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[2002] ZASCA 117
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Gamevest (Pty) Ltd v Regional Land Claims Commissioner for the Northern Province and Mpumalanga and Others (425/2001) [2002] ZASCA 117; 2003 (1) SA 373 (SCA); 2002 (12) BCLR 1260 (SCA) (25 September 2002)
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case
Number : 425 / 2001
In the matter between
GAMEVEST (PTY) LIMITED
Appellant
and
THE REGIONAL LAND CLAIMS COMMISSIONER
FOR THE NORTHERN PROVINCE AND MPUMALANGA First
Respondent
THE CHIEF LAND CLAIMS COMMISSIONER
Second Respondent
THE COMMISSION ON RESTITUTION OF LAND RIGHTS Third
Respondent
THE BA-PHALABORWA BA GAMASEKE TRIBE
Fourth Respondent
THE BA GASHAI TRIBE
Fifth Respondent
Composition of the Court
: VIVIER, OLIVIER, NAVSA,
NUGENT JJA AND HEHER AJA
Date of hearing
: 2 SEPTEMBER 2002
Date of delivery
: 25 SEPTEMBER 2002
SUMMARY
Restitution of Land Rights Act 22 of 1994
- Review -
administrative action or decision.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
OLIVIER JA
Introduction
[1]
This is an appeal against the dismissal and
the attendant costs orders in the Land Claims Court by Moloto J of an
application brought
by the Appellant ('Gamevest') against the
Respondents. The application had its origin in claims submitted by
the Fourth and Fifth
Respondents by virtue of the provisions of the
Restitution of Land Rights Act 22 of 1994 ('the Restitution Act') for
restitution
to them of,
inter alia
, certain farms at present
registered in the name of the Appellant. The farms in dispute are
Glip, Brand, Ram, Punt, remaining extent
of Ziek, remaining extent of
Brook and remaining extent of Breakfast, collectively known as Croc
Ranch, and developed as a game reserve.
The farms are situated in
the Northern Province, near Phalaborwa and are, by all accounts, very
valuable.
[2]
It is common cause that the Ba-Phalaborwa
tribal community comprises a family of four tribes, namely the Ba Ga
Makhushane, the Ba
Ga Selwane, the Ba Gamaseke (the Fourth
Respondent) and the Ba Gashai, also known as the Ba Ga Mashishimale
(the Fifth Respondent).
The Ba-Phalaborwa people are able to trace
their history to the 16
th
century with the Fifth
Respondent joining the larger tribe during the 18
th
century. It is one of the oldest communities in the old Transvaal
and currently has more than 62 000 members. Their land claim,
covering 65 farms as well as a portion of the Kruger National Park
and the Phalaborwa town and mines, is one of the largest and most
complicated claims lodged under the Restitution Act. It is alleged
that until at least 1913 the Ba-Phalaborwa people had undisturbed
occupation of the whole of this area but that they were dispossessed
without compensation by the then Government by virtue of the
provisions of the Black Land Act 27 of 1913 and other discriminatory
laws. They allege that the Ba-Phalaborwa land was surveyed
during
1922 and that the first white farmers settled on the Ba-Phalaborwa
land from 1923.
[3]
A right to restitution of rights in land was
created by s 8(3)(b) of the Constitution of the Republic of South
Africa Act, 200 of
1993 ('the Interim Constitution') which provided
that every person or community dispossessed of rights in land before
the commencement
of the Constitution under any law that would have
been inconsistent with s 8(2) had that sub-section been in operation
at the time
of the dispossession, would be entitled to claim
restitution of such rights subject to and in accordance with ss 121,
122 and 123
of the Interim Constitution. Section 121 of the Interim
Constitution provided that an Act of Parliament should provide for
matters
relating to the said restitution of land rights.
[4]
The right to restitution of land rights was
entrenched in the final Constitution, the Constitution of the
Republic of South Africa
Act 108 of 1996. The Restitution Act is
the Act referred to in the Interim and Final Constitution. The
restitution process is
a finite one and subject to limitations.
Only certain dispossessions of land rights are dealt with in the
Restitution Act and a
limitation is placed on the period within which
claims may be lodged.
[5]
The threshold requirements for the
entitlement of a community to restitution are:
5.1 The claimant must be a community or part of a
community. A community is defined as a group of persons whose
rights in land are
derived from shared rules determining access to
land held in common by such group, and includes part of any such
group. A tribe
is a community, although all communities are not
necessarily tribes. A community claim may also be lodged by a part
of the dispossessed
community;
5.2 The community must have been dispossessed of a right
in land after 19 June 1913;
5.3 The dispossession must have been the result of past
racially discriminatory laws or practices;
5.4 The claim for such restitution must have been lodged
by not later than 31 December 1998; and
5.5 No person or community shall be entitled to
restitution of a right in land if just and equitable compensation
as contemplated
in s 25(3) of the Constitution or any other
consideration which is just and equitable, calculated at the time of
any dispossession
of such right, was received in respect of such
dispossession.
[6]
Claims are to be lodged with the Commission
on Restitution of Land Rights ('the Commission'), established by s 4
of the Restitution
Act, or by way of an application lodged with the
Registrar of the Court in terms of Chapter IIIA of the Restitution
Act.
[7]
It seems to me that the procedure for the
lodgement, consideration and final determination of a claim for
restitution of land rights
may be divided into the following phases:
(A)
The lodgement of the claim
( in
Afrikaans : 'indiening van die eis')
This is a formal act by the claimant and is required to
have taken place not later than 31 December 1998 (s 2(1)(e)).
Section 10 of the Restitution Act sets out the
requirements for the lodgement of a claim by a community:
1 It must be lodged by the representative of a
community which is entitled to claim restitution of a right in land.
The basis on
which it is contended that the person submitting the
form represents such community shall be declared in full and any
appropriate
resolution or document supporting such contention shall
accompany the form at the time of lodgement, or may with the
necessary permission,
be lodged at a later stage.
2 The claim must be lodged on the form prescribed for
this purpose by the Chief Land Claims Commissioner. This document
forms part
of the Rules regarding procedure of the Land Claims
Commission promulgated in Government Notice R703 of 12 May 1995 and
as amended
by Government Notice R1961 of 29 November 1996.
3 The claim must include a description of the land in
question, the nature of the right in land of which the community was
dispossessed,
and the nature of the right or equitable redress that
is being claimed.
At this stage of the process, the duties of the
Commission or its representative are, likewise, formal in nature.
It must, 'subject
to the provisions of section 2',
receive and
acknowledge receipt of all claims lodged with or transferred to it in
terms of this Act
(s 6(1)(a). It must also take
reasonable steps to ensure that claimants are assisted in the
preparation and submissions of claims
(s 6(1)(b)) and to resolve
disputes as to who legitimately represents a community for the
purposes of any claim under the Restitution
Act (ss 10(4), (5) and
(6)).
It is clear that, except for the resolution of a
dispute as regards representation mentioned in ss10(4), (5) and (6),
and which is
not relevant to this appeal, the Commission or its
representative does not take any administrative decision, nor does it
perform
any administrative action which may prejudicially affect any
right of the present landowner or others holding other rights in or
to the land. It has no discretion to refuse receipt of a claim at
this stage; hence it takes no administrative decision in 'receiving'
a claim.
(B)
The second phase
commences after the
lodgement of a claim and ends with the publication of the fact that a
claim has been 'accepted'; such publication
to be in the Gazette and
to persons in the district in which the land in question is situated
(s 11(1)).
In this phase the Regional Land Claims Commissioner
must consider certain matters, and may only proceed with the
aforesaid publication
if he or she is satisfied that (a) the claim
has been lodged in the prescribed manner; (b) the claim is not
precluded by the provisions
of s 2; and (c) the claim is not
frivolous or vexatious (s 11(1)(a), (b) and (c)). After giving
consideration to these requirements,
the Regional Land Claims
Commissioner then has to take an administrative decision and perform
an administrative action,
viz
to refuse acceptance of the
claim or to accept the claim. In the first case, he or she must
inform the applicant of the refusal
and furnish reasons therefor (s
11(4)). If the claim is accepted, he or she must give notice of the
acceptance of the claim by
publication in the Gazette and by taking
steps to make the acceptance of the claim known in the district in
which the land in question
is situated (s 11(1)).
In the present case the decision to 'accept' the claim,
and the publication of the required notice, took place on 5 April
2002,
ie
long after the application by the appellant was
instituted in the court
a quo
and long after Moloto J had
given judgment.
(C)
The third phase
, which may be called
the investigation phase, is governed by the provisions of ss 11(6),
(7), (8), 11A, 12, and 13. In a nutshell,
it obliges the Regional
Land Claims Commissioner to advise the owner of the land in question
of the application, to prevent dealings
with the land, to deal with
amendments to and withdrawal of claims, and to investigate the claims
thoroughly. In case of dispute,
the Chief Land Claims Commissioner
may direct the parties concerned to attempt to settle their dispute
through a process of mediation
and negotiation (s 13).
(D)
The fourth and final phase is the
referral
stage
,
when the matter is referred by the Regional Land
Claims Commissioner to the Land Claims Court (s 14). This occurs
only if the parties
to any dispute arising from the claim agree in
writing that it is not possible to settle the claim by mediation and
negotiation or
the said Commissioner certifies that it is not
feasible to resolve the dispute by mediation and negotiation, or when
the said Commissioner
is of the opinion that the claim is ready for
hearing by the Land Claims Court.
The application
[8]
The application was launched in the Land
Claims Court on 3 August 2000. The relief claimed was, firstly, a
review of certain decisions
of the Regional Land Claims Commissioner,
and further declaratory orders and a
mandamus
. Voluminous
papers were filed of record, interim applications were launched and
serious allegations of improper conduct were made
by the Appellant's
attorney. These allegations were, at the hearing of the matter
before Moloto J, apparently persisted in by the
Appellant's legal
team.
[9]
When the matter was argued before this court,
the Appellant persisted only with an application for review, which
was limited to two
grounds. First, that the Regional Claims
Commissioner permitted a substitution of the claimants
inter se
after the last day on which claims could be submitted,
ie
31
December 1998; and secondly, that the claims were wrongly 'accepted'
by, or on behalf of the Commission. The Respondents opposed
the
relief sought on several grounds. They all raised the defence that
the Appellant had failed to establish the very first and
ineluctable
requirement for judicial review;
viz
a decision by the
Respondent/Defendant. This, therefore, needs to be considered
in
limine
.
Was any reviewable 'decision' taken by the First,
Second or Third Respondents?
[10]
The main provisions of the Promotion of
Administrative Justice Act 3 of 2000 ('the AJA') came into operation
on 30 November 2000.
As stated above, the application was launched
on 3 August 2000. The AJA is consequently not applicable to the
present proceedings.
The Constitutional basis of our administrative
law is to be found in s 33 and item 23 of Schedule 6 (Transitional
Provisions) of
the Constitution, which read as follows:
Section 33 of the Constitution :
'33 (1) Everyone has the right to administrative action that is
lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must -
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.'
Schedule 6, item 23
'23 (1) National legislation envisaged in sections 9(4), 32(2) and
33(3) of the new Constitution must be enacted
within three
years of the date on which the new Constitution
took effect.
(2) Until the legislation envisaged in sections 32(2) and 33(3) of
the new Constitution is enacted -
(a) section 32(1) must be regarded to read as follows:
"(1)
Every person has the right of access to all information
held by the state or any of its organs in any sphere of government in
so far
as that information is required for the exercise or protection
of any of their rights
",
and
(b) section 33(1) and (2) must be regarded to read as follows:
"
Every person has the right to -
(a) lawful administrative action where any of their rights or
interests is affected or threatened;
(b) procedurally fair administrative action where any of their
rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action
which affects any of their rights or interests unless the reasons
for
that action have been made public; and
(d) administrative action which is justifiable in relation to the
reasons given for it where any of their rights is affected or
threatened."
(3) Sections 32(2) and 33(3) of the new Constitution lapse if the
legislation envisaged in those sections, respectively, is not enacted
within three years of the date the new Constitution took effect.'
[11]
It is patently clear that the fundamental
right created by s 33(1) and (2) of the Constitution is that of
lawful and procedurally
fair
administrative action
. I
emphasise the words 'administrative action', because they emphasise
the very first question to be asked and answered in any
review
proceeding : what is the
administrative act
which is sought
to be reviewed and set aside? Absent such an
act
, the
application for review is stillborn.
[12]
What is an
administrative act
for the purpose of justiciability? There
is no neat, ready-made definition in our case law, but in
Hira and
Another v Booysen and Another
1992 (4) SA 69
(A) Corbett CJ at
93 A - B required, for common-law review, the non-performance or
wrong performance of a statutory duty or power;
where the duty/power
is essentially a decision-making one and the person or body concerned
has taken a decision, a review is available.
This principle
underlies s 36(1) of the Restitution Act, which reads as follows:
'Any party aggrieved by an 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'
The first ground for review : an unlawful
substitution after the cut-off date
[13]
The first joint claim filed
On 10 May 1995 the four traditional leaders of the
Ba-Phalaborwa Tribes signed a land claim form in which the four
tribes jointly
claimed the whole of the Ba-Phalaborwa land including
the Appellant's land. On 22 May 1996 a further land claim form was
duly completed
and signed by the four traditional leaders of the
Ba-Phalaborwa Tribes claiming the entire land of the Ba-Phalaborwa
area as set
out in Annexure "A" to the claim form. This
claim was lodged with the Commission on 12 June 1996. It is common
cause
that this claim by the four tribes jointly, also includes the
Appellant's land. The Ba-Phalaborwa people, including the Fourth
and Fifth Respondents, had therefore already lodged a restitution
claim for all of the Appellant's farms in 1996.
[14]
Lodgement of the 1998 claims
During November 1998 the four tribes decided to obtain
legal assistance as nothing had happened to the land claim already
lodged.
After collecting funds from tribal members, they approached
an attorney, Mr Steytler. With his assistance further claim forms
signed by, and on behalf of, all four tribes jointly were lodged in
amplification of the claim already filed. This was done under
a
covering letter dated 27 November 1998 and received by the Commission
on 30 November 1998 (well before the cut-off date of 31 December
1998). Mr Steytler did a preliminary investigation of the claim and
advised the tribes to lodge separate claims, which they were
reluctant to do. Mr Steytler had little time to do the enormous
amount of research, but lodged the further claims with the
information
at his disposal at the time. He was assured by the
Regional Land Claims Commissioner, Mrs Gilfillan, that he could
amplify and
clarify the claims after 31 December 1998, provided that
the claim was lodged timeously. Mr Steytler then lodged claims on
behalf
of the Fourth Respondent, for the Appellant's farms Glip,
Brand, Ram and Punt and, on behalf of the Fifth Respondent, for the
Appellant's
farms Ziek, Breakfast and Brook.
[15]
The later amendments
During 1999,
ie
after the cut-off date and after
further research, Mr Steytler realised that he had incorrectly
allocated some of the Appellant's
farms, which, it was claimed, had
been dispossessed from the Fifth Respondent, to the Fourth Respondent
and included those farms
in the Fourth Respondent's claim. Mr
Steytler, in an affidavit in these papers, explains as follows
'5.7.1 An unified claim was initially lodged in 1995 or 1996, by the
four Ba Phalaborwa tribes together, for all the land between
the
Olifants and Letaba rivers as indicated on the sketch map attached to
the claim form signed by the four tribal chiefs on 10
th
of
May 1995 [attached to the founding affidavit as Annexures "FI"
and "FJ"]. They did this on their own, unassisted
by any
official or legal representative. The leading figure in this
endeavour was Kgoshi Brown Malatji of the Makushane tribe.
He died
in 1997. Thereafter the claim was not followed up.
5.7.2 Late in November 1998 the four tribes instructed me to lodge a
claim on their behalf. They did not have a copy of the claim
that
they had previously lodged. I explained to them that each tribe has
to lodge a claim for its own land. They were reluctant
to do this.
They explained that they originally occupied the land as one unified
tribe and that they still think of themselves
as one tribal family.
I explained to them that they are now four separate legal entities
each with its own legal persona.
5.7.3 After a preliminary investigation I realised that the tribes
have good claims but than an enormous amount of research still
had to
be done. At that time I was also instructed by many other tribes to
lodge claims on their behalf. These last minute claims
kept me very
busy. There was not much time left before the deadline of 31
December 1998.
5.7.4 There was also the complication of establishing the exact
boundaries between the tribes. Before 1922 the boundaries between
the tribes were demarcated by natural geographical and topographical
features on the ground. Their traditional boundaries did not
always
coincide with the farm boundaries drawn by the surveyors in 1922.
As my clients' map reading abilities were uncertain, I
realised that
I would have to go to the Phalaborwa area personally so that their
boundaries could be pointed out to me on the ground.
There was not
enough time left to do this before 31 December 1998. All that was
certain at that stage was the outer perimeter
of their claim area in
the North, East and the South. At that stage I still had some
uncertainty about their exact western boundary.
5.7.5 To prevent their claim from missing the cut off date of 31
December 1998, I therefore decided to lodge the claim with the
information
I had at my disposal at the time. .........
5.7.6 I discussed my problem with the previous Regional Land Claims
Commissioner, mrs Durkje Gilfillan. She said I must lodge before
the 31
st
of December 1998 but that I could amplify and
clarify the claims later on as the process develops. She told me
that I would not
be allowed to add more land to the claim after 1998,
but if the claimants agreed, land that had been claimed timeously,
could be
exchanged between claimants. Her advice is in line with
the preamble to Act 22 of 1994 as well as Sec 6[1][b] [c] [cB] and
[e];
Sec 6[2][e]; Sec 1[2] and Sec 33 of the Act.
..............................
5.7.8 Later, in 1999, I had the opportunity to do some research and
to consult with my clients at Phalaborwa. It then appeared
that I
had made some mistakes in the allocation of farms to the different
tribes. All four tribes readily agreed to the rectification
of
their claims.
5.7.9 Further research and investigations in loco also made it clear
that I had included some farms on the western periphery of their
land
that fell partially or wholly outside their western tribal borders.
The tribes agreed that they would not insist on claiming
only parts
of farms and gave me permission to withdraw their claims in respect
of the farms that fell partially or wholly outside
their 1913 tribal
borders.
5.7.10 In consultation with the First Respondent the format of the Ba
Phalaborwa claims have also been changed to make them less
complicated and more easy to understand. The claims were
re-arranged and consolidated into 6 claims divided as follows:
[1] The claim of the Ba Phalaborwa ba Makushane tribe for a block of
22 original farms.
[2] The claim of the Ba Phalaborwa ba Selwane tribe for a block of 15
original farms.
[3] The claim of the Ba Phalaborwa ba Maseke tribe for a block of 7
original farms.
[4] The claim of the Ba Shai ba Mashishimale tribe for a block of 16
original farms, [including all the Appellant's farms].
[5] A joint claim by all four the above tribes for a portion of the
Kruger National Park.
[6] A joint claim by all four the above tribes for the five original
farms on which the town of Phalaborwa and its mines are situated
today.'
[16]
As these new facts only came to light as
part of the opposing affidavits, the Applicant in its replying
affidavit averred that it
was now common cause that :
(1) The claim by the Fourth Respondent to the
Applicant's farms Glip, Brand, Ram and Punt was made in error and was
withdrawn. The
Fourth Respondent, on Mr Steytler's version, has no
claim for restitution of any land belonging to the Appellant.
(2) Fifth Respondent's claim to the Applicant's farms
Glip, Brand, Ram and Punt was made by way of a so-called substitution
after
the statutory cut-off date.
[17]
Accordingly, the Appellant avers, the only
claim that may be valid is that of Fifth Respondent for the farms
Ziek, Breakfast and Brook.
The decision of the first three
Respondents to receive or accept the Fifth Respondent's claim for
Glip, Brand, Ram and Punt was unlawful
and liable to be set aside on
review.
[18]
The gravamen of the first ground for review
lies in the italicised sentence above. The first three Respondents
and the Fifth Respondent
raised the defence, as a matter of
administrative law, that no decision had been taken by any of the
first three Respondents at the
time when the review application was
launched and, consequently, that there was nothing for a court to
review. As a matter of substantive
law, various defences to the
Appellant's attack were foreshadowed. As the matter before us is
one of administrative law, the substantive
law defences need not at
this stage be considered. The sole question for present purposes is
whether any decision or action, in
respect of the amendment of the
claims by the Fourth and Fifth Respondents after the cut-off date,
was taken by any of the first
three Respondents. They denied any
such decision or action, relying on the admitted fact that at the
time the application was launched
by the Appellant, no notice in
terms of ss 11(1) and (3),
ie
to accept or refuse the claims
by the Fourth and Fifth Respondents, in whatever form, had been
published. In a nutshell, it is
averred that the review application
was premature.
[19]
Whether any of the first three Respondents
have, subsequent to the cut-off date, and prior to the institution of
these proceedings
taken a decision or performed an act in respect of
the claim by the Fourth Respondent to the farms Glip, Brand, Ram and
Punt to the
Fifth Respondent, is a factual question. The Appellant
was not a party to the exchange and must rely on the facts furnished
by
Mr Steytler and the Respondents. I have quoted Mr Steytler's
version fully in par [15] hereof, and it requires careful scrutiny.
[20]
According to Mr Steytler's affidavit (par
5.7.6 quoted in par [15] hereof) he was advised
before lodging the
claims and before the cut-off date
by Mrs Durkje Gilfillan
inter
alia
that ' ... land that had been claimed timeously, could be
exchanged between claimants.' Now, whether Mrs Gilfillan was in law
correct
or wrong in making this statement is irrelevant for the
purposes of this appeal. Her opinion or advice (for that is what it
was)
before the lodgement of the claims
does not amount to an
administrative decision or action. According to the scheme of the
Restitution Act, as set out above (see
par [7] hereof), the first
administrative decision and action to be taken is that of the
Regional Land Claims Commissioner in terms
of s 8.11 to accept or
reject a claim lodged with it. The advice given or opinion
expressed by Mrs Gilfillan was not such a decision
or action.
[21]
But, according to Mr Steytler's affidavit
(see par 5.7.10 quoted in par [15] hereof), the format of all the
claims by the Ba Phalaborwa
had also been changed to make them less
complicated and easier to understand '... in consultation with the
First Respondent.'
Does this 'consultation' amount to an
administrative decision or action?
[22]
The First Respondent denies taking a
decision or performing an action in this regard. Moreover, once
again and for the reason set
out above, any act performed by the
First Respondent before the decision to publish the notice envisaged
by s 11 of the Restitution
Act is not,
before such publication
,
reviewable.
[23]
In the result, the application for review
based on the allegation of unlawful substitution of claimants, must
fail.
[24]
The second ground for review takes us back
in time to the lodgement of the claims of the Fourth and Fifth
Respondents, in the form
in which they then were, on 27 November
1998,
ie
before the cut-off date. The objection taken by the
appellant is that the claims, as lodged, did not comply with the
provisions
of s 10 of the Restitution Act in that the claims failed
to specify the acts of dispossession of a right in land relied upon,
as
opposed to mere allegations relating to the laws which could
justify a dispossession.
[25]
Whether the claims were defective as
alleged, is a matter of substantive law and is not now justiciable,
for the reasons given above.
At the stage when the review
application was launched, no administrative decision had been taken
nor had any reviewable action
been taken. All that was done by the
Regional Land Claims Commissioner was to physically receive the
claims and formally acknowledge
such receipt. The Appellant,
however, contends otherwise. On its behalf it was argued that even
at the moment of the lodgement
of claims with the Regional Land
Claims Commissioner, and the receipt by him or her, the Commissioner
must examine the claim and
there and then accept the claim as
complying with the Restitution Act, or to reject it. In the present
case the Appellant avers
that the Regional Land Claims Commissioner
failed to apply his or her mind to this matter and should have
rejected the claims for
the reason stated above.
[26]
The Appellant bases its argument on the
provisions of s 6(1)(a) of the Restitution Act, which reads as
follows:
'6
General functions of Commission.
(1) The
Commission shall, at a meeting or through the Chief Land Claims
Commissioner, a regional land claims commissioner or a person
designated by any such commissioner -
(a) subject to the provisions of section 2, receive and
acknowledge receipt of all claims for the restitution of rights in
land lodged
with or transferred to it in terms of this Act; ...'
The Appellant relies on the words ' ... subject to the
provisions of section 2, receive ...'
Section 2 is the provision in the Restitution Act which
prescribes the conditions for entitlement to restitution,
inter
alia
that the claimant is a community or part of a community
dispossessed of a right in land after 19 June 1913 as a result of
past racially
discriminatory laws or practises.
[27]
The Appellant's argument is that if one
reads s 6(1)(a) together with s 2(1)(d) (because of the
cross-referencing in s 6(1)(a)) it
means that if the claim forms and
accompanying documents do not give full particulars as to the
dispossession of the right relied
upon, the Chief Land Claims
Commissioner, the Regional Claims Commissioner or the person
designated by any such Commissioner may
not receive the claim.
In
casu
, because the dispossession has (according to the Appellant)
not sufficiently been substantiated, the Regional Land Claims
Commissioner
should not have received the Fourth and Fifth
Respondents' claims, and such claims ought to be set aside.
[28]
As I have already explained, the scheme of
the Restitution Act is such that the receipt of a claim and an
acknowledgement of such
receipt is a formal act, not amounting to an
administrative decision or action. Only after the lodgement can and
must the Regional
and Claims Commissioner examine the claim, and
satisfy himself or herself whether the claim is
inter alia
not
precluded by the provisions of s 2 (see s 11(1)(b)). This is not a
task that can be done in a superficial, cursory manner.
Section 11
deals with this stage of the process. To read s 6, which sets out
the general functions of the Commission, as incorporating,
on the
mere receipt of a claim, the obligation to inspect the documents and
decide whether the claim is a valid one, would
lead to an
absurd result. It would render s 11(1)(b) tautologous and
devoid of meaning. The reference to
s (11)(1)(b) in s
11(4) would also have to be ignored. That was manifestly not the
intention of the legislature.
[29]
The words 'subject to the provisions of
section 2' in s 6(1)(a) are, as far as the processing of claims is
concerned, of no import.
What the legislature intended to say, but
failed to do, was that as far as claims are concerned, the functions
and duties of the
Commission
etc
are to see that the
provisions of s 2 (entitlement to restitution) are applied and
complied with. Section 6 was not intended to
say when the validity
of a claim is to be tested; that is set out in s 11, which deals
specifically with the procedure in deciding
that issue. Patently,
the validity of a claim cannot be tested at the very moment of the
receipt of the claim forms.
[30]
In the result, the second ground of review
must also fail.
The appeal against the costs orders in the court a
quo
[31]
Moloto J, after dismissing the application,
ordered the applicant to pay costs on an attorney and client scale,
such costs to include
the costs occasioned by the postponement on 17
January 2001. The Appellant appeals against the special costs order
in the event
of the present appeal not succeeding. I deal firstly
with the costs of the postponement of the hearing of the application
on 17
January 2001.
[32]
The matter was set down for hearing on 17
January 2001. The heads of argument on behalf of the first three
Respondents were filed
only on the previous day,
viz
16
January 2001. Practice direction 4 of the Land Claims Court
requires a respondent's legal representative to file heads of
argument
no later than five Court days before the hearing of any
opposed application. The said Respondent's heads were clearly filed
of
record too late. On 17 January 2001 the Appellant's counsel
moved for a postponement of the hearing on the basis that they did
not have sufficient time to study, analyse and reply to these heads.
The application was granted and the matter postponed to a
later
date. The question of costs was argued at the end of the hearing of
the application.
[33]
The learned judge
a quo
dealt in his
judgment with the costs of the said postponement. It appears that
he, in the end, awarded the costs of such postponement
against the
Appellant on the special punitive scale simply as part of the overall
costs order. No particular reasons were shown
why (a) the Appellant
had to pay the costs of the postponement, and (b) why it should have
been awarded on the special punitive scale.
[34]
With respect, I am of the view that on this
aspect the learned judge erred. The postponement, so it appears
from the record and
the judgment, was caused by the fault of the
first three Respondents in filing their heads of argument out of
time. The matter
was an important one for all parties concerned.
I do not consider the request for postponement by counsel for the
Appellant to
have been unreasonable or unjustified. Accordingly,
the usual order should have been made,
viz
that the first
three Respondents should bear the Appellants' and the Fourth and
Fifth Respondents' costs occasioned by the postponement.
[35]
This brings me to the special punitive costs
order made by Moloto J against the Appellant. The learned judge
justified this order
on,
inter alia
, the following grounds:
(a) The unreasonable attitude which the Appellant's
attorney, Mr Jurgens Bekker, persistently displayed in insisting that
the first
three Respondents should reject the Fourth and Fifth
Respondents' claims, even though he knew that the matter was still
under consideration,
that the Commissioner had prioritised the
investigations of other claims, and that the Commission was
understaffed in relation to
the huge number of claims received.
(b) Repeated scurrilous attacks in the Appellant's
papers on Mr Bekker's colleagues and government officials imputing
dishonesty,
financial recklessness with taxpayers' money, collusion,
fabrications and falsehoods on their part. In this regard the
learned
judge held that
'The attorney for the applicant conducted himself in a reprehensible
manner in these proceedings, by prosecuting a case he had conceded;
by the language he used against his colleagues, government officials
and judicial officers; by suggesting dishonesty, and deceitfulness
on the part of his colleagues and by burdening the record with
repetitive prayers and allegations.'
[36]
As far as the factual basis for the special
costs order against the Appellant is concerned, the learned Judge
a
quo
cannot be faulted. In my view there was no improper
exercise of his discretion and there is thus no basis for interfering
with
the punitive order as to costs (see
Sammel and Others v
President Brand Gold Mining Co Ltd
1969 (3) SA 629
(A) at 697 B -
C).
[37]
In the result, the appeal is unsuccessful,
except for the aspect of the costs of the postponement of the hearing
on 17 January 2001.
Success on that issue is negligible and should
not influence the costs of the appeal, which should be awarded to the
Respondents.
There is no justification for awarding the costs of
the appeal also on the special punitive scale.
[38]
The following order is made
1 The appeal is dismissed with costs, including the
costs of two counsel.
2 The order of the court
a quo
is amended by
deleting in paragraph 2 thereof the words 'such costs to include the
costs occasioned by the postponement on 17 January
2001' and
replacing it with the words : ' ... except for the wasted costs
occasioned by the postponement on 17 January 2001, which
costs shall
be paid by the First, Second and Third Respondents, the one paying
the others to be absolved, on the scale as between
party and party.'
P J J OLIVIER JA
CONCURRING:
VIVIER JA
NAVSA JA
NUGENT JA
HEHER AJA