MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM Tenth Defendant
DIRECTOR GENERAL: DEPARTMENT OF
RURAL DEVELOPMENT AND LAND REFORM Eleventh Defendant
THE CHIEF LAND CLAIMS COMMISSIONER:
COMMISSION ON RESTITUTION OF
LAND RIGHTS Twelfth Defendant
REGIONAL LAND CLAIMS COMMISSIONER:
MPUMULANGA PROVINCE Thirteenth Defendant
THE N’WANDLAMHARI COMMUNAL PROPERTY
ASSOCIATION CONCERNED BENEFICIARIES Fourteenth Defendant
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
COWEN DJP,
Introduction
1. In the main action in the above matter, t he N’Wandlamhari Community Property
Association (the first plaintiff or the NCPA) and the Mhlanganisweni Community
(the second plaintiff) seek declaratory relief concerning who is entitled to be a
member of the NCPA and to share in the benefits of land it owns referred to as the
MalaMala land. The MalaMala land is the property on which the world renowned
eco-tourism MalaMala Game Reserve is situated, and which was purchased by the
State for some R1.1 billion to be restored to land claimants. A dispute has arisen,
and which has given rise to the main application, because it is not only the
members of the Mhlanganisweni Community who are entitled to receive benefits
under the NCPA Constitution but also members of the Mavhuraka Community (the
ninth defendant , of which first to eighth defendants are members ), who the plaintiffs
say did not lodge claims in respect of the MalaMala land and are not entitled to
benefit from the settlement. The main action is defended on multiple ground s but
a key thread of the defence is that the NCPA Constitution was drafted in this way
with the agreement of the second plaintiff.
2. The main action had barely got out of the starting blocks when the fourteenth
defendant applied, successfully, to be admitted to the proceedings, and raised
various preliminary points, which were then decided separately. The preliminary
points were ventilated in separated trial proceedings held from 12 to 15 June 2023.
The preliminary points are dealt with in a judgment of this Court delivered on 10
August 2023 (the August 2023 judgment). The plaintiffs now seek leave to app eal
against the order granted in paragraph 59.2 of the August 2023 judgment . In that
order, this Court declared that t he first plaintiff has not duly resolved to authorise
the main action on behalf of the NCPA .
3. The application for leave to appeal was de livered on 4 September 2023. The Court
set down the application twice, together with another related application, but on
both occasions, on one days’ notice from the parties, the parties sought to
postpone the application s as they sought to settle the ent ire dispute between the
parties. The C ourt postponed the applications, but on the second occasion ,
expressed concern at the belated notice given to the Court. As matters transpired,
settlement negotiations failed. The leave to appeal was set down on 5 September
2024. The related parallel proceedings , yet to be dealt with, concern ongoing
efforts on the part of the plaintiffs to interdict an AGM of the NCPA. On 5
September 2024 , Ms Barnes SC (with her Mr Musandiwa) appeared for the
plaintiffs , as ap plicants for leave to appeal . Mr Mbhalati appeared for th e first to
ninth respondents. The matter was, however, ultimately postponed until 12
November 2024, when argument was finalised.1 There was no appearance for any
other party. Notably, the applica tion was not opposed by the fourteenth defendant.
However, this is in circumstances where the fourteenth defendant is no longer
represented by its erstwhile legal representatives ,2 has no attorneys currently on
record, and it subsequently transpired that the fourteenth defendant’s witness and
apparent leader, Mr Dion Mnisi, a ppears to be under the impression that this aspect
has been settled and that his current attorneys are on record .3 On enquiry, the
plaintiffs however advised that settlement discussions had failed as did the
attorneys for the first to ninth defendants, GW Mashele Attorneys. Before
1 The primary reason for doing so was to accommodate the plaintiffs’ objection that the first to ninth
defendants had not given them notice that they would be opposing the application, nor delivered heads
of argument. In their application for leave to appeal, the plaintiffs did not indicate that any notice should
be given and no formal directive for the delivery of heads of argument was issued by the Court.
However, the plaintiffs, understandably, understood t hat heads of argument ought to have been
delivered in view of the content of a letter sent from my secretary to the parties following a query
(regrettably not settled by myself). An apparent objection from the plaintiffs that the first to ninth
defendants should not be permitted to oppose in circumstances as they did not actively participate in
the hea ring could not be entertained as the first to ninth defendants did participate by making
submissions at the hearing, while aligning themselves with the position of the fourteenth defendants.
Their stance was in some measure pursued due to costs limitation s as – unlike the second plaintiff
whose litigation is funded through the NCPA – the ninth defendant is unable to access any funds from
the NCPA due to its exclusion, this being at the heart of the dispute between the parties.
2 The notice of withdrawal w as delivered on 22 May 2024 stating that the fourteenth defendant may be
served personally at Stand No 949, Mkhuhlu Trust, Cell number 071 387 5162 and
mnisidion5@gmail.com.
3 In this regard, two e -mails bear reference. First an e -mail from Mr Mnisi date d 24 October 2024 which
reads: ‘I further confirm that Mculu Inc are the lawyers on record for the [fourteenth defendant]. I further
state the community has taken a resolution to instruct our lawyers not to continue with the intervention
matter since we believe we have dealt with the three points in limine and have stated our case in court
that took place on the 12th to 15th June 2023. Since the proposal by the plaintiffs and respondents 1 to
8 that we as the 14th respondents must excuse ourselves in cou rt in order for the court to expedite the
main action, we have granted the wish and the court must continue with the main action because the
community of Nwandlamharhi has suffered a huge loss because of the two parties that have been
fighting in different courts without any mandate or resolution from the community they purport to be
representing. …’ Secondly an email dated 27 October 2024 states further (without correction): ‘The
has it on record that since the application for urgent application to int erdict the December 12 2023
elective AGM of the NCPA by the applicant, the two parties have been negotiating with us to leave the
mater to deal with Part B of the application and the applicant to stop the Leave to Appeal. Hence we
have taken the resolutio n to allow the Court to expedite the main action case.’
proceeding with final argument in the application for leave to appeal , this Court
accord ingly satisfied itself that fourteenth defendant and their current lawyers –
Mculu Inc (who, contrary to the apparent belief of Mr Mnisi, are not on record ) were
aware that the application is proceeding. A representative from Mculu Inc attended
the virtua l argument on 12 November 2024 confirming that they are not on record
and were merely observing the proceedings.
4. Returning to the issue that is the subject of the application for leave to appeal, t he
NCPA contended that they authorised the litigation at a meeting of members
convened on 9 March 2019 (the 9 March 2019 resolution) . They tendered in
evidence a document recording that decision. However, the Court found that that
meeting of members was not properly constituted in that it excluded members of
the Mavhuraka Community.
5. The plaintiffs a pply for leave to appeal on two grounds. The first is that the Court
is said to have failed to afford the plaintiffs audi alteram partem before arriving at
its decision (the audi point). The second is that the Court’s interpretation of the
NCPA Constitution, which underpinned the decision, was erroneous (the merits
point) .
6. The plaintiffs seek leave to appeal in terms of section 17(1)(a)(i) of the Superior
Courts Act 10 of 2013, which provides, in relevant part, that leave to appeal may
only be given where the judge concerned is of the opinion that the appeal would
have a rea sonable prospect of success. In Ramakatsa, the SCA interpreted this
as follows: 4
4 Ramakatsa and others v African National Congress and another [2021] ZASCA 31 at para 10;
‘The test of reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a court of a ppeal could reasonably arrive at a
conclu sion different to that of the trial court. In other words, the appellants in this
matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there
must exist a reas onable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.’
7. In arriving at that conclusion, the SCA relied on its earlier decisions in Smith5 and
Mkitha.6 In the latter case, the SCA held that:
‘An applicant for leave to appeal must convince the court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless, is not enough.
There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.’
The audi point
8. The importance of a fair hearing is elementary to the rule of law and the
constitutionally protected right of access to Court.7 A party must be afforded an
opportunity fairly and reasonably to state their case. In view of the importance of
the issue, I deal with it in some detail below .
9. The audi point is advanced in the application for leave to appea l on the basis that
the Court ascribed an interpretation to the NCPA Constitution on issues in respect
of which no evidence was led by the parties and no submissions were made by the
5 Smith v S [2011] ZASCA 15; 2012(1) SACR 567 (SCA) para 7.
6 MEC Health, Eastern Cape v Mkhita and another [2016] ZASCA 176 at para 17
7 Section 34 of the Constitution, De Beer NO v North -Central Council and South -Central Local Council
and others (Umhlatuzana Civic Association Intervening ) [2001] ZACC 9; 2002(1) SA 429 (CC) ; 2001(11
BCLR 1109 (CC) at pa ra 11.
parties in relation thereto; and the court did not provide the plaintiffs (or another
party) with an opportunity to make submissions on the interpretive issues which
the Court apparently considered relevant, indeed decisive, and which ultimately
underpinned the impugned order.
10. While not canvassed in the application for leave to appeal itself, the plaintiffs’ heads
of argument seek partly to frame the grounds to include a concern about whether
the issue decided was duly pleaded. It is of course elementary to fairness, that
issues be decided on the pleadings. I am mindful that , at least on a fair reading of
the application for leave to appeal, this point is not duly foreshadowed , and as
such , it is impermissibly and unfairly raised by the plaintiffs . Nonetheless, to avoid
doubt and out of caution , I satisfied myself again, as I did at the time, that the issue
framed by the Court and decided , was properly foreshadowed on the pleadings.
11. In this case, and by agreement between the parties, the pleadings were constituted
by the affidavits in the fourteenth defendant’s intervention application. It appears
from the judgment that the Court understood the issue as being whether it was
competent for the NCPA to convene a special meeting for purposes of authorising
the litigation comprised only of the Mhlanganisweni Community households , being
the only verified members at that time. Put differently, the issue raised was how a
special meeting of the NCPA must be constituted for a valid decision of this sort to
be taken.8 In my view, that is the issue raised on the pleadings. Indeed, that issue
lies at the very heart of the dispute with the fourteenth defendant – namely that the
litigation is being pursued by a grouping within the second plaintiff to the exclusion
not only of the broa der membership of the second plaintiff but the Mavhuraka
8 See para 34 and 36 of the judgment.
Community members . It is squarely within context of that dispute that the
fourteenth defendant raised the issue that there is no community resolution by
members of the NCPA authorising the instituti on of the action on behalf of the CPA.
In their answering affidavit , the plaintiffs pertinently plead that due to the fact that
the Mavhuraka Community are not verified (in their contention) ‘as is required by
the NCPA Constitution, they are therefore, at this stage and for this reason alone,
not entitled to participate in the NCPA. ’ In pleading specifically to the fourteenth
defendant’s complaint on the absence of an authorising resolution , the plaintiffs
merely refer back to the general content of their affidavit, a key element of which
is that only the Mhlanganisweni Community may participate in the NCPA.9 The
replying affidavit simila rly deals with the issue, if briefly, on the aforementioned
basis.10
12. The issue dealt with by the Court was, moreover canvassed in evidence,11 and it
was ultimately uncontentious that only the verified members of th e Mhlanganisweni
Community attended the 9 March 2020 meeting and , on the plaintiffs’ case,
authorised litigation to separate the two communities on behalf of the NCPA. The
plaintiffs now say that they would have wished to adduce the member register
which shows that only verified members of the Mhlanganisweni Community were
on the membership r egister of the NCPA at the relevant time. In my view, there
was not only ample opportunity for the plaintiffs to adduce that evidence should
they have wished to, but that fact is in any event uncontroversial. It is implicitly
accepted in the judgment, an d has been so understood throughout the proceedings
9 See paragraph 92 of the answering affidavit. The plea is not in the terms submitted by the plaintiffs
in their submissions at para 11.
10 See paragraph 7.
11 The summation of the evidence in the plaintiffs’ heads is not complete.
to date . Indeed, t herein lies a core difficulty underpinning the fierce and protracted
litigation between the parties in both this Court and the High Court . Unsurprisingly,
while not abandoned, the plai ntiffs’ counsel did not press the evidential point at the
final hearing of the matter.
13. A further leg of t he audi complaint is whether the plaintiffs were afforded an
adequate opportunity to make submissions on the point. In this regard, it can be
accepted that the plaintiffs’ legal team, and the plaintiffs (including the first plaintiff
as currently constituted) have always treated it as perfunctorily self-evident that
only the verified members of the Mhlanganisweni Community can be regarded as
mem bers of the NCPA under the Constitution at this stage and entitled to so
participate . That has been their stance throughout, and as mentioned, is a central
and key element of the deep conflict.
14. The plaintiffs sought to submit that none of the parties a ddressed submissions on
the issue dealt with by the Court. But that is not correct. In arguing the matter, the
fourteenth defendant dealt squarely in its heads of argument with the requir ements
of the NCPA Constitution, including its membership requireme nts.12 The
fourteenth defendant proceeded squarely to argue that the meeting at which the
litigation was ostensibly authorised was not properly constituted as it was only
attended by the Mhlanganisweni Community.13 Reference is further made to the
Mr Mthombeni’s cross examination on the issue.14 The argument is then
developed further , again squarely , on the basis that the exclusion of the Mavhuraka
12 See paragraph 11.
13 See paragraph 37.2.
14 See paragraph 37.3.
Community members from the authorising meeting vitiated the decision .15 The
points were persisted with in oral argument, on what was the plaintiffs’ own
evidence that the litigation was authorised only by the Mhlanganisweni Community
members , they being the only recognised members . There can thus be no shadow
of a doubt t hat the fourteenth defendant and its representatives understood the
issue as the Court did and argued it on that basis .
15. In their written heads of argument, the plaintiffs dealt simply with the issue by
relying on the 9 March 20 19 resolution .16 In a sing le sentence, they submi t further:
‘Members of the NCP A are of course, for the reasons set out above, members of
the Mhlanganisweni Community only.’17 The reasons set out above are constituted
by a section in the heads dealing with the material facts, which seeks to conclude
that while the NCPA Constitution ‘ contemplates that members of the
Mhlanganisweni Community and the Mavhuraka Community will be members of
the NCPA, in fact the only members of the NCPA (from 2013 to present) are
members of the Mhla nganisweni Community.’18 In oral argument, the plaintiffs
focused their argument on seeking to persuade the Court to reject Mr Mnisi ’s
evidence as false. In dealing with the 9 March 2019 resolution, the plaintiffs again
emphasi sed that the NCPA took the decision as constituted, in other words, by the
Mhlanganisweni Community members, being the only members. In short, the
argument was that only the Mhlanganisweni Community members are members
of the NCPA and accordingly the resolution was a resolution of the NCPA. The
15 See paragraph 37 to 51.
16 See paragraph 39 to 41.
17 See paragraph 42.
18 See paragraphs 21.5 to 21.10 of the heads of argument.
Mavhuraka Community members, they contend ed, only have a cont ingent right to
become members.
16. The first to ninth defendants did not deliver written submissions, but in brief oral
argument, their counsel (then Mr Springveldt) fully aligned his client with what was
said on behalf of the fourteenth defendant and sought to add a further complaint,
not dealt with in the judgment, that the resolution itself did not on its own terms
authorise the litigation pursued.
17. The Minister’s counsel, Mr Ogu nrumbi, made oral submissions but did not deliver
written heads of argument. The submissions were framed as questions for the
Court to consider in arriving at a decision. The questions focused on aspects of
the NCPA Constitution concerning, for example, membership, the distinction
between a verified or non -verified member, and entitlement to participate in
decision -making. These questions clearly foreshadow ed the type of interpretive
exercise that the Court embarked upon and on their own demonstrate d what was
front of mind for at least the Minister and the Department during the hearing. The
plaintiffs’ junior counsel, who at that point was in attendance without his senior ,
objected to the submissions on the basis that no heads of argument had been
delive red. While the Court shared a concern with the approach, in the interests of
ensuring issues were fully ventilated, the Court requested Mr Ogunrumbi and Ms
Phasha to reduce their submissions to writing after the hearing and then afforded
the plaintiffs (including their senior counsel) and other parties, an opportunity to
respond . Surprisingly, when the plaintiff delivered its submissions in response,
which totalled 22 pages, the bulk of the submissions were not focused on the
interpretive questions raised .19 Inasmuch as they were , they did not take the
plaintiffs’ submissions further.
18. Against this background, the plaintiffs had a fair and reasonable opportunity to
advance their case and make the submissions that they wished to on the issue s
raised on th e pleadings and decided by the Court. Furthermore, having regard to
the argument on the point on the merits, the same stance is adopted as was
adopted at the hearing, namely that it is self -evident that the Mavhuraka cannot
participate as members at this stage. While now partially developed, the plaintiffs’
arguments remain limited.
19. In this case, the audi complaint is made against the backdrop that the plaintiffs
were represented at the hearing by senior and junior counsel , their litigation costs
are funded, the parties to the dispute were all afforded an opportunity to lead
whatever evidence they deemed relevant, to make written and oral submissions ,
and, an opportunity to make further submissions was afforded after the hea ring as
indicated above . Contrary to what Ms Barnes submitted during the hearing, it is
clear that the other parties were aware that this issue was under consideration and
advanced their cases on that basis.
20. I am accordingly unpersuaded that the audi point has any prospects of success.
In any event, because I grant leave to appeal on the merits of the decision, the
plaintiffs will have another opportunity to seek to develop their arguments before
the SCA.
19 I deal with this aspect in the judgment at paragraphs 56 to 58.
The merits point
21. The second point, the merits point, stands on a different footing and I am satisfied
that leave to appeal should be granted on the issues raised in paragraphs 11 to 17
of the application for leave to appeal.
Conclusion, costs and order
22. As intimated above, this case has a protracted history and troubling features. One
difficulty at this stage is the fact that the fourteenth defendant is n o longer
represented by any attorneys on record. The reasons and circumstances for this
are not known. In order to facilitate the adm inistration of justice, I make provision
for the Registrar to deliver a copy of this judgment to all parties who participated in
the initial proceedings and to Legal Aid South Africa.
23. This Court only grants costs in special circumstances, and there are n one.
24. The following orders (varied ) are made:
24.1. Leave to appeal is granted to the Supreme Court of Appeal on the
grounds pleaded in paragraphs 11 to 17 of the application for leave to
appeal.
24.2. Save as aforesaid, t he application for leave to appeal on other grounds
is dismissed.
24.3. There is no order as to costs.