H J Woerman and M L Schutte NNO v S O Masondo, E Shabangu and M A Khumalo

Mrs E Woerman (the plaintiff) instituted an eviction action against three respondents in the Magistrate's Court for the district of Vryheid, seeking their eviction from the farm Grootfontein which she owned. The respondents defended the action, claiming they qualified as labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996 and were entitled to occupy and use part of the farm under section 3 of that Act. The trial court granted an eviction order. The Land Claims Court allowed the respondents' appeal and dismissed the eviction claim. During the appeal process, the plaintiff died and was substituted by the executors of her estate. Each respondent resided on the farm and had been granted permission to cultivate small fields for mealies and (in the case of the second and third respondents) to graze livestock, in return for labour provided to the farm owner. The first respondent received R40 per week, the second respondent R120 per week, and the third respondent between R80 and R90 per week. The owner also provided tractors for ploughing and mealie seed. Section 2(5) of the Act was introduced on 21 November 1997 during the trial proceedings, creating a presumption that persons falling within the definition of "labour tenant" are not farmworkers unless the contrary is proved.

• Whether the respondents qualified as labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996
• Whether the respondents were farmworkers and thus disqualified from being labour tenants
• Whether respondents were remunerated predominantly in cash or other remuneration rather than in the right to occupy and use land
• Whether section 2(5) of the Act applied to actions pending at the time of its introduction
• Whether section 2(5) shifted the onus of proof from the respondents to the plaintiff
• Whether section 26(3) of the Constitution altered the common law position regarding the onus of proof in eviction proceedings
• Whether the respondents discharged the onus to prove they were labour tenants

The appeal was upheld. Paragraphs 2 and 4 of the Land Claims Court order were set aside and replaced with an order dismissing the respondents' appeal. The eviction order against the third respondent was stayed during his lifetime. No costs orders were made in the Supreme Court of Appeal or the Land Claims Court, and the appellants abandoned the costs order made in their favour in the trial court.

Section 2(5) of the Land Reform (Labour Tenants) Act 3 of 1996 does not apply to actions pending at the time of its introduction. The onus of proof is a matter of substantive law, not procedure. Unless a statute clearly indicates a contrary intention, rights in pending actions must be decided according to the law as it existed when the action was instituted. In eviction proceedings where respondents allege they are labour tenants under the Act, they bear the onus of proving all elements of that status, including that they are not farmworkers. To prove they are not farmworkers, respondents must prove they were remunerated predominantly in the right to occupy and use land, not in cash or other remuneration. This requires adducing evidence enabling the court to place monetary values on all forms of remuneration (residential rights, grazing rights, cropping rights, cash wages, and any other benefits) to determine which predominates. Where no such evidence is adduced, the respondents fail to discharge the onus and an eviction order may be granted.

The Court declined to pronounce definitively on the precise ambit of section 26(3) of the Constitution and its impact on the common law position regarding onus of proof in eviction proceedings, having not heard full argument on the issue. However, the Court expressed the view (obiter) that section 26(3) does not alter the common law position that where a defendant alleges facts (such as labour tenant status) that would defeat the plaintiff's claim, the onus is on the defendant to prove those facts. The section does not require a plaintiff to allege and prove circumstances irrelevant to its claim, such as that defendants are not labour tenants. The Court also noted without deciding the disagreement between Ross v South Peninsula Municipality (which suggested section 26(3) modified the common law) and Betta Eiendomme (Pty) Ltd v Ekple-Epoh (which disagreed with Ross), expressing no view on the correctness of those decisions except insofar as its conclusion might be at variance or in conformity with them.

This case is significant in South African land reform jurisprudence for several reasons: (1) It established that section 2(5) of the Land Reform (Labour Tenants) Act 3 of 1996, which creates a presumption that persons qualifying under the definition of labour tenant are not farmworkers, does not apply retrospectively to actions pending at the time of its introduction. (2) It clarified that the onus of proof is a matter of substantive law, not procedure, and therefore procedural amendments do not automatically apply to pending litigation. (3) It confirmed that unless clear legislative intent to the contrary appears, rights in pending actions must be decided according to the law as it was when the action was instituted. (4) It demonstrated the evidentiary burden on persons claiming labour tenant status - they must adduce sufficient evidence to enable the court to value both their occupation/use rights and their cash and other remuneration to determine which predominates. (5) It addressed (though without finally deciding) the impact of section 26(3) of the Constitution on the common law position regarding onus of proof in eviction proceedings. (6) It reinforced the approach in Ngcobo v Salimba CC regarding the conjunctive interpretation of the labour tenant definition and the need to assess the predominant quality of occupation over the whole relevant period.