Minister of Rural Development and Land Reform v Normandien Farms & others; Mathimbane & others v Normandien Farms

Normandien Farms (Pty) Ltd owned a farm called Albany in KwaZulu-Natal where members of the Mathimbane and Jele families (the occupants) had lived for many years and grazed livestock. By March 2013, the occupants had 285 head of cattle, 133 goats and 10 horses, which increased to 360 cattle by February 2015. In March 2013, the occupants instituted action claiming to be labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996 (LTA) and seeking an award of part of the farm. On 14 March 2014, the LCC (per Sardiwalla AJ) declared them labour tenants and ordered the Director-General to negotiate regarding alternative land or compensation within 12 months. A written order issued on 2 April 2014 contained amendments that appeared to allow the occupants to elect to acquire part of Albany itself. In December 2013, while the action was pending, Normandien launched an application for removal of the livestock on grounds that severe overgrazing violated the Conservation of Agricultural Resources Act 43 of 1983 (CARA). Expert reports agreed that serious degradation had occurred and all livestock should be removed for five years. The occupants filed a counter-application seeking orders confirming their right to elect to acquire Albany and declaring the removal application subversive of their rights. Meer AJP granted Normandien's application, ordered removal of livestock, and directed the Minister of Rural Development and Land Reform to make alternative grazing land available. The Minister and occupants were refused leave to appeal by the LCC but granted leave on petition to the SCA.

• Whether the Minister has power under the Land Reform: Provision of Land and Assistance Act 126 of 1993 to make land available solely for purposes of grazing
• Whether the court a quo could compel the Minister to exercise permissive statutory powers
• Whether Normandien had standing to seek removal of livestock under CARA
• Whether labour tenants are exempt from CARA
• Whether removal of animals under CARA constitutes an eviction for purposes of the LTA
• Whether the amended order of 2 April 2014 was valid and binding
• Whether the occupants had lodged timeous section 16 applications under the LTA as a prerequisite for an award of land
• Whether the contempt application had merit
• Whether condonation should be granted for egregious non-compliance with filing rules
• Whether the Biowatch principle applies to costs orders in land reform cases

(a) In Case 512/2016 (Minister's appeal): (i) Appeal succeeds; (ii) Court a quo's order amended by deleting para 3 and altering para 5 to exclude the Minister; (iii) Parties bear their own costs of appeal. (b) In Case 370/2017 (occupants' appeal): (i) Condonation and reinstatement granted; (ii) Occupants' attorneys MC Ntshalintshali Attorneys personally pay Normandien's costs of opposing condonation on attorney/client scale including two counsel; (iii) Contempt and postponement application dismissed; (iv) MC Ntshalintshali Attorneys personally pay costs of contempt application on attorney/client scale including two counsel; (v) Counsel and attorneys not entitled to recover fees from occupants for these applications; (vi) Appeal dismissed with costs including two counsel.

(1) Under the Land Reform: Provision of Land and Assistance Act 126 of 1993, the Minister's power to make land available is permissive, not mandatory, and courts cannot compel the Minister to exercise such powers except in exceptional circumstances following proper review proceedings. (2) The Reform Act requires land to be designated 'for purposes of settlement' which means settlement of persons and does not extend to provision of grazing land alone. (3) Labour tenants are subject to CARA and are not exempt from environmental legislation regulating land use. (4) Removal of livestock pursuant to CARA does not constitute 'eviction' under the LTA where the landowner is not purporting to terminate or repudiate the labour tenancy relationship but is enforcing environmental obligations. (5) Private parties with standing may enforce CARA provisions; such enforcement is not an 'eviction' requiring the owner's sworn support under section 6 of the LTA. (6) A judge becomes functus officio after pronouncing an order except to the limited extent permitted by rule 64(1) of the LCC rules to clarify ambiguities or correct patent errors; substantive amendments require proper application and jurisdiction. (7) An order made without jurisdiction is a nullity and can be disregarded without formal setting aside in appropriate cases. (8) The Biowatch principle applies to costs in constitutional land reform litigation between private parties and the State unless proceedings are vexatious, frivolous or characterised by conduct worthy of censure. (9) Personal costs orders against attorneys on a punitive scale, and prohibition from recovering fees from clients, are appropriate sanctions for egregious non-compliance with court rules and abuse of process through unmeritorious applications.

(1) The court expressed concern about the appalling state of administration at the Land Department's Newcastle office, evidenced by the inability to locate original section 16 notices and reliance on databases of questionable reliability. (2) The court noted that if the procedure for reviewing the Minister's decision had been followed in terms of rule 53, fuller information about alternative farms and existing beneficiaries would likely have been available. Even in successful review proceedings, the court would ordinarily remit matters to the decision-maker rather than substituting its own decision. (3) The court observed that it would have been preferable for Normandien to have brought a timeous application to clarify that the amended order of 2 April 2014 was invalid, though this did not affect the legal conclusion that it was a nullity. (4) The court commented that the Land Department could assist the occupants if they were willing to accept alternative land and forego their claim to Albany, as settling them together with their livestock on alternative land would be permissible under the Reform Act. (5) The court noted that Normandien may have been 'somewhat heavy-handed' in the way it acted on 3 March 2017, but this was understandable given intense frustration from delays largely caused by the occupants' conduct. (6) The court directed that in future, all opposed interlocutory applications in the Supreme Court of Appeal must be properly paginated and indexed from the outset, with updated indexes as further papers are filed. (7) The court observed that the occupants' chief deponent had no formal education and required attorneys to explain papers to him, making clear that the contempt application was a strategy devised by legal representatives rather than the occupants themselves. (8) The court rejected the submission that applicants for contempt orders are merely 'informants' who should not be liable for costs, noting this does not accord with modern practice as shown by recent decisions.

This case is significant in South African land reform jurisprudence for several reasons: (1) It clarifies the scope of the Minister's powers under the Land Reform: Provision of Land and Assistance Act 126 of 1993, particularly that the Act does not empower the Minister to provide land solely for grazing purposes and that courts cannot compel the Minister to exercise permissive statutory powers. (2) It establishes that labour tenants are not exempt from environmental legislation such as CARA, balancing land reform rights with environmental protection. (3) It distinguishes between 'eviction' under the LTA and removal of livestock under CARA, clarifying that enforcement of environmental laws does not constitute eviction of labour tenants. (4) It demonstrates the limits of court orders made pursuant to settlement and the functus officio doctrine in preventing substantive amendments without proper application. (5) It applies the Biowatch principle to costs in constitutional litigation between private parties and the State in land reform matters. (6) It addresses serious professional misconduct by legal practitioners and establishes consequences including personal costs orders and prohibition from recovering fees from clients. (7) It provides guidance on procedural requirements for interlocutory applications in the Supreme Court of Appeal regarding pagination and indexing of papers.