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[2026] ZALCC 6
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Tubatse Estate (Pty) Ltd v Chief Land Claims Commissioner and Others (LCC105/2022) [2026] ZALCC 6 (5 February 2026)
IN
THE LAND COURT OF SOUTH AFRICA
HELD
AT RANDBURG
CASE
NO:
LCC 105/2022
Before
the Honourable Flatela J
Date
of Hearing: 12 June 2025
Date
of Judgment: 05 February 2026
(1)
REPORTABLE: YES/NO
(2)
OF INTREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
In
the matter between:
TUBATSE
ESTATE (PTY) LTD
Applicant
and
THE
CHIEF LAND CLAIMS COMMISSIONER
First
Respondent
THE
REGIONAL LAND CLAIMS COMMISSIONER:
MPUMALANGA
Second
Respondent
MAPHANGA
COMMUNITY
Third
Respondent
PLATSAK
(PTY) LTD
Fourth
Respondent
KOM-KOM
BOERDERY CC
Fifth
Respondent
27
TUBATSE LOCAL MUNICIPALITY
Sixth
Respondent
OFFICE
OF THE VALUER GENERAL
Seventh
Respondent
MINISTER
OF LAND REFORM
AND
RURAL DEVELOPMENT
Eighth
Respondent
DIRECTOR
GENERAL OF THE DEPARTMENT
LAND
REFORM AND RURAL DEVELOPMENT
Ninth
Respondent
ORDER
1. The Application
is dismissed with costs.
JUDGMENT
FLATELA
J:
Introduction
[1]
The Applicant, Tubatse Estate (Pty) Ltd, seeks to enforce an
oral settlement agreement made with the Regional Land Claims
Commissioner
(RLCC) for Mpumalanga, the Claimant Community, and
various landowners (an agreement to agree). The parties agreed in
principle
to settle the land claim lodged by the Maphanga Community
(the Third Respondents) on the Remaining Extent of the farm
Witgatboom
Nr 316, Registration Division KT, located in Mpumalanga
(the farm).
[2]
The Applicant owns Portion 6 of the Farm Witgatboom 316, also
known as Extension 40, Burgersdorp, of the remaining extent of the
farm. In July 2019, the Applicant agreed to sell its property at a
market-related price, for the benefit of the claimants. It was
agreed
between the parties that the RLCC would make an offer to purchase the
property, and if the offer was acceptable, a written
Section 42D
agreement would be finalised in accordance with the Restitution of
Land Rights Act 22 of 1994 (Restitution Act). The
parties did not
reach an agreement regarding the purchase price.
[3]
The Applicant seeks an order directing the Chief Land Claims
Commissioner (CLCC), the RLCC for Mpumalanga, the Minister
of Rural
Development and Land Reform, and the Director of the Department of
Rural Development and Land Reform (the State Respondents)
to
formalise the existing oral agreement in writing in accordance with
section 42D of the Restitution Act and to refer the matter
to court
under section 14(1) and (2) of the Restitution Act to determine the
market value of portion 6 of the Farm.
[4]
The application is opposed by the State Respondents and the Claimant
Community. Prior to filing their answering affidavit,
the RLCC also
referred the matter to this court under section 14(1) and (2) of the
Restitution Act to determine the market value
of portion 6 of the
Farm. The referral to determine the market value of the Applicant’s
property is pending before this court
under case number: 105/2022B.
[5]
The Fourth and Fifth Respondents shall abide by the decision of this
court.
The
Parties
[6]
The Applicant is Tubatse Estate (Pty) Ltd, a private for-profit
company that owns the property known as Portion 6 of the
Farm
Witgatboom 316, also referred to as Extension 40, Burgersdorp, of the
remaining extent of Farm Witgatboom 316, Registration
Division KT,
Mpumalanga Province.
[7]
The First Respondent is the Chief Land Claims Commissioner,
established in terms of the Restitution Act. The Second Respondent
is
the Regional Land Claims Commissioner for the Mpumalanga Province,
established in terms of the Restitution Act.
[8]
The Third Respondent is the Maphanga Community, a recognised
community that has lodged a land claim in terms of the Restitution
Act with respect to the farm Witgatboom 316 KT.
[9]
The Fourth Respondent is Platsak (Pty) Ltd, a private
for-profit company with limited liability, registered in accordance
with the
laws of the Republic of South Africa. The Fifth Respondent
is Kom-Kom Boerdery CC, a close corporation registered in accordance
with the
Close Corporations Act 69 of 1984
. The Fourth and Fifth
Respondents are the registered owners of the Remaining Extent of the
farm Witgatboom Nr 316, Registration
Division KT, Mpumalanga, and the
Farm Buffelsdrift No 311, Registration Division KT, Mpumalanga,
respectively.
[10]
The Sixth Respondent is the Tubatse Local Authority, a municipality
established in terms of the Municipal Structures
Act 32 of 2000.
[11]
The Seventh Respondent is the Office of the Valuer General,
established in terms of the Property Valuation Act 17 of
2014
(Property Valuation Act) and its regulations, No. 17 of 2004.
[12]
The Eighth Respondent is the Minister of Agriculture, Land Reform and
Rural Development. The Ninth Respondent is the
Director General of
the Department of Agriculture, Land Reform and Rural Development.
The Relief sought
[13]
The Applicant seeks the following relief:
“
13.1
The First, Second, Eight and Ninth Respondents are ordered to
finalise in writing a settlement agreement
in terms of
section 42D
of
the
Restitution of Land Rights Act, No 22 of 1994
, in respect of the
land claim of the Third Respondent in respect of Portion 1, 2 and 3
and the Remaining Extent of the Farm Witgatboom
316, Registration
Division KT, Mpumalanga Province, which agreement shall include the
following:
13.1.1
Portion 6 of the farm Witgatboom 316, Registration
Division KT,
Mpumalanga Province, also known as Extension 40, Burgersfort, shall
be purchased by First, Second, Eighth and Ninth
Respondents.
13.1.2
Remaining Extent of the Farm Witgatboom 316, Registration Division
KT, Mpumalanga Province, will remain in ownership by the Fourth
Respondent, and the land claim of the Third Respondent shall be
dismissed in respect thereof.
13.1.3
The purchase price of Portion 6 of the Farm
Witgatboom 316,
Registration Division KT, Mpumalanga Province, also known as
Extension 40 Burgersfort, shall be determined by this
Honourable
Court in terms of
section 14(2)(d)
of the
Restitution of Land Rights
Act, No 22 of 1994
.
13.2
The First, Second, Eighth and Ninth Respondents are ordered to
finalise such a settlement in writing,
signed by all the necessary
parties, within one month from the date of this order.
13.3
The First and Second Respondents are ordered to thereafter draft and
finalise a referral report in
terms of
sections 14(1)
and
14
(2) of
the
Restitution of Land Rights Act, Nr
22 of 1994, whereby the
question of compensation payable in respect of purchase of Extension
40 Burgersfort, is to be determined
by this Court in terms of
section
22(1)(b)
of the
Restitution of Land Rights Act, Nr
22 of 1994.
13.4
The above referral report shall be filed with this Court one month
after the finalisation, including
the signing thereof by all relevant
parties thereto, of the settlement agreement in terms of
section 42D
of the
Restitution of Land Rights Act, No. 22 of 1994
.
13.5
The First and Second Respondent shall refer the issue of compensation
payable for the purchase of Extension
40 Burgersfort to this
Honourable Court in terms of
section 14(2)(d)
of the
Restitution of
Land Rights Act, Nr
22 of 1994, and the parties shall commence with
legal proceedings in terms of the rules of the above Honourable
Court, within 2
weeks from date of the referral report.
13.6
First, Second, Eighth and Ninth Respondents shall be ordered to pay
the costs of this application,
including the costs of two Counsels.”
[14]
The parties have a longstanding history. I will begin by outlining
the factual background of this matter, which led to
the oral
agreement the Applicant relies on for the relief sought. Thereafter,
I will discuss the legal framework governing settlement
agreements
under
section 42D
, before analysing the specific facts and their
legal implications for the outcome of this application.
Factual
Background
[15]
The facts are largely undisputed. On 01 April 1998, the late Frans
Jackson Maphanga, on behalf of the Maphanga Community,
lodged a claim
with the RLCC, Mpumalanga, against farm Witgatboom Nr 316,
Registration Division KT, Mpumalanga, owned by Platsak
(Pty) Ltd. At
the time of lodging the claim, the farm had been subdivided into
Portions 1, 2, and 3 of the Remaining Extent of
the farm. The RLCC
accepted the claim as it met the requirements of section 2 of the
Restitution Act.
[16]
On 28 July 2006, the RLCC gazetted the claim in terms of section
11(1) of the Restitution Act in respect of the Remaining
Extent of
portions 1, 2, and 3 of the farm Witgatboom.
[17]
The Applicant, at the time a developer authorised by the landowners,
applied for the establishment of a township on the
land under the
Development Facilities Act 67 of 1995 (Development Facilities Act).
The date this application was made was not specified
in the
pleadings.
[18]
On 1 September 2006, the Limpopo Development Tribunal approved the
land development application for the establishment
of the Burgersfort
Extension 40 Township on the subdivided portion 6 of the farm
Witgatboom.
[19]
In an effort to settle the land claim against the farm, on 28
November 2006, the RLCC for the Mpumalanga Province, Tubatse
Estate
(Pty) Ltd (the Developer), Maphanga Community (Claimant Community)
represented by Phillip Legwati, the former Deputy Chairperson
of the
Claimant Community, and Platsak (Pty) Ltd & Kom-Kom Boerdery CC
(Landowner) signed a Memorandum of Understanding (MoU)
for the
development of the Remaining Extent of the farm Witgatboom, which the
Maphanga Community claimed. The MoU was subject to
the minister's
approval.
[20]
The MoU recorded that the parties agreed to regulate the basis upon
which the property will be developed and to define
their respective
rights, obligations and compensation.
[21]
The MoU involved the RLCC supporting township development under the
Development Facilitation Act. Some of the terms of
the agreement were
as follows:
a.
The Claimant Community would make the property available to the
Developer, authorise property ownership
registration in the
Developer's name, and consent to the Developer taking necessary steps
and signing documents for land development
and township
establishment.
b.
The Developer agrees, subject to approvals and market acceptance, to
provide the Claimant Community with
34 erven (stands) at no cost, buy
them back from the first income, and offer employment and
co-investment opportunities.
c.
The Developer undertook to comply with conditions, perform town
planning, land survey, legal work, and
provide internal services.
d.
The Developer is entitled to sell individual erven in the development
on the open market and will appoint
professional firms to give effect
to the above.
e.
For the farm Buffelsdrift 311 KT, the plan includes a Golf/Eco Estate
with involvement of the Claimant
Community through a share of the
Management company, training, employment, and land for hydroponics
farming.
[22]
On 04 July 2007, Mr Mhangwani, the former RLCC Mpumalanga, issued a
section 14(3) certificate under the Restitution Act,
read with
section 42D, concerning the settlement of the land claim for Portions
2 and 3 of the Farm Witgatboom 316, owned by the
Roman Catholic
Church, and the Remaining Extent owned by Platsak (Pty) Ltd. He
prepared a memorandum seeking approval under sections
42D and 14(3)
of the Restitution Act. A request for ministerial approval under
these sections was attached to the memorandum.
[23]
In reference to the remaining extent of the farm previously owned by
Platsak (Pty) Ltd, the memorandum indicated that
the claimants chose
financial compensation over land restoration. This decision was made
because restoring the land was unfeasible,
as its perimeter is
surrounded by developed properties, including townhouses and lodges,
which also result in higher municipal
rates. Regarding
post-settlement matters, it was noted that Tubatse Estate entered
into a joint venture with the claimants to develop
the land, and the
MoU was attached as annexure 1. It was further stated that the
parties agreed as follows:
i.
That the developers will pay the claimant a total amount of
R6 127 000 (Six million, one hundred
and twenty thousand),
and 50% of this money will be used for investment opportunities in
the development of the land.
ii.
The developers will provide the claimant with employment
opportunities in infrastructure development
within the township, as
well as investment in the commercial development of the land, such as
office parks and retail shops.
iii.
The developer holds a 20% share in a management company that also
owns a 20% share in the development
of the eco-golf estate. They are
responsible for training employee claimants for the people’s
claim regarding the upkeep
of the golf estate, as well as for
safeguarding and nurturing the game on the eco-portion of the estate.
iv.
The developer has already provided the claimant’s community
with 5 hectares of land on the farm
for a hydroponics system,
focusing on cash crops, and later, the development of infrastructure.
v.
Regarding the financial implications of the claim, it was recommended
that the CLCC approve the amount
of R15,318,719.84 as financial
compensation for the remaining extent of the Farm.
[24]
The former CLCC, Mr TT Gwanya, approved the RLCC’s
recommendations on 15 October 2007.
[25]
On 05 March 2008, Mr Mhangwani wrote a letter to the Applicant
advising that the Minister had approved section 42D submissions,
including an MoU entered into between the Maphanga Community and the
Applicant. The RLCC recommended that an application be lodged
with
the tribunal in accordance with the Development Facilities Act’s
requirements.
[26]
On 28 March 2008, the Applicant acquired portion 6 of the farm
Witgatboom for R 37,500,000.00 (thirty-seven million five
hundred
thousand rand only) from Platsak (Pty) Ltd.
[27]
On 16 September 2008, the Applicant applied to the Limpopo
Development Tribunal for the land development for the establishment
of the Burgersfort Extension 40 Township on the R/E of the farm
Witgatboom.
Complaints
lodged by the claimant community regarding the MoU
[28]
On 1 March 2011, the Claimant Community sent a letter to the former
acting RLCC, Ms I. Seboka, accusing the previous
Mpumalanga RLCC and
the Project Officer, Mr Mashangwana, who managed the claim, of
misrepresenting facts and misleading them regarding
their claim. They
disputed that they had agreed to accept financial compensation,
asserting that the community's claim was for
the restoration of its
land; the community claimed that the community representative had no
mandate to sign the MoU.
[29]
On 6 May 2011, the Limpopo Development Tribunal approved Tubatse
Estate’s amendment of the development application
for
establishing the Burgersfort Extension 40 Township on portion 6 of
the farm Witgatboom. The application was granted subject
to national
building regulations and the Township's regulations, which were
incorporated into the Applicant’s land-use management
scheme
2006. It was approved by virtue of local authority notice 228 dated 1
September 2006 and published in general notice 145
of 2012, in the
Limpopo Provincial Gazette of 27 April 2012.
[30]
On 28 November 2013, the Maphanga Communal Property Association
applied under number LCC 167/2013 to declare the MoU
of 17 November
2006 invalid, set aside the section 42D Agreement to settle the
Maphanga claim, and for the Minister of Land Reform
and Rural
Development and the CLCC to refer the Maphanga claim to the RLCC for
a new decision. The Claimant Community alleged that
its
representative was not authorised to sign the Mou. A similar
application was launched under case no LCC55/2016. The review
remains
pending before this Court.
[31]
On 28 January 2015, the Applicant’s valuation Report valued
portion 6 of the farm Witgatboom at R 424,000,000.00
(four hundred
and twenty-four million rand).
[32]
On 1 August 2015, the Property Valuation Act came into force. Under
section 2(a) of the Act, one of its objectives is
to give effect to
the provisions of the Constitution that provide for land reform
through the regulation of property valuation.
Agreement
to agree
[33]
Following the two review applications brought by the Third Respondent
and the commencement of the Valuation Act, the
parties resumed
negotiations to settle the matter. On 29 July 2019, the parties
engaged in settlement discussions, resulting in
an agreement to
settle, which the Applicant described as a new settlement or
compromise agreement that replaced the original MoU
(an agreement to
agree).
[34]
The parties agreed in principle that:
a.
The RLCC would conduct a feasibility study to assess the viability of
restoring portion 6 of the farm
Witgatboom for the claimant
Community.
b.
The Valuer General would evaluate portion 6 of the farm Witgatboom
and determine the purchase price.
c.
The RLCC would make an offer to purchase Tubatse Estate’s
development of portion 6 for the benefit
of the Maphanga Community.
d.
Should the Applicant find the offer acceptable, portion 6 would be
purchased for the valuation price.
e.
If the offer is accepted, the Maphanga claim of the R/E of
Witgatboom, owned by Platsak and Kom-Kom Boerdery
CC, would be
withdrawn.
f.
The parties would conclude the settlement agreement under section 42D
of the Restitution
Act.
[35]
On 2 October 2019, the Applicant wrote to the RLCC, informing him
that it was selling portion 6 to the private buyer
at a reasonable,
market-related price. An on-site meeting was held among all
parties, and it was agreed that the matter would
be settled soon.
[36]
The RLCC instructed the office of the Valuer General to carry out a
valuation of Portion 6 of the farm Witgatboom. On
30 October 2021,
the Office of the Valuer-General issued a valuation report, which
valued Portion 6 of the farm Witgatboom as grazing
land at
R11,879,000.00 (Eleven million eight hundred and seventy-nine
thousand rand) and at the current use value of R5,757,250.
The State
Respondents assert that the Applicant failed to provide the Office of
the Valuer-General with the necessary information
prior to the
valuation. However, the Applicant contends that a valuation report
was submitted to the Office of the Valuer-General
before he issued a
final valuation certificate on 25 January 2022.
[37]
On 9 February 2022, the RLCC wrote to Tubatse Estate and made an
offer of R11,879.00 (eleven million eight hundred and
seventy-nine
thousand rand) for the acquisition of portion 6.
[38]
The parties entered into negotiations following the issuance of the
final valuation certificate by the office of the
Valuer General, in
an attempt to finalise settlement of the land claim, with no results.
[39]
On 10 February 2022, Tubatse Estate wrote to the RLCC and offered R
200 000 000.00 (two hundred million rand)
for portion 6 of
the farm Witgatboom. Meetings were held between the Applicant and the
Second Respondent, but yielded no results.
[40]
On 26 April 2022, Tubatse Estate issued the notice to institute
proceedings against the RLCC in terms of section 3(1)
of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002.
[41]
On 15 July 2022, the Applicant launched these proceedings. Initially,
they were couched as review proceedings.
[42]
On 07 October 2022, the RLCC amended the gazette of the Maphanga
claims dated 28 July 2006 to reflect the subdivision
of portions 4,
5, 6, 10, 11, 12, 13 and 14 of the farm Witgatboom from portions 1, 2
and 3, as they were gazetted in 2006.
The
Applicant's contention
[43]
The Applicant contends that a new settlement, referred to as a
"compromise agreement," has replaced the original
MoU.
According to the Applicant, this compromise agreement is essentially
an 'agreement to agree,' as outlined in section 42D,
and the terms of
this agreement were intended to be formalised in writing and signed
by all parties involved, subject to formal
approval from the Minister
in accordance with section 42D of the Restitution Act.
[44]
The Applicant asserts that to execute the sale agreement and
establish a purchase price for settlement of the land claim,
the
office of the Valuer General was instructed to provide a valuation of
the property's development for the land claim.
[45]
The Applicant asserts that the agreement was intended to be
formalised in writing under section 42D of the Restitution
Act, with
the Minister's final approval and signature. The Applicant maintains
that the compromise agreement is valid, binding,
and enforceable,
despite not fully complying with the Alienation of Land Act 68 of
1981 (Alienation of Land Act).
[46]
The Applicant argues that, for the purpose of finalising the oral
settlement agreement between all parties, a written
settlement
agreement as specified in section 42D of the Restitution Act should
be entered into regarding the purchase of the land.
If the parties
cannot agree on a purchase price, the court should determine it.
[47]
The Applicant argues that the court has the discretion to order
specific performance of any agreement, taking into account
all
relevant facts. It is contended that there are no reasons why the
specific performance of the compromise agreement should not
be
granted for to the following reasons:
a.
There is an existence of a valid, binding, and
enforceable agreement based on the affidavits and evidence that a
compromise agreement
with the terms and conditions explained by the
applicant was entered into, and that it is "valid, binding, and
enforceable.
b.
that a compromise settlement agreement was
reached on 29 July 2019, supported by evidentiary proof from four
witnesses, including
three attorneys. The respondents' failure to
respond to the letter confirming the agreement and its terms (which
implies admission).
c.
The lack of real factual disputes raised by
the respondents.
d.
The third respondent's admission of most of
the contents of the compromise agreement.
[48]
The Applicant asserts that the principles of interpretation,
including consideration of the parties' circumstances and
subsequent
conduct, are crucial to determining the agreement's effect. The court
must consider the language, context, purpose and
background of the
agreement, while avoiding interpretations that lead to insensible or
unbusinesslike results.
Review
under the Promotion of Administrative Justice Act 3 of 2000(PAJA)
[49]
In the same papers, the Applicant sought to review the State
Respondent’s actions under PAJA. The Applicant relies
on
sections 6(2)(g) and 6(3) of PAJA. The Applicant asserts that the
refusal to take any action or decisions, particularly concerning
the
finalisation of the section 42D agreement, constitutes grounds for
review under section 6(2)(g) of PAJA for failure to make
a decision.
The First, Second, Eighth, and Ninth Respondents had a legal duty to
draft and present the section 42D agreement for
signature, given the
time elapsed since the compromise agreement was entered into.
[50]
The Applicant contends that it filed a notice under Rule 32(5) for
the record and reasons for non-decisions, but neither
was provided.
Under section 5(3) of PAJA, the administrator's failure to provide
adequate reasons gives rise to a presumption,
in the absence of
contrary evidence, that the administrative action (the refusal to
act) was taken without good reason. The Applicant
submits that no
other internal remedy was available, making the immediate institution
of this application necessary.
[51]
The Applicant asserts a common law right to specific performance of
the settlement agreement, supported by PAJA provisions,
to compel the
other parties to sign the written section 42D agreement.
[52]
The Applicant further asserts that condonation for any potential
delay in filing the application should be granted, as
the delays were
caused by the First and Second Respondents' refusal to make decisions
or take action, rendering section 6(3) of
PAJA applicable.
The
Respondents’ pleaded case.
[53]
The Respondents raised a point in
limine
as follows: (a) The
court lacks jurisdiction because the RLCC amended the gazette of the
claim due to the subdivision of portions
4, 5, 6, 10, 11, 12, and 14
of the farm Witgatboom from portions 1, 2, and 3 after they were
gazetted in 2006; and the process
of accepting representations
regarding the gazetted portions of the farm Witgatboom is ongoing;
(b) The Applicant failed to identify
the basis for this court to
interfere with the process of amending the gazette, negotiations, and
mediation.
[54]
The Respondents contend further that the Applicant’s
application ought to be dismissed on the following grounds:
i.
Tubatse Estate's reliance on the Memorandum of Understanding (MOU) of
17 November 2006 to compel the
finalisation of the Section 42D
Agreement lacks merit because the MOU was subject to further approval
by the Chief Land Claims
Commissioner and the Minister.
ii.
The Maphanga Community Property Association (CPA) has reneged on the
MOU, having filed two pending applications
(LCC 167/2013 and LCC
55/2016) seeking to declare the MOU invalid and review and set aside
the Section 42D Agreement.
iii.
The sale and development of portion 6 contravene Section 11 (7) (aA)
of the Restitution Act, as Tubatse
Estate failed to provide the
Regional Land Claims Commissioner with the required one month's
written notice of intention to sell,
develop, or rezone the land.
iv.
Tubatse Estate’s contention that portion 6 is worth
R200,000,000.00 has no factual or legal basis,
as the Provisional
Valuation Certificate of October 30, 2021, valued the grazing land at
R11,879,000.00.
[55]
The State Respondents contend that the Applicant failed to submit the
required documents to the Office of the Valuer-General
and did not
make representations concerning the land valuation. They assert that
the parties are bound by the Office of the Valuer-General's
market
value and that Tubatse Estate has provided no reason to deviate from
it.
[56]
The State Respondents contend that the Applicant does not have a
right to compel the RLCC to finalise the section 42D
agreement with
the Maphanga claimants or to prescribe the terms and conditions of
that agreement.
[57]
The State Respondents further dispute the allegations supporting the
relief sought in the amended Notice of Motion and
submit that Tubatse
Estate has failed to meet the jurisdictional requirements for
mandamus. Furthermore, the state argues that
the Applicant is not
entitled to the interdictory relief sought, as it has not pleaded the
requirements for a final interdict compelling
the RLCC to conclude
the section 42D Agreement.
[58]
The State Respondents further state that the Applicant failed to make
out a case for condonation of the late filing of
the application. The
application did not explain the delay in filing, the degree of
lateness, the prejudice, or the prospect of
success. Based on the
failure to make a case for condonation, the court should dismiss the
application for late filing.
[59]
These points collectively form the grounds of opposition to Tubatse
Estate’s application, leading to the submission
that the
application must be dismissed on both substantive and procedural
grounds.
[60]
Regarding the point in
limine
, there is no merit in the State
Respondent’s point in
limine
; this court has broad
jurisdiction under section 22 of the Restitution Act to determine all
other matters that require adjudication
under this Act. Secondly, the
Applicant is not relying on the MoU but on an oral agreement
concluded by both parties.
Third
Respondent's Answering Affidavit
[61]
The Maphanga community opposes the amended notice of motion seeking
to dismiss their land claim over the Remaining Extent
of the Farm
owned by Platsak. The Third Respondent contends that it seeks
restoration of the entire Remaining Extent, including
Portion 6 of
the farm. The community seeks equitable redress in the form of
compensation for those portions that are not
restorable.
Maphanga
Community's Position Regarding the Subsequent Oral Settlement
Agreement Entered into Between the Parties (Continued)
[62]
The Third Respondent confirms that, in an attempt to settle the
claim, the parties met at Du Toit Smuts and Partners
Attorneys, where
they concluded an oral agreement. Minutes taken by the members of the
claimant community confirm agreement to
purchase the Remaining Extent
and restore it to the Maphanga community. The parties agreed that the
claim can be divided into two
phases:
i.
Phase 1 involved the 1700 hectares of the Remaining Extent owned by
Platsak, which would be purchased
by the CLCC and restored to the
community, and
ii.
In respect of Portion 6 of the farm Witgatboom, currently owned by
the Applicant, the office of the
Valuer General would compile a
valuation report, and the RLCC would conduct a feasibility study to
determine a fair market-related
purchase price for the benefit of the
Maphanga community.
[63]
Having addressed the parties' contention, it is now prudent to
outline the statutory requirements governing land restitution.
Statutory
Framework
[64]
The entitlement to claim restitution of land or equitable redress for
property dispossessed after 10 June 1913 is derived
from the
Constitution.
Section
25(7) of the
Constitution 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 the Act of Parliament, to restitution of that
property or equitable redress.’
[65]
The Restitution Act was enacted to give effect to section 25(7) of
the Constitution regarding the restitution of land
rights to
individuals or communities that were dispossessed of their land as a
result of racially discriminatory laws or practices.
The
Restitution of Land Rights Act 22 of 1994
[66]
Section 2 of the Restitution Act sets out the
criteria for entitlement to restitution.
It entitles a person
or community dispossessed of a right in land after 19 June 1913 as a
result of past racially discriminatory
laws and practices to seek
restitution of that right.
[67]
Section 6 of the Restitution Act sets out the Commission on
Restitution of Land Rights' general functions. The claim
for
restitution of right in land is submitted to the RLCC, who is
required to, among other things, investigate the merits of the
claim,
determine whether it has a prima facie case and whether it is not
precluded by the provisions of section 2, and assess whether
it is
not frivolous or vexatious. Once the Commission on Restitution of
Land Rights has accepted the claim, it will be published
in the
Gazette. The claim is then subject to further investigation and may
be mediated with a view to settlement or referred to
the Land Court
for adjudication.
[68]
Section 11 of the Restitution Act deals with
the procedure after the lodgement of a claim.
[69]
Section 11(1) of the Restitution Act provides:
‘
11.
Procedure after lodgement of claim
(1)
If the regional land claims commissioner having jurisdiction is
satisfied that─
(a)
The claim has been lodged in the prescribed manner.
(b)
The claim is not precluded by the provisions of section 2. and
(c)
the claim is not frivolous or vexatious.
he or she shall cause
notice of the claim to be published in the
Gazette
and in the
media circulating nationally and in the relevant province and shall
take steps to make it known in the district in which
the land in
question is situated.’
[70]
Section 11A (2) and (3) of the Restitution Act states that:
‘
11A. Withdrawal
or amendment of notice of claim
(2) Where
during the investigation of a claim by the Commission, the regional
land
claims commissioner
having jurisdiction has reason to believe that any of the
criteria set out in
paragraphs (a), (b) and (c) of section 11(1) have not been met.
he or she shall publish
in the Gazette and send by registered post to—
(a)
the claimant.
(b)
the owner; and
(c)
where applicable, a person who has made representations in
terms of subsection (1) and any other party, who to his or her
knowledge,
may have an interest in the claim,
a notice stating that at
the expiry of the period mentioned in the notice, the notice of the
claim published in terms of that section
will be withdrawn unless
cause to the contrary has been shown to his or her satisfaction.
(3)
At the expiry of the period contemplated in subsection
(2), the regional land claims commissioner shall, unless cause to the
contrary has been shown to his or her satisfaction, withdraw the
notice of claim and—
(a) advise
the persons mentioned in that subsection by notice sent by registered
post.
(b)
cause notice of his or her decision to be published in the
Gazette; and
(c)
take other steps to make his or her decision known in the
district in which the land in question is situated.’
[71]
Subsection 11(7) of the Restitution Act
prohibits anyone from interfering in any manner with the land that is
the subject of a land
claim.
[72]
Section 11(7) (aA) of the Restitution Act
provides as follows:
“
no
person may sell, exchange, donate, lease, subdivide, rezone or
develop the land in question without having given the regional
land
claims commissioner one month's written notice of his or her
intention to do so, and, where such notice was not given in respect
of-
i)
any sale,
exchange, donation, lease, subdivision or rezoning of land, and the
Court is satisfied that such sale, exchange, donation,
lease,
subdivision or rezoning was not done in good faith, the Court may set
aside such sale, exchange, donation, lease, subdivision
or rezoning
or grant any other order it deems fit;
ii)
any
development of land and the Court is satisfied that such development
was not done in good faith, the court may grant any order
it deems
fit.”
Section
36 of the Restitution Act
[73]
Section 36 of the Restitution Act provides as follows:
“
Reviews of
decisions of Commission
(1)
Any party aggrieved by any act or decision of the Minister,
Commission or any functionary acting or purportedly acting in terms
of this Act may apply to have such act or decision reviewed
by the
Court.
(2)
The Court shall exercise all of the High Court’s
powers of
review with regard to such matters to the exclusion of the provincial
and local divisions thereof”.
[74]
Section 42D is titled ‘
Powers of Minister in case of certain
agreements’
and provides as follows:
‘
(1) If the
Minister is satisfied that a claimant is entitled to restitution of a
right in land in terms
of section 2,
and that the claim for
such restitution was lodged not later than 31 December 1998, he or
she may enter into an agreement with
the parties who are interested
in the claim providing for one or more of the following-
(a) To award
to the claimant of land, a portion of land or any other right in
land: Provided that the claimant shall
not be awarded land, a portion
of land or a right in land dispossessed from another claimant or the
latter’s ascendant, unless
–
(i)
such other claimant is or has been granted
restitution of a right in
land or has waived his or her right to restoration of the right in
land in question; or
(ii)
the Minister is satisfied that satisfactory
arrangements
have been or will be made to grant such other claimant restitution of
a right in land;
(b) the payment of
compensation to such claimant;
(c) both an award and
payment of compensation to such claimant;
(d) ...
(e) the manner in which
the rights awarded are to be held or the compensation is to be paid
or held; or
(f) such other terms and
conditions as the Minister consider appropriate.
(3)
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 towards 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.’
Discussion
Section
42 D: Powers of Minister in case of certain agreements’
[75]
The Restitution Act establishes various mechanisms for enforcing the
constitutional right to restitution, including different
methods for
addressing land claims. One specific provision, section 42D, is
activated when parties reach a settlement agreement
concerning a
claim. This section authorises the Minister to finalise such a
settlement with interested parties, as long as they
are satisfied
that the claimant has a legitimate entitlement to the restitution of
land rights, that the claim has been validated
for the award of the
land or a portion of it, or both, along with any applicable terms and
conditions. Importantly, this mechanism
does not require any referral
to the court.
Section
42D is designed to facilitate a more expedient and less adversarial
resolution of claims than traditional litigation processes
in the
Land Court. This provision promotes negotiated outcomes that cater to
the specific circumstances of affected communities
and landowners,
allowing for a range of flexible remedies, including not only land
restoration but also compensation and other
benefits. Historically,
this mechanism was the primary path for resolving claims.
The
Minister serves as the pivotal decision-maker in this process. For a
claim to progress, it must undergo a thorough investigation,
and the
Minister must be convinced of its validity. The Minister engages in
negotiations with all relevant stakeholders, including
claimants,
landowners, and other affected parties. The outcomes of these
negotiations can encompass a variety of remedies, such
as land
transfers, monetary compensation, provision of alternative land or
rights, or support for development initiatives. It is
imperative that
any settlement agreement be documented in writing, signed by all
parties, and subsequently submitted to the Minister
for official
endorsement.
[76]
In addition, section 42D (3) provides as follows: The Minister may
delegate any power conferred upon him or her by subsection
(1) or
sections 42C and 42E to the Director-General of Rural Development and
Land Reform, [or any other officer of the State] or
to the Chief Land
Claims Commissioner or a regional land claims commissioner.
[77]
The
Minister may only be substituted upon delegating that authority in
terms of section 42E, in
Quinella
Trading (Pty) Ltd
[1]
the
Court held as follows:
‘…
This power
[referring
to the power to enter into agreements for the purchase of land],
in
terms of Section 42 E of the Act is the preserve of the Minister
alone. As it is the state which effects restitution, so too
it is the
state through the Minister which purchases land for this purpose.’
[2]
[78]
It is clear from the evidence before me that the drafting of section
42D depended on the agreement of the purchase price
between the
parties. The parties did not agree on the purchase price, and the
matter was referred to the Land Court for determination.
At the time
this application was launched, the land claim was still in the
investigation stage and had not been referred to court
under section
14 of the Restitution Act. However, the matter was referred to court
after the parties exchanged the pleadings.
[79]
The Applicant asserts that the agreement was intended to be
formalised in writing under section 42D of the Restitution
Act, with
the Minister's final approval and signature.
[80]
The Applicant further states that, to remove any ambiguity regarding
the agreements reached during the meeting, they
sent a letter to the
Respondents requesting confirmation of the terms discussed. The
Respondents were asked to reply within 14
days of receiving the
letter; failure to respond would be taken as their agreement with its
contents and the proposed course of
action. The letter outlined the
suggested approach for resolving the land claim as follows:
1.
“
We suggest that the parties
should agree that the purchase price for the developed Portion 6 of
the farmer with a boom 316 KT should
be determined by the Land Claims
Court, and if this mechanism is agreed to, a full and complete
settlement agreement in terms of
section 42D can be drafted then
signed on that basis without delay, by all parties concerned
2.
The effect of the above mentioned
will be that the current court application that was brought by our
clients, does not have to proceed
any further, and the land claim
would then only be referred to the court for the purposes of
determination of the market value
related purchase price to be paid
for the development of portion 6 of the farm Witgatboom 316 KT.
3.
There should be no reason why an
agreement to this effect should not come into being, as it is in the
best interest of all parties
to utilise such a mechanism to determine
a market value-related purchase price, and to efficiently and
expeditiously dispose of
the land claim and the settlement thereof.
4.
We request the parties addressed in
this letter to consider the above-mentioned and to inform the writer
hereof in writing should
an agreement to the above effect not be
acceptable to any of such parties.
5.
If we do not received an answer in
writing from any of the parties to which this letter has been
addressed, within 14 days from
the date of the letter, we will assume
that an agreement to the above mentioned effect has been concluded
between such parties,
and that a Section 42D2 settlement agreement
regarding this land claim will be drafted and signed by all relevant
parties including
the Regional Land Claims Commissioner, the Chief
Land Claims Commissioner, the Minister, the land owners and the land
claimants.
6.
We look forward to your response in due
course, failing which we will accept that the land claim in respect
of portion 6 of the
farm Witgaatboom 316 KT has been finally settled,
and we will then act as aforesaid”
[81]
The Applicant indicated in its initial submission that the parties
have reached a stalemate, as their correspondence
has failed to move
the matter forward. This situation prompts an examination of the
enforceability of an agreement to agree.
[82]
Dealing with the enforceability of agreements to agree Jafta J in
Makate v Vodacom (Pty) Ltd
2016
(4) SA 121
(CC)
expressed himself as follows:
“
Agreement to
negotiate in good faith
Agreements to negotiate
in good faith are taken as a species of the
pacta de contrahendo
(agreements to agree). Generally, they are regarded as a
category of contracts whose purpose is to create other contracts
in
future. But sometimes contracting parties, as was the position
here, may be confronted by a situation where they are not
able to
agree on some of the terms of the contract. To resolve the
problem, they may arrange to negotiate and agree on the
outstanding
terms on a future date. The arrangement may form part of the
concluded agreement. A dispute may arise,
if one of the
contracting parties, as was the case here, refuses to negotiate the
outstanding term so that the parties’ agreement
may be
executed. When this occurs, the question that arises sharply is
whether the term to negotiate is enforceable at the
instance of the
innocent party.
Until 1992, our courts
were reluctant to enforce agreements to negotiate in good faith, in
the belief that contracting parties are
free to drive a hard bargain
and to withdraw from negotiations if they are no longer interested.
The concern from our courts
was that it was difficult, if not
impossible, to enforce open-ended terms of that kind without an
objective standard to which bargaining
parties could be held.
But in
Letaba Sawmills
the Appellate Division held that a term
to negotiate in good faith there was enforceable because it contained
a deadlock-breaking
mechanism. In that case the parties had
agreed that should consensus on outstanding matters elude them, then
an arbitrator
may resolve the issue. The Court did not regard
the arbitrator’s role as amounting to a third party making the
contract
for the parties but as an enforcement of what the parties
themselves had agreed. Our law considers the parties’
freedom
of contract to be sacrosanct and that the parties’
consensus must be reached freely.
Therefore, currently the
position in our common law is that an agreement to negotiate in good
faith is enforceable if it provides
for a deadlock-breaking mechanism
in the event of the negotiating parties not reaching consensus.
This position was reaffirmed
by the Supreme Court of Appeal in
Southernport
Developments
.
In that case parties to a lease agreed to enter into good faith
negotiations in respect of certain specified properties.
The
agreement provided that if the parties were unable to agree on any of
the terms of the yet-to-be negotiated lease, the dispute
would be
referred to an arbitrator whose decision would be final and
binding.
[3]
[83]
It is not disputed that the parties in this case entered into an
agreement to agree and that the agreement included a
deadlock-breaking mechanism. In its papers, the Applicant
asserted that: The parties agreed that
should the
“
valuations as determined by seventh respondent for the
value of the developed
Land to be
purchased, not be acceptable to the applicant, the determination of
the value of the purchase price for such developed
land would be
referred to the land claims court by the 1st respondent for
determination of a fair and reasonable market related
value of such
developed land”.
[84]
The Second Respondent has since referred the matter to this court in
terms of section 14(1) and (2) under case number
LCC105/2022B. In my
view, the Second Respondent fulfilled its obligations under the
agreement and its obligations under section
14(1) and (2) of the
Restitution Act, although they were executed after the issuance of
this application.
[85]
On 15 June 2023, the RLCC filed a referral notice with the Land
Claims Court in terms of section 14 of the Restitution.
Notice
of Referral filed by RLCC in terms section 14(1) of the Restitution
Act under case 105 /2022
[86]
Instead of filing its answering affidavit, on 15 June 2023, the RLCC
Mpumalanga issued a notice of referral under section
14(1) of the
Restitution Act to all parties, referring the disputed market value
of portion 6 of the Farm to court for determination.
[87]
Mr Lebjane Maphutha filed a certification in terms of section
14(1)(b) of the Restitution Act, certifying that it is
not feasible
to resolve the dispute relating to the market value of portion 6 of
the farm Witgatboom 316KT claimed by the Maphanga
Communal Property
Association through mediation or negotiations. The referral is
pending before this Court under case number LCC105/2022B.
[88]
On the recommendation as to the most appropriate manner in which the
Maphanga Claim and the market value of the Portion
can be resolved,
the RLCC recommended that this court should decide on the following:
a.
Whether Tubatse Estate has made out a case
for the review and set aside the report of the office of the valuer
general, which recommended
the market value of portion 6 to be R11
879 000.
b.
Whether to accept the estate's offer of R200
million for portion 6 of the farm is fair and reasonable.
[89]
In their heads of argument, the Applicant noted that the matter has
been referred to court under section 14 of the Restitution
Act, where
the RLCC recommended that the Land Court determine the market value
of Portion 6. However, the Applicant contends that
this should follow
the enforcement of section 42D. There is no merit in this submission.
These are two parallel mechanisms. Referral
in terms of section 14
(1) (a) and (b) does not require a settlement agreement to be
concluded first.
[90]
Upon thorough evaluation, I am of the view that the State Respondents
have not breached the agreement to agree, and consequently,
the
Applicant's application should be dismissed. This should be the end
of this matter. Nevertheless, for the sake of completeness,
it is
important to address the Applicant's assertion regarding the
validity, binding nature, and enforceability of the compromise
agreement, even in light of its non-compliance with the provisions of
the
Alienation of Land Act.
[91
]
The
Alienation of Land Act governs
the sale (alienation) of land and
requires that all agreements for alienation be recorded in a written
deed of alienation, signed
by the parties or their agents.
Section
2(1)
of this Act states that no alienation of land after the
commencement of the Act will have force or effect unless contained in
a
written and signed deed of alienation. This codifies the
requirement of written formalities in land sales. Oral agreements for
the sale of land are therefore generally not enforceable under the
Act. The courts have consistently held that verbal agreements
relating to immovable property are unenforceable.
[92]
Section 2(1) provides that
“
No alienation of
land after the commencement of this section shall, subject to the
provisions of section 28, be of any force or
effect unless it is
contained in a deed of alienation signed by the parties thereto or by
their agents acting on their written
authority.”
Section 28 (2) reads as
follows:
Any alienation which does
not comply with the provisions of section 2 (1) shall in all respects
be valid ab initio if the alienee
had performed in full in terms of
the deed of alienation or contract and the land in question has been
transferred to the alienee”.
[93]
Our courts have examined numerous legal requirements of sale
agreements under the Act.
It is now settled that
one of the formal legal requirements is that the material terms of
the contract must be reduced to writing.
[94]
Most
recently in
Cooper
N O and Another v Curro Heights Properties(Pty) Ltd
[4]
Meyer JA, writing for the unanimous court, said:
‘
Section 2(1)
requires
the
whole contract of sale – its material terms – to be
reduced to writing
signed
by or on behalf of the parties.
The material terms of the contract are not confined to those
prescribing the
essentialia
of
a contract of sale, namely the parties to the contract, the
merx
and
the
pretium
.
Generally speaking, these terms, and especially the
essentialia
,
must be set forth with sufficient accuracy and particularity to
enable the identity of the parties, the amount of the purchase
price
and the identity of the subject-matter of the contract, and also the
force and effect of other material terms of the contract,
to be
ascertained without recourse to evidence of an oral
consensus
between
the parties. Whether a term constitutes a material term is determined
with reference to its effect on the rights and
obligations of the
parties.’
[5]
[95]
Bloem J,
dealing with the provisions of section 28 (2) of the Act, in
Bester
N.O v Van Wyk
[6]
, held that:
“
[7] The use of the
words “or contract” in section 28(2) indicates that the
legislature made provision for an instrument
as an alternative to a
deed of alienation in terms of which land may be alienated. The
subsection refers to performance by
the alienee in terms of a deed of
alienation or a contract. I understand section 28 (2) to mean
that an alienation of land
will, notwithstanding non-compliance with
the provisions of section 2 (1), be valid if:
(a)
the alienee had performed in full in terms of the deed of alienation;
or
(b)
the alienee had performed in full in terms of the contract; and
(c)
the land in question has been transferred to the alienee.
[96]
In paragraph 8 of the judgment, the learned judge held that:
“
The alienation
shall be valid if the defendant had performed in full in terms of the
oral contract. In terms of section 1
of the Act, “contract”:
“
(a)
means a deed of alienation under which land is sold against
payment by the purchaser to, or to any person on behalf of, the
seller
of an amount of money in more than two instalments over a
period exceeding one year;
(b)
includes any agreement or agreements which together have the same
import, whatever form the agreement
or agreements may take”.
[9] A contract
accordingly includes any agreement or agreements which have the same
import as a deed of alienation under which land
is sold against
payment by the purchaser to the seller of an amount of money in more
than two instalments over a period exceeding
one year.
Furthermore, in terms of the definition of “contract”, it
is immaterial whether it is in the form of
an oral or written
contract”.
[97]
In this instance, the compromise agreement fails to meet the criteria
set out in the
Alienation of Land Act (ALA
), rendering it
unenforceable.
Costs
[98]
It is
standard procedure for this Court to generally withhold the awarding
of costs in relevant cases unless there are exceptional
circumstances
that warrant such an award.
[7]
The
procedural approach at the LCC is predominantly shaped by its
jurisdiction over cases arising from social interest litigation.
Notably, this case diverges from typical proceedings due to the
Applicant’s insistence on pursuing the application even after
the matter was referred to court under sections 14(1) and 14(2) of
the Restitution Act.
Order
[99]
In the premises, I order as follows:
1.
The application is dismissed with costs
Flatela
L
Judge
of the Land Court
APPEARANCES
:
For
the Applicants:
Adv
R du Plessis SC
Adv
JS Stone SC
Instructed
by: Van Rensburg Attorneys
For
the State Respondents:
Adv
L Gumbi
Instructed
by: State Attorney, Pretoria
For
the Third Respondents:
Adv
Phukubje
Adv
M Mamitwa
Adv
Seweya
Instructed
by: Norton Rose Fulbright South Africa Inc.
[1]
Quinella
Trading (Pty) Ltd and Others v Minister of Rural Development and
Land Reform and
Others
[2010] 4 All SA 331
(LCC).
[2]
Ibid
para 18.
[3]
Makate
v Vodacom (Pty) Ltd
2016
(4) SA 121
(CC)
para
95-97.
[4]
Cooper
N O and Another v Curro Heights Properties (Pty) Ltd
2023 (5) SA 402
(SCA).
[5]
Ibid
para 16.
[6]
Bester
N.O v Van Wyk (2845/2012)[2016 ZAECGHC 37
[7]
Pannar
Research Farms (Pty) Ltd and Another v Magome and Another
2002 (5)
SA 621
(LCC) para
5