IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG … · JUDGEMENT GILDENHUYS J [1] This is an...
Transcript of IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG … · JUDGEMENT GILDENHUYS J [1] This is an...
IN THE LAND CLAIMS COURT OF SOUTH AFRICA
RANDBURG CASE NUMBER: 68/2006
Heard on : 19 March 2007Decided on : 7 May 2007
In case between:
BOUVEST 2173 CC FIRST AAPLICANT
HENRI GEERKENS FAMILIETRUST SECOND APPLICANT
HENDRIK LOURENS SCOTT THIRD APPLICANTMELLOWOOD BELEGGINGS BK FOURTH APPLICANTJOHANNA MARIA GEYSER FIFTH APPLICANTJOHANNES JACOBUS NEL SIXTH APPLICANTWILLEM HENDRIK SAAYMAN SEVENTH APPLICANTPLAASWELTEVREDEN 508 (PTY) LTD EIGHTH APPLICANT
HERBERG BOERDERY (PTY) LTD NINTH APPLICANT
HENDRIK BERNARDUS VAN DER WALT TENTH APPLICANTMICHIEL FREDERICK & MARIA S M HORN ELEVENTH APPLICANT
BERGALLEEN BOERDERY CC TWELTH
APPLICANT
MARIUA SUSANNA VAN TONDER THIRTEENTH
APPLICANT
CASPER JAN HENDRIK VAN DER WALT FOURTEENTH APPLICANTJAN & SARIE ELIZABETH JACOBS LEWIES FIFTHTEENTH APPLICANTSOHNEL BOERDERY (EDMS) BPK SIXTEENTH APPLICANT
and
COMMISSION ON RESTITUTION OF LAND RIGHTS FIRST RESPONDENT
REGIONAL LAND CLAIMS COMMISSIONER: LIMPOPO SECOND RESPONDENTMOKIBELO SATERDAG MOKITLANE THIRD RESPONDENTBAHLALEROA COMMUNITY FOURTH RESPONDENTSOIS LESIBA MOSEHLANA FIFTH RESPONDENTMOKITLANE LAND CLAIM COMMITTEE SIXTH RESPONDENT
MOTSE COMMUNITY SEVENTH RESPONDENT
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JUDGEMENT
GILDENHUYS J
[1] This is an application for the review of a decision taken by the Regional Land
Claims Commissioner: Limpopo, to publish in terms of section 11(1) of the
Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”), notices in the
Government Gazette that a claim for the restitution of land rights has been lodged in
respect of twenty farms listed in the notices. Two notices were published: notice no.
164 of 2005 and an amendment thereof, being notice no. 893 of 2005. The
applicants are farmers who own some of the farms, or portions thereof. The first
respondent is the Commission on Restitution of Land Rights. The second
respondent is the Regional Land Claims Commissioner: Limpopo. The third to
seventh respondents are claimants for the restitution of land rights in respect of the
farms.
[2] Four claims for restitution which were submitted on claim forms as prescribed
by the Chief Land Claims Commissioner, are of relevance in this matter. The first is
a claim form signed by the third defendant (claiming on behalf of himself and his son
Malos Mokitlane) in respect of the farm Mooimeisjesfontein 536 LR, dated 4
December 1997. The second is a claim form signed by Malose Johannes Makgae
on behalf of the fourth respondent in respect of the farm Burgersvlei 496 LR, dated 7
December 1998. The third is a claim form signed by the fifth respondent (claiming on
behalf of the Mosehlana, Maema Shiko and Cheche Monene families) in respect of
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the farms Dordrecht 578 LR, Moerdijk 598 LR and Gorcum 577 LR, dated 11 August
1996. According to the latter claim form, Philemon Mogobe Mosehlana is the person
who lost the right in the land. None of the applicants in this application own any of
the abovementioned five farms. I will refer to the fourth claim form later.
[3] The claims contained in the first three claim forms were investigated by a
project officer of the first respondent, Mr J P Sithole. He submitted a socalled
acceptance report. Seventeen farms (including the abovementioned five farms) are
listed in par 1.1 of Mr Sitole’s report as being “the land under claim”. He stated in
par 2 of his report that the claims lodged by the third, fourth and fifth respondents
“on behalf of the [Motse] community comply substantially with the requirements in
terms of section 10(3) of the Restitution Act”. In actual fact, the third, fourth and fifth
respondents claimed only five of the seventeen farms.
[4] The second respondent accepted Mr Sithole’s report. Notice of the claims of
the third, fourth and fifth respondents were then published in the Government
Gazette in terms of section 11(1) of the Restitution Act. The notice contains the
following statement:
“Mr Mokibelo Saterdag Mokitlane [the third respondent], Johannes Malose Makgae
[who claimed on behalf of the fourth respondent], and Sois Lesiba Moshlana [the fifth
respondent] lodged the claims on behalf of Motse community on the 12th December
1997, 10th
December 1998, and 20th
August 1996 respectively.”
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The Government Gazette lists twenty farms. Three of them (Alem 544 LR, Lith 541
LR and Baklyplaats 751 LR) are not listed in par 1.1 of Mr Sithole’s report as part of
the “land under claim”.
[5] There is a fourth claim form contained in the records of the second
respondent. The form is dated 28 December 1998. It was signed on behalf of the
sixth respondent, which described itself as the “Mokitlane Land Claim Committee”.
There is no reference in the form to the “Motse Community”. The claim form relates
to the farms Mooimeisjesfontein 536 LR, Lith 541 LR, Alem 544 LR, Liliefontein 506
LR, Klein Denteren 495 LR, Uitkomst 507 LR, Groot Denteren 533 LR and
Haasjesveldt 573 LR. These eight farms form part of the twenty farms listed in the
Government Gazette notice as being farms allegedly claimed by the third, fourth and
fifth respondents on behalf of the “Motse community”. There is no mention of this
claim form in the report by Mr Sithole, nor in the notice published in the Government
Gazette. The third, fourth, fifth, sixth and ninth applicants own some of these farms,
or portions thereof.
[6] Lastly, there are seven farms listed amongst the aforesaid twenty farms in the
Government Gazette notice in respect of which no claim form was presented. The
farms are Riebeeck West 539 LR, Biesjeskraal 540 LR, HottentotsHolland 538 LR,
Varkfontein 650 LR, Kirstenbosch 497 LR, Baklyplaats 751 LR and Weltevreden 507
LR. The seventh, eighth and tenth to sixteenth applicants own some of these farms
or portions thereof.
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[7] The reason provided by the second respondent in his answering affidavit [par
19] for adding these seven farms is the following:
“On the very same basis of rezoning, restructuring and change of farm names, more
specifically to the ignorance of the claimants in that regard and as to the real names of those
farms made, it impossible, if not practically difficult, to know exactly the extend of the farms.
After further research was made it was evident that out of the report made those farms were
excluded, not necessary that they were not claimed initially.”
[8] The second respondent seems to be saying that the third, fourth and fifth respondents
initially did claim these seven farms, but under different names. This is alleged to be the
result of rezoning, restructuring and changes in farms names. The claimants, so the second
respondent says, were ignorant of the “real names” of the farms. There is no evidence in the
second respondent’s records of any changes in farm names. The claim forms are very
specific, referring to the claimed farms by name and number. The second respondent fails to
say which (if any) of the farm names changed, nor how the third, fourth or fifth respondents
might have been misled. He did not put forward any rational basis on which he included the
seven farms in the claimed land.
[9] In the opposing affidavit delivered by Mr Matlou on behalf of the third, fourth,
fifth, sixth and seventh respondents, it is stated (in par 12 thereof) that the last
mentioned seven farms were claimed by the late Mr Matsobane Nkhumane on
behalf of the Nkhumane clan, and that it is part of the Motse Community land claim.
Mr Matlou avers that the claim was submitted to the Land Claims Commission
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before the closing date for the submission of claims, but gave no further details. No
claim forms in respect of these farms are included in the records which the second
respondent submitted to this Court.
[10] There seems to have been no investigation by Mr Sithole as to whether the
claim lodged by the 6th respondent and (allegedly) by Matsobane Nkhumane,
complies with the provisions of section 2(2) of the Restitution Act. Neither the
acceptance report nor the Government Gazette notices contain any mention of any
such claims.
[11] In summary, of the twenty farms referred to in the notices, one was claimed by the third respondent, one by the fourth respondent, three by the fifth respondent, eight by the sixth respondent (including Mooimeisjesfontein, which is also claimed by the first respondent) and seven allegedly by Matsobane Nkhumane. The twentieth farm listed in the notices, Rietspruit 581 LR, does not seem to have been claimed by anybody. As I have said, the applicants own some of the farms (or portions thereof) claimed by the sixth respondent and (allegedly) by Matsobane Nkhumane, but not any of the farms claimed by the third, fourth and fifth respondents in their claim forms.
[12] Included in the records of the second respondent is a document dated 30
April 2002, stating that the “Bahlarwa, Mosehlane and Mokitlane Communities have
agreed to bring their files together and appoint one leader to run LandAffairs”
[annexure F to the founding affidavit]. The document contains the names and
signatures of a chairperson, a deputy chairperson, a secretary, a deputy secretary
and a treasurer who are apparently mandated to drive the claim on behalf of the
communities. At the bottom of the document the name “MokitlaneMosehlaneMatlou
Land Claim Committee” appears.
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[13] The inclusion of the seven farms allegedly claimed on behalf of the
Nkhumane clan derives from an undated document contained in the records of the
second respondent [annexure G to the founding affidavit]. It reads:
MOSEHLANA / MOKITLANE / MATLOU LAND CLAIM COMMITTEE
POTGIETERSRUS
“1. The following farms are forming part of a broader land claims and exclusion of these farms shall be viewed as serious mistake in our history:
(Then follows the names of the seven farms)
The deceased Matsobane Nkhumane has lodged the claims with the commission on the abovementioned farms.
2. We have the following things to justify our claim for the farms: ruins, Kraals, and
graves”.
The agreement to establish the Mosehlana / Mokitlane / Matlou Land Claim
Committee was recorded on 30 April 2002. The abovequoted document must
therefore be of a later date.
[14] Also contained in the records of the second respondent is a resolution dated
2 October 2004 [annexure H to the founding affidavit]. It is signed on behalf of the
“Mokitlane Mosehlane Matlou Makgae Community”. Paragraph 3 reads as follows:
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“Our Land Claim, which was formerly known as Mokitlane Mosehlane Matlou
Community Land Claim will be known as MOTSE COMMUNITY LAND CLAIM.”
[15] The name Motse was chosen as a name under which the various claimants
will prosecute their “merged” claim. Notwithstanding the above, the second
respondent stated in the notice published in the Government Gazette, after listing
the twenty farms, that the third respondent, the fourth respondent and the fifth
respondent lodged the claims “on behalf of the Motse Community on the 12th
December 1997, the 10th December 1998 and the 20th August 1996 respectively.”
That is obviously incorrect.
[16] The second respondent admits that “Motse community” is a “merging name” adopted by the claimants with the permission of the first respondent. He contends that there is no reason to treat the various restitution claimants as individual entities. He says (in paragraph 18 of his answering affidavit);
“The fact that a name of one of the claimant was not initially mentioned does not mean that
he was never a claimant. It must be noted that some of claimants were grouped under one
name, not necessary that mentioning of one claimant exclude the other community members
who were staying with a particular claimant. To avoid confusion the applicant should regard
all the claimants as one claimant, the seventh respondent.”
[17] The second respondent also does not deny the applicant’s allegation that the
practice to “merge” different claims can have and often has the effect that persons
who did not lodge timeous claims would become beneficiaries of restitution through
the “merger”. He states (in par 11 of his replying affidavit) that merger is “prudent” in
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cases where the “geographical area and the history is the same”. In the present
instance, the effect of the “merger” is to broaden the claims brought by the third,
fourth and fifth respondents in respect of specific farms, to become a “communal”
claim which includes communities which have not lodged timeous claims and farms
which are not listed in the claim forms of the third, fourth and fifth respondents. For
instance, the Matlou community and possibly also the Nkhumane community did not
lodge claims by 31 December 1998. They cannot obtain restitution by piggybacking
onto other claimants. See In re Former Highlands Residents 2000 (1) SA 493 (LCC)
at 495 CE.
[18] Section 2(1) of the Act provides that a person shall be entitled to restitution of
a right in land if
“(a) 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
(b) …
(c) …(d) it is a community or part of a community dispossessed of a right in land after 19 June
1913 as a result of a past racially discriminatory laws or practices; and
(e) the claim for such restitution is lodged not later than 31 December 1998.”
[19] Under section 6(1) of the Restitution Act, one of the functions of the Land
Claims Commission, through a regional land claims commissioner, is to
“(a) subject to the provisions of section 2, receive and acknowledge receipt of all claims
for the restitution of rights in land lodged with or transferred to it in terms of this Act;”
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[20] Section 11(1) of the Restitution Act provides for the publication of notice of
claims in the Government Gazette. It reads as follows:
“(1) If the regional land claims commissioner having jurisdiction is satisfied that
a) the claim has been lodged in the prescribed manner;
b) the claim is not precluded by the provisions of section 2;
c) …
d) …
he or she shall cause notice of the claim to be published in the Gazette and shall
take steps to make it known in the district in which the land in question is situated.
Only if there is prima facie compliance with the requirements of section 2 of the Act,
may the Regional Land Claims Commissioner publish notice of the claim in the
Government Gazette.
[21] That brings me to the norms which the Regional Land Claims Commissioner
must apply to the acceptance of claims. It was held by Dodson J in Farjas (Pty) Ltd
and Another v Regional Land Claims Commissioner, KwaZuluNatal 1998 (2) SA
900 (LCC), that the investigation into the merits of a restitution claim is done only
after the claim has been accepted in terms of section 11(1) of the Act. During the
acceptance stage, it must only be shown that the claimants have an arguable case.
Also in the Farjas case, Bam P held as follows (at 936 GI):
“However, I am firmly of the view that…total exclusion [of a claim] was intended to occur only
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in patently bogus claims or claims without substance or claims which on a purely mechanical
or objective determinable reasoning, fell outside the parameters of the legislation.”
[22] In Mahlangu NO v Minister of Land Affairs and Others 2005 (1) SA 451
(SCA), Nugent JA referred to the Farjas case and said (at 455DF) that:
“While s 11(1) of the Act requires a regional commissioner to be satisfied that a claim ‘is not
precluded by the provisions of s 2 before the process is set in motion, Dodson J held that a
claimant need exhibit only ‘an arguable case’ (at 924C). In my view even that threshold
might be too high but it is not necessary in this appeal to decide that question.”
[23] In Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 (1) SA
373 (SCA), Olivier JA said (at 380AC) that the Regional Land Claims
Commissioner
“ …may proceed with the aforesaid publication [of a claim] only if he or she is
satisfied that (a) the claim has been lodged in the prescribed manner; (b) the claim is
not precluded by the provisions of s 2; and (c) the claim is not frivolous or vexatious
(s 11(1)(a), (b) and (c)).
After giving consideration to these requirements, the Regional Land Claims Commissioner then has to take an administrative decision and perform an administrative action, viz to refuse acceptance of the claim or to accept the claim.”
See also Hlaneki and Others v Commission on the Restitution of Land Rights and
Others [2006] All SA 633 (LCC) at 639e640c.
[24] If the claim “on a purely objective determinable reasoning fell outside the
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parameters of the Legislation” (per Bam P in the Farjas case), it must be excluded.
In other words, the Regional Land Claim Commissioner must be satisfied, already at
the acceptance stage that, on the information in his possession, it is arguable that
the claim falls within the parameters of sec 2(1) of the Restitution Act.
[25] The applicants seek a review of the second respondent’s decision:
• to accept the “Motse community” (the seventh respondent) as a claimant
in respect of the applicant’s farms; and
• to publish a claim in respect of the applicant’s farms, where such farms
were not claimed by the third, fourth or fifth respondents.
[26] In terms of section 1 of the Restitution Act
“Community” means any group of persons whose rights in land are derived from shared
rules determining access to land held in common by such group, and includes part of such
group”
[27] It was held by Dodson J (Moloto J concurring) in In Re Kranspoort
Community 2000 (2) SA 124 (LCC) at 143 F–144 D:
“That brings me to the current existence of a community. As I have said, it is clear that there
must be a community in existence at the time of the claim. Moreover, it must be the same
community or part of the same community which was deprived of rights in the relevant land.
However, this does not mean that the identity of the claimant community, in terms of its
constituent members, should be identical to the one which was originally dispossessed. This
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would be an anomaly, something which a statute is assumed to avoid. Communities cannot
be frozen in time. Changes in the constituent families and the admission of new members
and departure of others must mean that the face of a community changes over time. It would
also be anomalous to suggest that a community which had been subjected to a forced
removal should be required to show that, at the time of the claim, the members have rights in
land held in common by the group. That requirement can only apply in respect of the
situation which existed before the dispossession. In the circumstances, in deciding what
meaning is to be given to the concept of a community at the time of the claim, the
qualification ‘unless the context indicates otherwise’ at the beginning of s 1 comes into play
and reliance cannot be placed on the definition of community in the Restitution Act.
Dictionary definitions are also of little assistance. The meaning must be derived from its
context. This seems to me to require that there must be, at the time of the claim,
1. a sufficiently cohesive group of persons to show that there is still a community or a part of
a community, taking into account the impact which the original removal of the community
would have had;
2. some element of commonality with the community as it was at the time of the
dispossession to show that it is the same community or a part of the same community
that is claiming.”
[28] In the present case, the claims which must be investigated are claims lodged
by claimants who at the time of lodging qualified for restitution, not claims by a
subsequently created entity which owes its existence to a “merger” of claims. It
might be permissible, should it appear that a particular claimant is entitled to
restoration of the land which it claimed, to transfer that land with the consent of the
parties concerned into the name of an overarching entity which also accommodates
land claimed by others. That is not the case in the present instance. The “Motse
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community” did not lodge any claim. There was no such community in existence at
the time of dispossession.
[29] There is no indication in the records of the second respondent that he applied
his mind to the question whether the seventh respondent was a community or not.
On the contrary, the second respondent admits that “Motse Community” is a
merging name for a number of land restitution claims which were combined into a
single claim. There is nothing on record at the second respondent to show that a
single community as defined in the Act ever had rights in land over the applicants’
farms, neither at the time of dispossession nor at any time thereafter.
[30] It was suggested on behalf of the second respondent that the reason why
most of the twenty farms are not mentioned in the claim forms can be ascribed to
“rezoning, restructuring and change of farm names”. The records of the second
respondent contain no indication that the third, fourth and fifth respondents might at
the time have intended to claim any land other than that described in the claim
forms. The three claim forms referred to in Mr Sithole’s report and considered by the
second respondent make no mention of any of the farms owned by the applicants.
[31] The requirements for a review of the second respondent’s decision to accept
and publish the socalled claim are found in section 33(1) of the Constitution of the
Republic of South Africa read with section 6(2) of the Promotion of Administrative
Justice Act, No 3 of 2000 (PAJA).
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[32] Administrative action which is not authorised by the empowering provision, or
which is taken for a reason not authorised by the empowering provision, or which
contravenes a law is reviewable under section 6(2)(f)(i) or (f)(ii) of PAJA. These
sections read as follows:
“6(2) A Court or Tribunal has the power to judicially review an administrative action if –
……
(f) the action itself
(i) contravenes a law or is not authorised by the empowering provision;
or
(ii) is not rationally connected to –(aa) …
(bb)
(cc) the information before the administrator; or(dd) the reasons given for it by the administrator.
[33] In Trinity Broadcasting (Ciskei) v Independent Communications Authority of
South Africa 2004 (3) SA 346 (SCA), Howie P said (at 354H – 355A) that, in
applying the rationality test set by section 6(2)(f)(ii) of PAJA, the reviewing Court will
ask:
“is there a rational objective basis justifying the connection made by the administrative
decision maker between the material made available and the conclusion arrived at.”
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In casu, the second respondent concluded that the seventh respondent presented
an arguable case that the restitution claim is not precluded by section 2(1) of the
Restitution Act.
[34] In my view it cannot be disputed that:
• the applicant’s farms were not claimed in the claim forms signed by the
third, fourth and fifth respondents;
• at the time of dispossession, the Motse community did not exist as a
community which complies with the definition of “community” contained
in section 1 of the Restitution Act;
• the Motse community did not itself lodge any claim; the name “Motse
community” is a post1998 creation;
• the Motse community as envisaged in the Gazette notices include
more persons, families or communities than the third, fourth and fifth
respondents.
[35] In terms of section 11(1)(b) of the Restitution Act, the second respondent may
not publish a claim in the Government Gazette if it is precluded by the provisions of
section 2. A person is not entitled to claim restitution of a right in land of which he
was not dispossessed, or which he did not claim by 31 December 1998. A
community which was not in existence at the time when the claims were lodged and
which now include members who have not lodged claims, cannot be entitled to
restitution. The acceptance and publication of such restitution claims are not
authorised under section 11(1) read with section 2(1) of the Restitution Act, and is
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therefore subject to judicial review under section 6(2)(F)(i) of PAJA.
[36] The applicants contend that a mere reading of Mr Sithole’s report, when
compared to the actual claim forms lodged with the second respondent by the third,
fourth and fifth respondents, makes it clear that the second respondent’s decision to
accept a “Motse Community land claim” for publication, was not rationally connected
to the information available to the second respondent and the reasons for the
decision put forward by the second respondent. I can find no rational basis on which
the second respondent could have concluded that an arguable case was made out
that the claim of the Motse community as published in the Gazette is not precluded
by the provisions of section 2(1) of the Restitution Act. Insofar as that decision
affects the applicants’ farms, the applicants are entitled to have it judicially reviewed
under section 6(2)(f)(ii)(cc) and (dd) of PAJA.
[37] I conclude that the first and second respondents, on the information contained
in the record which they filed in this case did not have the right in terms of the
Restitution Act to accept and publish a claim for the restitution of land rights by the
seventh respondent, insofar as the claim affects the properties of the applicants. I
can, under section 9(1)(d) of PAJA, make a declaratory order to that effect.
[38] It was argued on behalf of the respondents that under section 11(2) of the
Restitution Act, the second respondent is entitled to condone the fact that a claim
has not been lodged in the prescribed manner, and that in this case he did in fact
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condone it. Section 11(2) reads as follows:
“The Regional Land Claims Commissioner concerned may, on such conditions as he or she
may determine, condone the fact that a claim has not been lodged in the prescribed manner.”
It is not at issue in this case whether or not the claim has been lodged in the
prescribed manner. It is at issue whether the claim is admissible under section 2(1)
of the Restitution Act. In my view it is not. It is not a lawful claim, irrespective of the
manner in which it was lodged. The second respondent cannot, by granting
condonation, convert a claim which is precluded by section 2(1) into a lawful claim.
[39] Mr Molawa submitted on behalf of the first and second respondent (I quote
from par 23 of his heads of argument) that:
“The provision of s 10(3) of the Act was also invoked to include the farms which were not
originally incorporated within the claim and it is, selfexplanatory in a single unambiguous
way.”
Sec 10(3) of the Restitution Act records as follows:
“If a claim is lodged on behalf of a community the basis on which it is contended that
the person submitting the form represents such community, shall be declared in full
and any appropriate resolution or document supporting such contention shall
accompany the form at the time of lodgement: Provided that the regional land claims
commissioner having jurisdiction in respect of the land in question may permit such
resolution or document to be lodged at a later stage.”
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[40] I fail to understand how sec 10(3) can assist the respondents. The Motse
Community (the 7th respondent) did not exist at the time when the third, fourth and
fifth respondents lodged their claims. There is also no evidence that any of them
intended, at the time when they lodged their claims, to bring their claims on behalf of
any entity not referred to in the claim forms.
[41] After the claim was published in the Gazette, the applicants embarked upon
their own investigations into its validity. The investigations showed that the claim
does not conform to the requirements of sec 2(1) of the Restitution Act. The
applicants thereupon submitted representations to the second respondent in terms
of section 11A of the Restitution Act to withdraw the notice in the Gazette. Section
11A(1) reads as follows:
“11A(1) Any person affected by the publication of the notice of a claim in terms of
section 11(1) may make representations to the regional land claims commissioner having
jurisdiction for the withdrawal or amendment of that notice.”
The representations by the applicants are dated 14 October 2005 and were
delivered to the office of the second respondent by hand.
[42] Despite the statement by the second respondent in par 23.2 of his answering
affidavit that “all the representation made by the Applicants were replied to”, the
applicants maintain that the second respondent has not even acknowledged receipt
thereof, nor did he reply in any manner whatsoever. In his answering affidavit, the
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second respondent does not say how or when he replied, nor did he produce any
written answer. No reasons for the rejection of the representations were given,
except for the statement in par 24.4 of his answering affidavit that he “has done its
research and is satisfied with the finding”. In par 24.6 of his answering affidavit he
says:
“The claims in this matter were properly lodged, investigated and published and there in no
need for doing that for the second time.”
[43] The third to seventh respondents oppose to the review application, inter alia
on the basis that it was brought outside the 180 day period referred to in section 7(1)
of PAJA. Section 7(1) of PAJA requires proceedings for judicial review to be
instituted without unreasonable delay and not later than 180 days after the date on
which any proceedings instituted in terms of internal remedies have been concluded.
The said respondents argue that the review application should have been brought
within 180 days after the date of publication of the notice in the Gazette, namely 11
February 2005 or the amendment thereof on 10 June 2005.
[44] The Restitution Act provides an internal remedy under section 11A of the Act.
The applicants made written representations in terms of section 11A(1) on 14
October 2005, which was within a reasonable time after the publication of the
notices. In the concluding paragraph of the representations, the first respondent
was requested to take a decision on the representations within 30 days after receipt
thereof. The 30 day period expired on 13 November 2005. The second respondent
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did not establish that he reacted to the representations at all. If the 180 day period is
calculated from 13 November 2005, it would expire on 12 May 2006. The review
proceedings were instituted on 28 April 2006, within the 180 day period referred to in
section 7(1)(a) of PAJA.
[45] I proceed to consider what order this Court should make in respect of the first
and second respondents’ administrative decision to accept and publish the claims,
insofar as the decision relates to the applicants’ farms. For the reasons given, the
Court should review that decision. This Court is in as good a position as the first and
second respondents to decide whether the claims as published are precluded by
section 2(1) of the Restitution Act. The result must be a forgone conclusion. There
is no point in remitting the decision to the first and second respondents for
reconsideration. See Cora Hoexter, The New Constitutional and Administrative Law
vol 2, p292293. In my view, this is a case in which the Court should take its own
decision which will replace the first respondent’s decision. See Gauteng Gambling
Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) par [28] at
75EG and par [39] at 79G.
[46] The obvious lack of rationality in arriving at the decision to accept and publish
the claim as a claim by the second respondent, enjoins me to depart from the usual
practice of this Court not to make cost orders, and to order the first respondent to
pay the applicants’ costs. Moloto J adopted a similar approach in Hlaneki v
Commission on Restitution of Land Rights and Others [2006] 1 All SA 633 (LCC) at
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642d, where the Regional Land Claims Commissioner took a manifestly indefensible
position. The nature and importance of the case justify the employment of two
counsel, and the costs of two counsel should be awarded.
[47] For the reasons set out above, I hereby make the following order:
1. It is declared that on the information contained in the record which the
first and second respondents filed in this case, they were not entitled
under the Restitution of Land Rights Act, 1994, to accept and publish a
claim for the restitution of land rights by the seventh respondent in
respect of the properties of the applicants listed in paragraph 2 of this
Order.
2. The decision of the second respondent to accept a claim for restitution
of land rights in the name of the seventh respondent and to publish
notice thereof in the Government Gazette by way of Notices No 164 of
2005 and No 893 of 2005, is hereby reviewed and set aside, insofar as
the decision relates to the following properties:
2.1 portion 1 and the remaining extent of the farm Groot Denteren
533LR, owned by the second applicant;
2.2 portion 3 and portion 6 of the farm Groot Denteren 533 LR, owned by the fifth applicant;2.3 the remaining extent of portion 2 and portion 5 of the Farm Groot Denteren 533 LR, owned by the fourth applicant;
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2.4 the remaining extent of the farm Klein Denteren 495 LR owned by the sixth applicant;2.5 Portion 1 of the farm Liliefontein 506 LR and the remaining extent of the farm Liliefontein 538 LR, owned by the third applicant;2.6 the farm, Bergsig 511 LR (previously a portion of the farm Uitkomst 507 LR), owned by the first applicant;2.7 the farm Alkantrand 519 LR (previously part of the farm Uitkomst 507 LR), owned by the ninth applicant;2.8 portion 1 of the farm Uitkomst 507 LR, owned by the sixth applicant;2.9 the remaining extent of the farm Hottentotsholland 538 LR, owned by the eleventh applicant;2.10 portion 4 of the farm Hottentotsholland 538 LR, owned by the twelfth applicant;2.11 portion 4 of the farm Hottentotsholland 538 LR, owned by the twelfth applicant;2.12 the remaining extent of the farm Hottentotsholland 538 LR, owned by the eleventh applicant;2.13 portion 7, portion 17 and the remaining extent of the farm Kirstenbosch 497 LR, owned by the tenth applicant;2.14 portion 5 of the farm Kirstenbosch 497 LR, owned by the fourteenth applicant;2.15 portion 11 of the farm Kirstenbosch 497 LR, owned by the fifteenth applicant;2.16 the remaining extent of portion 10 of the farm Kirstenbosch 497 LR, owned by the thirteenth applicant;2.17 the remaining extent of the farm Weltevreden 508 LR, owned by the eighth applicant; 2.18 portion 1 of the farm Weltevreden 508 LR, owned by the seventh applicant; and2.19 portion 2 of the farm Weltevreden 508 LR, owned by the sixteenth applicant.
3. The second respondent is hereby directed to publish a notice in the
Government Gazette rectifying or replacing Notice No 164 of 2005 and 893 of
2005, so as to give effect to the order in par 2 hereof.
4. The first respondent is ordered to pay the applicants’ costs, including the costs
of two counsel.
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A GILDENHUYSJUDGE OF THE LAND CLAIMS COURT
AppearancesFor the applicants:
Mr G L Grobler SC with himMr H S Havenga instructed byJoubert & MayTzaneen
For the first and second respondents:Mr M J Malowa instructed byThe State AttorneyPretoria
For the third to seventh respondents:Mr L Tshidzumba instructed byThe Nkuzi Law ClinicPolokwane
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