IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable/Not Reportable
Case no: 18176/2024
In the matter between:
BHEKA PHAMBILI TYANTSI FARMING (PTY) LTD Applicant
and
DEPARTMENT OF LAND REFORM
AND RURAL DEVELOPMENT First Respondent
MINISTER OF LAND REFORM
AND RURAL DEVELOPMENT Second Respondent
THE DISTRICT BENEFICIARY SELECTION
COMMITTEE: DEPARTMENT OF LAND
AND RURAL DEVELOPMENT Third Respondent
THE PROVINCIAL TECHNICAL COMMITTEE:
DEPARTMENT OF LAND REFORM
AND RURAL DEVELOPMENT Fourth Respondent
THE NATIONAL LAND ACQUISITION
AND ALLOCATION COMMITTEE:
DEPARTMENT OF LAND REFORM
AND RURAL DEVELOPMENT Fifth Respondent
NUVELD FARMING EMPOWERMENT
ENTERPRISE (PTY) LTD Sixth Respondent
Neutral citation: Bheka Phambili Tyantsi Farming (Pty) Ltd v Department of
Land Reform and Rural Development; Minister of Land Reform
and Rural Development; The District Beneficiary Selection
Committee: Department of Land Reform and Rural
Development; The Provinical Technical Committee:
Department of Land Reform and Rural Development; The
National Land Acquisition and Allocation Committee:
Department of Land Reform and Rural Development ; Nuveld
Farming Empowerment Enterprise (Pty) Ltd
Coram: MANGCU-LOCKWOOD J
Heard: 04 June 2026
Delivered: 02 September 2026
__________________________________________________________________
ORDER
__________________________________________________________________
The following order is made:
1. The application is dismissed.
2. The applicant shall pay the costs of the sixth respondent, on Scale C,
including the costs of senior counsel.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] This is an opposed application in which the applicant challenges various
decisions of the first respondent (Department) concerning the allocation of a lease
in respect of a group of state -owned farms collectively known as ‘the Plateau
Farm’.
[2] In 2009 the applicant was awarded a lease for one of the Plateau Farms, the
Rondawel Farm, as part of the Department’s land reform programme in terms of
the Land Reform: Provision of Land Assistance Act 126 of 1993 (the Act). At first,
the lease was for a period of three years, and it was extended for a further five
years until its termination in November 2017.
[3] In November 2019 the Department decided to lease the whole Plateau Farm
to a single entity for thirty years - a decision referred to in these proceedings as
‘the regime change decision’ . The decision was taken by the then Chief Director:
Western Cape Provincial Shared Services Centre (PSSC), Ms Fortuin. O n 6
December 2019 the Department invited bids in that regard , and the applicant and
the sixth respondent (Nuveld) submitted applications.
[4] Three successive selection committees of the Department – the third, fourth
and fifth respondents - considered the bids on 14 January 2020, 3 March 2020 and
21 May 2020 , respectively, and recommended the appointment of Nuveld as the
successful beneficiary for award of the lease . The last of these bodies, the fifth
respondent (NLAAC) referred its recommendation to the PSSC for a final
decision.
[5] On 23 August 2020 the second respondent ( Minister) instructed the Acting
Chief Director of PSSC, Dr Mbekeni - Ms Fortuin having left - to investigate
complaints received regarding alleged irregularities at the Plateau Farm. On 27
September 2020, Dr Mbekeni decided not to award the 30-year lease to Nuveld.
[6] There were further investigations conducted after Dr Mbekeni’s decision.
One was by an internal task team established on 2 December 2020 by the
Department, which concluded that the farming beneficiaries such as the applicant
were left worse off than they were before moving onto the farm. Another was an
independent investigation by Ms Rowena Joemat, which produced a report on 7
June 2021, with similar conclusions as the internal task team investigations.
[7] On 9 February 2023 the Deputy Director General: Land Redistribution and
Tenure Reform, Mr Ndove, addressed a memorandum to the Minister observing,
amongst other things that the decision not to renew the expired leases and to evict
the lessees was against the policy of the Department. On 21 February 2023 the
Minister decided not to award the 30-year lease to Nuveld.
B. THE RELIEF SOUGHT
[8] It was on the basis of the above summary of facts that these proceedings
were launched by the applicant in August 2024 , and it sought to review the
following decisions as set out in the notice of motion:
1.1 The Department’s decision ‘to unilaterally change the regime for the leasing of the
five farms of Plateau Farm from being leased to different entities … and to have it
leased to one entity and be farmed as a single unit’ (the regime change decision);
1.2 the Department’s decision to have the site meeting relating to the submission of
bids for a 30-year lease of the Plateau Farms held at Matjieskloof farm;
1.3 the District Beneficiary Selection Committee’s (DBSC’s) 3 March 2020 decision
recommending the allocation of the Plateau Farm to Nuveld;
1.4 the Provincial Technical Committee’s decision to support the decision of the
DBSC;
1.5 the National Land Acquisition and Allocation Control Committee ’s (‘NLAACC’)
decision to support the DBSC decision.
[9] Pursuant to a court order of 12 February 2025, the Minister and the
Department delivered a record in terms of Uniform Rule 53 on 26 March 2025.
The applicant neither supplemented its founding papers, nor amended its notice of
motion. After the respondents delivered their answering affidavits the applicant
delivered two replying affidavits deposed on 22 October 2025 - one in reply to the
State respondents, and the other , to Nuveld. It abandoned the relief set out at
paragraphs 1.2 to 1.5 above and sought to introduce a new claim, namely a
challenge to the Department’s decision to terminate, alternatively not to renew the
applicant’s five-year fixed-term lease (termination relief).
[10] The termination relief is most clearly expressed in the concluding
paragraphs of the replying affidavit to Nu veld's answering affidavit , where the
applicant states that it seeks declaratory relief as follows:
‘102.1 The termination of the applicant's leasehold rights emanating from the expired
five-year leases and all other beneficiaries entities in 2017 was inconsistent
with the 2013 policy and unlawful.
102.2 The PSSC’s decision to change the regime of the lease subsequent to the
unlawful termination of the leasehold rights is unlawful and a nullity ab initio;
102.3 The PSSC decision is set aside ab initio and the applicants and other lessees’
leasehold rights are reinstated on the same terms as the expired lease, subject to
negotiation of new extended leases on such terms as agreed between the
parties.’1
[11] In their heads of argument dated 22 May 2026 and 25 May 2026 the
respondents objected to the purported inclusion of the termination relief . They
stated that the applicant was seeking to make out a new case in reply which was
not foreshadowed in the founding papers.
[12] On the eve of the hearing , 3 June 2026, the applicant delivered a notice of
intention to amend its notice of motion, as follows:
1 See also replying affidavit to first and second respondents’ answering affidavit, paras 7.4, 17-18, 84 and 86.
‘1 By deletion of prayers 2 to 5 in their entirety and the insertion of the following in
their stead:
2. Declaring that the decisions taken by the first respondent’s unknown officials to
terminate the applicant's lease without complying with the provisions of
paragraph 12.4 and 12.5 of the State Land Leases and Disposal Policy, 2013
[2013 SLLDP] was ultra vires the delegated powers, unlawful conduct, a nullity
ab initio and is set aside forthwith.
2 By deletion of numbers 6 to 8 and the insertion of the consequential numbering 3,
4 and 5 in their stead.’
[13] The notice was not accompanied by a substantive application, which one
would have expected in the light of the respondents’ indication in their heads of
arguments of their intention to object to the purported inclu sion of the termination
relief. Nor was there any explanation for the eleventh-hour delivery of the intended
amendment.
[14] It is also evident that the amendment sought in terms of the notice of 3 June
2026 is a further iteration of the termination relief presaged in the replying
affidavits. While paragraph 102.1 of the replying affidavit quoted above so ught to
declare an inconsistency with the 2013 SLLDP , the notice of 3 June 2026
introduced a claim based on delegated powers.
[15] Given that the effect of the amendment was to substitute the withdrawn
relief with effectively a new case, it is self -evident that the respondents would
require opportunity to deal with the new case. Contrary to what is argued by the
applicant, the purported challenge to the termination decision is not one that may
simply be ‘read in’ as ‘further and/or alternative relief’ sought in paragraph 8 of its
notice of motion. The relief amounts to a new claim which was n either
foreshadowed in the founding papers, nor as a result, was it a case answered by the
respondents. This is impermissible.2
[16] As pointed out by the respondents, the applicant had the benefit of at least 8
months from delivery of its replying affidavit to file, not only the notice of
intention to amend but a substantive application for the amendment sought. The
respondents point to the obvious prejudice they face in that they did not have
opportunity to respond to the new case of a termination relief, which is not only a
new cause of action but has now become a central aspect of the applicant’s case.
[17] The applicant’s counsel argued that the amendment was necessitated by
documents discovered in the rule 53 record delivered by the Department . That,
however, does not assist the applicant because the record was delivered in March
2025, and the applicant elected not to amend its notice of motion in terms of Rule
53(4), nor to file a supplementary affidavit in terms of Rule 53(4) dealing with this
proposed new relief.
[18] Uniform Rule 28 deals with amendments, and it provides as follows:
‘(1) Any party desiring to amend any pleading or document other than a sworn
statement, filed in connection with any proceedings, shall notify all other parties
of his intention to amend and shall furnish particulars of the amendment.
(2) The notice referred to in subrule (1) shall state that unless written objection to the
proposed amendment is delivered within 10 days of delivery of the notice, the
amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely state the
grounds upon which the objection is founded.
2 Somali Association of South Africa and Others v Refugee Appeal Board and Others 2022 (3) SA 166 (SCA) para
97. Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) para 242 - 245.
(4) If an objection which complies with subrule (3) is delivered within the period
referred to in subrule (2), the party wishing to amend may, within 10 days, lodge
an application for leave to amend.
(5) If no objection is delivered as contemplated in subrule (4), every party who
received notice of the proposed amendment shall be deemed to have consented to
the amendment and the party who gave notice of the proposed amendment may,
within 10 days of the expiration of the period mentioned in subrule (2), effect the
amendment as contemplated in subrule (7).
(6) Unless the court otherwise directs, an amendment authorized by an order of the
court may not be effected later than 10 days after such authorization.
(7) Unless the court otherwise directs, a party who is entitled to amend shall effect
the amendment by delivering each relevant page in its amended form.
…
(9) A party giving notice of amendment in terms of subrule (1) shall, unless the court
otherwise directs, be liable for the costs thereby occasioned to any other party.
(10) The court may, notwithstanding anything to the contrary in this rule, at any stage
before judgment grant leave to amend any pleading or document on such other
terms as to costs or other matters as it deems fit.’
[19] An observation that may be made regarding the notice delivered by the
applicant on 3 June 2026 is that it makes no provision for timeframes to enable the
respondents to object, if they so wish, contrary to sub -rule (2) above. Moreover,
by delivering the notice of intention to amend at such a late hour, the applicant
precluded the respondents from the benefit of sub -rules (3) and (4) above, despite
its knowledge that they intended to object to the purported amendment. It is as if
the applicant took it as a foregone conclusion that it would be granted the
amendment, despite the established authorities stating that an amendment is not
there for the taking and lies within the discretion of the court.3
there for the taking and lies within the discretion of the court.3
[20] Generally, our law allows for amendments, unless the amendment sought is
not one which can be cured by an appropriate order for costs, or one in which the
3 See Moolman v Estate Moolman & another 1927 CPD 27 at 29.
parties can be put back, for the purposes of justice, in the same position as they
were when the notice of motion was filed. 4 In this case, however, the applicant was
neither willing to have the matter postponed in order to accommodate the
purported amendment, nor to pay the costs occasioned by such postponement, both
issues which the Court pertinently raised with the applicant’s counsel. He indicated
that the applicant did not seek postponement of the matter and that, if the
amendment were not to be permitted, then the applicant was willing to proceed
with the matter unamended because his client did not wish to delay the proceedings
any further.
[21] The substance and manner in which the case is sought to be amended is
prejudicial to the respondents in a way that cannot be ameliorated by an order as to
costs. One example is that the 2013 SLLDP was not annexed to the applicant’s
papers. On the eve of the hearing the applicant forwarded to the parties and the
Court a version of the document, but during the hearing yet another version was
produced, which created uncertainty regarding which version of document was
applicable at the time of the impugned decisions. Since none of this was placed
under oath before Court, the factual and evidential basis for the applicant’s claim
remains unestablished. The same applies in respect of the aspect of the termination
challenge which relies on compliance with delegated powers. No system of
delegations was attached to the papers.
[22] All of this shows that the respondents could not have been aware of the case
they were called upon to meet in regard to the termination challenge , to their
prejudice. This is in addition to the fact that th e termination challenge itself had
4 See Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para 16. Moolman v
Estate Moolman & another 1927 CPD 27 at 29. Affordable Medicines Trust and Others v Minister of Health and
Another 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) para 9.
evolved by the date of the hearing , as I have already observed . As the Supreme
Court of Appeal (SCA) held in Somali Association of South Africa -
‘… it is unfair and unprecedented for a litigant to seek extensive substantive relief not
foreshadowed in the notice of motion, especially when what is sought is not dealt with on
affidavit, thus not providing an opponent an opportunity to deal with it.’
[23] Given that the applicant did not wish for the matter to be postponed or to
tender costs for such postponement, there is no equitable manner in which the
purported amendment can be dealt with, since the respondents will be precluded
from responding to the new claim.
[24] Lastly, although not raised before me, I have considered the importance of
having the applicant's true dispute - if that is what the termination challenge
intends to introduce - ventilated by the Court. I am, however, constrained by the
choices made by the applicant as the dominus litus , on the advice of its legal
representatives. For all the reasons already discussed, it is not in the interests of
justice to allow the amendment sought, and the Court exercised it discretion
against granting it.5
C. UNREASONABLE DELAY
[25] There are other maladies a fflicting the applicant’s case, one of which
concerns the unreasonable delay in challenging the two decisions that are now the
subject of the application. In the instance of the termination decision, the challenge
was raised some seven years after the decision was made, and in the case of the
regime change, five years later.
5 Caxton Ltd. and Others v Reeva Forman (Pty) Ltd. and Another (393/88) [1990] ZASCA 47; 1990 (3) SA 547
(AD); [1990] 2 All SA 300 (A) (17 May 1990) at 565G.
[26] Whether the review is brought in terms of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) or the principle of legality, the law permits the Court
to determine whether there was an unreasonable delay and, if so, whether it should
be condoned, taking into account the interests of justice6. The reasonableness of the
delay, must be assessed on the basis of (among other things) the explanation
offered for it. If the delay can be explained and justified, then it is reasonable, and
the merits of the review can be considered. If there is an explanation, it must cover
the entirety of the delay. Where there is no explanation, the delay will necessarily
be unreasonable.7
[27] The periods of delay in challenging both decisions are considerable. What
the applicant states in the founding papers is that it was never informed of the
impugned decisions until March 2024 when it discovered the DBSC’s
recommendation. That, however, is contradicted by the facts set out in the founding
affidavit which make it clear that the applicant was aware of both decisions by
November 2019. In reply, it is stated that the applicant was not aware of the
reasons for the decisions. Apart from the fact that this is a different reason, there is
also no indication that the applicant has at any stage requested the reasons . In any
event, it does not change the fact that the applicant was aware of the decisions by
November 2019, from which it is required to account for the period of delay.
[28] The applicant states that it elected to first attempt to resolve the matter
through mediation, as recommended in the investigative report compiled by Ms
Joemat. But these proceedings were launched in August 2024, three years after that
6 South African National Roads Agency Ltd v Cape Town City 2017 (1) SA 468 (SCA), para 80.
7 Buffalo City, para 52.
report was furnished. In any event, the applicant’s conduct betrays this stated
reason for delay because it participated in the application process for the thirty -
year lease in 2019 and 2020, thus indicating it accepted the termination of its lease
and the regime change decision, not that it was challenging the decisions.
[29] This conduct indicates, not only that the applicant was aware of both
impugned decisions, but that it was willing to follow the decisions and processes
outlined by the Department. As Nuveld points out, the applicant is at once
approbating and reprobating, contrary to the legal position that no party can take
up two positions which are inconsistent with one another. 8 This doctrine applies
with equal force to an entity which bids for a contract with a government agency.
Once it has elected to bid, it cannot subsequently challenge the lawfulness of the
bid process.9
[30] Given the excessive delays incurred, the explanation furnished for the
applicant’s delay is inadequate and does not assist in placing the Court in a position
to exercise its discretion regarding whether or not to grant the condonation. There
is also no basis to conclude in the applicant ’s favour that it was somehow not
legally presented such that it could not place the relevant facts and circumstances
on affidavit. As I have indicated , the applicant has since the launch of these
proceedings been legally represented , and to the extent that there was need to
supplement its condonation it could have done so.
8 See Rademeyer v Ferreira 2025 (2) SA 1 (CC) para 66; Twenty-Third Century Systems (Pty) Ltd and another v
SAP Africa Region (Pty) Ltd 2025 (6) SA 247 (SCA) para 13 fn 3.
9 IN2IT Tech (Pty) Ltd v Gijima Holdings (Pty) Ltd & Others ZAGPJHC 478 paras 39 – 40; TMT Services &
Supplies (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Another [2024] ZAWHC 93 paras 48 - 49.
[31] On other hand, the state respondents state that they have been substantially
prejudiced by the delay, because Ms Fortuin has left the Department since the
November 2019 regime change decision was made, and given that the review
application was only launched in August 2024, it has not been possible to establish
the reasons for her decision.
[32] Lastly, and in any event, I do not consider it in the interests of justice to
grant the cond onation in light of the poor prospects of success of the regime
change challenge, an issue to which I now turn.
D. THE REGIME CHANGE DECISION
[33] Similar to the termination challenge, t he applicant’s case in respect of the
regime change decision evolved in the pleadings. According to the founding
affidavit, the review grounds in respect of that decision were procedural unfairness,
the failure to consider the aim of decongesting the commonage, and the decision
being taken as a result of the unauthorised dictates of the previous owner, Professor
Sinclair. However, in the applicant’s heads of argument the regime change case is
now squarely based on the argument that the decision-maker, Ms Fortuin, acted
ultra vires the powers delegated to her in terms of a delegation under s 15(1) of the
Act, read together with the SDLLP.
[34] But even before these proceedings were launched , the Department and the
Minister reached similar conclusions as those now advanced by the applicant for
the regime change challenge . As already adverted, both of the investigations
commissioned by the Department concluded that the regime change decision was
contrary to the policy of the Department and it left the applicant and other
beneficiaries in a worse position than before , leading to the Minister’s decision not
to award the 30 -year lease to Nuveld. The Minister’s decision also endorsed a
memorandum prepared by the Deputy Director General: Land Redistribution and
Tenure Reform, Mr Ndove, who stated as follows after receiving Ms Joemat’s
report:
‘…the officials misinterpreted the land reform policies especially the State Land, Lease
and Disposal Policy (SLLDP). Chapter 2, paragraph 12.5 of the SLLDP of 2013 outlines
clearly that at the expiration of the initial 5 -year period, the Director: Land Reform shall
produce and present a report to the National Land Allocation and Recapitalisation
Control Committee (NLARCC) and give reasons why the lessee shall be removed from
the list of the lessees who are on probation. It is only under exceptional circumstances
and as approved by NLARCC that a lease can be terminated or not renewed, but the
expiry of the lease cannot be the reason to evict a lease. The Department has not provided
any reasons for not renewing the leases but opted to advertise the farms thereby
displacing most of the beneficiaries and defeating the initial purpose of decongesting the
commonage area.
It should be noted that the intention of entering into short term leases was informed by
the policies of the time, but the intention was never to terminate their leases on the
expiration of the short-term leases but rather to offer them long-term leases.
This approach by the PSSC is completely opposite to the Department’s approach under
the State Land Allocation Project where leases that have expired more than 10 years ago
are renewed. The expiry of the lease cannot be blamed on the lessee, and the burden to
renew the lease is on the Department.’
[35] Other findings contained in Ms Joemat’s report which were approved by the
Minister were stated as follows:
‘The original purpose of and rationale for the acquisition of Plateau Farms was to
decongest the Beaufort West commonage, which the farmers were using for grazing of
decongest the Beaufort West commonage, which the farmers were using for grazing of
their livestock. It has become apparent that that original purpose of the project was
abandoned when BONO Farm Management decided that beneficiaries run the business as
a single commercial entity.
The investigation [of Ms Joemat] further established that the decision to run the farm as a
single business unit, disempowered beneficiaries in the process. As beneficiaries realized
that they had less control and say over the management of the business, they wanted to
return to the original business plan of five separate farms. However, this request was not
recognised nor entertained by their strategic partner, BONO, nor by the department
officials managing the project.’
[36] The applicant’s present basis for the regime change challenge is to the same
effect as the investigative conclusions above. A s a result, the Department and the
Minister state that they agree with the applicant that a 30 -year lease in respect of
the Plateau Farm should not be awarded to Nuveld. This is why the Minister says
she reversed the earlier recommendations to award the 30 -year lease to Nuveld.
The respondents accordingly state that the impugned regime change decision was
superseded and it no longer exists.
[37] In fact, the State respondents are currently opposing a related matter
instituted by Nuveld in this Division on 5 April 2023 for the review of Dr
Mbekeni’s decision of 27 September 2020 not to approve the 30 -year lease as
being unlawful. The relevant pleadings of the review application form part of the
record in these proceedings . The applicant does not dispute the Department ’s
assertions that it intends to enable the former beneficiaries such as the applicant to
return to the Plateau Farm once Nuveld’s review application has been determined.
[38] In response to the mootness point, the applicant points to ss 15(1) and (5) of
the Act which provide as follows:
‘(1) The Minister may, on such conditions as he or she may determine –
(a) delegate to any officer in the Department of Land Affairs any power conferred upon
the Minister by this Act, except the power under section 14 to make regulations;
(b) authorize any such officer to perform any duty imposed upon the Minister by this Act.
…
(5) Any delegation of a power or authorization to perform a duty under this section –
(a) shall be done in writing;
(b) shall not prevent the person who effected the delegation or granted the authorization
from exercising that power of performing that duty himself or herself;
(c) may at any time be withdrawn in writing by that person.’
[39] The applicant states that the SLLDP constitutes conditions determined by the
Minister in terms of s 15(1) of the Act. It states that the regime change decision
was an administrative decision taken in terms of the empowering provisions of the
Act read with the policy guidelines issued by the Minister in order to control the
management of the exercise of such delegated powers. It says ss (1), read with (5)
precluded the Minister from reserving any powers for herself once she had
delegated the decision regarding the regime change to Ms Fortuin as the PSSC, and
that the Minister’s purported cancellation of that decision amounted to an unlawful
and ultra vires appeal. On the basis of Oudekraal10 and Mgijima11 the decision of
Ms Fortuin stands until set aside. It is a decision which is final in effect , says the
applicant, and it was implemented through the advertis ement process for the 30 -
year lease and remains binding. This, according to the applicant, is indicated by the
ongoing litigation between the State respondents and Nuveld which is aimed at
challenging that decision . The respo ndents, according to the applicant , were
required to bring a ‘self-review’ of Ms Fortuin’s decision.
[40] The Department argues that the change of the leasing regime to a single
entity for thirty years was not an absolute requirement and it could be amended in
10 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1
(SCA); 2004 (6) SA 222 (SCA) (28 May 2004).
11 State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (CCT254/16) [2017] ZACC
40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (14 November 2017)
the discretion of the Department. It states that the decision of Ms Fortuin was not
final in effect, and it was open to the Minister to reverse it , which she did. Nuveld
argues that the regime change decision was a policy decision which does not
constitute administrative action.
[41] The difficulty in determining th is aspect of the dispute arises from the
evolution of the applicant’s case and the resultant lack of evidence relating to the
new case. The regime change challenge, as contained in the founding papers, was
not aimed at challenging Ms Fortuin’s decision. Nor, as I have already stated, was
it based on non -compliance with delegated powers or even the SLLDP. And the
decision challenged in this regard encompassed both the change from multiple
leases to one lease and the award of the new 30-year lease. This is apparent from
numerous paragraphs in the founding affidavit.12
[42] That approach partly explains why, in answer to the applicant’s case, the
respondents state that the decision has been superseded by the Minister. First, Dr
Mbekeni, as the incumbent PSSC at the time, refused to award the 30 -year lease to
Nuveld. And to the extent that there was a decision for the Minister to make
regarding the award of the lease after Dr Mbekeni’s decision, she made a
determination that was to the same effect as Dr Mbekeni. One interpretation of this
response is that Dr Mbekeni’s decision not to award the lease subsumed the prior
decision of the regime change because, even in the applicant’s founding papers, the
two decisions were part of one determination . What is not in dispute is that when
Dr Mbekeni made a decision not to award the lease to Nuveld, he was exercising
12 See paras 59, 87 – 88, 90.1 and 119 of the founding affidavit.
delegated powers in terms of s 11, read with s 15(1) of the Act. Section 11 provides
for the Minister’s power to dispose of certain land, as follows:
‘The Minister may, on such terms and conditions as he or she may deem fit, for the
purposes of this Act, sell, exchange, donate or lease any land designated or acquired
under this act or, if the land is no longer required for the purposes of this act, for any
other purpose.’
[43] The problem is that there is no copy of the applicable delegation in this
regard. In court, Nuveld’s counsel produced with his heads of argument, a copy of
delegations which was signed by the Minister on 23 May 2014. Given this date,
and the fact that these delegations were not produced under oath, or by the State
respondents who would be expected to know the true factual position , the Court
remains uncertain whether they were the applicable delegations as at November
2019, when the regime change decision is said to have been made , and I am
accordingly loathe to take them into account . That is especially so, given the
confusion created by different versions of the delegations and the SLLDP produced
in Court on the day of the hearing.
[44] What is notable though is that this version of delegations distinguishes
between the ‘pure’ powers provided in s 11 and those flowing from them. The
delegation of the ‘pure’ powers of s 11 is provided for at Item 29, and those powers
are not delegated to the PSSC, but to, amongst others, the Deputy Director -
General: Land Redistribution and Development and the Deputy Director - General:
Land Tenure and Administration, such as Mr Ndove, but they ‘must be approved
by the [National Land Allocation and Recapitalization Control Committee]
(NLARCC) and concurred to by the ‘Minister's Co -ordinating Meeting] (MCM)’,
as follows:
‘Sell, exchange, donate, lease, award or otherwise dispose of, or encumber any property
contemplated in this Act, for purposes of this Act or, if the land is no longer required for
the purposes of this Act, for any other purpose.’
[45] On the other hand, Item 28 provides for consequential powers, which are
delegated to the PSSC with the condition that the decision ‘must be approved by
NLARCC and concurred to by the MCM, as follows:
‘Determine terms and conditions for the sale, exchange, donation, lease, award, or other
disposal or encumberance of any property contemplated in this Act, for the purposes of
this Act or, if the land is no longer required for the purposes of this Act, for any other
purpose.’
[46] There is no record, information or evidence before this Court regarding the
entity referred to as the NLARCC above. To further muddy the waters, the letter of
the Minister dated 21 February 2023 referred to a similar system of delegations ,
but which involved the NLAACC, as follows:
‘The signing and finalisation of lease contracts is delegated to Provincial Shared
Services Centre (PSSC) Chief Director subject to the approval by the National Land
Acquisition and Allocation Control Committee (NLAACC)...’
[47] What the letter indicates is that, to the extent that the PSSC possessed
delegated powers, its decision required the approval of the NLAACC. The Court is
not seized with delegations containing such a requirement. The applicant seems to
have adopted the language used in some of the documents contained in the record
without making the case by referring to specific documents and attaching them.
[48] Reverting to Ms Fortuin’s decision, it is common cause that the record of her
decision is no longer available, due to the time that has elapsed since it was made.
It is also common cause that t he reasons for Ms Fortuin’s decision are unknown to
both the applicant and the State respondents. It is not possible to review a decision
whose record is not before Court. What is required is a proper consideration of the
nature of the decision taken by Ms Fortuin, by reference to, amongst other things,
the system of delegations applicable and the record of the decision itself. There is
no record of her decision, let alone a concurring decision of another entity such as
the NLAACC or the NLARCC, whichever may be applicable.
[49] It is only if there was such evidence that the Court would be in a position to
determine whether, in the language of the doctrine of functus officio, the decision
was final,13and resultantly, whether the decision is moot or not. The applicant has
simply failed to establish its case on this score.
[50] There is also the issue of the applicable SLLDP, the other leg of the
challenge, which the applicant has failed to identify. That alone is fatal because the
parties do not know the case to which they are called upon to respond. But in any
event, the Constitutional Court has made it clear that policy serves as a guide to
decision-making and does not inflexibly bind officials and its objectives are to
achieve reasonable and consistent decision-making; provide a guide and a measure
of certainty to the public; and avoid fresh inquiries into every identical request or
need for the exercise of public power.14
13 Mncwabe v President of the Republic of South Africa and Others; Mathenjwa v President of the Republic of South
Africa and Others (CCT 102/22; CCT 120/22) [2023] ZACC 29; 2023 (11) BCLR 1342 (CC); 2024 (1) SACR 447
(CC) (24 August 2023) paras 42 – 49.
14 Arun Property Development (Pty) Ltd v Cape Town City 2015 (2) SA 584 (CC), paras 46 – 47.
[51] Another significant departure from the founding papers is that the applicant
has abandoned any reliance on the provisions of the PAJA which was the main
basis for its case, with legality being an alternative basis. Even though the
applicant claims that the impugned conduct constitutes administrative action, it
now places reliance solely based on the principle of legality instead of s 6 of the
PAJA.15
[52] For all these reasons, the applicant has failed to make out a case for its relief.
In rejecting the applicant’s case in this regard, I also take into account that it is not
disputed that the State respondents, being in agreement with the conclusions of the
applicant that the 30 -year lease should not be awarded, intend to facilitate the
return of farmers such as the applicant to the leasehold rights. In effect, the
decision sought to be reversed was halted based on the same considerations. I,
however, make no determination regarding whether or not the decision is moot,
because of the failure to establish the necessary evidence as discussed.
[53] As regards costs, t he respondents do not seek costs against the applicant, in
recognition of the Biowatch16 principle. I am in agreement that the principle
applies in relation to the State responde nts. However, Biowatch does not shield a
losing party from paying the costs of a private litigant. Even though the applicant
states it did not seek any relief against Nuveld, the latter had a direct and
substantial interest in this litigation which stood to be affected. The applicant does
15 Cf Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] 2 All SA 311
(SCA) paras 27 – 28, citing Minister of Health and another v New Clicks SA (Pty) Ltd and others (Treatment Action
Campaign and Innovative Medicines SA as amici curiae) 2006 (2) SA 311 (CC) paras 95 – 97; State Information
Technology Agency SOC v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA); paras 33– 38.
Technology Agency SOC v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA); paras 33– 38.
16 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232 (CC) ;
2009 (10) BCLR 1014 (CC) (3 June 2009)
not deny the connection between the issues raised in these proceedings and those
arising in the review proceedings between Nuveld and the State respondents.
There is no reason why Nuveld should not recoup its costs.
E. ORDER
[54] In the result, the following order is made:
a. The application is dismissed.
b. The applicant shall pay the costs of the sixth respondent, on Scale C,
including the costs of senior counsel.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
Appearances:
For applicant : M. Titus
Instructed by: M. Maguga, Maguga Attorneys
For first to fifth respondents: P. Hathorn SC
A. Toefy
Instructed by L. Golding, State Attorney
For sixth respondent: G. Budlender SC
Instructed by C. van Schalkwyk, Legal Resources Centre