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[2026] ZALCC 31
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Allie and Others v Department of Rural Development and Land Reform and Others (LCC145/2019) [2026] ZALCC 31 (11 June 2026)
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IN
THE LAND COURT OF SOUTH AFRICA
HELD
AT RANDBURG
CASE
NO: LCC 145/2019
(1)
REPORTABLE: Yes☐/ No ☐
(2)
OF INTEREST TO OTHER JUDGES: Yes☐ / No ☐
(3)
REVISED: Yes
☐
/ No
Before: Flatela
J
Heard
on: 02 March 2026
Delivered
on: 11 June 2026
In
the matter between:
MOHAMMED
HASSAN ALLIE
First Applicant
FARIEDA
TAPE
Second Applicant
YUSUF
ALLIE
Third Applicant
MOHAMMED
SEDICK ALLIE
Fourth Applicant
MAGHIA
OSMAN
Fifth Applicant
LAYLA
BARRON
Sixth Applicant
and
THE
DEPARTMENT OF RURAL DEVELOPMENT
AND
LAND
REFORM
First Respondent
GOZYN
ALLIE
Second Respondent
THE
REGIONAL LAND CLAIMS COMMISSIONER
Third Respondent
CHIEF
LAND CLAIMS COMMISSIONER
Fourth Respondent
ORDER
1.
The Respondents’ point
in limine
is dismissed.
2.
There is no order as to costs.
JUDGMENT ON THE POINT
IN LIMINE
FLATELA
J
Introduction
[1]
This is an opposed review application.
The Applicants seek to review and set aside the decision of the
Regional Land Claims Commissioner
for the Western Cape to settle the
Second Respondent’s land restitution claim in respect of erven
1457 and 1458, Hout Bay,
Western Cape, commonly known as Green Gables
Farm, in favour of the Second Respondent.
[2]
The properties were owned by Alishap Allie, the Second
Respondent’s father, and were dispossessed between 1950 and
1962 as
a result of discriminatory laws or practices. Mr Alishap
Allie died on 11 February 1960, leaving a Will bequeathing the
properties
to her senior brother, Gozyn Allie Snr, who later died in
1970 without a Will.
[3]
The Applicants are the children of Gozyn
Allie Snr, whilst the Respondents are the children of Alishap Allie.
[4]
The Respondents oppose the review
application and have raised a point
in
limine
challenging this Court's
jurisdiction to hear it. They argue that the Applicants are competing
claimants who lodged claims for the
same properties when the
Restitution of Land Rights Amendment Act 15 of 2014 (AA) reopened the
filing period for claims from 1
July 2014 to 30 June 2019 (the
new-order claims).
[5]
The
Respondents assert that the Applicants’ claims were interdicted
in the matter of
Speaker
of the National Assembly and Another v Land Access Movement of South
Africa and Others
(“
LAMOSA
2
”)
[1]
,
contending that the Land Court lacks jurisdiction under the
LAMOSA
orders.
[6]
The Applicants argue that the review
application is not based on the new order claims; rather, it is based
on the administrative
decisions, reports, and findings made by the
Regional Land Claims Commissioner (the Third Respondent), which
disregarded the existence
of the late Alishap’s Will and
proceeded to settle the Second Respondent’s land claims in
relation to
erven 1457 and 1458.
[7]
It was agreed between the parties that the
point in limine would be addressed before the review application was
considered.
The
Parties
[8]
As stated earlier, the Applicants are
the children of the late Gozyn Allie (Snr). They are Mohammed Hassan
Allie, Farieda Tape,
Mogamat Jusuf Allie, Mohammed Sedick Allie,
Maghia Osman and Layla Barron. They are of advanced age, with
most being pensioners
and others semi-retired.
[9]
The First Respondent is the Department
of Land Reform and Rural Development.
[10]
The Second Respondent is Gozyn Allie
(Jnr). The Second Respondent also represents his siblings, Fouzia
Buffkins, Miriam McLachlan
and Igsaan Allie. They are the children of
the late Alishap Allie and Asa Allie.
[11]
The Third Respondent is The Regional
Land Claims Commissioner, Western Cape and the Fourth Respondent is
The Chief Land Claims Commissioner.
The First, Third and Fourth
Respondents will be referred to as the State Respondents.
Common
Cause Facts
[12]
On 18 November 1996 and 25 November
1998, Mrs Asa Allie lodged restitution claims in respect of ERF 1458
and ERF 1457, respectively,
in terms of section 2(1)(c) of the
Restitution of Land Rights Act 22 of 1994 (the Restitution Act).
[13]
I
n 2013, before the Third Respondent accepted the claim, the
Applicants located the Will of the late Alishap and subsequently
notified
the Third Respondent of its existence. They also sought
recognition as co-beneficiaries, as descendants of their late father,
Gozyn
Allie.
[14]
In 2014, when
the Restitution of
Land Rights Amendment Act 15 of 2014 reopened the filing period for
claims from 1 July 2014 until 30 June 2019
(
the
new order claims), the Applicants also lodged a claim in respect of
erven 1457 and 1458, Hout Bay, based on interests derived
from their
late father, Gozyn Allie Sr, under the Will.
[15]
In 2016, the Third Respondent accepted the
Second Respondent’s claims and determined that the claim was a
descendant claim
under section 2(1)(c). A notice was published in the
Government Gazette under section 11. The Office of the Valuator
General conducted
historical valuations of the properties to
determine the compensation payable. The valuations were finalised on
10 March 2019.
[16]
During 2000/2021, the Third Respondent
formally offered the Second Respondent’s family financial
compensation for the properties:
R1 320 853.33 in respect of ERF
1458 and R7 320 000.00 in respect of ERF 1457. The claim
has not been finalised.
[17]
The Applicants brought an application to
interdict the settlement of the claim. The matter was referred to
mediation under section
13 of the Restitution Act. Regrettably, the
mediator fell ill for about a year and was unable to conclude the
mediation, so the
matter remained unresolved.
Relief
Sought
[18]
In its amended notice of motion, the
Applicants sought relief in the following terms:
1.1
To review and set aside the decision by
the Regional Land Claims Commissioner, Mr L. M. Maphutha N.O, as duly
authorised by the
Minister, issued under reference number: A124, on
17 August 2020, under the auspices of the offices of the Commission
on Restitution
of Land Rights, in terms of which the Regional Land
Claims Commissioner made the decision to offer R 1 320 853.33
to
the Second Respondent in respect of the property situated at Erf
1458 Hout Bay situated in the Cape Metro, City of Cape Town, Western
Cape.
1.2
To review and set aside the decision by
the Regional Land Claims Commissioner, Mr L. H. Maphutha N.O, as duly
authorised by the
Minister, issued under reference number: A822, on
17 November 2020, under the auspices of the offices of the Commission
on Restitution
of Land Rights, in terms of which the Regional Land
Claims Commissioner made the decision to offer R 7 320 000.00
to
the Second Respondent in respect of the property situated at Erf
1457 Hout Bay situated in the Cape Metro, City of Cape Town, Western
Cape.
Relief
claimed:
2.1
To review and set aside the decision by
the Regional Land Claims Commissioner, Mr L. M. Maphutha N.O, as duly
authorised by the
Minister, issued under reference number: A124, on
17 August 2020, under the auspices of the offices of the Commission
on Restitution
of Land Rights, in terms of which the Regional Land
Claims Commissioner made the decision to offer R 1 320 853.33
to
the Second Respondent in respect of the property situated at Erf
1458 Hout Bay situated in the Cape Metro, City of Cape Town, Western
Cape.
2.2
To remit the matter under reference A124
to the Regional Land Claims Commissioner for an investigation and
decision
de novo
.
2.3
To review and set aside the decision by
the Regional Land Claims Commissioner, Mr L.H. Maphutha N.O, as duly
authorised by the Minister,
issued under reference number: A822, on
17 November 2020, under the auspices of the offices of the Commission
on Restitution of
Land Rights, in terms of which the Regional Land
Claims Commissioner made the decision to offer R 7 320 000.00
to the
Second Respondent in respect of the property situated at Erf
1457 Hout Bay situated in the Cape Metro, City of Cape Town, Western
Cape.
2.4
To
remit the matter under reference number: A822 to the Regional Land
Claims Commissioner for an investigation and decision
de
novo
Point
in Limine
The
Respondents’ contention
[19]
Both the State Respondents and the
Second Respondent raised similar points
in
limine
on jurisdiction. They contend
that the decisions the Applicants seek to review are not reviewable.
[20]
The Respondents contend that the
Applicants did not submit their counterclaims before the statutory
cutoff date and that no exceptions apply to their claims. The
Respondents aver that the Constitutional Court declared amendments
seeking to reopen claims invalid due to insufficient public
participation, thereby placing an interdict on new claims lodged
between 2014 and 2016.
[21]
The Respondents aver that the Applicants, as new claimants,
can participate in old claims only if they directly contest the old
claimants' right to land restoration in a limited capacity. However,
in this case, the Applicants recognise the old claimants' rights
but
seek to advance their new claims by way of review, which exceeds the
permitted scope and is deemed too tenuous for participation.
[22]
The
Respondents contend that the Applicants have tried various approaches
(e.g., filing review applications and raising issues concerning
a
Will) to challenge old claims indirectly or have their new claims
considered, which the Respondents argue constitutes an abuse
of
process and is prohibited by the
LAMOSA
[2]
and
Amaqamu
[3]
rulings.
The
Applicants’ contention
[23]
The Applicants contend that the
LAMOSA
interdict is not applicable in this
case. Even if it were, this Court still has jurisdiction to
adjudicate the matter in terms of
the decision of the special
sitting of this Court, in
Amaqamu.
[24]
The Applicants contend that they are not
processing a new land claim, which they lodged in 2014, but rather
seeking to review decisions
made by the Regional Land Claims
Commissioner not to consider Alishap Allie’s Will during the
investigation of the Second
Respondent’s claim.
[25]
The Applicants further contend that
their claims are "old-order" claims lodged before 1 July
2014, supported by evidence
such as early correspondence and a 1944
Will, thereby placing them outside the scope of
LAMOSA
.
Additionally, the Applicants maintain that even if their counterclaim
is deemed to be by an "interdicted claimant,"
the
LAMOSA
2
order permits their participation
in court proceedings to assist the court in determining whether the
old claimant has established
the case.
Does
this Court have jurisdiction to hear the review application?
[26]
Rule 35 of the Rules of this Court
provides for a review of,
inter alia,
any decision of any functionary, The
Third Respondent.
“
35.
APPLICATIONS FOR REVIEW
(1)
All applications to bring under review any decision or action of—
(a)
an inferior court;
(b)
an arbitrator;
(c)
the Commission;
(d)
the Minister;
(e)
any tribunal or board; or
(f)
any functionary,
must
be brought by way of notice of motion based on Form 2 of Schedule 1
to these Rules—
(i)
identifying the decision or action which the Court must review; and
(ii)
calling upon the person or entity whose decision or action is to be
reviewed, to dispatch to the Registrar—
(aa)
the record of the proceedings and all documents relevant to the
decision or action sought to be reviewed; and
(bb)
his or her reasons for the decision or action,
within
fifteen days after receipt of the notice of motion, and to notify the
applicant that he or she has done so.”
Discussion
[27]
The pleadings are not a model of clarity
on the grounds of review, resulting in a disjointed synopsis of the
facts. This is regrettable.
[28]
The Applicants’ basis for the
review application is the Third Respondent’s decision to
disregard the Will of the late
Alishap Allie during the investigation
of the Second Respondent’s claim. It is common cause that the
Rule 5 investigation
Report was concluded in 2020.
[29]
In their answering affidavit, the Third
Respondent offers contradictory accounts of whether they considered
the Will when investigating
the Second Respondent’s claim.
Initially, they denied that the Will was presented to them in July
2013. They maintained that
their awareness of the Will arose only
when the Applicants submitted a new-order application in 2014. They
also argued that they
refrained from addressing the new-order claim
because of the interdict arising from the
LAMOSA
judgment, which prohibited consideration of it.
[30]
It is common cause that, between 18 June
2013, well before the enactment of The Restitution of Land Rights
Amendment Act 15 of 2014
(AA), the Applicant’s former attorneys
sent several letters to the Third Respondent, alerting them to the
Will and submitting
that the Respondents have an interest in the
matter and should be recognised as the co-beneficiaries.
[31]
On 1 July 2023, Farieda addressed a
letter to Mr Nohule, the Third Respondent’s official. The Third
Respondent forwarded the
letter to Mrs Buffkins, one of the Second
Respondent’s siblings, who responded. It is clear from these
facts that the Third
Respondent was aware of the Will’s
existence before it accepted the Second Respondent’s claim.
[32]
The review falls squarely within Rule 35
read with section 7 of the Land Court Act 6 of 2023.
For the
reasons stated above, the point
in limine
raised by the
Respondents is dismissed.
[33]
In the results, the following order is
made,
1. The Respondents’
point
in limine
is dismissed.
2. There is no
order as to costs.
Flatela
L
Judge of the Land
Court
Appearances
For
the Applicants:
Mr Stan Dewey from
Dewey McLean Levy
Inc
For
1
st
,
3
rd
and 4
th
Respondents:
Advocate P. Magona-Dano
Instructed by State
Attorneys, Cape Town
For
2
nd
Respondents (Miriam Mclachlan):
Mr Henk Smith from Henk
Smith
and
Associates
Date of Hearing: 2 March
2026
Date of Judgement: 11
June 2026
[1]
2019
(6) SA 568
(CC) (
LAMOSA
2
).
[2]
LAMOSA
2
above n 1 and
Land
Access Movement of South Africa and Others v Chairperson of the
National Council of Provinces and Others
2016 (5) SA 635 (CC).
[3]
In Re
Amaqamu Community Claim (Land Access Movement South Africa and
Others as Amici Curiae
)
2017 (3) SA 409
(LCC) (
Amaqamu
).