IN THE LAND COURT OF SOUTH AFRICA
Before: Honourable Ncube J
Heard on : 29 April 2025
Delivered on: 14 October 2025
DELETE WHI CHEVE R IS N O T APPLIC A BL E
(1) RE POR TABLE : ff'S1"NO
(2) OF INTEREST TO OTH ER JUD
(3) REVISED : 'rtS"J N O
rn*~
In the matter between:
GCUMISA LAND C LAIMS COMMITTEE
and
MIDLANDS NORTH LAND RESEARCH GROUP
OF AFFECTED LANDOWNERS
RUPERT HEINZ FORTMANN N .O .
MARG IT SIEGR ID FORTMANN N .O .
HERBERT HELMUT SCHULZ N .O.
WERNER PAUL SEELE
CASE NO : LCC 22/2007
PLAINT IFF
181 DEFENDANT
2 ND DEFENDANT
3 RD DEFENDANT
4 TH DEFENDANT
5TH DEFENDANT
Page 1 of 11
FRIEDA EMILIE WALTRAUT K OCH
EDUARD WILHELM SCHULZ
HELENE EDELTRAUT SCHRoDER N.O .
BRAIN LAMBERT KURZ N .O .
HILLERMAN BROTHERS PROPERTIES (PTY ) LTD
PETER JOHN DESMOND SMITH
RUDI HERMAN KAISER N .O .
WILLEM WOUTER FOURIE N.O .
BARRY GRUGER N.O.
MARK ANDREW KLIPP
WERNER ERNST ERICH SCHRoDER N .O .
RODNEY JAMES HORNER WHITLEY N .O.
REINHOLD HEINRICH GUSTAV SCHRoDER N.O.
CORNELIA HEIDI WORTMANN N .O .
ANELLE OLGA MAR X N .O .
ROLF GOTTFRIED THEODOR RENCKEN N .O .
IVAN STEVEN COLENBRANDER N.O.
CON C ERNIN G FARM S:
6 TH DEFENDANT
7 TH DEFENDANT
8TH DEFENDANT
9 TH DEFENDANT
1 Q TH DEFENDANT
11 TH DEFENDANT
12TH DEFENDANT
13TH DEFENDANT
1 4TH DEFENDANT
15TH DEFENDANT
16TH DEFENDANT
1 rTH DEFENDANT
1 STH DEFENDANT
19TH DEFENDANT
2Q TH DEFENDANT
21 ST DEFENDANT
22ND DEFENDANT
Portion 7 of the fann lot 10 N o 1845, Remainder of the fann Lot 13A No 1401, Rem ainder of Portion 9 of
the fann Lot 15 No 1896, Rema inder of Portion 1 of the farm 50 No 1865, Portion 50 No 1865, Portion 5 of
the fann Kleine Wa terval No 955, Rema inder of the fann W indy Hill No 15135, Portion 7 of the fann Jaag
Baan No 1117, The fann Botfield N o 16572, Portion 13 of the farm Killiekrankie No 2000, The farm Ho ney
Glen No 16123, The fann cooling No 15042, The farm wa terfall N o 14695, Rema inder of the fann No 987,
Portion 19 of the fann Waterval No 987, Potion 2 of the fann Ultvlugt No 1875, Portion 1 of the farm
Uitvlugt No 1875, Portion 25 of the farm Dalton No 2366, Portion 26 of the fann Da lton No 2366,
Remainde r of the fann Fawn leas N o 14691, Remai nder of Portion 1 of the fann Fawn Leas 14691,
Page 2 of 11
Remainder of Potion 1 of the farm Boiling Fountain No 1307, Remainder of Portion 9 of the farm Boiling
fountain No 1307, Portion 23 of the farm Boiling Fountain No 1307, Remainder of Portion 25 of the farm
Boiling Fountain No 1307, Portion 27of the farm Boiling Fountain No 1307, Portion 31 of the farm Boiling
Fountain N o 1307.
ORDER
1. It is declared that the Plaintiff is not a community as defined in the Restitution
of Land Rights Act, No. 22 of 1994.
2. The Plaintiff's claim for Restitution of rights in land is dismissed.
3. The issue of costs will stand over, to be argued on a date to be arranged
with the Registrar.
JUDGMENT
NCUBE J
Introduction
[1] This judgment is concerned with the following issues of law in terms of Rule
57 (1) (c) of Land Claims Court Rules:
(a) Whether the claim was lodged prior to 31 December 1998 as required in
terms of Section 2 (1) (e) of the Restitution of Land Rights Act ("the Act")
22 of 1994.
(b) Whether the claim form (in the absence of an attached list of farm names)
constitutes a claim form.
Page 3 of 11
(c) Whether there is any evidence that Sappi's land or any land owned by the
land owners represented by Cox and Partners and described in the gazette
notice, was identified in the claim form or is subject to the claim.
(d) Whether the claimant community as defined in section 1 as referred to in
section 2(1)(d) of the Act had or lost rights in land derived from rules
determining access to land held in common.
[2] On 03 D ecember 2024 at the close of the State Defendants' case, the
Landowne r Defendants motivated for the separation of issues as mentioned earlier in
this judgment. There w as no opposition from the Claimant State Defendants and
Sappi's legal representatives. I, on the same day granted an order that the above
mentioned issues be argued separately from the main trial
Was the claim lodged prior to 31 Dece m ber 1998?
[3] Section 2 of the Act deals with "Entitlement to restitution" and it provides:
"(1) A person shall be entitled to restitution of a right in land if:-
(a) he or she is a per~on dispossessed of a right in land after 19 June 1913 as a result
of past racially discriminatory laws or practices.
(b) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a
result of 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)
(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 racially discriminatory laws or practices; and
(e) the claim for such a restitution is lodged not later than 31 December 1998"1.
Therefore, for a person or, community to be entitled to restitution of a right in land, it
is important that the claim be lodged by no later than 31 December 1998. The date of
1 My own emphasis
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31 December 1998 is of utmost importance as it is a statutory requirement that the
claim should be lodged by no later than that date.
[4] In this case, the date of the lodgement of the claim is not clear. The date stamp
on the claim form is obliterated. A faxed copy of the claim form is attached as annexure
"A" to the referral report. It appears that the claim form was faxed together with other
documents as the copy of the claim form itself starts at page 6 of the documents,
meaning there were other five pages which were sent together with the claim form.
We do not know which other documents were faxed with the claim form. The State
Defendants called a witness Karrin Parkes ("Miss Parkes") to testify about the date on
which the claim was lodged. Miss Parkes could not tell the court the exact date of the
lodgement of the claim. She stated that the date and month are not clear from the date
stamp. The year "looks like 1998", she said. When cross examined by Mr. Khoza,
attorney for the claimants, whether the claim was lodged before the cut-off date, Miss
Parkes concluded that she cannot say the claim was lodged before 31 December
1998. As it is now , there is no evidence that the claim was lodged on or before 31
Decembe r 1998.
Whether a Claim Form (in the absence of an attached list of farm nam es)
Constitutes a claim forni.
[5] Attached to the referral report, is a faxed copy of the claim form. Paragraph 1
of the claim form requires the description of the property claimed. Paragraph 1.1. of
the claim form provides that if the land claimed is rural land, the portion, name , number
and the description of the farm must be indicated. The claimed land is described in the
claim form as follows:
"RURAL AREA-NEW HANDOVER DISTRICT. SEE ATTACHED LIST OF FARM
NAMES." There is no list of farm names attached to the claim form. Section 10 of the
Restitution of Land Rights Act2 ('the act") deals with the lodgement of claims and it
provides:
provides:
(i) "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 question3. the nature of the right in land of wh ich he or she or such
2 Act 22 of 1994
3 My own emp hasis
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community was dispossessed and the nature of the right or equitable redress being
claimed, on the form prescribed for this purpose by the Ch ief Land Claims
Commissioner under section 16."
The provisions of section 10 (1) with regard to the description of the claimed land, are
peremptory and cannot be ignored. In Makhuva-Mathebula Community v Regional
Land Claims Commissioner Limpopo and Another4, the court held that the claim form
is the primary source of information that is required in order to gazette the claim. The
description of the land claimed in the claim form, is a mandatory statutory requirement
and failure to comply with it, as in the present case, will invalidate the claim.
[6] Since the land claimed is not described in the claim form with the reference to
the farm names .it is not clear where the Regional Land Claims Commissioner("RLCC ")
got the names and numbers of the farms which he/she published in the Government
Gazette. The RLCC is not empowered to include in the Government Gazette the land
which is not claimed and not properly described by the claimant in the claim form. In
Torlaget and Another v The Minister of Agriculture, Land Reform and Rural
Development and Others5 Meer AJP as she then was , said:
'' . . . . . . . . . . . . . . . . .. No provision in the Act empowered the third R espondent to
include land that had not been claimed and to refer such land to the court in
terms of section 14 (1). The decision to include further properties is moreover
not rationally connected to the information that was before the RLCC ".
[7] Claiming someone's land as yours, is a serious matter. The claim must strictly
comply with the requirements of the Act. Publication of land in the Government
Gazette as a claimed land has serious consequences for the owner as he can no
longer deal with the claimed land as he pleases and w ithout the consent of the RLCC .
Reference to the claimed land as "Rural Area - New Hanover District" is not the proper
Reference to the claimed land as "Rural Area - New Hanover District" is not the proper
description of the claimed land which is required in terms of the Act. As this Court held
(per Geldenhuys J) in Minnaar NO v Regional Land Claims Commissioner -
Mpumalanga and Others,6 the publication of farms not claimed is not rationally
4 (1106/2018) [2019] ZASCA 157 (i8 November 20191
5 [2022] ZALCC & para 33
6 (LCC 42/06) [2006) ZALCC12 (8 December 2006)
Page 6 of 11
justifiable and should be set aside. The same holds good for publication of land wh ich
is not properly described in terms of the Act.
Whether there is any evidence that SAPPI Land or any land owned by the land
owners represented by Cox and Partners and described in the gazette notice
was identified in the claim form or is subject to the claim.
[8] As Mentioned earlier in this judgment the faxed claim form refers to the
"attached list of farm names". There is no list attached to the claim form. Basically,
farm name s and numbers of such farms are missing. In the absence of the list of farm
name s, there is no evidence that any land described in the gazette notice was
identified in the claim form . In fact it is not clear to me where the RLCC obtained the
names and numbers from.
[9] Even the witnesses who testified viva voce could not explain where the RLCC
obtained the farm names from. During inspection in loco, witnesses pointed at certain
farms which were not even on the gazette and consequently not claimed. Funukwazi
Ra phael Mbhele (' 'Mr Mbhele") only testified with regard to one specific farm. He
testified that his grandfather was removed from the place called "Chithiphalisht' which
later came to be known as "Khizolo" presently known as Kieliekrankie. The problem
is that even this farm is not described in the claim form.
[10] Muziwamadoda Ganet Gcumisa ("Mr Gcumisa) testified that his grandfather
narrated a story to him that his family left the place, which is today known as Louis,
because they we re abused by whites who placed a restriction on the number of
livestock which the family was entitled to keep. The name of the farm "Louis" also
does not appear on the claim form. Ms Dumazile Lucy Nxusa ("Ms N xusa") testified
w ith regard to Windy H ill which is owned by Sappi. She testified that her grandmother
Mamchunu told her, that they were evicted by whites from the place then known as
Esiphethwini Senyaninga River, presently known as Windy Hill Farm . The name
Esiphethwini Senyaninga River, presently known as Windy Hill Farm . The name
Windy Hill, likewise, does not appear on the claim form as one of the claimed
properties.
Wh ether the claimant community as defined in section 1 as referred to in section
2(1) (d) of the Res titution of Land Rights Ac t had or lost rights in land derived
from shared rules determ ining access to land held in common .
Page 7 of 11
(11] In an attempt to answer the above question, the starting point of exercise should
be section 2 of the Act which provides for entitlement to Restitution. It states:
"1. A person shall be entitled to restitution of a right in land if-
( a) .......... ..
(b) ........... .
(c) .......... ..
(d) it is a community dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices; and
(e) the claim for such restitution is lodged not later than 31 December 1998".
Section 1 (iv) of the Act defines a commun ity as follows:
Community "means 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". Section 1 (x) of the Act defines a right in land as "any right in
land, whether registered or unregistered'. To succeed in their claim for a restitution of
rights in land, the claimants had to prove that a community existed and that such
community lost a right in land after 19 June 1913.
[12] The evidence falls short of proving that claimants were a community and that
they lost rights in land after 1913.
In In re-Kranspoort Community 7. Dodson J said:
"The use of the present tense suggests that there must be a community (or part of a
community) which exists at the time when the claim is submitted and decided. At the
same time it must be a community or a part of a community which, at some point in
the past (after 19 June 1913) existed and was subjected to a racial dispossession of
land rights."
In the same context, in Elambini Community8 Meer AJP as she then was , expressed
herself in the following terms:
7 Kranspoort Community: Re Farm Kranspoort 48 LS (LCC26/98) [1999 ZALCC67, 2000(2) SA 124 (LCC) Para 34
(10 December 1999)
8 Elambini Community and Others v Minister of Rural Development and Land Reform and Others
(LCC88/2012)[2018) ZALCC 11 (30 ·M ay 2018)
Page 8 of 11
"Thus it is settled law that for a community litigant to succeed in a restitution claim it
must prove that it existed as a community after 19 June 1913, that it derived its
possession and use of the land from common rules, and that it existed as the same
community at the time that the claim was lodged. If at the time of dispossession, the
possession and use of the land did not derive from common rules but were supplanted
by labour tenancy rules, the rights in land were not held by a community at the time of
dispossession."
[13] In D epartment of Land Affairs and Others v Goedgelegen Tropical Fruits (PTY)
LtcJ9 Moseneke DCJ said:
"The acid test remains whether the members of the Pope/a Community derived
their possession and use of the land from common rules in 1969. The answer
must be in the negative."
[14] What transpired from the testimony of witnesses is that there was no
dispossession which occurred after 1913. If there was any dispossession at all, it must
have happened far before 1913. In fact, what transpired from evidence is that by 1913
there was no community which derived its right in land from shared rules determining
access to land held in common by such community or group of persons. Certain
families moved away from where they were staying just because they found it difficult
to comply with rules introduced by different farm owners. Most of the time,
misunderstanding was over the number of livestock to be kept by farm dwellers. Farm
dwellers refused to reduce the number of livestock which they could keep on the farm
in accordance with the rules introduced by individual farmers, rules regulating
conditions of staying on their farms.
[15] Mr Mq iniseni Protas Zuma ("Mr Zuma ") testified on behalf of the commission.
He was previously employed by the office of the RLCC as a project officer and
researcher. He testified that he consulted the archives in Pietermaritzburg, Pretoria
and Cape Town and obtained aerial photographs from Cape Town. He did not
and Cape Town and obtained aerial photographs from Cape Town. He did not
obtained information that there were people who were removed from where the
claimants alleged to have been removed from. In cross examination, Mr. Zuma stated:
9 2007(6) SA 199(CC) Para 45
Page 9 of 11
"I did explain previously that as I went to the archives, I did not find anything that states
there were people of the Gcumisa who were actually removed from this place."
Mr. Zuma further testified that he could not find any evidence which indicated that
Gcumisa lost any rights in land in the area subject to the claim.
Dumisani Phillip Mbiba (" Mr Mb iba") testified. He is employed by Shakeshem as a
researcher. He was called_ by the RLCC as a witness. He conducted a research in this
case. He testified that in his research he focused on the archives and the internet.
From his research, Mr. Mbiba discovered that private farms at the area claimed by
Gcumisa , were established as far back as 1850's and it transpired that there were
people of Swayimane who were resident on the private farms like the farm of Mr.
Ackerman .
Mr. Mbiba conceded in cross examination that there are documents to prove that prior
to 1845 the claimed land had already been allocated to white farmers by the
Voortrekker Government as far back as 1841 and therefore, it was apparent that the
Gcumisas never occupied the claimed land.
From the joint minutes compiled by Mr. Mbiba and Dr. Whelan it transpires that these
two experts are ad idem that Gcumisa was not a community as envisaged in the Act.
These experts also agreed that the properties published by the RLCC as being
properties being claimed, were in fact all in freehold title, having been granted between
1850 to 1890 and that these properties had been actively farmed by 1913.
From all the evidence tendered, it is crystal clear that the claimants failed dismally to
prove that there was a community which was dispossessed of its rights in land after
1913 due to discriminatory laws or practices. There is also no evidence that the claim
was lodged before the 31st of December 1998 and lodged on a valid claim form in
respect of properly described properties. Therefore, the claim stands to be dismissed.
Order
[16] In the circumstances I make the following order:
Order
[16] In the circumstances I make the following order:
1. It is declared that the Plaintiff is not a community as defined in the
Restitution of Land Rights Act, No. 22 of 1994.
Page 10 of 11
2. The plaintiff's claim for Restitution of Rights in Land is dismissed.
3. The issue of costs will stand over, to be argued on a date to be arranged
with the Registrar.
APPE A RA N CES:
For the Applicant: Mr. Khoza
For 2nd to 49th :
Instructed by:
Legal Aid Empangeni
Adv M. G. Roberts SC
Adv E. Roberts
Cox and Partners Vryheid
For 50 to 53 Defendants: Adv R. Chaudree SC
Adv Gumede
Instructed by: State Attorney Durban
ForSAPPI: Adv G . Goddard SC
Judge
Land Court of South Africa
Instructed by: Shepstone and Wylie Attorneys Umhlanga
Page 11 of 11