Brief Summary

Restitution of Land Rights — Non-restoration order — Application by traditional communities for restitution of land rights within Mthatha — Court's authority under section 34 of the Restitution of Land Rights Act to issue non-restoration orders — Requirement for public interest and substantial prejudice to be established — Communities aggrieved by Land Claims Court and Supreme Court of Appeal orders denying restoration of claimed land pending final determination of claims — Appeal against non-restoration order upheld, with court emphasizing the need for a thorough examination of public interest and potential prejudice before such orders are made.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment of the Constitutional Court concerned two related applications for leave to appeal and the ensuing appeal against an order made under section 34 of the Restitution of Land Rights Act 22 of 1994. The case raised the circumstances in which a court may, before the validity of a land restitution claim is finally determined, make an order that prevents the claimed land from being restored to successful claimants (a non-restoration order), leaving only monetary or other equitable redress as potential remedies.

The principal parties were the Kwalindile Community and the Zimbane Community (traditional communities asserting land restitution claims) on the one side, and the King Sabata Dalindyebo Municipality (the local government body within whose jurisdiction the claimed land lay, and in whose favour a non-restoration order had been made) on the other. Two private entities, Cape Gannet Properties 118 (Pty) Ltd and Whirlprops 46 (Pty) Ltd, also opposed the appeal to protect commercial interests arising from long-term lease arrangements with the Municipality over parts of the land in question.

The matter had proceeded through the Land Claims Court, which granted a broad non-restoration order (with additional development-related conditions), and then the Supreme Court of Appeal, which set aside the conditions but confirmed non-restoration in a substantially expanded form. The communities appealed to the Constitutional Court. The dispute fell within the field of constitutional property restitution (section 25(7) of the Constitution) and, more specifically, the statutory mechanism that allows public bodies to seek pre-emptive protection of land from restoration where public interest and prejudice requirements are met.

2. Material Facts

The claimed land was situated within the environs of the City of Mthatha. Historically, Mthatha was established as a municipality in 1882. A deed of grant in 1923 vested Erf 912 Mthatha (formerly the Mthatha Town Commonage West and East) in the Municipality. Ownership later vested in the Transkei Government, with the Municipality retaining usufructuary rights. After 1994, the land vested in the Government of the Republic of South Africa by operation of section 239 of the Interim Constitution.

In 1997, the Minister for Land Affairs delegated powers to dispose of state property to the Eastern Cape MEC, subject to conditions. A material condition was that, before development of delegated commonage land, the competent authority had to ensure development would not result in the dispossession of people’s rights (formal or informal), and that satisfactory arrangements had to be made in consultation with the Department of Land Affairs. In 1997 and 1999, the MEC donated and transferred ownership of parts of land within Mthatha township, including the Remainder of Erf 912, to the Municipality.

During 1998, the Kwalindile and Zimbane communities lodged separate land restitution claims with the Regional Land Claims Commissioner. The geographic extent of the claims was uncertain, but both included parts of the Remainder of Erf 912. The Municipality disputed the validity of both claims, including on historical and boundary grounds. The Commissioner investigated the claims, accepted them, and referred them to the Land Claims Court for adjudication. In 2007 the claims were published under section 11(1) of the Restitution Act. The Commissioner and the Minister supported the feasibility of restoration in respect of at least some land and opposed the contention that no land could be restored.

Before final determination of the claims, the Municipality concluded long-term registrable leases with commercial developers over portions of the Remainder of Erf 912. The Kwalindile Community had previously obtained an interim interdict restraining development on parts of the land. In 2008, the Municipality applied under section 34 of the Restitution Act for an order that the land not be restored to any claimant when the claims were finally determined.

A central factual feature relied on by the Constitutional Court was the lack of adequate geographical specificity in the Municipality’s case. The Land Claims Court itself had recorded that it was not clear from the papers what specific areas the Remainder of Erf 912 encompassed, and that there was no map, diagram, or other depiction of boundaries and physical features to enable precise adjudication and narrowly tailored relief.

Another factual feature treated as undisputed was that there were large tracts of land within the Remainder of Erf 912 that were not developed. Although the Supreme Court of Appeal approached the matter on the premise that Mthatha was completely urbanised or earmarked for development, the record included acceptance by the Land Claims Court that the city was surrounded by an extensive rural hinterland and that the Remainder of Erf 912 was very large in extent. The communities consistently stated they did not seek restoration of developed urban land in private hands, but rather restoration of vacant and undeveloped land.

As to the commercial respondents’ positions, the third respondent (Whirlprops 46 (Pty) Ltd) held a registered long lease over Erf 18647 Mthatha and had constructed a large shopping complex, completed before October 2007, at significant cost, with substantial public use and a major mortgage exposure. The second respondent (Cape Gannet Properties 118 (Pty) Ltd) held a long-term lease with a pre-emptive right to purchase over proposed subdivisions of Erf 912, but the land had not been surveyed, subdivided, or developed pursuant to the contemplated projects.

3. Legal Issues

The central legal questions were whether the Land Claims Court had been entitled, on the facts placed before it, to make a non-restoration order under section 34(5)(b) of the Restitution Act, having regard to the strict threshold conditions in section 34(6). This required determination of whether the court could properly be satisfied that (a) it was in the public interest that rights in the land should not be restored, and (b) that the public or a substantial part thereof would suffer substantial prejudice unless a non-restoration order was made before final determination of the claims.

The dispute concerned primarily the application of law to fact and the correctness of the value judgment mandated by section 34(6), rather than a final determination of the underlying restitution claims. The Constitutional Court also had to consider whether the Supreme Court of Appeal’s substituted order was impermissibly overbroad in its scope, given the statute’s requirement that any non-restoration relief be directed at “the land in question or part of the land”, and given the invasive effect of non-restoration on constitutional restitution rights.

A further issue concerned the correctness of the costs order made by the Supreme Court of Appeal against the Regional Land Claims Commissioner, in light of section 34(9) of the Restitution Act and the Commissioner’s statutory role in section 34 proceedings.

4. Court’s Reasoning

The Court located section 34 within the constitutional and statutory scheme that gives effect to section 25(7) of the Constitution, emphasising that restitution claims and disputes about non-restoration orders raise constitutional questions. It explained that section 34 is designed to pre-empt restoration where restoration would threaten or prejudice the public interest, while still enabling equitable redress. Because a non-restoration order truncates the possibility of restoration, it is invasive of restitution rights and may be made only when section 34(6)’s twin threshold requirements are met.

The Court characterised the section 34(6) enquiry as requiring a value judgment informed by an assessment of all relevant facts. It held that the public body seeking non-restoration must place before the court sufficient facts to enable that value judgment. The judgment further reaffirmed that, although claimants are not invariably entitled to restoration, restoration enjoys primacy when feasible within the statutory scheme, and non-restoration must therefore be justified with appropriate specificity and evidential grounding.

A decisive aspect of the Court’s reasoning was that the Municipality had failed to identify with reasonable certainty the land to be immunised from restoration. The record lacked surveyed limits, maps, diagrams, or an integrated development plan showing what areas were developed and what were not. The Restitution Act authorises non-restoration in relation to “the land in question” or “part of the land”, which the Court understood as requiring sufficient particularity to allow a court to craft precisely targeted relief. Both the Land Claims Court and the Supreme Court of Appeal had criticised the lack of detail, yet they proceeded to make orders insulating broadly framed areas from restoration. The Constitutional Court treated this as a material irregularity because the breadth and vagueness of the orders risked unduly curtailing restitution remedies beyond what was justified.

The Court also held that the Land Claims Court’s and Supreme Court of Appeal’s conclusions about inevitable “chaos” and social disruption were based on a misconceived premise about the nature of the communities’ claims. The communities had consistently limited their desired restoration to undeveloped and vacant land, and disavowed any claim to private urban properties. The Court found that, on the evidence, there were indeed substantial undeveloped tracts within the Remainder of Erf 912. In that setting, the Court held there was no factual basis to conclude that it would be in the public interest to prevent restoration of vacant land or that restoration of such land would cause substantial prejudice to the public through disruption or upheaval.

The Court further identified as problematic the Supreme Court of Appeal’s reliance on an asserted lack of sentimental or ancestral attachment, noting this conflicted with evidence accepted on the papers concerning long-standing occupation in the vicinity and the existence of ancestral graves, which the Municipality itself had resolved to respect and fence off. The Court did not finally determine the land claims; rather, it held that the statutory thresholds for a blanket non-restoration order had not been properly satisfied on the record.

In addressing appropriate relief, the Court accepted that the third respondent’s position stood on a different footing. The shopping complex on Erf 18647 was a completed development, in full public use, with large sunk costs and financing. The Court reasoned that it was within the Land Claims Court’s power to make a tailored non-restoration order limited to precisely identified land, and that, on the established facts, it would not be in the public interest and would be substantially prejudicial to the public to restore the land comprising Erf 18647. The Court stressed that such tailoring was possible because Erf 18647 was capable of ascertainment through cadastral description and surveyed diagrams attached to the written lease, unlike the broader municipal area and the remainder of Erf 912.

By contrast, the Court rejected the second respondent’s position as a basis to preserve a blanket non-restoration order because the relevant land was not surveyed, subdivided, or developed, and the lease had not yet been implemented through construction. The Court indicated that the existence of a lease might still be relevant when the Land Claims Court ultimately determines restitution and remedy, but it did not justify pre-emptive non-restoration on the broad terms previously ordered.

On costs, the Court held that the Supreme Court of Appeal’s adverse costs order against the Commissioner was not justified. It emphasised that, in section 34 proceedings, the Commissioner has a defined statutory role to investigate and report, and also bears duties once claims are published, including in relation to leasing and development on land under claim. The Court considered that the Commissioner had performed her functions, even if robustly, and that characterising her as a driving force warranting costs censure was unwarranted. Since the Municipality had brought the litigation and was unsuccessful in the Constitutional Court, the Court held that costs should follow the event, including in relation to the private party that had a protectable interest.

5. Outcome and Relief

The Constitutional Court granted leave to appeal and upheld both appeals. It set aside the orders of the Supreme Court of Appeal and the Land Claims Court.

In substitution, the Court dismissed the Municipality’s application for a non-restoration order insofar as it sought relief under section 34(5)(c) in the form granted by the Land Claims Court. The Court nevertheless granted a limited non-restoration order in respect of the land on which Whirlprops 46 (Pty) Ltd held a registered long lease, confined to Erf 18647 Mthatha, holding that this land shall not be restored to any claimant or prospective claimant.

The Court ordered the Municipality to pay the costs of the Kwalindile Community, the Zimbane Community, and Whirlprops 46 (Pty) Ltd in the Land Claims Court, the Supreme Court of Appeal, and the Constitutional Court, including the costs of two counsel where applicable. The Supreme Court of Appeal’s costs order against the Regional Land Claims Commissioner was set aside.

Cases Cited

King Sabata Dalindyebo Municipality v Kwalindile Community and Others [2010] ZALCC 33.

Nkomazi Municipality v Ngomane of Lugedlane Community and Others [2010] 3 All SA 563 (LCC).

King Sabata Dalindyebo Municipality and Others v KwaLindile Community and Others [2012] 3 All SA 479 (SCA).

Baphalane Ba Ramokoka Community v Mphela Family and Others; In re: Mphela Family and Others v Haakdoornbult Boerdery CC and Others [2011] ZACC 15; 2011 (9) BCLR 891 (CC).

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC).

Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association and Others [2006] ZACC 14; 2007 (2) SA 531 (CC); 2007 (2) BCLR 111 (CC).

Khosis Community, Lohatla and Others v Minister of Defence and Others 2004 (5) SA 494 (SCA).

In re Kranspoort Community 2000 (2) SA 124 (LCC).

Blaauwberg Municipality v Bekker and Others 1998 (1) All SA 88 (LCC).

Giddey NO v J C Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC); 2007 (2) BCLR 125 (CC).

Mabaso v Law Society of the Northern Provinces and Another [2004] ZACC 8; 2005 (2) SA 117 (CC); 2005 (2) BCLR 129 (CC).

General Council of the Bar of South Africa v Geach and Others [2012] ZASCA 175.

Kekana v Society of Advocates of South Africa [1998] ZASCA 54; 1998 (4) SA 649 (SCA).

Legislation Cited

Restitution of Land Rights Act 22 of 1994.

Constitution of the Republic of South Africa, 1996 (section 25(5)–(7)).

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) (section 239).

Land Administration Act 2 of 1995.

State Land Disposal Act 48 of 1961.

Local Government: Municipal Systems Act 32 of 2000.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the Land Claims Court and the Supreme Court of Appeal had not been entitled, on the record, to make a blanket section 34(5)(b) non-restoration order covering broadly described land within Mthatha, including the Remainder of Erf 912. The Municipality had not provided adequate geographical and factual specificity to permit a properly tailored order, and the lower courts’ conclusions that restoration would cause “chaos” and substantial prejudice were not justified where the communities sought restoration only of vacant and undeveloped land.

The Court held that a limited non-restoration order was justified only in relation to Erf 18647 Mthatha, the specific, ascertainable land subject to Whirlprops’ registered long lease and completed shopping complex, because restoration of that developed land would not be in the public interest and would cause substantial prejudice to the public.

The Court held that the Supreme Court of Appeal’s adverse costs order against the Regional Land Claims Commissioner was not justified given her statutory role and duties in section 34 proceedings, and ordered the Municipality to pay the relevant parties’ costs.

LEGAL PRINCIPLES

A non-restoration order under section 34 of the Restitution of Land Rights Act 22 of 1994 is an invasive limitation on the constitutional and statutory architecture of restitution, and may be made only if the court is satisfied that the public interest requires non-restoration and that the public (or a substantial part thereof) will suffer substantial prejudice unless non-restoration is ordered before final determination of the restitution claim.

The determination under section 34(6) requires a value judgment informed by a full and adequate factual foundation. The public body seeking non-restoration bears the obligation to place before the court sufficient facts to enable that value judgment, including adequate identification of the land sought to be protected from restoration.

Because section 34 authorises non-restoration in respect of “the land in question” or “part of the land” or “certain rights in the land”, any non-restoration order must be sufficiently particularised and tailored so that it does not curtail potential restitution remedies more broadly than justified by the evidence and the statutory thresholds.

Where developed land is precisely identifiable and restoration would be contrary to the public interest and substantially prejudicial to the public, a court may grant a narrow, cadastral-specific non-restoration order limited to that land, rather than issuing broad protection across an entire town or municipal area.

In section 34 proceedings, the Regional Land Claims Commissioner performs a statutory role that includes investigation and reporting to the court. The performance of that statutory function, even robustly, does not without more justify punitive or adverse costs orders against the Commissioner, particularly in light of the statutory costs framework in section 34(9).

Kwalindile Community v King Sabata Dalinyebo Municipality and Others; Zimbane Community v King Sabata Dalinyebo Municipality and Others (CCT 52/12, CCT 55/12) [2013] ZACC 6; 2013 (5) BCLR 531 (CC); 2013 (6) SA 193 (CC) (28 March 2013)