IN THE LAND COURT OF SOUTH AFRICA
HELD AT RAND BURG
Before the Honourable Petse AJ
Date of hearing: 02 December 2025
Date of judgment: 05 March 2026
DELETE WHICHEVER lS UOT APPLICABLE
(1) REPORTABLE: YES Q ("",
{2) OF INTEREST TOfaTHER JUDOES; YES JN9'
(3) REVISEO; YESJ~
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IJ..hATE SIGNA URE
In the matter between:
NKUNA TRADITIONAL COUNCIL
and
MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM
REGIONAL LAND CLAIMS COMMISSIONER,
LIMPOPO
CASE NO: LCC 108/2019
Applicant
First Respondent
Second Respondent
1
BERLIN COMMUNAL PROPERTY ASSOCIATION Third Respondent
Summary: Review - Promotion of Administrative Justice Act 3 of 2000 (PAJA) -
administrative action taken some 15 years previously - applicant aware of process
culminating in administrative action from its inception - review proceedings instituted
long after expiry of period of 180 days - no allegations in founding papers of when
applicant became aware of administrative action - no condonation sought as
required by section 9(1) of PAJA - court precluded from entertaining review in such
circumstances - application dismissed.
ORDER
The following order is made:
1. The application is dismissed with no order as to costs.
JUDGMENT
Petse AJ
Introduct ion
[1J On 30 August 2019 the applicant, Nkuna Traditional Council, brought an
application by way of notice of motion against the first, second and third respondents
in terms of section 6(1) of the Promotion of Administrative Justice Act.1 The first
respondent is the Minister of Rural Development and Land reform ("the minister");
the second respondent is the Regional Land Claims Commissioner, Limpopo ("the
claims commissioner'') and the third respondent is the Berlin Communal Property
Association ("BCPA»). The third respondent is a Community Property Association
established in terms of section 8(3) of the Communal Property Association Act.2 It
was issued with its certificate of registration on 6 August 2004.
1 Promotion of Administrative Justice Act 3 of 2000 (PAJA).
2 Communal Property Association Act 28 of 1996 (Communal Property Association Act).
2
The facts
[2] In terms of its notice of motion , the relief sought by the applicant was for an
order set out below:
1. 'The review of [the] decision of the first and/or second respondent to
effect restitution by awarding Portion l, Portion 2, Portion 3 and the
Remaining Extent of Farm Berlyn 670 LT (hereinafter referred to as the
four land parcels) to the third respondent.
2. Directing that the four parcels of land be transferred to the names of
the Government of the Republic of South Africa or the first respondent
who shall hold such properties in trust on behalf of the applicant and
Nkuna traditional community.'
[3] Only the minister and the claims commissioner are opposing the application
whilst the BCPA has not entered the fray choosing, instead, to remain supine.
[4] From the founding affidavit of the applicant, which was deposed to by
Mr Ribye Charles Mohlaba, who is allegedly the chairperson of the applicant, certain
material facts may be gleaned. On a reading of the founding affidavit the following
summary of the facts that are relevant to what follows in this judgment may be
extracted. It bears mentioning that these facts are for the most part either common
cause or not in serious dispute:
1. The applicant is the Nkuna Traditional Council of Nkuna Royal
Palace, Ka-Muhlava in Mopani district, Limpopo. The applicant is a
traditional council contemplated in section 1 read with section 8 of
the Traditional Lead ership and Governance Framework Act 41 of
2003 which is the de facto governing authority of the Nkuna
traditional community. Its core mandate is to administer the affairs
of the traditional community in accordance with the customs and
practices of the traditional community concerned;
2. The applicant seeks to review the decision of the minister,
alternatively the claims commissioner to transfer the four parcels
3
of land in issue in this application allegedly owned by the applicant
to the BCPA without its consent or involvement.
3. That in the course of executing its traditional duties, the applicant
allocated a residential site to a certain Mr Edmond Baloyi in an
area called Tshamahansi which forms part of the Farm Berlyn 670
LT and under its authority who intended to erect a dwelling thereon.
However, Mr Ba loyi was unable to build the intended dwelling
because he was precluded from doing so by a Mr Cromwell
Nhemo who claimed that the applicant had no right to allocate
residential sites over the land because such land belonged to the
BCPA.
4. As a result of this setback, representatives of the applicant made
enquiries from the claims commissioner who advised that a group
of persons under the auspices of the Berlin Community had lodged
a land claim in respect of the four parcels of land which was, after
compliance with legal prescripts, subsequently transferred to the
BCPA.
s. Not entirely satisfied with the explanation provided by the claims
commissioner, the applicant's representatives finally had a
meeting on 21 May 2019 with the Chief Director in the claims
commissioner's office. At this meeting, they were informed that the
Berlin Community land claim was approved and, on 7 October
2008, the transfer of the four parcels of the land inclusive of the
Remaining Extent of the farm Berlyn 670 LT to the BCPA was
approved. And at the time when the transfer to the BCPA was
approved, the land concerned belonged to the National
Government.
6. The applicant asserted that it was "materially and adversely
affected" by the transfer of the land to the BCPA, hence it sought
that the transfer be reviewed and set aside.
[5J In an answering affidavit filed on behalf of both the minister and claims
commissioner, deposed to by Mr Lebjane Harry Maphutha who is the Regional Land
Claims Commissioner, Limpopo, the material averments contained in the founding
4
affidavit are denied. For the sake of convenience , I shall hereinafter refer to the
minister and claims commissioner collectively as the respondents. Should there be a
need to make reference to the third respondent it will be referred to as BCPA as
stated above. Upfront, the respondents challenged the applicant's legal standing.
The foundation for the challenge was that the applicant: (a) neither lodged a claim for
the restitution of the land that is the subject-matter of the review proceedings nor
raised any objection to the claim lodged by the individuals who later registered a
communal property association under the name 'Berlin Communal Property
Association' in terms of the Communal Property Association Act; and (b) the
applicant 'never had any interest to the land claimed and ... were not party to any
claim and the decision' made in relation thereto.
[6] As to the merits of the applicant's case, the respondents asserted that:
1. A certain Mr Patric Mabinda and Mr Joseph Ngobeni lodged separate
claims on 29 and 31 December 1988 respectively in respect of the
Farm Berlyn 670 LT which were later consolidated into one claim on
behalf of the Berlin Community;
2. The two claims were lodged before 31 December 1998 and therefore
met the requirements of section 2(1)(c) of the Restitution of Land
Rights Act;3
3. The claims were lodged as a sequel to the dispossession of the land
that the community had occupied 'since time immemorial' and
especially from 1963 to 1965;
4. The community was forcefully removed from their land to make way for
the establishment of a sisal and citrus program under the auspices of
the Department of Agriculture using a development vehicle known as a
Parastatal to using the acronym ARAC ;
5. Having satisfied themselves that the claims were legitimate, the claims
(as consolidated) were published as prescribed by the Restitution Act
on 7 November 2003 in Government Notice 3185 of 2003. The notice
on 7 November 2003 in Government Notice 3185 of 2003. The notice
also invited all interested parties to lodge any objection they might have
3 Restitution of Land Rights Act 22 of 1994 (the Restitution Act).
5
in writing within 30 days of the publication of the notice to the claims
commissioner, to an address provided in the Government Gazette;
6. Notwithstanding its awareness that individual members of the
community had lodged a claim for restitution the applicant did not
submit any objection to the claims when the applicant was afforded an
opportunity at the very least on two occasions during which it could
have done so. Instead, on its own version the applicant assumed that
the outcome of the land claims would be otherwise than the restoration
of the land to the claimants;
7. In the absence of objection from any party, including the applicant, the
claims were settled and approved in the normal course in terms of the
Restitution Act;
8. The approval was follow ed by a conclusion of a settlement agreement
in terms of section 14(3) of the Restitution Act that culminated in the
registration of the third respondent association after which Portions 1, 2,
3 and the remaining extent of the Farm Berlyn 670 LT were, following
the consolidation of the individual claims, jointly transferred by the
Department of Rural Development and Land Reform to the third
respondent.
[7] It is not without significance that the applicant does not dispute that the claims
were published in the Government Gazette number 35667 127 of 7 November 2003
and in Government Notice 3185 also of 2003 in terms of which interested parties
were required to file, in writing, what ever objections they might have to the claim
within 30 days of the publication of the notice. Curiously, the applicant stated in its
replying affidavit that its failure to object to the land claim was not intentional and
attributed such failure 'to the 'conduct of the officials of the respondents holding
meetings with the community without inviting the traditional leadership.' The
applicant went on to aver that 'Had the officials of the respondents followed the
traditional norm and informed Ndhuna Mbhokota and Ndhuna Totvvana of the
traditional norm and informed Ndhuna Mbhokota and Ndhuna Totvvana of the
inspection in loco and verification of beneficiaries, they would have informed the
applicant of the visit and the applicant would have known of the land claim by the
community and would have objected to it or objected to the restitution of the land to
the Berlin Community but would rath er have supported the qualifying claimants for
6
payment of monetary compensatio n.'
[8] It is necessary to pause here and make some observations. First, the
assertion by the applicant that the respondents' officials chose to disregard custom
and, instead deal with the members of the community directly cannot avail it. The
fact of the matter is that the applican t was aware of the lodgement of the two land
claims but elected to remain supin e, even in the face of the publication of the land
claims in the Government Gazette and the invitation to all and sundry who
considered that they had an interest in the two land claims to take positive steps in
order to safeguard their interests, if any. Thus, on the facts it is beyond question that
the applicant was indeed the author of its own misfortune.
Analysis
(9] In paragraph 1 above I alluded to the fact that the review application with
which I am concerned was brought in terms of section 6(1) of PAJA. For this reason,
it is necessary to advert to section 7(1) of PAJA. Section 7(1) of PAJA reads:
'Any proceedings for judicial review in terms of section 6(1) must be instituted
without unreasonable delay and not later than 180 days after the date-
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of
internal remedies as contemp lated in subsection 2(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of
the administrative action, became aware of the action and the reasons for it or
might reasonably have been expected to have become aware of the action and
the reasons.'
[10] From the text of section 7(1 ), there can be no doubt as to its manifest
purpose, namely that a review application in terms of PAJA is required to be
instituted without unreasonable delay and, in any event, not later than 180 days after
the aggrieved party became aware of the impugned administrative action or 'might
reasonably have been expected to have become aware of the action and the
reasons' therefor.
reasonably have been expected to have become aware of the action and the
reasons' therefor.
[1 1] Next, there is section 9(1) of PAJA which provides that the 180 day period
7
may, either by agreement between the parties or absent such agreement, by a court
on application, be extended for such a period as the court might deem meet if, in
terms of section 9(2) of PAJA, the interests of justi ce so require. What the interests
of justice will require will depend on the peculiar facts of each case, meaning that
such an inquiry is fact-based and will be determined on a case by case basis. In
Camps Bay Ratepayers' and Residents' Association and Another v Harrison and
Another,4 the Supreme Court of App eal said the following:
' ... the question whether the interests of justice require the grant of such extension
depends on the facts and circumstances of each case: the party seeking it must
furnish a full and reasonable explanation for the delay which covers the entire
duration thereof and relevant factors include the nature of the relief sought, the
extent and cause of the delay, its effect on the administration of justice and
other litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.' (Footnotes omitted.)5
[12] In Mulaudzi v Old Mutual life Assurance Company (South Africa) Limitecf the
Court said that in applications for condonation (extension of time in the context of
section 9(2) of PAJA), the substantive merits of the principal case may be relevant.
The court proceeded to say that in circumstances where the merits are considered to
be relevant, they are not necessarily decisive. In Opposition to Urban Tolling Alliance
and Others v The South African National Roads Agency Ltd and Others7 the Court
stated that absent an extension 'the court has no authority to entertain the review
application.' However, this statement was qualified in South African National Roads
Agency Limited v City of Cape Town,8 in which Navsa JA said that this dictum
'cannot be read to signal a clinical excision of the merits of the impugned decision ,
which must be a critical factor when a court embarks on a consideration of all the
which must be a critical factor when a court embarks on a consideration of all the
circumstances of a case in order to determine whether the interests of justice dictate
4 Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another [2010) 2
AU SA 519 (SCA).
5 Ibid para 54.
6 Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others. National Director
of Public Prosecutions and Another v Mulaudzi (2017] 3 All SA 520 (SCA).
70pposition to Urban Tolling Alfiance and Others v The South African National Roads Agency Ltd and
Others [2013) 4 All SA 639 (SCA) para 26 (OUTA).
8 South African National Roads Agency Limited v City of Cape Town (2016] 4 All SA 332 (SCA) para
81.
8
that the delay should be condoned. 9
[13] Nevertheless, it is necessary to emphasise that in this case, as already
indicated above, the applicant did not bring any application for the extension of the
180 day period as contemplated in section 9(2) of PAJA. Accordingly, the fate of this
appeal hinges entirely on the question whether the applicant's review application
was instituted within the 180 day period prescribed in section 7(1) of PAJA. If not,
that will be the end of the matter and the application would fall to be dismissed
without further ado.
[14J In OUTA,10 the Court held that:,
' ... after the 180 day period the issue of unreasonableness is pre-determined by the
legislature; it is unreasonable per se. It follows that the court is only empowered to
entertain the review application if the interest of justice dictates an extension in terms
of s 9. Absent such extension the court has no authority to entertain the review
application at all. Whether or not the decision was unlawful no longer matters. The
decision has been "validated" by the delay.
[15] The rationale for what has come to be known as the delay rule under section
7(1) of PAJA , whose roots are embedded in common law, was reiterated by
Brand JA in Associated Institutions Pension fund and Others v Van Zyl and Others11
as follows:
'Since PAJA only came into operation on 30 November 2000 the limitation of
180 days in s 7(1) does not apply to these proceedings. The validity of the
defence of unreasonable delay must therefore be considered with reference
to common law principles. It is a longstanding rule that courts have the power,
as part of their inherent juri sdiction lo regulate their own proceedings, to
refuse a review application if the aggrieved party had been guilty of
unreasonable delay in initiat ing the proceedings.The effect is that, in a sense,
delay would 'validate' the invalid administrative action (see eg Oudekraaf
delay would 'validate' the invalid administrative action (see eg Oudekraaf
9 See also: Asia Construction (Pty) Limited v Buffalo City Metropolitan Municipality and Another [2017)
ZASCA 23; [2017] 2 All SA 677 (SCA); 2017 (6) SA 360 (SCA} para 12 (As/a).
10 OUTA above supra n 7 para 26.
11 Associated Institutions Pension Fund and Others v Van Zyl and Others (2004) 4 All SA 133 {SCA)
paras 4648 .
9
Estates (Ply) Ltd v City of Cape Town and others [2004) 3 All SA 1 (SCA)
1 Ob-d, para 27). The raison d'etre of the rule is said to be twofold. First, the
failure to bring a review within a reasonable time may cause prejudice to the
respondent. Second, there is a public interest element in the finality of
administrative decisions and the exercise of administrative functions (see eg
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA
13(A)41) .
The scope and content of the rule has been the subject of investigation in two
decisions of this court. They are the Wolgroeiers case and Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en 'n Ander
1986 (2) SA 57 (A). As appears from these two cases and the numerous
decisions in which they have been followed, application of the rule requires
consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?
(See Wolgroeiers 39C-D.)
The reasonableness or unreasonableness of a delay is entirely dependent on
the facts and circumstances of any particular case (see eg Setsokosana
86G). The investigation into the reasonableness of the delay has nothing to
do witn the court's discret ion. It is an investigation into the facts of the matter
in order to determine whether , in all the circumstances of that case, the delay
was reasonable. Though this question does imply a value judgment it is not to
be equated with the judicia l discretion involved in the next question, if it
arises, namely, whether a delay which has been found to be unreasonable,
should be condoned (See Setsokosane 86E-F).'
[16] In Gqwetha v Transkei Development Corporation Ltd and Ofhers,12 Nugent JA
elaborated on this theme and said the following regard ing the delay rule:
'Underlying that latter aspect of the rationale is the inherent potential for
prejudice, both to the efficient functioning of the public body, and to those who
prejudice, both to the efficient functioning of the public body, and to those who
rely upon its decisions, if the validity of its decisions remains uncertain. It is
12 Gqwetha v Transkei Development Corporation Ltd end Others (2006] 3 All SA 245 para 23
(Gqwetha).
10
for that reason in particular that proof of actual prejudice to the respondent is
not a precondition for refusing to entertain review proceedings by reason of
undue delay, although the extent to which prejudice has been shown is a
relevant consideration that might even be decisive where the delay has been
relatively slight. .. '
[17] What is by now readily apparent from the discussion above is that an
application for an extension of the 180 qay period in terms of section 9(1) of PAJA
contemplates - just like any other appl ication tor condo nation for that matter - is that
the applicant must proffer a reasonable and satisfactory explanation for the delay.
This entails that the explanation proffered must not be bereft of particularity and
candour and that a full explanation must be proffered not only for the nature and
extent of the delay,13 but also for the entire period covered by the delay. And the
explanation proffered for the delay must also be reasonable. It is as well to
remember that in considering wheth er the court should come to the aid of the
applicant, the substantive merits of the review application will also be a critical factor
in determining whether the interest s of justice dictate that the delay should be
condoned.14 But in the present matter, there is, as already mentioned, no application
such as is contemplated in section 9(2) of PAJA. Thus, these considerations do not
arise in this case.
(18] Where no application for the extension of the 180 day period in terms of
section 9(2) has been made - as in this instance - a court has no authority to enter
into the substantive merits of a review application brought outside the 180 day period
prescribed in section 7(1). In Mostert NO v Registrar of Pension Funds and Others15
it was sta ted that:
'Section 7(1) of PAJA provides that proceedings for judicial review must be instituted
without unreasonable delay and not later than 180 days after the dates specified in
without unreasonable delay and not later than 180 days after the dates specified in
13 See, for example Aurecon South Africa (Ply) Ltd v City of Cape Town [2015] ZASCA 209; [2016) 1
All SA 313 (SCA); 2016 (2) SA 199 (SCA) para 17. See also: Van Wykv Unitas Hospital and Ano/her
[2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) para 20 and eThekwini Municipality
v fngonyama Trust [2013] l.ACC 7; 2013 (5) BCLR 497 (CC); 2014 (3) SA 240 (CC) para 28.
14 As!a supra fn 9.
15 Mostert NO v Registrar of Pension Funds and Others 2018 {2) SA 53 (SCA) para 34.
11
subsections (a) and (b). In Opposition to Urban Tolling Alliance Brand JA said (para
26):
"At common law application of the undue delay rule required a two stage enquiry.
First. whether there was an unrea sonable delay and, second, if so, whether the delay
should in all the circumstances be condoned ... Up to a point, I think, s 7(1) of PAJA
requires the same two stage approach. The difference lies, as I see it, in the
legislature's determination of a delay exceeding 180 days as per se unreasonable.
Before the effluxion of 180 days, the first enquiry in applying s 7(1) is still whether the
delay (if any) was unreasonable. But after the 180 day period the issue of
unreasonableness is pre-determin ed by the legislature; it is unreasonable per se. It
follows that the court is only empowered to entertain the review application if the
interest of justice dictates an ext ension in terms of s 9. Absent such extension the
court has no authority to entertain the review application at all."'
[19) It will be recalled that the appl icant instituted its review application on
19 August 2019, some 15 years afte r the impugned administrative action was taken .
Therefore, the pertinent question that now arises is: when did th e applicant become
aware of the administrative action in question or, alternatively, when might the
applica nt reasonably have been expected to have become aware of such
administrative action? On its accou nt, one critical fact which is beyond question, is
that the applicant had been aware soon after the lodgement of the land claims for the
restitution of Portions 1, 2, 3 and th e Farm Berlyn 670 LT since November 2003 , ie.
some 16 years before the date on whi ch its review proceedings were institut ed. It is
common ground that notwithstanding such extraordinary lapse of time, there is no
applicati on for condonation as contemplated in section 9(1) of PAJA. Nor is there
any agreement between the parties extend ing the 180 day period prescribed by
section 7(1)(b) of PAJA.
section 7(1)(b) of PAJA.
[20) With the review proceedings having been instituted some 15 years after the
impugn ed administrative action was taken, and in the absence of a condonation
application what should now become of this litigation. The pathway to answering this
crucial ques tion must be found in section 7(1) itself read with section 9. As already
indicated, section 7(1) decrees in unequivocal terms that review proceedings must
be instituted without unreasonable delay and, in any event, not later than 180 days
12
after the date on which the party adversely affected by the administrative action in
question became aware of such action and the reasons therefore or might
reasonably have been expected to have become aware of the action and the
reasons therefor.
[21] I have above already observed that the applicant had all along been aware of
the land claims at the very outset when they were lodged with the claims
commissioner. Having become aware of the lodgement of the land claims, the
applicant, on its own version, consciously took a decision not to object to or contest
the land claims in any way whatsoever. The lodgement of the claims was followed by
an in-loco inspection of the relevant pieces of land with the claimants and community
members. And once the land claims were approved, it was then thought desirable to
consolidate the claims, bearing in mind that the claims commissioner was not
dealing with competing or inconsistent claims.
[22] The proposed consolidation was also published in a Government Notice in
line with statutory prescripts in terms of the Restitution Act. Again, the applicant
stood by idly, indifferent to the deve lopments that were unfolding in front of 'its eyes'.
What followed thereafter was the establishment of the third respondent in terms of
the Communal Property Association Act. Ultimately, the process was concluded
when the land that was the subject of the consolidated land claims was transferred to
the third respondent. Once more, the applicant was not kept in the dark and the
inference is therefore inescapable that just like the Berlin community the applicant
kept abreast of the developments that culminated in the transfer and registration of
the land in the third respondent's name, ie. BCPA.
[23] Having regard to the extraordinary length of time between the transfer of the
land to BCPA and the time when the applicant instituted proceedings for judicial
review of the decision to transfer to and register the land in BPCA's name, it was
review of the decision to transfer to and register the land in BPCA's name, it was
incumbent upon the applicant to seek condonation for its failure to institute its
proceedings for judicial review without unreasonable delay. In this regard it is as well
to remember that as the applicant instituted the review proceedings some 15 years
after the decision was taken the issue of 'unreasonableness of the delay' was pre-
13
determined by the legislature. The inevitable consequence of this is that this Court 'is
only empowered to entertain the review application if the interests of justice dictate
that an extension be granted in terms of section 9. And because the applicant has
not availed itself of the lifeline provided for in section 9, it follows, on the authority of
OUTA, that absent an extension of the prescribed period this Court has no authority
to entertain the review application at all. Thus, the review application falls to be
dismissed. For the sake of completen ess, I need only add that the applicant's resort
to the doctrine of legality is, in the context of the facts of this case, a red herring
invoked by the applicant purely to circumvent the strictures of sections 7 and 9 of
PAJA.
[24] That notwithstanding, it must be said that even in the context of a legality
review time is still of essence and importance. This entails that legality reviews, too,
must be instituted without undue delay. In this regard what Cameron J said in
Merafong City Local Municipality v AngloGold Ashanti Limiteci16 is instructive. The
learned Justice said the following:
'The rule against delay in institut ing review exists for good reason: to curb the
potential prejudice that would ensue if the lawfulness of the decision remains
uncertain. Protracted delays coul d give rise to calamitous effects. Not just for those
who rely upon the decision but also for the efficient functioning of the decision
making body itself.'17
[25] Nevertheless, in Khumalo and Another v Member of the Executive Council for
Education: KwaZulu Nata/18 the court there said the following:
'a court should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise of public power. But
that does not mean that the Constitution has dispensed with the basic
procedural requirement that review proceedings are to be brought without
procedural requirement that review proceedings are to be brought without
undue delay or with a court's discr etion to overlook a de/ay.'19 [Emphasis
16 Merafong City Local Municipality v AngloGold Ashanti Limited 2017 (2) SA 211 (CC) (Mera(ong).
17 Ibid para 73.
18 Khuma!o and Another v Member of the Executive Council for Education: KwaZulu Natal 20 14 (5)
SA 579 (CC).
19 Ibid para 45.
14
added.]
[26] But some three years later the Constitutional Court explained that the
discretion vesting in a court to overlook a delay in bringing a legality review ought not
to be exercised lightly. The Court emphasised:
'While a court "should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise of public power", it is
equally a feature of the rule of law that undue delay should not be tolerated.
Delay can prejudice the respondent, weaken the ability of a court to consider
the merits of a review, and undermine the public interest in bringing certainty
and finality to administrative action. A court should therefore exhibit vigilance,
consideration and propriety before overlooking a late review, reactive or
otherwise.20 [Footnotes omitted.)
!25] Accordingly, this then means that on both fronts, ie. whether under PAJA or
by invoking the doctrine of legality, the applicant finds itself at a dead end without
any avenue of escape for as long as its inordinate delay in instituting the review
remained unexplained. Indeed, the applicant's situation is compounded by the fact
that the protracted delay that one encounters in this case endured for some 15 years
after the land claim was finalised. And yet the applicant requires that a process
which was commenced and completed as long ago as that must be reversed to
accommodate a party that elected to stand by idly whilst the process unfolded and
ran its course. In the words of Cameron J in Merafong the applicant's desired
objective would, if it 1,vere to materialise, certainly 'give rise to calamitous effects'.
[26] In any event, the vain attempt by the applicant to bring itself within the purview
of section 11(6)(a) of the Restitution Act is misguided having regard to the purpose
that section 11 (6)(a) is designed to serve. Hence section 11 (6)(b) in clear terms
requires the land claims commissioner to refer the owner (and such other party) to
requires the land claims commissioner to refer the owner (and such other party) to
the provisions of subsection 7. And subsection 7, in turn, provides that once a notice
in terms of section 11 (1) has been published in the Gazette in respect of the land
that is the subject of a land claim the owner (and such other party) are prohibited
20 Department of Transport and Others v Tasima (Ply) Limited 2017 (2) SA 622 (CC) para 160_
15
from doing anything in relation to such land that may either undermine or jeopardise
the land claim pertaining to such land. 21 Consequently, far from conferring any rights
or benefits on the owner or such other party, if any, section 11 (6)(a), on the contrary,
imposes certain statutory obligations on the owner and such other party, if any. From
this it becomes abundantly clear that the applicant has entirely misconceived the
import of section 11(6)(a) of the Restitution Act.
[27J Differently put, the underlying purpose of section 11 (6)(a) therefore is to
preclude the owner or any other party, where applicable, who is in control of the
property to which the land claim pertains from alienating or encumbering such
property to the prejudice of the claimant pending the outcome of the land claim
concerned. As one can readily appreciate, absent section 11 (6)(a) there would
indeed remain a distinct possibility that the owner or any other person, where
applicable, in pursuit of own personal interests, might well be motivated to alienate or
encumber the property in order to defeat the land claim. Hence the need for a
statutory provision like section 11 (6)(a).
Costs
[28) There is one further matter relating to the costs that remains. At the hearing,
counsel for the first and second respondents indicated that the two respondents
opposing the application would not insist on costs being awarded in their favour in
the event that the application fails. The respondents' stance in this regard is
commendable. And as alluded to in paragraph 7.1 above, this application cannot
succeed for the reasons as articulated herein before.
21 Subsection (7), in relevant part, reads:
'(7) Once a notice has been published in respect of any land-
(a) no person may in an improper manner obstruct the passage of the claim;
(aA) no person may sell, exchange, donate, lease, subdivide or rezone the land in question without
having given the regional land commissioner one month's written notice of his or her intention do so,
and .. .'
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Order
[29] In the result the following order is made:
1. The application is dismissed with no order as to costs.
X M Petse
Acting Judge of the Land Court
Date of Hearing:
Date of Judgment:
Counsel for Applicant:
Instructed by
Counsel for First and
02 December 2025
05 March 2026
S Mbhalati
8 Shirinda Incorporated, Pretoria
c/o Mashaba H Attorneys, Randburg
Second Respondents F Ramarano
Instructed by: State Attorney, Pretoria
Counsel for Third Respondent No appearance
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