Bhuti Zephania Mokoena and Others v Lambrechts Familie Testametere Trust and Others

The Mokoena family (five plaintiffs comprising three surviving adult children - Bhuti Zephania Mokoena, Betty Joana Mokoena, their mother Nomasonto Sinnah Mokoena (Nkosi), a deceased brother, and other descendants) claimed labour tenant status on Portion 3 of Farm Morgenster 204IS, Hendrina, Mpumalanga. The family arrived on the property in 1978 together with the head of household Josiah Mokoena, his father Thuli Mokoena, and his brother Ncane Petrus Mokoena and their families. They resided in a residential area, used a grazing camp of 27.49 hectares, and a cultivation area of 3.43 hectares. Family members provided labour to the original owner, Mr Lambrecht, including farm work, domestic work, and children's vacation work. In return, they received minimal cash remuneration supplemented by maize, meat, milk, and rights to reside, graze cattle, and cultivate land. In February 2001, applications for land acquisition under section 16 of the LTA were lodged by family members on behalf of the entire family and published in the Government Gazette on 26 April 2001, but were never processed. In 2000, Mr Volschenk (second defendant) took over management of the property. Relations deteriorated, culminating in a shooting incident in 2001 that left the first plaintiff disabled, and the disputed removal and auctioning of the family's cattle. The property was transferred to the Lambrechts Familie Testamentere Trust in 2008. Only Mrs Nkosi currently resides permanently on the property. The first plaintiff lives at a disability facility and the fourth plaintiff lives with her sister due to employment needs, though both consider the farm their home.

• Whether the plaintiffs qualify as labour tenants under section 1 of the Land Reform (Labour Tenants) Act 3 of 1996
• Whether the plaintiffs satisfied all three requirements in paragraphs (a), (b) and (c) of the definition of labour tenant
• Whether the first and fourth plaintiffs waived their labour tenancy rights by voluntarily leaving the property
• Whether the property manager (second defendant) had standing to defend the action in circumstances where the registered owner abided the decision
• Whether the plaintiffs' parents/grandparents were farmworkers or labour tenants
• Whether child labour provided during school holidays constitutes 'labour' for purposes of the LTA
• Whether children can derive labour tenant status through their parents when arrangements for cropping and grazing were intended to benefit the family as a whole
• The nature and extent of the plaintiffs' land use rights including residential, grazing, and cropping rights
• Whether the Director-General breached statutory duties by failing to process the section 16 application for land acquisition lodged in 2001

The Court declared the first, third and fourth plaintiffs to be labour tenants on the property. It declared their land use rights include: the right to reside in the family homestead; the right to vehicular and pedestrian access to the homestead; the right to graze livestock in the 27.49 hectare grazing camp in numbers to be determined by an agricultural expert appointed by the third and fourth defendants following a specified procedure; and the right to crop in the homestead vegetable garden and use one-sixth of the 3.43 hectare cultivation area. The Court ordered the parties to engage meaningfully through their attorneys regarding water access, access infrastructure, and homestead maintenance/alterations. The Court ordered the third defendant (Director-General) to process the plaintiffs' section 16 application for land acquisition within four months, treating it as an application on behalf of the families of all named applicants including the first, third and fourth plaintiffs. The parties were granted leave to approach the Court for further relief. Each party to pay their own costs.

The binding legal principles established are: (1) All three requirements in paragraphs (a), (b) and (c) of the definition of 'labour tenant' in section 1 of the LTA must be satisfied, but the definition is not rigidly time-bound to 2 June 1995 - rights that vested on that date remain vested unless terminated under the LTA itself. (2) A customarily married woman can rely on her father-in-law's (not just her own parents') labour tenant status for purposes of paragraph (c), as a generous and purposive interpretation better promotes equality and cultural rights and recognizes women's integration into husbands' families under customary law. (3) Child labour provided during school holidays, even if characterized as 'casual' or for 'pocket money', constitutes 'labour' for purposes of the LTA definition given the exploitative nature of child labour and children's vulnerability. (4) Children can satisfy the requirements of paragraph (b) derivately through their parents where they provided labour as part of family arrangements to secure residence, cultivation and grazing rights, and those arrangements were intended to benefit family members as a whole. (5) Labour tenancy rights are not waived under section 3(3) merely by physical absence from the property - waiver requires the person to leave 'with the intention to terminate the labour tenant agreement'. Clear evidence is required and a person is not lightly deemed to have waived constitutional rights. (6) A property manager may have standing to defend a labour tenancy action where he has a direct and substantial interest by virtue of possession and an asserted (though disputed) right to ownership, recognizing the constitutional imperative that persons with direct and substantial interests must be heard. (7) When determining whether a parent/grandparent was a farmworker (and thus excluded from the definition), the onus shifts to the defendant under section 2(5) to prove farmworker status by showing remuneration was paid predominantly in cash rather than the right to occupy and use land, requiring evidence of values from the landuser's perspective including economic and non-economic value of land occupation and use. (8) Section 3(1)(a) confers rights on a labour tenant to occupy and use land which 'he or she or his or her associate' was using - thus family members can assert land use rights as 'associates' even if rights originated with a head of household. (9) The Director-General has a statutory duty to process section 16 applications lodged timeously, and failure to do so for over 20 years constitutes a breach warranting a mandatory order. (10) Where application forms were lodged on behalf of families (even if only certain names appear in the Government Gazette), all family members for whom the application was made are applicants.

The Court made several significant non-binding observations: (1) It noted the 'extraordinary delays' in processing labour tenancy applications highlighted in Mwelase, emphasizing that three of four named applicants died before realizing secure tenure, describing this as 'manifest and profound' injustice. (2) The Court observed difficulties with translation and literacy levels in this Court, noting these are 'a function of this country's colonial and apartheid history' warranting 'cautious judicial responsiveness during testimony to ensure accuracy and fairness'. (3) The Court expressed hope that 'processes anticipated by my order ensue speedily so that land justice can be achieved in this corner of Mpumalanga which the parties call home', reflecting frustration with systemic delays. (4) The Court noted that its order granting declaratory relief should not 'unduly constrain or predetermine the outcome' of the section 16 process, particularly how any award is framed. (5) The Court observed that 'labour tenants are a vulnerable group and land injustice and tenure insecurity continues to undermine their dignity and ability to live productive lives both generally and in this case in particular'. (6) In applying Daniels v Scribante to labour tenants, the Court observed that labour tenants are entitled to bring dwellings to standards conforming to human dignity, which is 'not contingent on the consent of the owner', though meaningful engagement is appropriate. (7) The Court noted the 'highly compromised relationship' and 'profound breakdown' between parties, including violent incidents, emphasizing the need for certainty through declaratory relief. (8) The Court observed that 'it has been the second defendant's wish, since he took over the farm, for the Mokoena family to leave' and found that cattle were 'probably removed from the property without the Mokoena's consent', though it was not necessary to attribute responsibility for all incidents. (9) The Court noted it was 'unfortunate' that it became necessary to use inquisitorial powers regarding the second defendant's standing due to 'scant' pleading of his own interest, while recognizing labour tenants 'should not be made to suffer the added indignity of enforcing their rights against persons without any right to participate'. (10) The Court addressed (without deciding) whether illegality may have tainted agreements involving child labour, stating that even if void for illegality, 'this could not deprive the children of the protections otherwise afforded to them by the LTA' given its constitutional purpose.

This case provides important guidance on several aspects of labour tenancy law: (1) It affirms a generous and purposive interpretation of the LTA definition of labour tenant, particularly regarding family members and generational rights. (2) It recognizes that child labour, even if characterized as 'casual' or for 'pocket money', constitutes labour for purposes of the LTA, acknowledging the exploitative nature of child labour and children's vulnerability. (3) It holds that children can derive labour tenant status through their parents when family arrangements for land use were intended to benefit the family as a whole, applying the Constitutional Court's guidance in Goedgelegen and the SCA's guidance in Brown v Mbhense. (4) It adopts a generous interpretation allowing a customarily married woman to rely on her father-in-law's labour tenant status (not just her own parents), promoting equality and cultural rights while preventing exclusion of women integrated into husbands' families. (5) It clarifies that labour tenancy rights are not waived merely by physical absence from the property when there is no intention to terminate the agreement and the farm remains 'home'. (6) It provides a model for granting declaratory relief regarding the nature and extent of labour tenant rights while recognizing the need for meaningful engagement and expert input on practical matters. (7) It highlights the ongoing systemic failure to process section 16 applications timeously, resulting in profound injustice where applicants die before realizing the secure tenure promised by the Constitution. (8) It demonstrates the Court's use of inquisitorial powers and purposive interpretation to protect vulnerable labour tenants' constitutional rights to tenure security under section 25(6) of the Constitution.