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[2014] ZASCA 92
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Manok Family Trust v Blue Horison Investment 10 (Pty) Limited and Others (220/13) [2014] ZASCA 92; [2014] 3 All SA 443 (SCA); 2014 (5) SA 503 (SCA) (13 June 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 220/13
Reportable
In
the matter between
THE
MANOK FAMILY
TRUST
.....................................................................................
APPELLANT
and
BLUE
HORISON INVESTMENT 10 (PTY)
LIMITED
...............................
FIRST
RESPONDENT
CRANBROOK
PROPERTY PROJECTS
................................................
SECOND RESPONDENT
THE
REGIONAL LAND CLAIMS COMMISSIONER,
MPUMALANGA
..............................................................................................
THIRD
RESPONDENT
THE
REGIONAL LAND CLAIMS COMMISSIONER,
LIMPOPO
.....................................................................................................
FOURTH
RESPONDENT
THE
COMMISSION ON RESTITUTION OF
LAND
CLAIMS
................................................................................................
FIFTH
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND
REFORM
...................................................................................
SIXTH
RESPONDENT
Neutral
citation:
The Manok Family Trust v
Blue Horison Investments 10 (Pty) Ltd
(220/13)
[2014] ZASCA 92
(13 June 2014)
Coram:
Mpati P, Maya, Bosielo and Leach JJA
and Mocumie AJA
Heard:
06 March 2014
Delivered:
13 June 2014
Summary
:
Land – Land reform –
Restitution of Land Rights Act 22 of
1994
– land claim – regional commissioner deciding claim
precluded by provisions of
section 2
– whether decision final
and regional commissioner thereafter
functus
officio
.
ORDER
On
appeal from:
Land Claims Court,
Randburg (Sardiwalla AJ sitting as court of first instance):
The
appeal is dismissed. No order is made as to costs.
JUDGMENT
MPATI
P (MAYA, BOSIELO and LEACH JJA and MOCUMIE AJA concurring):
[1]
Section 2 of the Restitution of Land Rights Act 22 of 1994 (the Act)
entitles a person or community dispossessed of a right
in land after
19 June 1913 as a result of past racially discriminatory laws and
practices, to restoration of that right. A claim
for restitution is
directed to the Commission on Restitution of Land Rights
(commission), which is required, among other things,
to investigate
its merits and make a determination as to whether it is not precluded
by the provisions of section 2 of the Act
[1]
and whether it is not frivolous or vexatious (s 11(1)). Where it is
satisfied that a claim has been lodged in the prescribed manner;
is
not precluded by the provisions of s 2 and is not frivolous or
vexatious, the commission, through the Regional Land Claims
Commissioner having jurisdiction (regional commissioner), will
‘accept’ the claim and, thereafter, ‘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’ (s 11(1)). The claim is
then
investigated further (s 12) and either mediated, with a view to
reaching a settlement (s 13), or referred to the Land Claims
Court
(LCC) for adjudication (s 14).
[2]
In terms of s 11A of the Act a regional commissioner may reconsider
his or her decision to ‘accept’ a claim and
may withdraw
the notice published in the
Gazette
on the strength of representations made for the withdrawal or
amendment of that notice. This appeal concerns the question whether
a
regional commissioner, having determined that a claim for restitution
is precluded by the provisions of s 2 because there had
been no
dispossession of the land in issue, may subsequently reconsider that
decision and re-open the investigation into the claim.
[3] On 17 December
1998 Kgoshi Mafemane Hendrik Manok (Kgoshi Manok) lodged a land claim
with the regional commissioner for the
Northern Province (now
Limpopo) and Mpumalanga, claiming restitution of the right of the
descendants of one Jacobus Manok to the
farm Aapiesdoorndraai 258 KT,
situated in the Lydenburg district, Mpumalanga (the farm). Kgoshi
Manok describes himself in the
prescribed land claim form as a
descendant of Jacobus Manok and ‘representative of the Manok
clan’. He states that
he is ‘also operating as a tribal
chief for the Manok Tribal Authority’.
[4] It appears that
in 1915 Jacobus Manok owned a three-eighths undivided share in the
farm
.
The rest was owned by Messrs H J Neethling and R
Schurink. In November 1912 the farm had been surveyed by a government
land surveyor,
on behalf of the three owners. It was sub-divided into
three parts in 1915, apparently with the consent of the three owners,
and
Jacobus Manok received title to a portion of the farm. He died in
1920. In a letter dated 14 June 2000 the regional commissioner,
after
setting out the history of the farm as revealed in the course of
research conducted through his office, advised Kgoshi Manok
that ‘it
is clear that neither [Jacobus] Manok, nor his descendants, were ever
dispossessed of any rights in the farm as
a result of past racial
laws or practices’. The penultimate paragraph of the letter
reads:
‘
You
are advised, therefore, that your land claim has been precluded in
terms of the
Restitution of Land Rights Act.&r
squo;
[5]
Following a letter received from the acting regional commissioner,
Mpumalanga dated 6 June 2005 confirming that the commission
had no
record of land claims against the farm, the first and second
respondents in this appeal embarked on a process of consultation
with
the relevant stakeholders in and around the farm, including Kgoshi
Manok and his community, on the proposed development of
residential
and industrial erven within the townships of the nearby town of
Burgersfort.
[2]
Kgoshi Manok died on 2 June 2008. The first respondent purchased two
portions of the farm for a purchase price of R40 million and,
together with the second respondent, proceeded with development
projects at a risk and cost in excess of R400 million. But, from
the
contents of a letter addressed to a Mr Moses Modise of the office of
the regional commissioner dated 14 June 2005, it appears
that the
author, Mr Tumi Moleke, had held a meeting with Mr Modise on 11 June
2005, where findings of a further research on the
farm and its
history were discussed. According to the letter, Mr Moleke was acting
‘on behalf of the Manok family’.
It was stated in the
letter that the decision of the commission ‘to dismiss the
original claim submitted by the Manok Family’
had been noted.
The second paragraph of the letter reads:
‘
In
the light of the meeting and the findings of our research we hereby
request the commission to reopen the investigation into our
claim. We
reiterate our willingness and availability to cooperate with the
commission on this matter
.’
I
shall assume, for purposes of this judgment, that Mr Moleke was duly
authorised by the appellant and the Manok family to pursue
the land
claim even though it would appear that Kgoshi Manok and his community
had accepted the decision of the regional commissioner.
Mr Moleke, it
must be mentioned, did not lodge a new claim, but in effect revived
the claim that was lodged by Kgoshi Manok.
[6] The Department
of Agriculture and Land Administration of the Mpumalanga Provincial
Government somehow became involved in the
matter and, on 23 February
2007, the regional commissioner wrote to certain stakeholders,
including the Manoke Family Trust (referred
to as the Manok Family
Trust in this appeal) represented by Mr Moleke.
Inter alia
,
the following was conveyed to the addressees;
‘
The
lodged land claim by the Manoke Family over the whole farm, described
as [Aapiesdoorndraai] 298 KT, has been dismissed by the
[regional
commission] but due to [Department of Agriculture and Land
Administration] MEC’s intervention the [regional commissioner]
did reverse such decisions and commenced a review process of this
case in its totality
.’
The
addressees were further advised in the letter that the Manok Family
Trust claim ‘is valid in terms of [the Act] as amended,
and
processes towards claims settlement options are underway’. On
26 October 2008 the regional commissioner gave instructions
to
‘proceed to gazette’ and the land claim was accordingly
published in the
Gazette
on
19 September 2008. This meant that the regional commissioner was now
satisfied that the land claim was not precluded by the provisions
of
s 2 of the Act as he had previously concluded.
[7]
On 10 December 2008 representations were made to the regional
commissioner, on behalf of the first respondent, in terms of s
11A,
in which it was submitted that certain facts placed before the
commission relating to the history of the farm were false.
The
regional commissioner was accordingly requested to withdraw the
notice gazetted on 19 September 2008, alternatively to amend
it ‘so
as to make it clear that the claimant’s claim is . . . limited
to “equitable redress”’. When
these representations
did not yield the desired result, the first and second respondents
launched an application in the LCC seeking,
inter alia, an order
setting aside the decision of the regional commissioner ‘to
reconsider and/or to accept and/or to reinstate
the Manok Land Claim
in respect of [the farm] previously dismissed by him’ as well
as the publication of the claim. Although
seventeen respondents were
cited in the notice of motion, the order sought would implicate only
the regional commissioner (cited
as first respondent) and those who
would benefit from the land claim, if successful. These were Kgoshi
Koos Manok, the son of the
deceased Kgoshi Manok; the appellant in
this appeal and the Manok Community Trust (cited as the second to
fourth respondents).
[8] The court below
mentions in its judgment that ‘the [regional] commissioner
filed a notice of opposition to this application
but subsequently
withdrew it and decided to abide the decision of [the court]’
.
Although the court also stated that the sixth to ninth and the
twelfth respondents did not oppose the application, it appears from
the opposing papers that only the appellant opposed it. In addition,
the appellant brought a conditional counter-application, seeking
the
following order (contained in a document deposed to by Mr Moleke,
which served both as an answering affidavit and a founding
affidavit
in respect of the counter-application):
‘
4.1
Declaring that the correspondence dated 14
June 2000, purporting to be signed on behalf of the first respondent,
does not constitute
a decision in terms of the [Act], read with the
regulations made in terms thereof.
4.2 In the event
that it is decided that the communication dated 14 June 2000 does
constitute a lawful decision in terms of the
[Act], an order
declaring that such decision did not in law preclude a later decision
to the contrary made by the first respondent
on 26 October 2008,
accepting such land claim.
4.3
In the further event that it is also found that the decision of 14
June 2000 constitutes a final decision not subject to
mero
motu
review, then reviewing and setting
aside that decision, and ordering the first respondent to take all
necessary steps to accept
the land claim filed by the descendants of
Jacobus Manok in respect of Aapiesdoorndraai 298 KT
.
.
. . .’
[9]
The court below, in an amended order, set aside the decision of the
regional commissioner ‘to publish the notice in the
Government
Gazette
on 19 September 2008 that the
claim has been lodged in terms of the [Act] by [Kgoshi Manok] on
behalf of the Manok Community, save
insofar as it relates to portions
2 and 3 of the [farm]’ and directed the regional commissioner
to withdraw the notice ‘save
insofar as it relates to portions
2 and 3 of the [farm]’. The court also ordered the appellant to
pay the costs of the application.
It dismissed the counter –
application, with costs. This appeal is with the leave of this court,
the court below having refused
leave to appeal.
[10]
The third to sixth respondents have taken no part in this appeal. I
shall accordingly refer to the first and second respondents,
collectively, as ‘the respondents’. The basis upon which
the court below reached its decision was that the regional
commissioner, ‘[h]aving made the decision to reject the claim
on 14 June 2000, . . . was indeed
functus
officio’
and, consequently, could not reverse his first decision. In this
court counsel for the appellant submitted that the court below
perpetuated the confusion between a preclusion of a claim in terms of
s 11(1)(b)
[3]
and a dismissal in terms of s 11(3), which provides that a ‘frivolous
or vexatious claim may be dismissed by the regional
land claims
commissioner’. He contended that the court incorrectly
interpreted the provisions of the Act and failed to appreciate
the
true nature of the regional commissioner’s decision of 14 June
2000; that it failed to appreciate the investigative nature
and
function of the regional commissioner; that it would be overly
burdensome for investigative bodies, wherever they may find
themselves within the broader state administration, to have to
approach a court every time they believe a previous decision was
incorrect and that, for the sake of efficacy and justice, such
investigative bodies should be at liberty to change their stance
should other facts come to their attention.
[11]
It is not surprising that counsel did not refer to any authority for
the propositions he advanced. Section 11(4) of the Act
provides that
‘[i]f the regional land claims commissioner decides that the
criteria set out in paragraphs
(a)
,
(b)
and
(c)
of subsection (1) have not been met, he or she shall advise the
claimant accordingly, and of the reasons for such decision’.
[4]
Counsel correctly accepted in his heads of argument, and before us,
that the regional commissioner’s decision - to the effect
that
the criteria set out in subsec 1 of s 11 had not been met, ie that
there had been no dispossession of the claimed land, which
decision
was conveyed to Kgoshi Manok in the letter of 14 June 2000 -
constituted administrative action (See
Gamevest
v Regional Land Claims Commissioner
2003 (1) SA 373
(SCA) para 7), capable of being reviewed. In
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004 (6) SA 222
(SCA) a case which concerned the question whether, or
in what circumstances, an unlawful administrative act might simply be
ignored,
this court said the following:
‘
Until
the Administrator’s approval (and thus also the consequences of
the approval) is set aside by a court in proceedings
for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked. The proper functioning of
a modern State would
be considerably compromised if all administrative acts could be given
effect to or ignored depending upon
the view the subject takes of the
validity of the act in question. No doubt it is for this reason that
our law has always been
that even an unlawful administrative act is
capable of producing legally valid consequences for so long as the
unlawful act is
not set aside.’
[5]
When
deciding to re-open the process upon the revival of the land claim
brought by Mr Moleke on behalf of the appellant, the regional
commissioner simply ignored his previous decision to not process it
for the reason given by him.
[12]
The Act makes provision for the withdrawal or amendment of a notice
of claim that had been published in the
Gazette
in terms of s 11(1). This the regional commissioner is empowered to
do where, following investigations conducted upon receiving
representations from a person affected by the publication, he or she
‘has reason to believe that any of the criteria set
out in
paragraphs
(a)
,
(b)
and
(c)
of
section 11(1) have not been met’ (s 11A). The regional
commissioner thus has the power, conferred by the Act, to change
his
or her original decision that the criteria set out in s 11(1) had
been met. But the Act makes no provision for a reversal by
the
regional commissioner of a decision, taken in terms of s 11(4), that
the criteria set out in paragraphs
(a)
,
(b)
and
(c)
of
s11(1) have not been met, thereby, in effect, declining to process
the claim any further.
[13]
It has been held that the exercise of all public power must comply
with the Constitution, which is the supreme law, and the
doctrine of
legality, which is part of that law.
[6]
In
Affordable Medicines Trust and others v Minister of Health &
others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) Ngcobo J, writing for a unanimous court, said:
‘
The
doctrine of legality, which is an incident of the rule of law, is one
of the constitutional controls through which the exercise
of pubic
power is regulated by the Constitution. It entails that both the
Legislature and the Executive “are constrained
by the principle
that they may exercise no power and perform no function beyond that
conferred upon them by law”. In this
sense the Constitution
entrenches the principle of legality and provides the foundation for
the control of public power.’
[7]
(Footnotes omitted)
As
I have mentioned above, the Act does not contain any provision that
empowers a regional commissioner to reverse a decision made
in terms
of s 11(4). It follows that in the present matter the regional
commissioner, in reversing his initial decision - and deciding
to
re-open investigations into the land claim at the instance of Mr
Moleke and the interference of the MEC: Department of Agriculture
Land Administration, Mpumalanga – acted in a manner that is
inconsistent with the Constitution and his conduct was invalid
(see
Affordable Medicines
,
supra
,
para 50).
[14]
The absence, in the Act, of a provision that empowers a regional
commissioner to reverse a decision made in terms of s 11(4),
ineluctably leads one to the conclusion that that decision, though
not a dismissal of a claim, is final. Of course finality ‘is
a
point arrived at when the decision is published, announced or
otherwise conveyed to those affected by it’,
[8]
and a decision is revocable before it becomes final.
[9]
In the present matter the decision of the regional commissioner that
the land claim lodged by Kgoshi Manok on behalf of the Manok
clan
‘has been precluded in terms of the [Act]’ was conveyed
to the claimant as required by s 11(4) by way of the letter
dated 14
June 2000. All indications are that Kgoshi Manok and his community
became aware of the decision. There is no suggestion
to the contrary.
That that is so is also clear from the letter from Mr Moleke
addressed to the Mpumalanga Land Claims Commissioner
for the
attention of Mr Modise, the first sentence of which reads:
‘
We
had noted the decision by the commission to dismiss the original
claim submitted by the Manok Family
.’
The regional
commissioner’s decision therefore became final when it was
conveyed to Kgoshi Manok.
[15] About the
reversal of administrative decisions Baxter says the following:
‘
Indeed,
effective daily administration is inconceivable without the
continuous exercise and re-exercise of statutory powers and
the
reversal of decisions previously made. On the other hand, where the
interests of private individuals are affected we are entitled
to rely
upon decisions of public authorities and intolerable uncertainty
would result if these could be reversed at any moment.
Thus when an
administrative official has made a decision which bears directly upon
an individual’s interests, it is said
that the decision-maker
has discharged his office or is functus officio.’
[10]
In
Kirkland
Investments
,
[11]
one of the issues this court had to consider was the validity of two
administrative decisions taken by the superintendent-general
of the
Department of Health in the Eastern Cape to revoke approvals granted
to Kirkland Investments to establish two private hospitals
which were
given during his absence from office by the person who acted in his
stead, Plasket AJA said:
‘
I
therefore conclude that Boya could not validly take the view that
because the decisions taken by Diliza were invalid, he could
treat
them as nullities and formally revoke them. For as long as the
decisions taken by Diliza had not been set aside on review
they
existed in fact and had legal consequences. As Boya had no authority
arising from the empowering legislation to revoke final
decisions
already taken – much less in the absence of a hearing being
granted to Kirkland Investments – he was, in
relation to the
decisions taken by Diliza in her capacity as acting
superintendent-general, functus officio.’
[12]
[16]
One of the grounds of review validly raised for the review and
setting aside of the regional commissioner’s later decision
to
publish the land claim was that that decision was procedurally unfair
as is contemplated in
s 6(2)(c)
of the
Promotion of Administrative
Justice Act 3 of 2000
. It was alleged, in the founding affidavit,
that ‘[a]fter having dismissed the Manok Land Claim on 14 June
2000 . . . and
with the knowledge that the developers had embarked
upon the various development projects, the [claim] was unlawfully
resurrected
to the prejudice of the developers and without affording
them an opportunity to be heard on this matter’
.
The allegation was not denied in the opposing papers.
[17]
I have mentioned above that a regional commissioner has no power,
sourced from the Act, to reverse a decision made in terms
of s 11(4)
and that his decision to preclude Kgoshi Manok’s land claim was
final. He was therefore
functus officio
and could not reverse or ignore the decision he had already made.
Until set aside by a court in proceedings for judicial review,
which
could have been instituted by the regional commissioner himself (see
Municipal Manager: Qaukeni Local
Municipality & another v FV General Trading CC
2010 (1) SA 356
(SCA) para 23 and the cases there cited) the decision
exists in fact and has legal consequences. It could not simply be
overlooked
or reversed (
Oudekraal,
supra,
para 26). It follows that the
regional commissioner’s subsequent decision to publish the
notice of the land claim in the
Gazette
on 19 September 2008 was invalid and fell to be set aside.
[18]
As to the conditional counter-application, although a number of
so-called review grounds were set out in the opposing papers,
there
were only three grounds upon which leave to appeal against its
dismissal was sought and granted. The first was that ‘the
decision of 14 June 2000 was made without affording the claimants any
opportunity to bring facts to the attention of the [regional
commissioner] which they may have believed to be relevant’.
This was never part of the appellant’s case in its combined
answering and founding affidavit in respect of the
counter-application. Nothing further needs be said on this point. The
second
ground, which was alluded to in the combined affidavit, was
that the regional commissioner was ‘not competent to decide to
reject a claim on the basis that it was “precluded”’
and that on a proper interpretation of s 2 of the Act ‘this
would only be relevant in a case where the claim was lodged before
the cut-off date or where the claimant had received just and
equitable compensation’. Apart from the fact that no argument
was advanced in this court in respect of this ground, the decision
made by the regional commissioner in terms of s 11(4) of the Act does
not amount to a dismissal or rejection of the Manok family’s
land claim. A regional commissioner is empowered to dismiss a claim
only if it is frivolous or vexatious (s 11(3)). A decision
that a
land claim is precluded by the provisions of s 2 simply means that
the regional commissioner was not satisfied that the
criteria set out
in paragraphs
(a)
,
(b)
and
(c)
of
subsec (1) of s 11 have been met, and that the claim would not be
published in the
Gazette
,
investigated further and either mediated or referred to the LCC for
adjudication.
[19]
But the decision of a regional commissioner in terms of s 11(4) does
not necessarily mean that a claimant has reached the end
of the road.
A claimant may, in certain circumstances, pursue a claim by
approaching the LCC directly in terms of s 38B of the
Act
[13]
(see
Mahlangu
NO v Minister of Land Affairs & others
2005
(1) SA 451
(SCA) para 5). Whether or not the appellant would qualify
to approach the LCC in terms of s 38B is not an issue for this court
to consider.
[20]
The third ground was that the land claim ‘had sufficient merits
to pass the low threshold for acceptance’ and that
the fact
that Jacobus Manok ‘re-arranged his ownership at the same
time as when the 1913 Native Land Act came into
force, must raise
warning lights by itself’. The alleged re-arrangement of his
ownership by Jacobus Manok relates to the
1915 sub-division of the
farm by agreement between its three owners at the time. We were not
directed, nor was there any reference
made in the heads of argument,
to any evidence in the papers substantiating the submission that the
land claim had sufficient merits
to pass the low threshold for
acceptance by the regional commissioner. The only contention in the
heads of argument, which was
not really pursued in argument in this
court, is that if it is found that the decision to publish the notice
of the land claim
on 19 September 2008 ‘was invalid for some or
other reason, and stands to be set aside, then it is similarly
submitted that
the decision of 14 June 2000 should also be set aside,
as the land claim was clearly not precluded by [s 2] of the Act’.
Preclusion, so the contention went, cannot relate to a scrutiny of
the merits. There is no merit in this submission. The Act requires
a
regional commissioner to be satisfied that the threshold is passed
and if he or she is not so satisfied, the Act maps out the
course he
or she must take in relation to the land claim. That is what the
regional commissioner did in this case.
[19]
In the result, the following order is made:
The
appeal is dismissed. No order is made as to costs.
______________________
L
MPATI
PRESIDENT
APPEARANCES
For
appellant C R Jansen (with him M A Dewrance)
Instructed
by: Ledwaba Mazwai Attorneys, Pretoria
Webbers
Attorneys, Bloemfontein
For
First and Second Respondents H S Havenga S C (with him J A Venter)
Instructed
by: Snyman De Jager Attorneys, Pretoria
Symington
& De Kok, Bloemfontein
[1]
Where
there was no dispossession there can be no restitution.
Section 2(2) reads:
‘
No
person shall be entitled to restitution of a right in land if –
(a)
just and equitable compensation
as contemplated in section 25 (3) of the Constitution; or
(b)
any other consideration which is just
and equitable, calculated at the time of any dispossession of such
right, was received in
respect of such dispossession.’
[2]
The
townships had been established on two portions of the farm.
[3]
Section
11(1) reads: ‘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; and
(c)
the claim is not frivolous or vexatious
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.’
[4]
For
the criteria referred to see fn 3 above.
[5]
Para
26.
[6]
Pharmaceutical
Manufacturers Association of SA & another: In re Ex Parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 20.
[7]
Para
49.
[8]
Cora
Hoexter
Administrative
Law in South Africa
(2
nd
ed) (2012) at 278, referred to with approval in
MEC
for
Health,
Eastern Cape, & another v Kirkland Investments (Pty) Ltd t/a Eye
and Laser Institute
2014 (3) SA 219
(SCA) para 15.
[9]
Compare
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000 (1) SA 1
(CC) para 44.
[10]
Lawrence
Baxter
Administrative
Law
(1984)
at 372.
[11]
Reference
at fn 8 above.
[12]
At
para 22.
[13]
Section
38B(1)reads: ‘Notwithstanding anything to the contrary
contained in this Act, any person who or the representative
of any
community which is entitled to claim restitution of a right in land
and has lodged a claim not later than 31 December
1998 may apply to
the Court for restitution of such right: Provided that leave of the
Court to lodge such application shall first
be obtained if –
(a)
an order has been made by the Court in
terms of section 35 in respect of a right relating to that land; or
(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.’