REPORTABLE
CASE  NO: 676/98
In the matter between :
THEMBA WILLIAM DHLAMINI
Appellant
and
COENRAAD T LOOCK
First Respondent
JACOBUS M VERPLOEGH
Second Respondent
Before:
VIVIER, NIENABER, MARAIS, SCHUTZ and ZULMAN JJA
Heard:
23 FEBRUARY 2001
Delivered:
19 MARCH 2001
Court - Jurisdiction of Land Claims Court
J U D G M E N T

VIVIER JA
VIVIER JA:
[1] During August 1997 the respondents instituted proceedings by
notice of motion in the Transvaal Provincial Division for the eviction of
the appellant from the farm Katspruit in the district of Standerton and for
an order declaring that the appellant was not a labour tenant as defined
in the Land Reform (Labour Tenants) Act 3 of 1996 ("the Act").  [2]
The application was opposed by the appellant, and after a dispute
of fact had arisen on the affidavits on the issue of whether the appellant
was a labour tenant, Preiss J on 25 February 1998 directed that oral
evidence be led on this issue.
[3] A further question then arose as to whether Preiss J was obliged
to transfer the case to the Land Claims Court in view of the provisions

of sec 13 (1A) of the Act, which had been introduced into the Act by
sec 34 of the Land Restitution and Reform Laws Amendment Act 63 of
1997 and which had come into effect on 21 November 1997.  Sub-
section 13 (1A), quoted and dealt with more fully below, provides that
if an issue "arises" in a case in a magistrate's court or a high court
which requires that court to interpret or apply the Act and no oral
evidence has been led, such court shall transfer the case to the Land
Claims Court and no further steps may be taken in the case in such
court.  Preiss J rejected the appellant’s contention that the case had to
be transferred to the Land Claims Court and held that sec 13 (1A) only
applies to cases in which the interpretation or application of the Act
"arises" as an issue after 21 November 1997.  He held that in the present
case such issue arose before 21 November 1997 and accordingly
referred the dispute of fact to the Transvaal High Court.

[4] At the resumed hearing oral evidence was led on behalf of both
the appellant and the respondents.  At the end of the case Preiss J held
for the respondents and granted the orders sought in the notice of
motion with costs.  He refused leave to appeal.  The appellant thereafter
applied to this Court for leave to appeal and the following order was
made by the two members of the Court who considered the application.
"In terms of sec 21 (3) (c) (ii) of Act 59 of 1959 the
petitions for condonation and for leave to appeal are
referred to the court for consideration upon argument,
which will include argument on the merits of the
appeal."
The matter is now before us in terms of this order.  At the hearing of
the appeal there was no appearance for the second respondent.
[5] The petition for condonation concerns the late filing of the
application to this Court for leave to appeal.  Leave to appeal was
refused by the Court a quo on 10 September 1998.  The application for

leave to appeal was filed 22 days late on 23 October 1998.  The
appellant’s explanation for the delay is that the application was ready for
lodging as early as 14 September 1998 but was delayed by the late
receipt of the Court a quo’s judgments.  A copy of the application
without annexures was in the meantime served on the respondents'
attorneys on 18 September 1998.  In my view the delay was not
inordinate and there is a satisfactory explanation for it.  It is accordingly
necessary to consider the appellant’s prospects of success on appeal.
[6] The second respondent is the owner of the farm Katspruit, the
first respondent is his tenant and the appellant resides on the farm.  It
is common cause that the appellant was employed on Katspruit at least
from 1 September 1990 by a previous tenant and from 1 September
1994 by the first respondent. He was dismissed on 31 August 1996 and
he thereafter brought unfair dismissal proceedings against the first

respondent in the Agricultural Labour Court.  The matter was settled on
27 June 1997 when he accepted payment of the sum of R500-00 in full
and final settlement of his claims.  He has since his dismissal refused to
leave the farm.  This led to the institution of the present proceeding in
August 1997.
[7] The central issue in the Court a quo was whether the appellant
was a labour tenant as defined in the Act.  According to the definitions
clause in sec 1 of the Act a labour tenant is 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,
including a person who has been appointed a
successor to a labour tenant in accordance which the
provisions of section 3 (4) and (5), but excluding a
farmworker."
[8] In the Court a quo the appellant’s case was that the satisfaction
of paras (a) and (b) of the definition was sufficient in order to qualify
as a labour tenant.  The Court a quo, however, held that paras (a), (b)
and (c) must be interpreted conjunctively so that the requirements of all
three paragraphs had to be satisfied before a person could qualify as a
labour tenant.  It was held that the appellant only satisfied para (a) of the
definition, and that he did not meet the requirements of para (b) in that
he had not established any right to use cropping or grazing land on
Katspruit or another farm of the second respondent.  At a late stage in
the proceedings before the Court a quo the appellant applied for a

postponement in order to lead evidence on para (c).  The application
was refused by the Court a quo.
[9] The Court a quo also rejected a further argument raised on behalf
of the appellant to the effect that the Court could not deal with the
matter pending the determination of an application for an award of land
or land rights which the appellant had submitted to the Director-General
in terms of sec 16 of the Act.
[10] This Court has since held in Ngcobo and Others v Salimba CC;
Ngcobo v Van Rensburg 1999 (2) SA 1057 (SCA) that paras (a), (b)
and (c) of the definition of a labour tenant has to be interpreted
conjunctively.  The appellant consequently no longer persists with the
contention advanced in the Court a quo and in the application to this
Court for leave to appeal that the evidence led in the Court a quo
established that he was a labour tenant.

[11] The first question for determination is whether the Court a quo
was correct to refer the matter for oral evidence before that Court in
view of the provisions of sec 13 (1A) of the Act.  Sec 13 in its present
form reads as follows:
"(1) The provisions of sections 7 to 10 shall apply to
proceedings
pending
in
any
court
at
the
commencement of this Act.
(1A) With the exception of issues concerning the
definition of ‘occupier’ in section 1 (1) of the
Extension of Security of Tenure Act, 1997 (Act No
62 of 1997), if an issue arises in a case in a
magistrate’s court or a High Court which requires
that court to interpret or apply this Act and -
(a)
no oral evidence has been led, such
court shall transfer the case to the Court
and no further steps may be taken in the
case in such court;
(b)
any oral evidence has been led, such
court
shall
decide
the
matter
in
accordance with the provisions of this
Act.
(2)
Any decision or order made by a magistrate’s

court in proceedings referred to in subsection (1) or
(1A), shall in its entirety be subject to appeal to the
Court if any of the grounds of appeal relates to the
application or interpretation of this Act in such
decision or order.
(3)
The Court shall have exclusive jurisdiction to
hear any appeal contemplated in sub-section (2),
notwithstanding the provisions of any other law to the
contrary."
"Court" is defined in sec 1 of the Act to mean the Land Claims Court
established by sec 22 of the Restitution of Land Rights Act 22 of 1994.
(The exception referred to in the opening words of sub-sec (1A) was
introduced by sec 6 of Act 11 of 2000 and does not affect the present
case.)
[12] The date of commencement of the Act was 22 March 1996.  As
already indicated, sec. 13 (1A) was introduced with effect from 21
November 1997.  Before the introduction of sec 13 (1A) the effect of

sec 5 of the Act, read with sec 13 (1) thereof was that, save for
proceedings pending in any other court as at 22 March 1996, only the
Land Claims Court could order the eviction of a labour tenant or his or
her associate.  In terms of sec 5, read with sec 13 (1), such an order
could also be made by any court in proceedings pending before that
court on 22 March 1996, subject only to the application by such court
of the provisions of sections  7  to 10 of the Act and the provision in
sec 13 (3) that the Land Claims Court had exclusive jurisdiction to hear
appeals against the decisions or orders of magistrate's courts.
[13] In concluding that sec 13 (1A) did not apply to the present case
Preiss J reasoned that the use of the present tense "arises" in the sub-
section indicated the legislature's intention to confine the operation of the
sub-section to cases where the interpretation or application of the Act
arose as an issue after 21 November 1997.  He held that the present was

not such a case and emphasised that the replying affidavit had been
lodged on 20 November 1997 i.e. the day before the coming into effect
of sec 13 (1A).  He held that this made the factual dispute on the
affidavits an issue which had already arisen so that it could not be said
to arise after 21 November 1997.
[14] I am unable to agree with the learned Judge's reasoning.  In my
view the words "an issue arises" are neutral and do not necessarily
import the future.  An issue can be said to arise in a case from the time
it is raised until judgment is given.  An issue "arises" in a case when it
is raised on the pleadings or affidavits.  It can, however, also be said
that an "issue arises" when it arises during argument or for decision at
the end of the case.  In the present case the factual dispute in regard to
the issue of whether or not the appellant was a labour tenant still
required a decision by the court at the end of the case and in this sense

it can be said that it was an issue arising for decision within the meaning
of the words "an issue arises" in sec 13 (1A).  Para (b) of the
subsection in fact recognises that an issue can arise in a case after it has
been raised on the pleadings or affidavits.  This paragraph provides for
the situation where an issue arises after oral evidence has been led in a
case.  In such a situation a court other than the Land Claims Court is
enjoined to decide the matter.  Even on Preiss J's construction of sec
13 (1A) therefore, the sub-section applied to the present case.
[15] There are other indications that the legislature, in enacting sec 13
(1A), intended the sub-section to apply to all cases pending at its
commencement, save where evidence had already been led.  The Land
Claims Court was established by the Restitution of Land Rights Act 22
of 1994 which came into operation on 2 December 1994.  Sec 30 (1) of
Act 22 of 1994 provides that the Land Claims Court may admit any

evidence which it "considers relevant and cogent to the matter being
heard by it, whether or not such evidence would be admissible in any
other court of law".  A special court was thus created with exclusive
jurisdiction to decide matters involving the interpretation or application
of the Act.
[16] As indicated above, the effect of sec 5 of the Act, read with sec
13 (1), was that a labour tenant or his or her associate could only be
evicted by an order of the Land Claims Court, save in proceedings
which were pending at the commencement of the Act.  Before the
introduction of sec 13 (1A) these provisions could not prevent any court
other than the Land Claims Court from interpreting or applying the Act
in order to decide that a person was not a labour tenant or associate for
purposes of a common law application for his or her eviction, whether
such proceedings were instituted before or after the commencement of

the Act.  To allow such courts to continue applying or interpreting the
Act would clearly be contrary to the intention of the legislature.
[17] It was to avoid this problem that sec 13 (1A) was enacted in
order to deprive all other courts of jurisdiction to decide an issue
requiring the application or interpretation of the Act (usually the issue of
whether a person is a labour tenant or not) and to confer exclusive
jurisdiction upon the Land Claims Court to interpret or apply the Act.
Sec 13 (1A) was thus clearly intended to apply to all cases pending at
21 November 1997, save those for cases where oral evidence had
already been led, where practical and procedural difficulties necessitated
the exception.
[18] In Mngomezulu v Böhmer; Masondo and Others v Shawe (an
unreported judgment in cases nos 2411/1997 and 2173/1997 (N))
McCall J held that sec 13(1A) applied to all cases pending in a

magistrate's court or high court at 21 November 1997 where the court
was called upon to decide an issue which arose in the case requiring the
interpretation or application of the Act.  McCall J held that an issue can
be said to arise within the meaning of sec 13 (1A)  when it is formulated
on the pleading or affidavits as well as when it arises for decision at the
end of the case.  In another unreported case, Chris Carlyol (Pty) Ltd
and Another v Sindane and Another (case no. 15761/1997) decided in
the Transvaal Provincial Division, Du Plessis J arrived at a similar
conclusion.  I am in respectful agreement with these two decisions.
[19] For the reasons given I am of the view that Preiss J erred in not
transferring the case to the Land Claims Court, and consequently that the
Court a quo had no jurisdiction to hear and decide the matter at the
resumed hearing.
[20] I must finally deal with the argument advanced on behalf of the

appellant that his pending application in terms of Chapter III of the Act
for an award of land or land rights had the effect of staying all legal
proceedings against him.  Sec 14 of the Act, which was relied upon for
the argument, provides that no labour tenant may be evicted while an
application under Chapter III is pending unless the Land Claims Court
is satisfied that special circumstances exist which justify such an order.
The short answers to the argument are that the present proceedings were
not concerned with the eviction of a labour tenant and that sec 14 is in
any event no absolute bar to the institution of proceedings for the
eviction of a labour tenant.
[21] In the result the following order is made:
1.
Condonation is granted for the late filing of the application
to this Court for leave to appeal;
2.
Leave to appeal to this Court against the judgment and

orders of the Court a quo is granted;
3.
The appeal succeeds.  The order of the Court a quo of 25
February 1998 is set aside and there is substituted in its
stead an order transferring the case in terms of sec 13 (1A)
(a) to the Land Claims Court;
4.
All proceedings in the Court a quo subsequent to 25
February 1998 are set aside;
5.
Costs:
(a)
No order for costs is made in respect of the
application for condonation;
(b)
Respondents are ordered to pay the costs of the
applications for leave to appeal both in the Court a
quo and in this Court;
(c)
The costs in the Court a quo up to the point being

raised that the case had to be transferred to the Land
Claims Court are reserved for decision by the latter
court.  The costs thereafter are to be paid by the
respondents.
(d)
Respondents are ordered to pay the costs of the
appeal.

VIVIER   JA
NIENABER JA)
MARAIS JA)
SCHUTZ JA)
ZULMAN JA)
CONCUR