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[2024] ZALMPPHC 58
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Batau Ba-Nkwana Traditional Authority and Another v Premier of the Limpopo Provincial Government and Others (7181/2021) [2024] ZALMPPHC 58 (11 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
DATE:
10/06/2024
MV
SEMENYA DJP
CASE
NO. 7181/2021
In
the matter between:
BATAU
BA-NKWANA TRADITIONAL
FIRST
APPLICANT
AUTHORITY
IDA
MODIKISHENG NKWANE
SECOND
APPLICANT
and
THE
PREMIER OF THE LIMPOPO
FIRST
RESPONDENT
PROVINCIAL
GOVERNMENT
THE
CHAIRPERSON OF THE LIMPOPO
SECOND
RESPONDENT
PROVINCIAL
COMMITTEE ON
TRADITIONAL
LEADERSHIP DISPUTES
AND
CLAIMS
MEMBER
OF THE EXECUTIVE
THIRD
RESPONDENT
COUNCIL
FOR CO-OPERATIVE
GOVERNANCE
AND HUMAN
SETTLEMENT
AND TRADITIONAL
AFFAIRS
LIMPOPO PROVINCE
BAPEDI
BA-DIKWANYANE TRIBAL
FOURTH
RESPONDENT
AUTHORITY
REGISTRAR
OF DEEDS: POLOKWANE
FIFTH
RESPONDENT
JUDGMENT
SEMENYA
DJP.
[1]
The issue in this application is whether this court has jurisdiction
to review and set aside the
decision of the erstwhile Lebowa
Government, to transfer the property known as The Farm California 228
KT, measuring 5396.2886
hectares (the Farm) to the
manner
in which the property was transferred to the fourth respondent in
this application.
[2]
It is common cause that the dispute regarding the question as to who
the rightful traditional
leader of the Farm is, that existed between
the applicants and the fourth respondent, has since been resolved by
the second respondent.
The second respondent concluded that the
traditional leadership of the Farm lies with the applicants. The
fourth respondent has
not challenged that decision, and, in
accordance with the principle laid down in
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
[1]
,
the
decision remains valid and stands.
[3]
Notwithstanding the fact that the issue of traditional leadership has
been resolved in their favour,
the applicants are unable to rule over
the community of the Farm on the basis that it is still registered in
the names of the fourth
respondent. It is on account of this
remaining issue that the second and third respondents could not
finalise the appointments
of the applicants as traditional leaders of
the Farm. The fourth respondent’s entitlement over the Farm
stems from the Deed
of Transfer number T30[…]. It is not in
dispute that the Farm was transferred to the fourth respondent by the
then Lebowa
Government in 1994 by way of a grant.
[4]
The applicants contend that the reason
(causa)
for the
transfer as it appears on the Deed of Transfer and the condition for
transfer are questionable and do not accord with the
legislation
under which the transfer was done.
[5]
The fourth respondent is the only party that opposes the application
and has raised a point
in limine
that this court has no
jurisdiction to entertain the issues between the parties. The fourth
respondent submits that it is the Land
Claims Court that has
exclusive jurisdiction to hear the matter.
[6]
The fourth respondent contends that Bapedi Ba-Dinkwanyane have been
in occupation of the land
since 1956 and have possessed it openly as
the owner and/or as if they are the owner thereof. The fourth
respondent submits that
the erstwhile Lebowa Government made a Grant
to them in terms of section 20(1) and 20(2) of the Upgrading of Land
Tenure Rights
Act, 112 of 1991. In the alternative, the fourth
respondent argue that it has acquired the Farm by acquisitive
prescription in
terms of
section 1
of the
Prescription Act 68 of
1969
.
[7]
The fourth respondent relies on the Constitution of the Republic of
South Africa, 1996 (the Constitution,
the Restitution of Land Rights
Act
[2]
(the
Restitution Act), among other legislation, in support of its point
in
limine.
Section
25(7) of the Constitution provides
as
follows:
"A person or
community dispossessed of property after the 19 June 1913 as a result
of past racially discriminatory laws or
practices is entitled, to the
extent provided by an Act of Parliament, either to restitution of
that property or to equitable redress."
[8]
The Restitution Act was promulgated to give effect to section 25 of
the Constitution. Its long
title states that it is enacted to provide
for the restitution of rights in land to persons or communities
dispossessed of such
rights after 1913, as a result of past racially
discriminatory laws or practices, to establish a Commission on
Restitution of Land
Rights as well as the Land Claims Court. The
Function of the Commission is to process restitution claims and that
any claim that
the Commission is unable to resolve may be referred to
the Land Claims Court.
[9]
Section 22 (1) of the Restitution Act provides for the establishment
of Land Claims Court which
shall have the power to determine a right
to restitution of any right in land to the exclusion of any court
contemplated in section
166 (c) of the Constitution.
[10]
At first glance,
one may think that the
legislation referred to above is not applicable to the facts of this
case in that they refer to land which
has
been
dispossessed
due
to racially
discriminatory
laws, which
may appear
not to be the case in this matter.
However,
the position is not that simple. The applicant relies on the report
of the second respondent which is annexed to the founding
affidavit.
[11]
In paragraph 1 of the report, which deals with the background of the
applicant's
claim, the following is stated:
"The Batau ba
Ga-Nkwana (the applicants) was the first to occupy Leboeng
(California 228 KT) and Nooitgedacht 227 KT) during
1879 as senior
traditional leaders. Their senior traditional leadership was lost in
1956 when Kgoshigadi Dinkwanyane Victoria was
relocated to
Sterkspruit farm from Boomplaats in Lyndenburg. Sterkspruit is the
farm adjacent to Californiafarm of Nkwana. Two
years after such
relocation, in 1958, Dinkwanyane was recognized by the apartheid
government as the only Kgoshi of the whole area.,
including Nkwane’s
California and Nooitgedacht…”
[12]
On paragraph
8.7,
the
second respondent
states
that
it
has
noted
that in Sekhukhune
District,
sharing of jurisdiction on one
land
by two or more
traditional
leaders is not uncommon and that kgoshi Nkwana was chastised by the
apartheid government for supporting kgoshikgolo
Sekhukhune's
resistance to apartheid rule.
[13]
The information in the report of the second respondent clearly shows
that the issue of land is closely related to the policies
of the
apartheid government. The Lebowa Government is not the first
government to dispossess the applicant of their right California
farm. It started with the apartheid government. In any event, the
Lebowa Government was a product of the apartheid policies. It
was its
creature.
[14]
I agree with the fourth respondent that it is the Commission on
Restitution of Land Rights which is best
suited to deal with the
applicants’ claim. Furthermore, in terms of section 36 of the
Restitution Act, it is the Land Claims
Court which is clothed with
the jurisdiction to review the decision of the Commission, the
Minister or any functionary acting in
terms of the Act. This court’s
jurisdiction on matters of this nature has been expressly excluded by
section 22 of the Restitution
Act.
[15]
On costs, I find no reason to deviate from the general rule that the
winner is entitled to costs. The fourth
respondent is entitled to
costs of the application.
[16]
In the result I make the following order:
The fourth respondent's
point
in
limine
of lack of jurisdiction Is upheld with
costs.
M
V SEMENYA
DEPUTY
JUDGE PRESIDENT
LIMPOPO
DIVISION.
APPEARANCES
For
the applicants:
Adv
George Diamond
Instructed
by:
Diamond
Inc
For
the respondent:
Adv B
F Gededger
Instructed
by:
Mmala
Attorneys.
Heard
on
06 March 2024
Delivery:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via email and
release to SAFLII.
The date and time of hand-down is deemed to be the
11 June 2024
at
11:00
[1]
2010
(1) SA 333
(SCA)
[2]
22
of 1994