1
THE LAND COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case No LCC 37/2003
Before: Du Plessis AJ and Bishop AJ
Heard on: 19 March 2026
Further submissions on: 31 March 2026
Delivered on: 19 August 2026
In the matter between:
MACASSAR LAND CLAIMS COMMITTEE Plaintiff
and
MACCSAND CC First Defendant
THE GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA
Second Defendant
MINISTER OF LAND AFFAIRS Third Defendant
CITY OF CAPE TOWN Fourth Defendant
MINISTER OF LOCAL GOVERNMENT AND HOUSING Fifth Defendant
THE REGIONAL LAND CLAIMS COMMISSIONER
Sixth Defendant
THE MUSLIM JUDICIAL COUNCIL Seventh Defendant
(1) REPORTABLE: Yes☒/ No ☐
(2) OF INTEREST TO OTHER JUDGES: Yes☒ / No ☐
(3) REVISED: Yes ☐ / No ☒
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CLIVE AUBRYT FIGAJI
GEOFFREY LANE FIGAJI
MARIANNA LORETA FIGAJI
Eighth Defendant
THE REGISTRAR OF DEEDS
Ninth Defendant
THE SURVEYOR GENERAL
Tenth Defendant
THE CAMMES DARRIES HERITAGE LANE TRUST Eleventh Defendant
ORDER
1. It is declared that the Seventh and Eleventh Defendants’ counterclaims are
“claims” as defined in section 1 of the Restitution of Land Rights Act 22 of 1994.
2. The first issue separated in the order of 16 August 2024 will be determined on
a date to be arranged in a case management meeting to be convened by the
Court.
3. Whether, and if so on what terms, the Seventh and Eleventh Defendants should
be permitted to participate in the Plaintiff ’s claim as interested parties will be
determined after resolving the issue in paragraph 2.
4. There is no order as to costs.
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JUDGMENT
BISHOP AJ
[1] The Plaintiff lodged a restitution claim under the Restitution of Land Rights Act
22 of 1994 (Restitution Act) with the Commission for the Restitution of Land Rights
(the Commission) prior to 31 December 1998 for rights in various portions of land in
Macassar on the Cape Flats. It describes the land as a commonage and contends that
the community of Sandvlei held the right in the land in common. The land consisted of
five erfs – 1991, 1195, 1196, 1197 and 1198 and the remainder of Cape Farm 544.
The Plaintiff has since applied to this Court for the restitution of that land.
[2] The Seventh Defendant ( the MJC ) and the Eleventh Defendant ( the CDH
Trust) contend that they have also lodged claims for restitution over portions of the
same land. The issues before us concern the existence, nature and extent of the
MJC’s and the CDH Trust’s restitution claims.
[3] Like the Plaintiff, both the MJC and the CDH Trust lodged claims with the
Commission before 31 December 1998 (the original claims). The first issue is the
scope of those claims.
[4] The MJC’s claim form mentioned only erf 1195. There is no dispute that it is a
claimant for that erf. The CDH Trust’s position is similar. Its claim form refers only to
Farm 664 or “Erf 664 Macassar”, but it argues that additional documents demonstrate
4
that, in fact, its claim also included Farm 544. As with the MJC, there is no dispute that
the CDH Trust is a claimant for Farm 644.
[5] In October 2018, the Regional Land Claims Commissioner (RLC) gazetted the
MJC’s and the CDH Trust’s original claims in terms of s 11(1) of the Restitution Act:
[5.1] The MJC’s claim was defined as limited to “remaining extent of erf 1195,
Macassar”. This only partially overlaps with the Plaintiff’s claim
[5.2] The Gazette defined the CDH Trust’s claim as for “Erf 7461, Macassar”.
This does not overlap with the land the Plaintiff’s claim.
[6] In 2015, the MJC and the CDH Trust brought counterclaims in this Court in the
case that the Plaintiff had brought for the restitution of the five erfs . They claimed
additional land not expressly mentioned in their original claim form. The additional land
both the MJC and the CDH Trust claim in their counterclaim includes four erfs that are
part of the Plaintiff’s claim – erfs 1991, 1196, 1197 and 1198 . I refer to this as the
disputed land. The below map, submitted by the Plaintiff, usefully sets out the dispute
between the parties.
5
6
[7] The Defendants advanced two bases on which they should be entitled to claim
the disputed land.
[7.1] First, properly interpreted in light of all the relevant evidence, their
original claims in fact included all the disputed land.
[7.2] Second, in the alternative, their counterclaims were applications for
direct access under s 38B(1) of the Restitution Act and amounted to new claims
lodged during 2014-2016, when the window for lodging restitution claims was
re-opened. I refer to the counterclaims advanced on this basis as the new
claims.
[8] The Plaintiff contends that both the bases on which the Defendants seek to
claim the disputed land are bad in law. It successfully applied to have the two issues
separated. In a judgment delivered on 16 August 2024, Cowen J (as she then was)
separated the following two issues for determination:
[8.1] What land was claimed by the MJC, and what overlapping land, if any,
was claimed by the CDH Trust prior to 31 December 1998 (the Original Claim
Issue);
[8.2] Whether the MJC and the CDH Trust duly lodged claims when they
delivered counter-claims with this Court on or about 16 January 2015 in terms
of section 38B of the Restitution Act, as amended in 2014 (the New Claim
Issue).
[9] We were meant to decide both issues.
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[10] Unfortunately, we can decide only the second issue. Explaining why requires
some explanation of how we managed this case to get it ready for hearing.
[11] After the separation order, the Defendants unsuccessfully sought funding from
Legal Aid South Africa for their attorneys and counsel. The question arose whether
the hearing of the separated issues could proceed in the absence of legal
representation for the Defendants.
[12] After several case management meetings – which included Legal Aid SA, the
Commission, the Defendants and the Plaintiff – it became apparent that the
Defendants would not accept alternative pro bono representation arranged by the
Court, and also were not able or willing to review Legal Aid SA’s decision not to fund
their representation despite indicating that they intended to do so.
[13] This created something of an impasse. The separated issues are vital for the
Defendants as they will determine the extent of their claims , and when and how they
can be adjudicated. It would be undesirable for the issues to be decided without the
Defendants’ being represented. However, the Plaintiff is entitled to the determination
of the separated issues within a reasonable time as its claim cannot be advanced until
those issues are decided.
[14] The Court resolved the impasse by appointing pro bono counsel to present the
Defendants’ position. In the best tradition of the Bar, Ms Adhikari generously agreed
to accept the appointment. The Court thanks her for being willing to assist and to
enable the proper ventilation of the dispute.
[15] Ms Adhikari did not act for the Defendants ; they had indicated they would not
accept alternative attorneys or counsel. She would act for the Court to ensure that
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both sides of the argument were presented before it. As she did not act for the
Defendants, she could not consult with them or lead evidence on their behalf. She
could only reasonably present legal argument on agreed facts. While this was an
imperfect solution, it was the best option available.
[16] In line with an agreement at a case management meeting, the Plaintiff and the
pro bono counsel filed a joint practice note in which they agreed on the issues that
should be decided, and the parts of the pleadings (including attached documents) that
were relevant to deciding those issues. The Court intended to hear the separated
issues on that basis.
[17] At a case management meeting approximately a month before the scheduled
hearing, the Defendants indicated that they had now instructed their counsel to
represent them at the hearing but required a postponement. The hearing was
postponed for approximately a month, and new dates were set for the parties to file
heads of argument. Ms Adhikari was released from her obligation.
[18] No party indicated that they intended to lead evidence , and no evidence was
led at the hearing of the separated issues. The question that arose was whether it was
possible to address the Original Claim Issue in the absence of evidence the
Defendants claim is relevant to determine the proper meaning to be assigned to the
MJC’s and the CDH Trust ’s original claims. The parties agreed that it could not be
adjudicated without evidence.
[19] The Court the n asked whether evidence was necessary given that the
Commissioner had published the MJC’s and the CDH Trust’s claims under s 11(1) in
a way that did not include the disputed land. Was it possible, the Court asked, for the
Defendants to contend for a different scope of the claim in the absence of a review of
9
the RLC’s interpretation of the claim in the Gazette? The issue was debated, and the
parties filed supplementary argument s on this question. I call this the Published
Claim Issue.
[20] Against that somewhat lengthy procedural backdrop, there are three issues we
need to decide: the Published Claim Issue, the New Claim Issue, and , based on the
outcome, what is the way forward to finally resolve the Old Claim Issue.
The Published Claim Issue
[21] Section 11(1) of the Restitution Act1 requires the RLC to consider any claim that
is lodged and, if she is satisfied that certain requirements are met, to “cause notice of
the claim to be published in the Gazette and in the media circulating nationally and in
the relevant province”. When she publishes the claim, the RLC defines which land has
been claimed.
[22] The issue is whether it is open to a claimant who relies on a claim that has been
published under s 11(1) to contend before this Court that the claim includes land that
is not included in the published notice.
1 Section 11(1) reads in full:
“(1) If the regional land claims commissioner having jurisdiction is satisfied that-
(a) the claim has been lodged in the prescribed manner;
(b) the claim is not precluded by the provisions of section 2; and
(c) the claim is not frivolous or vexatious,
he or she shall cause notice of the claim to be published in the Gazette and in the
media circulating nationally and in the relevant province, and shall take steps to make
it known in the district in which the land in question is situated.
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[23] The Plaintiff does not contend that the Court is “bound” by the RLC’s
determination “ in the sense of being precluded from adjudicating the merits of the
claim”. Instead, it argues that s 11(1) constitutes the RLC’s interpretation of the claim
form and “defines the claim that is before the Court ”. That interpretive role is part of
the Commission’s statutory function. T he s 11(1) notice is an administrative act with
legal consequences.2 Unless and until it is set aside, the Court can only adjudicate the
claim as defined in the s 11(1) notice . The Plaintiff relies on Makhuva-Mathebula,
which, it argues, holds that disputes about the scope of a published claim must be
addressed through review.3
[24] The Defendants argue that they are permitted, in a direct access claim under
s 38B, to prove a claim that differs from what was published under s 11(1) without
challenging the notice. The fact that the definition of the claim is susceptible to review
does not mean it must be reviewed in order to pursue a broader claim. That is because
the Commission performs an investigative, facilitative and administrative role, not an
adjudicative one. Adjudication is left for th is Court, and it is not bound by the RLC’s
view of the ambit of a claim. There will be cases where either a claimant or a landowner
will want to review the definition of a claim in a s 11 notice in order to avoid the direct
consequences of publication. But as claimants under s 38B, they are entitled to
advance a different interpretation of the ambit of the claim form before this Court
2 The Plaintiff refers to Minaar NO v Regional Land Claims Commissioner for Mpumalanga and Others
(2007) JOL 18913 (LCC) at 15, citing Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003
(1) SA 373 (SCA) at 380A-C.
3 Makhuva-Mathebula Community v Regional Land Claims Commissioner, Limpopo and Another [2019]
ZASCA 157 at paras 47-50.
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without reviewing the s 11(1) definition. The Defendants rely on the SCA’s reasoning
in Mahlangu,4 which they say addresses an analogous situation.
[25] Although it was the Court that raised the possibility that the s 11(1) notice may
preclude the Defendants’ interpretation of the claim form, on reflection the Defendants
are correct.
[26] The Plaintiff is right that even unlawful administrative action is binding until it is
set aside by a court.5 They are also right – as numerous cases demonstrate – that the
publication of a s 11(1) notice is administrative action and that it is possible to review
the RLC’s definition of a claim.
[27] But there is a prior question – what is the legal effect of the administrative act
of defining the claim in the s 11 notice ? Is the effect to define the claim before the
Court considering a s 38B application (as the Plaintiff argue s)? Or are the
consequences limited to other legal effects stipulated in the Restitution Act, without
affecting the adjudication of a s 38B claim (as the Defendants argue)?
[28] The direct effects of a s 11 notice are stipulated in s 11(7). 6 The effects are
limited to preventing obstruction of the claim, primarily by the inconsistent use or
4 Mahlangu NO v Minister of Land Affairs and Others [2004] ZASCA 74; 2005 (1) SA 451 (SCA).
5 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (5)
BCLR 547 (CC); 2014 (3) SA 481 (CC) at paras 87-106.
6 Section 11(7) reads in full:
(7) Once a notice has been published in respect of any land-
(a) no person may in an improper manner obstruct the passage of the claim;
(aA) no person may sell, exchange, donate, lease, subdivide, rezone or develop the
land in question without having given the regional land claims commissioner
one month's written notice of his or her intention to do so, and, where such
notice was not given in respect of-
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transfer of the land as defined, and the eviction of claimants from the claimed land. It
does not specify that the definiti on of the claim in a s 11 notice confines this Court
when it adjudicates the claim. As Spilg J put it in Nyavana Traditional Authority , the
“consequences of a s 11 publication therefore affects real rights and secures a
sterilisation of the Gazetted land in issue”.7
[29] Section 11A deals with the withdrawal or amendment of a s 11 (1) notice. It
allows any person “affected by the publication of the notice ” to apply to the RLC to
withdraw or amend the claim. But the effect of the s 11 notice is still defined by s 11(7).
A person affected by one of the consequences listed in s 11(7) can rely on s 11A to
remove (in the case of a landowner) or expand (in the case of a claimant) those
restrictions. Section 11A says nothing about restricting the Court’s duty to interpret the
scope of the claim form when it adjudicates the claim.
[30] I agree with the Defendants that , although Mahlangu concerned a different
notice under the Restitution Act, the principle it establishes applies. The issue was
(i) any sale, exchange, donation, lease, subdivision or rezoning of land
and the Court is satisfied that such sale, exchange, donation, lease,
subdivision or rezoning was not done in good faith, the Court may set
aside such sale, exchange, donation, lease, subdivision or rezoning or
grant any other order it deems fit;
(ii) any development of land and the Court is satisfied that such
development was not done in good faith, the court may grant any order
it deems fit;
(b) no claimant who occupied the land in question at the date of commencement
of this Act may be evicted from the said land without the written authority of the
Chief Land Claims Commissioner;
(c) no person shall in any manner whatsoever remove or cause to be removed,
destroy or cause to be destroyed or damage or cause to be damaged, any
destroy or cause to be destroyed or damage or cause to be damaged, any
improvements upon the land without the written authority of the Chief Land
Claims Commissioner;
(d) no claimant or other person may enter upon and occupy the land without the
permission of the owner or lawful occupier.
7 Nyavana Traditional Authority v MEC for Limpopo Department of Agriculture and Others [2020]
ZALCC 12; [2021] 1 All SA 237 (LCC) at para 12.
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whether the existence of an unreviewed s 12(4) notice precluded a s 38B application.8
The issue arose because s 38B(1)(b) requires prior leave of the Court to bring a
s 38B(1) application if a s 12(4) notice has been published for that land. In Mahlangu,
a s 12(4) notice had been published, and the claimants sought leave to bring a s 38B
application without reviewing the notice.
[31] The Land Claims Court (LCC) adopted the Plaintiff’s logic. It held that allowing
the s 38B application would “ have the effect of avoiding a review application of the
[Commission’s] decision, and yet achieve the results of such a review. ”9 It could not
allow the s 38B(1) application to proceed as it was not in a position to “set aside” the
Commission’s decision without the information that would emerge in a review . The
SCA fairly described the LCC’s holding that the s 12(4) notice “precluded a claim for
restitution being made in terms of s 38B, and that until that decision was set aside in
review proceedings the community’s claim was premature.”10
[32] The SCA saw it differently. While “the community would of course have been
entitled to have the commission's finding and recommendation set aside on review”,
the Act did not preclude the LCC “from entertaining proceedings in terms of s 38B
while that finding and recommendation remain extant.” 11 The SCA interpreted the
8 Section 12(4) allows the Chief Land Claims Commissioner to publish a notice that all claims in respect
of a land, area or township in question are investigated at the same time.
9 Mahlangu NO v Minister of Land Affairs and Others [2000] ZALCC 53; [2001] 2 All SA 190 (LCC) at
para 31.
10 Mahlangu (n 4) at para 12.
11 Ibid at para 13.
14
introductory words to s 38B – “[n]otwithstanding anything to the contrary contained in
the Act” – to provide “expressly that the LCC may entertain such proceedings.”12
[33] The SCA applied Mahlangu in a similar context in Manok Family Trust.13 It held
that a decision by the RLC under s 11(4)14 that a claim has not been properly lodged
and she will not gazette the claim , “does not necessarily mean that a claimant has
reached the end of the road. A claimant may, in certain circumstances, pursue a claim
by approaching the LCC directly in terms of s 38B of the Act”.15 Mpati P cited Mahlangu
for that proposition.
[34] The statement is on point. The issue arose because , after taking a decision
under s 11(4), the RLC purported to “revive” the claim. The landowners objected that
he was not entitled to do so. The SCA held that s 11A did not apply to decisions under
s 11(4). The decision maker was functus officio and the decision stood until reviewed
and set aside.16
[35] The claimants had brought a conditional counter -application to review the
s 11(4) decision. One of the grounds was that the regional commissioner had no power
“to decide or reject a claim”. 17 Mpati P rejected the argument because “the decision
made by the regional commissioner in terms of s 11(4) of the Act does not amount to
12 Ibid.
13 Manok Family Trust v Blue Horison Investments 10 (Pty) Ltd and Others 2014 (5) SA 503 (SCA).
14 Section 11(4) reads: “ If the regional land claims commissioner decides that the criteria set out in
paragraphs (a), (b) and (c) of subsection (1) have not been met, he or she shall advise the claimant
accordingly, and of the reasons for such decision.”
15 Manok Family Trust (n 13) at para 19.
16 Ibid at para 17.
17 Ibid at para 18.
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a dismissal or rejection of the … claim”.18 It was in that context that he pointed out that
it was still open to the claimants, despite a valid decision under s 11(4), to apply directly
to the LCC under s 38B.
[36] Does the logic of Mahlangu and Manok Family Trust apply to a decision to
gazette a claim in terms of s 11(1)? Yes. It is not the RLC’s task to adjudicate claims.19
The purpose of s 11(1) is to preserve the land defined in the notice while the claim is
finalised, not to restrict the adjudicative role of the Court. Once the Court is required
to adjudicate a claim in terms of s 38B, 20 it must decide the scope of the claim based
on its own interpretation of the claim form; it is not bound by the interpretation in the
s 11(1) notice.
[37] The various decisions that have reviewed s 11(1) decisions ar e all explicable
on this logic. In Gamevest – which held that s 11(1) decisions are reviewable – affected
landowners had sought to review the decision prior to adjudication. 21 The same
occurred in Minaar22 and Bouvest23 where landowners argued the s 11(1) notice
improperly included land that ought to have been excluded. The motivation for a
18 Ibid.
19 Mahlangu (n 4) at para 13, citing Farjas (Pty) Ltd v Regional Land Claims Commissioner, KwaZulu -
Natal 1998 (2) SA 900 (LCC) at para 41.
20 I prefer not to decide whether this principle also applies to claims that come to the Court through s 14
as the issue does not arise in this case, and the statements in both Mahlangu and Manok Family Trust
concerned s 38B applications.
21 Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern Province and Mpumalanga,
and Others 2003 (1) SA 373 (SCA).
22 Minaar NO v Regional Land Claims Commissioner for Mpumalanga and Others [2006] ZALCC 12.
23 Bouvest 2173 CC & others v Commission on Restitution of Land Rights & others [2010] JOL 25529
(LCC)
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landowner to review a s 11(1) decision is not hard to find ; the notice restricts their
ability to freely use their land.
[38] In Makhuva-Mathebula,24 Silwane Community Development Trust ,25 and
Nyavana Traditional Authority26 claimants sought to review a s 11(1) decision prior to
adjudication on the basis that it excluded land that should have been included . From
the claimant’s perspective, the s 11(1) decision has a real impact even if it does not
preclude a court from ultimately interpreting a claim form differently. It ensures the
Commission investigates their full claim, and provides the protection of s 11(7) to the
full scope of the land they believe they claimed. Contrary to the Plaintiff’s claim,
Makhuva-Mathebula holds only that s 11(1) decisions are reviewable, not that they
must be reviewed in order to advance a different interpretation of the claim form in this
Court.
[39] The result is that the s 11(1) notices are not a bar to the Defendants arguing
that their original claims include the disputed land. The parties agree that whether, in
fact, the claim forms do include the disputed land can only be decided after evidence
is led on how those forms should be interpreted. I return at the end of the judgment to
consider what that means for the future conduct of this matter.
24 Note 3 above.
25 Silwane Community Development Trust v Regional Land Claims Commissioner, Kwazulu -Natal and
Others [2021] ZASCA 2.
26 Note 7 above.
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The New Claim Issue
[40] Did the Defendants’ counterclaims constitute “claims”, or were they required to
lodge new claims with the Commission?
[41] The issue turns on the proper interpretation of s 38B(1). The provision has been
amended on t hree occasions – in 1997, 1999 and 2014 . To properly interpret it, we
first need to trace the evolution of the provision, and then to consider its meaning in
2015 when the counterclaims were lodged.
The Evolution of s 38B(1)
[42] Section 38B was inserted by a 1997 amendment to the Restitution Act (the
1997 Amendment).27 In its initial form, without its provisos,28 s 38B(1) read:
“Notwithstanding anything to the contrary contained in this Act, any person who or the
representative of any community which is entitled to claim restitution of a right in land
may apply to the Court for restitution of such right”.
[43] The provision did not require that a claim had been lodged, only that the person
applying to the LCC was “entitled to claim restitution”. Whether a person was so
entitled would be determined by the criteria in s 2.
[44] The explanatory memorandum to the bill that would become the 1997
Amendment supports this view. It says that direct access to the LCC “is an important
measure to expedite the restitution process by allowing claimants with straightforward
27 Land Restitution and Reform Laws Amendment Act 63 of 1997.
28 The provisos in s 38B(1)(a) and (b) are not relevant to this application.
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claims, or with access to the necessary resources, to approach the Court.” While most
claimants would depend on the Commission to investigate and present their claim,
those who did not should be allowed to go directly to the LCC without relying on the
Commission’s resources.
[45] The section must be read with the definition of “claim” in s 1. Prior to the 1997
Amendment, the definition read simply: “‘claim’ means any application lodged with the
Commission in terms of this Act”. Before 1997, there was no other way for a claim to
be lodged, and a claimant could only get to the LCC through the Commission . The
1997 Amendment changed the definition to align it with the possibility of direct access
to the LCC introduced by s 38B:
‘claim’ means-
(a) any claim for restitution of a right in land lodged with the Commission in terms
of this Act; or
(b) any application lodged with the registrar of the Court in terms of Chapter IIIA
for the purpose of claiming restitution of a right in land;
[46] Despite the subsequent amendments to s 38B, the definition of “claim” has
remained the same.
[47] The definition matters both because the word is used in s 38B(1), and because
the entitlement to restitution depends on when the claim was lodged. From 1994 to
2014, s 2(1)(e) provided that a person would be “entitled to restitution if … the claim
for such restitution is lodged not later than 31 December 1998”. Whether someone
has lodged a “claim” determines their entitlement to restitution or equitable redress.
19
[48] When the 1997 Amendments were made, the original window for lodging claims
was still open. It was in that context – when claims could still be lodged with the
Commission – that the intention was to permit two avenues for claimants: either lodge
a claim with the Commission, or apply to the Court directly. Between 1997 and 1999,
the language of s 38B(1) read with the definition of “claim” achieved that goal.
[49] The complication was introduced when the window for lodging claims closed
on 31 December 1998. In 1999, a further amendment was made to s 38B(1) (the 1999
Amendment29), after which it read:
“Notwithstanding anything to the contrary contained in this Act, any person who or the
representative of any community which is entitled to claim restitution of a right in land
and has lodged a claim not later than 31 December 1998 may apply to the Court for
restitution of such right”.
[50] Under the 1997 Amendment, the only condition for direct access was an
entitlement to lodge a claim. But that no longer made sense after the window had
closed. The purpose of s 38B could no longer be to allow new claims through direct
access. The provision was amended to require that the person applying for direct
access was entitled to claim restitution and had “lodged a claim not later than 31
December 1998”. While s 38B(1) – then and now – requires that a claim had been
lodged, it does not specify that the claim must have been lodged with the
Commission.30
29 Land Restitution and Reform Laws Amendment Act 18 of 1999.
30 The Defendants point out that the words “with the Commission” were included in the Bill that preceded
the 1999 Amendment, but were removed. The explanation for this in the legislative history was not
debated before us, so we cannot place much store in its initial inclusion. What matters is the ultimate
text does not specify that the claim must have been lodged “with the Commission”.
20
[51] The reasons for the change were set out in the explanatory memorandum to
the bill that became the 1999 Amendment: “In view of the fact that no claims may be
lodged after 31 December 1998, only claimants who have lodged their claims with the
Commission not later than that date qualify for direct access after the commencement
of the B ill.”31 Section 38B no longer permitted an alternative to lodging with the
Commission; instead, it limited the right of direct access to those who had lodged
claims before the window closed. It allowed claimants with existing claims to fast-track
the adjudication of their claims.
[52] The 1999 Amendment did not amend the definition of “claim” in s 1, which still
included lodging an application under s 38B. But because the window for claims was
closed, it created no difficulty in interpreting s 38B. If a claimant brought a s 38B(1)
application after the 1999 Amendment, it could only be because they had lodged a
claim with the Commission. The broader definition of “claim” was still necessary for
the rest of the Act as there were claimants who had (before 31 December 1998)
approached the LCC directly before the deadline, without ever lodging a claim with the
Commission.
[53] In 2014 Parliament reopened the window for lodging restitution claims . The
2014 Amendment 32 amended s 2(1)(e) to change the deadline for lodging a claim
from 31 December 1998 to 30 June 2019 . To give effect to the reopening, t he 2014
31 Explanatory Memorandum to Land Restitution and Reform Laws Amendment Bill B 9B-99 at para 10.
The additional condition was arguably unnecessary. The requirement that the person applying for direct
access was entitled to claim restitution would, in terms of s 2, in any event demand that they had lodged
a claim prior to 31 December 1998. But the Expl anatory Memorandum makes plain that no other
purpose was sought to be achieved by the 1999 Amendment.
32 Restitution of Land Rights Amendment Act 15 of 2014.
21
Amendment also amended s 38B to change the date from 31 December 1998 to 30
June 2019. The 2014 Amendment did not alter the definition of “claim”.
[54] The 2014 Amendment was short-lived. In 2016 the Constitutional Court
declared it unconstitutional and invalid in LAMOSA I .33 The effect of the order of
invalidity was to close the window for new claims, and to return s 38B to its post-1999
Amendment state. But the declaration of invalidity was prospective only. So when the
Defendants lodged their counterclaims, the 2014 Amendment was valid and in force.
[55] That is the somewhat convoluted history of s 38B(1). We have to decide, not
what it means today, but what it meant in 2015 when the counterclaims were made. I
next explain why that is a difficult textual endeavour.
The Textual Problem
[56] The obvious difficulty with s 38B(1) after the 2014 Amendment is that it is
inconsistent with the s 1 definition of “claim”.
[57] Section 1 defines an application under s 38B(1) as a “claim”. But s 38B limits
the right to bring an application to someone who “has lodged a claim” by the deadline.
On the one hand, the lodging of a “claim” is a precondition to lodge a s 38B application.
But, on the other, the s 38B application is a “claim”.
[58] That is not a problem when the window for bringing claims is closed. But it is a
problem when the window is open because the Act seems to say both that a claimant
33 Land Access Movement of South Africa and Others v Chairperson of the National Council of
Provinces and Others [2016] ZACC 22; 2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC)
22
can go to the Court without first lodging a claim with the Commission, and that an
application to the Commission is a prerequisite to approaching the Court.
[59] There is no way to interpret the two provisions without doing violence to the
language. There are two options:
[59.1] Treat the requirement for lodging a claim with the Commission as a
precondition. But for s 38B(1) to make sense, that would require giving “claim”
a different meaning from its defined meaning . “Claim” must have that wider
defined meaning throughout the rest of the Act to ensure that those who lodged
direct access claims pre-1999 Amendment without first lodging claims with the
Commission continue to be treated as claimants.
[59.2] Treat the requirement to lodge a claim as fulfilled when the application
is lodged, in line with the definition. But that is not consistent with the language
of s 38B(1) which says a person “may apply” only if he or she “has lodged a
claim”. It can only mean that the claim must have been lodged before the
application under s 38B(1).
[60] I see no textual solution to resolve this conundrum. Both interpretations are
inconsistent with the text. The answer must be sought in judicial decisions, the purpose
of the provision, the context in which it appears, and the constitutional rights at stake.34
34 See Chisuse and Others v Director-General, Department of Home Affairs and Another [2020] ZACC
20; 2020 (10) BCLR 1173 (CC); 2020 (6) SA 14 (CC) at para 47.
23
Judicial Decisions
[61] There are three judgments that the parties rely on – Witz,35 Amaqamu
Community, and Mahlangu.36 Witz and Amaqamu Community reach opposite
conclusions but, as I hope to show, they were each interpreting s 38B at different
moments in time. Mahlangu does not directly consider the question that confronts us.
Witz
[62] In 2000, the meaning of s 38B(1) was considered in Witz. The claimant had not
lodged a claim with the Commission, and had instead filed a s 38B application with the
LCC. The question arose whether that was permissible. Meer AJ (as she then was)
described the introduction of Chapter IIIA as “a drastic change”. 37 Before its
introduction, the only route to restitution was through the Commission. Section 38B
gave claimants “the option to approach the Court via the Commission in terms of s 10,
or directly via s 38B(1) before 31 December 1998. ”38 In order to apply directly to the
Court, the LCC held it “ was not necessary for him to lodge the claim with the Land
Claims Commission.”39
35 Department of Land Affairs v Witz [2000] ZALCC 42; 2006 (1) SA 86 (LCC).
36 In re Amaqamu Community Claim (Land Access Movement South Africa and Others as Amici Curiae)
2017 (3) SA 409 (LCC).
37 Ibid at para 7.
38 Ibid.
39 Ibid.
24
[63] Witz seems to answer the question before us in favour of the Defendants.
Unless we thought it was clearly wrong, it would be binding.40 The impact of Witz was
appreciated by the parties and Cowen J when this issue was separated , and is why
two judges were assigned to decide it.
[64] The difficulty is whether Witz was interpreting the 1997 version of s 38B, or the
1999 version. It quotes the 1999 version earlier in the judgment. 41 But because Mr
Witz made his application directly to the Court before the 31 December 1998 deadline
– and therefore before the 1999 Amendment – whether he was entitled to do so would
have to be determined based on the text after the 1997 Amendment. The LCC did not
expressly consider the difference between the two versions because, in that case, it
did not matter.
Amaqamu Community
[65] This question was considered by four judges of the LCC in Amaqamu
Community.42 The case concerned the effect of the Constitutional Court’s decision in
LAMOSA I, which declared the 2014 Amendment invalid. LAMOSA I did not invalidate
claims that had been lodged between the date that the 2014 Amendment came into
force and the date of the judgment – so-called “new order claims” . But it interdicted
40 The Defendants point out that the LCC also accepted that a claimant could apply directly to the LCC
without lodging a claim with the Commission in Richtersveld Community and Others v Alexkor Ltd 2001
(3) SA 1293 (LCC) at para 7 . This is correct. But the case, like Witz, concerned the interpretation of
s 38B after the 1997 Amendment. While it supports the holding in Witz, it does not answer the question
before us.
41 Witz (n 35) at para 5.
42 In re Amaqamu Community Claim (Land Access Movement South Africa and Others as Amici Curiae)
2017 (3) SA 409 (LCC).
25
the Commission from processing those claims until it had finalised all the claims
lodged prior to 31 December 1998 – “old order claims”.
[66] The issue in Amaqamu Community was whether that interdict against the
Commission also prevented the LCC from adjudicating new order claims. The LCC
concluded that it did, save that new order claimants could be admitted as interested
parties in an old order claim at the discretion of the presiding judge . It was in that
context that the Court’s statements about s 38B must be understood.
[67] One of the reasons the LCC concluded that it could not adjudicate new order
claims was because the Commission was prevented by the LAMOSA I interdict from
assisting the Court as it normally would.43 It then said:
The route of direct access to the court is also blocked. Section 38B of the [Restitution
Act], enabling a party to approach the court directly, is premised upon the existence of
a claim lodged and accepted by the commission.44 Such claim has to have been lodged
before 31 December 1998, which date is still the operative date since the AA has been
declared invalid.45
43 Ibid at para 52.
44 See Haakdoornbult Boerdery CC and Others v Mphela and Others 2007 (5) SA 596 (SCA) (2008 (7)
BCLR 704; [2007] ZASCA 69) para 14:
‘The proceedings in the LCC were brought under s 38B of the Act, which entitles a disaffected
party to approach the LCC directly, usually because of the lack of progress on the part of the
state in processing the claim.’
See further Mahlangu NO v Minister of Land Affairs and Others 2005 (1) SA 451 (SCA) ([2004] ZASCA
74). (Original footnote).
45 Ibid at para 53.
26
[68] The logic was that the LAMOSA I interdict against the Commission could not
have contemplated that the LCC would still adjudicate new order claims because the
only route for new order claimants to get to the LCC was through the Commission.
[69] When the Constitutional Court considered the fate of new order claims in
LAMOSA II, it confirmed the position adopted in In re Amaqamu – the LCC may not
adjudicate the claims of new order claimants save for admitting them as interested
parties.46 It did not mention s 38B.
[70] There are two factors to consider about the reasoning in Amaqamu Community.
First, it is part of the ratio for the decision. If s 38B had permitted new order claimants
to continue to lodge direct access claims, the interdict against the Commission would
not have precluded the Court from deciding these claims.
[71] Second, and more importantly, it is not clear what category of claims the Court
was concerned with. It seems to be concerned with new claims. But it then says that
the cut-off date for 38B applications is 31 December 1998. But from 2014 to 2016 it
was 30 June 2019. If the Court was concerned with the type of claims that confront us
– those lodged only as s 38B claims in the 2014 -2016 window – it would not have
mentioned the 31 December 1998 deadline. It seems to be saying only that , post
LAMOSA I, there could be no new order claims under s 38B that are not also old order
claims that had been lodged with the Commission prior to the 1998 deadline.
[72] The reasoning does not seem to apply to the category of new-order claimants
that confront this Court – those that did not lodge claims with the Commission but
46 Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others
[2019] ZACC 10; 2019 (5) BCLR 619 (CC); 2019 (6) SA 568 (CC)
27
applied directly under s 38B while the 2014 Amendment was valid and the window for
lodging claims was still 30 June 2019.
Mahlangu
[73] The Plaintiff also relies on the decision in Mahlangu to support its interpretation.
It argues that Mahlangu describes the process for lodging a claim on the basis that a
claim will first be lodged with the Commission and then brought on direct access to the
Court. But whether lodging a claim with the Commission was a requirement for a s
38B application was not an issue in Mahlangu, and the Court did not consider it. Its
description of the process does not dictate that outcome. All it says is that “[i]n certain
circumstances a claimant may pursue a claim by approaching the LCC directly in
terms of s 38B of the Act”.47 Save for dealing with the provisos in s 38(1)(b), Nugent JA
did not further describe what those circumstances are. Mahlangu does not advance
the debate.
[74] The same is true of Haakdoornbult.48 Amaqamu Community relied on it for the
proposition that a s 38B application “is premised upon the existence of a claim lodged
and accepted by the commission ”.49 But all that Haakdoornbult actually says is that
claimants “usually” use s 38B “because of the lack of progress on the part of the state
in processing the claim .”50 That is true; and was particularly true in 2007 when
47 Mahlangu at para 5.
48 Haakdoornbult (n 43).
49 Amaqamu Community (n 41) at para 53
50 Haakdoornbult (n 43) at para 14.
28
Haakdoornbult was decided. The decision does not consider the meaning of s 38B(1)
in 2015.
Conclusion on judgments
[75] Only two judgments have directly considered this issue – Witz and Amaqamu
Community. Amaqamu Community does not refer to Witz (even though Meer JP was
on the bench). Yet it seems to contradict Witz. The Court also did not carefully analyse
the text of s 38B, and its history of amendments, or explain why its conclusion that
s 38B(1) requires prior lodgment with the Commission was correct.
[76] But it is possible to make sense of the apparently conflicting decisions in Witz
and Amaqamu. Witz interpreted the post -1997 Amendment version. Amaqamu
interpreted either the post -1999 Amendment version or the post -LAMOSA I version.
What has not yet been interpreted is the post -2014 Amendment version , which was
valid only from 2014 to 2016 , when the window for claims was opened . Neither case
therefore answers the peculiar question that confronts us.
The Context and the Purpose
[77] There are two parts to the relevant context – the history and the surrounding
statutory provisions.
[78] I have already set out the history of amendments that is central to
understanding the meaning of s 38B when the Defendants made their
counter-application in 2015. To summarise:
29
[78.1] When the Restitution Act was enacted in 1994, the only way to lodge a
claim was with the Commission.
[78.2] The 1997 Amendment introduced s 38B and amended the definition of
“claim”. The effect was to allow anyone entitled to claim restitution to either
lodge a claim with the Commission , or apply directly to the LCC. At the time,
the window for claims was still open. This is the version that, in my view, was
interpreted in Witz.
[78.3] After the window for claims closed, the 1999 Amendment changed s 38B
to introduce an additional requirement for direct access to the LCC – having
lodged a claim with the Commission. The purpose of the provision was no
longer an alternative to lodging with the Commission, but a way to bypass
delays in the Commission for those who had lodged claims within the window.
[78.4] The 2014 Amendment re-opened the window for claims to be lodged.
The only change it made to s 38B was to change the date from 31 December
1998 to 30 June 2019. But it left the wording inserted in the 1999 Amendment
requiring a claim lodged with the Commission and did not alter the definition of
“claim”. This is the version of s 38B we must interpret.
[78.5] The Constituti onal Court declared the 2014 Amendment invalid,
returning s 38B to the version in place after the 1999 Amendment. This is what
was interpreted in Amaqamu.
[79] We need to deduce whether, when it re -opened the window for claims in the
2014 Amendment, Parliament intended to again allow direct access without prior
lodgment (as intended under the 1997 Amendment), or if it intended only to allow direct
30
access after lodging with the Commission (the effect of the 1999 Amendment). The
issue is unclear, as pointed out above, because of the contradiction between the text
of s 38B (which favours the Plaintiff) and the definition of “claim” (which favours the
Defendants).
[80] Through the years, direct access has served different purposes. It has served
both as a means to bypass the Commission completely, and as a way for claimants
who lodged claims with the Commission but are frustrated by its delays to fast track
the determination of their claims. In 2015, was s 38B(1) meant to serve only the second
purpose, or also the first? I answer that question when I conclude this interpretive
exercise.
[81] I have so far focused only on the text of s 38B(1) and the definition of “claim”.
Are there pointers in other provisions of the Restitution Act?
[82] Section 38B(3) permits the regional land claims commissioner, after “the
lodgement of an application contemplated ” in s 38B(1) to “suspend the investigation
of any claim lodged in terms of section 10 in respect of the land in question”. The
provision is consistent with the possibility that a claimant will first lodge a claim with
the Commission and then apply to Court. But it does not necessitate that meaning.
There may be no claim to suspend. Or the suspended claim may have been lodged
by a different claimant.
[83] The same is true of s 38B(4) which empowers the Court to “order that all claims
lodged in terms of section 10 in respect of the land in question be transferred to the
Court”. The purpose seems primarily to deal with multiple claims over the same land
and to ensure that if one claimant applies directly, the Court can ensure that all related
claims are adjudicated together.
31
[84] The Plaintiff and the Commission argued that part of the structure of the
Restitution Act was that the Commission should have a record of all land claims.
Permitting claims to be lodged at the LCC without first being lodged at the Commission
would undermine that purpose and the Commission’s ability to perform its functions.
[85] There is some weight to this argument. The Commission is responsible for the
general management of all claims. A mechanism that meant it would not have a record
of some claims would hinder the performance of that responsibility. But the point has
its limits. The Commission will be aware of any s 38B application because a copy must
be served on the RLC and the Director General.51 It will be able to record the claim as
it would other claims lodged with it.
The Right to Restitution
[86] The Restitution Act – like all legislation – must be interpreted to “promote the
spirit, purport and objects of the Bill of Rights”.52 That requires courts not only to avoid
interpretations that would render legislation unconstitutional, 53 but also to prefer
interpretations that “better” promote constitutional rights.54
51 LCC Rule 53A(4). I refer to the LCC Rules, not this Court’s Rules because we are concerned with
the meaning of s 38B at a point in time prior to this Court’s establishment.
52 Constitution s 39(2).
53 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty)
Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000]
ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) at para 21-23.
54 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008
(11) BCLR 1123 (CC) at para 46.
32
[87] Section 25(7) of the Constitution guarantees the right to restitution in these
terms: “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. ”
“Land restitution … aims to right historical wrongs, resolve unjust dispossession and
heal the ‘trauma of deep, dislocating loss of land’ that has taken root in our country.”55
These deep wounds have not been healed, and the evils of land dispossession have
not been undone .56 Although it has been 32 years since the Restitution Act was
enacted, thousands still wait for their entitlements to be determined, for their chance
for justice.
[88] While the s 25(7) right is limited to “the extent provided by an Act of Parliament”,
an interpretation of that legislation – the Restitution Act – which makes it easier for a
person or community to obtain a determination of their entitlement to restitution or
equitable redress better serves the “spirit, purport and object” of the provision. While
s 25(7) does not guarantee anyone a right to restitution, it s goal is to undo historical
dispossession. Allowing more restitution claims to be adjudicated will better serve that
purpose.
[89] Here, the Defendants ’ interpretation expands access while the Plaintiff’s
restricts it. Assuming for the moment that the Defendants fail on their argument that
their original claims included the disputed land. If they are also precluded from bringing
a direct access application, they will not be able to have their entitlement to restitution
55 LAMOSA II (n 45) at para 1.
56 LAMOSA I (n 33) at para 1.
33
or equitable redress of the disputed land determined at all. That will be true for all other
potential claimants in their position.
[90] The Defendants’ interpretation also promotes the right guaranteed in s 34 of
the Constitution to “have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court ”. It widens the options for claimants to
have their entitlement to restitution or equitable redress determined, while the
Plaintiff’s narrows it.
[91] I appreciate that, in this case, holding that the Defendants have lodged a claim
affects the Plaintiff. It means there is a possibility that this Court will admit the
Defendants as interested parties in their claim. But that is already the case for any
other new order claimant that lodged a claim within the 2014 -2016 win dow. The
peculiar interest of the claimant in this case does not weigh against the general
constitutional interests that favour the Defendants.
[92] I also accept that the constitutional benefit of the Defendants’ interpretation is
marginal. That is so for two reasons:
[92.1] We do not know how many other claimants took the Defendants’ path
and lodged a s 38B(1) application in the 2014-2016 window but did not lodge a
claim with the Commission. As the issue has not arisen before, and as it would
likely only be well -resourced claimants who would take that course, there are
unlikely to be many more. But either way, the constitutional interests at stake
favour enabling access in the face of statutory ambiguity. If there are few such
claimants, it will have a limited effect. If there are many claimants, then all the
better – more claimants will eventually have their entitlement to restitution
determined.
34
[92.2] Interpreting s 38B to require prior lodging with the Commission would
not have denied the Defendants or anyone else the ability to lodge a claim. It
would generally be easier to complete a claim form than to bring a direct access
application. But providing another option always expands access, even if the
barrier to access was minor.
[93] To put the point differently, while the window for claims is open, the Plaintiff’s
interpretation introduces what the Defendants call an “unnecessary formality”. It
requires a claimant who has the ability to prosecute their own claim, and intends to
approach the LCC directly, to first lodge a claim with the Commission merely to trigger
the right to apply directly under s 38B . No constitutional purpose would be served by
this requirement.
Other Considerations
[94] The Defendant s rely on two academic authorities that support their
interpretation.57 They are unhelpful because neither of them grapple with the particular
issue of the meaning of s 38B(1) during the window opened by the 2014 Amendment.
[95] Both parties rely on rules. The Plaintiff relies on rule 3(1)(a) of the Commission’s
Rules, while the Defendants call in aid Rule 53A of the LCC Rules. They are both
57 D Carey-Miller & A Pope Land Title in South Africa (2000) at 388; J Pienaar & J Brickhill ‘Land’ in S
Woolman & M Bishop (eds) Constitutional Law of South Africa (2 ed, OS, 2007) at 48-53, fn 7.
35
unhelpful for two reasons. One, the rules are not relevant to interpreting a statute. 58
Two, they were introduced in 1998 and so do not address the current problem.
Conclusion
[96] I find the interpretive issue finely balanced. To my mind, two considerations are
decisive in favour of the Defendant’s interpretation.
[97] First, looking at the mul tiple iterations of s 38B(1) what appears is that when
the window for claims was open, it permitted applications without prior lodgment with
the Commission. When the window was closed, s 38B applications were a means of
speeding up claims that had already been lodged. If we have to ascertain the purpose
of the 2014 Amendment, it seems to me that it is best interpreted as seeking to achieve
the same goal as the 1997 Amendment because it re-opened the window for claims.
[98] Second, that interpretation expands access to the right in s 25(7) and furthers
access to courts. While I accept that it also imposes a possible burden on old order
claimants, how that balance must be struck has already been determined in Amaqamu
Community and LAMOSA II . I do not see how allowing a likely small category of
s 38B(1) claims lodged in the 2014-2016 window will disrupt that balance.
[99] The textual route to that outcome is that the “claim” that s 38B requires had to
be lodged before 30 June 2019 can be the application to the Court or a claim with the
Commission, as the definition of “claim” envisages . The requirement is met by the
58 Moodley and Others v Minister of Education and Culture, House of Delegates and Another [1989]
ZASCA 45; 1989 (3) SA 221 (A) at 233D-G.
36
application itself. The deadline is therefore only to prevent direct access claims outside
the window, not to prohibit them within the window.
[100] I accept that this is not a natural reading. But there is no interpretation that fully
gives effect to the words of s 38B(1) and the definition of “claim”. In my view, in light
of the history, context, purpose, and the Constitution, it is the best construction of a
provision that is in irresistible tension with the definition of “claim”.
[101] I therefore conclude that the Defendants’ counterclaims were “claims” under
the Restitution Act, even though they were not preceded by a claim lodged with the
Commission.
The Consequences and the Way Forward
[102] I have found that the Defendants’ new claims were validly lodged. But the scope
of their old claim must still be determined. The difference between old order and new
order claims matters a great deal.
[103] As I mentioned earlier, in Amaqamu Community the LCC ordered that new
order claimants – which I hold includes the Defendants – are not entitled to the
adjudication of their claims until all old order claims are resolved. They are only
entitled, at the discretion of the Court considering an old order claim, to be admitted
as an interested party.
[104] That was confirmed by the Constitutional Court in LAMOSA II. Parliament did
not enact new legislation to replace the 2014 Amendment and again re -open the
37
window for restitution claims. That left the fate of the new order claims uncertain;
LAMOSA I had envisaged that Parliament would address the issue.
[105] The Constitutional Court confirmed the interdict prohibiting the Commission
from processing any new order claims until all old order claims are resolved, or this
Court orders otherwise. It also ordered that, until that time:59
[N]o interdicted claims may be adjudicated upon or considered in any manner
whatsoever by the Land Claims Court in any proceedings for the restitution of rights in
land in respect of old claims, provided that interdicted claimants may be admitted as
interested parties before the Land Claims Court solely to the extent that their
participation may contribute to the establishment or rejection of the old claims or in
respect of any other issue that th e presiding judge may allow to be addressed in the
interests of justice.
[106] The only right the Defendants’ counterclaim affords them is for us to consider
whether to permit them to participate as interested parties in the Plaintiff’s claim, and
then to define the terms of their participation.
[107] But the Defendants’ old claims are different. If they are right that those claim
forms should be interpreted to include the disputed land, then they are on the same
footing as the Plaintiff. They are not merely interested parties, but claimants who can
fully assert their rights and have them adjudicated together with the Plaintiff . But, as
the parties all agree, we cannot make that determination without evidence on the
meaning of the claim forms.
[108] It would be premature to make a determination about whether to admit the
Defendants as interested parties (and, if so, on what terms) until we decide if they are
59 LAMOSA II (n 46) at para 67(2)(b).
38
entitled to full participation as claimants in their own right . If we conclude that the old
claims do include the disputed land, then it will be unnecessary to make a decision
about admitting the defendants as interested parties.
[109] The appropriate approach, therefore, is to determine the Original Claim Issue
first. If we decide against the Defendants on that issue , we will then need to decide
whether the Defendants should be interested parties and the terms of any admission.
[110] That must happen as soon as possible. All the parties have waited too long for
the determination of the merits of their claims. I have narrated the history of delay
caused by difficulties in securing legal representation for the Defendants. That will not
be allowed to further delay the determination of the Original Claims Issue. If they
cannot secure their own legal representation, the Court will again invite them to accept
alternative pro bono representation. If they refuse, the Court will appoint legal
practitioners as amic i curiae to present the Defendants’ position to the Court. The
Court will not allow th e Defendants’ legal representation to delay the hearing of the
Original Claims Issue.
[111] On costs, the ordinary rule in this Court should apply – there should be no order
as to costs.
[112] I make the following order:
1. It is declared that the Seventh and Eleventh Defendants’ counterclaim s
are “claims” as defined in section 1 of the Restitution of Land Rights Act
22 of 1994.
40