13 In order
to achieve that purpose, the legislature restricted the right of landowners to
subdivide agricultural land; and prohibited the subdivision or sale of such land
without the written consent of the Minister of Agriculture (the Minister).14

[24] The Minister’s wide-ranging powers of regulation and control in respect
of agricultural land, were summarised in Wary Holdings as follows:15
‘(a)
The Minister may “in [her] discretion” refuse an application for her consent (s (2)).
(b)
The Minister also has the discretion to grant an application for her consent subject to
the imposition of conditions, including conditions as to the purpose for or manner in
which the land may be used (s (2)(a)).

13 Wary Holdings fn 5 para 13, affirming Geue & another v Van der Lith & another 2004 (3) SA 333 (SCA).
14 Ibid.
15 Wary Holdings fn 5 para 13.

(c)
The Minister has the power to enforce any condition so imposed (ss (3)).
(d)
The Minister may also vary or cancel any such condition (ss (4)).
(e)
The Minister may consider whether or not the land is to be used for agricultural
purposes and, if satisfied that it will not be so used, she must consult with the
relevant provincial authority before granting her consent to the application. In such
cases the provincial authority has the power to determine conditions with regard to
the purpose for or manner in which the land may be used, and to enforce them, or to
vary or cancel them (ss (2)(b), (3) and (4)).’

[25] When the purpose of the Agricultural Land Act and the extensive
powers granted to the Minister under it are considered, the legislative intention
in the LTA in defining a ‘farm’ as meaning a portion of agricultural land as
defined in the Agricultural Land Act, is readily apparent – the security of
tenure of labour tenants, ensuring their protection and safeguarding them
against prejudice. This is entirely consistent with the purposes of the LTA. The
legislature was aware of the restrictions imposed on the subdivision and sale of
agricultural land by the Agricultural Land Act, and that only the Minister has
the power to exclude land from the provisions of the latter Act, which would
give labour tenants greater security and advance the purposes of the LTA.

[26] An interpretation that farm land does not include land in a municipality
used for agricultural purposes, is further supported by the wider context of land
reform. The Extension of Security of Tenure Act 62 of 1997 (ESTA), which
like the LTA has its genesis in s 25(6) of the Constitution, expressly grants
security of tenure to occupiers of land designated for agricultural purposes,
within a township. Section 2 of ESTA provides, inter alia:
‘(1) … this Act shall apply to all land other than land in a township established, approved,
proclaimed or otherwise recognised as such in terms of any law, or encircled by such a
township or townships, but including–
(a)
any land within such a township which has been designated for agricultural purposes
in terms of any law; and

(b)
any land within such a township which has been established, approved, proclaimed
or otherwise recognised after 4 February 1997, in respect only of a person who was an
occupier immediately prior to such establishment, approval, proclamation or recognition.
(2)
Land in issue in any civil proceedings in terms of this Act shall be presumed to fall
within the scope of the Act unless the contrary is proved.’

[27] The legislature has thus made specific provision to secure the tenure of
persons occupying land in a township (formerly undeveloped segregated urban
areas which have been incorporated into municipalities and towns) designated
or used for agricultural purposes. The LCC’s interpretation runs counter to the
definition of a ‘farm’ in, and the purposes of, the LTA. It also disregards s 2 of
ESTA and its aims – which include security of land tenure to a particular
category of beneficiary – an occupier.16

[28] An ‘occupier’ is defined in ESTA as,
‘a person residing on land which belongs to another person, and who has on 4 February
1997 or thereafter had consent or another right in law to do so, but excluding–
(a)
…
(b)
a person using or intending to use the land in question mainly for industrial, mining,
commercial or commercial farming purposes, but including a person who works the
land himself or herself and does not employ any person who is not a member of his
or her family; and
(c)
a person who has an income in excess of the prescribed amount.’

[29] The exclusions in subsections (b) and (c) do not apply in this case. On
the facts, Ms Mokwena qualifies as an occupier in terms of ESTA. She has
been residing on the subject property with consent since 1992, and has been
working the land herself. Indeed, counsel for the appellants, in argument
before us, rightly conceded that Ms Mokwena was an occupier as

16 LAWSA 2014 (2 ed) vol 14 para 127.

contemplated in ESTA. In this regard, he indicated that a settlement proposal
had been made to Ms Mokwena’s attorneys and the matter was postponed in
order to give the parties an opportunity to attempt to resolve it. Subsequently
the registrar of this Court was informed that the parties were unable to settle
the matter. By reason of the conclusion to which I have come, it is unnecessary
to determine the second issue.

[30] To sum up. Having regard to the meaning of ‘farm’ in the LTA, the
context in which the definition appears and its purpose in the statutory scheme,
it cannot ‘be interpreted to include land which is situated within the area of
jurisdiction of any municipality which is used for agricultural purposes or
which is agricultural in character’.  On a purposive approach, in the light of s
39(2) of the Constitution, the LCC’s interpretation cannot reasonably be
ascribed to the definition.17 In this regard the dictum of Schreiner JA in Bhana
v Dönges,18 valid nearly 80 years ago, still holds true:
‘Ultimately, when the meaning of the language in the context is ascertained, it must be
applied regardless of the consequences and even despite the interpreter’s firm belief, not
supportable by factors within the limits of interpretation, that the legislator had some other
intention.’

[31] What remains is the issue of costs. The appellants sought a costs order
against Ms Mokwena. It is beyond question that she sought to enforce her right
to legally secure tenure enshrined in s 25(6) of the Constitution, and given
effect to in the LTA. That being so, the principle that a costs order would
hinder the advancement of constitutional justice applies.19 Further, apart from
raising an important constitutional issue, this appeal relates to the proper
interpretation of the LTA that is beneficial not only to the parties in this case,

17 Hyundai fn 7 para 32.
18 Footnote 3 at 664F.
19 Biowatch Trust v Registrar, Genetic Resources, & others [2009] ZACC14; 2009 (6) SA 232 (CC) paras 16
and 24.

but also to all claimants for legally secure tenure, similarly situated.20 There is
accordingly no justification for an order that Ms Mokwena be directed to pay
costs. The parties agreed that each party would pay its or her own costs
occasioned by the postponement of the appeal on 11 May 2018.

[32] The following order is issued:
The appeal is upheld.
The order of the Land Claims Court is set aside and replaced with the
following order:
‘The plaintiff’s claim is dismissed. There is no order as to costs.’

_______________________

A Schippers
Judge of Appeal

20 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) para 90.

APPEARANCES

For Appellant:

J De Beer (with R Ellis)

Instructed by:

Ian Bailie Attorneys, Witbank
Honey Attorneys, Bloemfontein

For Respondent:

D Whittington

Instructed by:

AY Bhayat Attorneys, Lonehill
Bezuidenhout Inc, Bloemfontein