CC case number:
SCA case number: 20698/2014
LCC case number: 09R/2014
In the matter between:
JAN KLAASE First Applicant
ELSIE KLAASE Second Applicant
and
JOZIA JOHANNES VAN DER MERWE (N.O. OF THE
NOORDHOEK TRUST) First Respondent
JOZIA JOHANNES VAN DER MERWE Second Respondent
APPLICANTS NOTE IN TERMS OF PRACTICE DIRECTION 5
1. Names of the parties and case number:
See above.
2. The nature of the proceedings:
This is an application for leave to appeal against two judgments and orders handed down by the Land Claims Court (“LCC”) at Cape Town, by the Honourable Mr Acting Justice Canca as follows: -
2.1 On 28 March 2014 in which the LCC, on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act, Act 62 of 1997 (“ESTA”), under case number LCC 09R/2014, confirmed an order granted in the Magistrate’s Court for the District of Clanwilliam for the eviction of Mr Klaase (the first applicant) “and all persons who occupy through him” from the premises which they occupy on the farm known as Noordhoek;
2.2 On 7 October 2014 in which the LCC refused:
2.2.1 Mr Klaase’s application for leave to appeal against the automatic review judgment;
2.2.2 Applications brought by Mr Klaase’s wife, Mrs Klaase, (the second applicant) in which she sought to be joined in the automatic review proceedings, that those proceedings, including the execution of the eviction order against Mr
Klaase, be suspended pending the determination of Mrs Klaase’s rights in terms of ESTA and that Mrs Klaase’s application, in which she contended that she is an occupier in her own right under ESTA, be consolidated with the automatic review proceedings;
2.2.3 Mr Klaase’s application seeking an order suspending the execution of the eviction order against him pending the determination of Mrs Klaase’s rights under ESTA.
On 26 January 2015 the Supreme Court of Appeal (“SCA”) dismissed the application for leave to appeal brought by the applicants with costs.
3. The issues that will be argued:
3.1 Whether Mrs Klaase, who is the spouse of Mr Klaase, and has resided on the farm together with Mr Klaase for at least 30 years and been employed on the farm as a seasonal worker over a period of 26 years qualifies as an occupier under ESTA in her own right;
3.2 Whether the LCC erred in concluding, on the evidence before it, that the requirements for the eviction of Mr Klaase in terms of section 10(1)(c) of ESTA had been satisfied; and
3.3 Whether appeals against orders made by the LCC on review in terms of section 19(3) of ESTA should be delivered to the SCA or the LCC,
4. The portions of the record that are necessary for the determination of the appeal:
4.1 On 11 March 2015 the Chief Justice issued practice directions that written argument, including argument on the merits of the appeal must be lodged by the applicants on or before Wednesday, 1 April 2015; and the respondents, on or before Friday, 10 April 2015.
4.2 An order in terms of rule 19(6)(c) has not been made.
4.3 Accordingly, the appeal has not been noted and prosecuted in terms of Rule 20.
4.4 The whole record in the application for leave to appeal is necessary for purposes of determining whether to grant leave to appeal
5. An estimate of the duration of the argument:
A day.
6. A summary of the argument:
6.1 The application raises a constitutional issue. The interpretation of ESTA is a constitutional matter.
6.2 It is in the interests of justice that leave to appeal be granted because the interpretation of ESTA affects a vulnerable and yet significant section of our society.
6.3 Whether Mrs Klaase qualifies as an ESTA occupier has significant implications for the security of tenure, not only of Mrs Klaase, but many other similarly situated rural women.
6.4 Mrs Klaase qualifies as an ESTA occupier in her own right in terms of the definition of “occupier”, read with the definition of consent, in ESTA.
6.5 The LCC misdirected itself in finding in terms of section 10(1)(c) of ESTA that (i) Mr Klaase committed a fundamental breach of the relationship between him and the owners; and (ii) it is not practically possible to remedy the breach in the relationship.
6.6 Conflicting positions have been adopted by the LCC on whether an application for leave to appeal should be directed to the LCC rather than the SCA in appeals against orders made on review in terms of section 19(3). It is contended that such appeals should be directed to the SCA, not the LCC.
7. The authorities to which particular reference will be made during the course of argument:
7.1 Atkinson v van Wyk 1999 (1) SA 1080 (LCC);
7.2 Landbounavorsingsraad v Klaasen 2005 (3) SA 410 (LCC);
7.3 Sterklewies v Msimanga 2012 (5) SA 392 (SCA);
7.4 Magodi & Others v Janse van Rensburg [2001] JOL 9145 (LCC);
8. Magodi and Others v Van Rensburg (LCC29R/01) [2001] ZALCC 50 (29 November 2001).
P HATHORN C DE VILLIERS
Counsel for Applicants Chambers
Cape Town 27 March 2015
