About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 40
|
|
Ramokoka and Others v Maphalane ba Mantserre Community Development Trust and Others (2844/2017) [2018] ZALMPPHC 40 (31 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION: POLOKWANE
CASE
NO:2844/2017
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
31/7/2018
IN
THE MATTER BETWEEN:
KGOSI
J.E.M
RAMOKOKA FIRST
APPLICANT
BAPHALANE
BA
RAMOKOKA SECOND
APPLICANT
TRADITIONAL
COMMUNITY
And
BAPHALANE
BA
MANTSERRE FIRST
RESPONDENT
COMMUNITY
DEVELOMENT
TRUST
IT2178/02
RAMOKOKA
SALTIEL DIGWAMAJE NO SECOND
RESPONDENT
MARAKALLA
PAULUS
NO THIRD
RESPONDENT
LEMI
CORNELIUS MONENE
NO FOURTH
RESPONDENT
NTHOBE
MPETE DELINA
NO FIFTH
RESPONDENT
DITLEBE
MONEGI PETRUS
NO SIXTH
RESPONDENT
SELLO
SHADRACK RAMOKOKA NO SEVENTH
RESPONDENT
GLADYS
RANGWETSI
NO EIGHTH
RESPONDENT
MPOYANA
LAZARUS LEDWABA NO NINETH
RESPONDENT
THE
REGISTRAR OF
DEEDS TENTH
RESPONDENT
THE
MASTER OF THE HIGH COURT: PRETORIA ELEVENTH
RESPONDENT
JUDGMENT
MULLER
J:
[1]
The applicants are Kgosi Ramakoko and the Baphalane Ba Ramokoko
traditional community.
[1]
The
respondents are the Baphalane Ba Mantserre Community Development
Trust
[2]
together with the
trustees of the said trust.
[3]
The trust was registered on 30 October 2002. The registrar of deeds
and the master of the high court Pretoria are also cited as
respondents.
[2]
The applicants are neither beneficiaries under the trust nor is the
first applicant a trustee of the trust.
[3]
The applicants seek declaratory orders:
(3.1) that the provisions
of the trust deed of the Baphalane Ba Mantserre Community Development
Trust which limits the beneficiaries
to the Baphalane Ba Mantserre
community contravenes the settlement agreement which was entered into
on
4
June 2003
and
which was made an order of the land claims court
[4]
.
(3.2) that the second
respondent, as founder of the trust, contravened the said order by
failing to include the other heirs and/or
descendants of the
originally dispossessed members of the Baphalane Ba Ramakoka
community to the trust deed.
(3.3) And in addition
ancillary orders to rectify the trust deed to
inter
alia
include the whole of the Baphalane Ba Ramokoko traditional community
as beneficiaries be granted.
[5]
[4]
At present, the trust deed defines the beneficiaries as:
“
the Baphalane Ba
Mantserre community who are depicted in Appendix 2 (list of
Beneficiaries attached hereto) who shall benefit from
the income of
the Trust by virtue of the discretionary powers vested in the
Trustees in regard to the allocation and distribution
of Trust
income. The words “Beneficiary and “Community”
shall be used interchangeably and shall mean one and
the same thing.”
Appendix
2 contains the names of the beneficiaries consisting of the members
of the Baphalane Ba Mantserre community.
[6]
[5]
The respondents raised a preliminary point that this court has no
jurisdiction to adjudicate this application on the basis that
the
claimed falls within the exclusive jurisdiction of the land claims
court.
[6]
A brief background of the respective facts and the view points of the
litigants will be useful to understand the basis of the
relief
sought.
[7]
It is common cause that the land in question is situated within the
Limpopo province.
[7]
It is
contended by the applicants that the Baphalane Ba Ramokoko community
consists of nine villages which are scattered over a
large area
consisting of various local municipalities and other provinces. The
head village is called Ramokokostad. One of the
villages which
consist of the Baphalane community is the Mantserre village. This
village is in the centre of the dispute. The second
respondent is the
headman of the Mantserre village. In 1917, kgosi Mokgatle Saltiel
Ramokoko purchased the land on behalf of the
Baphalane tribe.
[8]
The land was dispossessed under apartheid rule.
[9]
The land was subsequently subdivided into two portions namely,
“portion 1” and the “remaining extent.”
[8]
The Baphalane community instituted a land claim in respect of both
portions. The land claim was successful. A written settlement
agreement was entered into between the owners, the claimants and the
state to facilitate the transfer of the land as a whole to
the
claimants. The second respondent signed the settlement agreement on
behalf of the Baphalane Ba Ramokoko community. The settlement
agreement was made an order of court.
[9]
I will deal with the contents of the settlement agreement and the
order of court later in this judgment.
[10]
The contentions of the first and second respondents are the
following. The second respondent, who deposed to the answering
affidavit, states that he is the traditional leader (kgosana or sub
chief) of the Baphalane Ba Mantserre which is a traditional
community
situated at Mantserre village. He, as the founder, established the
Baphalane Ba Mantserre Community Development Trust
for the Mantserre
community in 2001. The Baphalane community consists of 8 villages,
but according to him, does not include Ramokokstad
village (which the
first applicant claims to be its head). The second respondent states
that the land in question was purchased
by the Baphalane Ba Mantserre
community in 1917.
[11]
I need not to resolve the dispute of who purchased the land in 1917
or who was dispossessed of the land at this juncture. It
seems clear
that the second respondent does not acknowledge the first applicant
as the senior traditional leader of either the
Baphalane Ba Ramokoko
community or the Baphalane Ba Mantserre community. This is an
underlying dispute which forms the focus of
the dispute whether the
Baphalane Ba Mantserre community is included in the Baphalane Ba
Ramokoko community and, also, whether
the members of the Baphalane Ba
Mantserre community are the sole beneficiaries of the Baphalane Ba
Mantserre Community Development
Trust to the exclusion of the other
members of the Baphalane Ba community.
[12]
Jurisdiction must be determined on the pleadings. The applicants
assert that this court has jurisdiction in the present proceedings
based on the
forum
rei
sitae
principle, as the land is situated in the Limpopo Province. Reliance
on that principle to establish the jurisdiction of this court
in the
present context cannot be not decisive. The Restitution of Land
Rights Act
[10]
was promulgated
as a result of section 25(7) of the Constitution.
[11]
It was held in
Florence
v Government of the Republic of South Africa
[12]
that:
“
The ‘restitution
of a right in land’ as defined is the full redress cognisable
by the Restitution Act for the dispossession
of a right in land.
Where a statute creates a new cause of action and prescribes a
specific remedy for that cause of action, the
prescribed remedy is
the only remedy available for that cause of action. Therefore, a
claimant who has been awarded restitution
of a right in land, be it
in the form of the restoration of a right in land or equitable
redress, has been awarded full redress
for the dispossession of a
right in land and is not entitled to any other relief in
addition.”
[13]
[13]
Section 2(1)(a) of the Act reads:
“
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.”
[14]
A settlement agreement was concluded as a result of the successful
land restitution claim by the Baphalane community for the
restoration
of a right in the land in question. In this respect it is important
to take cognisance of the following definitions
contained in section
1 of the Act.
“’
restoration
of a right in land’
means the return of a right in land or
a portion of land dispossessed after 19 June 1913 as a result of past
racially discriminatory
laws or practices;”
And
also:
“’
right in
land’
means any right in land whether registered or
unregistered, and may include the interest of a labour tenant and
sharecropper, a
customary law interest, the interest of a beneficiary
under a trust arrangement and beneficial occupation for a continuous
period
of not less than 10 years prior to the dispossession in
question;”
[15]
The settlement agreement states the following in clause 2:
“
2.1 The State
shall acquire Portion 1, as it stands, from BHP Billiton Properties
(Pty) Limited on behalf of its nominee, being
the Baphaplane Ba
Mantserre Community Development Trust (“The Trust”),
being a Trust duly established in terms of the
provisions of the
Trust Property Control Act, 57 of 1988 and so established by the
Baphalane Community and consisting of the members
of the said
community as more fully illustrated in annexure “A”
attached to the Trust Deed.
2.2 The State shall
acquire the said Portion 1 as aforesaid to be resituated and restored
to the Trust. The claimants confirm that
the trust is established to
receive all the benefits pursuant to this land claim on its behalf.”
[16]
The land claims commissioner of Limpopo referred the successful claim
to the land claims court in terms of section 14(1)(b)
of the Act.
[14]
Section 14(6) provides that the land claims court, if satisfied,
after taking into account the settlement and various other factors
and subject to the provisions of Chapter IIIA of the Act, shall make
an order in terms of section 35 of the Act.
[17]
The land claims court is constituted in terms of the Act with the
power to grant the remedy provided for in section 2(1) of
the
Act.
[15]
The land claims court issued an order in terms of section 35(a) of
the Act. The referral to the court to make the settlement agreement
an order of court and the power of the land claims court to make such
an order, thus had a statutory basis which is conferred on
the lands
claim court by section 22(1), read with sections 2(1), 14(1)(b) and
14(6) of the Act. There can be no doubt that the
land claims court
had exclusive jurisdiction to entertain the claim.
[18]
Clauses 1, 3 and 4 of the consent order are relevant:
Clause
1 states:
“
THE BAPHALANE BA
MANTSERRE COMMUNITY DEVELOPMENT TRUST, established in terms of the
Trust Property Control Act 57 of 1988 and registered
with the master
of the High Court Transvaal Provincial Division on the 30
th
of October 2002 (hereinafter referred to as “THE CLAIMANTS”)
as indicated in annexure “A” attached to the
Trust Deed
is declared entitled to the restitution of and to be restored to
ownership and possession of the following properties”
Clause
3 reads:
“
The said
restitution and restoration of Portion 1 be subject to the terms and
conditions of the Deed of Transfer of the land as
well as the terms
and conditions of the Settlement Agreement attached hereto as “BC1.”
Clause
4 states:
“
The restitution
and restoration of ownership and possession of The Remaining Extent
be subject to the terms and conditions contained
in the Deed of
Transfer of the land as well as the terms and conditions of the
Notarial Deed annexed hereto as annexure “BC
2.”
[19]
The settlement agreement foreshadowed the acquisition of the land by
the state and the subsequent transfer of the land to the
Baphalane Ba
Mantserre Community Development Trust, as its nominee as a result of
the claim. The consent order declared the restoration
of the right of
ownership in the land in question to the trust.
[20]
The consent order, furthermore, expressly includes the terms of the
settlement agreement which named the beneficiaries of the
trust in
annexure “A” attached to the trust deed. The
causa
for the definition of “Beneficiaries” in the trust deed
(or the “Claimants” as they are referred to in
the order)
is to be found in the settlement agreement. The settlement agreement,
therefore, is inextricably part of, and formed
the very basis of the
consent order, which, in my judgment, can only be rectified together
with or after rectification of the settlement
agreement to include
the other members of the Baphalane community as beneficiaries under
the trust. For a court to be able to rectify
the settlement agreement
or the trust deed to include the applicants it must first determine
whether the applicants have a right
to restoration of a right in
respect of the land. Put differently; to grant the declaratory orders
in particular, the court must
first determine whether the Baphalane
Ba Ramokoko community, other than the beneficiaries of Baphalane Ba
Mantserre community named
in the trust deed, has a right in the land
in question. The present application, if successful, will determine a
right to restitution
of a right in land in question in respect of a
wider group of beneficiaries than those mentioned in annexure A to
the trust deed.
It is a matter in terms of which the land claims
court has exclusive jurisdiction by virtue of sections 22(1)(a) or
22(1)(CA) of
the Act, which state:
“
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 restoration of any right in land in accordance with this Act; ….
(CA) at the instance of
any interested person and in its discretion, to grant a declaratory
order on a question of law relating
to section 25(7) of the
Constitution or to this Act or to any other law or matter in respect
of which the Court has jurisdiction,
notwithstanding that such a
person might not be able to claim any relief consequential upon
granting such order.”
[21]
I pause here to add that the settlement agreement contains an
indemnification clause in terms whereof the claimants indemnify
the
parties to the settlement agreement against any loss, liability,
damage or expense which may be suffered by any of them pursuant
to
any claim made in respect of the land in question by any person who
is able to prove to be an heir and/or direct descendent
of the
members of the Baphalane community as defined in the Act and further
defined by the lists of claimants attached to the trust
deed. It was
further recorded that the trust deed includes a provision for the
unqualified inclusion of any person who proves to
be an heir and/or
direct descendent of the originally dispossessed members of the
Baphalane community.
[16]
If
the land was acquired in 1917 on behalf of the Baphalane community as
a whole, the rights of the larger Baphalane community
consisting of
persons with a real and substantive interest in the claim have to be
determined before the definition of “Beneficiaries”
in
the trust deed may be rectified. Any subsequent claim to a right in
the land in question by an heir or direct descendent of
a member the
community originally dispossessed is a claim for the restoration of a
right in land which is cognisable under the
Act.
[22]
It must also be recalled that the land claims court issued a
declaratory order declaring the beneficiaries as indicated in
annexure A to the trust deed to be entitled to restoration of the
land in question.
[17]
[23]
An order to comply with the undertaking in the settlement agreement
which is included in the consent order that a provision
be included
in the trust deed to provide for the unqualified inclusion of persons
other than the beneficiaries who are able to
prove that they are
heirs and or direct descendants of the originally dispossessed
members of the Baphalane community does not
relate to the claim in
respect of a right to restoration of land which had been successfully
finalised in terms of the consent
order, but is a claim by persons
with an interest in the right to the land. The right to claim the
inclusion of the provisions
in the trust deed flows from the
undertaking in the settlement agreement and is not a right to
restoration of a right in the land
as envisaged by the Act. Such a
claim pre-supposes that such applicants have a right to restoration
of a right in land as heirs
or descendants of members of the
Baphalane Ba Mantserre community as defined in the settlement
agreement and in the consent order.
[24]
If a proper case is made for the restoration of a right in the land
by the Baphalane Ba Ramokoko community and it is proved
that the land
has been restored to that community as a whole and not only to the
named members of the Baphalane Ba Mantserre community,
the rights of
those members of the Baphalane Ba Ramokoka community that are
excluded from the restoration order, may well be restored.
Such a
finding may have an effect on the meaning of the court order and
trust deed. It is the land claims court that must determine
the
rights of the applicants, and not this court.
[25]
This court cannot enter upon the domain of the land claims court to
determine a right to restoration of a right in land by
issuing
declaratory orders that the applicants seek or to rectify the trust
deed, the essence of which is to restore a right in
land to the
applicants which right will ultimately affect the interests of the
beneficiaries named in annexure A (the claimants
referred to in the
consent order) under the trust arrangement.
[26]
A court is
functus
officio
after pronouncement of a definitive order and cannot supplement,
amend or correct the order unless it contains an error, ambiguity
or
omission.
[18]
Both the Act and
the common law make provision for a mechanism whereby any person
affected by an order of the court may apply to
rescind or vary the
consent order.
[19]
I venture
no opinion whether the applicants are entitled to the declaratory
orders or rectification of the settlement agreement,
the consent
order or the trust deed.
[27]
In my considered view, the land claims court has exclusive
jurisdiction to grant the relief that the applicants seek. The
preliminary point taken by the respondents is therefore upheld. In
the result, the application falls to be dismissed with costs
in this
court.
Order
The
application is dismissed with costs.
_________________________
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO DIVISION: POLOKWANE
APPEARANCES
1.
For the applicants
: Adv M.S Mphahlele SC
2.
For the respondents
: Adv T.J Bruinders SC
3.
Date of hearing
:28 June 2018
4.
Date of judgment
:31 July 2018
[1]
Also
referred to in this judgment as the Baphalane community.
[2]
Hereinafter
“the trust.”
[3]
Not
all of the trustees oppose the application. The nineth trustee ML
Ledwaba did not oppose the application.
[4]
Dated 7 June 2003.
[5]
Counsel
appearing for the applicants did not rely on s 13 of the Trust
Property Control Act 57 of 1988 as a basis for the amendment
of the
trust deed.
[6]
Appendix
2 and annexure A to the trust deed are identical.
[7]
The
land means portion 1 of the farm Schilpadsnest 385 measuring 428 KQ,
2660 hectares, held by title deed T83406/1998 and the
remaining
extent of the farm Schilpadsnest 385 KQ, measuring 1456,1044
hectares held by title deed T9913/1963
[8]
The
mineral rights were reserved in favour of the Transvaal Lands
Company Ltd.
[9]
The
land according to the title deed was transferred to the republic of
South Africa on 26 April 1963.
[10]
Act
22 of 1994 (Hereinafter referred to as ‘the Act’).
[11]
s
25(7) of the Constitution reads: “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.” See
Mphela
and Others v Haakdoornbult Boerdery CC and Others
[2008] ZACC 5
;
2008
(4) SA 488
(CC)
para
24.
[12]
2014
SA 456
(CC). Also
Macassar
Land Claims Committee v Maccsand CC and Others
2017 (4) SA 1
(SCA) para 8.
[13]
Para
170.
[14]
s
14(1)(b) states: “If upon completion of an investigation by
the Commission in respect of a specific claim –
(b) the regional land
claims commissioner certifies that it is not feasible to resolve any
dispute arising from such a claim by
mediation and negotiation the
regional land claims commissioner having jurisdiction shall certify
accordingly and refer the matter
to court.”
[15]
s 22.
[16]
Clause
4.
[17]
Clause
1 of the consent order.
[18]
Ex
Parte Willis and Willis
1947
(4) SA 740
(CPD) 742.
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(AD) 306F-307H.
[19]
s
35(10) – 35(12).Also
Childerley
Estate Stores v Standard Bank of SA Ltd
1924 OPD 163
at 168-169.
Gollach
& Gomperts (1967) Pty Ltd v Universal Mills & Produce Co
(Pty) Ltd and Others
1978
(1) SA 914
(AD) 922H-923B.