Rare court intervention in case of land mismanagement
Publish date: 18 April 2017
Issue Number: 52
Diary: A Matter of Justice
The first frost of the fast approaching winter was evident this week in the tiny Free State village where I live. It signalled the annual challenge for farmers in summer rainfall areas to feed their livestock after the grass and bushes die back.
It’s the time of year when the sensitive veld can easily be damaged and when farmers must take more than usual care to manage their land properly. Into this anxious mix comes an important new decision by South Africa's Supreme Court of Appeal: at the end of March, five judges gave an emerging farmer 30 days to remove his livestock from the farm where they have been grazing – or face action by the sheriff and the police to impound them.
The livestock – cattle, horses and goats – must be removed because the land where they have been grazing is hopelessly degraded as a result of poor management and overstocking, and the veld needs years to recover.
In the more than three decades of the relevant legislation, this is only the second case I have found in which the Conservation of Agricultural Resources Act of 1983 (Cara) has been used in a civil action as the basis to enable rehabilitation of mismanaged veld and to order livestock removed from land.
The other, Normandien v Mathimbane, involved a 2015 order by the Land Claims Court. In both cases, the affected farms are in the Newcastle area of the KwaZulu-Natal province. And for some bizarre reason, both cases resulted in tough punitive costs against the losing parties, for the poor way in which the matters were handled.
Cara deals with, among others, the grazing capacity of veld, and the maximum number and kind of livestock allowed to graze. It also says that ‘land users’ must reduce the number of their animals on the veld if it shows signs of deterioration, and that the veld must be used ‘in alternating grazing and rest periods’.
The most recent case involving Cara, Adendorffs v Shabalala, reached the appeal court after a controversial Land Claims Court decision. The LCC judge concerned made an order, later described by the appeal court as ‘inexplicable’, that went way further than had been asked for, and involved a number of other irregularities. For example, the Minister of Rural Development and Land Reform was ordered to find alternative grazing land for Shabalala, while the Cara legislation falls under the Minister of Agriculture.
Adendorffs owns the farm, mainly used for grazing and cattle farming. Its official carrying capacity is about three hectares per livestock unit. The farm was bought via a bond with a monthly repayment of R90 000. If the farm is not properly managed, say the owners, the natural vegetation – and the grazing resources of the land – will be depleted. That in turn would require costly rehabilitation of the land.
Fayindolo Shabalala, on the other hand, has had a different relationship with the land. He came to the farm when he was six and lived with his father, who was employed there by previous owners until he died. A series of grazing agreements were reached with successive owners of the farm or farmers who hired the land to Shabalala’s family. During that time the land on which Shabalala has been allowed to graze his livestock has been reduced and he says their animals must now graze in the mountains, which provide little grazing.
Shabalala lives in Charlestown. He is not employed on the farm and visits the farm over weekends. He does not contribute towards the maintenance and infrastructure of the farm, although in the past he did so.
Another member of the Shabalala family, Timothy Shabalala, was the second respondent in the case, but he died during the course of the litigation. Adendorffs cited other parties as well – the Ministers of Agriculture and of Rural Development and Land Reform.
According to the owners of the farm, the Shabalalas breached the grazing agreement by having many more cattle than were allowed, by keeping goats, and by not having their cattle inoculated and otherwise protected against disease. Both the owners and the Department of Rural Development and Land Reform hired separate experts to evaluate the state of the contested part of the farm. They all agreed that rehabilitation was needed and that it would cost between R35 000 and R60 000, and that the land had to be cleared of livestock during rehabilitation.
Extensive discussions were held around the time of the Land Claims Court hearing, but the real sticking point was – and still is – where the Shabalalas’ livestock are to go for three years while the Adendorff land is rehabilitated, and who will pay the rental for the land to which the animals are moved. Adendorff originally offered informally to help with transport costs, but that was rejected by the Shabalalas who at that stage refused to relocate their livestock. Now the appeal judges have held that the owner is not obliged to pay for or find, alternative land. Nor are the two Ministers, and all three parties have refused to make any payments towards the rent. Although some suitable land was found that could be hired, the Shabalalas could not afford the R2 000 a month rental.
The owners claim that the degredation of the land is caused by the Shabalalas who breached their grazing agreement by overstocking and not managing it properly. Under Cara, the obligation to manage the land responsibly lies with the ‘land user or the land owner’. The Shabalalas meanwhile say that the farm owner should have intervened as soon as there were signs of degradation. This argument – which led to the contention that the owner was responsible for providing alternative grazing land as well as having to carry the costs for moving and returning the animals – ‘has no merit’, according to the appeal judges.
In the end, however, the appeal judges said the Shabalalas – helped by the farm owners to the extent that they would provide transport – were to remove all their livestock from the farm within 30 days to a place that they (the Shabalalas) were to identify. If they did not do so, the sheriff with the help of the police were to remove all the livestock to the nearest pound. No livestock were to be allowed back on the land for three years.
And for those who keep an eye on these things: the attorneys acting for the Shabalalas were ordered to pay the costs of an application for postponement and condonation out of their own pockets.