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[2015] ZASCA 51
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Niehaus v Regional Land Claims Commissioner and Others (116/2014) [2015] ZASCA 51 (27 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 116/2014
Not Reportable
In
the matter between
CHRISTOPHER
CHARLES DE
MOWBRAY
..............................................................
APPELLANT
NIEHAUS
and
THE
REGIONAL LAND
CLAIMS
.................................................................
FIRST
RESPONDENT
COMMISSIONER
THE
CHIEF LAND
CLAIMS
.....................................................................
SECOND
RESPONDENT
COMMISSIONER
THE
MINISTER OF
RURAL
.........................................................................
THIRD
RESPONDENT
DEVELOPMENT
& LAND REFORM
MOSIMA
COMMUNITY
............................................................................
FOURTH
RESPONDENT
MAJADIBODU
COMMUNITY
......................................................................
FIFTH
RESPONDENT
MABULA-MOSIMA
COMMUNITY
..............................................................
SIXTH
RESPONDENT
Neutral
citation:
Niehaus v The Regional
Land Claims Commissioner & others
(116/2014)
[2015] ZASCA 51
(27 March 2015)
Coram:
Mpati P, Maya, Cachalia and Bosielo JJA
and Van der Merwe AJA
Heard:
12 March 2015
Delivered:
27 March 2015
Summary
:
Restitution of Land Rights Act 22 of 1994
– registered owner of
two farms seeking a declarator that there are no land claims lodged
with the Land Claims Commissioner
in respect thereof – court a
quo ordering the Commissioner to publish a notice in terms of
s 11(1)
of the Act – whether court competent to make such an order.
ORDER
On
appeal from:
Land Claims Court,
Randburg (Loots AJ sitting as court of first instance):
1 The appeal is
upheld with costs which shall include the costs of two counsel.
2 Paragraphs 1 and 3
of the order of the court below are set aside.
2.1 The notice,
published pursuant to paragraph 3 of the order of the court below,
under Government Notice 1044, on 25 October 2013
in
Government
Gazette
in respect of the appellant’s properties Star 567
LR and Onschuld 568 LR, forming part of Onschuld 551 LR (“the
properties”)
is declared invalid.
3 The matter is
referred back to the Land Claims Court for it:
3.1 to afford all
the respondents an opportunity to address the court on the question
of whether or not the fifth respondent (or
any other person) had,
prior to 31 December 1998, lodged any valid claims in terms of
s 10
of the
Restitution of Land Rights Act 22 of 1994
against the
properties;
3.2 and consider any
other issues properly raised in the papers before court;
4
The first and second respondents are ordered to pay the costs of the
hearing on 25 April 2013.
JUDGMENT
Bosielo
JA (Mpati P, Maya, Cachalia JJA and Van der Merwe AJA concurring):
[1]
This is an appeal against a judgment by Loots AJ in the Land Claims
Court, Randburg granted on 6 September 2013. The appeal
is with the
leave of the court below. The order of judgment which is the subject
of this appeal reads:
‘
1.
The application is dismissed.
2. The notice
published by the first respondent in terms of
s 11A(4)
[the
Restitution of Land Rights Act 22 of 1994 (Restitution)], being
Government Notice No. 343 in
Government Gazette
36307 dated 5
April 2013, is hereby set aside.
3. The first
respondent is ordered to publish, within 30 days of the date of this
order, notice in terms of
s 11(1)
of the
Restitution of Land Rights
Act 22 of 1994
of the fifth respondent’s claim in respect of
the applicant’s two farms and to give notice that Government
Notice No.
343 in
Government Gazette
36307 dated 5 April 2013
has been set aside by this court.
4.
No order is made as to costs.’
[2]
This matter has had a long and chequered history, depicting a sad
picture of administrative ineptitude on the part of first
respondent.
The background facts which led to this protracted litigation can be
broadly set out as follows. The appellant is the
registered owner of
two farms, to wit, Star 567 LR and Onschuld 551 LR, a consolidation
of Portion 3 of Eyzerbeen 553 LR and Onschuld
568 LR as disputed on
consolidated title deed number T146587/02. He conducts game farming
on the two farms in Limpopo (the properties).
[3]
During or about February 2006, the appellant obtained a copy of
Notice 411 of 2005, published in GG 27352, 11 March 2005 to
the
effect that the Majadibodu Community (the fifth respondent) had
lodged land claims over certain property in Limpopo. The properties
did not appear in that notice. As the appellant had received an
unconfirmed report that there may be land claims over the properties
he instructed a firm of attorneys to seek confirmation in writing
from the Regional Land Claims Commissioner. But despite repeated
requests, no reply was forthcoming. As a result, the appellant served
a request for information on the Commissioner in terms of
the
Promotion of Access to Information Act 2 of 2000 (PAIA) on 10 August
2006. The Commissioner responded on 1 November 2006 saying
that ‘…
we have checked our land-base and there is currently no information
regarding any land claims on these two
farms.’
[4]
Furthermore, an undertaking was made that in the event that new
information suggesting that there were any claims in respect
of the
properties, the appellant would be notified. As no information was
forthcoming from the commissioner, the appellant assumed
that there
were no claims in respect of the properties and abandoned his
investigations.
[5]
To his utter astonishment, the appellant received notification during
December 2009 that restitution claims had been lodged
against the
properties by the fifth respondent. So, the appellant again
instructed his lawyers to investigate this matter further
with the
Commissioner. When the Commissioner failed to give any meaningful
reply, the appellant’s attorneys filed another
formal request
for information under PAIA at appellant’s request. In response
to many repeated reminders, a bundle of documents
were delivered to
appellant’s attorneys on 1 April 2010, but none of the
documents furnished contained any information pertaining
to the
properties.
[6]
Despite this, the commissioner maintained that there were claims in
respect of the properties on its computer database. Faced
with this
situation, the appellant demanded that the properties be removed from
the Regional Land Claims Commissioner’s database.
Except for an
acknowledgment of receipt, there was no substantive response to this
demand, and the appellant was not able to find
any acceptable proof
that legitimate claims existed over either of his properties.
[7]
The appellant therefore had no alternative but to institute
proceedings in the Land Claims Court (LCC) primarily for an order
declaring that there were no valid claims, as defined in s 1 of the
Restitution Act, which had been lodged against his properties
including any claims by the Mosima Community, the Majadibodu
Community and the Mabula – Mosima Community, together with some
ancillary relief.
[8]
The first and second respondents filed opposing papers. They answered
through Mr Tele Alfred Maphoto (Maphoto), who described
himself as
the Acting Chief Land Claims Commissioner, Chief Director for Land
Restitution Support in Limpopo, and the former Regional
Land Claims
Commissioner for Limpopo. Maphoto responded by a letter as follows:
‘
We
still do not know how and why the farms appear on the systems but we
cannot rule out the possibility of a supporting document
until the
restitution process has been finalised.’
He
proceeded to state that:
‘
Having
regard to the proximity of the two farms to the other farm claimed by
the Majadibodu Community, it may be that the Fifth
Respondent may
have claimed them. This aspect can only be decided once the
Majadibodu claim has been finalised.’
[9]
When the matter came before Gildenhuys J he ordered the Commissioner
to report on whether it was possible and feasible to identify
from
its records if any land claims had been lodged over the properties.
Maphoto responded that the first respondent’s office
had
checked all their records and found in its hard copy files relating
to the three communities no evidence of claims having been
lodged in
respect of the properties. However, its electronic database showed
that they were affected by the claims. Curiously,
his report then
concluded:
‘
It
would seem that the farms were erroneously or fraudulently captured
on the electronic land claim database as they do not appear
anywhere
in the hard copies and therefore our office will take the corrective
measures by removing the farms from the database.’
However,
the first respondent never removed the properties from the database.
[10]
The matter came before Loots AJ on 4 December 2012. She issued an
order by consent of the parties in terms of which the first
to third
respondents were, amongst others, required to deliver a status report
in respect of the claims lodged by fifth respondent
in the Waterberg
area by 15 February 2013.
[11]
In response hereto, a status report was delivered by the State
Attorney. The applicant’s properties appeared last in
a
schedule attached to the status report with the caveat ‘farms
still to be researched’. There was a further explanatory
note
that the properties had not been researched and gazetted as they did
not appear on the Commission’s database at the
time of the
research. The note ended that they would be researched in the
2013/2014 financial year.
[12
In its attempt to comply with the further order by Loots AJ to
publish notice of the claims in respect of the properties in
terms of
s 11(1) of the Restitution Act by not later than 31 March 2013, the
first respondent published a notice purporting to
amend the notice of
11 March 2013 by adding the applicant’s two forms. This was
published in terms of s 11(A)(4) as Government
Notice 343, GG 36307,
5 April 2013.
[13]
The appellant attacked both the status report and the notice
published in the
Government Gazette
.
Regarding the status report, it was contended that as the report
reflected that no investigations had been made in respect of
the
properties, it did not comply with the court order. But the court a
quo found, correctly in my view, that the attack was without
merit as
the court order did not go so far as to instruct the respondents to
undertake any investigation.
[14]
However, regarding the notice, the court below found that it was not
in accordance with the court order as it was issued in
terms of
s 11A(4) instead of s 11(1) of the Restitution Act. Accordingly,
it set the notice aside. The court below then ordered
the first
respondent to publish within 30 days of the date of the order, a
notice in terms of s 11(1) of the Restitution Act of
the fifth
respondent’s claim in respect of the properties and to give
notice that Government Notice No 343 had been set aside
by the Court.
[15]
Regarding the main claim, the court below found that it could not
grant an order declaring that there are no claims lodged
against the
properties as one of the communities had come forward asserting that
it had lodged a claim and providing evidence thereof.
As the court
found this to be an insuperable obstacle to the relief claimed it
dismissed the application.
[16]
Before us the appellant submitted that, as the fifth respondent, the
community asserting a claim in respect of the properties,
did not
participate in the proceedings, it was premature and impermissible
for the court below to have dismissed the application
on the papers.
It was submitted further that as no evidence has been tendered as
proof that a claim has been registered properly
in terms of s 11(1)
in respect of the properties, the appropriate order was for the
matter to be remitted to the court below for
further hearing, in
particular to afford the respondents the opportunity to address the
court on the question of whether or not
the fifth respondent (or any
other person) had, prior to 31 December 1998, lodged any valid claims
in terms of s 10 of the Restitution
Act against the two properties. I
agree.
[17]
Regarding the order to publish a notice in terms of s 11(1), it was
contended that it was not competent for the court below
to make such
an order as, first, none of the parties had sought such a relief and,
secondly, there was no evidence that the first
and second respondents
had met the jurisdictional requirements in s 11(1).
[18]
It is clear that the question whether any claim has been registered
in terms of s 11(1) against the appellant’s two properties
is
still not answered. The respondents have not been able to give a
clear and unequivocal response to the appellant’s numerous
enquiries. This is notwithstanding the undisputed fact that the
appellant’s enquiries span a period of not less than 10 years.
What is worse is that the respondents have proffered contradictory
versions on the status of the claim. The appellant’s position
has been compounded by the un-cooperative attitude and unexplained
failures by the respondents to respond to his concerted enquiries.
Regrettably, this uncertainty is still persisting to date.
[19]
There should be no doubt that this uncertainty over the properties
has caused the appellant anxiety. For instance, in terms
of s 11(7)
of the Restitution Act, once a notice has been published in respect
of any land, no person may deal with that land either
by way of sale,
exchange, donation, lease, subdivision or development, without having
given the regional land claims commissioner
one month’s written
notice of his or her intention to do so. Furthermore s 11(7)(
b
)
and (
c
)
also place onerous restrictions on the owner and other persons to
deal with his or her property. The prejudice suffered by the
appellant is, in my view, self-evident as he is at present
effectively hamstrung. Any further delays in finalising this matter
will exacerbate his prejudice.
[20]
Counsel for the respondents conceded, correctly in my view, that the
notice issued in terms of s 11(A) was improper and was
correctly set
aside by the court below. Furthermore, he accepted that the new
notice in terms of s 11(1) which was issued whilst
this appeal was
still pending, was improperly issued and conceded its invalidity.
This concession was properly made. Regarding
the dismissal of the
declarator, counsel for the respondents capitulated and accepted that
no acceptable proof had been presented
to date that there are claims
which have been properly lodged in terms of s 11 in respect of the
properties. In order to cure this
defect, he agreed that the matter
be referred back to the Land Claims Court and that the Commissioner
be afforded a period of 1
calendar month to enable him to publish a
proper notice in terms of s 11(1) of the Restitution Act.
[21]
I interpose to state that the history of this case proves that the
appellant has done everything humanly possible to investigate
this
matter to get acceptable proof that his properties are subject to
valid claims. This he did because the lodging of claims
in terms of s
11(1) against the properties has serious legal consequences. Quite
correctly, he sought the assistance of first respondent
as the person
responsible for the receipt and processing of the claims.
Regrettably, the first respondent was more obstructive
than helpful.
[22]
Section 11(1) places the following obligations on the first
respondent: once a claim has been lodged, the first respondent
must
satisfy himself first, that it is lodged in a prescribed manner –
s 11(1)(
a
);
that the claim is not precluded by the provisions of s 2 – s
11(1)(
b
)
and further that the claim is not frivolous or vexatious – s
11(1)(
c
)
he or she shall cause a notice of the claim to be published in a
Government
Gazette
.
The first respondent has failed to do that.
[23]
Furthermore, the section directs that the first respondent shall take
steps to make it known in the district in which the land
in question
is situated that such a claim has been lodged and published.
Importantly, s 11(6) requires the first respondent, immediately
after
publication of the s 11(1) notice in the
Government
Gazette
,
to advise the owner of the land and any other party which in his or
her opinion might have an interest in the claim in writing
of the
publication of the notice, and to refer the owner and such other
party to the provisions of s 7. To date there has been
no proof of a
valid s 11(1) notice, nor a copy of the claim form allegedly lodged
by fifth respondent. Furthermore, there is no
evidence that the owner
has been notified in writing of any claim as is required by s 11(6).
[24]
Given the uncertainty regarding the correct status of the properties,
I have no doubt that it is in the best interests of the
appellant as
well as the fifth respondent or any other interested persons that the
question whether there is a valid claim lodged
by fifth respondent in
respect of the properties be expeditiously and finally determined.
The potential prejudice caused to both
parties by this uncertainty is
self-evident.
[25]
The conduct of the first respondent warrants comment and censure. It
is important to emphasise the duties, responsibilities
and
obligations of the first respondent. Undoubtedly, the first
respondent is pivotal to the entire process that is, the lodgement
of
claims to land, their registration, the issuing of notices,
publications of claims in the
Government
Gazette
, including informing the land
owner in respect of whose property a claim has been lodged and any
other party which might have an
interest in the property. This
includes investigations of claims lodged culminating in their
finalisation, which might be through
mediation or referral to the
Land Claims Court, in appropriate circumstances. Self-evidently
claims to land can never be properly
processed without the
co-operation and assistance of the first respondent.
[26]
Sadly, this case demonstrates that the first respondent did not
appreciate the crucial role which he is expected to play in
processing land claims. So far he has succeeded to stymie persistent
efforts by the appellant since May 2006 to get clarity regarding
the
status of the claim in respect of his properties. What exacerbates
the situation is that even after the court order of 6 September
2013
by Loots AJ, the first respondent has still not produced any proof of
the lodgement of any claims against the properties.
Evidently this
conduct is unacceptable.
[27]
In the circumstances, I make the following order:
1 The appeal is
upheld with costs which shall include the costs of two counsel.
2 Paragraphs 1 and 3
of the order of the court below are set aside.
2.1
The notice, published pursuant to paragraph 3 of the order of the
court below, under Government Notice
1044, on 25 October 2013 in
Government Gazette in respect of the appellant’s properties
Star 567 LR and Onschuld 568 LR,
forming part of Onschuld 551 LR
(“the properties”) declared invalid.
3 The matter is
referred back to the Land Claims Court for it:
3.1
to afford all the respondents an opportunity to address the court on
the question of whether or not
the fifth respondent (or any other
person) had, prior to 31 December 1998, lodged any valid claims in
terms of
s 10
of the
Restitution of Land Rights Act 22 of 1994
against the properties;
3.2
and consider any other issues properly raised in the papers before
court;
4 The first and
second respondents are ordered to pay the costs of the hearing on 25
April 2013.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances:
For
the Appellant : BE Leech SC (with him AC Botha)
Instructed
by:
Werksmans
Attorneys, Johannesburg
Symington
& De Kok, Bloemfontein
For
the 1-3
rd
Respondents: P Nonyane (with him G Mothibi)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
the 5
th
Respondent: Mr Makhambeni
Instructed
by:
M
Magigaba Inc., Durban
Matsepes
Inc., Bloemfontein