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[2017] ZAGPPHC 82
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Chairman of Hlaneki Tribal Authority v Shimange and Others (2013/73273) [2017] ZAGPPHC 82 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2013/73273
3/3/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
CHAIRMAN OF
HLANEKI TRIBAL
AUTHORITY
Applicant
and
MAKHONYA
RONALD JUL
SHIMANGE
First
Respondent
PERSONS
UNLAWFUL ERECTING
BUILOING(S)
Second
Respondent
AT
SHILAWA HLANEKI BLOCK B
THE
REGIONAL LAND CLAIMS
COMMISSIONER.
Third
Respondent
LIMPOPO
JUDGMENT
MILAMBO
JP
[1]
The applicant is the Hosi (Chief) of the Hlaneki traditional
community and he launched this application in his capacity as the
Chairperson
of the Hlaneki Traditional Authority. The tem, 'Hosi' is
titular and is used with reference to a Chief in the Tsonga
Community.
It is appropriate that I use the term Hosi in this
Judgment as an institution that has a place in our Constitutional
framework.
The application was commenced by Hosi Chabane Jackson
Hlaneki, who passed away on 20 November 2015. He was succeeded
by Hosi Mkhacani Adeyemi Maluleke Hlaneki as Hosi and Chairperson
of
the Hlaneki Tribal Authority with effect from 13 April 2016. The late
Hosi was properly substituted in these proceedings in
terms of Rule
15(2) and (3) by notice.
[2]
The first respondent (Shimange) is an individual resident in Shilawa
Village,
[1]
the area where the
construction works that gave rise to this application took place. He
was identified by the applicant's lndunas
(Headmen) as primarily
behind the said construction works. Shimange opposes the application
and aligns himself totally with the
merits of the defences and
arguments advanced by the third respondent who applied and was
granted leave to join the proceedings
as a respondent. The second
respondent as cited refers to the construction workers observed on
site but they have never been positively
identified in the papers and
hence no opposing papers have been filed by them or on their behalf.
[3] The third
respondent is Mr Lebjane Harry Maphuta and is the Regional Land
Claims Commissioner, Limpopo (the Regional Commissioner),
who joined
this litigation on 28 November 2013 when this Court granted him leave
to intervene as the third respondent. The Regional
Commissioner is a
creature of statute in that he was appointed in terms of section
4(3)
[2]
of the Restitution of
Land Rights Act 22 of 1994 (the Restitution Ad). His predecessor, who
launched the intervention application,
was the Acting Regional Land
Claims. Commissioner, Limpopo, Mr Sanjay Singh (Singh). The Acting
Regional Commissioner is similarly
a creature of statute having been
appointed in terms of section 7(3A)
[3]
of the Restitution Act. Singh stated in his affidavit that it was the
office of the Regional Commissioner that was primarily responsible
for the construction works, stating that a clinic and community
centre were the objective of the construction being the
implementation
of a land claim settlement on behalf of Shimange and
the Shimange tribal community.
[4] As I mentioned
earlier these construction works were the source of this litigation
and were commenced in Shilawa Village on
23 December 2010. This
village is situated in an area property described as Hlaneki Block B
in Giyani, Limpopo. The village is
within the area of jurisdiction
and under the control of the Hlaneki Traditional authority ie the
Tribal Authority cha
i
red
by the applicant. Within days of the commencement of the construction
wor1cs the applicant launched an application on 29 December
2010 on
an urgent basis with the objective of securing an order declaring
those construction works to be unlawful and interdicting
the then
respondents from continuing with the said construction works as well
as an order that the respondents be ordered to demolish
any
structures already erected.
[6]
The matter was heard by this Court on 4 January 2011 and an interim
interdict was granted, inter alia, prohibiting the named
respondents
from continuing with the erection of structures and/or buildings at
Shilawa Village. The respondents were also ordered
to follow the
customary law system asserted by the applicant and to obtain approval
in terms thereof to build in the area. The
Court ordered that the
interim interdict operate as a rule
nisi
returnable
on 8 February 2011 and was thereafter extended several times.
[4]
On 28 November 2013 when the rule
nisi
was
further extended, the Court granted the Regional Commissioner leave
to intervene as a respondent On 11 February 2015 the court
extended
the
rule
nisi
until
the matter was heard in this Court's opposed motion roll. It was
eventually heard by this Court on 7 September 2016 when this
Judgment
was reserved.
[7]
Subsequent to the Regional Commissioner being granted leave to join
the litigation as third respondent, the applicant was also
granted
leave to file an amended notice of motion and supplementary
affidavit. It did so and whist persisting with the initial
relief he
sought, he further sought alternative relief to the effect that in
the event that the Regional Commissioner produced
documentary
evidence that the clinic and community centre development is
prima
facie
lawful, this Court should extend the
rule nisi
granted
on 4 January 2011, pending the outcome of a review application to be
launched by him in the Land Claims Court, within one
month after the
date of this order, failing which the interim order would lapse. The
applicant also, in the supplementary founding
and replying
affidavits, responded extensively to the case made out by the
Regional Commissioner, more particularly to the Regional
Commissioner's assertions that the clinic and community centre
development was valid and was property sanctioned through the
relevant
provisions of the Restitution Act.
[8] The primary
basis advanced by the applicant when launching the application is
that the construction works were taking place
in an area within his
area of jurisdiction and control and was undertaken without notice or
consultation with him and without his
permission. The applicant
asserts that all developments such as the one at issue in this matter
have to be initiated in line with
the customary law of his
traditional community and initiated through his office and be
properly approved.
[9]
His case is that for a very long time dating back to the 19th
century, the Hlaneki traditional community has resided in that
area
and applied customary law and procedures regarding the administration
and allocation of land under its control. In brief these
customary
law rules entail that anyone seeking land for residential or business
purposes must apply to the lnduna (Headman of the
area) who then
recommends the application to the Hosi. The Hosi, should he approve
the application, then submits the application
to the local authority
who must submit the application to the provincial government who can
either approve or decline the application.
There is a fee of R120 for
residential land applications and R1000 for business land
applications which are payable to the Tribal
Authority. There are
instances where the fee is reduced where the applicant is poor. In
short in terms of this customary law anyone
requiring land for any
purpose must apply to the Hosi, via their lnduna, for the grant of
the required piece of land. This land
allocation and administration
customary law has been in place since the 19th century and, according
to the applicant is practiced
by most if not all the tribal
communities in Limpopo.
[10] The right
asserted by the applicant is to protect the land under his
jurisdiction and control from illegal appropriation but
more
importantly to safeguard the right to administer such land in
accordance with his Tribal community's customary law rules.
It is on
this basis that he argues that the development of the clinic and
community centre allegedly sanctioned by the Regional
Commissioner is
unlawful as this was done without consultation with him and without
compliance with the customary law rules and
procedures applicable.
The applicant further argues that he has a dear right to the relief
it seeks based on his role as the Hosi
and therefore representative
of the Hlaneki traditional community. He makes the point that as a
traditional leader he enjoys Constitutional
authority in that
capacity to assert the customary law rights of his community.
[11]
The applicant buttresses his argument by referring to the history of
the Hlaneki traditional community, its recognition as
such and its
leadership institutions in several pieces of legislation from
apartheid times until the promulgation of The Traditional
Leadership
and Governance Framework Act 41 of 2003 (the Framework Act).
The Framework Act indeed recognises the institutions
of traditional
communities in section 3 and traditional leadership in section
19.
The applicant further makes reference to the Limpopo
Traditional Leadership and Institutions Act 6 of 2005 (the Limpopo
Traditional
Leadership Act). The applicant asserts that this further
piece of legislation recognises traditional communities but more
importantly,
the role of traditional leaders in Limpopo. The
applicant argues that he and the Hlaneki traditional community have
enjoyed statutory
recognition since the days of the Black Authorities
Act 68 of
1951 culminating in the Framework Act and the Limpopo
Houses of Traditional Leaders Act 5 of 2005.
[12] Shimange
denies any involvement in the construction works and bases his
opposition on this. He however also aligns himself
in all respects
with the case made out by the Regional Commissioner who slates that
his actions arise from a land claim lodged
by Shimange on behalf of
the Shimange traditional community. The Regional Commissioner opposes
the application on the primary basis
that this Court lacks
jurisdiction to determine the issues in this matter, it being a
matter requiring resolution of Restitution
Act matters and therefore
falling within the jurisdiction of the Land Claims Court.
[13]
In view of the decision I have come to and to the extent necessary, I
set out the necessary factual background provided by
the Regional
Commissioner to spearhead the clinic and community centre development
at Shilawa Village. His case is that the decision
to build the clinic
and community centre was pursuant to the settlement of a land claim
lodged by Shimange on beh
a
lf of the Shimange community in
terms of section 10 of the Restitution Act to the Commission on
Restitution of Land Rights (the
Commission). That claim was
investigated and found to be genuine and compliant with the dictates
of the Restitution Act. This in
short entailed that the Shimange
community had been dispossessed of its rights to their land in the
farm Northampton which they
had occupied since the 19th century until
the community had been forcibly removed from that land in 1968 and
relocated to Shilawa
Village
,
which fell within the area of
jurisdiction of the Hlaneki Tribal authority
[14]
Furthermore the investigation revealed that restoring the Shimange
community's land rights to Northampton posed insurmountable
difficulties as there was already a community settled there and as a
result there was no alternative state owned land available
for award.
In view of this and in terms of what he refers to as delegated powers
in terms of section 42D of the Restitution Act,
the Commission then
negotiated a settlement between the Shimange community and the State.
The negotiations culminated in a settlement
of the claim in terms of
which the community elected that a clinic and community centre,
valued at R10 148 308 be built at Shilawa
Village which would benefit
the wider community.
[15]
The further terms of the settlement were that the building project
would be 'primarily driven' by the Regional Commissioner
in his
official capacity, the project would be supported by a number of
Government departments. Final approval of the settlement
was granted
by the Acting Land Claims Commissioner in January 2008 but
implementation commenced in 2010. Implementation took the
form
initially of meetings with different sectors of society which
included representatives of different Government departments
as well
as representatives from the Shimange community. The applicant and
Hlaneki tribal authority were not involved in these meetings.
[16]
This is the factual matrix on which the Regional Commissioner argues
that the settlement of the Shimange land claim as well
as the
decision to build the clinic and community centre in Shilawa Village
are lawful. Based on these facts the Regional Commissioner
opposes
the grant of final relief on the primary basis that this court lacks
jurisdiction to determine this matter as the rights
asserted by the
applicant and the relief he seeks as well as the role and actions of
the Regional Commissioner, are all rooted
in the Restitution Act. For
this reason, so the argument goes, it is only the Land Claims Court
that has exclusive jurisdiction
in terms of section 22 of the
Restitution Act to determine the issues raised in the matter.
[17]
The Regional Commissioner further argues that the decision to settle
the Shimange land claim and the decision to locate the
development of
the clinic and community centre in Shilawa village are valid and
lawful. His case is that should the applicant be
unhappy about his
conduct and decisions he has a number of alternative remedies which
are all contained in the Restitution Act.
On this basis he contends
that the application stands to be struck off the roll with costs.
[18]
This being an application for interdictory relief in the main, the
test is whether the applicant has established the existence
of aclear
right which is being infringed or is under threat of infringement and
that he lacks alternative redress. The requisites
for the right to
claim for a final interdict were expressed in
Setlogeto
v Setlegelo
[5]
are to the effect that an
applicant desirous of approaching a court for a final interdict must
demonstrate: (i) a clear right; (ii)
an injury actually committed or
reasonably apprehended; and (iii) the absence of an alternative
remedy. A clear right must be established
on a balance of
probabilities.
[6]
The clear
right required to be shown in interdict proceedings has been
varyingly described. Van der Linden refers to it as
'een
liquide recht’.
[7]
Modem authorities refer
to it as a definite right, that is a right clearly established.
[8]
The word 'clear' relates to the degree of proof required to establish
the right.
[9]
[19]
The predominant issue requiring resolution is whether the applicant
has succeeded in establishing a clear right to practice
and apply
customary law in land allocation and administration and to prevent
developments he and his tribal authority have not
authorised on land
under his authority. In my view the right asserted by the applicant
is rooted in the Constitution, i.e. the
right to practice customary
law. He argues that it is this right that was infringed by the
Regional Commissioner in simply commissioning
the development of the
clinic and community centre in that land without complying with the
customary law procedure to source the
land.
[20]
The Regional Commissioner argues that the right asserted by the
applicant if it exists is capable of protection under the Restitution
Act but that in any event any role or authority he may have had in
administering land has been legislated away by successive pieces
of
legislation. In this regard the argument advanced in the heads of
argument is that the Black Authorities Act on which the applicant
has
placed some reliance for its contentions, did not expressly confer
powers in relation to land allocation. The argument goes
on to
suggest that the powers under that act were not customary law but
other laws and that that act did not expressly recognise
'black
laws or
customs
for either tribal authorities or chiefs or
headmen
·. The argument was further that that Act was in
any event repealed on 31 December 2010 through the Black Authorities
Repeal
Act 13 of 2010.
[21]
The argument then refers to the Black Administration Act 38 of 1927
especially section 47(3) which purportedly vested land
administration
powers not in trial authorities but in the Bantu Administration
Commissioner. This argument further suggests that
whatever powers may
have been enjoyed by traditional leaders and traditional authorities
were finally taken away through the repeal
of the Black
Administration Act by the Repeal of the Black Administration Act and
amendment of Certain Laws Act 28 of 2005. The
argument further refers
to the
Government Immovable Asset Management Act 19 of 2007
which it
was argued, vested custodianship of land situated in the former
homelands on the Minister of Rural Development and Land
Reform. This
Act came into force in April 2009 and it was argued, finally wiped
whatever powers or role traditional leaders and
authorities may have
had in land allocation.
[22] It is not
correct as argued by the Regional Commissioner that the right
asserted by the applicant is within the contemplation
of the
Restitution Act. The right asserted is a constitutional right to
practice customary law. This is a matter where the Courts
are
enjoined by the Constitution to recognise, protect and apply
customary law. In
Nwamitwa
v Phillia
[10]
the High Court and the
SCA in
Shilubana
v Nwamitwa (Commission for Gender Equality as Amicus Curiae)
[11]
had dealt with and
determined an issue dealing with customary law and so did the
Constitutional Court when it eventually heard the
matter. See also
the cases of
Bhe
v Magistrate Khayelitsha (Commission for Gender Equality
as
Amicus
Curiae); Shibi v Sithole, South African Human Rights Commission v
President of
the
Republic
of South
Africa.
[12]
[23]
In
Shilubana
v
Nwamitwa,
[13]
the Constitutional Court, referring to section 211 stated that
'customary law is protected by and subject to the Constitution in
its
own right'.
[14]
And further
that the status of customary law in South Africa is constitutionally
entrenched.
[15]
The Court went
on to state that as this Court held in
Alexkor
v Richtersveld Community,
customary
law must be recognised as "an integral part of our law" and
"an independent source of norms within the
legal system."
[16]
It is a body of law by which millions of South Africans regulate
their lives and must be treated accordingly ...
As
a result, the process of determining the content of a particular
customary law norm must be one informed by several factors.
First, it
will be necessary to consider the traditions of the community
concerned. Customary law is a body of rules and norms that
has
developed over the centuries.
[17]
An enquiry into the position under customary law will therefore
invariably involve a consideration of the past practice of the
community. Such a consideration also focuses the enquiry on customary
law in its own setting rather than in terms of the common
law
paradigm, in line with the approach set out in Bhe.
[18]
Equally, as this Court noted in
Richtersveld,
courts
embarking on this leg of the enquiry must be cautious of historical
records, because of the distorting tendency of older
authorities to
view customary law through legal conceptions foreign to it…
It
follows that the practice of a particular community is relevant when
determining the content of a customary law norm. As this
court held
in
Richtersveld,
the
content of customary law must be determined with reference to both
the history and the usage of the community concerned. “Living”
customary law is not always easy to establish and it may sometimes
not be possible to determine a new position with clarity. However,
where there is a dispute over the law of a community, parties should
strive to place evidence of the present practice of that community
before the courts, and courts have a duty to examine the law in the
context of a community and to acknowledge developments if they
have
occurred.
[19]
[24]
Clearly this Court has jurisdiction to determine this aspect as it
impacts a Constitutional issue i.e. the protection and development
of
customary law under the Constitution. Furthermore the jurisdiction to
grant procedural relief by way of interdicts remains within
the
purview of this Court unless the issue at stake is decreed by
legislation to fall under the jurisdiction of another Court of
equal
status such as the Land Claims Court. There is a dearth of authority
confirming this and especially where Constitutional
rights are
impacted.
[25] The next
enquiry must now focus on whether the customary law right asserted by
the applicant exists and further whether it
has been legislated away
by successive pieces of legislation as argued on behalf of the
Regional Commissioner. I have given sufficient
detail of the version
and evidence advanced by the applicant in earlier paragraphs on this
aspect. The Regional Commissioner has
tendered no evidence to
contradict the applicant's version. All the Regional Commissioner has
done is offer arguments suggesting
that the applicant has made this
up. Singh actually went further to suggest that the applicant was
asserting this right for ulterior
purposes, i.e. if the applicant was
able to, he would have used this process to make money for himself.
Whilst being downright
disrespectful this offers no contradictory
evidence that such a customary law system does not exist. This
argument is also supported
by an assertion that Hosi Chabane and by
implication the current Hosi have no standing to bring this
application as their chieftainship
is suspect. This submission is
also premised on lack of legislative foundation. This argument is
built around an interpretation
of the different pieces of legislation
dating from the Black Authorities Act to current legislation such as
the Framework Act.
[26] The evidence
provided by the applicant effectively nullifies this whole argument.
That evidence is to the effect that through
the ages especially
through the period of the legislation mentioned by the Regional
Commissioner, the applicant's community has
observed and applied
their customary law land allocation system. This is a solid basis
depicting the lived reality of that community
in observing and
applying their customary law. That customary law system has without a
doubt survived au the successive pieces
of legislation referred to on
behalf of the Regional Commissioner. The further submission that the
applicant’s standing as
traditional leader is also suspect, was
not based on any evidence. Clearly it is misplaced and all I need say
is that this traditional
leadership institution is the same
institution that was upheld by the Constitutional Court when it
approved Hosi Shilubane's right
to assume her rightful place as Hosi
in the chieftainship institution of the Nwamitwa Tribal community.
That the applicant is Hosi
is beyond question and evinced by his
certificate of appointment in apartheid years and which has continued
to be recognised under
the Framework Act. A further illustration of
the fallacy of the Regional Commissioner's argument is shown by the
letter of appointment
of Hosi Mkhacane, the current Hosi of the
Hlaneki Tribal Authority, which was issued by the Limpopo
Department of Co-Operative
Governance, Human Settlements and
Traditional Affairs, issued in terms of section 12(1)(c) of the
Limpopo Traditional Leadership
and Institutions Act of 2005.
[27]
My conclusion is that the argument advanced on behalf of the Regional
Commissioner which is solely reliant on legislative interpretation
cannot displace the applicant's evidentiary material tracing the
history of the Hlaneki tribal community and its observance and
application of a customary law land allocation and administration
system from the previous century. I must also say that the stance
of
the Regional Commissioner on this point is surprising to say the
least. That is a state functionary charged with executing
an
important constitutional responsibility regarding land restitution.
It is an indisputable fact: that black tribal communities
bore the
brunt of the apartheid regime's forced land removals which the
Regional Commissioner is meant to remediate. Reality is
that Tribal
Authorities and communities applied nothing but customary law in
administering their land. This is what the applicant
is saying.
[28]
I am also acutely alive to the reminder echoed by Chief Justice
Mo
g
oeng
Mogoeng
in
Pilane
v Pilane
[20]
that:
'Traditional
leadership is a unique and fragile institution. If it is to be
preserved, it should be approached with the necessary
understanding
and sensitivity. Courts, Parliament and the executive would do well
to treat African customary law, traditions and
institutions not as an
inconvenience to be tolerated but as a heritage to be nurtured and
preserved for posterity, particularly
in view of the many years of
distortion and abuse under the Apartheid regime ... Bearing in mind
the need to help these fledgling
institutions to rebuild and sustain
themselves, threats to traditional leadership and related
institutions should not be taken
lightly.'
See
also
Shilubana v Nwamitwa:
'It
is important to respect of communities that observe systems of
customary law to develop their law ... The right of communities
under
211(2) includes the right of tribal authorities to amend and repeal
their own customs. As has been repeatedly emphasised
by this and
other courts, customary law is by its nature a constantly evolving
system. Under pre-democratic colonial and apartheid
regimes, this
development was frustrated and customary law stagnated. This
stagnation should not continue, and the free development
by
communities of their own laws to meet the rapidly changing society
must be respected and facilitated.”
[21]
[29]
Clearly the historical context of a traditional community was
recognised as playing an important part in how that community's
customary legal system was applied. That historical context is
integral as seen in the Constitutional Court's statement that
indigenous
law
'[I]s
a system of law that was known to the community, practised and passed
on from generation to generation. It is a system of
law that has its
own values and norms. Throughout its history it has evolved and
developed to meet the changing needs of the community.
It will
continue to evolve within the context of its values and norms
consistently with the Constitution.
[22]
See
also
Tongoane
v Minister of Agriculture and Land Affairs
[23]
where the Constitutional
Court again emphasised that land usage, occupation and administration
of communal land is regulated by
indigenous law.
[24]
[30]
The next enquiry is whether the applicant is entitled to the relief
he seeks in the light of the Regional Commissioner's argument
that
the section 42D settlement and the clinic and community centre
development amount to proper exercise of public power by a
state
functionary and that until they are set aside they remain valid. The
authority for this proposition is located in the decision
in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[25]
where the SCA stated that
administrative action must be regarded as valid and binding until set
aside by a court. It was also stated
that whether or not the
particular decision was truly valid is immaterial; until challenged
and set aside, its validity is accepted
as fact However in
City
of Cape Town v Helderberg Park Development (Pty) Ltd
[26]
the SCA said that the
Oudekraal
principle
is not absolute; instead the 'settled law', as set out in
Oudekraal,
was
that 'the target of such compulsion is entitled to await events and
resist only when the unlawful condition is invoked to coerce
it into
compliance'.
[27]
[31]
Most significantly, the SCA in
City of Tshwane Metropolitan
Municipality v
Cable
City (Pty) Ltd
[28]
referring to
Oudekraal
stated:
'The
validity of an administrative act is generally challenged by way of
judicial review. It is, however, not uncommon for a challenge
to
arise, not by the initiation of such proceedings but by way of
defence, as a collateral issue in a claim for the enforcement
or
infringement of a private law right as the case may be. A citizen is
not required to comply with an administrative act which
is bad on its
face as it is unlawful and of no effect He or she is entitled to
ignore it if so satisfied and justify that conduct
by raising a
"defensive" or "collateral” challenge to its
validity.'
[29]
[32]
Based on this authority the applicant's challenge to the Regional
Commissioner's decisions based on legality clearly trumps
the
Regional Commissioner's submissions. The Applicant questioned the
Regional Commissioner's authority and competence to settle
the land
claim. The applicant further squarely challenged the Regional
Commissioner to disclose the settlement agreement as well
as any
documentary evidence on which he relied for his actions and
decisions. The thrust of the applicant's argument is that in
the
absence of evidence of the delegation relied on by the Regional
Commissioner, and especially having been specifically challenged
to
produce this and failing to do so, the conclusion is ineluctable that
the Minister did not sanction the land claim settlement
relied on by
the Regional Commissioner. The applicant contended correctly that
only the Minister of Rural Development and Land
Affairs has the
authority to settle a land claim in terms of section 42D of the
Restitution Act or to delegate the power to do
so. Retying on the
decision in
Manok
Family Trust v Blue Horison Investment 10 (Pty) Limited,
[30]
the
applicant makes the point that should he be correct that the Regional
Commissioner acted outside his powers in terms of the
Restitution Act
then clearly that exercise of public power violated the principle of
legality and was clearly invalid.
[33]
Section 42D provides:
"42D. Powers of
Minister in case of certain agreements
(1) If the Minister is
satisfied that a claimant is entitled to restitution of a right in
land in terms of section 2, and that the
claim for such restitution
was lodges not later 30 June 2019, he or she may enter into an
agreement with the parties who are interested
in the claim providing
for one or more of the following:..
(2) ...
(3) The Minister may
delegate any power conferred upon him or her by subsection (1) or
sections 42C and 42E to the Director-General
of Rural Development and
land Reform, or to the Chief Land Claims Commissioner or a regional
land claims commissioner.
[34]
The Regional Commissioner, whilst disclosing other documents relating
to the Shimange land claim, has refused to disclose the
settlement
agreement He has also failed to disclose any document evidencing the
delegated authority he allegedly relies on for
his conduct. The
Regional Commissioner's stance is that he is not obliged to make
discovery in motion proceedings. This in my view
is fatal to his
case. Litigation is not a game where litigants simply adopt tactical
positions aimed at frustrating legitimate
causes. It is unhelpful for
that office to simply refuse to provide this evidence upon a
bona
fide
and direct challenge to do so. This matter deals with
important constitutional rights and to adopt such tactics in
litigation deserves
the strongest censure. I would be remiss if I
permitted the Regional Commissioner to deny the applicant the
protection he seeks
of his and his Tribal community's right to
practice their land allocation customary law system based on flimsy
allegations of exercise
of public power.
[35]
My conclusion is that the respondents have failed to raise any basis
to offset the applicant's case. This is a matter where
the
applicant's version about the existence of a clear right must be
accepted. In
Fakie
NO v CCII Systems (Pty) Ltd
[31]
the SCA stated:
“
in
the interests of justice courts have been at pains not to permit
unvirtuous respondents to shelter behind patently implausible
affidavit versions or bald denials. More than sixty years ago, this
court determined that a judge should not allow a respondent
to raise
"fictitious" disputes of fact to delay the hearing of the
matter or to deny the applicant its order.'
[32]
And further
'In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[33]
this court extended the
ambit of uncreditworthy denials. They now encompassed not merely
those that fail to raise a real, genuine
or bona fide dispute of
fact, but also allegations or denials that are so far-fetched or
dearly untenable that the Court is justified
in rejecting them merely
on the papers.'
[34]
See
also
Webster
v Mitchell.
[35]
[36] In the circumstances
I am of the view that the applicant has established the existence of
a clear right regarding his and his
Tribal community's entitlement to
practice and apply customary law in administering the land under his
control. I'm further of
the view that the brazen conduct complained
of by the applicant, especially the failure to consult him and his
Tribal Authority
regarding the implementation of the Shimange land
claim calls for a punitive order of costs. The applicant is a
traditional leader,
with scarce financial means, who has been
impelled to approach this court to protect a constitutionally
entrenched right at great
cost to the Tribal Authority.
[37]
I must deal with two further issues that have concerned me in this
matter. It is
for
this reason that I have ordered that this judgement must be brought
to the attention of the Commission. The first issue relates
to the
statement by Singh insinuating that Hosi Chabane Hlaneki may have
been motivated by personal corrupt tendencies to advance
the Hlaneki
customary law land allocation right. Hosi Chabane Hlaneki was a
respected traditional leader especially by his tribal
community and a
state functionary cannot be allowed to make such an unfounded
derogatory remark about a traditional leader. This
is the type of
conduct that calls for a personal apology to the Hosi. The second
issue is that the Commission must have a serious
consideration of how
the Regional Commissioner has behaved in this matter taking account
of the previous litigation history of
that office and the Hlaneki
Tribal Authority. The applicant has referred this Court to a
Judgement of the Land Claims Court
[36]
where that Court found, in respect of the Regional Commissioner at
that time (2005) that
'The
conduct of the second respondent in handling the applicants' claim
and conducting these proceedings was reprehensible, calling
for costs
on a punitive scale, if requested.'
That
Court also ordered the Regional Commissioner to take all steps to
investigate and finalise the Hlaneki land claim that featured
in that
matter. It is unclear to this Court if the Regional Commissioner has
done so and the Commission must have an interest that
Court orders
are complied with. It must also be of interest to the Commission that
Regional land Claims Commissioners treat all
it deals with whether
claimants or otherwise, especially traditional leaders in a fair
manner.
[38]
My order that this judgement be brought to the attention of the
Commission is to ensure that appropriate action, where warranted
is
adopted to ensure that the land restitution programme of that office
remains is not mired in controversy and that it retains
the
confidence of society in its work.
[39]
In the circumstances I grant the following order:
1. The building works
commenced on 23 December 2010 at Shilawa Village, Hlaneki Block 8,
Giyani, Limpopo, are declared to be unlawful.
2. The First and Third
Respondents are prohibited from continuing in any manner whatsoever
with the building works mentioned in
1, without the express consent
of the applicant and without complying with the customary law
procedure set out in the applicant's
founding affidavit and without
complying with
section 2
of the
Interim Protection of Informal Land
Rights Act 31 of 1996
.
3. The First and Third
Respondents are ordered to take the necessary steps to demolish all
structures already erected and to remove
all building rubble from the
building site, within one month from the date of this order.
4. This Judgement must
brought to the attention of the Commission on Restitution of Land
Rights
5.
The First and Third Respondents are jointly and severally
ordered to pay the costs of this application on the scale as between
attorney
and client, induding the costs of all the extensions of the
role nisi
granted by this Court from 4 January 2011.
------------------------
D
MLAMBO
JUDGE
PRESIDENT
GAUTENG
DIVISION OF THE HIGH
COURT
OF SOUTH AFRICA
Counsel
for the applicant: ADV HS Havenga SC
Instructed
by: MP Koekemoer Attorneys
Attorney
for the first respondent: Mr B Mohlaba
Instructed
by: Mohlaba and Moshoana Inc
Counsel
for the third respondent: ADV A Dodson SC
Instructed
by: The State Attorney, Pretoria
Date
of application: 07 September 2016
Date
of judgment: 03 March 2017
[1]
This village is also referred to as Shimange by the first
respondent.
[2]
Section 4(3)
provides: 'The Commission shall consist of a Chief Land
Claims Commissioner appointed by the Minister, after inviting
nominations
from the generaI public, a Deputy Land Claims
Commissioner similarly appointed and as many regional land claims
commissioners
as may be appointed by the Minister.'
[3]
Section 7(3A)
provides: 'If the office of a regional land claims
commissioner is vacant or if a regional land claims commissioner is
absent
or unable to perform any or all of his or her functions, an
acting regional land claims commissioner appointed by the Minister
shall act in his or her stead and whilst the acting regional land
claims commissioner so acts, he or she shall perform all the
functions as the
regional
land claims commissioner.'
[4]
21 April 2011, 23 November 2011, 27 April 2012, 3 May 2012, 24
October 2012, 28 May 2013, 28
November
2013, 3 March 2014, 23/28 June 2014, 7 October 2014, 9 February 2015
and finally on 11
February
2015.
[5]
1914 AD 221
at 227.
[6]
Nienaber
v Stuckey
1946
AD 1049
at 1054;
Free
State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining
Co Ltd
1961
(2) SA 505
(W) at 524C-D;
Welkom
Bottling Co (Pty) Ltd v Belfast Mineral Waters (OFS) (Pty)
Ltd
1967 (3) SA 45
(0)
at 560-E;
De
Villiers v Soetsane
1975
(1) SA 360
(E)
at 3629;
Beukes v Crous
1975 (4) SA 215
(NC) at 219F.
[7]
'Judicieele Pracktijck' 2.19.1.
[8]
Erasmus
v Afrikander Proprietary Mines Limited
1976
(1) SA CN) 950 at 956 and cases there cited.
[9]
The word 'clear' relates to the degree of proof required to
establish the right.
[10]
2005 (3) SA 536 (T).
[11]
2007 (2) SA 432 (SCA).
[12]
2005 (1) SA 580 (CC).
[13]
2009 (2) SA 66 (CC).
[14]
Para 43, quoting
Bhe
.
[15]
Para 42.
[16]
Alexkor
Ltd v Richtersveld Community
[2003] ZACC 18
;
2004
(5) SA 460
(CC) para 51.
[17]
Alexkor
para 53.
[18]
Bhe v
para 43.
[19]
Paras 43-44 and 46.
[20]
2013 (4) BCLR 431
(CC) paras 78-79.
[21]
Para 45.
[22]
Alexkor
para 53.
[23]
2010 (6) SA 214
(CC).
[24]
Para 85.
[25]
2004 (6) SA 222 (SCA).
[26]
2008 (6) SA 12
(SCA) paras 49-50.
[27]
Para 50.
[28]
2010 (3) SA 589 (SCA).
[29]
Para 13.
[30]
2014 (5) SA 503 (SCA).
[31]
2006 (4) SCA 326 (SCA).
[32]
Para 55, citing
Peterson
v Cuthbert & Co Ltd
1945
AD 420
at 428. per Watermeyer CJ.
[33]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635. per Corbett JA.
[34]
Para 55.
[35]
1948 (1) SA 1186 (W).
[36]
Hlaneki and Others v Commission on Land Restitution of Land Rights
[2006] 1 All SA 633
(LCC)