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[2017] ZACC 4
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South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others (CCT172/16) [2017] ZACC 4; 2017 (8) BCLR 1053 (CC); 2017 (5) SA 1 (CC) (23 February 2017)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
172/16
In the matter
between:
SOUTH AFRICAN
RIDING FOR THE
DISABLED
ASSOCIATION
Applicant
and
REGIONAL LAND
CLAIMS COMMISSIONER
First Respondent
SEDICK
SADIEN
Second Respondent
EBRAHIM
SADIEN
Third Respondent
Neutral citation:
South
African Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
[2017] ZACC 4
Coram:
Nkabinde ACJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mbha AJ,
Mhlantla J,
Musi AJ and Zondo J
Judgments:
Jafta J (unanimous)
Decided on:
23 February 2017
Summary:
Section 35(9) of the Restitution of Land Rights Act— just
and equitable compensation — direct and substantial interest
—
right to intervene
ORDER
On appeal from the
Land Claims Court:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Land Claims Court is set aside.
4. The South African Riding for the Disabled Association is allowed
to intervene for the purpose of determining compensation payable
to
the Association.
5. The matter is remitted to the Land Claims Court for determination
of compensation payable to the South African Riding for the
Disabled
Association.
6. The Regional Land Claims Commissioner is ordered to pay costs in
the Land Claims Court and this Court.
JUDGMENT
JAFTA J
(
Nkabinde ACJ, Cameron J, Froneman J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J,
Musi AJ
and Zondo J concurring)
:
Introduction
[1]
This is an application for leave to appeal against an order of
the Land Claims Court in terms of which a request to
intervene
in proceedings that served before that Court was dismissed
with costs. The Land Claims Court refused leave to appeal and a
petition to the Supreme Court of Appeal was also not successful.
The application concerns the interpretation and application
of the
Restitution of Land Rights Act
[1]
(Act) which was enacted to give effect to section 25(7) of the
Constitution.
[2]
As a result a constitutional issue is raised.
[3]
[2]
The Chief Justice directed the parties to file written
submissions on the question whether the applicant had a direct and
substantial
interest in an amended order of the Land Claims Court
that ordered transfer of a certain immovable property to the second
respondent.
In compliance with the directions, the parties have
lodged written argument and the matter was decided without oral
hearing.
Factual
background
[3]
The applicant is the South African Riding for the Disabled
Association (Association). The Association has cited as
respondents
the Regional Land Claims Commissioner (Commissioner), Mr
Sedick Sadien and Mr Ebrahim Sadien (Sadiens).
[4]
The Association has occupied Erf 142 Constantia, Cape Town
under a lease for 34 years. This property belonged to the
State.
In terms of the amended order, the Land Claims Court
directed that the property be transferred to the Sadiens as
compensation for
the land they had lost. The Sadiens had
claimed restoration of land they had lost as a result of
discriminatory practices
of the previous apartheid order.
[5]
The claim for restoration was determined by the Land Claims
Court in December 2012. That Court ordered the transfer of Erf
1783 Constantia to Mr Sedick Sadien, a descendant of Mr
Omar Sadien who was the owner of the dispossessed land.
But
this erf proved to be considerably smaller than the dispossessed
land. As a result the Land Claims Court awarded the
Sadiens a
different piece of land to make up for the shortfall. On 8
February 2013, the Court varied its order to replace
the smaller land
with Erf 142 Constantia.
[6]
This variation was effected without the knowledge of the
Association which had allegedly made improvements valued at R7.5
million
on the property in question during its tenancy. No
offer was made by any party to compensate the Association and the
Land
Claims Court ordered none. This was at variance with the
provisions of section 35(9) of the Act. This section confers
upon a lawful occupier of state land compensation determined by
agreement or the Land Claims Court, if that Court orders
restitution of state land occupied by a lawful occupier.
[7]
Aggrieved by the turn of events, the Association instituted in
the Land Claims Court an application for leave to intervene.
The Association also applied for rescission of the amended order in
terms of section 35(11) of the Act.
[4]
It sought to have the varied order set aside, including the order of
7 December 2012 in terms of which the smaller land was
awarded to the
Sadiens.
[8]
The Land Claims Court held that the Association had no direct
and substantial interest in the remedy sought by the Sadiens.
That Court concluded that on the facts the Association had no
interest in the subject-matter of the case which was the restoration
of land to the Sadiens.
Intervention
[9]
It is now settled that an applicant for intervention must meet
the direct and substantial interest test in order to succeed.
What constitutes a direct and substantial interest is the legal
interest in the subject-matter of the case which could be
prejudicially
affected by the order of the Court. This means
that the applicant must show that it has a right adversely affected
or likely
to be affected by the order sought.
[5]
But the applicant does not have to satisfy the court at the stage of
intervention that it will succeed. It is sufficient
for such
applicant to make allegations which, if proved, would entitle it to
relief.
[6]
[10]
If the applicant shows that it has some right which is
affected by the order issued, permission to intervene must be
granted.
For it is a basic principle of our law that no order
should be granted against a party without affording such party a
pre decision
hearing. This is so fundamental that an order
is generally taken to be binding only on parties to the litigation.
[11]
Once the applicant for intervention shows a direct and
substantial interest in the subject-matter of the case, the court
ought to
grant leave to intervene. In
Greyvenouw CC
this principle was formulated in these terms:
“
In
addition, when, as in this matter, the applicants base their claim to
intervene on a direct and substantial interest in the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in the absence of parties
having such legally recognised interests.”
[7]
[12]
While it is true that the Association had no interest in the
subject-matter of the claim by the Sadiens and that the order issued
by the Land Claims Court on 7 December 2012 affected none of its
interests, the same cannot be said about the variation of
8 February
2013. The varied order had the effect of transferring Erf 142
to Mr Sedick Sadien without determination of compensation
to the
Association.
[13]
Section 35(9) affords lawful occupiers of state land like the
Association the right to claim compensation when the land they occupy
is awarded to a claimant for restitution of land rights.
Section 35(9) provides:
“
Any
state-owned land which is held under a lease or similar arrangement
shall be deemed to be in the possession of the State for
the purposes
of subsection (1)(a): Provided that, if the Court orders the
restoration of a right in such land, the lawful occupier
thereof
shall be entitled to just and equitable compensation determined
either by agreement or by the Court.”
[14]
What this provision seeks to achieve is to mandate the Land
Claims Court to order restoration of rights even where the state land
is occupied by a third party. It accomplishes this objective by
deeming that such land is in the possession of the State
for purposes
of restoration in terms of section 35(1).
[8]
Compensation under section 35(9) is payable to lawful occupiers
only. It must be just and equitable compensation
determined by
the parties themselves by means of an agreement, failing which by the
Land Claims Court.
[15]
In the written submissions the Commissioner contended that the
Association was not an interested person envisaged in section 29(1)
of the Act because it merely had a financial interest in the
litigation concerning restoration of land to the Sadiens.
[9]
This is not true. Section 35(9) confers an entitlement upon
lawful occupiers to have just and equitable compensation
determined
if transfer of the land they occupy is ordered. It is the
determination of the right to compensation that gives
rise to a
direct and substantial interest.
[16]
Here it is common cause that the Association was a lawful
occupier of Erf 142 at the time the variation order was made.
Also
it cannot be disputed that section 35(9) afforded it a right to
compensation and that restoration of rights in state land lawfully
occupied was subject to determination of compensation to the
Association. The Association alleged that it had made
improvements
valued at R7.5 million. It is also common
cause that no compensation to the Association was agreed upon and
that none
was determined by the Land Claims Court before ordering
that Erf 142 be transferred to Mr Sedick Sadien.
[17]
It cannot be gainsaid that the varied order adversely affected
the Association’s right to compensation. Section 35(9)
authorises transfer of the state land to a claimant without the
involvement of the lawful occupier of the land in question.
But
the section safeguards the occupier’s interests by conferring
on it an entitlement to just and equitable compensation.
In
these circumstances entitlement to compensation is the pre-condition
for authorising transfer. In the absence of an agreement,
the
lawful occupier is entitled to be heard on what would constitute just
and equitable compensation.
[18]
Whilst the Court was empowered by section 35(1) to order the
transfer, its order was subject to the provision in section 35(9)
which
required that the Association be paid just and equitable
compensation. Absent the Association’s compensation, it
cannot
be said that the Court’s variation order was consonant
with the proviso. The Association was therefore entitled to
intervene and enforce its right to compensation. It is in this
limited sense that it had a direct and substantial interest
in the
proceedings. This interest does not include the question
whether Erf 142 must be transferred to the Sadiens.
Its
interest is restricted to the entitlement to just and equitable
compensation which must be determined by agreement or by the
Land
Claims Court.
[19]
It is apparent from the papers that the Association
misconceived the extent of its interest and sought the rescission of
the varied
order. As shown here it had no legal interest in the
transfer of the land. Therefore the Land Claims Court was right
in holding that the Association had no direct and substantial
interest in the property in question. But that Court was in
error when it overlooked the statutory right to compensation
conferred on a lawful occupier like the Association and that the
transfer of the property was subject to the determination of just and
equitable compensation. It follows that it was not necessary
to
rescind the varied order. What was required was to allow the
Association to intervene solely for the purpose of determining
compensation.
[20]
The fact that a final order had already been issued at the
time of the application for intervention is immaterial.
[10]
Once it was shown that the Association was a lawful occupier of Erf
142, the Land Claims Court should have granted it leave
to intervene
for purposes of considering the issue of compensation only. It
follows that that Court erred in dismissing the
application to
intervene.
Costs
[21]
The Association has succeeded in its appeal and therefore it
is entitled to costs. However, I do not consider it fair to
order
the Sadiens to pay any of those costs. Their interest in
these proceedings was to defend the order that transferred the land
in question to Mr Sedick Sadien. They conceded the
Association’s right to compensation. The same cannot be
said
about the Commissioner. He advanced the incorrect argument
to the effect that section 35(9) afforded the Association a mere
financial interest which did not entitle it to intervene. That
argument has been rejected.
Order
[22]
In the result the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Land Claims Court is set aside.
4. The South African Riding for the Disabled Association is allowed
to intervene for the purpose of determining compensation payable
to
the Association.
5. The matter is remitted to the Land Claims Court for determination
of compensation payable to the South African Riding for the
Disabled
Association.
6. The Regional Land Claims Commissioner is ordered to pay costs in
the Land Claims Court and this Court.
[1]
22 of 1994.
[2]
Section 25(7) provides:
“A person or
community dispossessed of property after 19 June 1913 as a result of
past racially discriminatory laws or practices
is entitled, to the
extent provided by an Act of Parliament, either to restitution of
that property or to equitable redress.”
[3]
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027
(CC).
[4]
Section 35(11) provides:
“The Court
may, upon application by any person affected thereby and subject to
the rules made under
section
32
, rescind or vary any order or judgment granted by it—
(a)
in the absence of the person
against whom that order or judgment was
granted;
(b)
which was void from its inception
or was obtained by fraud or
mistake common to the parties;
(c)
in respect of which no appeal
lies; or
(d)
in the circumstances contemplated
in section
11(5):
Provided that where
an appeal is pending in respect of such order, or where such order
was made on appeal, the application shall
be made to the
Constitutional Court or the Appellate Division of the Supreme Court,
as the case may be.”
[5]
Snyders v De Jager (Joinder)
[2016] ZACC 54
;
Minister of
Local Government and Land Tenure v Sizwe Development: In re Sizwe
Development v Flagstaff Municipality
1991 (1) SA 677
(Tk) (
Sizwe
Development)
.
[6]
Id at 679A.
[7]
Nelson Mandela Metropolitan Municipality v Greyvenouw CC
2004
(2) SA 81
(SE) at para 9.
[8]
Section 35(1) of the Act provides:
“The Court
may order—
(a) the
restoration of land, a portion of land or any right in land
in
respect of which the claim or any other claim is made to the
claimant or award any land, a portion of or a right in land to
the
claimant in full or in partial settlement of the claim and, where
necessary, the prior acquisition or expropriation of the
land,
portion of land or right in land: Provided that the claimant shall
not be awarded land, a portion of land or a right in
land
dispossessed from another claimant or the latter’s ascendant,
unless—
(i)
such other claimant is or has been granted restitution
of a right in
land or has waived his or her right to restoration of the right in
land concerned; or
(ii) the
Court is satisfied that satisfactory arrangements have been
or will
be made to grant such other claimant restitution of a right in land;
(b) the
State to grant the claimant an appropriate right in alternative
state owned land and, where necessary, order the State to designate
it;
(c) the
State to pay the claimant compensation;
(d) the
State to include the claimant as a beneficiary of a State
support
programme for housing or the allocation and development of rural
land;
(e) the
grant to the claimant of any alternative relief.”
[9]
Section 29 of the Act provides:
“(1) Any
interested person, including an organisation, may apply to the
Court
for leave to intervene as a party to any proceedings before the
Court.
(2) The
State shall have the right to intervene as a party to all
proceedings before the Court.
(3) Any
party appearing before the Court may do so in person or may
be
represented by an advocate or attorney.
(4)
Where a party can not afford to pay for legal representation
itself,
the Chief Land Claims Commissioner may take steps to arrange legal
representation for such party, either through the
State legal aid
system or, if necessary, at the expense of the Commission.”
[10]
Sizwe Development
above n 5 at 679C. See also
Aquater
(Pty) Ltd v Sacks
1989 (1) SA 56
(A) and
United Watch of
Diamond Co v Disa Hotels
1972 (4) SA 409
(C).