IN THE LAND CLAIMS COURT OF SOUTH AFRICA (HELD AT RANDBURG)

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA (HELD AT RANDBURG) Heard: 6 and 7 December 2007 Decided: xx February 2008 In the matter between Case no: LCC 37/2003 MACASSAR LAND CLAIMS COMMITTEE Plaintiff and MACCSAND CC 1 st Defendant THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 2 nd Defendant THE MINISTER OF LAND AFFAIRS 3 rd Defendant CITY OF CAPE TOWN 4 th Defendant MINISTER OF LOCAL GOVERNMENT AND HOUSING 5 th Defendant THE REGIONAL LAND CLAIMS COMMISSIONER 6 th Defendant THE MUSLIM JUDICAL COUNCIL 7 th Defendant CLIVE AUBREY FIGAJI GEOFFREYLANE FIGAJI MARIANNA LORETTA FIGAJI PHILIP JAMES FIGAJI 8 th Defendant THE REGISTRAR OF DEEDS 9 th Defendant THE SURVEYOR-GENERAL 10 th Defendant JUDGMENT GILDENHUYS J 1

2 [1] The applicant is an unregistered voluntary association. It professes to represent the community of Sandvlei, Macassar, in the Western Province. It instituted a claim for restitution under the Restitution of Land Rights Act, No. 22 of 1994 in respect of erven 1195, 1196, 1197, 1198 and 1191, Macassar. These erven are alleged to have been part of a commonage previously used by the Sandvlei community. The applicant avers that the community was disposed of their right to use the commonage as a result of past racially discriminatory laws and practises. [1A] A close corporation named Maccsand CC, held a right under the Minerals Act, No. 50 of 1991 to mine sand on Erf It conducted (and still conducts) sand mining operations on the erf. Some members of Maccsand are alleged to be members of the Sandvlei community upon commencement of the Minerals and Petroleum Resources Development Act No. 28 of 2002 ( the MPRD Act ), its mining right became an old order mining right. It could be converted into a mining right under the MPRD Act (making it a so-called new order mining right ). [2] The applicant applied by notice of motion directly to this Court in terms of Chapter IIIA of the Restitution of Land Rights Act for a restitution order in respect of the five erven, and for ancillary relief. There are ten defendants. Most of them are organs of state. The first defendant (Maccsand CC), the second defendant (the Government of the Republic of South Africa, represented by the Department of Minerals and Energy) and the fifth defendant (the Western Cape Provincial Government, represented by its 2

3 Minister of Local Government and Housing) delivered notices of intention to defend. [3] On 28 November 2006 this Court ordered (inter alia) that- the claim for restitution be referred to trial; the notice of motion shall stand as the summons; particulars of claim must be served by the plaintiff on the defendants; and the further conduct of the proceedings which have been referred to trial, shall be as set forth in the Land Claims Court Rules. [4] The plaintiff s particulars of claim were delivered in December The plaintiff prays for: (a) An order directing the second and third first respondents to acquire, or if necessary to expropriate erven 1195, , 1198, and 1991 Macassar, into the name of a communal property association to be formed to administer same on behalf of the community of Sandvlei, Macassar. (b) Restitution of the lost commonage rights in land on the former farm Zandvliet, Macassar, by restoration of erven 1195, , 1198, and 1991 Macassar, into the name of a communial property association to be formed to administer same on behalf of the community of Sandvlei, Macassar. 3

4 (c) Alternatively, restitution of the lost commonage rights in land on the former farm Zandvliet by ammending all present title deeds and diagrams that comprise land that previously formed part of the commonage that existed on the former farm Zandvliet Nr 664, Erven 1991, and 1195 to 1198 Macassar, with the following words: Subject to the Zandvliet commonage. (d) Alternatively, an order that compensation be paid in an amount to be determined. (e) prohibiting the first defendant from developing erf 1197 Macassar, in particular from mining, alternatively interdicted from mining erf 1197 Macassar. (f) Costs of suit [5] On 15 March 2007 the second defendant (acting through the Department of Mineral and Energy Affairs), delivered a notice of exception to the plaintiff s claim. Thereafter and on 11 May 2007, the first respondent also delivered a notice of exception. The plaintiff thereupon delivered a notice of intention to amends its particulars of claim. The first and second defendants objected against some of the proposed amendments. Those not objected to were duly effected. [6] On 6 and 7 December I heard argument on: 4

5 The grounds of exception which were not remedied by the amendments which have been effected; and The application for those amendments to which the first and/or second defendant objected. 5