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[2017] ZAGPPHC 76
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Sunset Bay Trading 271 Pty Ltd v Regional Land Claims Commissioner, Mpumalanga Province (25587/2012) [2017] ZAGPPHC 76 (7 March 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 25587/2012
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: No
REVISED
In
the matter between:
SUNSET
BAY TRADING 271 PTY
LTD
PLAINTIF
and
THE
REGIONAL LAND CLAIMS COMMISSIONER,
MPUMALANGA
PROVINCE DEFENDANT
JUDGMENT
RABIE,
J
1.
The plaintiff instituted an action against defendant for payment of
damages. The defendant, inter alia, filed a special plea
that this
court lacks jurisdiction in the action. The parties requested the
court, and it was so ordered, that the issue of jurisdiction
be
separated from the other issues in terms of Rule 33 (4) of the
Uniform Rules of Court. The matter was argued before this court
without any evidence being presented to it.
2.
The jurisdiction of the Land Claims Court ("the LCC") is
provided for in Section 22
(1)
and (2)
of the Restitution of Land Rights Act, Act 22 of 1994 ("the
Act").
Those
subsections provide 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) to determine or
approve compensation payable in respect of land owned by or in the
possession of a private person upon expropriation
or acquisition of
such land in terms of this Act;
(c) to determine the
person entitled to title to land contemplated in section 3;
(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 person
might not be able to claim any relief consequential upon the granting
of such order;
(cB) to determine whether
compensation or any other consideration received by any person at the
time of any dispossession of a right
in land was just and equitable;
(cC)
to determine any
matter involving the interpretation or application of this Act
or
the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996), with the
exception of matters relating to the definition of 'occupier'
in
section 1 (1) of the Extension of Security of Tenure Act, 1997 (Act
62 of 1997);
(cD) to decide any
constitutional matter in relation to this Act or the Land Reform
(Labour Tenants) Act, 1996 (Act 3 of 1996);
(cE) to determine any
matter involving the validity, enforceability, interpretation or
implementation of an agreement contemplated
in section 14 (3), unless
the agreement provides otherwise;
(d)
to determine all
other matters which require to be determined in terms of this Act
.
(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 matters 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) all the ancillary
powers necessary or reasonably incidental to the performance of its
functions, including the power to grant
interlocutory orders and
interdicts;
(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 interests of justice to do so."
(My emphasis)
3.
The courts contemplated in section 166 (c), (d) or (e) of the
Constitution, Act 108 of 1996, and which do not have jurisdiction
over matters falling within the jurisdiction of the LCC in terms of
the Act, are:
"(c) 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;
(d) the Magistrates'
Courts; and
(e) any other court
established or recognised in terms of an Act of Parliament, including
any court of a status similar to either
the High Court of South
Africa or the Magistrates' Courts."
4.
This court consequently has no jurisdiction over matters which, inter
alia, relate to the determination of any matter involving
the
interpretation or application of the Act or to determine any other
matter which requires to be determined in terms of the Act.
5.
In order to decide whether this court has jurisdiction to adjudicate
the present matter, the nature of such matter has to be
established.
It is settled law that the nature of matter, and thus the court's
jurisdiction, is determined on the basis of the
pleadings. Cf Chirwa
v Transnet Ltd
2010 (1) SA 238
(CC) at 263 C; Gcaba v Minister for
Safety and Security
2010 (1) SA 238
(CC) at 263 C; My Vote Counts NPC
v Speaker of the National Assembly
2016 (1) SA 132
(CC) at 184 A-F.
6.
In My Vote Counts, at paragraph [132] the following was stated:
[132] A court's
jurisdiction is determined on the basis of the claim in the
pleadings. In Chirwa Langa CJ held that -
'a court must assess its
jurisdiction in the light of the pleadings. To hold otherwise would
mean that the correctness of an assertion
determines jurisdiction, a
proposition that this court has rejected. It would also have the
absurd practical result that whether
or not the High Court has
jurisdiction will depend on the answer to a question that the court
could only consider if it had that
jurisdiction in the first place.
Such a result is obviously untenable.' 198
[133] In a unanimous
judgment this court confirmed Chirwa and held that -
'Jurisdiction is
determined on the basis of the pleadings, as Langa CJ held in Chirwa,
and not the substantive merits of the case....
In the event of the
court's jurisdiction being challenged at the outset (in limine), the
applicant's pleadings are the determining
factor. They contain the
legal basis of the claim under which the applicant has chosen to
invoke the court's competence. While
the pleadings - including in
motion proceedings, not only the formal terminology of the notice of
motion, but also the contents
of the supporting affidavits - must be
interpreted to establish what the legal basis of the applicant's
claim is, it is not for
the court to say that the facts asserted by
the applicant would also sustain another claim, cognisable only in
another court.'
199 [Footnote omitted.]"
7.
The issues in a case are identified by the pleadings, disclosing the
points on which a decision from the court is required. Cf
Van der
Walt and Others v Lang and Others
1999 (1) SA 189
(LCC) at paragraph
[11]. It is accordingly necessary to analyse the plaintiffs claim as
set out in the pleadings in order to establish
whether the court
would be required "to determine any matter involving the
interpretation or application" of the Act.
If so, the LCC would
have exclusive jurisdiction and this court cannot continue to
adjudicate the plaintiffs claim.
8.
As mentioned, the plaintiff claimed damages from the defendant. A
summary of the salient allegations in the particulars of claim
upon
which the claim is based, is the following:
8.1 On 24 August 2007 the
Commission on Restitution of Land Rights caused a notice to be
published in the Government Gazette that
a claim for the restitution
of land rights had been lodged against the plaintiffs properties in
terms of section 10 of the Act.
8.2 On 8 April 2008 the
plaintiff informed the defendant that it was suffering economic
losses and prejudice as a result of the
notice which had been
published and which prevented the plaintiff to proceed with its plans
to re establish the old sawmill
on its property.
8.3 On 5 May 2008 the
plaintiff requested the defendant to issue a notice de gazetting
the land claim in accordance with the
provisions of section 11 A of
the Act.
8.4 On 2 June 2008 the
plaintiff advised the defendant of its intention to take legal action
"as
a
result of the defendant's failure to comply with
its obligations and duties in terms of the Act”.
8.5 The defendant failed
and/or neglected to reply to the plaintiffs requests and submissions
regarding the validity of the claims
which were published in the
Government Gazette.
8.6 The plaintiff
obtained an order from the LCC on 21 June 2011 setting aside the land
claim for the restitution of the plaintiff's
property and directing
the defendant to withdraw the publication of the land claim as
published in the Government Gazette. The
defendant has failed to
comply with this court order.
8.7 The publication in
the Government Gazette of the land claim against the plaintiff's
properties
"was erroneous, as no valid claim for the
restoration of land rights in respect of the plaintiff's properties
and/or land existed”.
8.8 The plaintiff,
through its attorney of record, made representations to the defendant
that the publication of the land claim
against the properties
"was
incorrect, without any factual and/or legal substance, spurious,
unfounded and ii/ conceived, but notwithstanding
the defendant
failed and/or neglected to, as he was obliged to do, rectify the
issue by withdrawing the notice in accordance with
the provisions of
section 11 A of the Act".
8.9 The defendant's
conduct or omission was not a bona fide mistake, but a wilful and
mala fide refusal to comply with his duties
and obligations bestowed
upon him in accordance with the provisions of the Act. The
defendant's conduct or omission
"therefore falls outside the
scope and/or ambit of section 18 of the Act”.
8.10 The defendant had a
legal duty towards the plaintiff
"to act and comply with the
provisions of the Act",
but notwithstanding sufficient
information in respect of the claims which were published in the
Government Gazette,
"the defendant refused and/or neglected
and/or omitted to withdraw the notice in accordance with the
provisions of section
11 A of the Act".
8.11 The plaintiff
accordingly suffered damages
"as
a
direct result of
the defendant's conduct or omission to comply with his duties and/or
obligations in accordance with the provisions
of the Act".
9.
The defendant denied liability towards the plaintiff. A summary of
the salient features of the defendant's plea is the following:
9.1 The land claim
against the plaintiffs properties had been lodged in the prescribed
manner.
9.2 The land claim was
not precluded by the provisions of section 2 of the Act.
9.3 The land claim was
not frivolous or vexatious.
9.4 Notice of the land
claim was accordingly published in the Government Gazette in terms of
section 11 (1) of the Act.
9.5 The publication of
the land claim was not erroneous.
9.6 After publication of
the land claim, an investigation of the land claim was conducted in
terms of section 12 (1) (a) of the
Act.
9.7 The defendant was not
obliged to withdraw the publication of the land claim in terms of
section 11 A of the Act on the strength
of the representations made
by the plaintiff, through its attorney, in the face of the
investigation of the land claim in terms
of section 12 (1) (a) of the
Act.
9.8 The defendant acted
in good faith while performing his functions in terms of the Act.
9.9 Liability on the part
of the defendant in having not withdrawn the notice of the land claim
in terms of section 11 A is excluded
in terms of section 18 of the
Act which provides that, inter alia, the defendant shall not be
liable in respect of any act or omission
in good faith while
performing a function in terms of any provision of the Act.
10.
Having regard to the substantive averments supporting the plaintiffs
claim and the defendant's defence thereto, it was submitted
on behalf
of the defendant that the plaintiff invoked the provisions of the Act
to establish its cause of action against the defendant,
and the
defendant, similarly, relied on the provisions of the Act for his
defence to the action. Consequently, so it was submitted
on behalf of
the defendant, the issues for determination in the action are issues
that arise from the provisions of the Act and,
similarly, the issues
for determination involve the interpretation or application of the
Act. Consequently, so it was submitted,
LCC has exclusive
jurisdiction to adjudicate the plaintiffs claim.
11.
On behalf of the plaintiff it was, firstly, submitted that the High
Court has jurisdiction in respect of a claim based on a
delict
committed within its jurisdiction. Reliance was placed on section 21
of the Superior Courts Act, act 10 of 2013 which provides
as follows:
"21 Persons over
whom and matters in relation to which Divisions have jurisdiction.
(1) A Division has
jurisdiction over all persons residing or being in, and in relation
to all causes arising and all offences triable
within, its area of
jurisdiction and all other matters of which it may according to law
date cognizance, and has the power -
…”
12.
The plaintiff submitted that no statute, including the Act, expressly
takes away the competence and/or jurisdiction of the High
Court to
adjudicate an action based on delict and award damages in respect
thereof.
13.
Secondly, it was submitted on behalf of the plaintiff that to the
extent that the provisions of the Act are relevant for purposes
of
determining a claim based on delict, this court in any event has, in
terms of the common law doctrine of cohesion of a cause
of action,
also known as the
causae continentia
principle, the necessary
jurisdiction to adjudicate the plaintiff's claim based on delict,
regardless of the fact that the provisions
of the Act are involved.
14.
The plaintiff submitted that as the High Court has jurisdiction to
adjudicate the intellectual claim for damages, it would,
on the basis
of the
causae continentia
principle, be just and sensible for
the High Court to also exercise jurisdiction over the cause of action
to the extent that it
relates to the provisions of the Act it was
submitted that this court should not thwart the pursuit of the claim
for the enforcement
of a common law right, i.e., a claim for delict
shall damages, by denying access to the High Court, of a claim which
clearly falls
within the ordinary power of the High Court.
15.
Thirdly, it was submitted on behalf of the plaintiff that it would
not be proper or correct to interpret section 22 (1) (cC)
of the Act
in isolation and literally devoid of its constitutional, general and
specific context. Firstly, it was submitted that
to the extent that
it purports to interfere with the jurisdiction of the High Court, the
provision should be strictly interpreted.
Secondly, it was submitted
that the section cannot be relied upon as an absolute and categorical
prohibition or bar against this
court interpreting the provisions
thereof, as demonstrated by the need to interpret the section in
order to determine whether this
court has jurisdiction over a
delictual claim or whether that jurisdiction has been limited or
removed by the section. Thirdly,
it was submitted that the LCC is a
specialised court created by the Legislator to adjudicate land claims
instituted in terms of
the Act and that on a proper contextual
interpretation a "matter" in respect of which the LCC has
exclusive jurisdiction
would be one pertaining to a land claim and
the restoration of land, and not a claim based on delict. Lastly, it
was submitted
that there is no express empowerment or authorisation
for the LCC to make an award of delictual damages in favour of the
person
on the basis of a delict.
16.
I agree with the submissions on behalf of the defendant. Section 22
grants exclusive jurisdiction to the LCC to determine "any
matter involving the interpretation or application of this Act".
And in relation to such matters falling within its jurisdiction,
the
LCC shall have all the powers which are possessed by a High Court
having jurisdiction in civil proceedings. The section refers
to "any
matter" and made no distinction in respect of the types of
causes of action which may arise, i.e., for example,
claims based on
delict or on contract or on any other cause of action. The only
question is whether a matter which the LCC has
to determine involves
"the interpretation or application" of the Act. There is
consequently no merit in the submission
on behalf of the plaintiff
that the High Court retained its jurisdiction to determine delictual
claims for the reason that delictual
claims had not been mentioned by
name in section 22 of the Act.
17.
In considering the pleadings it is clear that the plaintiff's claim
as well as the defendant's defence involve the interpretation
and
application of the Act.
18.
According to his particulars of claim the plaintiff based his claim
on allegations which clearly require the interpretation
and
application of the Act. The plaintiff's allegation that the
defendant's failure to comply with his obligations and duties in
terms of the Act entitles the plaintiff to take legal action against
him, clearly requires an analysis of the provisions of the
Act to
establish the obligations and duties of the defendant in the
circumstances of the case. The allegation by the plaintiff
that the
publication of the land claim was erroneous as no valid claim for the
restoration of land rights existed, similarly entails
an
interpretation and application of the Act, more particularly as it
would require a finding in respect of the validity of the
publication
as well as a finding in respect of the validity of the land claim. In
order to make such findings the court would have
to interpret and
apply the provisions of the Act.
19.
The plaintiff further relied in support of his claim on the
allegation that despite representations that the land claim was
incorrect, without any factual and/or legal substance, spurious,
unfounded and ill-conceived, the defendant failed and/or neglected,
as he was obliged to do, to rectify the issue by withdrawing the
notice in accordance with the provisions of section 11 A of the
Act.
20.
In order to adjudicate these allegations the court will, first of
all, have to interpret and apply the provisions of the Act
in order
to make a finding as to whether the publication was valid or not.
More in particular, the court will have to consider
the provisions of
section 11A. This section provides, inter alia, that any person
affected by the publication of the notice of
a claim in terms of
section 11 (1) may make representations to the regional land claims
commissioner having jurisdiction for the
withdrawal or amendment of
that notice. The section then provides that where during the
investigation of a claim by the Commission
the regional land claims
commissioner having jurisdiction "has reason to believe"
that any of the criteria set out in
paragraphs (a), (b) and (c) of
section 11 (1) have not been met, he or she shall publish and notify
the relevant parties that the
notice of the claim published will be
withdrawn unless cause to the contrary has been shown to his or her
satisfaction. The Commissioner's
decision has to be adjudicated with
reference to paragraphs (a), (b) and (c) of section 11 (1). Section
11 (1) provides as follows:
11
Procedure after
lodgement of claim
(1) If the regional land
claims commissioner having jurisdiction is satisfied that-
(a) the claim has been
lodged in the prescribed manner;
(b) the claim is not
precluded by the provisions of section 2; and
(c) the claim is not
frivolous or vexatious,
he or she shall cause
notice of the claim to be published in the Gazette and in the media
circulating nationally and in the relevant
province, and shall take
steps to make it known in the district in which the land in question
is situated."
21.
Consequently, in order to establish the validity of the aforesaid
allegation by the plaintiff regarding the failure to withdraw
the
notice, the court will have to consider the exercise of the
discretion by the defendant with reference to the prescribed manner
in which a claim has to be lodged; whether the claim was or was not
precluded by the provisions of section 2 of the Act; and also
whether
the claim was not frivolous or vexatious. This whole exercise would
clearly entail the interpretation and application of
the Act.
22.
The plaintiff also relies on a legal duty towards him by the
defendant to act in accordance with and to comply with the provisions
of the Act. The adjudication of this allegation would also clearly
entail the interpretation and application of the Act.
23.
In his plea the defendant also relies on the provisions of the Act.
The allegation is made that the claim had been lodged in
the
prescribed manner. Section 10 will have to be considered in this
regard. Furthermore that the claim was not precluded by the
provisions of section 2 of the Act. To decide this issue the court
will have to apply section 2 of the Act. The defendant furthermore
pleaded that the land claim was not frivolous or vexatious. This
issue would have to be decided with reference to section 11 (1)
of
the Act. The defendant also pleaded that the land claim was correctly
published, which allegation would be decided on an interpretation
of
the relevant sections of the Act.
24.
The defendant also pleaded that he was not obliged to withdraw the
publication of the land claim in terms of section 11 A of
the Act on
the strength of the representations made by the plaintiff in the face
of the investigation of the land claim in terms
of section 12 (1) (a)
of the Act. This issue can only be decided with reference to the
relevant provisions of the Act.
25.
The defendant also pleaded that he acted in good faith while
performing his functions in terms of the Act. Section 18 of the
Act
provides as follows:
"18 Limitation of
liability
The Commission, members
of the Commission, any person or organisation appointed under section
9 or any officer contemplated in section
8, shall not be liable in
respect of any act or omission in good faith while performing a
function in terms of any provision of
this Act."
26.
In order to decide the issue of good faith of the defendant the
structure and content of the Act will have to be applied.
27.
It is clear from the above examples that the plaintiff squarely
invoked the provisions of the Act to establish his cause of
action
against the defendant and similarly that the defendant relies on the
provisions of the Act for his defence. All the issues,
and the
questions as to who acted correctly or who may be to blame, or
whether actions or inactions were made in good faith or
not, can only
be adjudicated by an interpretation and application of the Act.
28.
No doubt there is a presumption against legislative ouster or
interference with the jurisdiction of the High Court. And the
High
Court has jurisdiction to protect the common law rights of an
individual. However, once the plaintiff invoked to the provisions
of
the Act, which grants exclusive jurisdiction to the LCC to interpret
and apply the provisions of the Act, in order to establish
a cause of
action, the matter changed. As soon as that occurred, the LCC had
exclusive jurisdiction because it, and it alone, may
apply the
provisions of the Act. Cf Khumalo v Potgieter
2001 (3) SA 63
(SCA) at
[1OJ; Crystal Holdings Pty Ltd and Others v The Regional Land Claims
Commissioner and Others [2008)
1 All SA 243
(N) at para [50]; and
Dhlamini v Loock and Another
2001 (3) SA 56
(SCA) at para [17).
29.
In the discussion above it became clear that there is no room for the
arguments on behalf of the plaintiff. I deem it necessary,
however,
to briefly refer to one aspect namely the submissions regarding the
causae continentia
rule. This rule is explained and summarised
as follows in Erasmus, Superior Courts Practice: Volume 1 at pA2-95
as follows:
"This principle
entails that where one court has jurisdiction over part of a cause,
considerations of convenience, justice
and good sense justify its
exercising jurisdiction over the whole cause. The jurisdiction of a
court may therefore be extended
by the principle of causae
continentiae. The underlying reason for this rule is the avoidance of
an unnecessary multiplication
of actions and duplication of
proceedings concerning the same subject matter, which may cause
inconvenience and result in contradictory
judgements."
30.
I understood the argument on behalf of the plaintiff to be that since
the High Court has jurisdiction to determine a delictual
claim for
damages, it would, on the basis of this rule be convenient, just and
sensible for the High Court to also exercise jurisdiction
over this
cause of action to the extent that it relates to the provisions of
the Act. I have already found that the jurisdiction
of the High Court
to adjudicate a delictual claim cannot survive the provisions of
section 22 of the Act merely because it is delictual
claim, or for
any other reason. For that reason and since the High Court would have
no jurisdiction over any part of the cause
of action of the plaintiff
in the present proceedings, the rule would not apply.
31.
It was submitted, however, on behalf of the defendant, that it may
possibly be argued that the allegation in the plaintiff's
particulars
of claim that he suffered damages as a result of the defendant's
failure to comply with an order of the LCC, is an
issue which does
not involve the interpretation or application of the Act and which
consequently falls within the jurisdiction
of the High Court. If this
is so, the causae continentia rule might find application.
32.
I agree with the defendant that even if this were to be the case,
this court would still not be vested with jurisdiction in
the present
matter by virtue of the causae continentia rule. This is so because,
firstly, section 22 (1) (cC) provides that the
LCC "shall have
the power, to the exclusion of any other court contemplated in
section 166 (c), (d) or (e) of the Constitution"
to determine
any matter involving the interpretation or application of the Act.
Secondly, section 22 (2) (a) of the Act provides
that the LCC shall
have "all such powers in relation to matters falling within its
jurisdiction as are possessed by a High
Court having jurisdiction in
civil proceedings". In the light of section 22 (2) (a) the LCC
has jurisdiction in the action,
as a consequence of which the
rationale for the causae continentia rule, i.e., the avoidance of an
unnecessary multiplicity of
actions and duplication of proceedings
concerning the same subject matter which may cause inconvenience and
result in contradictory
judgements, does not find application. And
thirdly, if the High Court were to assume jurisdiction in terms of
this rule to determine
matters involving the interpretation or
application of the Act, the situation may well arise that different
courts interpret the
same statutory provision differently, which
seems to be exactly what the Legislator sought to avoid by giving the
LCC, as a specialist
court, exclusive jurisdiction to determine any
matter involving the interpretation or application of the Act.
33.
Particularly in the present matter where, as was seen in the
reference above to the pleadings, there is in reality no issue
supporting the cause of action and no issue supporting the defences
thereto, which does not entail the interpretation and/or application
of the Act. Furthermore that most of these issues, if not all of
them, fall within the specialist field for which the LCC had been
established.
34.
For the aforesaid reasons I'm of the view that this court lacks
jurisdiction in the action. As far as costs are concerned, there
is
no reason why costs should not follow the event and why costs of
senior counsel should not be included in the costs order.
35.
In the result the following order is made:
1. The action is
dismissed with costs which costs shall include the costs of Senior
Counsel.
---------------------------------
C.P.
RABIE
JUDGE
OF THE HIGH COURT