IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
BEFORE THE HONOURABLE FLATELA J
Heard on : 26 February 2026
Delivered on 15 May 2026
DELETE 'WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: Y-€8-f'NO
(2) OF INTEREST TO OTHER JUOOES: Y-eS'/NO
(3) REVISED:~/ NO
\~. J~1.~
JATE
In the matter between:
MHLONGAMVULA COMMUNAL PROPERTY ASSOCIATION
and
LCC82/2022
Applicant
MINISTER OF LAND REFORM AND RURAL DEVELOPMENT First Respondent
DIRECTOR -GENERAL OF LAND REFORM Second Respondent
CHIEF LAND CLA IMS COMMISSIONER Third Respondent
THE REGISTRAR OF DEEDS, MPUMALANGA Fourth Respondent
Page 1 of 15
CECELIA MASESI NKOSI
TSHABALALA COMMUNITY
ORDER
Fifth Respondent
Sixth Respondent
1. The late filing of the rescission application is condoned
2. The default judgment granted by this Court on 29 August 2022 is hereby
rescinded
3. The Respondents in the review application shall deliver their answering
affidavit by 29 May 2026.
4. The Applicants in the main application shall, by Friday, 12 June 2026, file
their replying affidavit.
5. The Applicants in the main application shall deliver their heads of arguments
by 1 July 2026.
6. The Respondents in the review application shall deliver their heads of
arguments on 10 July 2026.
7. The costs of this application shall be the costs in the main application.
JUDGMENT
FLATELA J
Introduct ion
[1] This is an opposed application for rescission in terms of Rule 58 of the Rules
of this Court. The Applicant, Mhlongamvula Community Property Association (the
CPA), launched an application to rescind the default judgment granted by this court on
29 August 2022, on the basis that the judgment was erroneously sought and
erroneously granted in their absence. The Applicant also applied for condonation for
Page 2 of 15
the late filing of the rescission application. Only the Sixth and Seventh Respondents
oppose the application.
The Parties
[2] The Applicant is MHLONGAMVULA COMMUNITY PROPERTY
ASSOCIATION, an association established and governed in terms of the Communal
Property Associations Act 28 of 1996 (the CPAAct)1 with its registered address at ..
[3] The First Respondent is the Minister of Land Reform and Rural Development,
cited herein in his official capacity as the head of the Department of Land Reform and
Rural Development. The Second Respondent is the Director-General of the
Department of Land Reform and Rural Development, the accounting officer
responsible for the administration of the Communal Property Association Act ("the
CPAA") by the Department.
[4] The Third Respondent is the Chief Land Claims Commissioner of the
Commission of Restitution of Land Rights (the Commissioner). The Fourth
Respondent is the Regional Land Claims Commissioner for Mpumalanga Province
(the RLCC). They have been cited as interested parties in the matter. The Fifth
Respondent is the Registrar of Deeds, Mpumalanga Province. The First to the Fifth
Respondents will be referred to as the State Respondents.
[5] The Sixth Respondent is Cecilia Masesi Nkosi, the Applicant in the main
application. The Sixth Applicant describe herself in the main Application as the
claimant who lodged the claim with the Restitution of Land Rights Commission in terms
of section 10(1) of the Restitution of Land Rights Act No 22 of 1994 before 31
December 1998. The Seventh Respondent is Tshabalala Community.
Factual Background
[6] On 09 November 1998, the late Chief Magwaza James Tshabalala, acting on
behalf of the Tshabalala Traditional Community, lodged a land claim in respect of St
I 28 Of 1996 .
Page 3 of 15
Helena 67 HT, Welgevonden 65 HT, Holspruit 29 HT, Eerst Geluk 30 HT, Langgewatcht
1, the Remaining Extent of the farm Hamburg 28 HT, and Portion 1 of the Farm
Hamburg. The land claims were accepted by the Fourth Respondent and published in
Government Gazette No. 931 of 2003 in terms of section 11 of Act 22 of 1994.
Mhlongamvula Property Association
[7] The Applicant was registered on 21 November 2007 to receive and administer
various properties purchased by the State in settlement of the land claim and to hold
them for the benefit of the beneficiaries of the land claimed against the farms. Its
objectives are to collectively acquire, hold, and manage property for members' benefit,
fostering economic self-reliance through agriculture and lawful business activities. It
encourages socio-economic development, infrastructure provision, financial
assistance programs, poverty alleviation, and cooperative action for its members.
Section 42 Settlement
[8] The Applicant and the Minister concluded the Section 42D agreement to settle
the claim. On 11 January 2008, Portion 6 of the Farm Langgewatcht 170, Registration
Division HT, the Remaining Extent of the farm Hamburg 28, Registration Division HT
and Portion 1 of the Farm Hamburg Registration Division, were transferred and
registered to the Applicant under Title Deed No. 0575/2008.
[9] The Applicant is currently leasing the Remaining Extent of the Farm Holspruit
29, measuring 441 hectares, to one farmer, Cornelius Jahannes Van Der Merve.
[10] On 08 September 2008, another entity, MHLONGAMVULA Primary
Cooperating Limited (2008/003686/24}, was registered with the Companies and
Intellectual Property Registration Office. Its objectives, as set out in its Constitution,
are to provide employment for its members in the following industries: agriculture,
mining and property development, and to provide skills development and training.
Page 4 of 15
The main review application
[11] During 2022, the Sixth and the Seventh Respondent launched review
proceedings seeking the following relief:
1. That the First and Fourth Respondents' section 42D of the Restitution of
Land Rights Act 22 of 1994 be reviewed and set aside.
2. That the MHLONGAMVULA CPA be declared illegal and unlawful.
3. that members of MHLONGAMVULA CPA are interdicted from interfering
with the legal process of the land claim.
4. That the lease documents entered into by white farmers with them, CPA, be
declared unlawful and illegal.
5. that the third respondent produce audited financial statements of the funds
transferred to CPA since its registration to court within 14 days.
6. That the First and Second Respondents produce and disclose audited
financial statements of monthly payments from lease documents from white
farmers into CPA bank accounts to the court within 14 days.
7. That the first applicant and second applicant be declared legitimate
beneficiaries to establish and register a Communal Property Association in
terms of section 5(4) and section 8 of the Communal Property Association
Act of 1998.
8. That the first applicant and second applicant declared legitimate
beneficiaries to establish and register a communal property Association
9. That the first respondent must appoint their own boots-mediator-traitor to
assist in the settlement of the land claim within 90 days
10. directing the first, second, third, and fourth respondents jointly and severally
to pay the costs of this application.
11. alternative relief
[12] The review application was heard on 29 August 2022, unopposed . The
Respondents sought and obtained the orders mentioned above by default. The court
order was served on Mr Cornelius Van Der Merwe, a lessee of one of the Applicant's
properties, on 15 September 2022. Upon receipt of the order, the Applicant launched
this application.
Page 5 of 15
Issues for determination
(13] The issue for determination is whether the Applicant is entitled to rescission of
the order granted.
legal principles governing rescission applications
[14] In this court, the rescission application are governed by Section 27 of the Land
Court Act2, Rule 58 and Rule 64 of the Land Court Act .
[15] Section 27 of the land Court Act provides as follows:
27. Variation and rescission of orders of the Court
The Court may, on application of any person affected thereby, or acting of its own
accord in cases falling under paragraph (b), and subject to the rules, vary or rescind
any judgment or order-
( a) erroneously sought or erroneously granted in the absence of the person against
whom that judgment or order was granted;
(b) in which there is an ambiguity or an obvious error or omission, but only to the
extent of that ambiguity, error or omission;
(c) which was void from its inception or was obtained by fraud or mistake common
to the parties; or
(d) in respect of which no appeal lies.
(3) Any party applying under this rule must deliver notice of his or her
application to all parties whose interests may be affected by the
rescission or variation sought"
(16] 'Rule 58 Hearing where a party is in default provides as follows:
(6) A party may apply to the Court to rescind or vary any judgment or order
granted in her absence, provided the application is filed within twenty days after
she or he became aware of the judgment or order.
2 6 of 2024
Page 6 of 15
(7) An application in terms of subrule (6) may be granted only if the Applicant
shows good cause for such rescission or variation.'
[17] Rule "64 Variation and Rescission of Orders
(1) Subject to section 35 (11) of the Restitution of Land Rights Act, the Court
may suspend, rescind or vary, of its own accord or upon the application of any
party, any order, ruling or minutes of a conference which contains an ambiguity
or a patent error or omission, in order to clarify the ambiguity or to rectify the
patent error or omission.
(2) Any party seeking the rescission or variation of an order in terms of
section 35 ( 11) or (12) of the Restitution of Land Rights Act or in terms of subrule
(1) may do so only upon -
(a) application delivered within ten days from the date upon which he or she
became aware of the order; and
(b) good cause shown for the rescission or variation."
Rescission Proceedin gs
[18] On 01 November 2022, the Applicant brought this application for the rescission
of the judgment on the basis that it was erroneously sought and erroneously granted.
The Applicant contended that it was unaware of the main application because it was
not served on it. The Applicant also filed a condonation application as the application
was filed out of time.
[19] The Respondents raised a point in limine challenging the Chairperson of the
CPA's locus standi to depose to a founding affidavit. I must address the point in limine ,
the question of whether the deponent to the affidavit was authorised to bring these
proceedings, before dealing with the merits of the application.
Point in Limine
Page 7 of 15
[20] In their answering affidavit, the Sixth and Seventh Respondents raised a point
in limine regarding the deponent's locus standi to bring these proceedings on behalf
of the Applicant.
[21] In the founding affidavit, the deponent contended that he was the Chairperson
of the Applicant and had been duly authorised to depose the affidavit on behalf of the
Applicant. He annexed the resolution to that effect. In paragraph 8 of the founding
affidavit, he again addresses the locus standi as follows:
"I have the locus standi to bring this application on behalf of the Applicant
by virtue of being the Chairperson duly authorised by the resolution of
the Applicant"
[22] In their answering affidavit, the Respondents contended as follows:
"7 .1 I submit that the deponent to the applicant's founding affidavit lacks locus
standi to depose to this affidavit in that he is not a beneficiary to the claim.
7 .2 The applicant failed to provide proof of the resolution in this application.
7.3 The deponent failed to appreciate that the chairman of the CPA cannot be
authorised by an appointment as alleged in his affidavit and needs to be
democratically appointed by the CPA through elections as provided by the CPA.
Act"
[23] In support of their contention, Mr Sambo, representing the Respondents,
submitted that the resolution annexed to the founding affidavit does not identify the
individuals who signed it. He further indicated that the seventh respondent does not
recognise these signatories . Additionally , Mr Sambo noted that he had failed to provide
the minutes of a committee meeting confirming his position as the CPA chairperson ,
nor could he present a list of the committee members associated with the CPA.
[24] Mr Sambo further submitted that the deponent failed to provide any record
showing that the Department had listed him as a chairperson, and that he also failed
to state the section of the CPA Constitution under which he was appointed, as well as
to state the section of the CPA Constitution under which he was appointed, as well as
the other individuals listed in the resolution. Notably, these issues were not raised in
the papers.
Page 8 of 15
[25] The point in limine need not detain us any further, as it is trite that a challenge
to a lack of authority to act by any person should not be raised in limine but should be
specifically challenged under Rule 7 (2) of the Rules of the Land Court and the Uniform
Rules.
[26] Two decades ago, the SCA dealt with the legal challenge of authority to act in
Ganes and Another v Telkom Namibia Ltd 3 . Streicher JA, writing for the unanimous
court, held as follows:
"The deponent to an affidavit in motion proceedings need not be authorised by the
party concerned to depose to the affidavit. It is the institution of the proceed ings and
the prosecution thereof which must be authorised. In the present case, the proceedings
were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the
respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that
he was a director in the firm of attorneys acting on behalf of the respondent and that
such firm of attorneys was duly appointed to represent the respondent. That statement
has not been challenged by the appellants. It must, therefore, be accepted that the
institution of the proceedings were duly authorised. In any event, rule 7 provides a
procedure to be followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf of an applicant. The appellants
did not avail themselves of the procedure so provided. (See Eskom v Soweto City
Council 1992 (2) SA 703(W) at 705C-J.)"
[27] In this case, the Applicant is an association. I am satisfied that the deponent of
the founding affidavit had sufficiently laid out the authority for the bringing of the
application . The Respondents have not availed themselves of the procedure provided
in Rule 7 of the Rules of this court. The Respondent's point in limine is dismissed.
Application for condonation of the late filing of the rescission Application.
3 2004(3)SA 615 (SCA)
Page 9 of 15
[28) The courts, on numerous occasions, had had to deal with the condonation of
the non-compliance with the rules. The principles applicable to condonation
applications are trite and were enunciated in Melane v Santam Insurance Co Ud,4 The
Court held as follows:
"In deciding whether sufficient cause has been shown, the basic principle is
that the Court has a discretion, to be exercised judicially upon a consideration
of all the facts, and in essence it is a matter of fairness to both sides. Among
the facts usually relevant are the degree of lateness, the explanation therefore,
the prospects of success and the importance of the case. Ordinarily these facts
are interrelated; they are not individually decisive, save of course that if there
are no prospects of success there would be no point in granting condonation.
Any attempt to formulate a rule of thumb would only serve to harden the arteries
of what should be a flexible discretion. What is needed is an objective
conspectus of all the facts. Thus a slight delay and a good explanation may
help to compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend to compensate for a long
delay. And the respondent's interests in finality must not be overlooked."
[29) "Whether it is in the interests of justice to condone a delay depends entirely on
the facts and circumstances of each case.5 The relevant factors6 In that inquiry
generally 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 reasonableness of the
explanation for the delay, which must cover the whole period of delay, the importance
of the issue to be raised, and the prospects of success.
Applicant's explanation for the delay
4 1962 (4) SA 531 (A).
5 Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC) para 20.
6 For the above-listed factors found in Ethekwini Municipality v lngonyama Trust 2014 (3) SA 240 (CC), para 28;
Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC), para 22;
Camps Bay Rate Payers ' and Residents Association v Harrison [2010} (2) All SA 519 (SCA) para 54. Grootboom
v National Prosecuting Authority and Another8
Page 10 of 15
[30] Mr Tshabalala, who deposed to the affidavit on behalf of the Applicant , explains
that the Applicant's members were unaware that an order by default had been granted
against the Applicant on 29 August 2022. The Applicant states that it became aware
of the court order on 15 September 2022, when it received it from Mr Cornelius Van
Der Merwe, who advised that he had received it from the Sixth Respondent. The
Applicant further submits that a meeting of the executive members was held on 16
September 2022, at which a resolution was taken to challenge the default judgment ,
and that it had to travel from Mpumalanga Province to Gauteng Province to secure the
services of a legal representative within the jurisdiction of this court. The consultation
took place on 15 October 2022. The attorneys had to obtain copies of the file from the
Registrar of this court; thereafter, counsel was briefed to provide the Applicant with an
opinion on the prospect of success. On 1 November 2022, these proceedings were
launched.
[31] I am satisfied that the applicants have provided a reasonable explanation for
not bringing a rescission application within the prescribed period under the rules. The
delay before the launch of these proceedings was not long and showed good cause.
The late filing of the application is condoned.
Discussion
[32] The Application was brought in terms of Rules 58(6) and (7) of the Land Claims
Court Rules ("the Rules") read with section 35 ( 11) of the Restitution of Land Rights
Act 22 of 1994. Section 35 of the Restitution Act was repealed and replaced by Section
27 of the Land Court Act 7. Section 27, which mirrors Rule 42(1 )(a) of the Uniform
Rules, gives the court the power, in addition to any other powers it may have, mero
motu or upon the application of any party affected, rescind or vary: An order or
judgement erroneously sought or erroneously granted in the absence of any party
affected thereby.
[33] For the Applicant to succeed in this application, it must meet all three
[33] For the Applicant to succeed in this application, it must meet all three
requirements of Section 27 (a) read with Rule 42(1 )(a) of the Uniform Rules, namely
7 Act 6 of 2023
Page 11 of 15
that the judgement or order must have been erroneously sought or erroneously
granted; that it must have been granted in the absence of the applicant; and that the
applicant's rights might have been affected.
Were the orders erroneously sought and erroneously granted?
[34] Dealing with the meaning of the words "erroneously granted", in Bakoven Ltd v G J
Howes (Pty) Ltd 1990 (2) SA 446 at page 471 E-H, the court stated that:
"An order or judgment is 'erroneously granted' when the Court commits an
'error' in the sense of 'a mistake in a matter of law appearing on the
proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows
that a Court in deciding whether a judgment was 'erroneously granted' is, like
a Court of Appeal, confined to the record of proceedings. In contradistinction
to relief in terms of Rule 31 (2){b) or under the common law, the applicant need
not show 'good cause' in the sense of an explanation for his default and a bona
fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 57BF
G; De Wet (2) at 777F-G; Tshabala/a and Another v Pierre 1979 (4) SA
27 (T) at 30C-D). Once the applicant can point to an error in the proceedings,
he is, without further ado, entitled to rescission."
[35] The Applicant asserts that the main review application was not served on it, a
fact corroborated by the Sheriffs return of non-service, which is annexed to the main
application. The Sheriff's return of non-service recorded non-service on 13 June 2022
at 15:30 as follows:
"ATTEMPT TO SERVE: THE DEFENDANT NO MORE IN PIET RETIEF AREA, LEFT THE
GIVEN ADRESS. CONTACT DEFENDANT AND STATED THAT HE IS IN JOHANNESBURG ."
[36] The Respondents do not dispute this contention, making it common cause.
[37] In Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007]
ZASCA 85; 2007 (6) SA 87 (SCA) (Lodhi 2), Para 24. The Supreme Court of Appeal
held that:
Page 12 of 15
"Where notice of proceedings to a party is required, and judgment is granted
against such party in his absence without notice of the proceedings having been
given to him, such judgment is granted erroneously. That is so not only if the
absence of proper notice appears from the record of the proceedings as it exists
when judgment is granted, but also if, contrary to what appears from such
record, proper notice of the proceedings has in fact not been given. That would
be the case if the sheriff's return of service wrongly indicates that the relevant
document has been served as required by the Rules, whereas there has, for
some other reason, not been service of the document. In such a case, the party
in whose favour the judgment is given is not entitled to judgment because of an
error in the proceedings. If, in these circumstances, judgment is granted in the
absence of the party concerned, the judgment is granted erroneously "
[38] It is trite that an order or judgment is erroneously granted if there was an
irregularity in the proceedings or if the court was not legally competent to make such
an order.
[39] It is not in dispute that the Applicant was absent when the order was granted
due to the non-service of the review Application, as reflected in the Sheriff's return of
service. This was irregular. Had the judge been aware that the review Application was
not served on the Applicant, he would not have granted the default judgment. I am
satisfied that the Applicant has met all the requirements in terms of Section 27(a), read
with Rule 42(1 )(a).(a).
[40] In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector, Including Organs of State
and Others8 , the court held that even when requirements are met, the Court is 'merely
endowed with a discretion to rescind its order', a discretion that must be 'exercised
judicially' .
judicially' .
8 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others (CCT 52121) [2021] ZACC 28;
2021 (11) BCLR 1263 (CC) (17 September 2021) at para [53].
Page 13 of 15
[41] Having considered the pleadings in toto and having exercised discretion
carefully on the rescission application, I conclude that it should be granted. There are
also serious allegations concerning the management practices within the Community
Property Association (CPA). Notably, the Department of Land Reform and Rural
Development, which holds regulatory authority over the CPA pursuant to the CPA Act
in matters of compliance and governance, did not engage in the review process. It is
paramount to the interests of justice that the issues presented in the main application
be thoroughly examined, warranting an expedited hearing of the primary review
application.
[42] In the circumstances, I make the following order:
1. The late filing of the rescission application is condoned
2. The default judgment granted by this Court on 29 August 2022 is hereby
rescinded
3. The Respondents in the review application shall deliver their answering
affidavit by 29 May 2026.
4. The Applicants in the main application shall, by Friday, 12 June 2026, file
their replying affidavit.
5. The Applicants in the main application shall deliver their heads of arguments
by 1 July 2026.
6. The Respondents in the review application shall deliver their heads of
arguments on 10 July 2026.
7. The costs of this application shall be the costs in the main application.
Date of hearing: 26 February 2026
Date of judgment: 15 May 2026
L FLATELA
JUDGE
LAND COURT
Page 14 of 15
Appearances
Counsel for the Applicant: Mr. Malesoena
Instructed by: Malesoena Attorneys
Counsel for the Sixth and Seventh Respondents : Adv Sambo
Instructed by: Mokoena Attorneys
Page 15 of 15