IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

Case No:  428/99
In the matter between:
H J WOERMAN and M L SCHUTTE NNO

Appellants
and
S O MASONDO

1st Respondent
E  SHABANGU

2nd Respondent
M A KHUMALO

3rd Respondent

Coram:
Nienaber, Marais, Streicher, Cameron and Navsa JJ A
Heard:
27 August 2001
Delivered:  9 November 2001
Land Reform (Labour Tenants) Act 3 of 1996 – S 2(5) does not apply to actions pending at the time of its
introduction.

J U D G M E N T

STREICHER J A:
[1] Mrs E Woerman (‘the plaintiff’) instituted an action against the three
respondents in the Magistrate’s Court for the district of Vryheid (‘the trial
court’) in which she claimed amongst other relief the eviction of the
respondents from the farm Grootfontein (‘the farm’) which she owned.  The
respondents defended the action. In their pleas they denied that their
occupation of the farm was unlawful.  They alleged that they qualified as
labour tenants in terms of the Land Reform (Labour Tenants) Act 3 of 1996
(‘the Act’) and that as labour tenants they were entitled, in terms of s 3 of the
Act, to occupy and use part of the farm.  The trial court granted an eviction
order against the respondents. However, an appeal by the respondents to the
Land Claims Court (‘the court a quo’) was upheld and an order dismissing
the claim for eviction was substituted. With the leave of the court a quo the

plaintiff appealed to this court. Since the noting of the appeal the plaintiff
has died and has been substituted by the executors of her estate (‘the
appellants’).
[2] In terms of s 3 of the Act a person who was a labour tenant on 2 June
1995 has a right with his family members, to occupy and use that part of the
farm, which he was using and occupying on that date. A labour tenant is
defined in s 1 of the Act as 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 with the provisions of section 3(4)
and (5), but excluding a farmworker;’.
In Ngcobo and Others v Salimba CC; Ngcobo v Van Rensburg1 this court
held that paras (a), (b) and (c) of the definition had to be interpreted
conjunctively.
[3] A farmworker is defined in s 1 of the Act as –
‘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;’.

1 1999 (2) SA 1057 (SCA) at 1067J-1068I (para 11).

[4] To establish whether a person is or was a farmworker and thus
disqualified from being a labour tenant this court held in the Ngcobo case2
that what has to be determined is ‘the predominant quality of occupation
over the whole period during which the present occupier has been complying
[or complied] with paras (a) and (b)’ (my insertion).
[5] It was not contended in the court a quo or in this court that the
requirements of subsections (a) and (c) of the definition of labour tenant had
not been satisfied.  The issue which the trial court and the court a quo had to
decide and which is the subject of this appeal is, in respect of each of the
respondents, whether the requirements of subsection (b) of the definition of
labour tenant were satisfied and, if they were, whether the respondent
concerned was a farmworker and thus not a labour tenant. The issue entails
the following questions:

2 Footnote 1.  At 1075H (para 27).

(i)
Did the respondent, on or before 2 June 1995, have a
right to use cropping or grazing land on the farm?
(ii)
Did the respondent in consideration of such cropping or
grazing right provide labour to the owner of the farm?
(iii)
Was the respondent employed on the farm in terms of a
contract of employment which provided that in return for
the labour which he provided to the owner of the farm he
would be paid predominantly in cash or in some other
form of remuneration and not predominantly in the right
to occupy and use land?
[6] The first respondent alleged in his plea that he provided labour to the
previous owner of the farm (‘Mr Woerman’) and that in consideration of his
services he had the right to plant crops on the farm. According to his

evidence he approached Mr Woerman during about 1984 for permission to
live on the farm.  At that stage he was already a pensioner.  Mr Woerman
‘out of the goodness of his heart’ allowed him to stay on the farm in four
houses which he, the first respondent, built.  He wanted a ‘piece job’ and for
a period of approximately 5 years he worked on the farm.  He and his wife
fed the chickens and cleaned the chicken runs.  Initially he was paid R18 per
week for his services and by the time he ceased working he was being paid
R40 per week.  He had no right to keep livestock on the farm but had a field,
which he could cultivate.  Mr Woerman ploughed the land and planted
mealies for him using his, Mr Woerman’s, own seed. The field was small but
provided mealies, which he used to cut and cook while they were still fresh.
After he stopped working, on 16 March 1989, Mr Woerman handed him a
document, the first paragraph whereof read:

‘You are allowed to live on the farm Grootfontein of Mr J
WOERMAN District Vryheid for humanitarian reasons and will
not attain the living rights on said farm in future.’
[7] The second respondent, likewise, alleged in his plea that he provided
labour to the previous owner of the farm and that in return for his services he
had the right to plant crops on the farm.  He testified that after having
worked on the farm previously he returned to work on the farm during 1994.
He moved onto the farm with his wife, six children and his brothers.  They
occupied two existing houses and built another two.  He drove tractors and
other vehicles.  He worked five days per week from 06h00 until 16h00 and
was entitled to two weeks leave per year.  He was paid a salary of R120 per
week and kept a cow, a calf, chickens, four ducks and approximately 19
geese on the farm.  Mr Woerman stipulated that five to six cattle was the
maximum number that he could keep on the farm.  He planted mealies in a

field which was a bit smaller than a soccer field.  Mr Woerman supplied the
tractor used for ploughing the field and also the seed which was planted.
After Mr Woerman was killed in November 1995, he left the farm in April
1996.
[8] The third respondent alleged in his plea that he worked for Mr
Woerman in consideration of the right to plant crops and graze animals.  Of
the three respondents he alone alleged in his plea that he was entitled to
grazing rights in return for his services.  He testified that he moved to Mr
Woerman’s farm in 1973 with his wife and children.  He built a kraal
consisting of eight houses.  He kept five cattle, six goats and chickens.  Mr
Woerman ploughed an area approximately 20 feet wide around his house
where he (third respondent) planted mealies using his own seed.  All his
children worked on the farm and received salaries for their services.  He

worked seven days a week from 03h00 to 19h00 and was entitled to one
week’s leave per year.  He was obliged to perform his services personally.
He was paid a salary which had increased from R4 per week to between R80
and R90 per week by the time Mr Woerman passed away.
[9] The trial started on 11 November 1997.  It appears that the
respondents accepted that the onus was on them to prove that they were
labour tenants and, by agreement, they started with their case.  Evidence was
heard on 11 and 12 November 1997 when the trial was postponed to 28
November 1997.  By that time the respondents had closed their case (save in
one respect, not relevant for present purposes, in so far as the third
respondent was concerned) and the examination in chief of the plaintiff had
just been completed.  Upon the resumption of the trial on 28 November 1997
the respondents were granted a postponement to enable them to consider the

effect of the Extension of Security of Tenure Act 62 of 1997, which came
into operation on that day.  The trial resumed on 13 July 1998 when the
respondents were granted an amendment of their pleas in terms of which
they added an alternative defence based on the provisions of the Extension of
Security of Tenure Act.  This defence is no longer of any relevance in that an
initial appeal against the dismissal of the defence by the trial court was not
proceeded with.
[10] Nothing was made in the trial court of an amendment to the Act which
came into operation on 21 November 1997 in terms of which s 2(5) was
introduced.  The section provides as follows:
‘2(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.’

The trial court dealt with the matter on the basis that the onus was on the
respondents to prove that they were paid predominantly in cash or some
other form of remuneration and not predominantly in the right to occupy and
use land.  It found that the respondents failed to prove that and granted an
eviction order against them.
[11] The respondents did not argue in the court a quo that s 2(5) was
applicable. The court a quo nevertheless referred to the section but found it
unnecessary to decide whether the respondents bore the onus of proving that
they were not farmworkers.  It was of the view that the respondents had in
any event proved that they were not.  It stated that it was clear that the
occupation and use rights of each of the respondents exceeded the salary and
other forms of remuneration (such as the use of a tractor and seed) received
by the respondent concerned.

[12] The plaintiff alleged that she was the owner of the farm and that the
respondents were in occupation of a portion of the farm.  Those facts would,
in terms of the common law, have entitled her to an eviction order unless the
respondents could show that they were entitled to so occupy a portion of the
farm.3
[13] Section 26(3) of the Constitution provides as follows:

‘No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary evictions.’
In Ross v South Peninsula Municipality4 Josman J (Desai J
concurring) concluded that the common law as laid down in Graham v
Ridley5 had been modified by s 26(3) to the extent that a plaintiff seeking to
evict a person from his home is now required, in terms of that section, to

3 Graham v Ridley 1931 TPD 476 at 479; and Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-E.
4 2000 (1) SA 589 (C) at 596H.
5 Footnote 3.

allege relevant circumstances which would entitle the court to issue such
order. Reading the proposition in its context, Josman J would seem to
suggest that an owner, in order to succeed in an action for the eviction of a
person from his home, not only has to allege more than that he is the owner
and that the defendant is in occupation but also has to prove more if the
action is defended. What it was that an owner should allege and prove in
addition to those facts Josman J considered to be beyond the scope of the
appeal before him.6 In Betta Eiendomme (Pty) Ltd v Ekple-Epoh7 Flemming
DJP
disagreed
with
the
conclusion
reached
in
the
Ross
case.
Notwithstanding an invitation to make submissions on the correctness and
applicability of the judgment in Ross v South Peninsula Municipality the
respondents did not place any reliance thereon. The respondents also

6 At 596I.
7 2000 (4) SA 468 (W).

declined an invitation to make submissions on the question whether, given
the manner in which the proceedings were conducted in both the trial court
and the court  a quo, it is open to them to contend, at this stage, that the onus
on the disputed issues was on the appellants.
[14] In Ellis v Viljoen8 Thring J delivered the judgment of the full court of
the Cape Provincial Division on appeal from a decision by Griesel J.
Referring to Griesel J’s finding that the judgment in Ross v South Peninsula
Municipality did not bring about a change as regards the incidence of the
onus, he said:9
‘[E]ven if it was held in the Ross case that the incidence of the onus of
proof had been altered by s 26(3) of the Constitution, that conclusion
was erroneous and cannot be supported. I find myself in respectful
agreement with what was said by Flemming DJP in the passage which
I have quoted above from his judgment in the  Betta Eiendomme case
supra at 474I-475I. In particular, I respectfully support his conclusion

8 2001 (4) SA 795 (C).
9 At 804J-805E.

that the right of ownership as recognised before the Constitution has
not been affected by the Constitution (at 475D), at least as regards the
type of case presently under consideration. It seems to me to be self-
evident, as the learned Deputy Judge President says at 475F-G, that in
the absence of legislative interference and postulating that nothing
more is known than that the plaintiff is the owner and that the
defendant is in possession, it is right and proper that an owner should
be granted an ejectment order against a defendant who has no business
interfering with the plaintiff’s possession of his own property. If those
are the only ‘relevant circumstances’ placed before the Court, surely
the owner must be entitled to an eviction order. If there are other
‘relevant circumstances’ upon which the defendant wishes to rely in
justifying his continued occupation, the onus must, on all the
recognised principles of pleading and evidence, rest on him to allege
and prove them, whatever they may be. Like Flemming DJP, I can
find nothing in those principles which is in any way repugnant to or
inconsistent with anything in the Constitution. On the contrary, they
seem to me to be eminently consonant with the provisions of s 25(1)
of the Constitution, which reads:
“No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property”’

[15] I do not consider it necessary to pronounce on the precise ambit of s
26(3) and, not having heard argument in this regard, I do not consider it

advisable to do so either. For these reasons, and save to the extent that my
conclusion set out hereunder is either at variance or in conformity with the
decisions in the Ross, Betta, and Ellis cases, I do not express any view on the
correctness or otherwise of those decisions. The respondents alleged in their
plea that they were labour tenants and the plaintiff denied that they were.
That was and is the issue to be decided on the pleadings. Moreover, counsel
for the respondents did not contend that there were any other relevant
circumstances to consider. If the respondents are correct, the fact that they
are labour tenants is a relevant circumstance which would have obliged the
trial court to have regard to the provisions of the Act, more particularly the
provisions restricting the owner’s right to evict. If the respondents are not
correct, they do not contend that there are any relevant circumstances which
may persuade a court not to grant an eviction order against them. As the

respondents alleged that they were labour tenants they, in terms of the
common law, had to prove that fact. In my view the incidence of this onus is
not affected by s 26(3) of the Constitution. The section does not require a
plaintiff to allege and prove circumstances irrelevant to its claim such as that
the respondents are not labour tenants.
[16] The respondents did not contend otherwise in the courts below. They
alleged and, at the trial, set out to prove that they were labour tenants and as
such, in terms of s 3 of the Act, entitled to occupy and use part of the farm.
However, in his heads of argument in this court counsel for the respondents
submitted that the coming into force of s 2(5) during the trial shifted the onus
as regards the question whether the respondents were labour tenants from the
respondents to the plaintiff.  He submitted that the incidence of the onus was
a procedural matter and that a procedural amendment applied to pending

suits.  This submission was not pressed in argument before us but needs to
be considered in any event.
[17] It is not correct to say that procedural amendments apply to all
pending suits.10  In any event onus, in the sense of the duty that is cast on a
particular litigant, in order to be successful, of finally satisfying the court
that he is entitled to succeed on his claim or defence is a matter of
substantive law and not of procedure.11  In During NO v Boesak12  E M
Grosskopf JA said:
‘Die ligging van die bewyslas word deur die substantiewe reg bepaal.
Soos gestel word in Hoffmann en Zeffertt The South African Law of
Evidence 4de uitg op 495:

10 See Minister of Public Works v Haffejee NO 1996 (3) SA 745 (A) at 753B-C and Unitrans Passenger
(Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission, and Others; Transnet
Ltd (Autonet Division) v Chairman, National Transport Commission, and Others 199 (4) SA 1 (A) at 9H.
11 See Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) at 390F-G and During NO
v Boesak and Another.
12 1990 (3) SA 661 (A) at 672H-I

“Any rule of law which annexes legal consequences to a fact . .
. must, as a necessary corollary, provide for which party is
supposed to prove that fact.”’
[18] Even if a statute is amended with retrospective effect the rights of the
parties to a pending action must be decided in accordance with the law as it
was when the action was instituted, unless a contrary intention appears from
the statute.13  In the present case there is no indication to be found in the Act
that the legislature intended s 2(5) to apply to pending actions and the
respondents’ counsel did not contend that there was.
[19] It follows that, notwithstanding the provisions of s 2(5) of the Act, the
onus was on the respondents to prove that they were labour tenants on 2 June
1995.  That entailed, inter alia, that they bore the onus of proving that they
were not farmworkers.  To discharge that onus each one of them had to

13 See Bell v Voorsitter van die Rasseklassifikasieraad en Andere 1968 (2) SA 678 (A) at 684E-F; Bellairs v
Hodnett and Another 1978 (1) SA 1109 (A) at 1148F-G; and Naude en Andere v Heatlie en Andere; Naude
en Andere v Worcester-Oos Hoofbesproeiingsraad en Andere 2001 (2) SA 815 (HHA).

prove that in return for the labour which he provided to the owner of the
farm he was remunerated predominantly in the right to occupy and use land
and not in cash or some other form of remuneration.
[20]  Each of the respondents, together with his wife and in the case of the
second and third respondents, their children, resided on the farm and had
permission to harvest mealies from a field allocated to him.  The second and
the third respondents were also allowed to graze livestock on the farm.  It
was submitted on behalf of the appellants that the respondents did not have a
“right” within the meaning of the word in the definition of labour tenant or if
they did that such right was not given to them ‘in consideration’ of the
services they had to render.  In the light of the conclusion to which I have
come it is not necessary to deal with these arguments.  I shall assume in
favour of the respondents that each of them provided labour to the owner of

the farm in consideration of a right to use a small field for the cultivation of
mealies; a right, in the case of the second respondent, to keep 5 to 6 cattle,
chickens, 4 ducks and 19 geese on the farm; and a right, in the case of the
third respondent, to graze 5 cattle and 6 goats on the farm.  On the other
hand, the first respondent received a salary of R40 per week and had the
field which was allocated to him ploughed by the owner and planted with
mealie seed provided by the owner; the second respondent received a salary
of R120 per week, ploughed the field allocated to him with the owner’s
tractor and planted mealie seed provided by the owner; and the third
respondent received a salary of between R80 and R90 and used the owner’s
tractor to plough the field allocated to him.  The court a quo was of the view
that the use of the tractor and the seed provided by the owner constituted

another form of remuneration for the respondents’ labour.  In argument
before us counsel for the respondents accepted the correctness of this view.
[21] In order to determine whether each of the respondents was
remunerated predominantly in the right to occupy and use land and not in
cash or in some other form of remuneration one obviously has to compare
like with like and the only way to do that would be to place a monetary value
on each component.  It was, therefore, necessary for the respondents to
adduce evidence in the trial court to enable the trial court to do so.  However,
no evidence whatsoever, which could assist in the valuation of the
respondents’ residential rights, their grazing rights, their cropping rights, the
use of the tractor to plough the fields allocated to the respondents and the
seed supplied by the owner was adduced in the trial court.  The respondents,
who were legally represented at all stages, could have adduced evidence at

the trial as to the number of bags of mealies they used to harvest per year and
of the price of a bag of mealies.  If they had done that it should have been
possible to place a value on their cropping rights.  Without evidence as to the
size of the fields concerned, the crop that could be expected and the price of
mealies, the trial court was in no position to place any value on the cropping
rights of the respondents.  The same applies to the respondents’ grazing
rights.  Grazing may or may not have been available in abundance in that
area.  The availability thereof would obviously affect the value of grazing
rights.  It should have been possible to adduce evidence as to what a farmer
would charge for allowing animals to be grazed on his farm or evidence
could have been led as to the value to the respondents of the right to keep
livestock on the farm.  However, no evidence was adduced on the basis of
which a value could be placed on the respondents’ grazing rights.  The value

of the right to reside on a farm will depend on the price or rental payable for
similar accommodation elsewhere in that region.  Evidence could have been
adduced as to what farmers would charge a person, who was not expected to
work for the farmer, for such accommodation.  Evidence as to the rental
payable for comparable accommodation in the nearest town could also have
been of assistance.  Furthermore, it should not have been difficult or costly
to produce evidence as to the value of the seed supplied by the owner and the
cost of hiring the owner’s tractor to plough the fields.
[22] In the absence of any evidence on the basis of which the respondents’
residential, grazing and cropping rights could be valued, the trial court
correctly held that the respondents failed to discharge the onus to prove that
they were labour tenants.

[23] In finding that it was clear that each respondent’s right to occupy and
use the plaintiff’s land exceeded the cash and other remuneration received by
him for his services the court a quo relied on the following passage in the
Ngcobo case14:
‘There is an admitted paucity of evidence relating to the value of the
rights to residence, grazing and cultivating the land in question, and to
the value of the remuneration paid to the appellants whether in cash or
in specie.  But what is clear is that the appellants and their forebears
had for many years received the absolute minimum in the form of
remuneration for their services.  It must be overwhelmingly clear that
the value of residence, grazing, cultivation and of having a hearth and
home of their own, a place where they could find the fundamental
security of living and surviving off the land, must have far outweighed
the benefits they received as remuneration in cash or in kind.’
It does not appear from the judgment in the Ngcobo case on what evidence
this court found that the value of residence, grazing and cultivation must
have far outweighed the benefits received as remuneration in cash or in kind.

14 At 1076A-C (para 28).

Each case must be decided on its own facts and, whatever the factual
position may have been in that case, I am satisfied that on the evidence in
this case there is no basis for such a finding.
[24] It follows that the appeal should be upheld.  Counsel for the appellants
indicated that no costs orders were sought in this court or in the court a quo,
and furthermore, that the appellants abandoned the costs order made in
favour of the plaintiff in the trial court.  Counsel for the appellants also asked
that the eviction order against the third respondent be stayed until his death.

The following order is made:
(a)
The appeal is upheld.
(b)
Paras (2) and (4) of  the order by the Land Claims Court are set
aside and replaced with the following order:

The appeal of the first, third and fourth appellants is
dismissed.
(c)
The eviction order against the third respondent may not be
executed during his lifetime.

________________

P E STREICHER

Judge of Appeal

Nienaber
JA)
Marais
JA)
Cameron
JA)
Navsa
JA)

concur