Adendorffs Boerderye (Pty) Ltd v Fayindolo Shabalala & others

The appellant, Adendorffs Boerderye (Pty) Ltd, is the registered owner of a farm in Newcastle, KwaZulu-Natal used for cattle farming with a carrying capacity of approximately three hectares per livestock unit. The first and second respondents (the Shabalala brothers) are occupiers in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA) who resided on the farm and had grazing rights for their livestock pursuant to written agreements ("weidingsooreenkomste") concluded with the previous owner, Mr de Swart, allowing them to keep ten head of cattle and two horses in a demarcated area. The respondents claimed that a prior verbal agreement with an earlier owner, Mr Hendriks in 1993, had allocated them 150-200 hectares for grazing, which was subsequently reduced to 53.7 hectares. The appellant alleged that the respondents breached the grazing agreements by exceeding the permitted number of cattle, keeping goats, and failing to comply with the Animal Health Act, resulting in overgrazing and degradation of the land. Multiple expert reports confirmed that the grazing area was badly degraded and required rehabilitation for three years with all livestock removed immediately. The respondents could not afford rental for alternative grazing land that was identified.

• Whether the Land Claims Court (LCC) was competent to make orders not sought by the parties and without affording them an opportunity to file supplementary affidavits or present argument
• Whether the appellant as land owner could pursue civil proceedings for removal of livestock or was restricted to administrative remedies under the Conservation of Agricultural Resources Act 43 of 1983 (CARA)
• Whether the responsibility for rehabilitation and provision of alternative grazing land rests solely with the land owner or also with land users under CARA
• Whether the Minister of Rural Development and Land Reform could be ordered to secure alternative grazing land for occupiers who are not labour tenants
• Whether an order for costs de bonis propriis against attorneys is warranted for flagrant disregard of court rules

The appeal succeeded with costs, including the costs of two counsel. The cross-appeal was upheld with no order as to costs. The orders of the LCC were set aside and substituted with orders that: (1) the respondents must remove all their livestock from the farm within 30 days to a place they identify, with the appellant providing transport; (2) failing compliance, the Sheriff with police assistance must remove the livestock to the nearest pound; (3) the respondents are interdicted from returning any livestock until the 3-year rehabilitation period expires. The attorneys for the first and second respondents were ordered to pay the costs of the postponement and condonation applications de bonis propriis.

1. In application proceedings, the notice of motion and affidavits define the issues between the parties, and courts may not grant orders not sought by the parties or supported by the pleadings without affording the parties an opportunity to file supplementary affidavits or present argument on such relief. 2. Under CARA regulation 9(1) read with the definition of "land user" in section 1, the obligation to protect grazing land from deterioration and overgrazing rests on both land owners and land users, not solely on land owners. 3. CARA does not explicitly prohibit land owners from pursuing civil remedies in court to enforce environmental protection obligations or vindicate rights under section 24 of the Constitution, notwithstanding the availability of administrative remedies through executive officers issuing directives with criminal sanctions. 4. Where occupiers' grazing rights derive from contractual agreements rather than ESTA, such rights are governed by contract law and do not impose obligations on the Minister of Rural Development and Land Reform to provide alternative grazing or pay rental on behalf of occupiers who are not labour tenants. 5. Costs orders de bonis propriis against attorneys are warranted in exceptional circumstances involving flagrant disregard of court rules, gross negligence, and conduct that substantially and materially deviates from professional standards expected of legal practitioners.

The court observed that the right to graze livestock on a farm is of a very different nature to the rights specified in section 6(2) of ESTA, and such use was not the kind contemplated by the Legislature when granting occupiers rights to use land on which they reside. The court noted that the use of land for grazing stock is pre-eminently a use which would be impossible to regulate in the absence of agreement between the parties. The court expressed concern about attorneys who purport to practice in the SCA but fail to familiarize themselves with and comply with its rules, noting that the court has repeatedly admonished such conduct. The court emphasized that legal practitioners must present cases fearlessly and vigorously but always within the context of ethical rules aimed at preventing deception of the court, and society demands absolute personal integrity and scrupulous honesty from practitioners.

This case establishes important principles regarding: (1) the limits of courts' powers to grant relief not sought by parties and the requirement to afford parties procedural fairness before making such orders; (2) the concurrent obligations of land owners and land users under CARA to prevent overgrazing and land degradation; (3) the availability of civil remedies to landowners to enforce environmental protection obligations alongside administrative remedies under CARA; (4) the interaction between grazing rights derived from contractual agreements and occupancy rights under ESTA; (5) the circumstances warranting costs orders de bonis propriis against attorneys for serious dereliction of professional duties. The judgment reinforces the principle that pleadings define the issues and courts cannot grant relief beyond what is pleaded without affording parties an opportunity to address such relief. It also clarifies that environmental protection obligations under CARA and section 24 of the Constitution apply to both land owners and land users, and that CARA does not exclude civil remedies.