About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 53
|
|
W M J Wellen-Griqua Paramount Chief/King and Others v Government of the Republic of South Africa and Others (2998/2018) [2022] ZANCHC 53 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 2998/2018
Date
heard: 26-08-2022
Date
delivered: 16-09-2022
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
W
M J Wellen – Griqua Paramount
Chief/King 1
st
Applicant
Bucklands
Community Development
2
nd
Applicant
Trust
No IT 94/97
Qouanoep
black Empowerment and
3
rd
Applicant
Traditional
community development Trust IT 153/2007
And
The
Government of the Republic of South Africa
1
st
Respondent
Minister
of Rural Development and
2
nd
Respondent
Land
Reform
Chief
Land Claims Commissioner:
3
rd
Respondent
National
Office of the Commission on the Restitution
Of
Land Rights
Regional
Land Claims Commissioner:
4
th
Respondent
Provincial
Office Head of the Commission on the
5
th
Respondent
Restitution
of Land Rights
National
Minister of Rural Development
And
Land Reform
6
th
Respondent
National
Director of Rural Development
7
th
Respondent
And
Land Reform
Provincial
Director of Rural Development
8
th
Respondent
And
Land Reform
National
Minister of Water & Sanitation
9
th
Respondent
National
Director of Water & Sanitation
10
th
Respondent
Provincial
Director of Water & Sanitation
11
th
Respondent
National
Minister of Minerals & Energy
12 Respondent
National
Director Minerals & Energy
13
th
Respondent
Provincial
Director of Minerals & Energy
14
th
Respondent
Provincial
Director:Deed Office
15
th
Respondent
Bucklands
Community Property Association 16
th
Responent
British
Consulate on behalf of the British Government
17
th
Respondent
Legal
Aid South
Africa 18
th
Respondent
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This application is in terms of a
directive issued by the judicial case management judge, Erasmus AJ as
12 April 2022 and which
reads,
inter
alia,
as follows;
“
1.
In terms of Rule 33 (4) of the Uniform Rules of court, it is directed
that prayers 39, 40 and 41 of the
application under case number
2998/2018, pertaining to the legal representation of the applicants
in the Land Claims Court of South
Africa, be adjudicated separately
from the other relief sought.”
2.
The relief sought in the above mentioned
prayers, as translated into English by Ms Sieberhagen for the
respondents, and which in
my view is an accurate translation reads as
follows:
“
39.
Applicant requests that the First to Eight Respondents be ordered by
the High Court to provide legal aid to the
Applicants in terms of the
provisions of section 29(4) of the Restitution of Land Act as
amended, in order to finalise the Land
Claim W215 and W220, which has
been outstanding since 1 April 1997.
40.
Applicant requests that the First to Eighth Respondents be ordered by
the High Court to provide legal aid
to the Applicants in terms of the
provisions of section 29(4) of the Restitution of Land Act as amended
in order to finalise Land
claim W215 and W220, which has been
outstanding since 1 April 1997 and that the Applicants’ legal
team with whom they have
consulted on nine occasions since August
2018 to August 2019 be authorised by the High Court to provide legal
assistance to Applicants
for a fair representation in the Land Claims
Court, Randburg, Johannesburg and/or the High Court, Northern Cape
Division, Kimberley
and/or in the International Court in The Hague.
41.
Legal aid must be provided to the First to Third Applicants, so that
the Third Applicant may make sure that
the 17
th
Respondent’s human rights abuse during 1876 to 1879 will be
called to account for restitution, please My Lady/My Lord High
Court.”
3.
Mr W M J Wellen, the 1
st
applicant, appeared in person and represented the 2
nd
and 3
rd
applicants as well i.e. the Buckland Community Development Trust and
the Qouanoep Black Empowerment and Traditional Community Development
Trust respectively. These trusts were established in the
interests of the communities of which Mr Wellen is the Griqua
paramount
chief/king to acquire the rights in the land.
4.
A brief background to this application,
as I understand it is necessary.
4.1
During 1997 the applicants submitted a land restitution claim to the
Commission in Restitution on Land Rights
relating to 21 farms.
4.2
Subsequently 9 farms were for transferred to the community in terms
of a settlement reached in the Land Claims
Court under case number
LCC 48/2006 during 2008.
4.3
The restitution of the remaining 12 farms, currently in private
ownership, is in dispute and must be determined
by the Land Claims
Court.
4.4
Already in 2005 and after the 9 farms mentioned in 4.2 above had been
authorised for transfer, the applicants’
legal team appointed
by the Legal Aid Board at the behest of the 3
rd
Respondent, the Chief Land Claims Commissioner, withdrew from the
matter in the hopes apparently that the issue of the remaining
12
farms could be settled out of court.
4.5
Since then the applicants have been without formal legal
representation, the attitude of the 3
rd
respondent having
been that the land claim could be settled through negotiation.
To date nothing has come of it.
4.6
Mr Wellen informs that it is only after this application was launched
that the State Attorney, on behalf of
the respondents registered the
land claim relating to the remaining farms in the Land Claims Court
under case number LCC 86/2020.
5.
The applicants’ papers abound with
expressions of frustration at the delay in the finalisation of their
land restitution claims.
Hence, according to Mr Wellen, their
approach to this court on the basis of it having the jurisdiction to
determine not only the
applicants right to restitution of the land
but also, what is pertinent
in casu
,
their right to legal representation in pursuit of their claims.
This court’s jurisdiction is founded, so the argument
goes, in
the fact that the farms in question are situated within the Northern
Cape, which is also where the unlawful dispossession
took place,
therefore on the same basis as this Court would severally have
jurisdiction in civil proceedings.
6.
The Land Claims Court’s
jurisdiction to determine the right to restitution of land and issues
incidental thereto however ousts
the High Court’s civil
jurisdiction and this is obvious from s22 of the Act, the relevant
portions which read as follows:
“
22.
Land Claims Court.
- (1) There shall be a court
of law to be known as the Land Claims Court which shall have the
power, to the exclusion of any court
contemplated in section 166 (c),
(d) or (e) of the Constitution-
(a)
to determine a right to restitution of any right in land in
accordance with this Act;
(b)
(c)
(cA)
(cB)
(cC)
(cD)
(cE)
(d)
(2)
Subject to Chapter 8 of the Constitution, the Court shall have
jurisdiction throughout the Republic
and shall have –
(a)
all such powers in relation to matter falling within its jurisdiction
as are possessed by a High Court having jurisdiction
in civil
proceedings at the place where the land in question is situated,
including the powers of a High Court in relation to any
contempt of
the Court;
(b)
(c)
the power to decide any issue either in terms of this Act or in terms
of any other law, which is not ordinarily
within its jurisdiction but
is incidental to an issue within its jurisdiction, if the Court
considers it to be in the interest
of justice to do so.”
7.
Chapter 8 of the Constitution
relates to Courts and Administration of Justice and s166 (c) thereof,
referred to in s 22(1) of the
Act above refers to “
the
High Court of South Africa, and any High Court of Appeal that may be
established by an Act of Parliament to hear appeals from
any court of
a status similar to the High Court of South Africa.”
8.
In my view it
is clear from the above that the Land Claims Court has exclusive
jurisdiction in matters pertaining to the restitution
of rights in
land and certain instances those issues incidental thereto.
9.
Furthermore s
29(4) of the Act, which provisions the applicants are well aware of
as is evident from prayers 39 and 40 of the Notice
of Motion, states
the following in relation to legal representation in the Land Claims
Court:
“
29.
(4)Where a party can not afford to pay for legal representation
itself, the Chief Land Claims Commissioner may take
steps to arrange
legal representation for such party, either through the State legal
aid system or, if necessary, at the expense
of the Commission.”
10.
In the event
the applicants are not satisfied with the decision by the 3
rd
respondent relating to legal representation as provided for under
s29(4), the Act provides under s36 for the review of such a
decision. S36 reads as follows:
“
36
Review of decisions of Commission
. – (1)
Any party aggrieved by any act or decision of the Minister,
Commission or any functionary acting or purportedly acting
in terms
of this Act may apply to have such act or decision reviewed by the
Court.”
11.
Under s1 of
the Act the definition of “
Court”
is held to mean “
the
Land Claims Court”.
Any application to review the decision/s of any of the Land Claims
Commission officials should therefore be brought before
the Land
Claims Court.
12.
Mr. Wellen
argued that not all the relief sought in the application relate to
the restitution of land rights and that legal representation
is
required for issues that fall within the jurisdiction of this Court.
13.
I am aware of
the fact that Mr. Wellen had unsuccessfully applied to Legal Aid
South Africa for legal representation in this application
in the High
Court and that an appeal of that decision has also been
unsuccessful. The directive issued by Erasmus AJ and
which
follows upon a judicial case management meeting with the parties
provides only for the determination of the issue of legal
representation in the Land Claims Court. I am confirmed in this
application before me to that directive.
14.
That being said, the relief sought by the applicants in prayers 39,
40 and 41 of the application
cannot be granted due to this court
lacking the jurisdiction to deal therewith.
15.
As far as the costs are concerned, Ms Sieberhagen has argued that
costs should follow the
result.
16.
It has however transpired during the course of this argument that Mr
Wellen appears to have
laboured under the impression (1)that the High
Court has territorial jurisdiction to fear the matter and (2) that
the High Court
has the power and jurisdiction to regulate the
processes of the Lands Claims Court and its officials. I do not
get the impression
that there was any
mala fides
on the
part of the applicants in bringing the application for the specific
relief
in casu
in this Court, but merely that the applicants
specifically, Mr Wellen as a layperson, was misguided in this
respect. I am
not of the view, in the circumstances of this
matter, which is of great importance and affects vulnerable and
previously disadvantaged
communities, think that the applicants
should be made to bear the costs of this application.
In
the result the following order is made.
a)
The applicants’ application is respect of the relief claimed in
terms of
prayers 39, 40 and 41 is dismissed.
b)
There is no order as to costs.
c)
The application is referred back to the Judicial Case Management
Judge for further
directions relating to the remainder of the relief
sought by the applicants in the application.
d)
Paragraph 2 of the Court order dated 29 October 2021 remains in
force.
C
C Williams
For
Applicants: Mr
W J M Wellen
(In person)
Respondents:
Adv
A S Sieberhagen
Office
of the State Attorney