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[2026] ZALCC 10
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Chief Land Claims Commissioner and Others v Nxamalala Tribe and Others (Leave to Appeal) (LCC30/2021) [2026] ZALCC 10 (25 February 2026)
IN
THE LAND COURT OF SOUTH AFRICA
HELD
AT RANDBURG
CASE
NO
: LCC30/2021
Before:
Honourable Ncube J
Hearing
on: 16 October 2025
Delivered
on
:
25 February 2026
REPORTABLE:
YES/NO
OF
INTREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
In
the matter between:
CHIEF
LAND CLAIMS COMMISSIONER
First Applicant
REGIONAL
LAND CLAIMS COMMISSIONER
KWAZULU-NATAL
Second Applicant
MINISTER
OF RURAL DEVELOPMENT AND
LAND
REFORM
Third Applicant
and
NXAMALALA
TRIBE
First Respondent
VARIOUS
LANDOWNERS
Second Respondent
IN RE:
NXAMALALA
TRIBE
Claimants
ORDER
1. The Application
for Condonation for the late filing of the Application for Leave to
Appeal by the Government Respondents
is dismissed
2. The Application
for Leave to Intervene filed by the Landowners is dismissed.
3. There is no
order as to costs
JUDGMENT:
LEAVE TO APPEAL
NCUBE
J
Introduction
[1 ] This is an
application for leave to appeal against the judgment of this court
handed down on 21 February 2025 and amended
13 March 2025. The
application is lodged by the First to the Third Applicants who were
the respondents in the review application
and who are hereinafter
referred to as (“the Government Respondents”).
Apart from the application for leave to
appeal there is also an
application to intervene in the application for leave to appeal.
The application to intervene is
brought by various landowners whose
properties are affected in this case. I shall refer to them, as
(“the intervening
parties”). The intervening
parties did not participate in the review application.
Initially the claimants opposed
the application for leave to appeal
by the Government Respondents, but such opposition was later
withdrawn. Application for
leave to intervene filed by
intervening parties was also opposed by the claimants who indicated
that if leave to intervene was
granted leave to appeal by the
intervening parties was equally not opposed. The Government
Respondents filed their application
for leave to appeal outside the
period prescribed by Rules of this court. It was then necessary
for the Regional Land Claims
Commissioner (“the RLCC”) to
first file the application for condonation.
[2] Rule 69 of the
Land Claim Court Rules regulates the procedure to be followed in
application for leave to appeal and it
provides:
“
69
(1) A party that wishes to appeal against an order of the Court must
apply to the Court for leave to appeal
(a)
orally at the time when the order is made
by the Court in which event that party must at the same time deal
with the matters referred
to in subrule (2); or
(b)
by notice of application for leave to
appeal delivered within 15 days –
(i)
after the order was made; or
(ii)
after full reasons for the order were
given, if the reasons were given on a later date”
[3] The judgment in
this case was handed down on 21 February 2025 and was corrected on 13
March 2025. The Government Respondents
filed their application for
leave to appeal on June 2025, which is more than three months after
the date on which the judgment
was handed down. The Government
Respondents have therefore filed an application for condonation
together with this application.
I must mention that apart from these
two applications, there is also an application brought by landowners
to intervene in the Government
Respondents’ application for
leave to appeal. The landowners did not participate in the review
application, yet they seek
leave to intervene in the leave to appeal
application. I now turn to deal with the condonation application in
respect of the Government
Respondents.
Application For
Condonation By Government Respondents
[4] It became
necessary for the Government Respondents to apply for condonation for
the late filing of the application for
leave to appeal. The law
with regard to condonation is settled. The Applicant must
explain the reason for the delay.
In the determination of the
application for condonation the court looks at the following factors:
(a)
the degree of lateness
(b)
the reason for the delay
(c)
the prospects of success
(d)
any other factor including prejudice which the other party may
suffer.
[5]
In
Melane
v Santam Insurance Co. Ltd
[1]
,
it was held:
“
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make up a case entitling it
to the
court’s indulgence. It must show sufficient cause.
This requires a party to give a full explanation for
the
non-compliance with the rules or court’s directions. Of
great significance, the explanation must be reasonable
enough to
excuse the default”
[6]
In
Grootboom
v National Prosecuting Authority
[2]
,
the Constitutional Court held:
“
Factors
which usually weigh with this court in considering an application for
condonation include the degree of non-compliance,
the explanation
thereof, the importance of the case, a respondent’s interest in
the finality of the judgment of the court
below, the convenience of
this court and the avoidance of unnecessary delay in the
administration of justice”
[7]
The Constitutional Court has also introduced the concept of the
interest of justice as one of the factors to be taken
into account in
the determination of the condonation application. Thus in
Van
Wyk v Unitas Hospital Another
(
Open
Democratic Advice
centre
as Amicus Curiae)
[3]
the
Court held:
“
This
Court has held that
the standard for
considering an application for condonation is the interest of
justice. Whether it is in the interest of justice
to grant
condonation depends on the facts and circumstances of each case.
Factors that are relevant to this enquiry include
but are not limited
to the nature of the relief sought, the extent and cause of the
delay, the effect of the delay on the administration
of justice and
other litigants, the reasonableness of the explanation for the delay,
the importance of the issue to be raised in
the intended appeal and
the prospects of success”
Explanation for the
Delay
[8] I must
immediately say that the explanation given by the Government
Respondents is not satisfactory at all and there
is no court
which can accept it. The reason is summarised in paragraph 22
of the Founding Affidavit filed in support of the
application for
condonation. That paragraph states:
“
From
the aforegoing it is clear that the delay in filing the application
for leave to appeal was due to the fact that the parties
were
attempting to resolve the matter without further litigation and this
would obviate the need for the filing of the application
for leave to
appeal. Now that the representatives of the First Respondent have not
come up with a resolution, it has become necessary
to file the
application for leave to appeal”
[9]
This is unacceptable. They had already decided to appeal so
that the judgment, which they believed was wrong, could
be corrected
on appeal. However, in case they could reach some sort of a
settlement with the other party, they were prepared
to stay with the
wrong judgment and for that reason, they disregarded the Rule which
required them to file the application for
leave to appeal withing a
prescribe time period. The fact that the parties’
continued with negotiations can never be
the reason for
non-compliance with the Rules. In
Commissioner
For The South African Revenue Service v
Sasol
Chevron Holdings Limited
[4]
albeit
in a different context, the Court held:
“……………
On
this score, it is instructive to keep at the forefront of one’s
mind that the fact that the parties continued to exchange
further
correspondence beyond 6 December 2017 cannot detract from the truism
that SARS’ impugned decision was taken on 6
December 2017.
What is more important is that this is the very same decision that
Sasol Chevron sought to have reviewed and
set aside…..”
[10] The judgment
was handed down and sent to the State Attorney on 05 March 2025 at
10:28. The State Attorney was in
possession of the judgment for
six days. On 10 March 2025, after six days since they received
the judgment, they received
a letter from the Claimants’
Attorneys requesting a meeting with the Regional Land Claims
Commissioner(“RLCC”)
“to discuss the attitude”
of the RLCC towards the Referral, not to discuss the judgment.
On 12 March 2025, a
corrected judgment which did not change the
order, was sent to the State Attorney and other parties. Still
there were no
steps taken to file an application for leave to appeal.
[
11]
On 14 March 2025, ten days after they received the judgment, Mr
Ndlovu from the office of the RLCC had a meeting with
the Claimants’
Attorneys. At that meeting, Mr Ndlovu indicated that the RLCC
had a problem with the manner in which
the judgment dealt with the
doctrine of
functus officio,
but
no steps were taken to appeal the order. The Claimants
Attorneys indicated they were going to consult their clients and
see
how to move forward. Before the second meeting between Mr
Ndlovu and Claimants’ Attorneys, the State Attorney got
instruction to brief Counsel. The date on which the instruction
was received is not mentioned. Counsel was to be briefed
to
give an opinion, despite the fact that the RLCC had formed an opinion
that the judgment was not in order and knowing that they
had only 15
days within which to file an application for leave to appeal.
[12] Ultimately,
Counsel was briefed for his opinion. Again, no date is
mentioned when Counsel was briefed. Counsel
wanted to have
consultation with the representatives of the RLCC. No time
frame was given. On 24 April 2025, after
52 calendar days and
36 court days, there was a second meeting between the Claimants’
Attorneys and RLCC ‘s representatives.
Counsel had not
had consultation with RLCC’s representatives. At the
meeting of 24 April 2025, parties decided to suspend
their intended
legal actions which by implication, must include the application for
leave to appeal, which was, in any event, outside
the time period
prescribed in terms od the Rules. After the suspension of
intended legal actions, Claimants’ Attorneys
promised to revert
to the RLCC on the question of whether Claimants were willing to
accept financial compensation. It seems
to me that at this
stage, the RLCC who perceived the judgment to be wrong and had not
taken it on appeal, was still willing to
pay financial compensation,
although according to him, the claim was invalid for non-compliance
with section 2 of the Restitution
Act. It does not make sense.
[13] Although
intended legal actions had been suspended and the RLCC was now
willing to pay financial compensation to the
Claimants,on 02 May
2025, the representatives of the RLCC had consultation with Counsel.
Counsel provided his opinion on
16 May 2025. Even then, no
application for leave to appeal was filed. The RLCC was still
waiting for the resolution
to accept financial compensation from the
Claimants. Parties met again on 24 May 2025. Another
request for time to
obtain a resolution was made. This is the
conduct of a party who wants to seek leave to appeal and who knows
that leave to
appeal must be filed within 15 days from the date of
the impugned judgment. The Notice of application for leave to
appeal
was finally signed by the State Attorney on 10 June 2025 but
only filed with the Registrar of this court on 14 August 2025.
There is no explanation given for the further delay from 11 June 2025
to 14 August 2025.
[14]
It is trite that in condonation application the explanation tendered
for the delay must cover the whole period.
In
casu,
there was an inordinate delay which
cannot be explained. Even the insufficient explanation given is
very unreasonable.
Even Counsel could not explain the delay in
court, he referred me to the Founding Affidavit which was
insufficient in its reasons
for the delay. In these
circumstances, there is no need for me to look at the prospects of
success and interest of justice.
The application for
condonation stands to be dismissed. In the circumstances, there
is no application by Government Respondents
for leave to appeal
before me. I shall proceed and consider the Landowners’
application for leave to intervene.
Application For
Leave to Intervene
[15] The landowners
(“intervening Parties”) seek leave to intervene in
Government Respondents’ application
for leave to appeal the
order of 21 February 2025, granted in the review proceedings.
The application raises certain problems.
The first problem is
that the intervening parties did not participate in the review
application although their immovable properties
were likely to be
affected by the outcome of the Review proceedings. Initially,
the intervening parties were legally represented
by different firm of
attorneys. Mr McCarthy appeared on behalf of the Intervening
Parties. On 14 March 2023, Mr McCarthy
attended a Pre-trial
Conference. At that pre-trial conference Mr McCarthy recorded
that his clients will not participate
in the review application.
Indeed the review proceedings continued to finality without the
participation of the landowners.
The same landowners or
intervening parties now contend that Mr McCarthy had no mandate to
represent them and make submission on
their behalf at the pre-trial
conference. The intervening parties contend that they were not
informed of the review proceedings.
[16] The second
problem raised by this application is that since I have decided to
refuse the Government Respondents’
application for condonation,
there is therefore no application for leave to appeal before me.
That now begs the question
whether a party may intervene in
proceedings which are not before court. Even if there was
application for leave to appeal
before me, it is doubtful if the
landowners could prove that they have a direct and substantial legal
interest in the outcome of
the litigation.
[17]
In
Lebea v Menye And Another
2023 (3) BCLR 257
(CC) Para 30 the Constitutional
Court held:
“
Direct
and substantial interest is a direct and substantial interest in the
order that a court is asked to make in a matter.
It is not
enough if a person has an interest in a finding or in certain reasons
for an order. The interest must be in the
order or the outcome
of the litigation…..”
It seems to me that the
landowners had a direct and substantial legal interest which could be
prejudicially affected by the order
or outcome of the Review
Application but not in the present proceedings. They have no
direct and substantial interest in
the order which this court is
asked to make in these proceedings. Application for leave to
intervene stands to be dismissed.
There is no need to deal with
the application for leave to appeal by the Landowners.
Findings
[18]
There is no Application for leave to appeal before the court.
Even if there was, the landowners would have had
no direct and
substantial legal interest in the order which the court would have
been asked to make. They would have had
interest in the appeal
itself if leave to appeal was granted to the Government Respondents.
They could ask the Appeal Court
for leave to intervene in the
appeal.
Costs
[19] The Claimants
did not oppose the applications by the Government Respondents and
Landowners and there are no exceptional
circumstances justifying a
costs order.
Order
[20]
In the result, I make the following order:
1. The Application
for Condonation for the late filing of the Application for Leave to
Appeal by the Government Respondents
is dismissed
2. The Application
for Leave to Intervene filed by the Landowners isdismissed.
3. There is no
order as to costs
NCUBE
J
JUDGE
OF THE LAND COURT
OF
SOUTH AFRICA
APPEARANCES:
Condonation
and Leave to Appeal:
Instructed
by:
Adv
M C Nqala SC
State
Attorney Durban
Leave
to Intervene:
Instructed
by:
Adv
MG Roberts SC
Adv
E Roberts
Moolman
& Pienaar Inc
400
Old Howick Road
Hilton
For
Claimants:
Instructed
by:
Adv
S. Tshangana
Siza
Incorporated
22
Oxford Road
Windermere
Durban
For
Concerned Group:
Instructed
by:
Adv
P.S. Cele
S.N.
Nxumalo Attorneys Inc
20
Otto Street
Pietermaritzburg
[1]
1962
(4) SA 531
(A) at 532 C-E
[2]
2014(2)
SA 68 (CC) Para 23
[3]
2008(2)
SA 472 (CC) at Para 20
[4]
(1044/2020)
[2022] ZASCA 56
(22 April 2022)