Brief Summary

Restitution of Land Rights — Validity of land claim — The court granted condonation for late filing of a review application under PAJA and declared that a document submitted by the Maphalala Community did not constitute a valid claim under the Restitution of Land Rights Act. The court found that the claim form was submitted after the statutory cut-off date, rendering the inclusion of the Applicants' properties in the Government Gazette a nullity.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the Land Claims Court for review and declaratory relief arising from the publication and referral of a land restitution claim. The review was brought under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), directed at the administrative decisions of the land claims authorities to publish and refer a claim affecting the applicants’ properties.

The applicants were a group of private landowners and entities (the First to Eighteenth Applicants) whose farms were included in a published restitution notice. The respondents were the Minister of Agriculture, Rural Development and Land Reform (First Respondent), the Chief Land Claims Commissioner (Second Respondent), the Regional Land Claims Commissioner: KwaZulu-Natal (RLCC) (Third Respondent), and the Maphalala Community, represented by Nhlanhla Maphalala (Fourth Respondent).

Procedurally, the applicants launched the main application on 11 May 2023. The review was brought outside PAJA’s 180-day period, and the applicants therefore sought condonation under section 9(1) of PAJA. Condonation was not opposed and was granted. The First to Third Respondents did not oppose the main application on affidavit but filed a counter-application seeking, in substance, to withdraw the referral and to proceed under section 11A of the Restitution of Land Rights Act. The Maphalala Community opposed both the main application and the counter-application.

The dispute concerned whether a document relied upon by the land claims authorities, a letter marked “NOM1”, constituted a valid restitution claim lodged by the statutory cut-off date, and whether the subsequent publication in the Government Gazette and referral to the Land Claims Court were lawful.

2. Material Facts

The applicants sought relief only in relation to specified farms owned by them and represented by their attorneys, and not in relation to all properties appearing in the Gazette notice. The challenged publication was Government Gazette No 43834 of 23 October 2020, Notice 584 of 2020, which included the applicants’ farms as being claimed by the Maphalala Community.

On 31 December 1998, Sipho Peteros Maphalala sent a letter to the RLCC (annexed as NOM1) with the heading indicating an “application for land claim” by the Maphalala tribe at Bergville. The letter stated, in substance, that the Maphalala tribe had resided at Bergville “on the farms which were belonged to them” for more than 100 years. The letter bore an RLCC date stamp reflecting 31 December 1998.

On 12 October 1999, Bhekani Patrick Maphalala completed and signed a prescribed claim form on behalf of the Maphalala Community (annexed as GJ2). That form contained the first described list of farms said to be claimed. The claim form was dated after the statutory cut-off date of 31 December 1998.

The Government Gazette publication stated that the claim was lodged on 31 December 1998 by Bhekani Patrick Maphalala on behalf of the Maphalala Community. The court recorded that this was not true on the record as presented. The RLCC referred the claim to the Land Claims Court on 8 February 2022, initially including only annexure GJ2 (the 12 October 1999 claim form). On 13 February 2023, the RLCC filed an amended referral for the first time including NOM1.

The court identified several matters as common cause between the parties, including that NOM1 was sent to the RLCC by fax on 31 December 1998 in letter form; that GJ2 was signed on 12 October 1999 after the cut-off date; that NOM1 was not lodged in the prescribed manner; that GJ2 had no RLCC date stamp; that NOM1 did not contain a description of the land claimed; that the RLCC allocated a reference number only to GJ2 and not to NOM1; and that the required community resolution was not lodged together with NOM1.

A further material fact was that the Maphalala Community conceded that the farm Vaal Bank 1266 (included in the Gazette notice) was never claimed, which the court treated as significant for the lawfulness of including it in the Gazette notice and referral.

3. Legal Issues

The central legal question was whether the letter NOM1 constituted a valid claim lodged in terms of section 10(1) of the Restitution of Land Rights Act 22 of 1994, read with section 10(3) and the prescribed procedural rules in the relevant regulations. This required the court to determine whether the statutory requirements for lodgement—especially the requirement that a claim “shall include” a description of the land—had been met.

A related legal question was whether the RLCC’s decision to publish the applicants’ farms in the Government Gazette as claimed land, and to refer the claim to the Land Claims Court for adjudication, constituted reviewable administrative action under PAJA, including whether those decisions were unlawful, irrational, or otherwise fell within the grounds of review.

The matter concerned a combination of legal interpretation (whether statutory requirements were peremptory), application of law to largely common-cause facts (what was contained in NOM1 and GJ2, when they were lodged, and how they were processed), and an administrative-law assessment of rationality and legality under PAJA.

An ancillary procedural issue was the time bar under section 7(1) of PAJA and whether the review should proceed despite being launched outside 180 days, addressed through condonation and the court’s reasoning about when the applicants had knowledge of the irregularity following the amended referral.

4. Court’s Reasoning

The court approached the dispute by identifying the statutory framework for restitution claims and the requirements for a valid lodgement. It emphasised section 10(1) of the Restitution Act, which provides that a claim “shall include” a description of the land in question, the nature of the right dispossessed, and the nature of the redress being claimed. The court treated the phrase “shall include” as indicating a peremptory requirement, rather than a discretionary guideline.

Applying that interpretation, the court held that NOM1 could not constitute a valid claim because it did not contain a description of the land claimed. The court relied on authority indicating that the prescribed claim form is the primary source of information required for gazetting a claim, and that publication has serious consequences for landowners, who may no longer deal with the land freely without the consent of the RLCC. In this context, the court accepted that strict compliance with the statutory requirements was necessary.

The court then considered the attempt to rely on the later claim form (GJ2) to supply the missing land description. Although GJ2 did contain a description of the land, the court treated it as invalid because it was completed and signed on 12 October 1999, which was after the peremptory cut-off date of 31 December 1998. The court rejected the Maphalala Community’s argument that completion of the prescribed form after the cut-off date could be condoned and treated as substantial compliance, holding instead that a claim lodged after the cut-off date is invalid and that “there can be no substantial compliance” where the lodgement occurs after 31 December 1998.

In addition, the court held that the absence of a resolution accompanying NOM1 was a further failure to comply with a peremptory requirement under section 10(3) of the Restitution Act. The court treated this defect, together with the lack of land description in NOM1 and the late completion of GJ2, as defects going to the validity of the claim rather than mere formal irregularities.

On review under PAJA, the court applied administrative-law principles that administrative decisions must be rational. It referred to PAJA grounds of review including decisions influenced by irrelevant considerations or where relevant considerations were not taken into account, and it relied on authority emphasising rational connection to the purpose and empowering provisions. The court held that the publication in the Gazette and inclusion of land not properly described in a valid claim, and particularly the inclusion of land that was concededly never claimed (Vaal Bank 1266), was not rationally justifiable and fell to be set aside.

Regarding delay under PAJA, the court noted that reviews must be instituted within 180 days under section 7(1) of PAJA. It reasoned, by reference to authority dealing with when an applicant obtains knowledge of irregularity, that the applicants only became aware of the basis for the decision when NOM1 was revealed in the amended referral. It therefore accepted that the 180-day period should be extended and, in any event, granted unopposed condonation under section 9(1) of PAJA.

The court then considered the RLCC’s counter-application, which sought leave under Rule 27 of the Land Claims Court Rules to withdraw the referral and to implement and finalise a process under section 11A of the Restitution Act. The court held that withdrawal of the referral would serve no purpose because the defects identified—no land description in NOM1, a claim form completed after the cut-off date, and absence of the section 10(3) resolution—were defects that could not be cured by further investigation or process. On that basis, the counter-application was dismissed.

On costs, the court applied the principle from Biowatch Trust v The Registrar, Genetics Resources and Others that in constitutional litigation, where private litigants are substantially successful against the state, costs should ordinarily follow against the state absent strong reasons. Although the applicants sought punitive attorney-and-client costs, the court held that they had not made out a case for punitive costs and exercised its discretion to award costs on the party-and-party scale, including the costs of two counsel on scale C, with extensive specification of recoverable items.

5. Outcome and Relief

The court granted condonation to the applicants under section 9(1) of PAJA for failing to institute the review within the time limits in section 7(1) of PAJA.

The court issued a declaratory order that the letter annexed as NOM1 did not constitute a valid claim lodged under section 10(1) of the Restitution Act, read with section 10(3) and the applicable procedural rules in the regulations published in Government Gazette 16407 of 12 May 1995 (Notice R703).

The court declared the inclusion of the applicants’ farms in Government Gazette No 43834 of 23 October 2020, Notice 584 of 2020 to be a nullity, reviewed and set aside the decision to publish their farms, and declared the referral of those farms to the Land Claims Court in terms of section 14(1) of the Restitution Act to constitute an illegality, setting it aside and directing that it be deleted and/or removed from the referral.

The court granted similar declaratory and review relief regarding the farm Vaal Bank 1266, declaring its inclusion in the Gazette to be a nullity, reviewing and setting aside the decision to publish it, and setting aside its referral as an illegality.

The First, Second, and Third Respondents were ordered to publish a notice in the Government Gazette removing the applicants’ farms and the farm Vaal Bank from the Gazette notice.

The RLCC’s counter-application was dismissed.

Costs were awarded against the First, Second, and Third Respondents jointly and severally, on the party-and-party scale, including the costs of two counsel on scale C, and including specified categories of costs related to responses to referral materials, consultations, drafting, opposition to the counter-application, and preparation and argument of the opposed motion.

Cases Cited

Makhuva- Mthebula Community v Regional Land Claims Commissioner Limpopo and Another (1106/2018) [2019] ZASCA 157 (28 November20 16).

Gcumisa Land Claims Committee v Midlands North lands Research Group (LCC22/2007) [20025] ZALCC 41 (14 October 2025).

Minanaar NO v Regional Claims Commissioner Mpumalanga and Others (LCC42/06) [2006] ZALCC 12 (08 December 2006).

Bouvest 2173 CC and Others v Commission on Restitution of Land Rights and Others (LCC68/2006) [2007] ZALCC 7 (7 May 2007).

PS Group (Pty) Ltd v National Energy Regulator of South Africa and Another 2018 (5) SA 150 (SCA).

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC).

Torlage NO and Another v The Minister of Agriculture , Land Reform and Rural Development and Others (161/20 188 ) [202) ZALCC 8 (29 March 2022).

Biowatch Trust v The Registrar, Genetics Resources and Others 2009(6) SA 232 (CC).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000, including sections 6(2), 7(1), and 9(1).

Restitution of Land Rights Act 22 of 1994, including sections 2, 10(1), 10(3), 11(2), 11A, and 14(1).

Rules of Court Cited

Rule 27 of the Rules of the Land Claims Court.

Rules regarding the procedure of the Commission contained in regulations promulgated in Government Gazette 16407 of 12 May 1995 as per Notice R703.

Held

The court held that the document marked NOM1 did not constitute a valid restitution claim because it failed to comply with peremptory statutory requirements, including the requirement that a claim lodged under section 10(1) must include a description of the land claimed. The court further held that the later claim form (GJ2) could not validate the claim because it was completed after the 31 December 1998 cut-off date and because peremptory requirements such as a community resolution under section 10(3) were not satisfied.

The court held that the publication of the applicants’ farms (and, separately, the farm Vaal Bank 1266) in the Government Gazette and their referral to the Land Claims Court constituted unlawful administrative action susceptible to review under PAJA, and that their inclusion was to be treated as a nullity and set aside. It also held that the RLCC’s counter-application to withdraw the referral and proceed under section 11A should be dismissed because the defects were not curable by further process.

LEGAL PRINCIPLES

A restitution claim lodged under section 10(1) of the Restitution of Land Rights Act 22 of 1994 must comply with the peremptory statutory requirements, including that the claim “shall include” a description of the land in question; failure to include such a description renders the purported claim invalid.

A restitution claim lodged after the statutory cut-off date of 31 December 1998 is invalid, and the court rejected an approach of “substantial compliance” where the lodgement occurs after the cut-off date.

A community claim must comply with additional peremptory requirements, including compliance with section 10(3) (as applied in the judgment), and failure to lodge the required resolution contributes to invalidity.

Publication in the Government Gazette of land that is not properly claimed, or not rationally connected to a validly lodged claim, constitutes unlawful administrative action reviewable under PAJA, including on rationality grounds, and may be set aside; the inclusion of land never claimed was treated as especially untenable.

Where defects in a restitution claim go to validity and are incapable of cure, withdrawing a referral and invoking further administrative processes (such as under section 11A) will serve no purpose, and such relief may be refused.

In costs, the court applied the approach in Biowatch Trust v The Registrar, Genetics Resources and Others 2009(6) SA 232 (CC), but declined to award punitive costs in the absence of strong and convincing reasons, instead awarding party-and-party costs against the state respondents where the private litigants were substantially successful.

Bester and Others v Minister of Agriculture Rural Development and Land Reform and Others (LCC20/2022B) [2026] ZALCC 2 (19 January 2026)