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[2026] ZALCC 24
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Sehoale Community v Regional Land Claims Commissioner-Limpopo and Others (LCC74/2023) [2026] ZALCC 24 (19 May 2026)
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IN
THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE
NO
:
No: LCC
74/2023
Court Online Case No:
2025-159524
(1)
REPORTABLE: Yes☐/ No ☒
(2)
OF INTEREST TO OTHER JUDGES: Yes☐
/ No ☒
Date:
19 May 2026
In the matter between:
SEHOALE
COMMUNITY
APPLICANT
and
REGIONAL LAND CLAIMS
COMMISSIONER,
LIMPOPO
FIRST RESPONDENT
REGIONAL LAND CLAIMS
COMMISSIONER,
NORTH-WEST AND
GAUTENG
SECOND RESPONDENT
CHIEF LAND CLAIMS
COMMISSIONER
THIRD RESPONDENT
MINISTER OF RURAL
DEVELOPMENT AND
LAND
REFORM
FOURTH RESPONDENT
BAKGATLA BA MOSETLHA
COMMUNITY
FIFTH RESPONDENT
ORDER
1.
The first to
fourth respondents are directed, within 10 court days of this order,
to deliver to the Registrar and to the applicant’s
attorneys a
supplementary record in terms of Rule 35(1)(b), limited to the
documents and electronic records relevant to the decision
or
decisions impugned in the review application under case number LCC
74/2023, insofar as they relate to the Bakgatla Ba Mosetlha
claim and
the applicant’s asserted interest therein.
2.
The record
must include, to the extent that such documents exist and were
before, considered by, generated for, or relied upon by
the
decision-maker:
2.1
research reports;
2.2
verification lists;
2.3
Copy of affidavit of Kgoshi Makapan;
2.4
compilation maps;
2.5
Aktex reports;
2.6
Copies of farm books;
2.7
Copies of SG diagrams;
2.8
Copy of the lodged claim by Sehoale community under KRP number
R/5/124/453/9061;
3.
To the extent that any document or category of documents referred to
in paragraph 2 does not exist, was not before the
decision-maker, is
not in the possession or control of the first to fourth respondents,
has already been delivered, or is withheld
on a recognised legal
ground, the first to fourth respondents must, within the same period,
file an affidavit identifying the document
or category concerned and
explaining the basis for non-production.
4.
The applicant may, within 15 court days after delivery of the
supplementary record or explanatory affidavit, supplement
its papers
in the review application, if so advised.
5. The
costs of this application are reserved for determination in the
review application.
JUDGMENT
MIA J
[1] This is an
interlocutory application in which the applicant seeks an order
compelling the first to fourth respondents
to deliver a record in
terms of Rule 35(1)(b) of the Rules of this Court. The record sought
relates to the decisions which are
the subject of the pending review
application under case number LCC 74/2023.
[2] The respondents
oppose the application. Their principal opposition is that the
applicant lacks locus standi because, the
applicant was not a party
to the land restitution claim lodged by the fifth respondent, the
Bakgatla Ba Mosetlha Community, under
KRP 9161 and KRP 9168. They
further contend that the applicant lodged its own claim under
reference R/5/124/453/9061 in respect
of Tweefontein 462 KR,
Tweefontein 463 KR and Op Die Koppie 461 KR, and that such claim
remains unprocessed by reason of the LAMOSA
regime. The respondents
also state, in the alternative, that the record has already been
filed and that no further record exists.
[3] The applicant’s
case, however, is not merely that it wishes to access documents
relating to another community’s
claim. Its case is that the
impugned decisions concern, or directly affect, its asserted interest
in the Bakgatla claim and in
the land described in the papers as
Zandfontein 385 KR, Zandfontein 476 KQ, or
Sandfontein/Sandfontein-Sehoale. The applicant contends
that what was
treated by the respondents as part of the Bakgatla claim in fact
included, or ought to have included, the applicant’s
interest.
On that basis, the applicant seeks to review the administrative
decision or decisions taken in relation to that claim.
[4] For purposes of
this interlocutory application, I am satisfied that the applicant has
established sufficient standing
to seek the Rule 35 record insofar as
the record relates to the Bakgatla claim and the decision or
decisions which the applicant
seeks to review. Whether the applicant
will ultimately establish its review grounds is not for present
determination. At this stage,
the question is whether the applicant
is entitled to the material necessary to prosecute the review and to
enable the reviewing
court to determine what was before the
administrator when the impugned decision was taken.
[5] The
respondents’ denial that the applicant is entitled to the
record does not adequately answer the applicant’s
complaint.
Nor does the respondents’ assertion that no further record
exists, without a proper and particularised explanation,
satisfactorily meet the applicant’s case. The answering papers
themselves reveal the central factual controversy namely the
respondents contend that the fifth respondent’s claim concerned
Zandfontein 476 KQ, whereas the applicant contends that the
relevant
claim, properly understood, concerned Zandfontein 385 KR and was
connected to Sandfontein. The respondents also record
that the
applicant complained that the investigation was conducted in respect
of the wrong farm.
[6] These
discrepancies are not peripheral. They go to the heart of the review.
The papers disclose uncertainty or inconsistency
regarding dates,
case numbers, property descriptions, and whether the relevant
property was Zandfontein 385 KR, Zandfontein 476
KQ, or Sandfontein.
The respondents’ own summary of the applicant’s case
records the allegation that the claim form
referred to “Sandfontein
- Segoale”, that the research report treated Sandfontein as
Zandfontein 476 KQ, and that Zandfontein
476 KQ was then recommended
as non-compliant.
[7] In these
circumstances, the reviewing court should not be required to decide
the review on an incomplete or uncertain
record. The purpose of the
Rule 35 record is to place before the court the material that served
before the decision-maker, so that
the legality, rationality and
procedural fairness of the impugned administrative action may be
assessed properly. Where there is
a dispute about what land was
claimed, by whom, under which claim, and on what basis the claim was
accepted, rejected, investigated,
or not investigated, the record
assumes particular importance.
[8] The relief
should, however, be limited. It is not appropriate at this stage to
grant an open-ended order requiring the
production of every document
in the respondents’ possession. The proper order is one
directed to the record relevant to the
impugned decision or decisions
in the review. If the respondents maintain that particular documents
do not exist, were not before
the administrator, are not in their
possession or control, or are withheld on a recognised legal basis,
they must say so on affidavit
with sufficient particularity.
[9] As to costs,
both parties have achieved a measure of success. The applicant has
established an entitlement to limited
relief. The respondents’
standing objection, while not upheld for purposes of this
interlocutory application, was not wholly
without substance. The
appropriate order is that costs be reserved for determination in the
review.
SC
MIA
Acting Judge of the
Land Court
APPEARANCES:
For
the Applicant: Adv M Ramaili
Instructed
by: Moloka Motshekga Attorneys
For
the First to Fourth Respondents: Mr S Mathebula
Instructed
by: The State Attorney Pretoria
Heard on: 14 May
2026
Delivered on: 19 May 2026