IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT RANDBURG 1
CASE NO: LCC206/2010
REPORT ABLE: YES (1}
(2)
(3) OF INTEREST TO OT_~ER J DGES: YES
REVISED. YES 7/,e; ~ 2 <
~./4:--
5May20 25
SIGNATURE
In the matter between:
THE MOLETELE COMMUNITY
HEIR PRINCE-MAEKANE TRIBAL COMMUNITY
KGOSI LACKSON ABUTHI CHILOANE
on behalf of MOLETELE TRIBE
MOLETELE-BL YDEPOORT COMMUNITY
concerning
CERTAIN FARMS IN THE MARULENG REGION
AS LISTED IN ANNEXURE "NR1"
JUDGMENT First Claimant
Second Claimant
Third Claimant
Fourth Claimant
CONDONATION APPLICATION AND COUNTER-APPLICATION
SPILG, J
INTRODUCTION 2
1. In October 2010 the Regional Land Claims Commissioner ("RLCC') referred the
land claim of the first to fourth claimants to this court. It is filed under case no LCC
206/2010. These claims are generally referred to as the Moletele Land Claim and
the persons who brought the claim as the main claimants. In this judgment the
court will refer to them either as the Moletele or the main claimants.
2. By agreement with the Moletele, represented by its legal team, its claims were split
i~to two separate components.
The one component concerns land identified in the referral report as white owned
land and includes some land acquired by Telkom and Eskom, either by way of
expropriation or direct purchase from white farmers.1
3. The balance of the Moletele claims, forming the other component, comprise land
which was purchased in terms of the Native Trust and Land Act 18 of 1936. This
land had been incorporated into the so-called Lebowa and Gazankulu homelands
which, as the referral report mentions " is now substantially occupied by persons
of African descent" ("the Trust lands')". The referral report makes plain that,
because there are significant factual and legal differences, the Trust lands do not
1 In July 2020 a comprehensive set of orders, rulings and directions were given dealing with a number of issues.
Para 3 of the order concerns Telkom and reads:
"In terms of rule 30(9):
a. Telkom shall state in writing delivered to all the parties by 27 July 2020 as to whether it acquired
registered title to the Grovedale property by way of expropriation or ordinary purchase and sole,
and if by expropriation to identify the applicable legislation;
b. Irrespective of the response, the Main Claimants shall state in writing within 15 court day.~ of receipt
of Telkom's response to para 2(a} hereof;
i. whether or not the Grovedole property is restorable
ii. whether they admit that the Grovedale property is approximately 625 sq. metres in size as
alleged by Telkom, failing which they ore to state its approximate size;
iii. whether they admit or deny how Telkom daims to hove acquired title to the property, and
if they deny then they ore to state the grounds for such denial;
iv. separately in respect of each of the contents of paras 2, 4 and 19 of Telkom's plea, whether
the allegation contained therein is adm;tted or denied.
3
form part of the referral but will be dealt with at a later stage by way of a separate
referral under s 14 "if necessary".2
4. Accordingly only the land to which the Gazette Notices referred, and which were
identified in annexures NR1A and NR1B of the Referral Report forms the subject
matter of the referral to this court under the provisions of s 14( 1) of the Restitution
of Land Rights Act 22 of 1994 ("the Actj and to which the present case number in
relation to that referral was allocated (i.e. LCC 206/2010).
5. In other words, the only land which is presently subject to this court's jurisdiction is
that identified in the aforesaid referral and a referral, by reason of the provisions
of s11(1) through to s12 3, can only deal with land that has been specifically
Gazetted in accordance with the Act and in the manner set out in the Commission's
Rules (see below).
This is highly relevant when considering the events which have resulted in the
application s before the court; the one by the main claimants for condonation for
their failure to comply with court directions and orders of 16 May and 12 August
2024 and the other being a counter-appli cation by the Commission on Restitution
of Land Rights ("the Commission ") declaring that the referral under case number
LCC206/2010 shall be confined to the farms that were identified in the attachment
to the Referral Report as annexures NR1A and NR1B, these being all the farms
that were Gazetted other than the Trust land farms.
6. The Trust land farms related to a not inconsiderable area of land owned by the
State which was settled and has already been restored to the Moletele. The
relevance of this will become apparent later.
7. The claim then became bogged down with a large number of disputes between the
main claimants and a large number of individual and corporate landowners . The
disputes range from challenging the competency of the claim to non-restorability in
respect of specific property. The defendants to the claim have also relied on a
2 See paras 4 and 8 of the Referral
3 All references to sections is the Act unless otherwise stated
4
referral report of Prof. Delius which has been challenged in generalised terms by
the main claimants.
8. In the latter part of 2015 a number of other claimants delivered their statement of
claim. Their claim had been referred to this court some years earlier under case no
LCC 20/2012. It is generally identified as the Mnisi Land Claims. These claims
cover a portion of the land in respect of which the main claimants seek restitution.
The group bringing the Mnisi Land Claims are referred to as the competing
claimants.
9. The effective consolidation of these two sets of land claims added a further series
of major disputes to an already burgeoning list of issues requiring court
adjudication .
. As a result the case became bogged down with not only substantive issues but
also a large number of procedural and technical issues. Numerous pre-trial
conferences have been held both prior to and since 2015. Indeed Gildenhuys J
was brought in to assist in finalising the gazetting of the claims so that the referral
could proceed.
1 0. In order to bring the matter to trial, the parties were directed to prepare a litigation
plan. This was done by 7 February 2020 . I do not recall when I took over the matter
from Sardiwalla J, but it is evident that I have presided over pre-trial conferences
since the litigation plan was presented.
11. At the conference of 28 February 2020 the following of relevance is noted in the
approved minutes;
• the adoption of the minutes of the litigation planning meeting held on 21
November 2019;
• the main claimant had failed to furnish the Commissioner with
information regarding financial statements despite previously
undertaking to do so, including at the meeting on 16 September 2019.
This related to issues concerning the continued funding of the
Moletele's legal fees by the Commission. Mr. Notshe, on behalf of the
5
main claimants. stated that they refused to provide any information. In
the result the court made an order requiring them to provide audited
financial statements, failing which provisional financial statements and
certain supporting documents, of the Moletele Community Property
Association ("the Moletele CPA'? up to January 2020;
• many of the landowner defendant s sought a separation of hearings.
Generally this was based on the sheer magnitude of the areas involved
and what were contended to be quite different and unrelated
geographical areas as well as the "waiting time" involved while
testimony unrelated to their land was being presented. One of the
aspects sought to be separated was whether claims had been properly
lodged.
• In responding to the question of a separate hearing, Mr. Notshe said
that the Moletele had a serious issue with the question of whether claims
had been properly lodged in respect of some of the farms. His view as
recorded in the minute was that;
"... the decision made by the Regional Land Claims
Commissioner to Gazette the claims still stands, unless it is taken
on review."
This will be contrasted later with the position the Moletele now wish to
take.
• Mr. Dodson for the Commission placed on record the case of a
judgment of Carelse J (at that time) (Emantanjeni Community [2019]
ZALCC 31) where the judge precluded legal representatives from
recovering fees in terms of section 29(4) because they had pursued
unwarrant ed litigation. Mr. Dodson stated that this judgment would be
applied in the event that unwarranted litigation was pursued by any
party whose legal costs were funded under that section. At that time
both claimants were being so funded.
6
• The issue of the Minister filing a plea was raised, Mr. Dodson
contending that Mr. Notshe had agreed not to persist with that at a pre­
trial held on 16 September 2019.4
When Mr. Notshe disputed that he had abandoned the request for a
plea from the Minister, he was referred to para 29 of the pretrial minute
where Sardiwalla J had adjourned the matter for 30 minutes to allow the
parties to discuss inter alia the issue of the Minister's plea. The court
also raised the concern that it appeared that on three occasions
statements were made by the main claimants' counsel at previous
pretrial conferences which the claimant community failed to comply
with;
• The main claimants had previously obtained a report from Prof. Delius.
It subsequently expressed reservations with the report and had been
requested to identify what aspects of the report were in issue.
• The stated position of the Commission at the conference was that the
dispute over funding should not delay the progress of the litigation. As
will appear later, the contention was that the Moletele could well afford
engaging an expert and would be reimbursed if it was entitled to
continued funding.
12. The court subsequently heard the parties on the separation issue, the necessity of
the Minister pleading and the continued funding of the main claimant's legal costs
by the Commission. On 3 July 2020 the court ordered a separation, but only in
respect of Telkom and directed that it was unnecessary for the Minister to file a
plea.
13. Also on 3 July 2020 the court issued the following ruling and directions which are
relevant to the present application and counter application.
4 Pre-Trial Bundle p24 para 31
" 7. The Main Claimants are required to state in writing by 31 August 2020
which cadastral units that have been Gazetted fall within "the area
between Klaserie river and O/ifants river and 81yd river encashment
area and all the areas bordering the Drakensberg mountain
escarpment"
8. Each of the claimants is requ;red to state in writing by 31 August 2020
which of the cadastral units that have been Gazetted
a. are not subiect to any claim:
b. are no longer being claimed
c. are accepted as non-restorabte : 7
9. Each of the witness statements of each of the claimants must contain a
clear and concise statement, in chronological order where applicable,
of the following;
( emphasis added)
14. Among the issues to be dealt with in the witness statements referred to in
para 9 of the 3 July ruling and directions were:
" 2. In respect of each element the witness statement shall identify the
specific claimed properly to which the material fact relates, such
property or fact being identified by reference to:
a. the cadastral information registered at the relevant Deed Registry
office:
b. the portions of the claimed farm to which the witness' statement
relates, according to the cadastral portions as they existed at the time
of dispossession and a/so their present descriptions; the specific
paragraph in the reporl of Professor Delius; 8
4. In relation to the properties published in the Gazette but which either
were not mentioned in the claim form to which the witness's statement
relates or were not verified in the referral report;
a. The material facts on which a claim in respect of such property is
persisted with;
b. The material facts to supporl a claim to the property in question
(emphasis added)
15. It will be evident from these extracts of the ruling and directions of 3 July 2020 that
the main claimants were required by 31 August 2020 to have dealt in their witness
statements with all the land that had been gazetted even if it had been omitted from
the referral and to limit the issues in respect of the land gazetted in respect of both
the main claimants and the competing claimants by identifying if any of the land
gazetted is either not subject to any claim, is no longer being claimed and equally
importantly is accepted as non-restorable. The latter is important as any land which
is accepted as not restorable releases the landowner from the litigation and from
the restrictions imposed by s11 (7) over the land, the issues being solely between
the claimants and the Minister.
16. It will also be evident from the 3 July rulings and directions that once complied
with, the case would be well on the way to trial readiness . Even the aerial
photographs had been obtained while outstanding expert reports would still have
to be provided and meetings between the experts arranged.
17. The court then heard the application to review the refusal of the Commissioner to
continue funding the litigation costs of the main claimants. Of relevance is that
the main claimants had also sought a stay of the entire proceedings until the final
9
outcome of their review through appeals, which, if permitted, would have delayed
the finalisation of the pre-hearing further.
18. On 1 February 2021 the court dismissed the review application and made the
following order:
"1. The application brought by the first claimant, being the Moletele
Community, to stay the proceedings under the above case numbers
pending the outcome of its review application is dismissed.
2. The application to review the decision of the Land Claims Commissioner
of 9 July 2020 withdrawing the arranging of legal representation for the
first claimant at the expense of the Commission on Restitution of Land
Rights under section 29 (4) of the Restitution of Land Rights Act 222 of
1994 is dismissed .
3. The first claimant is to pay the opposed party and party costs of the Land
Claims Commissioner and the Steyn Group of landowners , and in the
case of the Land Claims Commissioner such costs shall include the
costs of two counsel.
19.A number of oversight pretrial conferences were held to deal with issues raised by
the parties regarding extending times and the inadequacy of responses . However
on 30 September 2023 the main claimant's attorneys filed a" Notice of a Land
Swveyors Reporf' which the main group of landowners contended (subsequently
in a practice note in April 2024) enlarges the Moletele claim by almost 50%. The
main claimant's attorneys had also requested confirmation from the Commission
that "all the owners of properties falling within the boundaries of the land claim have
been given formal notice of the claim".
20. The pretrial conferences of 16 May and 12 August 2024 dealt with the issues
raised by the main claimants' notice of September 2023 initially by way of
directions and, when not complied with, by way of the order given on 12 August.
10
21. Mr Notshe for the main claimants accepts that they had not complied with the
direction of 16 May but contends that the order of 12 August was complied with.
The Commission challenges that the order of 12 August has been complied with
and opposes the application for condonation as to both the adequacy of the
explanation for the failure to comply with the direction and the merits of their case
for not being obliged to respond to the directions (of 16 May) or the order (of 12
August) in a manner other than that contained in their Notice of 12 September
2024.
22. The terms of the directions and order which the main claimants were to comply
with and their response by way of the Notice of 12 September will now be set out.
THE COURT DIRECTIONS AND ORDER AND THE MOLETELE NOTICE
23. The directions of 16 May 2024 were that:
By 30 May 2024 the main claimants will indicate whether they wish to add
additional land to their claim, and should they wish to do so all such additional
land will be identified in the process.
The main claimants were to identify all such additional pieces of land in an
application or process they intended to take by 30 June 2024
Unless there are special circumstances no additional land may be included or
sought to be included after 30 June 2024.
24. The order made at the pretrial conference on 12 August provided that:
"By Friday, 13 September 2024, the main claimant will identify if there are any
additional pieces of land claimed to those that have been gazetted.
A failure to do so will preclude the main claimant from contending that there
is any other additional piece of land that ought to be claimed, and that if they
do so they will have to bring a substantive application, including an
application for condonation."
25. On 12 September the main claimants sent the following notice; 11
'' ... be pleased to take notice that the main claimants in the above mentioned
matter are unable to comply with the directives given by Judge Spilg on 16
May 2024 and 12 August 2024 because the aforesaid directives are invalid for
the following reasons:
1. The aforesaid directives were issued at a case management meeting
presided over by Judge Spilg.
2. Judge SpUg gave directives to the effect that the main claimants should
give notice to indicate whether they intend to extend their claim to include
areas covered by the land surveyors report. In the event that the aforesaid
claimants wished to extend their claim they should institute an application to
that effect.
3. The Judge further directed that in the event that the aforesaid
claimants do not institute such an application they will be prevented from
leading their expert evidence of the land surveyor.
4. The directives given by Judge Spilg go to the substance of the dispute
between the parties,
5. The powers of a Judge presiding over a case management meeting
are limited to procedural issues in the case. They do not extend to substantive
issues. The substantive issues are dealt with in the form of pleadings so that
an order of court can be granted or refused.
6. In the circumstances the directions issued by Judge Spilg are ultra
vires his powers as a Judge presiding in a case managem ent meeting.
12
7. Accordingly Judge Spilg issued the directives ultra virus his powers,
and the directives are invalid."
26. At this stage it is necessary to point out that the notice does not comply with any
of the operative parts of the respective directions and order which, as will be
demonstrated, followed an undertaking by Mr. Madlanga in the presence of his
attorney (via remote hearings);
23.1. firstly on 16 May, that the main claimant would identify whether it
wished to add additional land to its claim by 30 May 2024; and
23.2. subsequently on 12 August, that the main claimant would identify by 13
September 2024 any additional pieces of land claimed to those that
have been gazetted
27. It is also necessary to point out that the notice in its terms seeks to attack the
validity of the directions and orders but does not constitute an application to
declare them or any part of them invalid.
This raises the issue of whether it is competent to ignore a court order on
grounds of invalidity absent a successful application to declare it invalid. This
court understood it to be a trite proposition that a court order must first be set
aside if a party believes that it is ultra vires, for otherwise it undermines court
processes and is no different than taking the law into one's own hands5.
28. In putting the notice in context, the court again refers to the sections of the Act,
and now their counterparts in the Land Court Act 6 of 2023, as well as the court
rules in relation to the holding of conferences.
APPLICATIONS BEFORE THE COURT
Main Claimants' Condonation Application
5 This forms the underlying principle for spoliation orders
13
29. On 17 January 2025 the main claimants brought an application seeking
condonation. This related only to their noncomplianc e with the 16 May directions,
claiming that they had complied with the 12 August order.
30. In their application the main claimants aver that at the conference held on 16 May
2024 they were directed to indicate by 31 May 2024 whether they persisted to claim
land as indicated in the boundary lines marked on their land surveyor's map and
that, if so, they should institute application proceedings to that effect by 30 June
2024.
31. In their founding affidavit the main claimants also referred to the subsequent
conference of 12 August. They said that at this meeting, it was explained that non­
compliance with the directive of 16 May was because their legal representatives
were unable to take instructions since they had not received the minutes of the
earlier meeting. They add that the land claimed "was described in the historical
names and not the current description of the properties'16.
32. The main claimants also averred that at the 16 May case managem ent meeting
they had adopted the position that any party who wished to raise an objection to
the admission of their land surveyor report, which they intended using at the trial
(to determine the extent of the land claimed) should do so in the form of a notice
and that the issue would be dealt with by the trial court.
33. While this may have been the position initially taken by the main claimants,
certainly after Mr. Dodson on behalf of the Commission had indicated at the 16
May meeting why it believed that such a course was impermissible and that there
were cost risks if persisted with7, Mr. Madlanga on behalf of the main claimants
(and as stated earlier, with his attorney on-line) when asked to respond to Mr.
Dodson said:
6 FA p5 para 6
7 Prior to Mr Madlanga responding, both Mr Maluleke for the competing claimants and Mr van der Merwe
for a main body of landowners supported Mr Dodson's position regarding the impermissibility of the
then position 1aken up to then by the Moletele legal representatives on behalf of their client.
14
"Thank you, Judge. Judge, what I should say is that I am in your
Jordship's hand on this one now. After having heard advocate Dodson
submissions, I am in your Lordship's hands. Thank you.
The court then responded:
" No, no. Advocate Dodson is saying that your client must either say that
they are not pursuing these additional claims, or they are. So, by when
do you want to respond to that? Advocate Dodson and Advocate van der
Merwe have referred to case law which they say indicates that it is not
permissible. So I would like to give you an opportunity and your client an
opportunity, to consider whether or not these are going to be retracted
or not. and if not. to provide a time by when you will bring an application
to have them introduced. clearly identified, but that is going to be the last
opportunity so that everything needs to be sorted out one way or
another. Either there is an acceptance of the position as contended for
by the other parties, and if not, then an application needs to be made to
introduce these claims before a court, or whatever the process is, but we
need timelines ....
. . . So, you can identify, and if on consideration of case Jaw ... that it is
not possible, well, then that ends that. But if you believe that ... these
should be pursued, then they have got to be pursued by a particular time
after that. "
Mr. Madlanga replied:
" Can I then request ... that the date for the indication, whether this is
pursued or not, be 30 May."
34. The court was amenable to the request and added, that if the alleged extended
area was being pursued, the main claimants were to indicate the steps they needed
to take to introduce them into the claim; whether they needed to direct the
Commissioner to Gazette such land or whether it is to be done by way of an
15
application for direct access or by way of any other appropriate application or
process to enable any additional pieces of land to form part of the referral and that
this was to be done by 30 June.
Mr. Madlanga said that he was happy with that date.
35. The court then summed up that the main claimants were to identify all such
additional pieces of land in such application or process as it intended to take by 30
June, failing which, unless special circumstan ces existed, no additional land may
be included or sought to be included after that date. The court adding "everyone
needs clarity and we need a cutoff. ,,a
36. The main claimants contend that, what they refer to as the case management
meeting of 12 August, the court was informed that the surveyor report did not
extend the extent of the claim lodged by it and that the report on the description of
the claim was based on "the historical names of the land and not the registered
names."
37. The founding affidavit in the condonati on application then purports to records that
the court directed the main claimants to indicate by 13 September 2024 "whether
or not there were any additional pieces of land added to the claimed land.·
This is incorrect The transcript reads as follows in relation to the direction and
order made at the case management meeting of 12 August :
"That by Friday, 13 September, the main claimant will identify if
there are any additional pieces of land claimed to those that
have been gazetted. A failure to do so, and I am making that
as an order. A failure to do so will preclude the main claimant
from contending that there is any other additional piece of land
that ought to be claimed. And that if they do so, they will have
to bring a substantive application , including an application for
8 Transcript of 16 May 2024 pp 18 to 20
condonation."
Immediately after this was read out, the transcript records the
following exchange between the court and the main claimants'
counsel:
" COURT: Mr Madlanga, have you got that?
MR MADLANGA: Yes, Judge, I got it. Thank you. 16
COURT: Right, no waiting for minutes. This is my order. It has
now been given. It is a direction and an order. Okay. So, now
we have covered that.
The court then moved onto other items on the agenda.
38. It is evident from the exchanges on 12 August that the court wished to ensure that
the main claimants' legal representatives acknowledged that the terms of the
direction and order had been noted.
39. It is equally clear that the court was not concerned with how the claim form
described the land, which may lead to an obfuscation of the issues then before the
court, but whether the main claimants were contending for any land in addition to
that described in the Gazette notice.
The point being; however land is described in a claim form, it is the responsibility
of the RLCC 9, to identify the claimed land by reference to each of its cadastre
recordings (i.e. the title deed description at the relevant Deeds Registry) and the
identity of its registered owner in each case so that the Gazette notice required
under s 11 (1) of the Restitution of Land Rights Act 22 of 1994 ("the Acr) can be
published.
9 See the reference to the RLCC ins 11(1) and to the Commission ins 12 read with rules 3, 5 and 6 of
the Rules Regarding Procedure of the Commission (GN 703 of 13 May 1995). See also The Nyavana
Traditional Authority v MEC for Umpopo Deparl.ment of Agricultur e and another (2020) ZALCC 12;
(2021] 1 All SA 237 (LCC)
17
40. This is expressly provided for in Commission Rule 13(1) which requires that the
s 11 ( 1) notice sets out, amongst others, the title deed description , its extent, the
title deed number, the name of the current registered owner and any other detail
that would help interested parties in the identification and location of the property
that forms the subject matter of the claim.
Section 11 (6) also requires the RLCC to give written notice to every landowner,
and any other party who may have an interest in the claim, of the publication of the
notice and refer that person to the restrictions on disposal, development (including
rezoning) or encumbering the land, and those affecting the status quo, including
the continued occupation by a land claimant or the improvement s on the land.
41. The scheme of the Act in so far as it concerns the extent of this court's jurisdiction
in restitution claims is straight forward.
Firstly, the court exercises jurisdiction only in respect of land claims which were
lodged no later than 31 December 1998, subject to the provisions of the Restitution
of Land Rights Amendment Act 15 of 2014 ("the Amendment Act') should it be
reenacted (which extends that date to 30 June 2019).
Secondly, in relation to referrals by the Commission under s 14 of the Act, which
is the process by which the present claims are before the court, the court enjoys
jurisdiction to determine restitution matters in respect of land which has been
identified in a Gazette notice published under s 11(1). The RLCC has the power
to withdraw or amend the s 11 (1) Gazette notice by including or deleting land
provided it was described in the claim form lodged before the December 1998 cut­
off date (again subject to the 30 June 2019 provisions of Amendment Act if it is
reenacted).
42. This can only be lawfully effected under the Act through s 11A and provided its
provisions are complied with. This includes giving any affected party an opportunity
to be make representations10. In the case of additional land being gazetted , the
10 See SS 11A(2) and (3)
18
RLCC may do so without giving notice if there was an obvious error in the original
s11(1) notice or in every other case by giving notice and calling on affected parties
to make representation before publishing a notice to include additional land in a
gazette notice.
43. All these steps by the RLCC to give notice under s 11 ( 1) or to subsequently include
additional land under s11A is without prejudice to any competing claimant or
landowner's rights to challenge the claim on any competent ground, including that
the land claim never included the land which was gazetted.
44. Makhuva-Mathebula Community v Regional Land Claims Commissioner, Limpopo
and Another [2019] ZASCA 157 is directly in point on the question of the land
description contained in the claim form. In that case the RLCC had, during its
investigations, queried an anomaly between the land identified in the claim form
and the contents of an attached map. On receiving the reply, the RLCC was
satisfied that the claimant had intended to claim only the land identified in the form
itself. The Supreme Court of Appeal held that the claimant was bound by its
description of the land as set out in its claim form and the answers given by it to
the RLCC during the latter's investigation of the claim; it could not add to the land
that had been so identified and then gazetted.
In the present case the main claimants do not dispute that there was a process of
investigation which preceded the gazetting. In their condonation application Mr
Chiloane, who is a member of the land claims sub-committee of the Moletele CPA,
which authorised bringing the application by resolution of the CPA, said that;
"the land claim was described in the historical names and not by their current
description of properties"11
45. In its answering affidavit the RLCC, Mr Maphutha, stated that the claim forms
comprised a number of documents. These were provided to the court. They
11 See paras 1, 3 and 6 of the FA in the Condonation Application
19
comprised annexes RR 1 to RR4 of the Referral Report. The RLCC submitted that
the;
"farms were claimed with express reference to particular farm names as
reflected in the cadastre. This then formed the basis upon which farms were
published in the Gazette notices. A generous approach favouring the applicant
and competing claimants was adopted, so that the Commission erred on the
side of inclusion of farms where the name of a farm in a claim form was unclear.
I am therefore confident that all land which may be subject to the claims has
already been included in the Government Gazette notices. Farms not included
in the Gazette notices do not therefore fallwithin the claim.
This statement is found in para 17 of the answering affidavit.
46. Furthermore, the RLCC referred to the process of gazetting and referring the claim
to court. After the initial referral, which was bad and withdrawn due to challenges
by landowners, a process was adopted which extended over a period of years
where all the parties were represented by attorneys and counsel and they all sat
down and agreed exactly which farms would be published in the Gazette. The
gazetting itself was done in phases.
47. It was also averred that this process was conducted on the basis of complete
transparency and co-operation between the parties "including the applicant {i.e. the
present main claimants), which was legally represented by attorneys and counsel
throughout"
48. Three relevant Gazette notices were published identifying the land subject to the
claim. They were the Gazette notices of 1 August 2008, 28 January 2010 and 24
December 2010.
This is dealt with in paras 16 to 19 of the answering affidavit
49. In its answering affidavit the RLCC also referred to an analysis done of the farms
identified in the Moletele surveyor's report. The most important aspect is that there
are a large number of new farms which have not been gazetted at all and therefore
20
could not form part of any referral to this court. This is set out clearly in paras 18, 19
and 22 of the answering affidavit with the analysis set out in annexure LHM11.
50. Another aspect pointed out by the RLCC is that the parties, including the main
claimants , through their legal representatives at the meetings mentioned earlier,
had agreed not to include all the farms that are identified in the Gazette notices
and that these would form the subject matter of a later referral. An explanation for
this has been provided earlier in the judgment. In short, the referral before the court
concerns farms which essentially constitute white owned land and exclude farms
which were designated for occupation under the then Trust and Land Act. This is
set out in para 21 of the answering affidavit.
51. It also bears mentioning that during the pretrial conference of 16 May, which is
relevant to the issues now before me, Mr. Dodson expressly referred the main
claimants to what he contended were a number of problems facing them if they
sought to extend the claim.
Among the difficulties mentioned was that none of the Gazette notices included the
farms which appear in the Moletele surveyor's report and that there are judgments
which prevent the main claimants from doing so. The other was that the main
claimants were impermissibly going behind agreements that were reached at
binding pretrial conferences ; reference being made to the process where over a
period of years the legal representatives of the parties had agreed on exactly which
farms would be included in the Gazette notices after the original referral was
withdrawn.
52. The court has set out in some detail the relevant paragraphs in the answering
affidavit where the issue regarding the identification of the land in the claim forms
was set out and the circumstances surrounding the identification of the land and
the extent of the present referral, with the RLCC concluding that if any piece of land
now appearing in the Moletele surveyor's report was not contained in any Gazette
then it could not be the subject matter of a referral and therefore could not be
subject to the jurisdiction of this court.
21
53. These material allegations contained in paras 16 to 22 of the answering affidavit,
and for which adequate chapter and verse was provided to enable the main
claimant to respond, were all dealt with in six lines by the main claimants. Their
reply reads as follows12:
"11.2 AD PARAGRAP HS 16 TO 22 THEREOF
I do not wish to deal with the allegations made in these paragraphs until
the issue of the regularity of the counter application has been dealt with.
I however state that the a/legations made in these paragraphs are
denied. The claimed land was described in general and historic terms.
This is an issue that can only be resolved through oral evidence.".
54. In addition the claim forms have been produced to court. It is evident from them
that land was described by reference to the farm names and in most cases their
cadastral reference. Para 1 of each claim form required the main claimants to
identify if the land claimed was rural or urban and if rural (as confirmed by them it
was) para 1.1 required them to insert "If it is rural /and, the portion(s) , name(s) and
number(s) of the farm and district".
The main claimants replied in the claim form of 3 July 1995 by identifying farms by
name and generally added a number (e.g. Buffelshoek 216 or Camdebon) .
In another claim form also dated 3 July 1995, para 1. 1 was answered by referring
to an attachment marked annexure B. The attachment referred to some 32 farms
listed by name and divided into farms occupied by other tribes and farms occupied
by whites.
In the subsequent claim form of 8 November 1995, the main claimants identified
farms by name and number (e.g. Eden-Fleur de Lys.194, Moriah.83KU) and then
ended with "Epsom-189, all (14) farms, others for negotiation ".
12 Para 11.2 of the Replying Affidavit
22
Finally in a claim form dated 22 July 1998 an additional farm was identified being
Blyderivierpoort 595 (possibly 545) KT.
55. To these must be added two sets of correspondence which are included in the
claims forms set .
The first is from Mrs D Gilfillan on behalf of Legal Resources Centre (then
representing the main claimants), to the Chairperson of the Advisory Committee
on Land Allocation dated 30 July 1992. It states the following:
"The land involved in the claim comprises the following farms:"
The list consists of 25 farms which appear to be included in the subsequent claim
forms. In the Legal Resources Centre letter, the farms are identified and save on
three occasions the identity of the registered owners are included. Attached to the
letter is an historic background which identifies 29 farms by name. It appears that
these were cross-referenced into the body of the main letter.
The other is a letter from the Moletele Local Government Authority to the Minister
of Land Affairs dated 9 September 1994.
It commences in general terms by stating:
"The areas affected the area between Klaserie river and O/ifants river and Blyd
river encatchment area and all the areas bordering the Drakensberg mountain
escarpment.
It then states:
" The following are the names of farms which previously belonged to us and
please the fact that there might be name changes to these farms need be
mentioned."
(emphasis added)
23
Then follows a list of 30 farms, all of which appear to have been included in the
subsequent claim forms. In any event, the main claimants do not dispute the
averments contained in the answering affidavit that the land as identified in the
correspondence and claim forms have been duly gazetted pursuant to a process
of agreement with the main claimants and their legal representatives and that this
had taken place over a number of years.
56. The replying affidavit was delivered on 7 February 2025 and the matter heard on
14 February.
The allegations made in the answering affidavit are self-evidently germane to
whether or not a case has been made out for condonation.
57. It is trite that a condonation application must traverse the failure to comply with the
court order timeously, including the failure to comply with an undertaking given to
the court to provide the necessary responses on time, and also must deal with the
merits of its defence, which in this case is its challenge the orders made; namely
that the directions and orders of 16 May and 12 August 2024 are ultra vires the
courts powers as set out in the main claimants ' notice of 12 September 2024.
58. It is also trite that whatever a party's view of the competency of a procedure, it must
plead over.
59. The main claimants have sought to provide the court with an explanation for their
failure to comply with the court direction of 16 May, claims to have complied with
that part of the court order of 12 August which required it to identify by 13
September 2024 any additional pieces of land claimed to those that were gazetted,
and have offered no defence to the merits as to why they are not bound either by
the directions or the orders of 16 May and 12 August save to contend that these
are ultra vires the court's powers.13
13 This in itself is a non sequitur because the directions of 16 May also precluded the Moletele from
introducing ungazetted land after 30 June 2024 absent special circumstances being shown after that
24
60. As already stated, it is trite that a party in application proceeding s must plead
over. It is also trite that a failure to engage in the merits amounts to an
acceptance of the allegations of the other party where final relief is sought
{Plascon-Evans Paints Ltd v Van Riebeeck Paints (Ply) Ltd 1984 (3) SA 623 (A)
at 634 to 635 14) and that a bald denial is inadequate, save in cases where the
information is not within that person's knowledge or in the other circumstances
set out in Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3)
SA 1155 (T), which is a case that does not involve the seeking of final relief ..
61. The reason is obvious as to why the court required to know, before the matter could
be ripe for trial, if there was any land which the main claimant intends to claim in
addition to that already gazetted.
62. In terms of the Act the court can only exercise jurisdiction in respect of land which
has been gazetted.
If any substantive rights are affected by allowing a matter to proceed to trial before
such land has been gazetted and notice given, it is those of every person who has
an interest in the land in question and who has not prior to the trial been given
adequate notice15.
And a failure to give notice by way of application to court for direct access or
otherwise in good time before the trial date will result in a postponement of the trial
to the prejudice of the other parties in relation to costs. It is necessary to point out
that costs will be substantial if the trial is postponed after the first day.
63. Firstly, the parties have estimated that the trial will run for three to six months.
There are some nine teams of lawyers16 which often include senior and junior
14 In terms of P/ascon-Evans the evidence on which a court is entitled to base its findings, where final
relief is sought on motion and there is not a referral to evidence, comprises the averments alleged "in
the applicant's affidavits which have been admitted by the respondent, together with the facts alleged
by the respondent" unless circumstances exist where a denial by the respondent does not ·raise a real,
genuine or bona fide dispute of fact ... and the court is satisfied as to the inherent credibility of the
applicant's factual averment .... (or) .... where the allegations or denials of the respondent are so far-
fetched or clearly untenable that the Court is justified in rejecting them merely on the papers .... •.
15 This is an aspect of the substantive right to a fair trial under s 34 of the Constitution
16 This excludes the team representing Telkom in the separated matter
25
counsel. Accordingly the trial sessions will have to run for several weeks at a time
and accommodate the diaries of a large contingent of legal representatives and
court personnel, paid experts have to be available and paid as do counsel and their
attorneys, transport and accommodation must be provided for most if not all.
Moreover court resources will be wasted and unnecessary costs incurred, in
particular if the case is to commence in the area of the claim where the
communities reside. This includes the Hoedspruit, Blyde River and Thomybush
areas. Those costs, as pointed out by Mr. Dodson at the 16 May 2024 pretrial will
be sought from the main claimants. This risk in fact precipitated the main claimants
to agree to provide the information by 30 May.
64. In addition there is the further delay which an application at the commencement of
the trial would occasion in a matter that should have long since been trial ready. 17
In this regard the court cannot ignore the complaint formally lodged by the
competing claimants, the Mnisi Community represented by Mr. Maluleke, who
already at the 16 May 2024 conference expressed opposition to any issue which
could delay the matter coming to trial. He indicated that their witnesses were old
and some had already died and that whereas the main claimants had already
received large and valuable tracts of land, the competing claimants had yet to have
any land claim determined despite the years that have intervened since their claim
was gazetted.
The court also cannot simply ignore the complaints of the various legal teams who
between them represent over 500 landowners. They say that after all these years
since the matter was gazette and then referred to court they are entitled to have
finality without unnecessarily incurring costs.
17 At the pretrial conference of 29 March 2022 the provisiona l dates agreed upon by the parties
envisaged the filing of expert reports by 20 June 2022 and that the inspection in loco would be held
during August 2022. Despite more than two and a half years passing since then, none of these
milestones have been reached.
26
65. The only way in which the matter can properly proceed if a claimant wishes to add
land not gazetted after as 14 referral appears to be by way of direct access. That
is a process which, if the land is only identified for the first time on the first day of
trial, will result in a postponement to enable due process to be initiated under the
direct access to court provisions which are contained in Chapter IIIA of the Act.
And the first days of trial are likely to involve the inspection in loco which the parties
anticipated would stretch over a period of more than two weeks. This would mean
that all the legal teams with all their experts would have to be in attendance and
would have been required to set aside the full period, the fees for which would
presumably have been negotiated upfront. The claimants' members18 involved in
the trial and at the inspection as well as individual defendant s would also have to
attend court.
66. In short; the matter can therefore never be ripe for hearing if there is still land which
is sought to be claimed in these proceeding s and which has not been gazetted.
This court can therefore not permit the matter to be set down for trial if that is the
case. However, due to the lengthy delays in this matter, the court also can no
longer delay setting the matter down for trial if a party fails to comply with its own
undertakings, or court's own directions and orders.
67. In this case, the first direction affecting the land which is subject to the present
referral was given almost five years ago at the pretrial conference held in July
2020 (the court dealt earlier with relevant aspects of that conference). It is also
difficult to appreciate how the witness statement s required in terms of the directions
and rulings given at that conference can fulfil their intended purpose unless they
deal with only gazetted land before the case can be trial ready.
68. All this must be known to the main claimants ' legal team who practice in this court.
If the land was always subject to the claim as contended for, then either it is
included in the Gazette notices that have already been published or the main
18 That is both the main claimants and the competing claimants
27
claimants would have been expected to raise the issue of outstanding land either
during the cursory investigative phase which preceded the s 11(1) gazetting or
during the s 11A ors 12 investigation phases prior to re-publication of the Gazette
Notices. Furthermor e the main claimants would have had the opportunity to do so
during the case management process conducted by Gildenhuys J, if not during the
discussions between the parties and the Commission themselves.
If land was sought to be introduced at the pre-gazetting stage then the RLCC would
be entitled to gazette it as land falling in the claim provided the s 11 (1) threshold
was met. or if the RLCC had considered the claim to an area of land to be frivolous
or vexatious then he or she would have dismissed the claim (see s 11 (3)), or if the
criteria of 11 ( 1) were not met then the RLCC would not gazette it and would advise
the claimant accordingly.
69. An attempt to approach a court on the first day of trial (which it is now clear the
main claimants intended to do at least after 12 August after submitting at the one
of 16 May to the position taken by the Commission, the competing claimants and
the landowners19) to include land which was not previously Gazetted as part of the
claim therefore by-passes all the checks and balances that the Act has put in place
to ensure that land claims are only referred to court after a proper investigation
phase, placing it in the hands of the RLCC to decide whether the required threshold
has been met before a court is seized with the matter and allowing for an
investigation by the Commission before that occurs. This too would be known to
the main claimants' legal representatives during the years when the land to be
gazetted and the referral itself was ironed out during meetings with them and with
their agreement.
70. On the basis of the uncontested statements by the RLCC in the answering
affidavits, supported by similar statements at the pretrial conference of 16 May
2024 which went unchallenged20, the land identified in the claim was gazetted and
19 See the earlier cited extracts from the conference of 16 May where the risk of cost orders should the
Moletele persist with the position they had taken on the ground that it was impermissible was put
squarely on the table prior to Moletele's legal representatives responding as they did. See also para 80
below
2o Especially at para 13
28
this was pursuant to a process of investigation and agreement by the parties,
including the main claimants who were at all relevant times represent ed by their
legal team.
REQUIREMENTS FOR CONDONATION AND EFFECT OF NON-COMPLIANCE
WITH AN ORDER OR DIRECTION
71. In eThekwini Municipality v Jngonyama Trust 2013 (5) BCLR 497 (CC) at para 28
the Constitutional Court repeated the two requirements which must be satisfied for
the grant of condonation. It said that: "Two factors assumed importance in
determining condonation applications: The explanation furnished for the delay and
the prospects of success.". The court also explained that where the failure is over
a period of time an explanation is required to cover the entire period of default.
72. Although a court appears to be entitled to end the enquiry and refuse condonation
when the explanation for the failure to comply is unacceptable , in Minister of Land
Affairs and Agriculture and Others v D & F Weve/1 Trust and Others 2008 (2) SA
184 (SCA) at para 41 Cloete JA on behalf of the court, after finding the explanation
for the failure to comply with the time limit unsatisfactory said that " In all the
circumstances, a demonstrably good case on the merits would be required before
condonation could be considered. n
73. Under s 25(5) of the Land Court Act 6 of 2023, which came into effect on 5 April
2024, the court at a conference may issue such orders and directions as to the
procedure to be followed before and during the trial as it deems appropriate. In
terms of Rule 30 which deals with conferences the presiding judge at a conference
may make any interlocutory order or give any direction which the court may make
or give under any provision of the rules and may investigate any non-compliance
with the rules or with any order or direction previously given in the matter and give
such orders or directions in relation thereto as may be just, including an order for
29
costs or a postponement of any hearing. In addition, if any party is present at a
conference where an interlocutory order or direction is applied for informally, no
further notice of the application needs to be given to that party, unless the court
directs otherwise.
7 4. The types of orders or directions which a court can give under the rules in relation
to non-compliance with an order or direction is to inter alia strike out the claim,
defence or response of the defaulting party, whereupon that party will no longer be
entitled to exercise the rights to deliver or file document s, participate in or be
represented at the hearing, apply for leave to appeal or participate in any appeal
against any order of the court unless the court orders otherwise. This is provided
for in rule 32(7) read with subrule (5) and rule 26(2) which deal with the right to
participate in a case.
Accordingly the Rukes themselves, as do all rules of Court provide that a party may
be deprived of a right to proceed if in default of the rules themselves , or of an order
(or as with the Land Court a direction) of the court.
THE DIRECTIONS OF 16 MAY and ORDER OF 12 AUGUST 2024
75. The main claimants have only dealt with the failure to comply with the direction
issued at the pretrial conference of 16 May which required them to identify all such
additional pieces of land by 30 May and pursue such application or process as they
intended to take in that regard by 30 June, failing which, unless special
circumstances existed, no additional land may be included or sought to be included
after that date.
76. It is common cause that the main claimants did not identify all such additional
pieces of land either by 30 May, 30 June or at all. This notwithstanding being given
a further opportunity on 12 August to expressly identify by 30 September if there
are any additional pieces of land claimed to those that have been gazetted, and
despite the conversion of the direction into a clear order of court which, also on 12
30
August, the claimant's counsel acknowledged had been noted by him, this being
all done with the main claimants' attorney in attendance.
77. In addition the time limit to provide the information was not imposed on the main
claimants-and this was not the first time the main claimants were asked to make
it clear whether they intended to add land which had not been gazetted to the claim.
78. The history of the court's direct involvement in the identification of the land in issue
arose in April 2024 when attorneys for one of the main groups of landowners, CHM
Steyn, compiled a practice note (which was in effect their addendum to a practice
note prepared by Mr Dodson on behalf of the Commission).
I take the note up from after Gildenhuys J had been brought in to case manage the
matter by giving guidance after a court order had been brought by the landowners
in about 2005.
"One of the important issues which was addressed at the early pretrial
conferences was to establish the extent of the claim .....
The matter was thoroughly debated and considered , and the parties came to a
clear and binding agreement as to what extent the claim would be, and to what
extent it will be limited with reference to the area claimed.
For the last circa 16 years everyone involved in the Maru/eng land claim
honoured the agreement referred to above.
On 29 September 2023, out of the blue, Ngoepe attorneys on behalf of the
Moletele's filed a" Notice of a Land Surveyors Report" containing a map which
enlarges the Moletele claim by almost 50% .....
Mr. Ngoepe fwther requests confirmation from the Commission that" all the
owners of properties falling within the(new?) Boundaries of the land claim have
been given formal notice of the claim"
ii is our submission that the claim cannot be extended now-and it is obvious
that the new judge should clarify the situation as a matter of urgency."
31
79. By this stage the matter had been handed over due to my imminent retirement. In
view of these developments I was amenable to continuing running pretrial
conferences due to my knowledge of the matter.
SO.At the pretrial of 16 May, Mr. Du Plessis, who is counsel for one of the main groups
of landowners, raised the issue of whether the main claimants were extending their
claim beyond that identified in the Gazette and the Referral Report. Mr. Dodson
contended for the Commissioner that any attempt at this late stage to incorporate
a huge swathe of new land must be stopped on at least three bases. He claimed
that although he had only dealt with a portion of the main claimants' land survey
report, a large number of new farms had been introduced .
81. Among the grounds raised by Mr. Dodson is that it was unfair to expand the claim,
particularly in relation to the competing claimants who are sitting waiting patiently
to have their claims adjudicated and have not obtained any land in the way that the
main claimants have. He said it was unfair too to the landowners who have been
waiting for 20 odd years to get the matter resolved. It was also unfair to the
Commission who have spent hours basically in the middle trying to make the claim
manageable.
Mr Dodson then set out the grounds mentioned earlier which included the Makuwa­
Matebula judgment of the Supreme Court of Appeal. He also contended that the
farms which had been gazetted and to which the referral related did not include all
the fanns identified in the survey report sought to be introduced by the main
claimants and then referred to the impermissibility of breaching agreements
reached at pretrial conferences which were binding.
This was supported by Mr. Maluleke for the competing claimants. Mr. van der
Merwe, for other land claimants, also took the point that by reason of section 14(6)
of the Act the court's jurisdiction is effectively precluded unless the Commission
has referred the matter to it. He also expressed concern that the additional land
now identified may already have been the subject of other restitution claims and
could therefore also impacted by s 35(1 ).
32
82. Earlier I mentioned the exchange where Mr. Dotson referred to the cost risk which
the main claimants faced in bringing any proceedings to introduce additional
ungazetted land later.
83. In view of the position taken opposing any attempt to introduce additional land to
the claims, the court engaged Mr. Madlanga as follows:
• ... I would like to give you an opportunity and your client and opportunity, to
consider whether or not these are going to be retracted ... , and if not, to provide
a time by when you bring an application to have them introduced, clearly
identified, but that is going to be the last opportunity so that everything needs
to be sorted out one way or another. Either there is an acceptance of the
position contended for by the other parties, and if not, then an application needs
to be made to introduce these claims before a court, or whatever the process
is, but we need timelines.
Mr. MADLANGA ; "Just to be clear ... is the question that we should come up
with a date as to when the claimants will indicate whether they are proceeding
with the claim as allegedly extended, or they are taking out the impugned
extension, And then the application, if the claimants decide to proceed with it,
it is another date?
When the court agreed, Mr. Madlanga then requested that the date when the main
claimants would indicate whether they were pursuing an extended claim could be
30 May.
84. After both Mr. Dodson and Mr. du Plessis address the court, it added that should
the land claimed extend to include land not previously gazetted and not subject to
the Referral Report then the main claimants would be obliged to bring an
application or appropriate process to enable these additional pieces of land to form
part of the referral and that this was to be done by 30 June.
33
85. The court then added that unless there were special circumstances, no additional
land may be included or sought to be included after 30 June. This was to ensure
clarity and the need for a cutoff.
86. The court is unable to accept that the main claimants were unaware of the
obligation they had expressly undertaken through their legal team to provide the
information by 30 May or bring some form of proceedings by 30 June, despite the
extent of exchanges on the subject during the 16 May conference, despite the
presence of both counsel and the attorney there representing the main claimants ,
and more particularly the active engagement by counsel who was responsible for
requesting that the main claimants be allowed to indicate by 30 May whether or not
they intend pursuing any additional land. The court is also unable to accept that
despite notes being taken, as asserted was done21, they failed to comply.
87. In correspondence the main claimants attorney belatedly called on the court to
provide the minute of the 16 May conferenc e. The court confirmed that it was not
responsible for drafting the minutes and never previously undertook that
responsibility. This is due to resources and time constraints.
However the notes which the legal representativ es of the main claimants said they
had taken would have confirmed that Mr. van der Merwe had undertaken
responsibility for drafting the minutes. If the main claimants had any difficulty in
trying to recall what they had undertaken to do by 30 May, then they only had to
ask Mr. van der Merwe or, for that matter, any other counsel or attorney who had
attended. It is evident that the main claimants did not take either the pretrial
process seriously or, at least since the 12 August conference, had decided to
ignore the direction.
88. Whether the main claimants, through their representatives had not taken the 16
May pretrial and its directions seriously or were deliberately disrupting the process
through non-compliance was a concern which required attention at the subsequent
conference called on 12 August.
21 This appears from the transcript of the 12 August conference
34
89. At the 12 August conference Mr. Madlanga offered the following explanation for
failing to provide the information by 30 May, let alone bring appropriate
proceedings by 30 June.
Judge, on that point, on that issue, we could not take proper instructions
because we also needed to first get to the minutes of the previous meeting of
the previous pretrial conference.
COURT: Why? Don't you make notes during the course of a pretrial?
MR MADLANGA: We do.
COURT: I do. So, you knew what had to be done.
MR MADLANGA: We do, Judge. But our view is that we should get to the
minutes so that we are sure that we properly convey what transpired in the
meeting without just giving us, giving clients what we captured, which may not
be.
90. But the issue of noncompliance in relation to providing the necessary information
or bringing appropriate proceedings does not end on 30 May.
The extract provided earlier of the 12 August conference reflects that the court now
insisted that the main claimants make their position clear as to whether or not they
sought to include land which had not previously been Gazette. It also expressly
asked Mr. Madlanga to confirm that he understood what was required. The court
also made it clear that this was no longer a direction but an order.
91. At the meeting of 12 August the exchanges regarding the notification about any
additional land was as follows
"MR MADLANGA: ... to say that our preliminary view. without having taken
proper instructions, as I have iust mentioned, is that the report Is not
extending the claim at all. Therefore, in fact, the experl who prepared the
report for the main claimants prepared it based on the description, on the
property description that was given to him by the claimants. It must be borne
in mind that the claimants gave the historical property description and
35
boundaries in some or most of the instances in which they gave the property
description of the claimed land, which may have caused the problems or the
confusion that the claim is being extended. Otherwise ... [intervenes]
COURT: Okay. So we are hopeful that the land that has been gazetted is the
full extent of land. Is that what we are hoping will be the result of a further
discussion with the community, but you cannot bind yourself to it?
MR MADLANGA: As I say, Judge, our view is that the land claimed as
gazetted is the same land as reflected in the report. The only confusion that
may be there mav be as a result of the historical description which has been
given to the expert for him to prepare the report. And our submission is that
whoever or whichever party that is opposed to the report as it stands, may iust
raise an obiection to the admission of the report as evidence insofar as those
impugned parts of the report are concerned.
COURT: No, no, it cannot work that way because we need. I need. the Court
needs to have absolute c/an·ty before we go further as to whether the land
gazetted is the land that is being claimed in these proceedings.
(emphasis added)
92. The court then asked the other parties whether they would be agreeable to the
main claimants being given until 13 September to report back on whether or not
there is any additional piece of land to those that have been gazetted.
Mr Maluleke voiced his objection as follows:
: You should have started with me because this delay affects my clients heavy
and because each and eve,y time we come here, there is the delay which is
caused by the main claimant, and they have got the chunk of the properties
transferred to them. I have nothing. And it is very worrying that they get
postponement after postponement, and it is not warranted
36
The court then agreed to note Mr. Maluleke's concern should there be any further
delays on the part of the main claimants.
93. In all the circumstances the main claimants must have understood that it was now
to take the court's order seriously and that they had exhausted the patience of at
least the competing claimant.
94. Instead of complying with the order informing the court whether they wished to
include land that had not been gazetted, the Moletele gave notice that they would
not comply with the court order because of their view that it was ultra vires the
courts powers.
95. It is not possible for any reasonable litigant represented by a capable legal team to
believe, having regard to the relevant circumstances, that the operative part of the
order which required the main claimants to in effect comply with the undertaking
that had been given by their counsel as far back as 16 May could be ignored or
that the court had not, as far back as 16 May assisted the main claimants , if they
were entitled to add the land to do so formally despite the objections of the other
parties and the Commissioner that it was per se incompetent to do so.
96. In short, the main claimants were given every opportunity and opening to inform
the parties and the court in good time if they were claiming in the referral, which
was to be set down for trial dates, any land which had not been gazetted and then
to bring appropriate proceedings in good time.
97. The main claimants have given excuses for their failure, which are unacceptable.
The answer is simply that the main claimant have since at least 12 August refused
to supply the information and still refuse to do so. And they offer no explanation for
their continued refusal. They, through their legal team, would also know that the
trial cannot proceed if they intend to include land not yet gazetted and that delaying
a trial once set down for hearing would be at significant cost and delay to all the
other parties.
37
98. The court concludes that the failure to provide the basic information requested (and
earlier I highlighted in bold counsel's statements at the 12 August conferenc e), and
then to contend that the court acted ultra vires in calling for the information when
their counsel had undertaken to provide it (let alone bring the necessary
proceedings by dates suitable to them), can only be explained as deliberately
frustrating the court's functioning and disrupting the expeditious bringing of the
claims to finality in the least costly and most effective way as required by the Act
and now by s 25 of the Land Court Act . 22
99. It is now apparent that the main claimants consciously chose after further reflection
to revert to their initial position prior to the Commissioner's counsel indicating the
costs risks of pursuing what was contended by him and other parties at the 12
May pretrial to be impermissible under the Act.
100. These findings therefore make it incumbent on the main claimants to show, in
the words of Cloete JA "a demonstrably good case on the merits ... before
condonation could be considered."23
101. The only defence raised is that the direction of 16 May and the order of 12
August were ultra vires.
102. It is clear that the court has the power in terms of the Act, and now the Land
Court Act, and also the court Rules to direct and order a party to provide information
or bring appropriate proceedings in order to expedite and bring to trial readiness a
matter in the least costly manner. The parties were heard on the matter of providing
the information which is the subject of the 16 May and 12 August directions and
order, and the court exercised its discretion which a litigant cannot unilaterally
choose to ignore, let alone second guess.
22 These are the express requirements of s 25(1)(e) which provides that at a conference
"(1) The Courl may at any stage on its own accord or upon the request in writing of either
party direct the parties or their representatives to appear before it in chambers for a
conference to consider-:
(e) such other matters as may aid in the disposal of the action in the most
expeditious and least costly manner.
23 See the Weve/1 Trust case supra
38
More so where there are other claimants and over 500 landowners who have
waited already twenty or so years for finality and at the eleventh hour are to be
confronted, as a clear stratagem for whatever reason, by the main claimants with
the reality of further delay and unnecessary costs which the court, in the exercise
of its judicial discretion, is entitled avoid being incurred.
103. In regard to the sanction if there is non-compliance; simply put the court must
be able to make effective orders. It is no use continually requiring a party to comply
unless there is an effective sanction. It is a sanction which only took effect because
the claimant refused to take certain necessary steps, which in this case it had
agreed to at two conferences which were held three months apart from each other.
104. The sanctioning part of the directions and order were not final in effect. Both
provided that the main claimants could still show cause for non-complianc e and of
the merits of introducing any additional land to that already gazetted. It was their
election, and in their own hands, as to whether the sanction would be imposed.
They only had to comply with their undertaking to avoid such consequences­
consequences which the court Rules permit.24
This appears from the general rules of court which preclude a party from pursuing
a claim or raising a defence if it fails to comply with court rules, orders or directions.
The provisions of rule 32(7) read with subrule (5) and rule 26(2), which have
already been dealt with, are to this effect. The direction of 16 May and the court
order of 12 August fall within the application of these rules and their purpose.
105. It is clear also that the parties had agreed to separate the referrals. There is
nothing to preclude the main claimants from pursuing any other claims for land
which has not been gazetted; just not in the present proceedings under the
24 Compare AG v DG (2016) ZAGP JHC 234; 2017 (2) SA 409 (GJ). There the respondent petitioned the Supreme
Court for Appeal inter a/ia on the grounds that the trial court could not order his incarceration if he failed to
comply with its order to pay the outstanding maintenance within the further time afforded. The petition was
refused. In refusing leave to appeal at the earlier stage I held that it was the respondent's election to submit to
the sanction imposed if he failed to pay. He was to "Pay with funds that are dearly accessible to him or face
imprisonment. It is his election".
39
Referral Report to w~ich it relates, and which must now be brought to trial
readiness and have trial dates allocated.
106. Accordingly there were no grounds for contending that the court directions and
order were ultra vires and the defences raised for not complying with the operative
part and the subject matter of the directions and of the order of 16 May and 12
August fail.
107. The condonation application is therefore refused.
COUNTER -APPLICATION
108. The counter-application is brought by the Commission for an order declaring
that the referral and the case number LCC 206/2010 shall be confined to the farms
listed in annexures NR1A and NR1B to the notice of referral. 25
109. The main claimants object to the counterclaim on the grounds that it is
incompetent. It is not.
Save by reason of common law exceptions, a respondent is always entitled to bring
a counterapplication, particularly if it concerns the same subject matter and
evidence or point of law which requires traversing. The rules of this court, which
refer back to the Uniform Rules of Court where there is a lacuna say as much. The
only exception that comes to mind is in relation to spoliation orders where the
requirement that no one may take the law into their own hands overrides all other
considerations.
110. No such exception arises here, nor has Mr Notshe been able to refer me to one.
I therefore find that the opposition to the counter-application has no merit.
25 Although the notice of counter-application is signed by the State Attorney on behalf of both the Commission
and the Minister of Land Reform (the State Attorney representing both at this stage of the proceedings), the
body of the application only seeks orders on behalf of the Commission.
40
111. Secondly, the main claimants were obliged to plead over. A litigant is not
entitled to take the risk that its objection is sound or that its objection must first be
heard before it is obliged to plead over. This is well established, for otherwise it
may feed into the hands of those who seek delay when they have no defence to
the merits.
112. In the main proceedings for condonation the main claimants could produce no
argument or case law to support a submission that this court has jurisdiction to
hear a restitution claim in respect of land which has not been gazetted. However
the claim form may have been worded, the point remains that this court is seized
with a matter which must be brought to trial in respect of only a claim to land which
has been gazetted.
And there is no application or other procedure brought before this court to bring
any other piece of land within the jurisdiction of the court other than the land
identified in the Gazettes, despite the main claimants being given ample
opportunity to do so, whether during the case management meetings held all those
years ago before Gildenhuys J or even up to a year ago.
113. The main claimants have been well aware for a number of years that the
competing claimants are entitled to bring their claim before the court, and they can
only do so within the same referral which is presently before it and to which the
main claimants are also a party. The main claimants are also aware that all
landowners are entitled to finality and that, but for them holding up the proceedings
now for almost a year since 16 May 2024, this case could have been trial ready.
114. Any attempt by the Moletele to bring an application or other proceedings that
will introduce other pieces of land not yet gazetted into the present referral will
result in unwarrant ed and extended delay. They were given enough opportunity to
regularise their position but instead took a decision not to and wait until the trial
actually commences.
115. It is also apparent from submissions made by other parties that, including land
not previously identified by agreement between the parties ( which included the
41
main claimants properly represent ed) to be the subject matter of the present
referral, can lead to interminable delay and incur unnecessary costs. 26
116. It is clear from this court's findings that the main claimants intend to bring the
issue forward only at the eleventh hour, having been given ample opportunity to do
so, despite being appraised of the other parties' positions27.
117. In all the circumstanc es the court must cut the gordian knot. And this brings me
to those parts of the directions and the order which may still be considered extant
to the extent that they still afford the main claimants an opportunity to approach a
court to include ungazetted land if special circumstances are shown or a
substantive application is brought which includes an application for condonation
(the latter being contained in the order of 12 August in respect of which the main
claimants did not seek condonation, claiming that they did not have to).
118. It is therefore clear that this court's directions and the order of 12 August 2024
have not achieved the objective of the Land Court Act, the Act itself and the court
rules. Only the order sought by the Commission its counter-application will.
The reasons to summarise are; the court was unsuccessful in issuing the directions
and making the orders it did in May and August last year: The only effective way
of bringing this matter to trial expeditiously and in the least costly manner, after the
main claimants had been given every opportunity to get their house in order, if they
could, is to accede to the counter-application. In doing so the court accedes to the
trite proposition stated earlier, that only land which has been gazetted can be
subject to a court order for restitution. It will also enable the trial in respect of land
which has been gazetted in respect of both the main claimants and the competing
claimants to proceed as it now must.
26 These costs are not only those of the several hundred landowners but also a number of sets of costs which
would be borne ultimately by the fiscus. These costs would include those in respect of the Commission as the
participating party, the competing claimants as it receives State funded legal aid, and the Minister of Land
Reform and Eskom as defendants remaining in the main proceedings.
27 If all the land claimed has been gazetted (as was the possibility mentioned by Mr Madlanga in one of the
highlighted extracts from the transcript of the 12 August conference) then the legal representative s of the main
claimants would have been obligated to say so by now
42
119. It is necessary to add that the locus of the Commission has not been
challenged. I believe that as the body responsible for giving effect to the Act
generally and for bringing land restitution matters to finality it has a sufficient
interest in opposing the condonation application.
120. For reasons which are dealt with under the costs heading, the court considers
that the main claimants have abused its processes and have unduly delayed this
matter proceeding to trial to a sufficient degree to warrant granting the
counterapplication in favour of the Commission, as it will enable the trial itself to
proceed in the most expeditious and least costly manner as required by our law.
COSTS
121. Earlier in this judgment the court mentioned that the main claimants themselves
took the position that any decision of the RLCC stood until taken on review. A
litigant should maintain a consistent principled position. The main claimants have
not.
Mention was also made earlier that as far back as three July 2020 the main
claimants agreed to prepare statements of witnesses that would be provided by 31
August 2020 dealing with all the land claimed. These statements were due four
and a half years ago. Their surveyor's report surfaced almost one and a half years
ago, yet they wish to wait until the first day of trial and disrupt the proceedings . This
in the face of the statements made by their council at the conference of 12 August
which have been highlighted.
122. On 28 July 2021 I was obliged to give a judgment in respect of the provision of
continued funding for litigation out of State resources that was insisted upon by the
main claimants by way of an application for review against the Commissioner and
a stay of proceedings pending the final outcome of that review.
123. In that judgment the court mentioned that the Commissioner had given full
reasons for refusing to continue funding, yet the Moletele had persisted. The
court also indicated that however they wished to argue the point, the facts were
straight forward: Although the Moletele had initially required funding some ten
years earlier, since the matter was referred to court in 2010 significant amounts
of commercially exploitable land had been transferred to them under the Act. 43
At the time they sought continued funding for litigation, State land and significant
riparian rights had been transferred to them which was yielding an annual
revenue stream of over R20 million and enabled them to have accumulated
reserves (in other words undistributed after tax profits built over time) of close on
R141 million.
124. This court in its judgment said the following:
" Despite this, they continue to also receive funds earmarked for
indigent communities and individuals. The fund which provides the
finances for litigation is not a trough; it is taxpayers money intended by
legislation for a remedial purpose. The applicants ' decision makers
should have known better and have no excuse.
They are members of a community which itself has known hardship
and was rendered indigent through the greed and racial oppression of
others and itself sought and obtained funding which enabled the
members to secure what they have now.
I repeat; if anyone should know better it is them.
TMs case (i.e., for continued legal funding) is therefore also about
avarice, taking what is not meant for the applicants and about violating
our constitutional construct of ubuntu. 28"
28 S v Makwanyane andAnother1995 (3) SA 391 (CC) at para 237 perMadala J; Barkhuizen vNapier
2007 (5) SA 323 (CC) per Ncgobo J (at the time) al paras 51 and 73; Everfresh Market Virginia (Pty)
Ltd v Shoprite Checkers (Ply) Ltd 2012 (1) SA 256 (CC) at para 71 per Moseneke DCJ. See also
Beadica 231 CC and others v Trustees, Oregon Trust and others 2020 (5) SA 247 (CC) at paras 17
44
125. In its judgment of July 2021 the court, when dealing with the application to stay
proceedings pending the final outcome of review proceedings mentioned (at paras
46 and 47) its concern;
".. .. that the applicants have adopted an unnecessarily rigid approach which
may have driven costs up unnecessarily. By way of illustration the engagement
of Telkom appears to have resulted in costs that could have been readily
avoided, as too with the present application which has no merit and was ill
advised
Equally important in respect of the application to stay proceedings is that the
competing claimants have had none of their claims determined while the
landowners have been prejudiced as a result of the uncertainty of the litigation
which has dragged on for such a lengthy period. Time is also no one's ally in
litigation save for those who suffer no adverse consequences."
That was said in July 2021
126. The judgment of July 2021 also dealt with the courts concern regarding
unnecessary litigation. It is apposite that the factors which weighed with the court
in not making special orders at that stage be repeated because the main claimants
and their legal representatives have failed to heed them. I said the following:
"57. What I have said, and am about to say, is with a heavy heart. I have
come to know this relatively small community of legal practitioners and
believe that the working relationship with the Court is a good one.
Nevertheless , I cannot shirk my responsibilities to litigants generally and
more particularly the individual members of the applicants' communities
going forward.
and 35 and especially Victor AJA at para 207 to 21 O citing Makwanyane and Evetfresh in relation to the
constitutional value of ubuntu permeating the general body of our law.
45
58. A cost order against the applicants depletes the amount available for
distribution to each member and, exponentially, the next generation of a
claimant community.
59. The options available to a court are few.
A court can hold to account those within the applicants ' communities
responsible for this wholly unnecessary litigation while debarring them
from having recourse to the applicants' funds whether held via the CPA
or otherwise.
A court can also consider holding one or more of the legal
representatives to account. This would entail a separate enquiry as to
whether the obdurate attitude of the client was the real cause. And if it
was, whether despite their responsibilities as officers of the court the
lawyers were bound by the instructions, and whether any one or more of
those responsible for persisting with this irresponsible challenge to the
Commissioner's decision should be deprived of their costs aside from
paying the costs of the other litigants de bonis propriis-or whether on
circumspection such orders would stifle vigorous and independent
representation.
60. Each of these considerations are raised in light of a fundamental concern
on the part of this Court; that the ordinary members of the applicant
communities should not be prejudiced by sanctionable conduct taken in
their name, but not necessarily with their approval.
127. The court concluded that:29
29 At para 61 The Court however has a greater responsibility to the applicants'
individual members and looking fo,ward both the decision makers and
46
the legal representatives are implored not to embark on spurious
litigation. If the court in the future finds on the merits that spurious
litigation has been embarked on by any party. then it will enquire as to
who is responsible and determine whether a party is obliged to pay for
the folly of others or whether the individuals responsible should do so
personally. (emphasis added)
128. The court did its best to inform the legal representatives of its concerns going
forward and said:
" What I have said, and am about to say, is with a heavy heart. I have come to
know this relatively small community of legal practitioner s and believe that the
working relationship with the Court is a good one. Nevertheless, I cannot shirk
my responsibilities to litigants generally and more particularly the individual
members of the applicants' communities going forward.
129. The caution set out in thatjudgment has not been heeded and the court cannot
be expected to turn a blind eye, notwithstanding the effect it may have on our small
community, when a party persists with spurious litigation, which to the knowledge
of the main claimants is disruptive and negates the object and purpose of bringing
matters to trial expeditiously and avoiding unnecessary costs. This court cannot
shirk from its responsibiliti es of acting impartially and without fear, favour or
prejudice.
130. The failure to comply with the directions and orders in the present matter, the
notice to set them aside and the condonation application itself, still without
providing the information required, was spurious.
131. In the present matter the Commission applies for costs on the attorney and
client scale.
47
This is a clear case where it should be granted for reasons that should appear clear
from the judgment.
132. The question is who should pay these costs.
The main claimants are well able to pay for failed litigation and should do so
particularly where they continue to delay the matter from finalisation and put all the
other parties at risk of incurring unnecessary legal costs.
133. However it is not clear whether the community as a whole or the CPA
Committee members are in fact benefitting from these actions. In part my concern
arises because I already raised concerns about the CPA's financial accountability
to the Moletele community in the judgment of July 2021.30
134. Accordingly a suitable order is made which calls on the CPA committee which
heads the community, and which was responsible for bringing the condonation
application by way of the resolution referred to earlier, to show cause why each of
its committee members should not be personally liable to pay the costs de bonis
propriis as opposed to the community as a whole. An order is also made for the
applicants' attorney and legal counsel to show cause why they should not be
deprived of the fees in bringing the application for condonation, the notice of 12
September and of attending the conferences of 16 May and 12 June where its
deliberations were ignored whether in whole or in part or why the CPA Committee
members should not personally bear these costs of their legal representatives de
bonis propriis and not the community as a whole.
ORDER
135. The following order is therefore made:
1. The application for condonation brought on behalf of the
claimants under case number LCC 206/2010 (hereafter referred
30 The main claimants had contended that all assets acquired were illiquid. It required a court order and
further delay before the financials were produced which clearly showed that this was just not so
48
to as the "main c/aimants'J is dismissed with costs on the attorney
and client scale in favour of the Commission on the Restitution of
Land Rights ("the Commission ') , such costs to include the costs
of two counsel, the liability for such costs to be determined at the
hearing provided for in paras 3 and 4 below.
2. The counter-application is granted and the referral under case
number LCC 206/2010 shall be confined to the farms listed in
annexure NR1 A and NR1 B to the notice of refeffal, the costs lo
be on party and party scale C in favour of the Commission,
including the costs of two counsel, such costs to be borne by the
main claimants. This replaces the directions and order of 16 May
2024 and 12 August 2024 respectively.
3. Each member of the Committee of the Moletele Communal
Property Association ("the CPA Committee H) who passed the
resolution of 16 January 2025 authorising the application for
condonation , such resolution being annexure A to the application
("the said resolution"), shall show cause to this court on Tuesday
17 June 2025 al 10am whether each of them personally and not
the main claimants per se should bear the costs order as set out
in para 1.
4. In order to deal with the liability for paying the costs order as set
out in para 1:
a. By no later than Friday 16 May the main claimants shall
deliver to the court;
i. a minute of the meeting and a note of those who
attended (if not contained in the minute) in terms of
which the said resolution was passed identifying the
members of the CPA Committee who were present;
49
ii. a list of office bearers of the CPA Committee
together with their physical addresses and emails
for purposes of service of this order.
b. By no later than Friday 23 May the Commission shall serve
on those persons identified in the documents provided
under sub~para (a), and should no such document be
provided, on the persons who are identified as members
of the CPA Committee in the most current official returns
required under the Communal Property Association Act 28
of 1996.
c. By no later than Friday 13 June 2025 each member of the
CPA Committe e shall file an affidavit setting out why they
should not be held personally liable for such costs jointly
and severally with eve,y other member of the Committee
having regard inter alia to any meetings held with the main
claimants whereby they obtained specific authority to bring
such application in any general or special meeting and the
precise information provided and the minutes of such
meeting or meetings to enable the court to determine the
details that were provided at such meetings to enable an
informed decision to be made by those in attendance.
d. Jn the event that no such affidavits are tiled, or no member
of the CPA Committee appears at the hearing on Tuesday
17 June 2025, the court will detennine liability for the said
costs on the papers presently before it including those in
other applications that have been determined by this court
in matters involving the claimant community and which
include the review application brought against the
Commissioner by the main claimants relating to the
funding of legal costs.
50
5. Each of the legal representatives of the main claimants, being
its attorney of record and senior and junior counsel involved in the
said condonaNon application shall show cause to this court on
Friday 25 July 2025 at 1 0am whether each of them should not be
deprived of their costs in relation to the conferences of 16 May
and 12 August 2024 and the application for condonation referred
to in para 1 above as well as the main claimants' Notice of 12
September 2024, or whether such costs should be borne by the
CPA Committee members personally.
6. In order to deal with the issue of the legal representatives ' fees as
set out in para 5 above:
a. By no later than Friday 4 July 2025 each legal
representative shall deliver written submissions as to why
he should not be deprived of such costs or why the
claimant community as opposed to the CPA Committee
members personally should not bear their costs,
b. By no later than Friday 18 July 2025 the CPA Committee
shall deliver written submissions as to why, if its legal
representatives are not to be deprived of costs, each of
them personally (and jointly and severally), and not the
main claimants, should be liable for such costs;
c. the main claimant's attorney shall ensure that this order is
served on each CPA Committee member by no later than
Friday 16 May 2025 and the returns of service shall be
filed at court by no later than Wednesday 21 May 2025.
DATE OF JUDGMENT AND ORDER: 5 May 2025
DATE OF REVISION: 7 May 2025
FOR THE MOLETELE CLAIMANTS: Adv. V S Notshe SC
FOR COMMISSION: Adv. Z Madlanga
Ngoepe Attorneys
Adv. A Dodson SC
Adv. M Manetje
Maluleke Attorneys 51