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[2015] ZAECMHC 84
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Bangani v Minister of Rural Development & Land Affairs and Another (1708/2013) [2015] ZAECMHC 84 (10 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 1708/2013
In
the matter between:
BANGANI
GETRUDE NONTSAPO
Plaintiff
And
MINISTER
OF RURAL DEVELOPMENT &
LAND
AFFAIRS
1
st
Defendant
THE
REGIONAL LAND CLAIMS COMMISSION
2
nd
Defendant
JUDGMENT
DUNYWA
AJ
[1]
In these action proceedings the plaintiff seeks to enforce the
agreement entered into between Mdlankomo-Moyeni Community and
the
defendants. The plaintiff is a spouse to Mlifi Bangani who
registered as an original dispossessed person and who is now
deceased. The deceased was a resident of Mdlankomo- Moyeni community.
The plaintiff alleges that she is representing an originally
dispossessed claimant.
[2]
The originally dispossessed claimant was entitled to equitable
redress in full and final settlement of the restitution claim
in the
amount of R94 762.26. The payment was for financial
compensation of the loss incurred by the claimant as a result
of
dispossession of land. The claimant has since passed on the plaintiff
was then registered as the claimant in respect of Mlifi
Bangani’s
homestead. This was directed by the order of this court dated
21 July 2011.
[3]
The defendants have raised a special plea on the ground that the
plaintiff was lacking
locus
standi
.
As appoint
in
limine
the defendant submitted that the High Court has no jurisdiction to
deal with a matter arising from the Restitution of Land Act
22 of
1994 (the Act).
[4]
Mr Zono appeared on behalf of the plaintiff in his submission
does not agree that only the Land Claims Court has jurisdiction
to
hear this matter. His argument is that the plaintiff does not
require adjudication of her rights in accordance with this
Act. He
argues further that the plaintiff’s cause of action is founded
on the law of contract not on the provisions
of the Act.
Therefore
the High Court has no jurisdiction to deal with this matter.
[6]
Section 22 of the Act provides that;
‘
There
shall be a court of law to be known as the Land Claims Court which
shall have 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.’
[7]
The maxim
expressio
inius est exclusio
alterius
when applied in relation ?to section 22 of the Act triggers the
thinking that the exclusive inclusion of the Land Claims Court
in the
definitions of the Act clearly implies the exclusion of the other
courts including High Court.
[8]
This view is strongly supported by views expressed in
Florence
v Government of the Republic of South Africa
2014 (6) SA 456
(CC) at paragraph 117, where the court held that;
The
rationale for this generous jurisdiction is not hidden. This
Restitution Act is truly ambitious. It hopes to facilitate
and
regulate nationwide land-restoration claims that have accrued in
almost a century of dispossession. The dispossession
of rights
in land must have occurred under many diverse settings. Not all
rights are registered or readily verifiable; nor
would evidence to
support claims be easy to garner. Whilst the equitable-redress
claim had to occur under the colour of law,
the adjudication process
had to be flexible under a court with ample jurisdiction and with a
strict and strong discretion to make
prompt and permissible choices,
provided they are just and equitable. These considerations and
more, point to a strict discretion
conferred only on the Land Claims
Court. This court is constrained not to interfere with that
court’s remedial determinations
unless they are shown to be
vitiated by decision-making.
[9]
There is no doubt from the language of the legislator that the Land
Claims Court has an exclusive jurisdiction pertaining to
land
restoration matters. The major debate is comparing the
exclusive jurisdiction of the Land Claims Court with the inherent
jurisdiction which the High Court has on matters in general.
[10]
Jerold Taitz in his book ‘
The Inherent Jurisdiction of the
Supreme Court
’ at page 1 states the following:
“
the
inherent jurisdiction of the Supreme Court may be described as the
unwritten power without which the Court is unable to function
with
justice and good reason. On the same breadth;
Celliers
et al The Practice of the High Courts in South Africa 5
th
Edition
page 49, provides that “The Superior Courts…have always
had inherent jurisdiction to make orders, unlimited as to
amount, in
respect of the matters that come before them, subject to certain
limitations imposed in some instances by common law,
but more often
by statute.
[11]
The inherent jurisdiction of the High Court is premised on common
law. This inherent power has also been endorsed by
the
Constitution. See section 173 of the Constitution.
Section
21(1)
of the
Superior Courts Act 10 of 2013
also provides that:
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 take cognisance,
and has the power-
(a)
to
hear and determine appeals from all Magistrates’ Courts within
its area of jurisdiction;
(b)
to
review the proceedings of all such courts;
(c)
in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.
[12]
The plaintiff’s argument that the High Court has jurisdiction
to enforce agreements, even those emanating from Land restitution
is
not 100% correct. In
Majeje
Traditional Authority v Mbhungala & Others
2
007
JOL 19030
T, judgment by Ledwaba J, the point in
limine
regarding jurisdiction was not upheld. In that matter the court
was dealing with an interdict and it was held that the relief
claimed
by the applicants fell within the jurisdiction of the High Court.
The land, in respect of which the interdict related,
was a subject of
the dispute before the Land Claims Court.
[13]
The outstanding difference between this case and the case above lies
in
section 22
(C) e) which reads thus:
‘
There
shall be a court of law 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;
(C)e)
to determine any matter involving the validity, enforceability,
interpretation or implementation of an agreement contemplated
in
section 14(3), unless the agreement provides otherwise’
[14]
The matter before court is a matter concerning the enforcement of an
agreement between Mdlankomo Moyeni Community and the defendants.
In
principle not all agreements are to be heard exclusively by the Land
Claims Court. It is only agreements contemplated
by section14
(3) of the Act. Section 14(3) of the Act reads thus:
‘
If
in the course of an investigation by the commission the interested
parties enter into a written agreement as how the claim should
be
finalised and the Regional land claims Commissioner having
jurisdiction certifies in writing that he or she is satisfied with
the agreement out not be referred to court, the agreement shall be
effective only from the date of such certification or such a
later
date as may be provided for in the agreement’.
[20]
This agreement before court was signed by two parties
i.e. Mdlankomo-Moyeni Community and the defendants. The cause
of
action is about the enforcement of an agreement referred to section
22 (C) e) of the Act. The same agreement was made in terms
of section
14(3) of the Act. The agreement was mentioned in the pleadings. The
agreement was indeed certified by the Regional Land
Claims
Commissioner Ms Faleni in terms of section 14(3) of the Act.
That appears in page 56 of the agreement.
[22]
The certification reads as follows:-
‘
The
Regional and Claims Commissioner for the Eastern Cape, Ms L. Faleni
will certify in writing as provided for in terms of section
14(3) of
Restitution of Land Rights Act, Act no.22 of 1994, as amended that
she is satisfied with the agreements entered into by
various parties
for the settlement of the Mdlankomo-Moyeni commonage claim and that
such agreements ought not to be referred to
Court, and such
agreements be effective from the date of signature by the parties (A
copy of 14 (3) certificate attached as Annexure
E)’
[23]
The certificate is not before court. The fact that certificate is
mentioned and was alleged to be attached as Annexure E proves
on
balance of probabilities that the certificates exist. It is not
necessary that the certificate must be produced before for this
court
to prove that the agreement was concluded under the auspices of
section 14(3) of the Act. The contract itself has referred
to
section 14(3) and specifically states that it was certified by the
Regional Land Claims Commissioner Ms Faleni.
[24]
Therefore this is a matter which exclusively falls under the
jurisdiction of the Land Claims Court in terms of section 22(C)
e) of
the Act, because it was an agreement in terms of section 14 (3) of
the Act.
[25]
The agreement was properly discovered by the plaintiff and the notice
was sent to the defendants. The defendants argued that
they never
received the agreement. Had the defendants seen this agreement in
time they should have noted this discrepancy earlier.
It is for that
reason this court is of the view that it should not to grant costs
against the plaintiff because both parties appear
to be at fault.
[26]
It is ordered that:
(a)
The action must be instituted before the Land Claims Court.
(b)
The action is dismissed on the ground of lack of jurisdiction but not
on the merits.
(c)
There is no order as to costs.
DUNYWA
AJ
ACTING
JUDGE OF THE HIGH COURT
Attorney
for the Plaintiff: Mr S. Zono
A.
S.
Zono & Associates
Plaintiff’s
Attorneys
Suite 153 –
1
st
Floor
ECDC Building
Mthatha
Counsel
for the Defendant: Adv V. Msiwa
Instructed
by
State Attorney
Broadcast
House
No.
94 Sisson Street
Fortgale
Mthatha
Matter
heard on:
27 November 2015
Judgment
delivered on:
10 December 2015