1. The late filing of the amended notice of motion and the supplementary
affidavit is condoned.
2. The application for review is dismissed.
3. The matter is remitted to the Eastern Cape Regional Land Claims
Commission for final determination, within 30 days of this order, in
accordance with the provisions of the Restitution of Land Rights Act.
JUDGMENT
DU PLESSIS J
Introduction
[1] This matter arises from a protracted dispute over the compensation awarded
pursuant to a successful community land claim in terms of the Restitution of Land
Rights Act 22 of 1994 (“the Restitution Act”). The original dispossession occurred in
1977, when th e Mkutuka family along with many other families that form part of the
Mlungisi Community were forcibly removed from property R319 in White City, Mlungisi
(Queenstown), to Ezibeleni.1
[2] The core of the dispute is the entitlement to the outstanding compensation
following a partial payment made to the late Ms Novillage Mkutuka (" Novillage"), who
purportedly lodged a restitution claim in 2003. Novillage passed away in 2010 after
receiving 50% of the amount awarded. The present application concerns the
distribution of the remaining 50%.
[3] The applicants are Ms Nothemba Mkutuka ("Nothemba") and Nomtsha
Mkutuka ("Nomtsha"), daughters of the late Mr Jeremiah Mkutuka ("Jeremiah") and
Novillage. They seek an order declaring that the Second Respondent, Mr Zithembile
Mkutuka ("Zithembile"), was unlawfully registered as a beneficiary of the restitution
1 The forced removals were implemented in terms of section 2 of the Natives (Urban Areas)
Consolidation Act 25 of 1945 and by Proclamation Notice no 600 of 1962).
2
award and is not entitled to any portion of the outstanding amount. They contend that
he is not the biological child of either Jeremiah or Novillage and assert that his
registration was fraudulent.
[4] The matter has a complex procedural history, which will be outlined below.
[5] To facilitate the understanding of the various issues, this judgment is structured
in three parts. First, it sets out the relevant background facts concerning the restitution
claim and the subsequent settlement relating to the Mlungisi community. Second, i t
addresses the procedural points in limine raised by the parties. Third, it considers the
substantive merits of the claim. A final, ancillary issue concerns the role and conduct
of Mr Mbebe, who purported to represent the applicants during the earlier sta ges of
the litigation.
Background facts to the claim
The forms on record
[6] A community claim was lodged before 1998. There is limited information
available regarding this claim. However, a ttached to Zithembile's affidavit is a n
unsigned "section 42D agreement" . It stipulates that the "claimant family" would
receive R139,281. There was a reference to 50% financial compensation and 50%
development. The form indicates Nothemba (clause 1.8) as the representative of the
family claim and, therefore, the claimant. The agreement also indicates that this is part
of the Mlungisi community claim, which was settled in May 2003.
[7] The agreement stipulates that the State shall pay R69,640 as settlement of the
claim, divided as per Annexure A. It is not clear what Annexure "A" refers to; however,
immediately following this agreement in the file is a verification specification form from
the Commission on Restitution of Land Rights (“The Commission”) , listing the
applicants and the Third Respondent as direct descendants of Jeremiah. Nothemba
signed this form in her capacity as a representative of the family on 4 and 5 October
2011.
3
[8] This was accompanied by a "Family Tree Affidavit" (Annexure 1), also signed
by the Nothemba on 5 October 2011. The affidavit stated that the direct descendants
of the late Jeremiah Mkutuka included his spouse, Novillage Mkutuka, and his
children: Nothemba, Nomthsa, and Zithembile Mkutuka. Although neither this affidavit
nor the accompanying verification affidavit was commissioned, both were signed and
formed part of the documentation accepted by the Commission at that stage. There is
also a power of attorne y by Nomthsa appointing Nothemba as her lawful agent
concerning the property.
[9] These documents provided the foundation for the Commission’s decision to
register Zithembile as a beneficiary under the Mkutuka portion of the Mlungisi claim.
[10] Nothemba thereafter disposed of an affidavit (at the police) stating that she and
Nomthsa are the only children of the late Novillage. The date is somewhat unclear, but
it appears to be November 5, 2011. A few dates later, on 21 November 2011,
Zithembile deposed of an affidavit (at the police) stating that he is the son of Jeremiah.
This appears to be where the disagreement began.
The payment of compensation and the engagement with the Commission
[11] Fifty per cent of the compensation was paid to Novillage around 2004. It is
unclear whether this was related to the section 42D settlement, but given that the
community claim was settled the year before, I would presume so. This could,
however, not have been done in terms of the forms that Nothemba signed, as the
signing of the forms only took place in 2011. The remaining amount of R69,640.40
remained undistributed at the time of Novillage's passing in 2010.
[12] The applicants approached the Commission around 2011 to inquire about the
status of the remaining funds . The timelines surrounding this, and whether this
happened before or after they filled in the forms, are unclear. In response, Ms Pona of
happened before or after they filled in the forms, are unclear. In response, Ms Pona of
the Regional Land Claims Commission informed the applicants that Zithembile had
been registered as a 50% beneficiary of the remaining compensation. This information
came as a surprise to the applicants, who claimed that they had not authorised his
inclusion and disputed his entitlement to the restitution funds.
4
[13] Despite having previously acknowledged Zithembile as a descendant in the
verification documentation, the applicants now contended that he was not a biological
child of Jeremiah and that his inclusion was based on misinformation or fraud. They
asserted that he had been listed without their knowledge or consent.
[14] On 14 February 2012 , Mr Mbebe , purportedly representing the applicants,
wrote a letter to Ms Pona warning her not to pay money to Zithembile . Instead, Ms
Pona invited the parties for a consultation to resolve the dispute.
The start of litigation
[15] Instead of attending such a consultation, t he applicants launched an urgent
application under case number 399/2012 in the Mthatha High Court, seeking to
interdict the payment of compensation to Zithembile. That application was later
withdrawn after the Commission gave written assurances that no payment would be
made until the dispute was resolved.
[16] On 1 March 2012, the applicants initiated a new application in the Mthatha High
Court under case number 475/2012. This application, which forms the basis for the
current matter, sought declaratory relief that Zithembile’s registration was unlawful and
fraudulent. They alleged that , as the biological children of Jeremiah and Novillage,
they were the sole rightful heirs of Novillage in terms of a purported will, and thus
exclusively entitled to the outstanding compensation.
[17] On 14 May 2012, Ms Pona filed an answering affidavit. She confirmed that the
names of all beneficiaries, including that of Zithembile, had been supplied to the
Commission by the local Land Claims Committee. She also noted that the Commission
does not verif y paternity or inheritance disputes, but merely records the names
presented to it by recognised community structures. Ms Pona further indicated that
she had requested that an internal inquiry be conducted to resolve the dispute, but
that the applicants’ litigation strategy overtook this.
that the applicants’ litigation strategy overtook this.
[18] On 15 July 2013, the applicants filed replying affidavits in which they reiterated
their stance that Zithembile is not entitled to benefit from the claim and should be
5
excluded from the list of heirs. They argued that, as heirs of Novillage, they alone were
entitled to the balance of the restitution funds.
[19] The applicants argued that the Commission's decision was made unlawfully
and sought judicial review of it . The matter remained dormant for several years
thereafter. During this period, the applicants engaged with the Land Claims
Commission. During this engagement, the Regional Land Claims Commission sent a
letter dated 25 June 2019 (in response to a letter of 8 July 2010 that is not on the
record), which stated that 50% of the compensation would be allocated to Novillage’s
heirs and the remai ning 50% to Jer emiah’s descendants, including Zithembile. This
letter later became the subject of the amended notice of motion in which the applicants
challenged it as an administrative action under PAJA.
[20] In May 2021, the matter was transferred to the Land Court by order of Brooks
J. Zithembile filed an answering affidavit in May 2021 after the matter was transferred
to this Court, asserting that he is the son of the late Jeremiah, born of a relationship
with Ms Evelyn Ntshanga ("Evelyn"). He stated that although not born of the marriage,
he was raised in Jeremiah’s household, bore the Mkutuka surname, and was treated
as a son. Novillage cared for him; his father was the person who accompanied him
during his initiation ceremony and negotiated his lobola. He knows he is not the son
of Novillage, and he does not lay claim to her inheritance. He asserts that he is entitled,
as a descendant of Jeremiah, to 50% of the claim, in terms of s 2 of the Restitution
Act.
[21] In an explanatory affidavit, he further elaborated on the delays and procedural
confusion surrounding the matter . He attributed much of the disarray to the
involvement of Mr Mbebe and the organisation known as Public Defenders, which
purported to represent the applicants. Mr Mbebe’s involvement became increasingly
purported to represent the applicants. Mr Mbebe’s involvement became increasingly
controversial. Though not a legal practitioner, he had engaged the Commission on
behalf of the applicants and appeared in correspondence and processes as if
representing them formally. This issue will be addressed separately at the end.
[22] In response, the applicants assert that nobody has confirmed Zithembile as the
child of Jeremiah and Novillage, and that he is entitled to 50% of the estate as
6
Jeremiah's child. They outline their position as follows: they are 100% beneficiaries
and heirs of their mother's estate. They reference section 2(3) of the Restitution Act.
Based on that, they state that Zithembile does not qualify in Jeremiah's estate. Since
Jeremiah died before Novillage, she inherited his entire estate (one joint estate), which
they now inherit.
[23] They furthermore point out that Zithembile did not attend the meeting of the
people who were removed to lodge their compensation claims.
[24] At the first hearing correctly set down before this Court in Randburg on 5 March
2024, Mr Mbebe failed to appear. After hearing the respondents, the following order
was granted by Cowen DJP:
16.1.1. The application is dismissed with costs on a party and party scale.
16.1.2. The matter is remitted to the Eastern Cape Regional Land Claims
Commissioner to:
16.1.2.1. Verify the beneficiaries of the late Jeremiah Mkutuka in respect of
compensation for his dispossession; and
16.1.2.2. Resolve any dispute regarding compensation that may ensue in
terms of the Commission’s internal dispute resolution processes
within thirty days of the order.
[25] During subsequent case management meetings, it became apparent that Mr
Mbebe is not an admitted legal practitioner. It was accordingly agreed that the matter
should proceed afresh, once the applicants had secured legal representation. The
court is indebted to Mr Mhlawuli, who agreed to represent the applicants on a pro bono
basis.
[26] At a pre -trial conference held on 28 February 2025 before Cowen DJP, Mr
Mbebe confirmed that he was not an attorney, but ran an organisation called Public
Defenders. He relied on section 38 of the Constitution to justify his appearance. Cowen
DJP indicated that, while she would hear argument on that point, her preliminary view
was that only admitted legal practitioners are entitled to represent parties in the Land
was that only admitted legal practitioners are entitled to represent parties in the Land
Court. The applicants then undertook to secure legal representation.
7
[27] Mr Mhlawuli subsequently came on record. At the following case management
meeting on 20 March 2025, he indicated that he was not yet in a position to make
concrete proposals, having been briefed only recently. On 26 March 2025, Cowen DJP
raised concerns about the procedural history of the matter, the earlier order dismissing
the application, and the existence of a disputed settlement agreement. It was
suggested that the matter be reargued de novo and that the hearing be held in the
Eastern Cape. Given the modest quantum of the claim, Cowen DJP offered to assist
the parties in pursuing a settlement through mediation, but also indicated that she
would not be in a position to preside over the hearing should that fail. Mr Msiwa SC,
on behalf of the respondents, indicated that settlement was not possible based on the
existing papers.
[28] A further meeting was held on 2 April 2025. Cowen DJP reiterated the view
that, in light of the irregular representation previously and in the interests of fairness,
the matter should proceed afresh. Mr Mhlawuli was still considering the procedural
options. Mr Msiwa SC maintained that the alleged settlement agreement was tainted
by fraud and sought to ventilate that issue through oral argument. It was agreed that
heads of argument would be filed on 23 April 2025 (applicants) and 2 May 2025
(respondents), and the matter was set down for hearing in Mthatha on 15 and 16 May
2025.
[29] On 25 April 2025, and contrary to a directive of this Court, the applicants filed
an amended notice of motion instead of heads of argument. The case was thereby
transformed into a review application under the Promotion of Administrative Justice
Act2 (PAJA). The applicants contended that the letter sent on 25 June 2019 by the
Land Claims Commission to allocate 50% of the outstanding compensation to
Zithembile is a "decision" for purposes of PAJA, and thus constituted administrative
Zithembile is a "decision" for purposes of PAJA, and thus constituted administrative
action, reviewable on grounds including error of law, procedural unfairness, failure to
investigate a material fact, lack of authority, and possible bias arising from the shared
representation of parties.
2 3 of 2000.
8
[30] On 7 May 2025, a final pre-trial conference was held. The applicants delivered
a supplementary affidavit, which the respondents objected to. Nevertheless, both
parties indicated that they were ready to proceed. The applicants argued that oral
evidence was unnecessary, while the respondents maintained that it was necessary
to resolve factual disputes surrounding the purported settlement and the affidavits.
[31] Following these developments, the Judge President reallocated the matter to
me, and I presided over the hearing in Mthatha.
[32] A hearing was conducted in Mthatha on 14 to 16 May 2025. The parties made
submissions on the procedural and substantive issues, including the validity of the
amended notice of motion, the nature of the decision under review, the eligibility of the
second respondent as a beneficiary, and the proper interpretation of “descendant”
under the Act. The Court also heard arguments on the implications of the applicants’
late-stage reliance on PAJA and the irregular role played by Mr Mbebe in earlier
proceedings.
[33] The relief sought in the amended notice of motion was extensive. It included
the removal of the Second Respondent from the list of beneficiaries, an order directing
that he undergo paternity testing, and an instruction to the Commission to pay the
remaining compensation to the applicants. They further requested an exemption from
the obligation to exhaust internal remedies.
[34] Although the applicants initially sought wide-ranging relief, including ordering a
paternity test, expunging the second respondent from the list of beneficiaries, and
directing payment of the outstanding compensation, they ultimately narrowed their
case to a review application under PAJA. The only relief that persisted was the review
and setting aside of the alleged administrative action (the June 2019 letter), as well as
condonation for late filing, exemption from the duty to exhaust internal remedies, and
condonation for late filing, exemption from the duty to exhaust internal remedies, and
costs. As the hearing progressed, it became clear that the compensation issue
ultimately falls to be decided by the Regional Land Claims Commissioner.
[35] This narrowing of the relief sought also narrowed the Court’s enquiry and the
relevance of certain factual disputes that were previously central to the case. The role
9
of this Court became limited to clarifying the applicable legal framework and its
application to the facts of this case.
[36] Before addressing this issue, the points in limine raised by both parties must be
addressed.
Points in limine
[37] The respondents raised three points in limine. Firstly, that the parties were
incorrectly cited, and secondly, that there is no "decision" to review (PAJA is not
applicable). L astly, the issue of the purported settlement agreement, and whether
evidence should be led on the purported settlement agreement between the applicants
and the Zithembile.
Citation of the parties
[38] There was some debate over the correct citation of the parties. The
respondents, relying on Ms Pona's answering affidavit filed in 2012, point out that only
the Second Respondent is cited correctly, and no order is sought against him. They
assert that the parties are not cited correctly. This will specifically become a problem,
they state, when the court grants an order in favour of the applicants – they will not be
able to enforce it because the parties cited do not exist.
[39] Although the parties have been incorrectly cited, their identities were
ascertainable from the context. The addresses and the roles set out in the affidavits
lead me to conclude that the intended parties were the Minister of Land Reform and
Rural Development, the Regional Land Claims Commission, and Ms Pona, the person
alleged to have made the decision in the office of the Regional Land Claims
Commission. This is also clear from the descriptions in the founding affidavit. When I
asked Mr Msiwa SC who instructed him, it became evident that the parties the
applicants intended to cite were before the court and were duly represented.
10
[40] In response to the respondents' objection to the citation of parties, the
applicants brought an application from the bar in terms of Rule 22(7). Rule 22(7) states
that
"[t]he Court may, on application by any party during the hearing of a case, grant an
amendment of any document envisaged in subrule (1) on conditions (also relating to
costs) which it considers just."
[41] The rule reflects a purposive, substance -over-form approach to procedural
justice, allowing courts to cure technical defects where doing so is just and facilitates
finality. In particular, the absence of prejudice to any party and the need for closure in
protracted litigation are relevant factors that I considered.
[42] I am accordingly satisfied that the parties before court were, in substance, the
correct respondents. The addresses, contextual descriptions, and legal representation
confirm this. It is, therefore, just to allow the amendment, particularly where the citation
error appears to stem from the early procedural defects probably caused by Mr Mbebe,
who was not a legal practitioner and who played a central role in initiating this litigation.
[43] This point in limine accordingly fails.
Was the 25 June 2019 letter a "decision"?
[44] The applicants contend that the letter of 25 June 2019, which sets out how the
Commission envisaged the claim to be paid, constitutes a ‘decision’ for purposes of
section 1 of PAJA and is thus susceptible to judicial review. Section 1 of PAJA defines
"administrative action" as:
“any decision taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial constitution;
or
(ii) exercising a public power or performing a public function in terms of any
legislation; or
[…]
11
which adversely affects the rights of any person and which has a direct, external legal
effect”.
[45] From this definition, the elements of an administrative action are
a. a decision
b. by an organ of state (or a natural or juristic person)
c. exercising a public power or performing a public function
d. in terms of any legislation (or in terms of an empowering provision)
e. that adversely affects rights
f. that has a direct, external legal effect
g. and that does not fall under any of the listed exclusions
[46] In this instance, there is a disagreement on whether the letter of 25 June 2019
constitutes a "decision", defined as:
"any decision of an administrative nature made, proposed to be made, or required to
be made, as the case may be, under an empowering provision, including a decision
relating to—[…]"
[47] For a decision to qualify as a "decision", a measure of finality is required in the
administrative action, especially where the administrative process is multi-staged.3 In
other words, the process must be finalised before one can evaluate it against the
requirements of PAJA.
[48] While the phrase “proposed to be made” may appear not to imply finality of a
“decision,” this must be read alongside the further requirement that the action must
have a direct, external legal effect. That additional element reinforces the need for
finality. A mere proposal, lacking legal consequence, would generally not meet this
threshold and thus would not constitute administrative action.
[49] The letter proposes an allocation of compensation among the descendants of
Jeremiah. The final determination can only be made once the Commission has
3 Hoexter & Penfold Administrative Law in South Africa (2021) p 324.
12
properly resolved the dispute between the parties . It attempted to do so by inviting
parties to attend a consultation to resolve the dispute. That process has not occurred,
for reasons outlined earlier. As such, no final or binding decision has been made. The
letter merely represents the Commission’s provisional stance or working opinion, not
a definitive administrative act with external legal effect on the parties’ rights or
entitlements. Ms Pona, in the oral evidence that she gave in court, again confirme d
that the dispute must still be settled.
[50] Seen in the context of this matter, the letter of 25 July 2019 does not constitute
a "decision" as contemplated in PAJA. It reiterates the stance of the 2012 letters. The
dispute still needs to be resolved. The applicants must cooperate.
[51] There is, therefore, no administrative action that can be reviewed.
Condonation for late filing
[52] Having reformulated their case as a review, the applicants wanted to submit a
supplementary affidavit. They referred to Rule 35 of the Land Court, which states that
in review applications, parties may add to their papers after obtaining the record. Since
no records were available, they argued they were entitled to a supplementary affidavit
to address this issue as well. Mr Mhlawuli argued that accepting the supplementary
affidavit would serve "the interests of justice.” While this may be true, the concept of
"interest of justice" remains somewhat abstract. Mr Mhlawuli did not specify which
principles or facts would make this abstract concept more concrete in this case.
Without such principles or facts, the "interest of justice" remains an unanchored idea.
[53] Be that as it may, I do not have an issue with allowing the filing of the
supplementary affidavit, nor do the respondents. Mr Mhlawuli's contention that now,
with the amended notice of motion and the supplementary affidavit, and absent a reply
thereto, the matter is in a sense unopposed, cannot hold. In assessing the issues, the
thereto, the matter is in a sense unopposed, cannot hold. In assessing the issues, the
court considered the record as a whole and evaluated the issues holistically.
13
Settlement agreement and oral evidence
[54] The question of whether oral evidence should be led regarding the disputed
settlement agreement and accompanying affidavits was raised as early as 28
February 2025. The respondents consistently requested oral evidence. While the
applicants submitted that it was unnecessary, they indicated a willingness to proceed
if so directed. Cowen DJP deemed it important in the case at the time.
[55] In the final pre -trial minute of 7 May 2025, the parties identified the witnesses
to be called, confirming their preparedness.
[56] The issue of whether oral evidence should be heard regarding the purported
settlement agreement was raised on the first day of the hearing. The applicants
submitted that this agreement was no longer relevant, as they did not rely on it for any
relief, and that it would not assist the court in determining what is now review
proceedings. They argued that there was nothing for the court to resolve and that
pursuing oral evidence would unduly prolong the matter.
[57] On the first day of the hearing, the respondents indicated their intention to lead
oral evidence regarding the purported settlement agreement, alleging that it was
procured fraudulently and involved a non-admitted legal representative. After hearing
the argument, I ruled , without committing myself to a final view , that oral evidence
would be allowed, as only once the evidence was heard could its relevance be properly
assessed. Given the recent amendments to the notice of motion and the resulting
uncertainty, I deemed it necessary to serve the interests of justice, as it ensures that
relevant evidence is considered, rather than unfairly excluded.
[58] In hindsight, I am satisfied that the purported settlement agreement does not
effectively resolve the remaining core issues in this matter. The allegations that the
agreement was fraudulently induced and Mr Mbebe's role in it might be necessary for
agreement was fraudulently induced and Mr Mbebe's role in it might be necessary for
other purposes, but not for this application. Mr Mbebe is not a party to these
proceedings, and no legal relief is sought against him. In these circumstances, it is
neither necessary nor appropriate for this court to make any finding on the validity o r
14
enforceability of the purported settlement agreement. That issue falls outside the
scope of the relief sought.
The law
[59] The main question is: Who is entitled to the outstanding compensation awarded
in respect of the land claim lodged ? This question is not one the Court can answer
definitively based on the current record without usurping the statutory functions of the
Commission. That function falls squarely within the mandate of the Regional Land
Claims Commission to investigate and determine such disputes under the Restitution
Act. What I aim to do is to clarify the legal framework in which the decision must be
made.
The Restitution of Land Rights Act
[60] The starting point is section 25(7) of the Constitution that provides that:
“A person or community dispossessed of property after 19 June 1913 as a result of
past racially discriminatory laws or practices is entitled, to the extent provided by an
Act of Parliament, either to restitution of that property or to equitable redress.”
[61] The Restitution of Land Rights Act was promulgated to give effect to this. When
considering this matter, it is important to recall the purpose of the Act and the broader
objectives of restitution. The Act is an attempt to remedy some of the injustices of the
past, specifically those arising from racially discriminatory laws and practices that
deprived people of their rights in land.
[62] The inquiry would have to start with " who is the claimant"? Section 2 sets out
who is entitled to restitution:4
“2. Entitlement to restitution —
4 Before its amendment by the Land Restitution and Reform Laws Amendment Act 18 OF 1999, the
section read: 2. Entitlement to restitution —
(1) A person shall be entitled to restitution of a right in land if—
(a) he or she is a person or community dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices or a direct descendant of such a person; and
[…]
15
(1) A person shall be entitled to restitution of a right in land if—
(a) he or she is a person dispossessed of a right in land after 19 June, 1913 as a result
of past racially discriminatory laws or practices; or
(b) it is a deceased estate dispossessed of a right in land after 19 June, 1913 as a
result of past racially discriminatory laws or practices; or
(c) he or she is the direct descendant of a person referred to in paragraph (a) who has
died without lodging a claim and has no ascendant who—
(i) is a direct descendant of a person referred to in paragraph (a); and
(ii) has lodged a claim for the restitution of a right in land; or
(d) it is a community or part of a community dispossessed of a right in land after 19
June, 1913 as a result of past racially discriminatory laws or practices; and
[…]
(3) If a natural person dies after lodging a claim but before the claim is finalised and—
(a) leaves a will by which the right or equitable redress claimed has been disposed of,
the executor of the deceased estate, in his or her capacity as the representative of the
estate, alone or, failing the executor, the heirs of the deceased alone; or
(b) does not leave a will contemplated in paragraph (a), the direct descendants alone,
may be substituted as claimant or claimants.
(4) If there is more than one direct descendant who have lodged claims for and are
entitled to restitution, the right or equitable redress in question shall be divided not
according to the number of individuals but by lines of succession.”
[63] The correct interpretation of section 2 of the Restitution Act is crucial to the
dispute. The first key point is that the critical moment for determining who may institute
a claim and under which section (i.e. 2(1)(a) – (c)) is the moment of dispossession,
not when the claim is made. The reason for that will become evident below.
[64] Section 2(1)(a) entitles a person directly dispossessed of a right in land after 19
[64] Section 2(1)(a) entitles a person directly dispossessed of a right in land after 19
June 1913 as a result of past racially discriminatory laws or practices to claim
restitution. This refers to a person who has personally experienced dispossession and
lodged a claim on time . If such a claimant dies after lodging a claim, s ection 2(3)5
5 (3) If a natural person dies after lodging a claim but before the claim is finalised and —
(a) leaves a will by which the right or equitable redress claimed has been disposed of, the executor of
the deceased estate, in his or her capacity as the representative of the estate, alone or, failing the
executor, the heirs of the deceased alone; or
(b) does not leave a will contemplated in paragraph (a), the direct descendants alone, may be
substituted as claimant or claimants.
16
provides for the substitution of the executor or direct descendants, depending on the
testamentary arrangements.
[65] Section 2(1)(b) applies to a scenario where the entity dispossessed was not a
living person, but a deceased estate. This is then the scenario where the registered
owner died before the dispossession, and the estate was still in existence at the time
of dispossession. The right to restitution then vests in the estate itself and is then
subjected to the estate administration process.6
[66] Section 2(1)(c) addresses the situation where the dispossessed person would
have qualified under section 2(1)(a), but died without lodging a claim. In such cases,
the direct descendants may claim instead of a dispossessed person who died without
lodging a claim (and would otherwise be entitled to claim under (a)), provided that no
other ascendant who is a direct descendant has already claimed. Section 1 of the Act
states that "direct descendant" of a person "includes the spouse or partner in a
customary un ion of such person, whether or not such customary union has been
registered."
[67] Dodson J in Mayibuye I-Cremin Committee Re: Sub 121 of Farm Trekboer,
District of Klip River KwaZulu -Natal commonly known as "Cremin" 7 clarified that in
terms of the Act, "direct descendant" does not carry the same meaning as intestate
heirs. He stated that:
‘A further indication that “direct descendant” in s 2(1) of the Act was not intended to
have the meaning contended for by Mr Rutsch is the definition of “direct descendant”
[i.e. an intestate heir of such a person] in s 1 of the Act. That expressly includes as a
direct descendant the spouse or partner in customary union of the person originally
dispossessed. This suggests that where a meaning other that the usual meaning was
to be included in the term “direct descendant”, it was expressly provided for. No
express provision whatsoever is to be found in the Act for the inclusion of intestate
express provision whatsoever is to be found in the Act for the inclusion of intestate
heirs as direct descendants. The use of the word “direct” to qualify “descendant” is
also used elsewhere in legislation and in the law of testamentary succession and is in
6 In re Former Highlands Residents 2000 (1) SA 489 (LCC) para 16.
7 (LCC28/96) [1997] ZALCC 8 para 36.
17
my view also a pointer to the adoption of the more usual meaning of descendant ie
blood relations in the direct line of descent (subject, of course, to the express inclusion
of spouses and partners in customary union as pointed out above).’
[68] The qualifications in (c)(i) and (ii) pertain to situations where, for example, the
children of a dispossessed person have already made a claim, which disqualifies the
grandchildren from claiming as well , presumably to avoid overlapping claims by
successive generations, and introduces a lineal hierarchy in the assertion of restitution
rights.
[69] Subsections 2(1)(a) – (c) thus deal with indiv idual claims in various forms.
Section 2(1)(d) enables a community to claim , if the community complies with the
definition of "community" in section 1, namely "any group of persons whose rights in
land are derived from shared rules determining access to land held in common by
such group, and includes part of any such group " (own underlining). It is essential to
note that the land is held in common, not by a group of individuals who have combined
their individual claims.
[70] Such a community claim may be lodged by a person who represents the
community.8 The Act allows for such claims to be brought on behalf of groups, and
8 Section 10 of the Restitution Act
10. Lodgement of claims
(1) Any person who or the representative of any community which is entitled to claim restitution of a
right in land, may lodge such claim, which shall include a description of the land in question, the nature
of the right in land of which he, she or such community was dispossessed and the nature of the right or
equitable redress being claimed, on the form prescribed for this purpose by the Chief Land Claims
Commissioner under section 16.
(2) The Commission shall make claim forms available at all its offices.
(3) If a claim is lodged on behalf of a community the basis on which it is contended that the person
submitting the form represents such community, shall be declared in full and any appropriate resolution
or document supporting such contention shall accomp any the form at the time of lodgement: Provided
that the regional land claims commissioner having jurisdiction in respect of the land in question may
permit such resolution or document to be lodged at a later stage.
(4) If there is any dispute as to who legitimately represents a community for the purposes of any claim
under this Act, the regional land claims commissioner having jurisdiction may in the manner prescribed
in rules made by the Chief Land Claims Commissioner in terms of section 16, in order to have a person
or persons elected to represent the community-
(a) take steps for drawing up a list of the names of the members of the community;
(b) direct that a meeting of such community be convened and an election be held at that meeting;
(c) take such other steps as may be reasonably necessary for the election.
(5) In any election in terms of subsection (4) all members of the community of 18 years or older shall
be entitled to vote.
18
settlements reached under this section often take the form of negotiated agreements
in accordance with section 42D of the Act. Section 42D(2) deals with the compensation
of such claims:
"(2) If the claimant contemplated in subsection (1) is a community, the agreement
must provide for all the members of the dispossessed community to have access to
the land or the compensation in question, on a basis which is fair and non -
discriminatory tow ards any person, including a tenant, and which ensures the
accountability of the person who holds the land or compensation on behalf of such
community to the members of the community."
[71] Such claims (and the settlements) frequently raise questions of group
membership.9
[72] The community usually holds rights independently of its members, with the
community itself as the primary rights holder, which claims restitution and receives the
award in its name as an entity in its own right, not as a representative of multiple
individuals. For this reason, it is not necessary to establish who the direct descendants
of the originally dispossessed individual community members are, as the claims are
not made by them. What is important is to identify the community membership and its
associated rules.10
[73] This is how section 2(1)(a) – (d) operates. The question is, under which section
does the claim in this case fall?
On the facts
[74] The section 42D agreement states that:
(6) In making the rules contemplated in subsection (4), the Chief Land Claims Commissioner shall have
regard to the cultural values of the community.
9 See for example Mazizini Community v Minister of Rural Development and Land Reform [2020] 3 All
SA 318 (SCA).
10See for instance In re Kranspoort Community 2000 (2) SA 124 (LCC) para 34 dealing with the
changing members of a community.
19
“The claimant is a member of the Mlungisi Community Claimants and accepts the
terms and conditions of the section 420 Framework Agreement entered into between
the Mlungisi Community Claimants of Queenstown, duly represented by their
chairperson, Mr. G Pindani and the State dated 04 May 2003.”
[75] The framework agreement is not attached. The agreement states that its
objective is to establish the framework and basis for settling this individual's claims.
The paragraph refers to "community claimants" and not the community as an entity.
However, after this, there is little clarity on how the commission envisioned the claims
to be paid. The documents that follow the section 42D settlement agreement were
submitted with the agreement and appear to indicate at least some intention to adhere
to the logic of section 2, with Nothemba acting as the claimant on behalf of the family.
[76] There is no information about Novillage's claim. The presumption is that this
would be a claim in terms of section 2(1)(a), which provides for restitution to the person
who was dispossessed. A further presumption is that she received 50% of the claim
as they were married in community of property. Since the compensation was paid
before her death , no other part of section 2 becomes relevant. The funds received
were part of her deceased estate, and any remaining assets at the time of her passing
were to be distributed following the applicable succession laws.
[77] Jeremiah's descendants are entitled to claim for his dispossession under
section 2(1)(c), if my presumption in the previous paragraph is correct, for his half .
This is because he was dispossessed while alive, but died before he could institute a
claim. Only his direct descendants, as contemplated in section 2(1)(c) read with
section 1, could bring the claim on his behalf. These include children and customary
law wives. Since Novillage and Jeremiah were married in terms of common law, she
law wives. Since Novillage and Jeremiah were married in terms of common law, she
would not qualify a s a descendant of Jeremiah. There is uncertainty around this,
however, as the "family tree affidavit" describes that Novillage is a descendant (as the
spouse) of the late Jeremiah. This might be the root of the misunderstanding. In that
case, Novillage's claim might not be a claim in terms of section 2(1)(a), but a claim in
terms of section 2(1)(c), or both.
20
[78] Section 2(1)(c) states who may claim for restitution. It does not, however, clarify
how the compensation is to be divided. Absent a settlement agreement or express
arrangement, I assume that the default position is that the compensation is to be
shared equally among all the qualifying descendants. Alternatively, the division may
be governed by the terms of a settlement agreement or by an agreement reached
among the claimants. In this case, neither party relied on the purported settlement
agreement between the parties.
DNA testing
[79] Central to this case is who qualifies as a direct descendant of Jeremiah . The
list originally included his children, Nothemba and Nomtsha, as well as Zithembile,
whose status is disputed. Zithembile asserts that he was raised by Jeremiah, given
his surname, and treated as a son under customary and social practice , such as
accompanying him to initiation and lobola negotiations . If these facts are confirmed,
even in the absence of a biological connection, he may still qualify as a descendant
under a purposive reading of section 2(1)(c), consistent with the objectives of the Act
to redress past injustice in a context-sensitive manner.
[80] A purposive reading of the Act, consistent with its remedial intent, must inform
how we understand the term “descendant.” On the version most plausibly supported
by the evidence, the second respondent at the very least grew up in Jeremiah’s
household from a very young age, and Jeremiah performed the roles and
responsibilities of a father to him. That understanding likely informed the first
applicant’s initial decision to include him as a descendant on the signed claim form.
[81] Such an interpretation is reinforced by the information on the removal
certificate, which indicates that Novillage, Nothemba , and Zithembile were
dispossessed of their rights in the land alongside Jeremiah, who was the owner. Their
rights might be different, but the dispossession is not . Put differently, Zithembile was
rights might be different, but the dispossession is not . Put differently, Zithembile was
a product of the same dispossession and suffered the same as other members of the
household.
21
[82] He was an adult at the time they were dispossessed, and most probably also
suffered the trauma of losing a home and being displaced. If the purpose of the Act is
to restore dignity and redress harm to those displaced by apartheid-era policies, then
the second respondent falls squarely within that remedial intention. A purposive
reading would therefore not unduly elevate the biological connection between
Zithembile and Jeremiah, but assess the situation as a whole. Such a reading would
recognise Zithembile as part of the family claim, as he was on the forms filled out by
Nothemba in October 2011.
[83] The task of confirming this fall to the Regional Land Claims Commissioner, who
is the designated decision-maker in terms of the Act. The Court does not seek to usurp
that function. However, to avoid future confusion and in the interest of finality, this
Court considered it appropriate to clarify the legal framework to guide the Commission
in its determination.
Family dispute
[84] Upon reviewing the files, it became evident that this matter, although presented
to the Court as an application for review, was, at its core, a family dispute. Nitpicking
the descendant issue and requiring invasive DNA testing overlooks the purpose of the
Act and appears to be a symptom of another underlying family dispute, to which the
court is not privy. While this Court acknowledges the inquisitorial powers it holds under
its enabling legislation, those powers are not without bounds. The Court remains
bound by the rules of evidence and may only consider evidence properly placed before
it in accordance with the notice of motion and accompanying affidavits. As such, the
court is not empowered to intervene in or resolve underlying family tensions that fall
outside the scope of the relief sought, even if those tensions are driving the conflict.
[85] Such disputes might be better resolved through mediation, which allows parties
[85] Such disputes might be better resolved through mediation, which allows parties
to examine the relational and historical factors behind their legal conflict. If the parties
had been able to address the core issues within the family via mediation, it could have
opened up space for resolving the legal dispute that ended before the court.
22
Mr Mbebe
[86] A central figure in this family dispute was Mr Mbebe. His involvement is also a
separate issue that arose early in the proceedings, which, although not directly related
to the restitution claim itself, has significantly influenced the conduct of the parties. As
Nomthsa's boyfriend, he appeared to have taken an active role in pursuing the matter
on behalf of the applicants. While Mr Mbebe denies ever misrepresenting himself as
a legal practitioner, his involvement has raised concerns, especially considering that
he is not a party to these proceedings.
[87] Mr Mbebe engaged with the Regional Land Claims Commission on behalf of
the two sisters and also appeared in court either on their behalf or representing them.
However, none of the court documents were signed by him. For instance, the original
notice of motion listed SG Mbelu & Co as the ap plicants’ attorneys. However, he
addressed a letter to the Land Claims Commission on 14 February 2012, stating that
“[w]e act on the instruction of the abovementioned person" , apparently in the form of
a letter of demand.
[88] In his affidavit, Zithembile stated that:
"I am advised that there is nothing legally called B.F Public Defenders in Mthatha
according to any legislation. The court is invited to protect the public from the
professional thuggery by the so -called entity which postulates itself as a legal firm of
attorneys or whatever. I am advised that for a firm of attorneys to practice, such firm
must have a fidelity certificate amongst other things. Mr Mbebe has no colour
whatsoever to practice in the thuggery manner he does with impunity to the public. I
do not know if he is a public defender in terms of which law because he has no legal
qualification entitling him practice either as attorney or as an advocate.
[…]
In our localities he postulates, masquerades himself and misrepresents himself as an
attorney, whereas he was a warder at Wellington Prison, Mthatha."
attorney, whereas he was a warder at Wellington Prison, Mthatha."
[89] Zithembile also asserts that, in his capacity as Nomthsa's boyfriend, Mr Mbebe
intends to derive benefit from this claim. The relationship between Zithembile and Mr
Mbebe is strained. This tension was apparent during Zithembile's testimony, when Mr
23
Mbebe raised an objection regarding the manner in which Zithembile addressed and
referred to him.
[90] The question is, absent a formal complaint, what is the court to do regarding Mr
Mbebe?
[91] When I explained in court that section 33 of the Legal Practice Act 11 provides
that only admitted and enrolled legal practitioners may appear on behalf of another
person in legal proceedings, he responded that he had no desire to become a legal
practitioner and that he had been assisting clients in court for 30 years. When I advised
him that such conduct is not permitted, he invoked section 38 of the Constitution, which
deals with legal standing. This reflects a misunderstanding of the law: legal standing
refers to a person's right to approach a court in their own interest o r the interest of
others under defined circumstances, whereas the right of appearance is the regulated
entitlement to represent another person in legal proceedings. These are conceptually
and legally distinct.
[92] The right of appearance is regulated against the norms and standards laid out
in the Legal Practice Act. These norms and standards regulate the profession and
ensure that the public is protected from conduct and practices that fall outside the Act
(and its regulations). This matter is so important that section 93(2) of the Legal Practice
11 28 of 2014.
Section 33. Authority to render legal services. — (1) Subject to any other law, no person other than a
practising legal practitioner who has been admitted and enrolled as such in terms of this Act may, in
expectation of any fee, commission, gain or reward—
(a) appear in any court of law or before any board, tribunal or similar institution in which only legal
practitioners are entitled to appear; or
(b) draw up or execute any instruments or documents relating to or required or intended for use in any
action, suit or other proceedings in a court of civil or criminal jurisdiction within the Republic.
(2) No person other than a legal practitioner may hold himself or herself out as a legal practitioner or
make any representation or use any type or description indicating or implying that he or she is a legal
practitioner.
(3) No person may, in expectation of any fee, commission, gain or reward, directly or indirectly, perform
any act or render any service which in terms of any other law may only be done by an advocate,
attorney, conveyancer or notary, unless that person is a practising advocate, attorney, conveyancer or
notary, as the case may be.
(4) A legal practitioner who is struck off the Roll or suspended from practice may not —
(a) render services as a legal practitioner directly or indirectly for his or her own account, or in
partnership, or association with any other person, or as a member of a legal practice; or
(b) be employed by, or otherwise be engaged, in a legal practice without the prior written consent of the
Council, which consent may not be unreasonably withheld, and such consent may be granted on such
terms and conditions as the Council may determine.
24
Act makes it an offence punishable by conviction or a fine for any person contravening
section 33.
[93] Absent such protection, the public risks paying money to untrained lawyers who
may provide poor legal advice, potentially saddling a party with a debilitating cost order
and other dire consequences of losing a case . Such a member of the public would
have no recourse against such a person, as they are not subject to the Legal Practice
Act or the disciplinary processes of the profession.
[94] It is unclear who must enforce this rule, as section 4 of the Legal Practice Act
states that the South African Legal Practice Council , established in terms of the Act,
only exercises jurisdiction over legal practitioners and candidate legal practitioners.
Still, since the objectives of the Act include enhancing and maintaining the integrity
and status of the legal profession, achieving this objective may involve taking
appropriate steps against individuals to protect the profession's integrity. Additionally,
any legal practitioner who becomes aware of such a contravention arguably has a
duty, as a member of the legal profession, to guard the integrity of the profession and
lay the appropriate charges with the Police.
[95] As there was no formal complaint before this Court, it would be improper of me
to make a finding against Mr Mbebe. However, also I am duty-bound to bring this to
the attention of the Legal Practice Council, which will determine the appropriate steps
to be taken against Mr Mbebe and the attorneys who assisted him in this matter and
possibly others. A copy of this judgment will also be sent to the registrar of the High
Court in Mthatha.
Conclusion
[96] If the applicants had attended the consultation in 2012, 13 years of legal
wrangling and mounting legal costs could have been spared. My only hope is that once
this judgment is delivered, Nothemba, Nomthsa, and Zithembile will cooperate and
assist the Regional Land Claims Commissioner in finalising the claim.
25
[97] While this litigation came at a great cost for the state, it does not warrant a cost
order against the applicants.
Order
[98] Accordingly, the following order is made:
1. The late filing of the amended notice of motion and the supplementary affidavit
is condoned.
2. The application for review is dismissed.
3. The matter is remitted to the Eastern Cape Regional Land Claims Commission
for final determination , within 30 days of this order, in accordance with the
provisions of the Restitution of Land Rights Act.
____________________________
WJ du Plessis
Acting Judge of the Land Court
Date of hearing:
14 – 16 May 2025
Date of judgment:
21 July 2025
For the applicants:
SR Mhlawuli, attorney with right of appearance
in the High Court
For the respondent:
PV Msiwa SC instructed by MT Mlola Attorneys
Inc