Friedshelf 325 (Pty) Limited & another v Sizane Betty Mokwena

Ms Mokwena (the respondent), aged 71, had been living since 1992 on Portion 50 of the farm Kromdraai 292 JS, Emalahleni, Mpumalanga (the subject property). She was employed as a domestic worker by the previous owner, Mr Neil Francis, starting in 1982 in Witbank. In 1992, when Mr Francis acquired the subject property for farming, Ms Mokwena and her family moved there with him. She continued working as a domestic worker, receiving a monthly salary, and was also given a four-roomed house. According to an oral arrangement with Mr Francis, in exchange for looking after his children and doing domestic work, she was given a piece of land to reside on and rights to grow crops (vegetables and maize) and keep livestock (cows and chickens). Mr Francis left the property in 2002. The first appellant, Friedshelf 325 (Pty) Ltd, bought the property at a sale in execution in 2003. The second appellant, Mr Ian Bailie, was the sole shareholder and director of the first appellant. Ms Mokwena and her family continued living on the property. The subject property had been within the area of jurisdiction of the Witbank Municipality since 1971 and was currently within the Emalahleni Local Municipality's jurisdiction. In August 2015, Ms Mokwena instituted action in the Land Claims Court seeking to be declared a labour tenant under the Land Reform (Labour Tenants) Act 3 of 1996 (the LTA) and to be awarded the portion of the property she and her family were using on 2 June 1995.

• Whether land situated within the area of jurisdiction of a municipality constitutes a 'farm' as defined in the Land Reform (Labour Tenants) Act 3 of 1996
• Whether the subject property qualified as 'agricultural land' under the Subdivision of Agricultural Land Act 70 of 1970
• Whether Ms Mokwena qualified as a 'labour tenant' under the LTA or as an 'occupier' under the Extension of Security of Tenure Act 62 of 1997 (ESTA)
• The proper approach to interpreting land reform legislation in light of section 39(2) of the Constitution

The appeal was upheld. The order of the Land Claims Court was set aside and replaced with the following order: 'The plaintiff's claim is dismissed. There is no order as to costs.'

A 'farm' as defined in the Land Reform (Labour Tenants) Act 3 of 1996 means a portion of agricultural land as defined in the Subdivision of Agricultural Land Act 70 of 1970. 'Agricultural land' under that Act expressly excludes land situated in the area of jurisdiction of a municipal council or other specified local authorities. This exclusion is not affected by whether the land is used for agricultural purposes or is agricultural in character. Land that was incorporated into a municipality prior to the establishment of transitional councils under the Local Government Transition Act 209 of 1993 does not fall within the definition of 'agricultural land' and therefore cannot constitute a 'farm' for purposes of the LTA. The proviso to the definition of 'agricultural land' only preserves as agricultural land that which was classified as such immediately prior to the first election of transitional council members. Statutory interpretation, even of remedial land reform legislation, must start with the plain wording of the statute in its context, and purposive interpretation under section 39(2) of the Constitution cannot extend beyond interpretations that can reasonably be ascribed to the statutory language. Persons residing on land within municipal boundaries that is used for agricultural purposes are protected as 'occupiers' under the Extension of Security of Tenure Act 62 of 1997, not as 'labour tenants' under the LTA.

The Court observed that the appellants' counsel rightly conceded that Ms Mokwena qualified as an 'occupier' as contemplated in ESTA, and indicated that a settlement proposal had been made. The Court noted that by reason of its conclusion on the first issue, it was unnecessary to determine the second issue of whether Ms Mokwena had the right to use cropping and grazing land in consideration of providing labour. The Court also commented on the broader legislative scheme of land reform, noting that the legislature made specific provision in ESTA to secure the tenure of persons occupying land in townships designated or used for agricultural purposes, and that the LCC's interpretation would disregard section 2 of ESTA and its aims. In discussing costs, the Court affirmed the general principle from Biowatch Trust that costs orders should not hinder the advancement of constitutional justice, and noted that apart from raising an important constitutional issue, the appeal related to proper interpretation of the LTA that would be beneficial not only to the parties but also to all claimants for legally secure tenure who are similarly situated.

This case is significant in South African land reform jurisprudence for establishing the proper interpretation of 'farm' and 'agricultural land' in the context of the Land Reform (Labour Tenants) Act 3 of 1996. It clarifies that land situated within the area of jurisdiction of a municipality does not constitute 'agricultural land' for purposes of the LTA, regardless of whether the land is used for agricultural purposes or is agricultural in character. The judgment reinforces that statutory interpretation must begin with the plain wording of legislation, even when interpreting remedial land reform legislation. It also demonstrates the interplay between different land reform statutes (the LTA and ESTA) and how they apply to different categories of beneficiaries. The case illustrates that while courts must adopt purposive interpretations to promote constitutional rights under section 39(2) of the Constitution, such interpretations must be reasonably capable of being ascribed to the statutory language. The decision has practical implications for determining which statute applies to persons seeking security of tenure on land within municipal boundaries - they would be protected under ESTA as 'occupiers' rather than under the LTA as 'labour tenants'. The costs ruling also affirms the principle that costs orders should not hinder the advancement of constitutional justice, particularly in cases involving the enforcement of constitutionally protected land rights.