About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2026
>>
[2026] ZAMPMBHC 24
|
|
Director General for the Department of Agriculture, Land Reform and Rural Development v N'Wandlamhari Communal Property Association and Others (3348/2024) [2026] ZAMPMBHC 24 (11 March 2026)
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE: 3348/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED
DATE
11 March 2026
SIGNATURE
In
the matter between:
DIRECTOR GENERAL FOR THE DEPARTMENT
APPLICANT
OF AGRICULTURE, LAND REFORM AND
RURAL DEVELOPMENT
And
THE N’WANDLAMHARI COMMUNAL
1
ST
RESPONDENT
PROPERTY ASSOCIATION
MHLANGANISWENI COMMUNITY
2
ND
RESPONDENT
MAVHURAKA
COMMUNITY
3
RD
RESPONDENT
JOHAN MTHABINI
4
TH
RESPONDENT
THOMAS MTHOMBENI
5
TH
RESPONDENT
SYLVIA TONGA
6
TH
RESPONDENT
FREDDY MTHOMBENI
7
TH
RESPONDENT
HENRY HLABANE
8
TH
RESPONDENT
FREDDY MATHEBULA
9
TH
RESPONDENT
HELLEN MKANSI
10
TH
RESPONDENT
RICHARD MANGALISO NGOMANE
11
TH
RESPONDENT
This judgment
was handed down electronically by circulation to the parties’
legal representatives by email. The date and time
for hand-down is
deemed to be 11 March 2026 at 15h00.
JUDGMENT
MANGENA
AJ:
[1] This is yet another case where the
beneficiaries of a land restitution claim are fighting each other.
The stakes are high when
measured against the value of the land
acquired and the costs incurred by the government in settlement of
the land claim reported
to be the largest in the country. The fight
amongst the beneficiaries has invited the attention of the Department
of Agriculture,
Land Reform and Rural Development which seeks to
place the Communal Property Association (CPA) under judicial
administration.
The application is opposed by all the respondents
except 3rd and 11th respondents.
[2] At the centre of the dispute shorn
off unnecessary details is whether the Mavhuraka community should
benefit from the income
generated out of Malamala farm. The
contention by the other community is that the Mavhuraka community
never occupied Malamala and
were therefore never removed from it. It
was never restituted to them.
[3] The dispute has previously
received the attention of several courts on few occasions including
this Division, Gauteng High Court
and the Land Claims Court. It is
for that reason that the respondents have pleaded
lis pendens
and
res judicata
as their defences to the application by the
Department over and above their denial that there is any legal basis
justifying the
placement of the CPA under judicial administration.
[4] The case for the Department is
predicated on section 11 of the Communal Property Association Act and
is simply that the CPA
is marred by conflict amongst the
beneficiaries to an extent that others are excluded from enjoying the
benefits flowing from the
land claim. This is more pronounced in the
case of the Mavhuraka community which is the constituent member of
the CPA. The Department
argues that this failure to allocate the
benefits equitably does not accord with the provisions of the CPA and
indicate strongly
that there is maladministration in the management
of the finances.
[5] The Department further relies on
the Mediation Report filed by Mr Georghiades where the challenges of
the CPA are highlighted.
The report gives a diagnostic assessment of
the issues which require attention, if the CPA were to be able to
fulfil its obligations
and function optimally. It concludes with a
suggestion that
"in order to provide for a robust and lasting
outcome to the issues in dispute, a thorough process of engagement
needs to be
undertaken, where these disputes are explored and
unpacked".
[6] It needs to be stated outright
that the Department's reliance on the Mediation Report to support its
contention that there is
maladministration in the CPA is misplaced.
The report significantly highlights areas of concern raised by
various stakeholders
interviewed but nowhere does it recommend the
placement of the CPA under judicial administration. The decision to
place the CPA
under judicial administration was borne out of
frustration and anger that an AGM that was scheduled for February
2022 was interdicted
through a properly obtained court order. This
application is therefore a feeble attempt on the part of the
officials to circumvent
the court order, and it should not be
allowed. I say so because in the memorandum submitted to the
Director-General motivating
for judicial administration nowhere does
the author make reference to the Mediation Report and the issues
raised other than the
need to split the CPA, which process he says
will take long.
[7] In the application the DG
selectively quotes examples mentioned in the mediation report and
describes them as findings made
by Mr Georghiades. This is misleading
because those were not findings but examples of what is regarded as a
collapse of the chain
of communication within the CPA. A collapse of
communication cannot be equated with maladministration warranting
judicial administration.
The full court of Gauteng Division, in the
matter brought by Mr Wellington Mathebula involving substantially
similar issues as
raised here said the following in relation to the
powers of the Director-General to inspect and monitor records of the
CPA as contemplated
in section 11 of the CPAA, read with section
9(e)(ii) of the Act. It said the Director-General, as part of his/her
monitoring and
investigative functions (as set out in section 11 of
the CPAA) is entitled to various documents and financial records. The
CPAA
requires the Director -General to ensure that the objects of the
Act are realised and further for the Director-General to intervene
even if an association is not placed under administration. It
expressed itself as follows:
"[17] As
part of its continuous monitoring function, the Director-General is
required to inspect the affairs of the association
ensuring that it
complies with the CPAA and its constitution. In performing this
function, the Director-General is further entitled
to various
relevant information. The Director -General may peruse and make
copies of any document relating to the affairs of the
association and
may also subpoena any person with relevant information".
NCPA
v Mathebula and Others, (A265/2020) [2024] ZAGPPHC 588 (28 June
2024).
[8] The full court further found that
the association was not faulted for the manner in which it dealt with
the monies held in the
trust account. It found that the allegations
regarding the embezzlement of funds were without substance as no
evidence was presented
to support them. It consequently refused to
place the CPA under judicial administration on the basis that there
was no maladministration
in the management of the affairs of the CPA.
The significance of this finding by the High court in Gauteng is that
these allegations
have been made before and there is a court finding
made on them. Will it be appropriate for this court to rule on them
again just
because this time around the Department is the applicant?
The respondents say I shouldn't because the matter is
res
judicata
. The Department contends otherwise.
[9] The requirements for res judicata
are trite. The dispute must be between the same parties, arise out of
the same cause of action
and for the same relief. The approach to
determine the applicability of
res judicata
is;
"whether,
as a matter of fact, the same issue of fact or law which was
determined by the judgment of the previous court is
before another
court for determination. This is so because if the same issue was not
determined by the earlier court, an essential
requirement for a plea
of res judicata in the form of issue estoppel is not met. There is
then no scope for upholding the plea.
It does not, however,
necessarily follow that once the inquiry establishes that the same
issue was determined, the plea must be
upheld. That is so because the
court considering the plea of issue estoppel is, in every case
concerned with the relaxation of
the requirements of res judicata. It
must therefore, with reference to the facts of the case and
considerations of fairness and
equity, decide whether in that case,
the defence should be upheld".
Democratic
Alliance v Brummer,
[2022] ZASCA 151(3 November 2022).
[10] Applicant contends that the
matter under case number 90356/2016 adjudicated by Khumalo J in
Gauteng Division of the High Court
was not initiated by the
Department but multiple individuals and for this reason
res
judicata
does not arise. As I understand the submission by Mr
Vukeya, counsel for the applicant, it is not sufficient that the
Department
was a party to the proceedings, it must have initiated the
proceedings in order to be affected by
res judicata.
[11] The submission by the Department
cannot be supported. The requirement is that the dispute must have
been between the same parties.
In relation to this case, the question
is simply whether the Director-General was a party in the proceedings
before Khumalo J regarding
the same cause of action and relief as the
one being sought in these proceedings.
[12] On the facts, it is indisputable
that Mr Mathebula and his co-applicants are members of the CPA and
have approached a court
of law for an order to place the CPA under
judicial administration in terms of section 13 of the CPAA. The cause
of action and
the averments made in support thereof is in all
material respects similar to the one raised by the Director-General
in this case.
The DG was a party to those proceedings, and, in my
view, it is immaterial that the DG was not the initiator of the
proceedings.
Khumalo J has already made a judicial pronouncement on
the veracity of the allegations regarding maladministration and the
need
to place the CPA under judicial administration. Her finding was
that there was no maladministration and she refused to grant the
relief sought by the applicants to place the CPA under judicial
administration. Her findings in this regard were not appealed and
remain extant. The point on res judicata is well taken and should be
upheld.
[13] Based on the findings made both
on the facts and the law, applicant has not satisfied the requisite
threshold to prove maladministration
in the management of the affairs
of the CPA and in any event and as found above, Khumalo J has already
ruled on the matter.
[14] The Director -General is given
wide ranging powers to ensure that the CPA functions in line with the
constitution. I have already
quoted extensively from the full court
judgment in Gauteng where the powers of the DG are explained. The DG
has not availed herself
of these powers to demand accountability from
the executive committee of the CPA but instead chose to rely on a
mediation report
which was selectively quoted out of context to
support an ill-fated application.
[15] It was surprising that even after
the full court has expressed itself on the affairs of the CPA and
rejected the allegations
of maladministration as unsubstantiated, the
DG still chose to pursue this application. This shows disregard for
judicial authority
and constitutes an unjustified waste of state
resources. The Land Court is also seized with this matter and there
was clearly no
need to institute parallel proceedings. The conduct of
the Department is an abuse of process because quite clearly this
application
was unmeritorious.
[16] The following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay
respondents costs on a party and party scale C of the High Court
tariffs including costs one
senior counsel.
M
I MANGENA
ACTING JUDGE OF
THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES
:
Applicant’s
Representatives:
T
Vukeya
Cell:
079 943 1077
Email:
tiyane@tiyanevukeya.co.za
Office
of the state attorney Nelspruit
c/o
TH Mathebula incorporated
Tel:
013 010 3233 11-2
Cell:076
1633 178 3 11-3
Email:
info@thminc.co.za
/mathebulat@thminc.co.za
First,
Second, Fourth to Tenth:
Advocate
De Vos
Respondents’
representatives
c/o
Pieter Swanepoel
Tel:
013 752 2333
Email:
debbie@vilswan.co.za
Date
of Hearing:
03
March 2026
Date
of delivery:
11
March 2026