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[2024] ZAECMHC 46
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Mashiyi v Qhayiso and Others (1806/2019) [2024] ZAECMHC 46 (18 June 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 1806/2019
Reportable
Yes
In
the matter between:
MKHUSELI
MASHIYI
Applicant
and
NELISWA
QHAYISO & OTHERS
Respondents
JUDGMENT
NOTYESI
AJ
Introduction
[1]
In
Daniels
v Scribante & Another
[1]
Madlanga J read into the judgment the words attributed to an old man,
Mr Petros Nkosi. He later pronounced the question of
land as a
fundamental link to dignity. These are the words as they appear from
the judgment-
‘
The
land, our purpose is the land; that is what we must achieve. The land
is our whole lives: we plough it for food; we build our
houses from
the soil; we live on it; and we are buried in it. When the whites
took our land away from us, we lost the dignity of
our lives: we
could no longer feed our children; we were forced to become servants;
we were treated like animals. Our people have
many problems; we are
beaten and killed by the farmers; the wages we earn are too little to
buy even a bag of mielie-meal. We must
unite together to help each
other and face the Boers. But in everything we do, we must remember
that there is only one aim and
one solution and that is the land, the
soil, our world.’
[2]
Stripped in its essential features, the case is about the occupation
of land rights
[3]
The
land is described as Allotment No 9[...], M[...] Location, Ncise
Administrative Area, Mthatha (the land in question)
[2]
.
The applicant, Dr Mashiyi, a medical practitioner of Mthatha, in
essence, seeks an order declaring him to be the rightful holder
of
the right of access, use and occupation of the land in question. He
is relying upon two documents that he alleges were issued
to him by
the Department of Rural Development and Agrarian Reform (the
Department)
[3]
.
The first document is titled Confirmation Letter for Site No: 9[...]
M[...], Ncise A/A. The second document is a copy of
a register in
respect of allotted land.
[4]
It is not necessary to detail the
prayers sought by Dr Mashiyi. It suffices to say that they are for a
relief that is dependent
on or consequential to the grant of the
declaratory of rights. Dr Mashiyi alleges that he was allotted the
land by the traditional
leader of the area in 1998. He did not take
physical occupation of the land. In this regard, he believed that
once land is allotted
to a person, that allotment would constitute
occupation in perpetuity.
[5]
On or about May 2017, he discovered that the land allotted to him was
occupied by
the first respondent. According to him, he had never
granted permission or consent for the first respondent to occupy the
land.
He decided to take steps against the first respondent. During
the pleading stages, Dr Mashiyi discovered that the third respondent
had taken possession of the land from the first respondent. The third
respondent was building a residential dwelling. Dr Mashiyi
alleged
that he never granted consent or permission to the third respondent
to build his home over the land. According to Dr Mashiyi,
both the
first and third respondents’ claim of occupation over the land
is unlawful. Dr Mashiyi had contended that he is
entitled to be
declared as the only holder of rights over the subject land and that
the first and third respondents should be interdicted
from continuing
with the erection or building of structures.
[6]
The application is opposed by both the first and third respondents.
The basis of opposition
by the first respondent is that Dr Mashiyi
has unreasonably delayed the institution of the proceedings. In this
regard, the first
respondent contended that, although Dr Mashiyi’s
alleged allotment of the land took place in 1998, he failed to take
up possession
for a period of 19 years and further delayed the
institution of these proceedings for another period of approximately
2 years.
[7]
The first respondent submitted that Dr Mashiyi ought to have taken up
possession of
the land within a period of 6 months from the date of
the alleged allotment. He failed to do so. Secondly, Dr Mashiyi
became aware
of the first respondent’s occupation of the land
in 2017; and he only instituted the proceedings in 2019. On the
merits,
the first respondent disputed Dr Mashiyi’s rights over
the land. In this regard, she submitted that the land was allotted
to
her by the traditional leader of the area on or about 2013. The land
was vacant when it was allotted to her. She took occupation
of the
land after lawful allotment. On these bases, the first respondent
contended that she is the lawful holder of rights over
the land and
not Dr Mashiyi nor the third respondent.
[8]
The third respondent predicated his opposition to the application on
the basis that
he is the lawful holder of occupational rights over
the land. According to the third respondent, he purchased the land
from the
family of the late Mthobeli Ndamase. Mthobeli Ndamase had
been lawfully allotted the land by Chief Gwebelinyaniso Makaula. He
alleged
that on purchasing the land from the family, he was furnished
with proof of the deceased’s occupational rights. The proof
consists of a document issued by the Department. The third
respondent, further alleged that the transfer of land rights to
him
was confirmed by Chief Makaula. Relying on the documents from the
Department and proof from the Chief, the third respondent
contended
that both Dr Mashiyi and the first respondent had no rights over the
land and that he is the rightful holder of the occupational
rights in
respect of the subject land.
[9]
On 3 March 2022, Dr Mashiyi instituted an application for condonation
in respect of
the late institution and prosecution of his main
application. In the condonation application, he had contended that he
was not
aware of the occupation of the land by the first or third
respondents. He only became aware about the occupation of the land on
17 May 2017. Upon being aware of the occupation of his land, he
immediately took steps by approaching the head of the traditional
council and engaging the services of attorneys. According to Dr
Mashiyi, he first launched legal proceedings on 18 March 2018,
although that case was later withdrawn.
The
issues for determination
[10]
The following issues must be determined by this Court, the first - is
whether the applicant unreasonably
delayed the institution of the
proceedings and whether such delay should be condoned; the second is
whether the applicant has made
out a case for the grant of the
declaratory; and finally, costs for the application.
Common
cause facts
[11]
Each of the contesting parties to these proceedings claims exclusive
holding rights of occupation
in respect of the land in question.
All the parties allege that the land in question was allotted to each
of them by the
chief of the area. Both Dr Mashiyi and the third
respondent are in possession of confirmation documents from the
Department. In
respect of Dr Mashiyi, his confirmation was issued on
22 March 2017. For the third respondent, a similar document had
already been
issued on 11 January 2017. These facts I find
perplexing.
First
respondent’s case
[12]
The case of the first respondent is simple and straightforward.
First, she raised the defence
of unreasonable delay. In this regard,
the first respondent alleged that Dr Mashiyi was allegedly allotted
the land in 1998. From
the time of the alleged allotment, Dr Mashiyi
never developed the land nor did he take occupation or even fenced in
the land. According
to the first respondent, Dr Mashiyi was required,
according to the custom and practice of the area, to take possession
of the land
within a period of six months, failing which, the land
could be reallotted to other interested parties. According to the
first
respondent, she was allotted the land by the Chief of the area
in 2013.
[13]
The first respondent contended that Dr Mashiyi has unreasonably
delayed the launch of the proceedings
and challenged the decision of
the Chief to allot the land to her. The first respondent urged the
Court to refuse the declaratory
on the basis of unacceptable and
unreasonable delay. The first respondent maintained that the land was
lawfully allotted to her.
The first respondent alleged that she
applied for the land in question through the correct procedures.
Initially, she approached
the sub-headman of the area by the name of
Mr S Nkebe. Mr Nkebe was satisfied with the first respondent’s
application for
the land in question. Mr Nkebe recommended the name
of the first respondent to Chief Gobizizwe. Upon receipt of the
recommendation
from the sub-headman, Chief Gobizizwe approved the
application. The first respondent was allotted the vacant land.
The
third respondent’s case
[14]
The third respondent alleged that he was allotted the land by Chief
Gwebelinyaniso Makaula in
2020. He was issued confirmation of
allotment by the Chief on 6 June 2020. In this regard, the third
respondent relies on a document
issued by Chief Makaula. According to
the third respondent, the land was sold to him by the family of one
Mthobeli Ndamase. Mthobeli
Ndamase is deceased. When purchasing the
land, the family presented the third respondent with proof of
ownership issued by the
Department in favour of the late Mthobeli
Ndamase. The document is attached to the third respondent’s
answering affidavit.
According to the date stamp, the document was
issued on 11 January 2017 in favour of Mr Ndamase.
[15]
The third respondent alleges that he took possession of the vacant
land once the transaction
was concluded and approved by the Chief of
the area. The third respondent further alleged that he has been in
occupation of the
land from the date of sale. The third respondent
averred that his occupation of the land was public knowledge and it
was transparent.
The third respondent further alleged that he had
built dwellings and developed the land for his residential use. The
third respondent
denied that Dr Mashiyi or the first respondent had
any right over the land. He further pointed out that his permission
to occupy
was the most recent and that it was improbable for Dr
Mashiyi, who was allegedly allotted the land in 1998, to only obtain
his
permission to occupy on 22 March 2017. The third respondent
further pointed out that the register of the land, attached by Dr
Mashiyi,
is for the Kambi Administrative Area and not the Ncise
Administrative Area. On this basis alone, the third respondent urged
the
court to dismiss the application.
Legal
principles
[16]
When a declaratory order is sought, the applicant should state
clearly what rights, to which
he claims to be entitled, have been
infringed by the respondents. The applicant is expected to set out
those rights to which he
wishes the court to declare him to be
entitled. To succeed with the relief sought for a declaratory order,
the applicant must prove
–
‘
(a)
an actual, existing or future right or obligation with regard to
property; (b) an existing and
real dispute about that right or
obligation; and (c) a convincing reason why the Court should exercise
its discretion in the circumstances
to settle the dispute by granting
a declaratory order that sets out the parties’ respective
rights and obligations.’
[17]
This Court has wide discretion to decide whether or not to grant
declaratory relief. In this
regard the Court in
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[4]
confirmed a two-stage approach in considering whether or not to grant
declaratory relief; (i) the first is that the Court has to
be
satisfied that the applicant has an interest in an existing, future
or contingent right or obligation; (ii) once the Court is
satisfied
of the existence of such a condition, it will exercise a discretion
either to refuse or grant the order sought taking
into account all
the relevant facts.
[18]
The first respondent has raised the defence of undue delay. The
contention by the first respondent
is that Dr Mashiyi was allegedly
allotted the land in 1998. He took no steps that would have confirmed
possession of the land.
Dr Mashiyi appears to have only acted in
2017. The first respondent contended that she had acquired the land
in 2013 and therefore,
Dr Mashiyi has unduly delayed the challenge to
his possession of the land. The first respondent urged this Court to
refuse to entertain
the application. Whether the application should
be dismissed on this ground, is a question that has to be considered.
[19]
There is a longstanding rule of our common law that proceedings for
judicial review of the decisions
of public bodies must be instituted
without undue delay. If there has been an unreasonable delay, a court
may in the exercise of
its inherent power to regulate its own
proceedings, refuse to determine the matter. In this manner, an
invalid decision may, in
a sense, be validated. The reasons for the
rule are said to be two-fold.
[20]
First, it is desirable and important that finality should be reached
within a reasonable time
in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public
interest to allow such decisions or acts to be
set aside after an unreasonably long time has elapsed.
[21]
The second reason is the inherent potential for prejudice involved in
failure to bring a review
within a reasonable time, not only to a
party affected by the decision but also to the effective functioning
of the public body
in question and to third parties who may have
arranged their affairs in accordance with the decision. For this
reason, proof of
actual prejudice to the respondents is not a
precondition for refusing to entertain review proceedings by reason
of undue delay.
The extent of the prejudice is, however, a relevant
consideration and may be decisive when the delay has been relatively
slight.
[22]
The application of the rule requires answering of two questions,
namely – (a) was there
an unreasonable delay; and (b) If so,
should the unreasonable delay be condoned.
[23]
Although the first question implies a value judgment, it entails
factual enquiry. The second
question involves the exercise of
judicial discretion. Both questions must of course be answered in
light of the facts and circumstances
of the particular case. (See
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
[5]
;
Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie, en n Ander
[6]
;
Associated Institutions Pension Fund and Others v Van Zyl and
Others
[7]
;
Gqwetha v Transkei Development Corporation Limited
[8]
).
[24]
Whether there has been an unreasonable delay depends largely on the
extent of the delay and the
acceptability of the explanation
tendered, if any. In this regard, it may sometimes not be sufficient
to simply claim ignorance
of the decision. In
Associated
Institutions Pension Fund
, Brand JA said the following at para
[51] –
‘
In
my view, there is indeed a duty on applicants not to take an
indifferent attitude but rather to take all reasonable steps
available
to them to investigate the reviewability of administrative
decisions adversely affecting them as soon as they are aware of the
decision. These considerations are, in my view, also reflected in
both s 7(1) of PAJA and in the provisions of
s 12(3)
of the
Prescription Act 68 of 1969
. Whether the applicants in a particular
case have taken all reasonable steps available to them in compliance
with this duty, will
depend on the facts and circumstances of each
case. (Compare Drennan Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA).)’
[26]
The factors relevant to the exercise of the discretion to
nevertheless overlook an unreasonable
delay, include the extent of
the delay, the explanation therefor, any prejudice to the respondents
and/or third parties and the
nature of the impugned decision.
[27]
In
Khumalo
and Another v MEC for Education, KwaZulu-Natal
[9]
,
the following was said on behalf of the majority:
‘
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view, this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.’
[28]
In
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[10]
section
7(1)
of PAJA provides –
‘
(1)
Any proceedings for judicial review in terms of
section 6(1)
must be
instituted without unreasonable delay and not later than 180 days
after the date–
(a)
subject to subsection (2)(c), on which any proceedings instituted in
terms of internal remedies as contemplated in subsection
(2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action
and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.’
[29]
Further, in
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited,
[11]
the
court referred to the two-stage enquiry at common law and proceeded
to explain –
‘
Up
to a point, I think
s 7(1)
of PAJA requires the same two-stage
approach. The difference lies, as I see it, in the Legislature’s
determination of a delay
exceeding 180 days as per se unreasonable.
Before the effluxion of 180 days, the first enquiry in applying
s
7(1)
is still whether the delay (if any) was unreasonable. But after
the 180-day period, the issue of unreasonableness is pre-determined
by the legislature; it is unreasonable per se. It follows that the
court is only empowered to entertain the review application
if the
interest of justice dictates an extension in terms of
s9.
Absent such
extension the court has no authority to entertain the review
application at all. Whether or not the decision was unlawful
no
longer matters.’
[30]
As Dr Mashiyi is also seeking for condonation, it is trite that a
party seeking condonation is
asking for an indulgence of the court.
In such circumstances, it has become trite that the court must
exercise discretion judicially
on consideration of the facts of each
case and subject to the requirement that the applicant shows good
cause for the default.
In
United
Plant Hire (Pty) Ltd v Hill
[12]
the
Supreme Court of Appeal found that in essence, it is a question of
fairness to both sides.
[31]
In
Pieter
Westerman Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills
Cape
[13]
Jones
AJA held –
‘
The
authorities that it is unwise to give a precise meaning of the term
good cause. As Smallberger J put it in
HDS
Construction (Pty) Ltd v Wait
[14]
-
When
dealing with words such as “good cause” and “sufficient
cause” in other Rules and enactments the Appellate
Division has
refrained from attempting an exhaustive definition of their meaning
in order not to abridge or fetter in any way the
wide discretion
implied by these words (
Cairns’ Executors v Gaarn
1912 AD
181
at 186; Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A)
at 352-3)
. The Court’s discretion must be exercised after a
proper consideration of all the relevant circumstances.’
[32]
In
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[15]
,
the
Constitutional Court held that an applicant for condonation must give
a full explanation for the delay which must not only cover
the entire
period of the delay, but must also be reasonable. The factors
enumerated in the case are not individually decisive,
but are
interrelated and must be weighed one against the other, thus a slight
delay and a good explanation may help to compensate
for prospects of
success which are not strong.
[33]
The Supreme Court has warned against penalising a blameless litigant
on account of his attorneys’
negligence. However, in
Saloojee
and Another NNO v Minister of Community Development,
[16]
it was held –
‘
To
hold otherwise might have a disastrous effect upon the observance of
the Rules of this Court. Considerations
ad misericordiam
should not be allowed to become an invitation to laxity… The
attorney, after all, is the representative whom the litigant
has
chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the
litigant
should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure
are.’
[33]
Insofar as the parties have adduced evidence regarding their
competing rights to the subject
land, there was no application for
referral of the matter for hearing of oral evidence. In such
circumstances, if the material
facts are in dispute and there is no
request for the hearing of oral evidence, a final order will only be
granted on notice of
motion if the facts, as stated by the
respondents, together with the facts alleged by the applicant that
are admitted by the respondents,
justify such an order.
[17]
[34]
On these principles, I consider the parties’ submissions.
Submissions
by the parties
[35]
Dr Mashiyi had submitted that once the subject land was allotted to
him in 1998, irrespective
of whether or not he had assumed physical
possession, his possession of the land became protected under the
Interim Protection
of Informal Land Rights Act, 31 of 1996
(IPILRA).
[18]
Section 2(1) of the Act provides that subject to the provisions of
subsection (4), and the provisions of the Expropriation Act,
1975
(Act 63 of 1975), or any other law which provides for the
expropriation of land or rights in land, no person may be deprived
of
any informal right to land without his or her consent.
[36]
Dr Mashiyi had contended that Chief Gobizizwe and the first
respondent had no right to appropriate
the subject land and allocate
same to the first respondent without consulting him and accordingly,
their conduct was unlawful.
He contended that IPILRA was adopted to
protect those who held insecure tenure because of the failure to
recognise customary title.
In this regard, Mr
Jozana
had submitted that the purpose of the IPILRA is to provide temporary
protection ‘of certain rights to and interest in land
which are
not otherwise adequately protected by law; and to provide for matters
connected therewith.’ In advancing his contentions,
Mr
Jozana
relied on the cases of
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd
[19]
and
Baleni
and Others v Minister of Mineral Resources and Others
[20]
.
[37]
Insofar as Dr Mashiyi’s case against the third respondent, Mr
Jozana
had submitted that the allotment of the land to the
third respondent by Chief Gwebelinyaniso and the Ndamase family was
unlawful.
In this regard, Mr
Jozana
contended that Dr Mashiyi
was already protected by the provisions of the IPILRA which had
kicked in upon the allotment of the land
to him in 1998. The upshot
of the contention is that once the land was allotted to Dr Mashiyi,
whether he had assumed possession
or not, is immaterial. Dr Mashiyi’s
case, stripped to its essentials, was that his rights in terms of
IPILRA were infringed
by the first and third respondents by their
conduct of occupying the subject land irrespective of whether they
were granted occupational
rights by the relevant community. On that
basis, Dr Mashiyi had submitted that he was entitled to a declaratory
that he is seeking
and that an interdict should be issued against the
respondents. He disputed that there was a delay in the institution of
the proceedings
and that, in the event it being found that there is a
delay, he is seeking condonation to the extent of that delay.
[38]
On the contrary, the first respondent had contended that Dr Mashiyi
had unreasonably delayed
the institution of the proceedings. Mr
Dotwana,
who appeared for the first respondent, submitted that
Dr Mashiyi had never acquired any rights over the subject land which
could
be protected under IPILRA. The contention in this regard was
that Dr Mashiyi never took occupation of the subject land. The
essence
of the first respondent’s contention in this regard is
that the act of allotment, on its own, was not sufficient for the
purposes of IPILRA. It was submitted that Dr Mashiyi ought to have
taken possession of the subject land or at least must have taken
steps to show that he was occupying the subject land. Mr
Dotwana
relied on the custom of the community which, according to the first
respondent, is that a person who has been allotted the land
must take
possession within a period of 6 months, failing which, the land that
has been allotted, would revert to the traditional
authority for a
new allotment.
[39]
The first respondent submitted that in Dr Mashiyi’s own
version, the land was allotted
to him in 1998. He never took
possession of the site nor even fenced the land to mark it as his
own. The first respondent submitted
that Dr Mashiyi waited for a
period of 19 years before he could show any interest in the subject
land.
[40]
The third respondent submitted that Dr Mashiyi had no rights over the
land and that the IPILRA
does not apply to the case brought by Dr
Mashiyi. Mr
Tiya
, counsel for the third respondent, further
submitted that the third respondent was the lawful occupier of the
land. Mr
Tiya
, in this regard, relied on the documents issued
in favour of the third respondent by the Chief of the traditional
community.
[41]
Mr
Tiya
also relied on the documents that were issued in
favour of the late Mr Ndamase. The document relied upon by the third
respondent
was issued by the Department, according to the date stamp,
on 11 January 2017, which is three months earlier than the documents
relied upon by Dr Mashiyi. Mr
Tiya
contended that upon careful
consideration of the land register relied upon by Dr Mashiyi, it is
unquestionable that he was allotted
land at the Kambi Administrative
Area, not the Ncise Administrative Area. On this basis alone, Mr
Tiya
had urged this Court to dismiss the application.
[42]
Finally, Mr
Tiya
submitted that Dr Mashiyi has failed to refer
the matter on oral evidence insofar as the disputed facts. In this
regard, Mr
Tiya
pointed out that the third respondent is the
holder of permission to occupy; that the Chief of the area had
confirmed that the
third respondent was lawfully allotted the vacant
land; and that despite the existence of the dispute, Dr Mashiyi has
not sought
for the referral of the matter for oral evidence.
[43]
Mr
Tiya
urged the Court to apply the
Plascon Evans
principle. The counsel for the third respondent had also urged the
Court to have regard to the provisions of the IPILRA which recognises
the custom and tradition of the community. The third respondent
contended that on the basis of the traditional community, Dr Mashiyi
lost any rights that he could have had once the 6 months period
lapsed without taking possession of the allotted land or showing
any
further interest in developing the land.
Evaluation
and analysis
[44]
The first respondent had raised the question of undue delay. This is
a long-standing rule of
common law. The underlining principle of the
rule is that proceeding for judicial review must be instituted
without undue delay.
Whether there has been an unreasonable delay,
depends largely on the delay and acceptability of the explanation
tendered, if any.
In this regard, it may sometimes not be sufficient
to simply claim ignorance of the decision.
[45]
Dr Mashiyi had alleged that he was allotted the land in 1998. He
confirmed that he did not take
physical possession of the allotted
land. It does not appear to this Court that he assumed some form of
any possession in the sense
that he would fence the land or place any
of his identifying markings. Dr Mashiyi has not filed any affidavit
by the Chief of the
area to confirm that the land was allotted to
him. The Chief who allegedly allotted the land to Dr Mashiyi is
deceased.
[46]
In explaining his indifferent attitude regarding taking of possession
of the land, Dr Mashiyi
stated that he held a view that the
allotment, once effected, it becomes in perpetuity. At this stage, I
propose to quote the necessary
averment from his affidavit–
‘…
.I
did not act on the allotment in terms of developing it because I held
the view that the allotment, once effected, is in perpetuity.
I may
also indicate that I am of the view that application for condonation
for inaction regarding the period 1998 to 2016 is unnecessary
because
there was no interference with my rights on the allotment until May
2017. The alleged re-allocation of this allotment in
2013 to Mthobeli
Ndamase came to my attention only when the third respondent filed his
answering affidavit in the main application
on 20 October 2021. I was
unaware of it, hence my inaction.’
[49]
In
Associated Institutions Pension Fund
Brand J held –
‘
In
my view there is indeed a duty on applicants not to take an
indifferent attitude but rather to take all reasonable steps
available
to them to investigate the reviewability of administrative
decisions adversely affecting them as soon as they are aware of the
decision. These considerations are, in my view, also reflected in
both s 7(1) of PAJA and in the provisions of
s 12(3)
of the
Prescription Act 68 of 1969
. Whether the applicants in a particular
case have taken all reasonable steps available to them in compliance
with this duty, will
depend on the facts and circumstances of each
case. (Company Drennan Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200(SCA).)
’
[50]
In my view, it should not be enough for a litigant to rely on
ignorance of a decision in circumstances
where the existence of the
decision would have become known by the taking of reasonable steps in
the circumstances. The Court should
determine whether the existence
of a decision would have been uncovered by the taking of reasonable
steps in the particular circumstances
and the period of delay should
be reckoned from that date, event or period.
[21]
The factors relevant to the exercise of the discretion to overlook an
unreasonable delay, include the extent of the delay, the
explanation
therefor, any prejudice to the respondent or third parties and the
nature of the impugned decision.
[51]
It is undisputed that the third respondent had purchased the land
from the family of Mthobeli
Ndamase. Mr Ndamase is now late. The
third respondent was furnished with proof of entitlement by the late
Mr Ndamase to the land.
The document attached by the third respondent
was issued by the Department of Agriculture on 11 January 2017. The
Chief of the
area, Gwebelinyaniso Makaula, confirmed to the third
respondent that indeed, the late Mr Ndamase was the occupant of the
land that
he was purchasing. It was confirmed by the Chief that the
land had been allotted to the late Mr Ndamase in 2013. The third
respondent
has built residential dwellings over the land. The third
respondent is the occupier of the land.
[52]
On the other hand, Dr Mashiyi, who was allegedly allotted the land in
1998, had adopted a supine
attitude for a period of 19 years. In his
own version, he never took possession of the land for the purpose of
developing it. He
never identified the land with his own markings or
any other form of identification. Dr Mashiyi, in my view, had lost
interest
in the subject land and his interest was only revived when
he, by chance, saw certain persons working over the land during 2017.
That is when his interest was revived. Unquestionably, this is a
delay of approximately 19 years, many times more than the period
of
180 days.
[53]
The actions of Dr Mashiyi must be viewed against the customs or
traditions of the area. The first
respondent has alleged that the
custom of the area is that a person who has been allotted land at
Ncise Administrative Area, such
person must take up possession of the
land within a period of six months, failing which the land must be
reallocated to the next
person. In this regard, I quote from the
first respondent’s answering affidavit –
‘…
In
this particular matter, the applicant claims in paragraph 9 of his
founding affidavit, to have been allocated a land during or
around
1998. The applicant then failed to take up possession of the land
until a period of six months elapsed since he was allocated
the land
with the result that the land reverted to the traditional authority
to deal with it as it considered appropriate.’
[54]
Dr Mashiyi did not dispute in his replying affidavit the allegations
that once a person failed
to take up possession of the allotted land
within a period of six months, the land will revert to the
traditional authority for
reallocation. In these proceedings, there
is no attack regarding the legality of the practice. I do accept, on
the principles of
Plascon Evans
, that the land had reverted to
the traditional authority after the period of six months when Dr
Mashiyi had failed to take any
steps of occupying the land. In my
view, this is a sound policy for the community in managing their land
affairs.
[55]
In terms of
s 2(1)
of the IPILRA, no person may be deprived of any
informal right to land without his or her consent. An informal right
to land is
defined as the ‘use of, occupation of, or access to
land in terms of (i) any tribal, customary, or indigenous law or
practice
of a tribe; (ii) the custom, usage or administrative
practice in a particular area or community, where the land in
question at
any time vested in – the Government of the former
Republic of Transkei, Bophuthatswana, Venda and Ciskei.’
[56]
In
Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty)
Limited and Another
at paras 95 and 96, the court held –
‘
As
is manifest from its preamble, IPILRA seeks to provide for the
protection of certain rights to and interest in land that were
previously not otherwise protected by law. To provide such
protection, IPILRA ensures that communities have a right to decide
what should happen to land in which they have an interest. It
offers communities legal protection to assume control over
and deal
with their land according to customary law and usages practiced by
them.
Most
significantly, IPILRA provides that no person may be deprived of any
informal right to land without his or her consent.
[22]
Where land is held on a communal basis, a person may be deprived of
such land or right in land in accordance with the custom
or usage of
the community concerned, except where the land in question is
expropriated.’
[57]
Dr Mashiyi was not deprived by the respondents of any of his
occupational rights over the land.
The respondents were allotted the
land by the traditional authority of the community. The third
respondent has produced enough
evidence of his allotment of the land.
The question of deprivation was considered by the Court in
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
, where it was held –
‘
A
somewhat curious feature of IPILRA is that whilst it provides that no
person may be deprived of any informal right to land without
consent,
it does not itself spell out what constitutes a deprivation.
The Concise Oxford English Dictionary defines the verb
“deprive”
as meaning: “Prevent (a person or place) from having or using
something”.
[23]
The noun “deprivation” is defined as: “The damaging
lack of basic material benefits; lack or denial of
something
considered essential”. This, to my mind, is the
definition that should be adopted for purposes of
section 2
of
IPILRA.
Whether
there has been a deprivation in any given case, said Yacoob J in
Mkontwana,
depends—
“
on
the extent of the interference with or limitation of use, enjoyment
or exploitation….at the very least, substantial interference
or limitation that goes beyond the normal restrictions on property
use or enjoyment found in an open and democratic society would
amount
to deprivation.”
[24]
Before
Mkontwana,
this Court had earlier, in the context of section
25(1) of the Constitution, said that:
“
In
a certain sense any interference with the use, enjoyment or
exploitation of private property involves some deprivation in respect
of the person having title or right to or in the property concerned.”
[58]
It is common cause that Dr Mashiyi has never occupied the land in
question for a period of at
least 19 years. He has never fenced nor
developed the land. In my view, Dr Mashiyi knew or ought to have
known the customs and
traditions of the community regarding the
occupation of the allotted land. The common cause facts are that once
a person is allotted
land, he must take possession within a period of
six months. Dr Mashiyi did not do so and therefore he must accept the
consequences.
[59]
The explanation proffered by Dr Mashiyi for his indifference is so
poor and I find that unacceptable.
Dr Mashiyi, although advised that
the land was allotted to the first and third respondents in 2013,
simply gives no explanation
for the period before 2017. In his
amended notice of motion, he failed to challenge the decision of the
Chief to reallot the land.
In my view, that decision remains valid
until it is set aside. On the existence of the decision to allot the
land, the relief sought
can simply not be granted, even if the delay
was overlooked.
[60]
It must follow from what I have said in the previous paragraphs that
there is no acceptable explanation
for the delay and accordingly,
there has been unreasonable delay in launching this application.
[61]
I proceed to deal with the question of whether the delay should be
condoned. The period of the
delay for 19 years is excessively long
and there was no satisfactory explanation. The prejudice to the third
respondent is manifest.
The third respondent has constructed his
residential dwellings. This Court must also make this remark, the
third respondent purchased
the land from the Ndamase family on the
strength of objective evidence in the form of permission to occupy
and the confirmation
by the Chief of the area. He proceeded to
arrange his life on the basis that the land was lawfully allotted to
the deceased, the
late Mr Ndamase, during 2013. Had Dr Mashiyi acted
timely, the third respondent would not have purchased the property in
2020.
To overturn the present position, would be grossly prejudicial
to the third respondent.
[62]
This Court accepts that if Dr Mashiyi had taken possession of the
allotted land during 1998,
he would have enjoyed the protection under
section 2(1) of the IPILRA. In the absence of evidence that the
deprivation was in accordance
with the customs and traditions of the
community, the conduct of allotment of the land to the first or third
respondents would
have been unlawful. In such a case, the decision
would have been contrary to section 33 of the Constitution and
section 2(1) of
IPILRA. Only in that context, the prospects of
showing the existence of the alleged rights of Dr Mashiyi must be
considered.
[63]
Dr Mashiyi has attached, in his founding papers, documents upon which
he relies for proving his
alleged right of possession, that which
would entitle him to a declaratory order that he is the rightful
holder of the right of
access, use and occupation of the land in
accordance with the provisions of IPILRA.
[64]
The immediate difficulty with his evidence is that although he
alleges that the land was allotted
in 1998, the permission to occupy
it he relies upon was only issued on 22 March 2017. This is a period
of two months after the
land had already been allotted to Mr Ndamase.
The other striking feature is that the land register that Dr Mashiyi
relies upon
contains contradictory material. In the first page of the
document, it is suggested that the land in question is under Kambi
Administrative
Area. Dr Mashiyi’s case is in relation to land
in the Ncise Administrative Area. There was no evidence to link up
these two
different administrative areas. Mr
Jozana
, counsel
for Dr Mashiyi, conceded that the land register is not in support of
his case. The Chief who allegedly allotted the land
to Dr Mashiyi is
deceased. This Court had no evidence upon which it could find in
favour of Dr Mashiyi. I agree with the submissions
by Mr
Tiya
that Dr Mashiyi has failed to make out a case regarding the
occupational rights of the disputed land.
[65]
The court has wide discretion to decide whether or not to grant
declaratory relief. In this regard
the court in
Cordiant
Trading
CC
v
Daimler Chrysler Financial Services (Pty) Ltd
[25]
confirmed
a two-stage approach in considering whether or not to grant
declaratory relief: (i) the first is that the court has to
be
satisfied that the applicant has an interest in an existing, future
or contingent right or obligation; (ii) once the court is
satisfied
of the existence of such a condition, it will exercise a discretion
either to refuse or grant the order sought.
[26]
Declaratory orders are discretionary
[27]
and flexible as the Court pointed out in
Rail
Commuters Action Group and Others v Transnet Ltd TIA Metrorail and
Others-
‘
[107]
It is quite clear that before it makes a declaratory order a court
must consider all the relevant circumstances. A declaratory
order is
a
flexible
remedy
which can assist
in
clarifying
legal and constitutional obligations in a manner which promotes the
protection and enforcement of our Constitution and
its
values.
Declaratory orders, of course, may be accompanied by other forms of
relief, such as mandatory or prohibitory orders, but
they may also
stand on their own. In considering whether it is desirable to order
mandatory or prohibitory
relief
in
addition
to
the declarator, a court will consider all the relevant
circumstances."
[28]
[66]
Having regard to the context of the present dispute, I am of the view
that the declaratory relief
should be declined. When regard is given
to the various factors, there is no live dispute between the parties.
The application
ought not to have been launched by way of motion
proceedings. There is a huge dispute of facts on Dr Mashiyi’s
own version.
The first and third respondents were allotted the land
by the Chief. It is not a question of land grabbing. Dr Mashiyi was
made
aware of these disputes, or at the very least, ought to have
foreseen the existence of the dispute, nonetheless, he proceeded by
way of motion proceedings. He has failed to prove any right to the
land in view of the fact that he has never taken possession
of the
land. He relied on documents that did not support his case. Dr
Mashiyi’s alleged right to occupy the land was prescribed
six
months after his allotment, of which he failed to take possession.
Costs
[67]
I cannot think of any good reason, and none has been suggested, as to
why the costs should not
follow the results. The general rule is that
costs should follow the event and I will follow that rule. The first
and third respondents
have successfully opposed the application and
are entitled to their costs, including all costs previously reserved.
Order
[68]
In the result, I make the following order –
(1)
The application is dismissed.
(2)
The applicant is ordered to pay the costs of the first and third
respondents.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant:
Mr
Jozana
Instructed
by:
B
Makada Incorporated
Mthatha
Counsel
for the First Respondent:
Mr
Dotwana
Instructed
by:
Legal
Aid South Africa
Mthatha
Counsel
for the Third Respondent:
Mr
Tiya
Instructed
by:
Zincedile
Monde Tiya Inc
Mthatha
Heard
on:
28
March 2024
Judgment
Delivered on:
1
8
June 2024
[1]
Daniels
v Scribante & Another 2017 (4) SA 341 (CC).
[2]
Allotment
No 9[...], M[...] Location, Ncise Administrative Area, Mthatha.
[3]
The
Department of Rural Development and Agrarian Reform.
[4]
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6)
SA 205
(SCA);
[2006] 1 All SA 103
at para 18.
[5]
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 38H-42D.
[6]
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n
Ander
1986 (2) SA 57
(A) at 86A-G.
[7]
Associated Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) at paras 46 – 48.
[8]
Gqwetha v Transkei Development Corporation Limited [2006] 3 All SA
(245) at paras 22 – 24.
[9]
Khumalo and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA
579
(CC)
at
para 57.
[10]
Opposition to Urban Tolling Alliance v South African National Roads
Agency Limited
[2013] 4 All SA 639
(SCA) at paras 23 – 26.
[11]
supra
note 10
at
para 26.
[12]
United Plant Hire (Pty) Ltd v Hill,
1976 (1) SA 717
(A) at 720 E-G.
[13]
Pieter Westerman Colyn v Tiger Foods Industries Ltd t/a Meadow Feed
Mills Cape, 2003 (6) SA 1 (SCA)
[14]
HDS Construction (Pty) Ltd v Wait, 1979 (2) SA 298 (C)
[15]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
; ,
2008 (2) SA 472
(CC) at 477E
[16]
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A) at 141C-E
[17]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634
[18]
Interim Protection of Informal Land Rights Act, 31 of 1996
[19]
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd
2019
(2) SA 1 (CC)
[20]
Baleni
and Others v Minister of Mineral Resources and Others
2019
(2) SA 453 (GP)
[21]
Mandela
v The Executors of Estate Late Nelson Rolihlahla Mandela and Others
[2016]
2 All SA 833
at para 17
[22]
Section 2(1)
[23]
Fowler & Fowler (eds.)
The
Concise Oxford Dictionary
12 ed (Oxford University Press, 18 August 2011) at 468
[24]
Mkontwana
above n 58 at para 32
[25]
2005 (6) SA 205 (SCA).
[26]
Cordiant: "[18]."
[27]
J T
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) at 525A.
[28]
[2004] ZACC 20
;
2005 (2) SA 359
(CC).