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2024
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[2024] ZALMPPHC 171
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Seshego Land Claims Committee v Minister of Agriculture Land Reform and Rural Development and Others (HCAA37/2023) [2024] ZALMPPHC 171 (4 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCAA37/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
SIGNATURE:
Naude-Odendaal J
Date:
04/11/2024
SESHEGO
LAND CLAIMS COMMITTEE
APPELLANT
and
MINISTER
OF AGRICULTURE,
1st RESPONDENT
LAND
REFORM AND RURAL DEVELOPMENT
LIMPOPO
PROVINCIAL OFFICE OF THE
2nd RESPONDENT
DEPARTMENT
RURAL DEVELOPMENT AND
LAND
REFORM
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
This is an appeal against the judgment of the High Court dismissing
the Appellant's
application for a mandamus to compel the Respondents
to acquire additional land and appoint consultants for rezoning of
land already
acquired. The appeal is with leave to appeal by the
court
a quo.
[2]
The Appellant represents members of the Seshego Community who were
dispossessed of
land during 1968 during the apartheid era. Pursuant
to this claim, the Respondents acquired Portions 20 and 21 of the
farm Jansenpark
1136, through the Proactive Acquisition Strategy
(PLAS) program with the aim of ultimately rezoning this agricultural
land for
residential usage for the purposes of relocating the
Appellant's members in order to assist members of the Appellant who
had missed
the 1998 land claims deadline.
[3]
The Appellant in the court
a quo
applied for an order
compelling the Respondents to acquire additional land beyond Portions
20 and 21, and to appoint consultants
for rezoning the acquired
portions.
[4]
The Appellant submitted that central to the application is an
undertaking made by
the Respondents in a meeting on the 17
th
of August 2017 to the effect that additional land would be acquired
to accommodate all the claimants, as it had become apparent
that the
acquired portions of land would be insufficient.
[5]
The Respondents contend that they have fulfilled their undertaking by
acquiring Portions
20 and 21, and that there is no legal obligation
to acquire additional land. It was submitted that the land was
acquired under
the umbrella of the Proactive Land Acquisition
Strategy ("PLAS") in terms of which the state retains
ownership but leases
the land to individual smallholders for purposes
of agriculture. The Respondents submit that these properties have
been donated
to the Polokwane Municipality for purposes of resettling
the Appellants.
[6]
The grounds of appeal are as per the Notice of Appeal and will not be
repeated herein.
In addition, the parties to the appeal were
requested in writing to prepare and present argument on why this
court (and the court
a quo
had) has jurisdiction and not the
Land Claims Court.
[7]
During argument of the Appeal, the Appellant's legal representative
conceded that
the basis of this dispute is a land claim. It was
however submitted that the Appellant applied for a mandamus and
therefor the
High Court had jurisdiction. The Appellants legal
representatives further submitted that the application did not fall
within the
corners of
Section 22
of the
Restitution of Land Rights
Act, 22 of 1994
, in terms whereof the Land Claims Court had exclusive
jurisdiction.
[8]
It was submitted by the Appellant's legal representative that if one
looks at the
relief claimed, the court
a quo
had the necessary
jurisdiction to hear the application.
[9]
The relief applied for in the court
a quo
was as follows:-
"1.
Directing the Respondent to act on its undertaking and/or the
agreements entered into
with the Applicant, to acquire additional
and/or alternative land for the community of Seshego in complete
fulfilment of their
land claim.
2.
Directing that the First and Second Respondents are obliged to take
further steps
to ensure that additional land is acquired to
accommodate the remaining beneficiaries of the Seshego Land Claim.
3.
Directing that the First and Second Respondents are obliged to
appoint a consultant
for rezoning of the farms which are made
available for the purpose of the settlement of the beneficiaries.
4.
Directing the Respondent to pay the costs of the Application in an
event of opposition
to the relief sought."
[10]
The Appellants further submitted that prayer 3 of the Notice of
Motion stood independent from
prayers 1 and 2 of the Notice of Motion
as it speaks of the rezoning of the already allocated land.
[11]
Without any further ado, it needs to be stated that after acquisition
of Portions 20 and 21 of
the farm Jansenpark 1136, the portions were
approved on 14 May 2019 for donation and transfer to the Polokwane
Municipality, to
eventually be allocated to the Appellant for
community settlement. The process aimed to ensure that the two
properties would be
rezoned to be suitable for settlement. The
intention was that in the process, individual sites would be
demarcated and allocated
to the Appellant's members as per their
request.
[12]
The Polokwane Municipality is the registered owners of Portions 20
and 21 of the farm Jansenpark
1136. Furthermore, the Polokwane
Municipality deals with rezoning of properties falling within its
area of jurisdiction and not
the 1
st
and 2
nd
Respondents. The Polokwane Municipality was not a party to the
proceedings before the court
a quo
. The court
a quo
in
its judgment was of the view, that it was not necessary to grant an
order in terms of prayer 3 of the Notice of Motion, as it
was not
necessary to order something that is already being done.
[13]
Although the court
a quo
made the correct finding in refusing
to grant an order in terms of Prayer 3, this court is of the view
that the court
a quo
should have refused to grant prayer 3 on
the basis that the Polokwane Local Municipality was not a party to
the proceedings and
rezoning was done by the local municipal
authority exclusively. A Rezoning involves the amendment of the
current zoning designations
to allow for different types of land
uses, such as residential, commercial, industrial or agricultural.
The Change of a Zoning
category or Rezoning is dependent on Council
Policies such as a Spatial Development Framework, Local Structure
Plans or Urban Development
Framework. The Rezoning Process is subject
to each requirement of the respective Local Municipality. Each
Municipality has different
requirements for a Rezoning Application
and Rezoning Process and therefore falls squarely only within the
ambit of the Local Municipality
and in this instance the Polokwane
Local Municipality.
[14]
This then brings this court to prayers 1 and 2 of the Notice of
Motion as quoted here above.
Prayer 1 and 2 talks about
"the
acquisition of additional land"
. The underlying
substance of the Appellant's claim is fundamentally a request for
additional land to be provided to its members.
This is essentially a
land restitution issue that must be pursued through the proper
statutory channels established by the
Restitution of Land Rights
Act 22 of 1994
("the Act").
[15]
Section 22(1) of the Act
provides that the Land Claims Court
shall have jurisdiction over all matters pertaining to the Act, and
stipulates as follows:-
"(1) There shall
be a court of law to be known as the Land Claims Court which shall
have the power, to the exclusion of any
court contemplated in section
166 (c), (d) or (e) of the Constitution –
(a)
to determine a right to restitution of any right in land in
accordance with this Act;
(b)
to determine or approve compensation payable in respect of land owned
by or in the possession
of a private person upon expropriation or
acquisition of such land in terms of this Act;
(c)
to determine the person entitled to title to land contemplated in
section 3;
(cA) at the instance
of any interested person and in its discretion, to grant a
declaratory order on a question of law relating
to section 25(7) of
the Constitution or to this Act or to any other law or matter in
respect of which the Court has jurisdiction,
notwithstanding that
such person might not be able to claim any relief consequential upon
the granting of such order;
(cB) to determine
whether compensation or any other consideration received by any
person at the time of any dispossession of a right
in land was just
and equitable;
(cC) to determine any
matter involving the interpretation or application of this Act or the
Land Reform (Labour Tenants) Act, 1996
(Act No. 3 of 1996), with the
exception of matters relating to the definition of "occupier''
in section 1 (1) of the Extension
of Security of Tenure Act, 1997
(Act No. 62 of 1997); [Para. (cC) substituted by s. 4 of Act
11/2000]
(cD) to decide any
constitutional matter in relation to this Act or the Land Reform
(Labour Tenants) Act, 1996 (Act No. 3 of 1996).
(cE) to determine any
matter involving the validity, enforceability, interpretation or
implementation of an agreement contemplated
in section 14(3), unless
the agreement provides otherwise; [Para. (cE) inserted by s. 7 of Act
18/99]
(d)
to determine all other matters which require to be determined in
terms of this Act. [Subs.
(1) amended by s. 10 of Act 78/96 and
substituted by s. 13 of Act 63/97]"
[16]
The Appellant's claim for additional land to be provided to its
members clearly falls within
the ambit of Section 22(1)(a) as it
requires a determination on the restoration or award of rights in
land.
[17]
The Appellant was informed in par 3 of a letter dated the 19
th
of December 2014 as follows:-
"The Committee
should also remember that the acquisition of portions 20 & 21 of
Jansenpark 1136 LS to Seshego Community
Land Claim was due to the
community's inability to lodge the land claim in time during the
previous lodgment period of the 31 December
1998. Therefore, the
Committee is advised to take advantage of the reopening of the land
claims process which
have started from the 30 June
2014 ending 30 June 2019 since [it] is the relevant process to get
the land restored back to
the Seshego Community."
[18]
The fundamental nature of the Appellant's relief sought, is the
provision of additional land.
The Appellant failed to make use of the
avenues open to it timeously and now wants to resort to this court to
aid in their assistance.
In this Court's view, the proper forum for
the Appellant to pursue its claim for additional land is through the
land claims process,
administered by the Land Claims Commission, with
the Land Claims Court having jurisdiction to adjudicate such
disputes.
[19]
In this Court's view, the Land Claims Court has exclusive
jurisdiction to entertain the relief
sought by the Appellant. The
Court
a quo
should and could not have entertained the
application and ought to have dismissed the application for lack of
jurisdiction in respect
of prayers 2 and 3 of the Notice of Motion.
Although this court's reasoning differs from that of the Court
a
quo's
, the ultimate order, that the application be dismissed was
correct
albeit
for different reasons. The appeal therefore
stands to fail.
[20]
The only issue remaining is the issue of costs. The general rule
applicable to costs is that
the costs should follow the event. It was
submitted by the Appellant that the Biowatch-principle which dictates
that the costs
must be borne by the State in Constitutional
litigation, should be applicable. This approach safeguards the "
over
arching principle of not discouraging the pursuit of constitutional
claims
."
[21]
However, in this Court's view, the appeal does not
amount to Constitutional
Litigation in the true sense
where the Biowatch-principle should be applied. In the result a just
order in respect of costs would
be that the Appellant should pay the
costs.
[22]
Accordingly, this court therefore makes the following order:-
1. The appeal is
dismissed with costs.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION
POLOKWANE
I
AGREE:
G.C.
MULLER
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION
POLOKWANE
I
AGREE:
M.
MATHABATHE
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION
POLOKWANE
APPEARANCES:
HEARD
O
2 AUGUST 2024
JUDGMENT
DELIVERED ON: 4 NOVEMBER 2024
For
the Appellant:
Adv. P. Mthombeni
Instructed
by:
Maboku Mangena Attorneys, Polokwane
admin@mmattorneys.co.za
For
the Respondent:
Adv. E.N. Gaisa
Instructed
by:
The State Attorney, Polokwane
PMalatji@justice.gov.za
MKgopa@justice.gov.za
MChuene@justice.gov.za