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[2021] ZASCA 2
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Silwane Community Development Trust v Regional Land Claims Commissioner, Kwazulu-Natal and Others (900/2019) [2021] ZASCA 2 (6 January 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not-Reportable
Case
no: 900/2019
In
the matter between:
SILWANE
COMMUNITY DEVELOPMENT
TRUST
APPELLANT
and
REGIONAL
LAND CLAIMS COMMISSIONER,
KWAZULU-NATAL
FIRST RESPONDENT
COMMISSION
ON RESTITUTION
OF
LAND RIGHTS
SECOND RESPONDENT
MINISTER
OF RURAL DEVELOPMENT
AND
LAND REFORM
THIRD
RESPONDENT
DIRECTOR
GENERAL OF THE
DEPARTMENT
OF RURAL
DEVELOPMENT
AND
LAND
REFORM
FOURTH RESPONDENT
THE
CHARL SENEKAL SUIKER TRUST
IT
855/1984
FIFTH RESPONDENT
MBONGENI
ZULU
SIXTH RESPONDENT
NOMUSA
MATHE
SEVENTH RESPONDENT
NTOMBIFUTHI
MATHABELA
EIGHTH RESPONDENT
NDABA
GUMBI
NINTH RESPONDENT
MUSWENKOSI
MATHABELA
TENTH RESPONDENT
REGISTRAR
OF DEEDS,
KWAZULU-NATAL
ELEVENTH RESPONDENT
Neutral
citation:
Silwane Community Development Trust v Regional
Land Claims Commissioner, Kwazulu-Natal and Others
(900/2019
[2021] ZASCA
02
(6 January 2021)
Coram:
PETSE DP, MBHA, DAMBUZA and NICHOLLS JJA
and MATOJANE AJA
Heard
:
18 November
2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail,
publication on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down are deemed to be delivered
on 7 January 2021.
Summary:
Restitution of Land Rights Act 22 of 1994
– claim for
restitution of land rights – review of Regional Land Claims
Commissioner’s decision to publish claim
as described in claim
form – appellant alleging that additional properties depicted
in map wrongfully omitted – no
reviewable irregularity
established.
ORDER
On
appeal from:
The Land Claims Court, Randburg (Kollapen J sitting
as court of first instance):
The
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
Matojane
AJA (Petse DP, Mbha, Dambuza and Nicholls JJA
concurring):
[1]
This is an appeal against the judgment of the Land Claims Court,
Randburg (LCC) dismissing a review
application in respect of a
decision of the Regional Land Claims Commissioner (the RLCC) to
publish a notice in the government
gazette in terms of section 11(1)
of the Restitution of Land Rights Act 22 of 1994 (the Restitution
Act) without including a number
of farms that the appellant contends
ought to have been included.
[2]
The application has its origin in two restitution of land claims that
were lodged by the late Inkosi
Silwane Ernest Myeni (Inkosi Myeni)
with the RLCC on 4 February 1997. The claims were submitted on
behalf of the community
by virtue of the provisions of the
Restitution Act, for the restitution of the land to the community.
They were published in the
Government Gazette Notice 1586 of 26
August 2005.
[3]
After the death of Inkosi Myeni, the appellant trust was formed to
pursue the claims on behalf of the
community. In a letter dated
24 October 2016, the appellant took issue with the land description
as set out in the Government
Gazette publication by the first
respondent in terms of s 11(1) of the Restitution Act. The applicant
contended that the RLCC had
wrongly excluded 28 other farms not
expressly referred to in the two claim forms in the gazette notice.
The RLCC, on the other
hand, took the view that the claim forms
lodged by Inkosi Myeni were clear and precise as to the claimed farm
portions and that
it acted procedurally fair before publishing the
notice.
[4]
With the impasse having arisen, the appellant applied to the LCC for
an order reviewing and setting
aside the decision of the RLCC to
publish the Government Gazette Notice. It also sought an order
directing the RLCC to withdraw
the said notice and publish a new
notice in the Gazette containing the additional properties that were
not published in Government
Gazette Notice 1586 of 26 August 2005.
[5]
The application was unsuccessful. On 24 July 2019, Kollapen J granted
limited leave to the appellant
to appeal to this Court in relation to
the manner and process in which the state respondents dealt with the
matter once there was
the identification of additional properties.
[6]
A right to restitution of rights in land was created by s 8(3)(b) of
the Interim Constitution of the
Republic of South Africa Act, 200 of
1993 and was entrenched in the final Constitution of the Republic of
South Africa Act 108
of 1996.
[1]
Section 25(7) of the Constitution provides for the restitution of
rights in the land as follows:
‘
A
person or community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices
is entitled,
to the extent provided by an Act of Parliament, either to restitution
of that property or to equitable redress’.
[7]
The Restitution Act is the Act envisaged in s 25(7) of the
Constitution. The object of the Restitution
Act is, amongst others,
to give effect to the constitutionally entrenched rights of
individuals and communities who had been dispossessed
of land rights
and disadvantaged as a result of past racially discriminatory laws
and practices. The restitution process is a finite
one with a
limitation placed on the period within which claims may be lodged.
Section 2(1) and (2) of the Restitution Act deals
with entitlement to
restitution and provides:
'(1) 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) 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
(c) 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) is a
direct descendant of a person referred to in paragraph (a); and
(ii) 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
(e) the claim
for such restitution is lodged not later than 31 December 1998.’
[8]
Section 6 of the Restitution Act sets out the general functions of
the Commission. Those functions include,
amongst others, receiving
and acknowledging receipt of claims, the taking of reasonable steps
to ensure that claimants are assisted
in the preparation and
submission of the claims, advising claimants of the progress of their
claims and investigating the merits
of claims that have been
submitted, and mediating and settling disputes arising from such
claims.
[2]
[9]
Section 10 of the Restitution Act sets out the requirements for
lodging a valid claim. s 10 (1) provides:
‘
(1) Any person who or the representative of any
community which is entitled to claim restitution of a right in land,
may lodge such
claim, which shall include a description of the land
in question, the nature of the right in land of which he, she or such
community
was dispossessed and the nature of the right or equitable
redress being claimed,
on the form prescribed for this purpose by
the Chief Land Claims Commissioner under section 16
.’ (My
emphasis.)
[10]
Section 11(1) obliges the RLCC having jurisdiction to cause a notice
to be published in the Gazette and make it
known in the district in
which the land in question is situated 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 section 2; and
(c) the claim
is not frivolous or vexatious.’
[11]
In terms of s 11(2) the RLCC
may, on such
conditions as he or she may determine, condone the fact that a claim
has not been lodged in the prescribed manner.
[12]
Section 16 empowers the Chief Land Claims Commissioner to make rules
regarding, among others, any matter which
is required or permitted to
be prescribed. Section 16(1)(b) confers the power to make rules in
regard to the filing of claims.
Rule 2(1) of the Rules Regarding
Procedure of the Land Claims Court
[3]
provides that a claimant:
‘
. . . shall lodge a claim in writing on a duly
completed claim form, as prescribed by the Commission in terms of
section 10 of the
Act, substantially in the form of Annexure A
together with such additional documents as are relevant to
substantiate the claim,
with the regional office of the Commission
having jurisdiction over the land in respect of which such a claim is
instituted.’
[13]
In the present matter, Inkosi Myeni was able to identify the claimed
properties in the claim forms with precision.
He completed the claim
forms with meticulous care. In paragraph 1.1, the standard form
requires the person completing the form
to provide ‘the
portion(s), name(s) and number(s) of the farm and district in which
it is situated’. He provided the
correct portions and farm
names in the first claim form as follows:
‘
MORGENSTOND. NO. 599 A-B AND
AVONSTOND MP. 581 B-C. STRAIGHT TO PONGOLA
UBOMBO DISTRICT’
[14]
In the second claim form, he provided the accurate name, portion and
district in which portions of the farm Overwin
lay. He described the
property as follow:
‘
OVERWIN
NO. 163 A & B - UBOMBO DISTRICT.’
[15]
In paragraph 15 of the review application, the appellant explained
that the land described in the claim forms and
claimed by the Myeni
community encompasses the following properties:
‘
The
land described in the said claim forms and accompanying description
by the Inkosi and the applicant community includes land
which
stretches from the Mkuze River, i.e. from Overwin Farm to Pongola
River and all the farms which are on the Myeni land including
the
land on which the Inkosi of the applicant community lived during the
material period and continues to live. In support of this
description
of the subject land, I annex hereto marked “C” a copy of
the document entitled Meeting of the Myeni Ntsinde
[Tribal] Authority
in connection with the restitution of land.’
[16]
In the review application the appellant also relied on a
transcription of the minutes of the Myeni Ntsinde Tribal
Authority
held on 14 January 1997, in which the land sought to be claimed was
described as stretching from:
‘
Mkuze river i.e. Overwin farm to Pongola River,
and all the farms which are there are on the Myeni’s land . . .
The other land is Makhathini on the Eastern part which
is now used as a development area, that is Myeni land. We therefore
refer
the Commission to the District Code which states everything and
the Old Maps with the boundary beacons, this land also stretches
from
Pongola river Nyawashana where the old wagon road was to Mkuze river
where the Delukufa area is. There is now a great dispute
of land in
this area amongst three Amakhosis ie J.Z. Gumede, M. Qebe and the
Myeni.’
[17]
The difficulty with the description contended for by the appellant is
that it is inconsistent with the description
in the claim forms.
Secondly, the last paragraph of the resolution of the Myeni Ntsinde
Tribal Authority on which appellant relies
records that the claim to
this very broad area of land is disputed. It is recorded that ‘there
is now a great dispute of
land in this area amongst three Amakhosis,
i.e. JZ Gumede, M Qebe and the Myeni.’
[18]
After receipt of the claim forms, the RLCC appointed Khuhlaza
Management Consultants CC to investigate the
claims. The consultants
produced three validation reports dated 3 December 2001. The
validation reports record the historical name
of the area where
people were removed as Nkonkoni Farm (current name Avonstond No 581),
Mooi Plaats (current name Morgenstond No
598) and Overwin (current
name Overwin 163(A) and Overwin 163(B)).
[19]
The RLCC also assigned Ms Xolisa Shembe, the Project Officer of the
RLCC, to investigate the merits of the claims.
She interviewed Inkosi
Myeni and the claimant community and compiled an investigation case
report. Her report states that there
were two different removals from
the three farms, the first being from Farm Overwin No 163 A & B
in the late 30s and the second,
from the farms Morgenstond No 598 A &
B and Avonstond no 581 B. This report is in respect of only the
land claimed in
the claim forms and not the farms listed in the
amended notice of motion.
[20]
As part of the investigation process, a mapping exercise of the areas
from which the community was alleged to have
been removed was
undertaken by officials of the Commission. Members of the claimant
community and an official from the Surveyor-General’s
office
took part in the mapping exercise. A map of the areas pointed out by
the appellant community was produced by the office
of the
Surveyor-General. The map depicts properties extending over a total
area of 72 082 740 hectares stretching between the Mkhuze
River in
the South and the Pongolapoortdam in the North.
[21]
Following the mapping exercise, the Commission discovered that a
large number of the land portions that were pointed
out in relation
to the appellant’s land claim during the mapping exercise had
not been claimed by the appellant. Instead
they were the subject of a
land claim of the Gumbi Community who had also lodged a claim for
restitution with the Commission.
[22]
As a result of the competing claims, the RLCC convened a meeting of
the representatives of the two communities
on 2 March 2005 to discuss
the conflicting claims, more particularly with reference to the farm
Avonstond.
[23]
The recorded minutes of the meeting have, in item 3 thereof, a
heading
‘
Introductory
remarks’, under which the following is recorded:
‘
Walter
pointed out that a claim was lodged by Myeni and Gumbi
-Properties
claimed and restituted are those stated in the claim form only
-Once
a claim is mapped and gazetted there are no additions allowed
-He
then asked the Commissioner to take over.’
[24]
The minutes continued:
‘
Apart from Avonstond, there are properties mapped
by Myeni which are not on the claim form. Ms Shange asked the
committee members
to comment on what she had just pointed out.
Mr Myeni responded by saying that they understand how
restitution works, they are prepared to leave out properties, not on
the claim
form.’
[25]
In relation to this minute, Mr Walter Silaule, the deponent to the
answering affidavit on behalf of the first to
fourth respondents, who
was present at the meeting states that he recalls what Mr Myeni said
and meant. He states that the Myeni
community accepted that the
properties not specifically identified in the claim form, but
identified in the mapping exercise, could
not legitimately be
claimed. The claimant community denies that it relinquished any land
it claimed as alleged by Mr Silaule.
[26]
The RLCC was satisfied that the claim was lodged in the prescribed
manner and that the requirements of s 2 of the
Restitution Act had
been satisfied. The properties listed in the claim form were
published in Government Gazette Notice 1586 of
26 August 2005.
[27]
An applicant who seeks final relief on motion must, in the event of a
dispute of fact arising, recognise that final relief
may be
granted only if the facts averred in the applicant's affidavits which
have been admitted by the respondent, together with
the facts alleged
by the respondent, justify such an order. However, where the
court is of the opinion that the respondent's
denials do not raise a
real, genuine or bona fide dispute of fact or are so far-fetched or
clearly untenable that the court would
be justified in rejecting them
merely on the papers, it may grant final relief
.
[4]
[28]
The version of Mr Silaule is supported by the minutes of the meeting
which show that representatives of the community
were made aware, and
accepted that only the farms identified in the claim forms and not
farms identified in the mapping exercise
would be included in the
Government Gazette. This version is not contradicted by any witness.
The belated allegations by Ms Shembe
in her confirmatory affidavit
put up in reply that she informed Mr Silaule that certain information
in the respondents’ answering
affidavit was incorrect are
inconsistent with the minutes of the relevant meeting and was not
made in the founding papers where
they would have been subjected to
scrutiny in the answering papers.
[29]
The appellant alleges that Mr Silaule omitted to annex the third page
of the minutes of the meeting of 2 March
2005, which allegedly,
indicates that no resolution was taken. From the context of the
minutes it appears that after dealing with
the matter of the
properties omitted from the claim, the discussion reverted to the
purpose of the meeting, namely, the conflicting
claims between the
Gumbi and the Myeni communities concerning the Farm Avonstond. It is
to this farm that Mr Myeni suggested a
field visit so that both
communities could point out beacons to resolve the conflict.
[30]
It follows that the allegations raised by the respondents have not,
on genuine and bona fide grounds, been disputed
and must thus carry
the day.
[31]
The appellant claims that it became aware of the publication of its
claim in the Government Gazette by chance only
on 8 September 2016
when its attorney overheard a conversation about the transfer of the
Farm Gumbi 2. This assertion is not credible
because its attorney was
already at that time acting for the community and was well-versed
with the facts of the claim at that
time.
[32]
In any event, the appellant would have become aware of the gazetting
of the properties when its other claim concerning
the Overwin No 163
was negotiated and finalised on 24 January 2007. The appellant was
made to understand that the part-settlement
of their claim was phase
1 and that phase 2 dealing with the remaining two properties
mentioned in the claim form, Avonstond and
Morgenstond, would be
dealt with later as the owner had objected to the claim.
[33]
In
Makhuva-Mathebula Community v Regional Land
Claims Commissioner, Limpopo and Another
[5]
a review of the RLCC’s decision was brought on the basis that
the RLCC did not include the more extensive land described
in the map
attached to the claim form but published the claim on the basis of
information contained in paragraph 1.1 of the claim
form. The issue
was determined by reference to whether the RLCC had failed to apply
his mind when refusing to add these farms to
the claim. This Court
concluded that in publishing the claim on the face value
understanding that the properties claimed were those
listed in
paragraph 1.1 of the claim form, the RLCC applied his mind in
accordance with the Restitution Act and acted rationally
in so doing.
[34]
In Minaar NO v Regional Land Claims
Commissioner for Mpumalanga and Others
,
[6]
the decision of the RLCC to publish a notice in the Gazette in
respect of all subdivisions of Daisy Kopje farm and not confine
the
publication to Portion D only was set aside on review. The LCC held
that as no claim as required by s 2(1)(e) was lodged in
respect of
the other portions, the RLCC had no power to include unclaimed
portions of Daisy Kopje as part of the claimed land.
[35]
In the present case, the RLCC relied on the accurate property
descriptions in paragraph 1.1 of the claim forms,
which is a primary
source of information which is required to gazette a claim. Inkosi
Myeni well knew the area of land his community
occupied when they
were dispossessed. He did not mention the additional 28 disputed
properties listed in the amended notice of
motion when he completed
the claim form.
[36]
The RLCC applied her mind to the precise location and extent of the
land identified in the claim form as appears
from the various
validation reports and the case reports which are a result of
investigations regarding the history of the communities'
residence
and forced removal from the land. The appellant was afforded a
procedurally fair opportunity to respond before the publication
of
the notice as appears from the minutes of the meeting of 2 March
2005. The RLCC acted as a reasonable decision-maker.
[7]
[37]
That being so, the appellant has failed to establish a legally
cognisable ground of review upon which the decision
under challenge
could have been set aside. It follows that the LCC correctly
dismissed the community’s application, and therefore,
this
appeal cannot succeed.
Order
[38]
In the result the following order is made:
The
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
________________________
K
MATOJANE
ACTING
JUDGE OF APPEAL
Appearances
For
appellant:
M Naidoo SC
Instructed
by:
Maseko Mbatha Inc., Durban
Phatshoane
Henney Attorney, Bloemfontein
For
respondents:
A Dodson SC (with him P Naidu)
Instructed
by:
State Attorney, Durban
State
Attorney, Bloemfontein
[1]
Gamevest (Pty) Ltd v Regional Land Claims
Commissioner for Northern Province and Mpumalanga and Others
[2002] ZASCA 117
;
2003 (1) SA 373
(SCA) paras 3 and 4.
[2]
Section 6(1)(cA)
and (cB) of the
Restitution of Land Rights Act as
amended.
[3]
Promulgated in Government Gazette 16407 of 12 May 1995.
[4]
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 62
3 (A) at 634E -635C.
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA) at paragraph 13
[5]
Makhuva-Mathebula Community v Regional Land
Claims Commissioner, Limpopo and Another
[2019] ZASCA 157.
[6]
Minaar NO v Regional Land Claims Commissioner
for Mpumalanga and Others
[2006] ZALCC 12.
[7]
Batho Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC
15
;
2004 (4) SA 490
(CC) para 44.