IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at Randburg on 30 and 31 Oct 2000 CASE NUMBER: LCC 116/99 before Moloto AJ Decided on: 27 December 2000 In the matter between: MAHLANGU, NH NO Applicant and THE MINISTER OF LAND AFFAIRS THE PREMIER OF GAUTENG THE COMMISSION ON RESTITUTION OF LAND RIGHTS THE REGISTRAR OF DEEDS THE PREMIER OF THE NORTHERN PROVINCE MANALA TRIBAL AUTHORITY THE VUKU ZENZELE GROUP BANTWANE TRIBE ISCOR LIMITED THE MINISTER OF AGRICULTURE First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent Ninth Respondent Tenth Respondent JUDGMENT MOLOTO AJ: Introduction [1] In this matter the applicant, in a representative capacity as the chief of the Litho Ndundza tribe (hereinafter referred to as the claimant ) of the farm Witlaagte 173JR, approached this Court for an order in the following terms. (I quote the order prayed as it stands): 1. That Applicant be granted leave in terms of section 38B of Act 22 of 1994 to institute an action for the restitution of rights in land (as particularised in paragraphs (i) to (xv) below;

2 2 2. That Applicant be directed to deliver his notice of action within thirty days of the date of this order in accordance with Form 8 of the Rules of the Land Claims Court; 3. That an interim interdict be issued prohibiting the First Respondent from alienating any of the immovable properties set out in paragraphs (i) to (xv) below alternatively Portion 27 of the farm Rust De Winter 180 J.R., pending the finalisation of the action instituted by the applicant in accordance with paragraphs 1 and 2 supra or any consolidated action where restitution of rights in the land set out in paragraphs (i) to (xv) below is claimed; 4. That the First Respondent be ordered to pay the costs of this application alternatively that the costs of this application be reserved for determination by the Land Claims Court hearing the action as envisaged in paragraphs 1 and 2 supra; 5. That the Applicant be granted such further or alternative relief as may be deemed just, equitable and appropriate under the circumstances. [2] The immovable properties set out in paragraphs (i) to (xv) and which the first respondent is sought to be interdicted from alienating are listed as: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) The farm Tambootiepan No 175, Registration Division J.R. The farm La Rochelle No 177, Registration Division J.R. The farm De Lange s Dam No 176, Registration Division J.R. The farm Rooykop No 181, Registration Division J.R. The farm Leeuwkraal No 184, Registration Division J.R. The farm Bezuidenhout s Kraal No 166, Registration Division J.R. The farm Kloppersdam No 187, Registration Division J.R. The farm Melkhoutfontein No 183, Registration Division J.R. The farm Boschkloof No 203, Registration Division J.R. The farm Zaagkuilfontein No 204, Registration Division J.R. The farm Enkeldoornspruit No 207, Registration Division J.R. The farm Kromdraai (Uitspanning) No 109, Registration Division J.R. The farm Rust De Winter No 178, Registration Division J.R. The farm Rust De Winter No 180, Registration Division J.R. The farm Buffelsdrift No 179, Registration Division J.R. I will refer to the farms collectively as the property. Portion 27 of the farm Rust De Winter 180 JR which is mentioned in the alternative in paragraph 3 of the order prayed is not listed. [3] The applicant was authorised to bring this application by a resolution of the Traditional Council of the claimant passed at its meeting on 14 July The Traditional Council was in turn elected at a general meeting of the claimant on 4 February It is stated that a Traditional Council holds office for a period of five years.

3 3 [4] The first respondent is cited in her capacity as the representative of the owner of the property, the Republic of South Africa. Although not mentioned, it can be assumed that the first respondent is also cited in her capacity as the responsible Minister of Land Affairs and in that capacity she is the appropriate respondent in matters brought in terms of the Restitution of Land Rights Act 1 (hereinafter the Act ). [5] The second respondent is said to have an interest in the matter by virtue of the control exercised by the Gauteng Provincial Government over the so-called Land Reform Pilot Program which is or was in charge of the property. It is also alleged that some of the farms, namely, Rooykop, Leeuwkraal, Bezuidenhout s Kraal, Kloppersdam, Melkhoutfontein, Zaagkuilfontein, Boschkloof and Enkeldoornspruit are situated in the Gauteng Province. [6] The third respondent is cited for the interest it is said to have in the outcome of the disputes between the parties concerning the property. The third respondent is responsible for receipt and investigation of land claims instituted in terms of the Act. [7] The fourth respondent, like the third, is said to have an interest in the outcome of the application. No order is sought against the fourth respondent. [8] The fifth respondent is cited because the remaining farms not falling within the Gauteng Province, are said to be situated in the Northern Province. [9] The sixth, seventh and eighth respondents are cited in so far as they have each lodged a claim for the restitution of some or other of the farms constituting the property. [10] The ninth respondent is the registered holder of mineral rights to the farms Kromdraai and Rust De Winter No Act 22 of 1994, as amended.

4 4 [11] The tenth respondent is cited for the interest she has in the matter. The Minister of Land Affairs is also the Minister of Agriculture. The facts [12] The claimant is said to have lodged a claim for the restitution of the property in terms of the Act with the third respondent who acknowledged receipt of the claim on 9 November At some stage the third respondent published a notice in terms of section 12(4) 2 of the Act in the Government Gazette, calling on all potential claimants of the property to lodge their claims within a specified time so that they may be investigated simultaneously to save resources. Upon investigation, the third respondent found that the claimant s claim did not meet the requirements of section 2 of the Act and the acceptance criteria in rule 3 of the Rules of the Commission on Restitution of Land Rights. 3 Section 2(1) of the Act reads as follows: (1) A person shall be entitled to restitution of a right in land if- (a) (b) (c) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who - (i) (ii) is a direct descendant of a person referred to in paragraph (a); and has lodged a claim for the restitution of a right in land; or (d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and 2 Section 12(4) provides: If at any stage during the course of an investigation by the Commission, the Chief Land Claims Commissioner is of the opinion that the resources of the Commission or the Court would be more effectively utilised if all claims for restitution in respect of the land, or area or township in question, were to be investigated at the same time, he or she shall cause to be published in the Gazette and in such other manner as he or she deems appropriate, a notice advising potential claimants of his or her decision and inviting them, subject to the provisions of section 2, to lodge claims within a period specified in such notice. 3 The rules were published in Government Notice 703, Government Gazette 16407, 12 May 1995.

5 5 (e) the claim for such restitution is lodged not later than 31 December [13] Rule 3 of the Rules of the Commission on Restitution of Land Rights reads: 3. The Regional Land Claims Commissioner shall - (a) (b) (c) decide whether the claim which has been lodged substantially complies with the requirements contained in the prescribed claim form; consider whether the claimant was dispossessed of a right in land as defined in section 1 (xi) of the Act; consider whether the dispossession was effected under or for the purpose of furthering the objects of a law as contemplated in section 121 (2) (b) of the Constitution; 4 (d) consider whether the dispossession occurred on or after 19 June 1913; (e) in the event that rights in land were expropriated under the Expropriation Act, 1975 (Act No. 63 of 1975), consider whether just and equitable compensation was paid as contemplated in section 121 (4) (a) and 123 (4) of the Constitution; 5 (f) consider whether the claim was lodged within three years of 1 May 1995; 6 (g) (h) consider whether the claim is frivolous or vexatious; and consider whether any order has been made by the Land Claims Court in respect of rights relating to the land in question. [14] The third respondent determined that the claim could not be processed as a restitution claim and recommended in terms of section 6(2)(b) of the Act 7 that the matter be dealt with as a redistribution 4 Reference to the Constitution here is to the Interim Constitution, Act 200 of See n 4 above. 6 This was before the time limit in section 2 of the Act for lodging claims was extended to 31 December 1998 by the Land Restitution and Reform Laws Amendment Act, 63 of Section 3(1) of Act 63 of 1997 substituted section 2 of the Act. 7 Section 6(2)(b) of the Act provides that: (2) The Commission may, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner- (a)... (b) make recommendations or give advice to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of this Act;

6 6 one. This was done during 1996 and the claimant was duly informed of the step taken. The third respondent s decision not to deal with the matter as a restitution claim is purportedly that the claimant could not show that it had been dispossessed of the property. [15] A letter dated 8 November 1996 from the claimants attorneys and addressed to the Regional Land Claims Commissioner (a regional commissioner of the third respondent) states amongst other things, that: With reference to your letter dated 26 th ultimo our instructions are to reply thereto as follows: 1. Our clients understand that the claim submitted by the Tribe may, in the view of the technical committee not meet with the technical legal requirements of the Land Claims Court for restitution of land. 2. However we record that our client not only has an historical claim 8 to the land, the Tribe having settled on the land as early as c 1846, but also the Tribe has a dire land need In view of the fact that our clients were summarily ejected from land on which they have lived for generations, were thereafter forced into a small piece of land, were never awarded extra land since, had agreements with State Departments disregarded and a pilot project forced upon them which completely disregarded the needs of the Tribe and live in a community where joblessness and poverty reigns supreme, the efforts of your commission, displaying the compassion and sympathy our clients have long been due, are greatly appreciated and your mrs Mashinini and mr Mothibe are lauded and commended. Our clients have therefore approved the referral of the Rust de Winter issue to the Minister of Land Affairs to be dealt with in terms of a re-distribution of land in the discretion of the Minister. This action of your committee is accepted with gratitude. [16] It appears that the claimant later got impatient with what seemed to it to be the slow progress in processing the matter. The claimant had anticipated that any land it might receive under the redistribution programme would come from the property. Therefore, when the first respondent attempted to sell some of the land that formed the property, the claimant, through the applicant s predecessor, Chief Patrick Mngoma Mahlangu, interdicted such sale in the High Court. 9 The High 8 Apparently the phrase historical claim is used here to mean what is termed in other jurisdictions aboriginal claim meaning that the claimant had title predating that of any colonists. Given the Act, such a claim in South Africa would relate to any dispossession predating 19 June 1913 which is the date from when a dispossession may be entertained under the Act. 9 Under case number 2354/98.

7 7 Court application was against the National Minister of Land Affairs. 10 The order sought in the High Court application was in the following terms: (I quote it as it stands) 1. Restraining the Respondent from selling and/or disposing in any way and/or alienating in any way the undermentioned fixed properties and/or portions thereof, being those portions registered in the name of the Government of the Republic of South Africa and controlled by the Respondent in his capacity as Minister of Land Affairs: 1.1 The farm Tambotiepan No 175, Registration Division J.R; 1.2 The farm La Rochelle No 177, Registration Division J.R; 1.3 The farm De Langesdam No 176, Registration Division J.R; 1.4 The farm Rooikop No 181, Registration Division J.R; 1.5 The farm Leeukraal No 184, Registration Division J.R; 1.6 The farm Bezuidenhoutskraal No 166, Registration Division J.R; 1.7 The farm Kloppersdam No 187, Registration Division J.R; 1.8 The farm Melkhoutfontein No 183, Registration Division J.R; 1.9 The farm Boschkloof No 203, Registration Division J.R; 1.10 The farm Zaagkuilfontein No 205, Registration Division J.R; 1.11 The farm Enkeldoornspruit No 207, Registration Division J.R; 1.12 The farm Kromdraai (Uitspanning) No 109, Registration Division J.R; 2. That in the event of the above Honourable Court Granting the Order as prayed for in paragraph 1 above, that this order operate as a temporary interdict, pending the outcome and the decision by the Land Claims Commissioner of a claim by the Applicant for restitution of ownership of the aforementioned properties, which claim has been lodged in terms of the Restitution of Land Rights Act, Act 22 of 1994, read together with the rules regarding the procedure duly promulgated in terms of Government Gazette No 703 dated the 12 th May 1995; 3. Ordering the Respondent to pay the costs of this application; 4. Granting the Applicant such other alternative relief as the above Honourable Court may deem fit. [17] The High Court application was finally settled out of court and, according to the record, stands adjourned sine die. The matter was settled on the following basis: 1. The Applicant will withdraw his claim against the Respondent; 2. Each party will be responsible for his own costs; 3. The Respondent will not alienate the land without first giving the Applicant 30 days notice of his intention to do so The first respondent in the present application. 11 Letter from State Attorney to applicant s attorney dated 14 May 1999.

8 8 [18] Acting in terms of the settlement agreement, the first respondent send a letter dated 4 June 1999 to the applicant s attorneys in the following terms: SALE OF LAND: RUST DE WINTER In terms of the agreement in respect of the case P Mahlangu/Minister of Land Affairs I wish to inform you that the Minister has decided in principle to sell Portion 27 of the farm Rust de Winter 180 JR, 26,97 Ha in size to the SA Jeep Club. The land will be sold to the lessee, the SA Jeep Club, at a market related price to be determined by a sworn valuator. [19] Apparently the claimant anticipated the first respondent to re-distribute to it the self-same property. Therefore the decision by the first respondent to sell the property (or part of it) precipitated this application. The issues [20] The applicant seeks interim relief pending the finalisation of an action for restitution of the property in terms of the Act and other relief. This Court has in earlier judgments adopted the approach 12 set out in the case of American Cyanamid Co v Ethicon Ltd. 13 I shall also follow the approach. In terms of that approach an investigation into whether the applicant disclosed a prima facie case to be granted the relief sought, is undertaken by inquiring into whether the applicant has a serious question to be tried, weighed against the balance of convenience. Put differently: On that approach, the applicant for an interim interdict must show that in the proceedings for final relief to which the proceedings for interim relief relate, there is a serious question to be tried. In assessing whether or not there is a serious question to be tried, the Court will not tie itself to a particular degree of proof. Rather it will ensure that the issue raised in the proceedings for final relief is not frivolous or vexatious or devoid of any merit. It will enquire into the balance of convenience. In coming to its decision regarding the grant or refusal of interim relief, and, if granted, the nature of that relief, the Court exercises a discretion. That process requires it primarily to weigh the apparent strength of the applicants case in relation to the final relief, on the one hand, against the balance of convenience, on the other. If the balance of convenience strongly favours the second respondent, the applicant will have to show strong prospects of success in relation to the final relief before interim relief will be considered. If the balance of convenience 12 See Nchabeleng v Phasha 1998 (3) SA 578 (LCC); [1997] 4 All SA 158 (LCC); Van der Walt and Others v Lang and Others 1999 (1) SA 189 (LCC). 13 [1975] 1 All ER 504 (HL).

9 9 strongly favours the applicants, their burden in relation to the serious question to be tried test is diminished. 14 [21] In undertaking the investigation in this case various issues emerge for determination. They are: (1) Whether the applicant s failure to bring the Regional Land Claims Commissioner s decision to refer the claim in terms of section 6(2)(b) to the Minister is a bar to bringing an application for direct access in terms of section 38B. (2) Whether the matter is res judicata. (3) Whether applicant s acceptance of a referral of the matter in terms of section 6(2)(b) to be dealt with as a redistribution matter amounts to a waiver of rights to restitution in terms of the Act. (4) Whether this Court has jurisdiction to determine the applicant s aboriginal claim dating earlier than 19 June (5) Whether the claimant suffered a dispossession as defined in the Act. (6) Finally, whether the balance of convenience favours the grant of the relief sought. I turn now to analysing the issues. (1) Whether failure to review is bar to a section 38B application [22] Section 36(1) of the Act provides that: (1) Any party aggrieved by any act or decision of the Minister, Commission or any functionary acting or purportedly acting in terms of this Act may apply to have such act or decision reviewed by the Court. 14 Hlapi v Le Grange and Another; Mlambo v Le Grange and Another [1999] 3 All SA 125 (LCC) at para [9].

10 10 [23] I have already indicated that the applicant was satisfied with the decision to deal with the matter as part of the redistribution programme. The applicant expressed its satisfaction with and approval of the decision. The redistribution programme, by its very nature presupposes that one has no claim to a specific piece of land, that one is landless and requests the Government to allocate a piece of land. The decision to allocate a piece of land vests in the Minister of Land Affairs and the claimant may not demand that a specific piece of land be redistributed to it. If, however, the claimant laboured under the misapprehension that it had the right to choose a specific piece of land, then it should have applied for a review as soon as it became aware of the true facts. [24] Neither section 36 nor rule prescribes any time limit within which such review application may be brought. In such circumstances, I am of the view that it must be brought within a reasonable period. 16 If a reasonable period has elapsed, it is always open to the applicant to approach the Court and explain the delay. [25] Failure to bring the Commissioner s decision under review has the result that the first respondent has gone ahead with plans for the property, including the intended sale of part of the property, and the applicant now wants to stop execution of such plans, without having the Commissioner s decision set aside. In this regard, it is important to note that several tribes lodged competing claims regarding some or all of the property and that when the third respondent issued a notice in terms of section 12(4) of the Act, it was with a view to utilising the resources of the Government effectively and resolving all claims relating to the same land simultaneously. 17 Hence, this application coming at this stage has the effect of nullifying such effective utilisation of the Government resources and simultaneous resolution of competing claims to the same land. 15 Rule 35 prescribes the procedure for bringing review applications. 16 See Van Winsen et al Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa, Dendy (ed), 4th ed (Juta, Cape Town 1997) at 955 and the authorities referred to in fn Section 12(4) is invoked for the purpose of utilising the resources of the Commission or the Court effectively.

11 11 [26] I am satisfied that the claimant ought to have applied for a review of the Commissioner s decision if it was not satisfied with it. I can see no bar, even at this stage, to such an application. [27] Section 38B entitles any person who is entitled to claim restitution of a right in land and who has lodged a claim not later than 31 December 1998 to apply to the Court for restitution of such right. However, there is a proviso to the effect that leave of the Court to lodge such application shall first be obtained if- (a)... (b) a notice has been published in the Gazette in terms of section 12(4) or 38D(1) in respect of that land and the period specified in the said notice has expired. [28] The deponent to the answering affidavit filed on behalf of the first and third respondents states: The Commission on Restitution of Land Rights ( Commission ) has in terms of section 12(4) of the Act given notice that it was of the opinion that the resources of the Commission or the Court would be more effectively utilised if all claims arising from the dispossession of rights in respect of the Rust de Winter area would be investigated at the same time, and accordingly invited all potential claimants to lodge their claim for rights in land. [29] The notice in terms of section 12(4) was published in Government Notice No 1089 in Government Gazette of 13 October The period within which potential claimants were invited to lodge their claims was sixty (60) days from the date of publication of the notice. There was a post script to the notice to the effect that the notice applied only to those who had not yet lodged their claims. The applicant s claim form is dated 30 October 1995 and the third respondent acknowledged receipt thereof on 9 November Therefore, the applicant s land claim was lodged within the 60 days limit in the section 12(4) notice. [30] The applicant seeks leave of the Court to bring a section 38B application because there was a section 12(4) notice with respect to the land claimed by the claimant and the period specified in the notice has expired without the section 38B application being lodged. There must surely be a lot of investigative work that went into all the claims that were lodged as a result of the section 12(4) notice

12 12 which is not before me. How such work or information impacts on a section 38B direct access application, I do not know. I need to know this in order to properly exercise my mind on the matter. [31] There is another problem I have with the applicant s prayer in this regard. A section 38B application seems to have the effect of avoiding a review application of the third respondent s decision, and yet achieve the results of such a review. There is important information which would be unlocked by a review application which has not been disclosed and which would cast more light on the veracity of applicant s claim. Such information would be unlocked by rules 35(1)(ii) and 35(2)(b). Rule 35(1)(ii) provides that the notice of motion must call: upon the person or entity whose decision or action is to be reviewed, to dispatch to the Registrar - (a) the record of the proceedings and all documents relevant to the decision or action sought to be reviewed; and (b) his or her reasons for the decision or action,... [32] Rule 35(2)(b) on the other hand provides that the notice of motion must: be supported by one or more affidavits containing the grounds for review and setting out the facts and circumstances upon which the applicant relies to have the decision or action reviewed and corrected or set aside. [33] Quite clearly, a thorough ventilation of applicant s grounds for the claim and the third respondent s reasons for his or her decision are necessary before that decision is either confirmed or set aside. I am in no position to do so on the information before me. [34] It is important to note that the decision of the third respondent, as a responsible official, stands until properly set aside by a competent authority in terms of appropriate proceedings. If such decisions are by-passed and other decisions are taken which co-exist with the third respondent s decision, there will be chaos in the administration of government and will soon result in the undermining of that administration.

13 13 [35] I am satisfied that the section 38B application is premature and should be brought only after the third respondent s decision in terms of section 6(2)(b) has been brought under review. (2) Res judicata [36] Mr Ismail, appearing for first and third respondents, argued that the matter was res judicata, inasmuch as it had finally been resolved in the High Court case no 2354/98. The defence of res judicata requires that the previous action must have been between the same parties, based on the same grounds, with respect to the same subject matter and the court must have given a final judgment. 18 A comparison of the two proceedings becomes necessary to establish the elements of the defence of res judicata, which, if present, the defence must succeed. [37] The first question to decide is whether the previous action was between the same parties. In the High Court case the applicant was the then chief of the Litho Ndzundza tribe, Mr Patrick Mgoma Mahlangu, acting in his capacity as such and on behalf of the Litho Ndzundza tribe. The respondent was the Minister of Land Affairs. In the present proceedings the parties are Mr Nicholaas Hloyiwe Mahlangu, the present chief of the Litho Ndzundza tribe, who is acting in his capacity as such chief on behalf of the said tribe and the Minister of Land Affairs for the Republic of South Africa and nine others. However, the relief sought, is sought against the first respondent, the Minister of Land Affairs only, the other nine respondents having been added for the interest they may have in the outcome of the matter. I am satisfied that the matter is between the same parties. [38] The second element requires that the cause of action must be the same in the two cases. In both cases the Minister of Land Affairs is sought to be interdicted from disposing of land to which the claimant lays claim. It is not clear whether it is the same piece of land, but I will assume, in favour of the respondents, that it was. The previous case was launched in 1998, as the case number is 2354/98. The 18 See African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A); African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A); Mitford s Executor v Ebden s Executors and Others 1917 AD 682; Bertram v Wood SC 177; State v Moodie 1962 (1) SA 587 (A) and Hockfield Commodities (Pty) Ltd v Theron 2000 (1) SA 6551 (O).

14 14 present case was launched as a result of the State Attorney s letter dated 4 June 1999 suggesting a different cause of action from what might have been the cause of action in the 1998 case. In the present application some other relief is sought which by its very nature could not have been sought in the previous application. That relief is the one relating to leave to bring an action in terms of section 38B of the Act. Such relief can only be sought in this Court as this Court has exclusive jurisdiction in terms of the Act. Leave to bring an application in terms of section 38B was not sought in the High Court hence the reliefs sought in the two applications (in the High Court and this Court) are not the same. [39] Three farms, namely Rust De Winter No 178, Rust De Winter No 180 and Buffelsdrift No 179 were not included in the High Court application, however, this does not nullify the defence of res judicata. 19 Therefore the requirement of same subject matter is satisfied. [40] The last requirement is that a final judgment must have been given in the matter. In the High Court case the parties postponed the application sine die to enable them to negotiate a settlement. The settlement was reached and an agreement was signed. Counsel for both the applicant and the first and third respondents were not able to state categorically whether the settlement agreement was made an order of Court or not. After perusing the record of the High Court case, both counsel agreed, correctly in my view, that the settlement agreement was not made an order of court. I cannot find, in the circumstances, that a final judgment was made in the matter. What has happened is that an agreement was reached, which either party may still breach. [41] Therefore, the defence of res judicata must fail. (3) Whether applicant s acceptance of a section 6(2)(b) referral amounts to a waiver [42] It will be remembered that upon being advised of the third respondent s decision to refer the claim to the first respondent, the claimant, through its attorneys, wrote a letter dated 8 November 1996 to the Regional Land Claims Commissioner praising and commending the decision to refer the claim 19 Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (BH) at p 566.

15 15 for redistribution. The question is whether such acceptance is tantamount to a waiver of rights under the Act. [43] Two sections in the Act deal with agreements of waiver or agreements on how to finalise a claim. These are sections 14(3) and 42D. Section 42D 20 is applicable if the Minister of Land Affairs 20 Section 42(D) provides: (1) If the Minister is satisfied that a claimant is entitled to restitution of a right in land in terms of section 2, and that the claim for such restitution was lodged not later than 31 December 1998, he or she may enter into an agreement with the parties who are interested in the claim providing for one or more of the following: (a) The award to the claimant of land, a portion of land or any other right in land: Provided that the claimant shall not be awarded land, a portion of land or a right in land dispossessed from another claimant or the latter s ascendant, unless (i) (ii) such other claimant is or has been granted restitution of a right in land or has waived his or her right to restoration of the right in land in question; or the Minister is satisfied that satisfactory arrangements have been or will be made to grant the claimant restitution of a right in land; (b) (c) (d) (e) (f) the payment of compensation to such claimant; both an award and payment of compensation to such claimant; the acquisition or expropriation by the State of such land, portion of land or other right in land; the manner in which the rights awarded are to be held or the compensation is to be paid or held; or such other terms and conditions as the Minister considers appropriate. (2) If the claimant contemplated in subsection (1) is a community, the agreement must provide for all the members of the dispossessed community to have access to the land or the compensation in question, on a basis which is fair and non-discriminatory towards any person, including a tenant, and which ensures the accountability of the person who holds the land or compensation on behalf of such community to the members of the community. (3) The Minister may delegate any power conferred upon him or her by subsection (1) or section 42C to the Director-General of Land Affairs or any other officer of the State or to a regional land claims commissioner. (4) The Director-General of Land Affairs may with the consent of the Minister delegate to any officer of the State or a regional land claims Commissioner any power delegated to the Director-General under subsection (3). (5) Any delegation under subsection (3) or (4) may be made either in general or in a particular case

16 16 is satisfied that a claimant is entitled to restitution of a right in land in terms of section 2. It therefore does not apply to the applicant s situation. [44] On the other hand section 14(3) applies to a settlement agreement of a restitution claim. It reads: If in the course of an investigation by the Commission the interested parties enter into a written agreement as to how the claim should be finalised and the regional land claims commissioner having jurisdiction certifies in writing that he or she is satisfied with the agreement and that the agreement ought not to be referred to the Court, the agreement shall be effective only from the date of such certification or such later date as may be provided for in the agreement. [45] Section 14(3) is applicable where the claim is adjudged valid and not where the Regional Land Claims Commissioner refers it to the Minister in terms of section 6(2)(b) for redistribution. Therefore, even though the Regional Land Claims Commissioner and the claimant agreed on how to finalise the matter, such agreement did not relate to how the claim should be finalised. Therefore, whatever the agreement between the Regional Land Claims Commissioner and the claimant could have been about, it cannot be a waiver of the applicant s right to claim restitution under the Act. It was a determination by the Regional Land Claims Commissioner with which the claimant agreed then. (4) Whether this Court has jurisdiction to determine the claimant s aboriginal claim dating earlier than 19 June 1913 [46] Section 22(1)(a) of the Act provides: or in cases of a particular nature and on such conditions as may be determined by the Minister or the Director-General of Land Affairs, as the case may be, and the Minister or the Director- General is not thereby divested of any power so delegated. (6) Expenditure in connection with the exercise of the powers conferred by subsection (1) shall be defrayed from moneys appropriated by Parliament for that purpose. (7) The provisions of subsections (1) to (6) and section 42C shall apply mutatis mutandis in respect of an agreement entered into before the commencement of the Land Restitution and Reform Laws Amendment Act, 1999, in terms of which a claimant has waived any or all of his or her rights to relief under this Act.

17 17 (1) There shall be a court of law to be known as the Land Claims Court which shall have the power, to the exclusion of any court contemplated in section 166 (c), (d) or (e) of the Constitution- (a) to determine a right to restitution of any right in land in accordance with this Act; [47] Clearly the power of this Court to determine a right to restitution can only be in terms of this Act. Therefore, outside the ambit of the Act, this Court has no such jurisdiction to determine any rights to restitution. Rights to restitution in terms of the Act are strictly defined in section 2 of the Act. 21 [48] The rights in land which this Court has jurisdiction to determine, are those that result from a dispossession that took place after 19 June Therefore, any claim arising from a dispossession that took place before 19 June 1913 is beyond the jurisdiction of this Court, so also an aboriginal claim 22 of the claimant as a result of a dispossession which took place earlier than 19 June (5) Whether the claimant community suffered a dispossession as defined in the Act [49] It was contended on behalf of the first and third respondents that the applicant has not shown a dispossession as defined because he, did not furnish the circumstances surrounding the community s alleged forced removal in The only reference to dispossession and how it happened is found at paragraph 13.3 of the applicant s founding affidavit where the following is said: 13.3 The whole history of the matter is set out in case number 2354/98 issued out of the High Court of South Africa, Transvaal Provincial Division between my predecessor in his then capacity as duly elected chief of the Litho Ndzundza Tribe and the First Respondent. For the sake of brevity I attach a copy of the application together with annexures thereto as annexure E. I request the Honourable Court to incorporate the entire content of annexure E herein as if specifically mentioned herein. The land referred to in annexure E as belonging to the Litho Ndzundza Tribe until approximately 1917, are presently the farms as set out in the notice of motion. I submit that it is evident from annexure E that the Litho Ndzundza Tribe was deprived of rights in the land set out above, after 19 June 1913, as a result of acts or practices which, at the time, discriminated against the tribe on a racial basis. The said tribe received no compensation for the deprival (sic) at the time. [50] The founding affidavit in annexure E makes the following references to dispossession: 21 Section 2(1) is quoted at para [12] above. 22 See the letter written on behalf of the claimant and quoted at para [15] above.

18 The Litho Ndzundza Tribe has since time immemorial been the owners and occupiers of land known as Mkgudlhlulo and later renamed by the whites as Rust der Winter. As hereinafter described the said land was subsequently expropriated by the previous Government of the Republic of South Africa in terms of the now defunct Apartheid Legislation and Policies. and later, (I quote verbatim): 6.3 The applicant s attorney of record thereupon prepared a full reply to the said letter dated 26 th October 1996, of which I annex a copy hereto as Annexure PM11/1-3, to which I humbly refer. From Annexure PM11', the above Honourable Court will observe that the Applicant Tribe not only has an historic claim to the land, but that the Tribe had been settled on the land as early as 1846 and that the Tribe was forcefully ejected between 1917 and Thus meaning that the Applicant Tribe s claim fall within the ambit of the Restitution of Land Rights Act. [51] In the land claim form, the following response is given to the question: In what year was it acquired? : April The question is aimed at establishing when the property claimed was acquired from the claimant; in other words when was the claimant dispossessed of the land. [52] From the above quotations various confusing aspects relating to the date of dispossession and the reason for the loss of the property emerge: (1) Date of dispossession (i) According to the founding affidavit in these proceedings the claimant was the owner of the property until (ii) According to the founding affidavit in annexure E the claimant was forcefully ejected from the property between 1917 and (iii) According to the claim form the land was acquired in April , that is, the dispossession took place in

19 19 From the above it is not clear whether the loss of the property took place in 1917, between 1917 and 1921 or between April The claimant must make it clear when the property was lost, and that will require a full trial. (2) Reasons for loss of property In all the documents referred to above no explanation is given as to how the property was lost, for example, it is not stated who ejected the tribe, when the tribe was ejected, from what land specifically and what, if any, racially discriminatory law or practice was relied upon for such ejectment. A comprehensive answer to these questions will indicate whether a dispossession did take place or not. Without answering them clearly, it is not certain when the dispossession took place, if at all. In saying so, I am not suggesting that for purposes of prosecuting the claim, the applicant is precluded from providing answers to these questions. That is a matter to be decided by the Court hearing the claim. However, for purposes of the application before me, failure to state clearly when the dispossession took place means that there is no serious question to be tried. (6) Balance of Convenience [53] From an analysis of the above issues it is clear that the applicant s proper cause of action if dissatisfied with the third respondent s referral of the claim in terms of section 6(2)(b) was to apply to have the decision reviewed. Coupled with the applicant s failure to show clearly when the dispossession took place, if at all, and his acceptance of the section 6(2)(b) referral, it seems the applicant has not demonstrated that it has a serious question to be tried. As the applicant is not without a remedy (the applicant can apply to have the section 6(2)(b) referral reviewed) I am of the view that the balance of convenience does and should favour the respondents.

20 20 [54] Notwithstanding the order I am about to make, should the claimant successfully bring the third respondent s decision in terms of section 6(2)(b) under review, it shall not be precluded from bringing an application for leave to institute an action in terms of section 38B of the Act. [55] This Court has, in a number of judgments, 23 adopted the approach that it deals with social legislation hence it is reluctant to make costs orders unless under exceptional circumstances. I am not convinced that the circumstances of this case warrant an award of costs. [56] The application is dismissed. ACTING JUDGE J MOLOTO For the applicant: Adv C R Jansen instructed by De Jager & Associates, Pretoria. For the first, second, third, fifth and tenth respondents: Adv M I Ismail instructed by the State Attorney, Pretoria. 23 See for example Skhosana v Roos reported as Skhosana and Others v Roos t/a Roos se Oord and Others [1999] 2 All SA 652 (LCC); 2000 (4) SA 561 (LCC) at para [30]; Mahlangu v De Jager [1996] 2 All SA 522 (LCC) at ; 1996 (3) 235 (LCC) at