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[2019] ZASCA 157
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Makhuva-Mathebula Community v Regional Land Claims Commissioner, Limpopo and Another (1106/2018) [2019] ZASCA 157 (28 November 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1106/2018
In
the matter between:
MAKHUVA-MATHEBULA
COMMUNITY
APPELLANT
and
REGIONAL
LAND CLAIMS COMMISSIONER,
LIMPOPO
FIRST RESPONDENT
CHIEF
LAND CLAIMS COMMISSIONER
SECOND RESPONDENT
Neutral
citation:
Makhuva-Mathebula
Community v Regional Land Claims Commissioner, Limpopo & another
(1106/2018)
[2019] ZASCA 157
(28
November 2019)
Coram
:
Navsa, Ponnan, Swain, Zondi and Plasket JJA
Heard
:
13 November 2019
Delivered:
28 November 2019
Summary:
Restitution of Land Rights Act 22 of
1994
– claim for restitution of land rights – review of
Regional Land Claims Commissioner’s decision to publish claim
as described in claim form – applicant alleging claim depicted
in map attached to claim form – no reviewable irregularity
established.
ORDER
On
appeal from:
Land Claims Court
(Ncube AJ sitting as court of first instance). The appeal is
dismissed.
JUDGMENT
Plasket
JA (Navsa, Ponnan, Swain and Zondi JJA concurring)
[1]
Section
25(7) of the Constitution provides that persons or communities who
were ‘dispossessed of property after 13 June 1913
as a result
of past racially discriminatory laws or practices’ are
entitled, ‘to the extent provided by an Act of Parliament,
either to restitution of that property or to equitable redress’.
The Act of Parliament referred to is the Restitution of
Land Rights
Act 22 of 1994 (the Restitution Act).
[1]
It provides, inter alia, for the administrative machinery and
processes for land claims contemplated by s 25(7) of the
Constitution.
[2]
The appellant, the Makhuva-Mathebula
Community (the community), lodged a land claim in terms of the
Restitution Act with the first
respondent, the Regional Land Claims
Commissioner, Limpopo (the RLCC), who later
published the
claim in the
Government
Gazette
(the
Gazette
).
The community was of the view that the claim that was published did
not correspond to the claim that it made. It took the RLCC’s
decision to publish the claim on review. The Land Claims Court
dismissed that application. It also dismissed an application for
leave to appeal, but leave was granted by this court on petition.
The
legislation
[3]
In
order to fulfil its mandate of providing for the restitution of land
rights or the granting of equitable other redress in the
circumstances contemplated by s 25(7) of the Constitution, the
Restitution Act created an administrative body, the Commission on
Restitution of Land Rights (the Commission).
[2]
It is headed by the Chief Land Claims Commissioner, and regional
offices are run by regional land claims commissioners.
[3]
[4]
The
general functions of the Commission are set out in s 6 of the
Restitution Act. Those functions include: receiving and acknowledging
receipt of claims; the taking of reasonable steps to ensure that
claimants are assisted in the preparation and submission of their
claims; advising claimants of the progress of their claims; and
investigating the merits of claims that have been submitted.
[4]
[5]
Section 2(1) and (2) of the Restitution
Act set out the parameters of claims for restitution. It provides:
‘
(1)
A person shall be entitled to restitution of a right in land if –
(a)
he or she is a person dispossessed
of a right in land after 19 June 1913 as a result of past racially
discriminatory laws or practices;
or
(b)
it is a deceased estate dispossessed
of a right in land after 19 June 1913 as a result of past racially
discriminatory laws or practices;
or
(c)
he or she is the direct descendant
of a person referred to in paragraph (
a
)
who has died without lodging a claim and has no ascendant who –
(i)
is
a direct descendant of a person referred to in paragraph (
a
);
and
(ii)
has
lodged a claim for the restitution of a right in land; or
(d)
it 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 practices; and
(e)
the claim for such restitution is
lodged not later than 30 June 2019.’
(2)
No person shall be entitled to
restitution of a right in land if –
(a)
just and equitable compensation as
contemplated in section 25(3) of the Constitution;
or
(b)
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]
Section 10 deals with the lodgment of
claims. Its first three subsections provide: ‘(1) Any person
who or the representative
of any community which is entitled to claim
restitution of a right in land, may lodge such claim which shall
include a description
of the land in question, the nature of the
right in land of which he, she or such community was dispossessed and
the nature of
the right or equitable redress being claimed, on the
form prescribed for this purpose by the Chief Land Claims
Commissioner under
section 16.
(2)
The Commission shall make claim forms
available at all its offices.
(3)
If a claim is lodged on behalf of a
community 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:
Provided that the regional land claims commissioner having
jurisdiction in respect of the land
in question may permit such
resolution or document to be lodged at a later stage.’
[7]
It
is evident from s 10(1) that a claim must be lodged on a form
prescribed for that purpose. Section 16 empowers the Chief Land
Claims Commissioner to make rules regarding, inter alia, ‘any
matter which, in terms of this Chapter, is required or permitted
to
be prescribed’.
[5]
Rule
2(1)(
a
)
of the Rules Regarding Procedure of Land Claims
[6]
provides that a claimant ‘shall lodge a claim in writing on a
duly completed claim form, as prescribed by the Commission
in terms
of section 10 of the Act, substantially in the form of Annexure A,
together with such additional documents as are relevant
to
substantiate the claim, with the regional office of the Commission
having jurisdiction over the land in respect of which such
claim is
instituted’. The claim in this case was lodged on a claim form
as envisaged by Annexure A to the rules.
[8]
Once
a claim has been lodged, the relevant RLCC must satisfy himself or
herself of three things – that the claim was lodged
in the
prescribed manner, that it is not precluded by s 2 and that it is not
frivolous or vexatious. Once he or she is satisfied
that these
requirements have been met, he or she is then required to cause
notice of the claim to be published in the
Gazette
as
well as in ‘the media circulating nationally and in the
relevant province’. He or she is also required to ‘take
steps to make it known in the district in which the land in question
is situated’.
[7]
[9]
In terms of s 12, the Commission has the
power to investigate claims. At the end of an investigation, a RLCC
may refer a claim to
the Land Claims Court, a superior specialized
court created by s 22 of the Restitution Act.
[10]
Section 36 of the Restitution Act vests
review jurisdiction in the Land Claims Court. It provides:
‘
(1)
Any party aggrieved by any 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.
(2)
The Court shall exercise all of the Supreme Court's powers of review
with regard to such matters, to the exclusion of the provincial
and
local divisions thereof.’
The
background
[11]
On 19 December 1997, Mr Fifteen John
Makhuva, the chairperson of the Royal Council of Makhuva, lodged a
land claim with the RLCC
on an unsigned and undated claim form. He
did so on behalf of the community.
[12]
In
the appropriate place in the claim form, Mr Makhuva identified the
land that was claimed as being ‘Letaba Rest Camp, Lulekani,
Zebra, Gemog, Pompet, all under
the District of Phalaborwa’.
[8]
In addition, the name of Quagga was written onto the claim form in
what appears to be a different hand to that of the person who
completed the claim form.
[13]
In
paragraph 9 of the claim form, which bears the heading ‘Any
other information you would like to bring to the commission’s
attention’, Mr Makhuva referred to two annexures. They were an
affidavit signed by him, but which does not appear to have
been
commissioned, and what was described as a ‘map of the area
being claimed’. In fact, two maps were attached.
[9]
[14]
In the affidavit, Mr Makhuva said:
‘
The
places presently called Majeje, Lulekani, Zebra, Gemog, Pompey and
Letaba Rest Camp were under the Makhuva Indunas of the likes
of
Xakamani, Nkundleni, Malopani and Hoyihoyi.’
[15]
In paragraph 11 of the claim form, the
community’s contact address was given as care of Conrad Kruger
Attorneys. It can thus
be accepted that it was represented by
attorneys when the claim was lodged. It can also be accepted from the
annexures to the founding
papers in the review application in
particular, to which I shall refer below, that although its attorneys
may have changed from
time to time over the 22 years that the claim
has meandered through the RLCC’s bureaucratic maze, the
community has always
been legally represented.
[16]
Receipt of the claim was acknowledged by
the RLCC on 21 April 1998. In the letter acknowledging receipt of the
claim, the land that
was the subject of the claim was confirmed as
being ‘Letaba Rest Camp LU, Quagga 21, Zebra 19, Genoeg 15 and
Pompey 16 LU’.
[17]
Annexures
to the founding papers indicate that some communication took place
between attorneys acting for the community and the
RLCC during the
period between the lodging of the claim and the first publication of
the claim on 8 June 2007. As the review was
not brought in terms of
rule 53 of the uniform rules, one must assume that the community has
attached to its founding papers everything
that it considered
relevant as a record of the decision. As rule 53 is primarily
intended to assist applicants to bring review
proceedings, the
community’s option not to use rule 53 in order to obtain a full
and complete record and reasons was taken
at its own risk.
[10]
[18]
On 14 July 2000 and 21 July 2000 a claim
to land inside the Kruger National Park, lodged by four Ba-Phalaborwa
tribes, was published
in the
Gazette
.
The properties claimed included Letaba Ranch. In a letter dated 21
September 2000, the community’s attorney requested the
RLCC to
amend the notice that he had published, in terms of s 14A(4) of the
Restitution Act, ‘to include our clients as parties
with a
vested interest’. Attached to the letter was a report compiled
by an anthropologist concerning Letaba Ranch and Genoeg
and the
Makhuva tribe’s connection to these properties.
[19]
The attorney did not state in the letter
that the community had claimed Letaba Ranch. Strangely, she also said
nothing about the
community having claimed Genoeg. Attached to the
letter was a document, also dated 21 September 2000, signed by the
same attorney
and headed ‘LODGEMENT OF CLAIM’. With
reference to the claim lodged by the community on 19 December 1997,
she stated
that two ‘technical errors’ had been made in
the claim form: the ‘reference to
Letaba
Rest Camp
was meant to read
Letaba
Ranch
and the reference to
Gemog
should have read
Genoeg
’.
She asked that these errors be overlooked and that the community be
included ‘as an interested party in the claims
process’.
[20]
In the following month, however, the
same attorney, in answer to a number of questions posed by an
attorney acting for the Ba-Phalaborwa
tribes confirmed that ‘our
clients are in fact claiming Letaba Rest Camp’.
[21]
In a letter dated 9 January 2007, the
community’s attorney wrote to the RLCC to clarify aspects of
its claim. First, the attorney
said that Letaba Ranch had not been
claimed and that this had been an error. Genoeg had, however, been
claimed. The attorney tried,
unconvincingly, it must be said, to
persuade the RLCC that because Genoeg had been claimed, and it was
part of Letaba Ranch, that
constituted a claim to Letaba Ranch.
Secondly, the attorney stated that it could be seen from the claim
form that Lulekani had
been claimed, and that what was claimed was
the whole Lulekani district, which included Letaba Ranch. The
attorney appears to have
been on firmer ground in this respect.
[22]
Prior to this, it had not been clear to
the RLCC whether the community had claimed the township of Lulekani
or the entire district
of that name. In the
Gazette
dated 8 June 2007, notice of the
claim in respect of Genoeg, Letaba Rest Camp, Pompey and Zebra was
published. Lulekani was left
out because the extent of the claim to
Lulekani still had to be investigated by the RLCC. Why the claim to
Quagga was not published
has not been explained.
[23]
When the RLCC completed his
investigation into what precisely made up the Lulekani district,
notice of this part of the claim was
published in the
Gazette
on 22 May 2015. The land that made
up this district included Letaba Ranch. The claim to Quagga was
published at this stage. The
result was that by 22 May 2015, the
claim to all of the land referred to in paragraph 1.1 of the claim
form had been published.
(This publication occurred about 18 months
after the review application had been launched.)
The
review application
[24]
By notice of motion dated 30 September
2013, the community initiated an application in which it sought a
declarator that the publication
of its claim in the
Gazette
of 8 June 2007 was incomplete; an
order reviewing the decision of the RLCC ‘to publish only those
portions of the Applicant’s
restitution claim as set out in the
aforesaid Gazette, and ordering the First Respondent to publish an
additional amended Gazette
containing all cadastral portions of the
farms listed in Annexure “A” hereto, as well as the
unsurveyed state land
referred to herein’. The costs of the
application were also sought.
[25]
Annexure A to the notice of motion
contains a list of 48 properties as well as land described as
‘[c]ertain un-proclaimed
areas of the Kruger National Park,
between the Olifants and Letaba Rivers’ and Letaba Ranch.
[26]
It is apparent that the land listed in
annexure A is far more extensive than that claimed in paragraph 1.1
of the claim form. The
basis of the community’s case is that
its claim is embodied in the map attached to the claim form, and not
in paragraph 1.1
of the claim form – and that what it claims is
every property depicted on the map.
[27]
The community’s case appears,
largely, to be embodied in paragraph 14 of the founding affidavit
deposed to by Mr Mishack Mathebula.
It reads:
‘
From
a proper reading of the land claim form, it is respectfully clear
that the community claimed the area which they regarded as
their
traditional lands over which they held indigenous title. In short,
this is the unsurveyed state land within the Kruger National
Park
situated between the confluence of the Olifants River and the Letaba
River as well as the surveyed farms to the West of the
Kruger
National Park which continues up to a line that traverses more or
less North to South as indicated on a map which I annex
hereto as
Annexure “MM4”. The surveyed farms are those listed in
Annexure “A” to the Notice of Motion.’
Annexure
‘MM4’ is a third map, different to the two maps attached
to the land claim form. It is illegible, for the
most part. It is
impossible to make out the names of individual properties.
[28]
In addition, the community’s
complaint is that it appeared from the publication in the
Gazette
of 8 June 2007 that the RLCC, in
considering the publication of the claim, ‘simply looked at
paragraph 1.1 of the Land Claim
Form and to nothing else’, but
even then omitted Quagga from the publication. From a reading of the
‘claim form and
its annexures as a whole’, the community
alleged, it was clear that the RLCC ‘did not properly apply his
mind to determining
the exact extent of the applicant’s land
claim’ and he ‘obviously did not investigate the rest of
the claim form,
nor its annexures’. It was also contended that
the ‘determination of the area of the claim by reference only
to paragraph
1.1 of the land claim form was clearly an error and
should be set aside and corrected’.
[29]
Ms Kholofelo Peace Machete, a project
co-ordinator in the office of the RLCC, deposed to the answering
affidavit. She set out details
of the RLCC’s engagement with
the community’s legal representatives over the years, and
explained the process that
eventually led to the publication of the
claim to the various components of the Lulekani district, including
Letaba Ranch. She
attached a copy of the publication of this aspect
of the claim. From this, it appears that the claim to Quagga was also
published.
[30]
The crux of the RLCC’s case is
encapsulated in the last four paragraphs of the answering affidavit.
I quote them in full:
’
29
It is becoming apparent that the Applicant wants to lay more claims
on land which it did not claim in
its claim form. The
claim form is unambiguous as to what the Makhuva- Mathebula Community
is laying claim to. The land on which
they are laying claim is Letaba
Rest Camp, Lulekani, Zebra, Genoeg and Pompey.
30
The land in respect of which the
Makhuva-Mathebula Community has made claims has been gazetted in 2007
and 2015.
31
The Makhuva-Mathebula community are
seeking to make more claims using the back door in circumstances
where it has not lodged land
claims as required by the
Restitution of
Land Rights Act. The
Makhuva-Mathebula Community seem to be adding
more land as and when it suits them. For example the letter of 5 June
2015 is a clear
example that they would keep on claiming more land
than is contained in their land claim.
32
The process of claiming land has been
reopened and they are welcome to lodge new claims. However their
claim in terms of the claim
form of 1998 does not extend to the
additional land that they seek to add in the letter of 5 June 2015
and the memorandum of the
late Ms Durkje Gilfillan.’
The
issues
Delay
[31]
The
taking of the impugned decision by the RLCC was an administrative
action as defined in the Promotion of Administrative Justice
Act 3 of
2000 (the PAJA).
[11]
That
being so, the community had no choice but to bring the review in
terms of the PAJA.
[12]
Section
7(1) required it to do so without undue delay and within 180 days of
becoming aware of the decision. A failure to apply
timeously may be
condoned in two circumstances – either by agreement between the
parties or by the court granting an application
for condonation.
[13]
[32]
In this case, the community launched its
application on 30 September 2013 to review a decision of the RLCC
that was published on
8 June 2007, more than six years before. The
papers contain no mention of the PAJA at all, and no application for
condonation for
the long delay has been made.
[33]
One must assume that the RLCC was aware
of the PAJA’s application and of its provisions. He was, at all
material times, legally
represented. In these circumstances, and from
his failure to raise the delay, I am prepared to find that he has
agreed tacitly
to condone the delay in terms of s 9(1) of the PAJA.
The court below accordingly had jurisdiction to hear the review.
The
merits of the review
[34]
An applicant for review is required to
identify the grounds of review upon which he or she relies. This is
necessary because the
onus lies on an applicant to establish a
reviewable irregularity and to enable the decision-maker to defend
his or her decision.
[35]
It
is important to bear in mind the distinction between review and
appeal. Wade and Forsyth explain the difference as follows:
[14]
‘
The
system of judicial review is radically different from the system of
appeals. When hearing an appeal the court is concerned with
the
merits of a decision: is it correct? When subjecting some
administrative act or order to judicial review, the court is
concerned
with its legality: is it within the limits of the powers
granted? On an appeal the question is “right or wrong”?
On
review, the question is “lawful or unlawful”?
[36]
In the founding papers in this matter,
the jurisdictional basis for the review – the PAJA – is
not referred to, and
not one of the grounds of review listed in the
PAJA is mentioned. It is so that the community makes a broad and
unspecific assertion
that the RLCC did not apply his mind properly.
It also alleged that he made an error. From a reading of the founding
affidavit
as a whole, it appears that the community has approached
the matter more as an appeal against the RLCC’s decision to
publish
only the properties listed in paragraph 1.1 of the claim
form, rather than as a review of that decision.
[37]
It
is sometimes said, not entirely accurately, that in the case of
review, the court’s focus is on the decision-making process,
rather than on the decision itself.
[15]
Essentially,
a court will consider whether the decision was lawful, in the sense
that the administrator who took it was properly
authorized to take
it,
[16]
whether he or she
acted in a procedurally fair manner
[17]
and whether he or she acted reasonably by not abusing his or her
discretion.
[18]
[38]
In this case, it seems to me that the
lawfulness of the RLCC’s decision is not in issue: he was
authorized to take the decision
to publish the claim and did so.
Likewise, the rules of procedural fairness do not appear to have been
violated by him. By suggesting
that he failed to apply his mind
properly, the community, it seems to me, asserts that he acted
unreasonably by abusing his discretion
in some way.
[39]
I
say this because a failure to apply the mind is not a discrete ground
of review but a ‘general rubric which refers not only
to
abdications of discretion but also to all forms of abuse of
discretion . . .’.
[19]
In
Northwest
Townships (Pty) Ltd v Administrator, Transvaal & others
,
[20]
Colman J explained that the term ‘has been held, in English and
South African cases, to include capriciousness, a failure,
on the
part of the person enjoined to make the decision, to appreciate the
nature and limits of the discretion to be exercised,
a failure to
direct his thoughts to the relevant data or the relevant principles,
reliance on irrelevant considerations, an arbitrary
approach, and an
application of wrong principles’. All of these grounds have
been codified in s 6(2) of the PAJA (although
not necessarily in the
terms expressed by Colman J).
[40]
In
Pharmaceutical
Manufacturers Association of SA & another: in re ex parte
President of the Republic of South Africa & others
,
[21]
Chaskalson
P held that more was required of those exercising public power than
that they act in good faith and apply their minds.
[22]
In addition, the rule of law requires them to act
rationally.
[23]
Irrationality
is a ground of review listed in s 6(2)(
f
)(ii)
of the PAJA.
[41]
I turn now to the facts in order to
determine whether the community has established that when the RLCC
decided to publish the claim
on 8 June 2007, he failed to apply his
mind. (For purposes of this analysis, I disregard the RLCC’s
failure to publish the
claims to Lulekani, which was still being
investigated, and to Quagga, which appears to have been an omission
which was later rectified.)
[42]
The RLCC had before him a claim form
prescribed by the legislation that had been completed by Mr Makhuva,
a person who was legally
represented. Paragraph 1 of the claim form
required Mr Makhuva to indicate whether the land that he claimed was
rural or urban
land and then paragraph 1.1 provided:
‘
If
it is rural land, the portion(s), name(s) and number(s) of the farm
and district in which it is situated.’
Mr
Makhuva responded to this by listing the names of six properties,
namely Letaba Rest Camp, Lulekani, Zebra, Genoeg, Pompey and
Quagga.
[43]
In addition to naming the properties, he
also stated that the land was not urban land and that it had been
acquired by ‘Government
Department: Provincial Affairs and
Environmental Affairs’ in 1921. In response to the question in
paragraph 2.2 of the claim
form, which asked about the amount of
compensation paid he indicated that this was not applicable both in
relation to the properties
and improvements. In answer to the
question in paragraph 2.3 as to whether any land or housing had been
allocated as compensation,
he again indicated that this was not
applicable. Mr Makhuva thus completed paragraphs 1 and 2 of the claim
form in full. He identified
in it the land that the community claimed
and furnished other details concerning that land.
[44]
In paragraph 6 of the claim form, Mr
Makhuva set out the basis for the claim by stating:
‘
Our
ruins, graves and other ancestral [beliefs] are attached to these
places and we need arable land for our Community. The main
reason is
that the land is belonging to the Mathebula Tribal Authority and the
generation of today want to utilize the area economical[ly]
for the
benefit of the nation at all.’
When
Mr Makhuva referred to ‘these places’ that could only
have been a reference to the places listed in paragraph 1.1.
[45]
In paragraph 7, headed ‘other
evidence to substantiate your claim’, he stated: ‘Please
find the attached affidavit
of the chairperson of the Mathebula Royal
Council.’ And then, in paragraph 9, headed ‘Any other
information you would
like to bring to the commission’s
attention’, he referred again to the affidavit and the ‘map
of the area being
claimed’.
[46]
At this stage then, the RLCC had before
him a claim form that was clear as to the land that was claimed,
stated expressly in the
appropriate part of the claim form. The
documents that were attached were other evidence to substantiate the
claim (in paragraph
7 of the claim form) and other information that
Mr Makhuva wished to bring to the attention of the Commission (in
paragraph 9 of
the claim form). He gave no hint that the map, the
relevance of which was not explained, was in fact the claim –
with the
consequence that what was stated in paragraph 1.1 was not
the claim, and was to be ignored. Without being told that the
community
had opted to make their claim in this utterly bizarre,
irrational and non-sensical way, the RLCC would have had no way of
knowing
that, in considering the land claimed to have been that
mentioned expressly in paragraph 1.1, he was barking up the wrong
tree.
Added to this is the fact that no explanation has ever been
given by anyone as to why, if the claim was made for more than what
was listed in paragraph 1.1 of the claim form, the additional land
was not listed in that paragraph.
[47]
Furthermore, during the period from the
lodging of the claim until its partial publication on 8 June 2007,
there was also no suggestion
from the community’s legal
representatives, in their dealings with the RLCC, that the claim was
not that contained in paragraph
1.1 of the claim form but every
property that appears on the first map. Instead, the legal
representatives spoke of ‘technical
errors’ in paragraph
1.1 of the claim form and their confusion concerning Letaba Ranch and
Letaba Rest Camp.
[48]
By the time that the RLCC took the
impugned decision, he had a claim form that was clear and unambiguous
and which claimed a set
of listed properties, as well as the make
weight of a map which ostensibly showed the area in which those
properties lay. The community’s
legal representatives, in their
dealings with him, never told him that the map and not paragraph 1.1
of the claim form embodied
the claim. He had no way of knowing, or of
ascertaining, that the map and not paragraph 1.1 of the claim form
embodied the claim,
if indeed that was the bona fide belief of the
community. In not arriving, somehow, at this illogical and irrational
outcome, the
RLCC cannot be faulted.
[49]
I am of the view that in publishing the
claim on the face value understanding that the properties claimed
were those listed in paragraph
1.1 of the claim form, the RLCC
applied his mind in accordance with the behests of the Restitution
Act and acted rationally in
so doing. That being so, the community
failed to establish a ground of review upon which the decision under
challenge could have
been set aside. It follows that the Land Claims
Court dismissed the community’s application correctly, and this
appeal cannot
succeed. The RLCC did not seek costs.
Order
[50]
The appeal is dismissed.
C
Plasket Judge of Appeal
Appearances:
For
the Appellant: A de Vos SC
Instructed
by:
Gilfillan
Du Plessis Inc, Pretoria
Webbers,
Bloemfontein
For
the First and Second
Respondents:
T Seneke
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
[1]
The Restitution Act was required to be enacted by s 121 of the
interim Constitution of 1993, which set the parameters for land
restitution. It provided:
‘
(1)
An Act of Parliament shall provide for matters relating to the
restitution of land rights, as envisaged in this section and
in
sections 122 and 123.
(2)
A person or a community shall be entitled to claim restitution of a
right in land from the state if –
(a)
such person or community was dispossessed of such right at any time
after a date to be fixed by the Act referred
to in subsection (1);
and
(b)
such dispossession was effected under or for the purposes of
furthering the object of a law which would have been
inconsistent
with the prohibition of racial discrimination contained in section
8(2) [of the interim Constitution], had that
section been in
operation at the time of the dispossession.
(3)
The date fixed by virtue of subsection 2(
a
) shall not be a
date earlier than 19 June 1913.’
[2]
Section 4(1). See generally,
Mahlangu
NO v Minister of Land Affairs & others
2005
(1) SA 451
(SCA) paras 1-5. See too Budlender, Latsky and Roux
Juta’s
New Land Law
at
3A-24 to 3A-25
[3]
Section 4(3).
[4]
Section 6(1).
[5]
Section 16(1)(
a
).
[6]
Promulgated in Government Notice R703,
Government
Gazette
16407
of 12 May 1995.
[7]
Section 11(1).
[8]
The correct name for the property named as Gemog is Genoeg and the
correct name for the property named as Pompet is Pompey
[9]
The names of properties can at least be made out on the first map,
albeit with some difficulty. They cannot be made out on the
second,
different, map. In the founding affidavit in the review application,
however, it is said that the RLCC ought to have
‘determined
the geographical borders of the land claim by reference to this map,
or should have ascertained how this map
fits into the actual land
claim of the Applicant community’.
[10]
See
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993
(1) SA 649
(A) at 660D-661J;
SACCAWU
& others v President, Industrial Tribunal & others
[2000] ZASCA 163
;
2001
(2) SA 277
(SCA) para 7;
Liberty
Life Association of Africa v Kachelhoffer NO & others
2001
(3) SA 1094
(C) at 1114E-1115A.
[11]
See the PAJA, s 1 for the definition of administrative action. See
too
Gamevest
(Pty) Ltd v Regional Land Claims Commissioner, Northern Province and
Mpumalanga & others
2003
(1) SA 373
(SCA) paras 10-12;
Dukuduku
Community v Regional Land Claims Commissioner, KwaZulu-Natal &
another
2006
(3) SA 508
(LCC) paras 8-9.
[12]
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as amici curiae)
[2005]
ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) paras 95-97.
[13]
The PAJA, s 9(1).
[14]
Wade and Forsyth
Administrative
Law
(10
ed) at 28-29.
[15]
The
effect
of the
decision may be the primary focus in review when, for instance, it
produces absurd results, or has harsh or unjust consequences
and is
thus disproportional. See for example,
Medirite
(Pty) Ltd v South African Pharmacy Council
[2015]
ZASCA 27
paras 20-22.
[16]
The PAJA, ss 6(2)(
a
)(i)
and (ii), s 6(2)(
b
),
s 6(2)(
d
)
and s 6(2)(
f
)(i).
[17]
The PAJA, s 6(2)(
a
)(iii)
and s 6(2)(
c
)
read with ss 3 and 4.
[18]
The PAJA, s 6(2)(
e
),
s 6(2)(
f
)(ii)
and s 6(2)(
h
).
[19]
Baxter
Administrative
Law
at
476-477
[20]
Northwest
Townships (Pty) Ltd v Administrator, Transvaal & others
1975
(4) SA 1
(T) at 8F-G. See too
Johannesburg
Stock Exchange v Witwatersrand Nigel Ltd & another
1988
(3) SA 132
(A) at 152A- E.
[21]
Pharmaceutical
Manufacturers Association of SA & another: in re ex parte
President of the Republic of South Africa & others
[2000]
ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
[22]
Para 83.
[23]
Para 85.