THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1203/2021, 1334/2021 & 261/2022

In the matter between:
MLULEKI MARTIN CHITHI FIRST APPELLANT
DLUDLU ATTORNEYS SECOND APPELLANT
MC NTSHALINTSHALI ATTORNEYS THIRD APPELANT

IN RE:
MAVUNDULU COMMUNITY CLAIMANT
and
MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM FIRST RESPONDENT
REGIONAL LAND CLAIMS COMMISSIONER SECOND RESPONDENT
DJ SCHEUER FARMING CC THIRD RESPONDENT
LOUIS MEYER MANFRED FAMILY TRUST FOURTH RESPONDENT
MANFRED MARTIN HILLERMAN FIFTH RESPONDENT
HERMAN THEODOR MEYER SIXTH RESPONDENT
EVANGELICAL LUTHERAN CHURCH-
NEW HANOVER SEVENTH RESPONDENT
HOPEWELL TRUST EIGHTH RESPONDENT

2
ROLF MATTHEW SCHRODER NINTH RESPONDENT
UHLMANN FAMILY TRUST TENTH RESPONDENT
PEGMA TWENTY-SIX INVESTMENTS
(PTY) LIMITED ELEVENTH RESPONDENT
MANFRED VICTOR SCHRODER TWELFTH RESPONDENT
WOERNER TRUST THIRTEENTH RESPONDENT
WHITE THORN TRUST FOURTEENTH RESPONDENT
RM MARK FAMILY TRUST FIFTHTEENTH RESPONDENT
WITTENMOUTAIN TRUST SIXTHTEENTH RESPONDENT
MANFRED MEYER FAMILY TRUST SEVENTEENTH RESPONDENT
WERNER MEYER FAMILY TRUST EIGHTEENTH RESPONDENT
WERNER MARK REDINGER NINENTEETH RESPONDENT
AMBLESIDE MEATS CC TWENTIETH RESPONDENT
BRIAN BASIL MITROPOULUS TWENTY-FIRST RESPONDENT
TMJ INVESTMENTS 15 CC TWENTY-SECOND RESPONDENT
DROGEMOLLER LIFE &
SHORT-TERM BROKERS CC TWENTY-THIRD RESPONDENT
ROLAND GERHARD FRENZEL TWENTY-FOURTH RESPONDENT
COCOHAVEN 1057 CC TWENTY-FIFTH RESPONDENT
ROYHEATH RAMDEWU
AND REETHA RAMDEWU TWENTY-SIXTH RESPONDENT
UCL CO-OPERATIVE LTD TWENTY-SEVENTH RESPONDENT
MOOIZICHT TRUST TWENTY-EIGHTH RESPONDENT

Neutral citation: Mluleki Martin Chithi and Others v Minister of Rural Development and
Land Reform and Others (1203/2021, 1334/2021 & 261/2022) [2024]
ZASCA 149 (4 November 2024)
Coram: ZONDI, HUGHES and MATOJANE JJA and SEEGOBIN and KEIGHTLEY
AJJA

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Heard: 19 February 2024
Delivered: 4 November 2024
Summary: Land claims – restitution of land – Restitution of Land Rights Act 22 of 1994
– claim for restitution of land on grounds of being a ‘community’ as defined in the
Restitution Act – question decided separately from other issues in terms of rule 57(1) of
the Land Claims Court Rules – allegation of lack of judicial independence in the conduct
of the trial proceedings. Application for recusal of presiding judge unfounded.
Civil procedure – costs – adverse costs order – disallowed fees of legal practitioner s –
whether conduct of legal practitioner s in the trial was vexatious, frivolous and an abuse
of court process for persisting with claim in light of precedent contrary to success thereof.

4

ORDER
On appeal from: Land Claims Court , Randburg ( Canca AJ, sitting as court of first
instance):
1 The appeal under case number 1203/2021 against the order of the Land Claims Court
dismissing the Mavundulu Community’s land claim is dismissed with no order as to
costs.
2 The appeal under case number 1334/2021 against the order of the Land Claims Court
disallowing the fees of the first to third appellants in the matter and directing them to
repay the fees they had already received from the state is upheld with no order as to
costs.
3 The appeal against the costs order in respect of the recusal application under case
number 261/2022 is dismissed with costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Zondi JA ( Hughes and Matojane JJA and Seegobin and Keightley AJJA
concurring):
[1] These three consolidated appeals are against the following orders of the Land
Claims Court, Randburg (LCC) issued by Canca AJ:
(a) The appeal under case number 1203/2021 is against the judgment delivered on 25
May 2020, dismissing the Mavundulu Community appellants’ claim for the restitution of
rights in land on the grounds that they were not a ‘community’ as defined in the Restitution
of Land Rights Act, No 22 of 1994 (Restitution Act).1 In dismissing the claim, the learned
Acting Judge disallowed, in full, the first to third appellants’ fees in the entire matter and
ordered them to repay the fees that had already been paid to them by the relevant entity

1 Leave to appeal was granted by this Court on 11 November 2021.
______________________________________________________________________

5
that funded the litigation on behalf of the State. This forms the subject of the second
appeal under case number 1334/202.2
(b) Dissatisfied with the costs order against them , the first to third appellants (the legal
practitioner appellants) applied for leave to appeal against it. Before the application for
leave was argued, the legal practitioner appellants brought an application for the recusal
of Canca AJ. H e dismissed the application for his recusal and ordered the legal
practitioner appellants to pay the third to twenty seventh respondents ’ ( landowner
respondents) costs. Th is forms the subject of the third appeal under case number
261/2022.3

Background
[2] The appeals concern a claim that was lodged by the Mavundulu Community
(Community appellants/claimants) for the restitution of rights in land of which they were
allegedly dispossessed in terms of the Restitution Act (land claim). The land claim was
lodged on behalf of the Community claimants on 30 December 1998 by Mr Sipho
Cebekhulu. He was authorized to do so by the Community claimants in terms of a
resolution dated 9 August 1998. The claimed land comprises certain portions/sub -
divisions of the farm Spitzkop No. 1129 (Spitzkop) and Mooiplaats No. 1315 (Mooiplaats),
situated in the Magisterial District of New Hanover, KwaZulu -Natal. The Regional Land
Claims Commissioner: KwaZulu -Natal accepted and investigated the claim as a
community claim. The claim was accepted in terms of s 11 of the Restitution Act by
publication in the Government Gazettes of 29 November 1996 and 1 August 2001.

[3] During October 2017 , the Community claimants, whilst the determination of the
community claim was underway, added individual claims as an alternative to the
community claim. On 31 March 2020 , the LCC dismissed the individual claim s on the
basis that the y were not lodged by 31 December 1998 and w ere not supported by
evidence. The dismissal of the alternative claims was correc t as an individual claim

evidence. The dismissal of the alternative claims was correc t as an individual claim

2 Leave to appeal was granted by Canca AJ on 16 August 2021.
3 Leave to appeal was granted by this Court on 2 March 2022.

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cannot be introduced by way of amendment.4 So, what remained was the Community
claim which had been duly accepted, published and investigated.

[4] As already mentioned, the claimed land relates to some portions of the two farms,
namely farm Mooiplaats No 1315, which was granted to a Mr Cornelius J Laas in March
1853, and the farm Spitzkop No 1129, which was granted to a Mr Cornelius J G Vermaak
in May 185 1. The farms were granted to them by the British government following its
annexation of the then Natal in 1842 . The farms underwent certain su b-divisions and
changed ownership over the years, in particular, prior to 1913 and thereafter.

[5] The third to twenty -eighth respondents are the landowner respondents. The first
and second respondents (the State respondents) are the Minister of Agriculture, Rural
Development and Land Reform (the Minister) and the Regional Land Claims
Commissioner, KwaZulu-Natal (RLCC), respectively. The State respondents did not
appeal against the finding of the LCC that the existence of a community had not been
proved and the associated costs order.

[6] Mr Mluleki Martin Chithi (the first appellant) (Mr Chithi) , Dludlu Attorneys (the
second appellant) and MC Ntshalintshali Attorneys (the third appellant) were the legal
representatives of the Community claimants. The second and third legal prac titioner
appellants were appointed to represent the Community claimants in terms of s 29(4) of
the Restitution Act5 and they instructed the first appellant as counsel.

[7] During the hearing in the LCC in March 2020, at the close of the Community
claimants’ case (and that of the State respondents), Canca AJ ordered the separation of

4 Minister of Agriculture, Land Reform and Rural Development and Others v Ndumo (obo Emdwebu
Community) [2023] ZASCA 136.
5 Section 29(4) of the Restitution Act provided as follows:
‘Where a party cannot afford to pay for legal representation itself, the Chief Land Claims Commissioner

may take steps to arrange legal representation for such party, either through the State legal aid system or,
if necessary, at the expense of the Commission.’

7
issues in terms of rule 57(1) (c) of the Land Claims Court Rules .6 He directed that the
issue whether Mavundulu is a community , as envisaged in the Restitution Act , be
determined separately before any other issues. To that end Canca AJ directed the parties
to file heads of argument to address the separated issue. In addition, he directed Mr Chithi
to address him on why legal costs or the costs of the legal team for the claimants should
not be disallowed. The parties filed heads of argument as directed.

[8] On 25 May 2020, Canca AJ delivered the judgment in respect of the main case, in
which he found that the Community claimants had failed to prove the existence of a
community as defined in s 1(iv) of the Restitution Act. The judgment , in the main case ,
included an order that the legal fees of the legal practitioner appellants were to be
disallowed and that any fees already paid to them had to be repaid, as well as ordering
the State respondents to pay the costs of the landowner respondents.

[9] An application for leave to appeal was instituted by the legal practitioner appellants
against the disallowance of their fees. Prior to the hearing of the application for leave to
appeal by the legal practitioner appellants and after heads of argument had been filed by
the parties, the legal practitioner appellants brought an application for the recusal of
Canca AJ from hearing the application for leave to appeal. The landowner respondents
did not oppose the application for leave to appeal and the order pertaining to the
disallowance of the legal practitioner appellants’ fees. The landowner respondents
opposed the application for the recusal of Canca AJ.

[10] On 16 August 2021, Canca AJ dismissed the recusal application with costs . No
appeal was lodged against the dismissal of the recusal application. However, the legal
practitioner appellants sought leave to appeal against the costs order in the recusal

6 Rule 57(1)(c) provides as follows:

6 Rule 57(1)(c) provides as follows:
‘57. Prior Adjudication upon Issues of Law or Fact
(1) Should the Court, upon application by any party or of its own accord, be of the opinion that there is an
issue of law or fact in a case which may conveniently be decided —
. . .
(c) separately from some other issue,
the Court may order a separate hearing of that issue and grant any extensions of time periods prescribed
in the rules which may be desirable because of the separate hearing.’

8
application (in favour of the landowner respondents), which leave to appeal was
dismissed by the LCC on 22 November 2021. On 2 March 2022, this Court granted leave
to the legal practitioner appellants to appeal the recusal costs order.

[11] On 16 August 2021, in a separate judgment , the LCC granted an application for
leave to appeal against the disallowance of the legal practitioner appellants’ fee s. It
dismissed the Community claimants’ application for leave to appeal against the dismissal
of their claim for restitution of land on the ground that they had failed to prove that they
were a community as defined in the Restitution Act . On 11 November 2021, this Court
granted leave to the Community claimants to appeal against the LCC’s order dismissing
their community claim. Having set out the background facts I turn to consider each appeal.

Whether the LCC was correct to decide the ‘community issue’ separately in terms
of rule 57(1)(c)
[12] As already stated, the LCC dismissed the land claim because the Community
claimants had failed to establish that they are a community as defined in s 1 of the
Restitution Act. That issue was decided on a separated basis in terms of rule 57(1) (c) of
the LCC’s Rules. The two issues therefore are whether th e LCC’s finding that the
Community claimants was not a community, was correct and whether in the circumstance
of the case using rule 57(1)(c) to determine the community issue was appropriate.

[13] Counsel for the Community claimants submitted that the LCC’s application of rule
57(1) constituted a misdirection in that it failed to give the parties an opportunity to
address it before it made the separation order, and this failure offended the principles of
natural justice and violated the Community claimants’ right to access to court under s 34
of the Constitution . The issue of whether the Community claimants constituted a
community, proceed ed the argument, is not a discrete legal issue capable of being

community, proceed ed the argument, is not a discrete legal issue capable of being
determined separately from other issues in proceedings under the Restitution Act. Rather,
it forms the bedrock of the claim for restitution of land and can only be determined once
all the evidence in the trial has been heard and assessed. Therefore, factual evidence
had to be led and, by abruptly stopping the proceedings midway and not allowing the full

9
trial to unfold, the LCC violated the Community claimant’s right to have a fair hearing and
to have their case fully ventilated before a court of law.

[14] Rule 57(1)(c) of the LCC Rules provides that the Court may of its own accord order
a hearing of an issue , separately from other issues if ‘an issue of law or fact in a case
may conveniently be decided separately’. Nugent JA, in Denel (Pty) Ltd v Vorster had this
to say regarding the purpose of rule 33(4) (the equivalent of rule 57(1)(c)) and how it is to
be applied:
‘Rule 33(4) of the Uniform Rules – which entitles a court to try issues separately in appropriate
circumstances – is aimed at facilitating the convenient and expeditious disposal of litigation. It
should not be assumed that that result is always achieved by separating the issues. In many
cases, once properly considered, the issues will be found to be inextricably linked even though at
first sight they might appear to be discrete. And even where the issues are discrete the expeditious
disposal of the litigation is often best served by ventilating all the issues at one hearing, particularly
where there is more than one issue that might be readily dispositive of the matter. It is only after
careful thought has been given to the anticipated course of the litigation as a whole that it will be
possible properly to determine whether it is convenient to try an issue separately. But where the
trial court is satisfied that it is proper to make such an order – and in all cases it must be so
satisfied before it does so – it is the duty of that court to ensure that the issues to be tried are
clearly circumscribed in its order so as to avoid confusion’.7

[15] In Luhlwini Mchunu Community v Hancock and Others (Luhlwini),8 the LCC
dismissed a similar argument which was raised by counsel for the claimants in those
proceedings, namely that the invocation of rule 57(1)(c) could deprive the claimant of a
full hearing. It held that:

full hearing. It held that:
‘The order granted in terms of Rule 57(1)(c) is clearly permitted and Mr Chithi conceded as much.
His contention that the Plaintiff would be deprived of a full hearing by the determination of the
separated issue, is without merit. The Plaintiff has adduced all its evidence and was thus not
constitutionally deprived of a full hearing. It is ludicrous to suggest, as the Plaintiff does, that it

7 Denel (Pty) Ltd v Vorster [2004] ZASCA 4; [2005] 4 BLLR 313 (SCA); 2004 (4) SA 481 (SCA); (2004) 25
ILJ 659 (SCA) para 3.
8 Luhlwini Mchunu Community v Hancock and Others [2020] ZALCC 2.

10
would be unjust to consider if the Plaintiff has discharged its onus after it has delivered all its
evidence.’9
The LCC explained that this was so because ‘the Plaintiff [bears] the onus of establishing
at the close of its case, prima facie at the very least, that it [is] a community as defined in
the Act’.10

[16] In my view , Canca AJ was entitled to invoke the provisions of rule 57(1)(c) in
determining whether the Community claimants had made out a case on the evidence at
that stage of the hearing (after the close of the claimant’s case, including the submissions
of the State respondents). The question whether or not the Community claimants were a
‘community’ as defined in the Restitution Act is a discrete legal point that is capable of
being disposed of separately from other issues. It is a statutory requirement that must be
met by a claimant seeking a restitution of a right in land which it lost as a result of past
discriminatory practices. Undoubtedly, the claimant will have to present evidence – both
oral and documentary - to substa ntiate its claim . Oral evidence will be from the lay
witnesses and expert witnesses. But once all the evidence has been presented there
appears to be no reason for not deciding some of the issues on a separated basis. In this
matter t he claimants had had ample time to present their case, some 30 court days,
excluding inspections , which lasted two days. After the claimants closed their case,
witnesses were called on behalf of the State respondents, and the parties were given
ample time to prepare heads of argument and to argue the issue.

[17] Moreover, s 32 of the Restitution Act clothes judges with the power to , inter alia,
manage the procedure and manner of conducting a trial and, thus, permits a judge to
curtail the proceedings to ensure that resources, both public and private, are not wasted.
The LCC is vested with inquisitorial powers in terms of s 32(3)(b) of the Restitution Act,11

The LCC is vested with inquisitorial powers in terms of s 32(3)(b) of the Restitution Act,11
to conduct any part of any of its proceedings on an informal or inquisitorial basis and to

9 Ibid para 11.
10 Ibid para 12.
11 Section 32(3)(b) of the Restitution Act provides:
‘(3) Notwithstanding anything to the contrary in this Act or in the rules contemplated in subsection (1) —
. . .
(b) the Court may conduct any part of any proceedings on an informal or inquisitorial basis.’

11
identify issues to be determined separately, which power may be invoked at any stage of
the proceedings by the presiding judge . I therefore find that t he contention that the
Community claimants were in any way prejudiced through the invocation of rule 57(1),
has no merit.

Whether Mavundulu was a ‘community’
[18] The next question is whether the finding of the LCC that the Community claimants
did not constitute a community , was correct. Section 2(1) (d) of the Restitution Act
provides that a ‘person shall be entitled to restitution of a right in land if it is a community
or part of a community dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices’. The claim for such restitution must have
been lodged with one of the offices of the Land Claims Commission, by not later than 31
December 1998.

[19] A ‘community’ is defined in s 1 of the Restitution Act as:
‘. . . any group of persons whose rights in land are derived from shared rules determining access
to land held in common by such group and includes part of any such group.’

[20] Section 1 defines ‘right in land’ as:
‘. . . any right in land whether registered or unregistered, and may include the interests of a labour
tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust
arrangement and beneficial occupation for a continuous period of not less than 10 years prior to
the dispossession in question; . . .’

[21] In In re Kranspoort Community,12 Dodson J explained what the statutory definition
entails:
‘… it is clear that there must be a community in existence at the time of the claim. Moreover, it
must be the same community or part of the same community which was deprived of rights in the
relevant land … This seems to me to require that there must be, at the time of the claim,
(1) a sufficiently cohesive group of persons to show that there is still a community or

12 In re Kranspoort Community 2000 (2) SA 124 (LCC) para 34.

12
a part of a community, taking into account the impact which the original removal of the
community would have had;
(2) some element of commonality with the community as it was at the time of the
dispossession to show that it is the same community or part of the same community that is
claiming.’ (Footnotes omitted.)

[22] The Constitutional Court, in Department of Land Affairs and Others v Goedelegen
Tropical Fruits (Pty) Ltd , was also concerned with the question as to what constitutes a
community. It had this to say in this regard:
‘At the heart of this enquiry is whether the occupational rights in the land were derived from shared
rules determining access to land held in common. At its core, the question is whether the labour
tenants, through shared rules, held the land rights jointly. The community and individual applicants
contend that they did. They support th is contention by pointing to the history of their use and
occupation of the land and to the attendant social arrangements. Their forebears lived on the farm
since the mid -1800s, before the first registered owner Mr Hattingh in 1889, and the claimants
continue to do so despite successive registered ownership of the land.’13

[23] At paragraphs 37 and 38 of the judgment the Constitutional Court went on to state:
‘However, what is clear on all the evidence is that the indigenous ownership of land in the original
Boomplaats farm was lost before 1913. Once they had lost ownership, they were compelled to
work for the owner. Their relationship with the owner was coercive. The Land Claims Court found,
correctly in my view, that “the white owners took possession of the land, and compelled the
inhabitants to become labour tenants” -
Although they had lost indigenous ownership, they continued to exercise the right to occupy the
land, to raise crops and to graze their livestock. Successive registered owners did not terminate
these rights. By 1969, the collective indigenous title to land of the Popela Community had

these rights. By 1969, the collective indigenous title to land of the Popela Community had
succumbed to settler dispossession and subsequent land laws on ownership and occupation of
land by black people. Members of the community had been successfully coerced into being farm
labourers whose occupational interest in the land had become subject to the overriding sway of
the registered owner. They had to work the lands of the owner without wages in order to live there.

13 Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007
(10) BCLR 1027 (CC ); 2007 (6) SA 199 (CC) para 35. See also Elambini Community v Minister of Rural
Development and Land Reform and Others [2018] ZALCC 11 para 141 (Elambini).

13
Mr Altenroxel makes the point that, whilst there was a supervisor who was also regarded by the
workers as Kgoshi, as well as a community, they derived their right to live there, plant crops and
keep livestock from him, the white registered owner, at whose whim and fancy they lived.’

[24] The Land Claims Court held in Elambini Community and Others v Minister of Rural
Development and Land Reform and Others that:
‘Thus it is settled law that for a community litigant to succeed in a restitution claim it must prove
that it existed as a community after 19 June 1913, that it derived its possession and use of the
land from common rules, and that it existed as the same community at the time that the claim was
lodged. If at the time of dispossession, the po ssession and use of the land did not derive from
common rules, but were supplanted by labour tenancy rules, the rights in land were not held by a
community at the time of dispossession.’14

[25] It was submitted on behalf of the Community claimants that the LCC misdirected
itself by finding that they did not constitute a community. It was argued that the evidence
presented on their behalf established that that they existed as a community at the time of
dispossession. In support of th is submission, the Community claimants relied on the
evidence of lay witnesses ; expert testimony of Mr Hennie Schoeman, the aerial
photography expert, Dr Ndukuyakhe Ndlovu, an anthropologist and the witnesse s who
testified for the State respondents, Mr Lionel Joubert and Mr Adolph Ge rber and
documentary evidence.

[26] The question is whether the members of the Mavundulu community derived their
possession and use of the land from common rules. This requires the analysis of the
pleadings including the Notice of Referral in terms of s 14 of the Restitution Act , the
Community claimants’ response theret o and the evidence presented in support of the
pleaded case.


14 Elambini para 141.

14
[27] The following allegations are made by the Regional Land Claims Commission KZN
in the Referral Report in support of the Notice of Referral in terms of s 14 of the Restitution
Act:
‘The claimant community had beneficial occupation of the claimed land. They resided on the
claimed land by virtue of historical right of occupation; alternatively, they had historically beneficial
occupation for a continuous period in excess of ten (10) years prior to their dispossession. They
practised subsistence farming on the claimed land until the arrival of English and German
speaking settlers, when the process of systematic colonial occupation and dispossession of the
indigenous people from the land commenced in earnest.

In this regard, the State's design to forcibly dispossess indigenous population from the land, was
facilitated by a barrage of legislation such as the Masters & Servant Amendment Act, 1926, giving
effect to the Native Land Act, 1913, Native Service Control Act of 1932 and the Group Areas Act
of 1966, and which legislation contributed directly to the claimant community’s dispossession from
the claimed land.’

[28] As regards the status of the claimants, the Report records that:
‘1.2 The Mavundulu Community comprises of individuals and all descendants of individuals of a
community who were dispossessed of their rights in the land after 19 June 1913 as a result of a
deliberate and enforced system of segregation and racial discrimination . Their rights in the
claimed land are derived from shared rules determining access to land, held in common by the
community, and they used the land for their own benefit and subsistence.
…
1.4 The claimed land in Natal at the time of dispossession was occupied under the enforced land
tenure system, incorporating indigenous traditional practices, as imposed by the colonial
authority. This system provided that traditional leaders would administer and allocate land

authority. This system provided that traditional leaders would administer and allocate land
(chieftainship) as agents of the State , to members of the community . In essence, the traditional
leaders held the land in trust for its community members.
1.5 By virtue of the above system, the claimant community enjoyed beneficial occupational rights
under an implied trust arrangement, which was derived from being members of a “traditional
community” and subscribing to the cultural values and norms of that community. Such traditional
communities were defined by its members ’ subscription to a common cultural value and norm
system. In this regard, the claimant community , a traditional community , as defined above,

15
acquired its rights, to the claimed land, by reason of its beneficial use and occupation of the land,
bestowed as trust beneficiaries, prior to 1913.
…
4.4 The claimant community and /or their predecessors lived on the land and used the claimed
land for cultivation of crops, as shared access to communal grazing and as shared access to
available water and firewood and other resources from the land, for example medicinal plants.’

Community claimants’ response to the referral in terms of rule 38(7)(b)
[29] In their response to the referral in terms of rule 38(7) (b) of the LCC Rules, the
Community appellants alleged that the Mavundulu Community members were in
occupation of the claimed land since time immemorial prior to the arrival of the white
people who later came to the land. They surveyed and subdivided the land and thereafter
registered title deeds. The Community claimants alleged further that the problem started
with the arrival of the white people of English and German descent, on their land, between
1850 and 1860. Upon their arrival, they approached Chief Mavundulu for a piece of land
to be allocated to them. They, however, started to build their own dwellings before Chief
Mavundulu granted them authority to do so. When questioned about their behaviour, the
white people said that they had been granted authority and permission to use the land by
the government of the day and later displayed and presented the title deeds which had
been issued to them. The white people started tilling the land and rearing livestock .
Mavundulu Community members were then compelled to live side by side with the white
people.

[30] The Community appellants explained how the dispossession occurred:
‘7.16 The Mavundulu community were dispossessed of their land between 1914 and 1920. The
dispossession did not comprise in one singular and isolated act akin to an event which happens
once and for all but it occurred over a period of time which extended over a number of years. This

includes the period extending from 1920 to 1994 wherein a number of people were removed and
evicted from their ancestral land.’

[31] In paragraphs 8 and 9 of the response the Community claimants pointed out that
as a precursor to the dispossession, the white people:

16
‘8.1 in 1903 dismantled the chieftaincy of Chief Cebekhulu Mavundulu by kidnapping him and
throwing him in a deep ditch (odibini). . . and left him to die there.
8.2 in 1912 they started a big fire which destroyed the Claimant Community’s homesteads and
other valuable belongings and annihilated various natural landmarks after which they substantially
and significantly increased the land which they occupied.
9.1 The Customary rights held by the claimant community to the land were reduced to those of
labour tenants overtime and…, the rights were gradually reduced to those of farm labourers over
a period of time. The claimant community members were forced to work for various white
landowners on their land and those who were not willing to be subjected to the labour tenancy
and farm labourer system were forced to seek residen ce in the black townships and black rural
areas in the greater KwaZulu-Natal Province including Greytown, Pietermaritzburg, Hammersdale
and in Zululand.
. . .
9.3 Those that elected to remain on the farms they were allowed to [live] on the farms and in
exchange for their rights to live on the farms they provided labo ur to the farm owners as labour
tenants and/or alternatively they were obliged to work for minimum wages. At the end of six
months, those were under labour tenant contracts were forced to seek work elsewhere.’

Lay witnesses’ testimony
[32] The Community claimants led the evidence of following lay witnesses. Mr Umbross
Absalom Ndlovu testified that after the arrival of the white people, black people
encountered quite a lot of problems. They started losing their rights of utilising the land
as it was utilised customarily. They lost their traditional way of utilisation of the land.

[33] Mr Ndlovu further testified that his father and mother worked for ‘Jubela’ (Mr
Joubert). Critically, he conceded during cross-examination that the people lost the use of
land during Nkosi Mavundulu’s time. From when the white people arrived in the 1800s,

land during Nkosi Mavundulu’s time. From when the white people arrived in the 1800s,
they restricted the grazing grounds, the number of cattle, the number of houses the
community could have, their movement and rights to bury their d ead. He conceded that
the Mavundulu as a community disappeared in 1903.

17
[34] Mr Sipho Wilson Cebekhulu , who was 7 2 years old when he gave evidence ,
testified that his great grandfather was Chief Mavundulu of Cebekhulu cla n from
KwaMavundulu area. His family lived at Kwa-Jubela until it was forcibly removed by the
police. This must have been between 1961 and 1966. Their neighbours were the Zondi’s,
Ndlovu’s, Sithole’s, Kunene’s and Dlamini’s. After the eviction his family trekked to
Pietermaritzburg and settled at Kwa -Dambuza and thereafter relocated to Kwa -
Mpumuza.

[35] Mr Cebekhulu testified that before the arrival of the white people at their land the
community occupied the land in terms of the rules established by the chief. All that
changed after the arrival of the white people. They undermined the traditional leadership.
They replaced Chief Cebekhulu with Malinga who ruled the community according to the
rules set by the white people.

[36] Mr Cebekhulu conceded, under cross-examination, that blacks had no control over
the land, and they lived there with the permission of the landowner. The landowner made
the rules where they could live, how many houses they could build, how many cattle they
could keep. He further conceded that ‘he worked for 6 months looking after the cattle and
ploughing the fields.’ Mr Cebekhulu represented and acted on behalf of the community.

[37] Mr Makhonda Albert Ntanzi testified that his father and mother worked for the
landowner. He testified that his father worked full time. He testified that when his father
got ill, his mother had to work for the landowner in order for them to be resident on the
farm. They were evicted because his mother got ill and could no longer work. He also
conceded under cross-examination that when he lived on the farm , they were under the
authority of the landowner. They needed permission to bury the dead and the landowner
allocated places where they could graze their cattle.

[38] Mr Dludla conceded under cross -examination that after the arrival of whites the

[38] Mr Dludla conceded under cross -examination that after the arrival of whites the
community that existed was disestablished and by 1960 it no longer existed. Mr Ngubane

18
testified that ‘he was removed from the farm Welverdient , which was degazetted. He
testified that his grandfather, uncles and aunties worked on the farm Mooiplaas.

[39] It is clear from the statements of the lay witnesses that from the time of the arrival
of white farmers in the 1800s, their forebears lived on the claimed land under the rules of
the farmers, and they set the terms on which they could occupy and use the designated
portions of a particular farm.

[40] Additionally, the common cause facts undermine the Community claimants’ claim
that they existed as a community. No reference is made in any historical records of the
existence of Nkosi Mavundulu or any other Cebekhulu Inkosi or a community of African
people living on the farms Mooiplaats or Spitzkop. No reference is made in any historical
maps to Inkosi Mavundulu or any chiefs of the Mavundulu or a community of African
people living in the area or on the farms Mooiplaats or Spitzkop.

[41] Mr Schoeman testified that numerous farmsteads were present already in 1937 on
the various sub -divisions of the farms Mooiplaats and Spitzkop and, already in 1937,
these farms commercially farmed with agricultural products linked to a commercial
farming enterprise instead of it being farmed by subsistence farming . By 1937, fences
had been erected on the various sub-divisions of the farms Mooiplaats and Spitzkop.

[42] According to Mr Gerber, in 1937, there were already established timber plantations
in various stages of growth on the farms Mooiplaats and Spitzkop and that no cattle
kraals, manufactured in a rudimentary fashion with branches were situated near any of
the homestead areas on both the farms Mooiplaats and Spitzkop. He further testified that
there were clearly demarcated paths between the homesteads and the farmsteads
indicating a link between the homesteads and the farmsteads , such as would indicate
employees visiting the farmsteads.

employees visiting the farmsteads.

[43] The only two references to the Cebekhulu clan are in the HSRC report which
covers an area that is situated a substantial distance away from Mooiplaats and Spitzkop

19
and by Dr Bleek in 1849 and 1853. According to Dr Bleek, Cebekhulu was found between
the Umtyezi and Umsuluzi rivers being a reference to the Bushmansriver and the
Bloukransriver in the area of Estcourt.

[44] Further, a report of a survey done by Dr NJ Van Warmelo , in 1934, in the New
Hanover area, records the tribe in the area as Gwamanda and no reference is made to
Cebekhulu. Instead, the survey refers to other chiefs in the New Hanover district.

[45] Dr Ndlovu admitted that no reference is made in the Blue Books of 1896 and 1907
of Cebekhulu’s in the area on the farms Mooiplaats and Spitzkop. No reference to the
Cebekhulu is made in the New Hanover district but reference is made to other chiefs.
Finally, t here is no evidence of officially sanctioned removals after 1913 in the New
Hanover district, from the farms Mooiplaats and Spitzkop.

Expert witnesses' evidence
[46] The Community claimants called Dr Ndlovu to testify on its behalf to give expert
evidence. His expertise was placed in issue. The LCC concluded that Dr Ndlovu did not
qualify as an expert and for that reason placed no weight on his evidence.

[47] Section 30(2)(b) of the Restitution Act provides that it is competent for evidence to
be adduced by ‘expert evidence regarding the historical and anthropological facts relevant
to any particular claim ’. Dr Ndlovu has an MA degree in anthropology from Rhodes
University and a PhD in rock art. He is not an historian. He testified that he is a heritage
expert and, according to him, the land is part of heritage.

[48] Dr Ndlovu’s evidence was correctly disregarded. He conceded under cross-
examination that he did not conduct independent archival research but merely relied on
the report of Dr Whelan, the landowner respondents’ expert witness. He stated that he
neither verified the archival documents of Dr Whelan nor looked at the aerial photography
in respect of the claimed land. Dr Ndlovu did not profess to have any skill or knowledge

in respect of the claimed land. Dr Ndlovu did not profess to have any skill or knowledge
to analyse oral evidence and/or archival documents to determine whether there was in

20
existence a community and/or a person and/or persons who lost rights in land,
subsequent to 19 June 1913.

[49] Besides these shortcomings in Dr Ndlovu’s evidence, it is clear from the evidence
of various witnesses who testified for the Community claimants , including those who
testified for the State respondents, that although the claimants’ forebears may have
existed as a community before the arrival of the white people , that community
disintegrated before June 1913. Individual members of what may historically have been
a community prior to the arrival of white farmers continued to occupy the land as labour
tenants subject to the rules and policies of the white landowners and later as farm workers
post-1913. For instance, each household in terms of the labour tenancy regime was
restricted to a certain number of livestock and if they failed to obey the rules they could
be evicted from the farm. However, what the evidence establishes in this case is that
whatever rights individual occupiers may have enjoyed as labour tenants and later as
farm workers they were no longer derived from shared rules determining access to land
held in common by a group in 1913. Their occupation and use of the land did not meet
the acid test referred to by the Constitutional Court in Goedgelegen.

Disallowance of fees
[50] The next issue is whether the LCC misdirected itself in ordering that the legal
practitioner appellants were not entitled to fees in the matter and ordering them to repay
the fees they had already received from the state. This was because, reasoned the LCC,
they had pursued the claim which they knew had no merit. It described such conduct as
vexatious, frivolous and an abuse of the process of the court.

[51] In Multi Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd , the
court remarked:
‘. . . [A]ttorneys and counsel are expected to pursue their clients’ rights and interest fearlessly and

vigorously without undue regard for their personal convenience. In that context they ought not to
be intimidated by their opponent or even, I may add, by the Court. Legal practitioners must present

21
their case fearlessly and vigorously, but always within the context of set ethical rules that pertain
to them. . ..’15

[52] In Jazz Spirit 12 (Pty) Limited and Others v Regional Land Claims Commissioner:
Western Cape and Others, this Court made it clear that:
‘It is crucial for the promotion and maintenance of the rule of law that parties who approach the
courts to resolve their land disputes should not be mulcted with costs, particularly where there are
no allegations of wilfulness or vexatiousness as is in this case. Undoubtedly s 6 of the Restitution
Act places an onerous duty on the office of the Land Claims Commission to take all reasonable
steps to ensure that claims that are lodged are well investigated and properly prepared. Evidently,
this is intended to ensure that all facts relevant to a particular claim are considered. In addition, it
has as its rationale the fact that many of the people dispossessed of land have also been
systematically disadvantaged in many other ways and may well be unlikely to be in a position to
fund any adverse costs order. Such people might be dissuaded from pursuing the very rights
provided for in the Restitution Act if costs orders were made in the ordinary course. If this was
their response, it would defeat the very object of the Restitution Act. This is, perhaps, an additional
reason for the exceptional circumstances envisaged in s 21A(3) [of the Supreme Court Act 59 of
1959] to be required to meet an even higher standard in matters concerning costs arising from
the Restitution Act.’16

[53] Where there is an unresolved dispute, the Commission is obliged to refer such
dispute to the LCC for adjudication. The investigation and reports by the Commission play
a pivotal role in the ultimate resolution of any ensuing dispute. Self-evidently, costs orders
might be subversive of the spirit of social justice underlying the Restitution Act.

[54] The approach followed by Canca AJ in disallowing the fees for the legal practitioner

[54] The approach followed by Canca AJ in disallowing the fees for the legal practitioner
appellants in the entire matter and directing them to repay the fees they had already
received for the work they had done, fails to appreciate the sui generis nature of the

15 Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd [2013] ZAGPPHC 261; [2013]
4 All SA 346 (GNP); 2014 (3) SA 265 (GP) para 34.
16 Jazz Spirit 12 (Pty) Limited and Others v Regional Land Claims Commissioner: Western Cape and Others
[2014] ZASCA 127 (SCA) para 27.

22
Restitution Act.17 Unlike in any other litigation, litigation in terms of the Restitution Act is
instituted at the instance of the Commission on Restitution of Land Rights. Although the
claimants are cited as plaintiffs, they are not the ones who have a right to initiate and stop
proceedings. Once an arguable case has been shown to exist the Commission must
accept the claim, even if the arguments are relatively weak. Once a land claim has been
accepted as valid claim and published in the Government Gazette by the Regional Land
Claims Commission, it can only be withdrawn by the Commission in terms of s 11A (1) of
the Restitution Act. Having regard to the evidence of the witnesses called by the State
respondents who testified that the claimants were a community as defined in the
Restitution Act, there was no basis for the finding that the claim was frivolous and that its
prosecution amounted to an abuse of court process. In fact, it is stated in the Report filed
by the Regional Land Claim Commission in terms of s 14 of the Restitution Act that ‘the
claim as submitted is neither frivolous nor vexatious’ and that it had merit.

[55] The LCC committed a material misdirection in disallowing the legal practitioner
appellants to recover their fees for the work they had performed and also in directing them
to refund the fees they had already received from the State for representing the
Community claimants. This is a land claim and, once a claim has gone through the internal
vetting mechanisms contained in the Restitution Act, it would generally be reasonable for
a legal practitioner appointed in terms of s 29(4) of the Restitution Act to rely on the
decision of the Regional Land Claims Commissioner to accept the claim as a valid claim
and to refer it to court for adjudication. Thereafter, the appointed legal practitioner is
expected to put forward the best case as is reasonably possible on behalf of the claimants
at the hearing of the matter.

at the hearing of the matter.

[56] It is clear from the evidence that the LCC misdirected itself in imposing a punitive
costs order. Its decision was influenced by irrelevant considerations and that being so,
this Court is entitled to interfere in the exercise of its discretion. There is evidence to
suggest that Canca AJ’s judgment was improperly influenced by the Luhlwini case, as

17 Salem Party Club and Others v Salem Community and Others 2018(3) SA 1 (CC) para 72.

23
reflected in the striking similarities between the two judgments, particularly regarding the
costs order. This reliance on an external case raises concerns about his impartiality and
independence in deciding the punitive costs issue. Judicial independence requires that
each case be considered on its own merits, and his failure to independently assess the
facts and evidence in this case undermines confidence in the exercise of his discretion.

[57] It follows , therefore, that the order made by the LCC disallowing the legal
practitioner appellants to recover their fees in the matter and directing them to repay the
fees they already received from the state should be set as ide. There was no legal basis
for such order.

Recusal application
[58] The application for Canca AJ’s recusal was brought by the legal practitioner
appellants. It sprang from the costs order made by Canca AJ depriving the legal
practitioner appellants of their fees (both already earned and those still to be paid) . The
recusal application was in respect of the presiding judge hearing the application for leave
to appeal the 25 May 2020 judgment.

[59] The objection to Canca AJ’s continued involvement in this matter was based on
his alleged extensive reliance on the Luhlwini judgment, handed down shortly before the
conclusion of the trial, by Meer AJP. In support of this objection, attention was drawn to
the similarity in terms and language of the costs order and the amendment judgment. The
manner in which judgment was written, it was contended, would leave any reasonable
person, in the position of the affected parties, with a reasonable perception of bias and a
reasonable apprehension that Canca AJ ‘did not have a mind open to persuasion in
particular the pertinent and germane arguments which were raised by the first appellant’.

[60] It is so that Luhlwini was the authority on which Canca AJ heavily relied for
depriving the legal practitioner appellants of their fees . In that case , like in the present

depriving the legal practitioner appellants of their fees . In that case , like in the present
one, the Community claimants failed in their claim because they were unable to prove
that they were a community when the claim was lodged . The legal practitioners were

24
deprived of their fees for having unsuccessfully contended, contrary to the established
legal principle, that persons who were at best labour tenants or farm workers on privately
owned land constituted a com munity as defined in the Restitution Act. The legal
practitioner appellants were said to have abused the court p rocess in pursuing a
community claim that was bound to fail. Luhlwini has since been overturned by this Court
on appeal18 which means that the whole basis on which the costs order in the present
matter was made, has ceased to exist.

[61] A further allegation levelled at Canca AJ was that he was a participant in a virtual
meeting and/or tele-conference held with certain officials of the Department during which
Acting Judge President Meer allegedly, ‘complained about the incompetence of the first
appellant [Mr. Chithi] herein’. He denied having been a participant in that meeting.

[62] The allegations of bias based on the adverse remarks concerning the first
appellant allegedly made at the virtual meeting to which the first appellant had not been
invited were totally unfounded and the grounds upon which they were based were
unfortunately unsubstantiated. The legal practitioner appellants had ample opportunity to
support their allegations with affidavits from any of the participants at that meeting, in view
of the gravity of the allegation, they failed to do so. The recusal application on this ground
was properly dismissed.

[63] The legal practitioner appellants further submitted that Canca AJ erred in deviating
from the LCC’s usual practice of not awarding costs unless special circumstances exist.
For the reasons that will follow, Canca AJ was justified in dismissing the recusal
application with costs. In Le Car Auto Traders v Degswa 10138 CC and Others ,19
Sutherland J dealt with a similar situation where leave to appeal was sought against a
judgment and , before the application could be heard, an application for recusal from

judgment and , before the application could be heard, an application for recusal from
hearing the application for leave to appeal was instituted. He commented as follows:

18 Chithi and Others: In re: Luhlwini Mchunu Community v Hancock and Others (Case no.423/2020)
[ZASCA] 123 (23 September 2021).
19 Le Car Auto Traders v Degswa 10138 CC and Others [2012] ZAGPJHC 286.

25
‘These propositions have only to be stated to be revealed as nonsense. The effect of a recusal
can only be in respect of a prospective or current proceeding. Asking a judge to recuse himself
after judgment is given is silly. Even if he chose to recuse hims elf, the judgment is not thereby
nullified. A judgment once given stands until an appeal sets it aside. The judge who gave the
judgment is functus officio.’20

[64] Spilg J, in Bennett and Another v S; In Re: S v Porritt and Another, expressed the
disapproval of recusal applications as follows:
‘More and more recusal application are brought as a tactical device or simply because the litigant
does not like the outcome of an interim order made during the course of the trial. The seeming
alacrity with which legal practitioners bring or threaten to bring recusal applications is a cause for
concern.’21

[65] There is therefore no merit in the contention that Canca AJ erred in awarding costs
against the legal practitioner appellants. Canca AJ considered the application for his
recusal. He determined that it had no legal basis , and he dismissed it with costs. In
awarding costs against the legal practitioner appellants, he was exercising his discretion
and there is no suggestion that he had in any way misdirected himself in the manner in
which he did so. That being the case, there is no basis for this Court to interfere with his
costs order.

[66] It was further contended by the legal practitioner appellants that the landowners
did not have a direct and substantial interest in the recusal application and therefore a
costs order in their favour was not warranted. In response, it was argued on behalf of the
landowner respondents that the contention that the landowners had no interest in the
application for the recusal is without merit. Since the recusal application was grounded in
the disallowance of fees, the allegations of judicial bias, and the improper influence of the

the disallowance of fees, the allegations of judicial bias, and the improper influence of the
Luhlwini judgment, the facts underlying the principal case (the community claim) and the
conduct of the legal practitioners and that of the presiding officer would, of necessity, be

20 Ibid para 36.
21 Bennett and Another v S; In Re: S v Porritt and Another [2020] ZAGPJHC 275; [2021] 1 All SA 165 (GJ);
2021 (1) SACR 195 (GJ); 2021 (2) SA 439 (GJ) para 113.

26
brought into issue in the recusal application. The landowner respondents therefore indeed
had a direct and substantial interest in such matters. Further, any submissions by the
landowner respondents in regard to the aforementioned issues, can only assist the court
in bringing to the court’s attention facts and legal authority to assist it in arriving at a
considered decision with regard to the recusal application, whether or not this is ultimately
in favour or against the recusal per se.

[67] I agree with the landowner respondents’ submission s. The landowners were
parties to the case and their land was the subject of the case. In terms of the audi alterem
partem rule they were entitled to oppose the application and to make their views known
in response to an ill-conceived application which was bad in law and on the facts. The
landowners made no issue about the disallowance of the fees of the legal practitioner
appellants but considered themselves obliged to counter the attack on the factual and
legal findings of the LCC on which the disallowance of fees order was dependent. The
landowners had a substantial interest in the application for recusal in that the granting of
it would have resulted in the entire evidence having to be re-run before another presiding
officer, resulting in enormous costs to the landowners. Thus, the landowner respondents
had a direct and substantial interest in the recusal application and t he landowner
respondents’ legal representatives, as officers of the court, were duty bound to put the
record straight when scurrilous and uncalled for allegations are made attacking the
integrity of a Judge.

[68] In conclusion, the appeal against the dismissal of the land claim is dismissed. The
Community claimants failed to prove that they constituted a ‘community’ as envisaged in
the Restitution A ct. The appeal against the order disallowing the legal practitioner
appellants from recovering their fees on the matter is upheld. The LCC misdirected itself

appellants from recovering their fees on the matter is upheld. The LCC misdirected itself
in depriving the legal practitioner appellants of their fees and in directing them to repay
the fees they had already received from the State. The conclusion that the legal
practitioner appellants had pursued a hopeless case in circumstances where they should
not have done so, is wrong for the simple reason that it is the State respondents who
accept and refer the claim after investigation. It is therefore unfair to punish the legal

27
practitioner appellants by depriving them of their fees and ordering them to repay the fees
they had received simply because the land claim was at the end of trial found to have no
merit. The appeal against the order directing the legal practitioner appellants to pay the
landowner respondents’ costs of opposing the recusal application should fail.

Order
[69] The following order is made:
1 The appeal under case number 1203/2021 against the order of the Land Claims
Court dismissing the Mavundulu Community’s land claim is dismissed with no
order as to costs.
2 The appeal under case number 1334/2021 against the order of the Land Claims
Court disallowing the fees of the first to third appellants in the matter and directing
them to repay the fees they had already received from the state is upheld with no
order as to costs.
3 The appeal against the costs order in respect of the recusal application under case
number 261/2022 is dismissed with costs.


____________________
D H ZONDI
JUDGE OF APPEAL

28
Appearances

Case number: 1334/2021 & 261/2022
For the appellants: C J Pammenter SC and C Nqala
Instructed by: Dludlu Attorneys, Durban
Maduba Attorneys, Bloemfontein

For the third to twenty-seventh respondents
in case number 261/2022: M G Roberts SC and E Roberts
Instructed by: Cox & Partners Attorneys, Vryheid
Symington De Kok, Bloemfontein.

Case number: 1203/2021
For the appellants: S Poswa-Lerotudi and K Shazi
Instructed by: Dludlu Attorneys, Durban
Maduba Attorneys, Bloemfontein

For the third to twenty-seventh respondents: M G Roberts SC and E Roberts
Instructed by: Cox & Partners Attorneys, Vryheid
Symington De Kok, Bloemfontein.