IN THE LAND CLAIMS COURT OF SOUTH AFRICA
CASE NUMBER: LCC21/2007
Date of hearing: 24 February 2010
Date of judgment: 30 April 2010
In the matter between:
MIDLANDS NORTH RESEARCH GROUP
AND OTHERS
Applicant
and
KUSILE LAND CLAIMS COMMITTEE
THE REGIONAL LAND CLAIMS COMMISSIONER,
KWAZULU NATAL AND OTHERS
Plaintiff/Claimant
Respondent
JUDGMENT
________________________________________________________________
GILDENHUYS J
[1] This is a claim for legal costs against the Land Claims Commission (“the
Commission”), arising from a restitution claim referred to this Court by the
Regional Land Claims Commissioner: Kwazulu-Natal (“the RLCC”) in terms of
the Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”). The facts
on which the claim is based are set forth hereunder.
[2] A claim for the restitution of land rights was lodged with the Commission on
30 December 1998 by Mr Ngcobo on behalf of the Kusile community (“the
claimant”) in respect of certain land in KwaZulu-Natal. 1 The RLCC investigated
the claim and concluded:
•
that it is not precluded by sec 2 of the Restitution Act;
•
that it is not frivolous or vexatious; and
•
that it was lodged to the satisfaction of the RLCC.
Notice of the claim was thereupon published in the Government Gazette of 25
June 2004 under Notice No 1148 of 2004. The notice contains a list of 33
properties (“the properties”) which are claimed. The properties are in private
ownership.
[3] After being compelled to do so by a Court Order, the RLCC referred the
restitution claim to this Court for adjudication. The claim is contested by almost
all the property owners (“the opposing land owners”). They are mostly white.
They were represented in the restitution proceedings before this Court by
attorney Mr van der Merwe and by senior and junior counsel, Mr Roberts and Mr
van der Walt. One owner of several of the properties, the Ingonyama Trust, was
separately represented by attorney Mr Coetzee and by counsel Mr van Rooyen.
The RLCC was represented by Ms Jonas from the State Attorney’s office in
Durban and by senior and junior counsel, Mr Choudree and Ms Naidoo.
[4] The opposing land owners contend that the claim is invalid on several
grounds. Because the restitution claim has not yet been finally disposed of, I will
confine myself to two of the grounds. It is not necessary for purposes of this
judgment to consider the others.
1
In the land claim form, the claimed land is described as “D82-Maphumele (District) KZN.” No individual
properties were referred to. See p 27 of the pleadings bundle.
2
[5] Firstly, the opposing land owners say that at the time of the alleged
dispossession (which the claimant says occurred during or after 1921 2), a
number of families who consider themselves to be part of the claimant
community, lived on portions of the properties as labour tenants 3. Most if not all
of the properties were farmed by their white owners. The labour tenants were,
generally speaking, allowed to live on the properties and were allocated some
land by the landowners for purposes of grazing cattle and growing crops, all in
return for labour to be provided by the labour tenants to the land owners.
Because the claimant families did not occupy the entire properties but only
portions thereof, their claim can, at best, be for the portions which they did
actually occupy.4 It was not contested by any of the parties that this is indeed the
position.
[6] Secondly, the opposing land owners aver that the rights of the claimant
families in the land were not derived from shared rules governing access to land
held in common by the claimant families, but on terms imposed on them by the
owners of the properties. The restitution claim can therefore not be a community
claim. Support for this argument can be found in the judgment of Moseneke DCJ
in Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty)
Ltd 2007 (6) SA 199 (CC) at 212D-216D.
2
See par 14 of the minutes of the pre-trial conference of 6-7 November 2008, p 20 of the pre-trial
conferences bundle.
3
The claimant’s attorney confirmed at a pre-trial conference on 6-7 November 2008 that the rights in land
of which the claimants allege they have been dispossessed, are either
a.
the interests of a labour tenant and a share cropper; or
b.
beneficial occupation for not less than ten years prior to the dispossession.
(Par 13 of the minutes, p 20 of the pre-trial conferences bundle).
4
In response to questions put by me at a pre-trial conference on 2 December 2008 the claimants averred (at
p 38 of the pre-trial conferences bundle):
“The claimants are able to point out, by way of an inspection in loco, the location, portions and
extent thereof, occupied by them before they were removed from the land.”
3
[7] After several pre-trial conferences, the hearing commenced on 18 March
2009. The claimant, as plaintiff, was responsible for indexing and collating the
Court’s papers. The papers were very voluminous. The indexing and collating
were not properly done. The documents were not arranged in chronological
sequence and many irrelevant documents were included in the bundles. The
Court’s papers were indexed and collated at the very last minute. Counsel did not
have similarly indexed papers. In order for the matter to proceed, the opposing
land owners’ attorneys took it upon themselves to rectify the indexing and
collating. I stood the matter down for a day to enable them to do so.
[8] It would have been difficult to proceed with the hearing without proper maps.
The RLCC did not provide proper maps. In fact, the RLCC did not conduct any
mapping exercise of note. The land owners, again in order to get the matter to
proceed, had proper and very useful maps prepared at their own cost, and made
them available at the hearing. They also provided a number of aerial
photographs.
[9] It became apparent, after the first two witnesses called by the claimants had
testified, that the above two grounds of opposition raised by the land owners had
merit. The hearing was then postponed sine die and further conferences followed
to explore a way forward.
[10] Restitution of rights in land can be by way of restoration of the land which the
claimants was dispossessed of, or by way of equitable redress. 5 Equitable
redress can take the form of monetary compensation or an award of alternative
state-owned land. The claimants wanted restoration, and this was recommended
5
See the definitions of “restitution of a right in land”, “restoration of a right in land” and “equitable
redress” in sec 1 of the Restitution Act.
4
by the RLCC. The RLCC was well aware of the grounds of objection raised by
the land owners, but disregarded them when making this recommendation.
[11] It was evident from the evidence of the two witnesses and from debates at
the conferences that the claimants are faced with the following difficulties: Firstly,
it would be arduous and time-consuming to identify the individual patches of land
occupied by each of the claimant families on the properties. 6 It became apparent
that the situation and extent of many of them would be disputed. Secondly, it
might not be feasible to restore to the claimant a large number of small individual
tracts of land excised from intensively farmed land units. Thirdly, the individual
tracts of land were occupied by members of the claimant, not by virtue of shared
rules governing access to land held by them in common, but on terms imposed
by the white owners of the properties. The community claim may well have to be
converted into a large number of individual restitution claims, which might not be
achievable under the Restitution Act 7 and which will involve considerable costs
and delays.
[12] Faced with these difficulties, the claimants decided to opt for financial
compensation rather than restoration of the tracts of land which the individual
families were dispossessed of, with the exception of five properties, all belonging
to the 11th defendant (the Ingonyama Trust). The result was that none of the
properties except the aforesaid five remained subject to the claim for restoration.
This was placed on record at a pre-trial conference held on 11 September 2009.
The claimant’s demand for restitution in the form of financial compensation is still
pending in this Court. I will at this point in time say no more about it.
6
The claimants submitted a list of families who resided on each of the properties. In total, 99 families were
listed. The list is contained in the pre-trial conferences bundle, pp 39-42.
7
I express no opinion on this issue.
5
[13] At a subsequent pre-trial conference held on 21 February 2010, I was
informed that the claimants are no longer claiming the five Ingonyama Trust
properties. In fact, the claimants never intended to claim those properties. The
properties were included in the Government Gazette notice by mistake. The
cadastral descriptions of some of the claimed land as ascertained by the RLCC
were wrong. This error came to light after the maps prepared and aerial
photographs provided by the opposing land owners became available. The
outcome is that the five properties are no longer subject to a restoration claim.
[14] The opposing land owners (and also the Ingonyama Trust) incurred
substantial costs before reaching the hearing stage of the proceedings. They
applied for cost orders against the Commission and/or against the claimants. I
heard their applications in Pietermaritzburg on 24 February 2010.
[15] It has in the past been the practice of this Court not to make cost orders in
cases wherein restitution of land rights are claimed 8, unless there are special
circumstance which warrant a cost order9. The practice of not making cost orders
is based on the litigation being “in the genre of social litigation” 10 or being “public
interest litigation”.11 The practice conforms with the general rule applicable in
constitutional litigation that in the absence of special circumstances, an
unsuccessful litigant ought not to have to pay his opponent’s costs. 12
8
See for example In re Kranspoort Community 2000 (2) SA 124 (LCC) at 185 A-D, In re Former
Highlands Residents 2000 (1) SA 489 (LCC) at 498B-C, Boltman v Kotze Community Trust [1999] JOL
5230 (LCC) and Minister of Land Affairs and Another v Slamdien and Others [1999] 1 All SA 608 (LCC).
9
See for example Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal
1998 (2) SA 900 (LCC) at 930G-931C, Hurenco Boerdery (Pty) Ltd v Regional Land Claims
Commissioner Northern Province, and Another 2003 (4) SA 280 (LCC) at 281G-282D, Dukuduku
Community v Regional Land Claims Commissioner KZN 2006 (3) SA 515 (LCC).
10
Department of Land Affairs v Witz: in re various portions of GrassyPark 2006 (1) SA 86 (LCC) at 102A.
11
In re former Highlands Residents (supra 8) at 498B.
12
See Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at
297A-B.
6
[16] The right to restitution of property dispossessed as a result of past racially
discriminatory laws or practices is a constitutional right. 13 It originates from
section 25(7) of the Constitution14, which reads as follows:-
“25.
(7)
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.”
Parliament enacted the Restitution Act to fulfill its constitutional obligation under
section 25(7).15
[17] The following subsections of section 25 of the Constitution also impact on
land restitution:
“25.
(1)
No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation
of property.
(8)
No provision of this section may impede the state from taking
legislative and other measures to achieve land, water and
related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions of
this section is in accordance with the provisions of section 36(1).”
13
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) at 211D212A.
14
Act 108 of 1996.
15
Chaskalson P held as follows in Transvaal Agricultural Union v Minister of Land Affairs and Another,
1997 (2) SA 621 (CC) at 633 D-F:
“[36] The restitution of land rights is a complex process in which the rights of registered owners
and other persons with an interest in the land must be balanced against the constitutional
injunctions to ensure that restitution be made where this is just and equitable. Parliament is given a
discretion by the Constitution to decide how this process is to be carried out.” (my underlining)
7
It follows from the above that litigation concerning restitution of rights in land is
constitutional litigation if it is undertaken to assert or defend a constitutional right
(which, in casu, could be a right to restitution and or a right in property) 16 . That is
one of the reasons why this Court, in the absence of special circumstances, did
in the past not make cost orders in such cases.
[18] In a recent Constitutional Court judgment, Biowatch Trust v Registrar,
Genetic Resources and Others, 2009 (6) SA 232 (CC), Sachs J gave guidelines
on the proper judicial approach to be followed in determining cost awards in
constitutional litigation. He commenced by stating (at 239 H-I) that –
“Without attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of their costs can depend on circumstances such as,
for example, the conduct of the parties, the conduct of their legal representatives,
whether a party achieves technical success only, the nature of the litigants and
the nature of the proceedings. I mention these examples to indicate that the
principles which have been developed in relation to the award of costs are by
their nature sufficiently flexible and adaptable to meet new needs which may
arise in regard to constitutional litigation. They offer a useful point of departure. If
the need arises the rules may have to be substantially adapted; this should
however be done on a case by case basis. It is unnecessary, if not impossible, at
this stage to attempt to formulate comprehensive rules regarding costs in
constitutional litigation.”
16
Sachs J held in Biowatch Trust v Registrar, Genetic Resources and Others, 2009 (6) SA 232 (CC) at
244C-245A:
“It bears repeating that what matters is not the nature of the parties or the cause they advance but
the character of the litigation and their conduct in pursuit of it. This means paying due regard to
whether it has been undertaken to assert constitutional rights and whether there has been
impropriety in the manner in which the litigation has been undertaken.” (my underlining)
See also the dictum of Chaskalson P in the Transvaal Agricultural Union case quoted in n 12 above and the
Goedgelegen Tropical Fruit case referred to in n 13 above.
8
The learned judge then proceeded to identify a number of signposts which the
Court could and should follow in exercising its discretion on the award of costs.
[19] The following principles enunciated by the learned judge applies to all
constitutional litigation:
“[17] Section 9(1) of the Constitution provides that everyone is equal before the
law and has the right to equal protection and benefit of the law. No party to court
proceedings should be endowed with either an enhanced or a diminished status
compared to any other. It is true that our Constitution is a transformative one
based on the understanding that there is a great deal of systematic unfairness in
our society. This could be an important, even decisive factor to be taken into
account in determining the actual substantive merits of the litigation. It has no
bearing, however, on the entitlement of all litigants to be accorded equal status
when asserting rights in a court of law. Courts are obligated to be impartial with
regard to litigants who appear before them. Thus, litigants should not be treated
disadvantageously in making costs and related awards simply because they are
pursuing commercial interests and have deep pockets. Nor should they be
looked upon with favour because they are fighting for the poor and lack funds
themselves. What matters is whether rich or poor, advantaged or disadvantaged,
they are asserting rights protected by the Constitution” 17
[20] It was furthermore held in the Biowatch case that in litigation between the
State and private parties seeking to assert a constitutional right, the State should
ordinarily pay the costs if it loses. The rationale for this general rule is threefold 18:
“In the first place it diminishes the chilling effect that adverse costs orders would
have on parties seeking to assert constitutional rights. Constitutional litigation
frequently goes through many courts and the costs involved can be high.
Meritorious claims might not be proceeded with because of a fear that failure
17
18
Page 242B-F of the judgment.
Page 246D-H of the judgment.
9
could lead to financially ruinous consequences. Similarly, people might be
deterred from pursuing constitutional claims because of a concern that even if
they succeed they will be deprived of their costs because of some inadvertent
procedural or technical lapse. Secondly, constitutional litigation, whatever the
outcome, might ordinarily bear not only on the interests of the particular litigants
involved, but also on the rights of all those in similar situations. Indeed, each
constitutional case that is heard enriches the general body of constitutional
democracy. Thirdly, it is the State that bears primary responsibility for ensuring
that both the law and State conduct are consistent with the Constitution. If there
should be a genuine, non-frivolous challenge to the constitutionality of a law or of
State conduct, it is appropriate that the State should bear the costs if the
challenge is good, but if it is not, then the losing non-State litigant should be
shielded from the costs consequences of failure. In this way responsibility for
ensuring that the law and the State conduct are constitutional is placed at the
correct door.”
The learned judge added a note of caution by stating:
“If an application is frivolous or vexatious, or in any other way manifestly
inappropriate, the applicant should not expect that the worthiness of its cause will
immunize it against an adverse costs award.” 19
[21] In conclusion, the learned judge emphasized that –
“…particularly powerful reasons must exist for a court not to award costs against
the State in favour of a private litigant who achieves substantial success in
proceedings brought against it.” 20
19
20
At 247A-B of the judgment
At 247B-C of the judgment
10
[22] I turn to the restitution process. Only claims lodged with the Land Claims
Commission on or before 31 December 1998 are valid. The claims are
investigated by the Regional Land Claims Commissioner for the area concerned.
If the RLCC is satisfied that the claim was timeously lodged, that it is not
precluded by section 2(1) of the Restitution Act and that it is not frivolous or
vexatious, he or she must give notice of the claim in the Government Gazette.
Further investigations by the RLCC follow thereafter. If a settlement of the claim
is not achieved, it must be referred to the Land Claims Court by way of a formal
notice of referral.21 A copy of the notice must be served on all interested parties
(including the claimant and the land owners).
[23] A claim for the restoration of land (being a form of restitution of a right in
land) is a claim against the State.22 Where a landowner opposes a land
restoration claim on its property, it opposes a demand by the claimant that the
State acquire or expropriate the property in order to transfer it to the claimant.
There is no lis between the claimant and the property owner.
[24] The RLCC actively participated in the proceedings before this Court. After
the commencement of the proceedings, it amended its report delivered in terms
of sec 14(2) of the Restitution Act. Annexed thereto is a so-called Investigation
Report prepared for the RLCC by Mr M P Zuma, dated 18 February 2003 23. The
report contains the following paragraphs sv “History of dispossession as
described by Claimants” (I quote verbatim):
“The RLCC has held a series of meetings with the community during it indicated
to the Commission that they were mentioned farms between 1921-1978. Before
this period the community enjoyed beneficial occupation rights. The claimants
21
Sec 14(1) of the Restitution Act.
Sec 35(1)(a) read with sec 42A of the Restitution Act.
23
The investigation report is contained in pp 35-37 of the pleadings bundle.
22
11
have indicated to the Commission that they enjoyed grazing as well as planting
rights. When whites arrived in the area in 1900. Relations between them and the
community were good.white farmers and the community lived side by side
peacefully. However in the 1920s relations started to deteriorate as farmers
suddenly instructed the local community to move from the land they were
occupying. The reason given by the white farmers was that they had bought the
land from the government.
The wards or Izigodi affected were Chameni, Faye and Isikhoto. People that
were residing on these wards. These wards were turned into farms and all
people that were residing on them became labour tenants.
[25] The opposing land owners pointed out to the RLCC in representations
submitted to it under sec 11A of the Restitution Act and also in its formal
response to the referral report that the farms comprising the claimed properties
were all surveyed in the 19th century. The first Deeds of Grant for each farm were
issued as follows:
Applesbosch to P H van Rooyen in 1853
2.
Newlands to J Kirkham in 1860.
3.
Marchmont to J Gifford in 1895
4.
Lot R4 to A Gordon in 1906
5.
Lot R5 to J M Culverwell in 1911
6.
Little Noodsberg to W H Acutt and D
Leslie in 1864
7.
Lot 18B to A D Gilson in 1892
[26] The opposing land owners demonstrated convincingly that the properties
were already held under private title when the alleged dispossession commenced
during or about 1921. This fact, so they say, disproves the averment that the
properties or any right therein was held by a community as defined in sec 1(iv) of
12
the Restitution Act.24 Despite all evidence to the contrary, the RLCC maintained
that the alleged community owned the properties or alternatively occupied the
properties under a trust arrangement. 25
[27] In a formal reply (dated 31 October 2008) to the response delivered by the
opposing land owners, the RLCC submitted as follows: 26
“a)
S2 of the Act defines “community” as “unless the context indicated
otherwise, a community was any group of persons whose rights in land
were derived from shared rules determining access to land held in
common by such group and includes part of any such group.
b)
Through the investigation, the RLCC concluded
that the Plaintiff constituted a sufficiently cohesive group of persons.
c)
Through the investigation, the RLCC concluded
that the Plaintiff demonstrated some element of commonality with the
community as it was at the time of dispossession.
Therefore the RLCC is satisfied that the requirements of S2(1)(d) of the
Restitution Act were fulfilled.27
24
The definition is contained in sec 1 of the Act and reads as follows:
“”community” means any group of persons whose rights in land are derived from shared rules
determining access to land held in common by such group, and includes part of any such group;”
25
The relevant paragraphs of the amended referral reads as follows:
“3.1
The claimant’s rights to the claimed land derives from the fact that they had beneficial
occupation and/or ownership of the claimed land for a period in excess of ten (10) years,
under the then traditional system of land tenure, prevalent in Natal at the time, whereby
the land was held in trust by traditional leaders of the community.
3.2
At the time of dispossession the claimant community owned, alternatively enjoyed
beneficial occupational rights under the trust arrangement, by virtue of being members of
a “traditional community”, so constituted by reason of common cultural values and
norms.”
Page 11 of the pleading bundle.
26
Pages 98 and 99 of the pleadings bundle.
27
Sec 2(1)(d) of the Restitution Act reads as follows:
“(1) A person shall be entitled to restitution of a right in land if(d) it is a community or part of a community dispossessed of a right in land after 19 June
1913 as a result of past racially discriminatory laws or practices;”
13
[28] At the time of the formal reply by the RLCC, the judgment of the
Constitutional Court in the Goedgelegen case was already delivered and
published in the South African Law Reports. 28 In this case, Moseneke DCJ held
as follows29:
“The acid test remains whether the members of the Popela Community [the
claimants] derived their possession and use of the land from common rules in
1969. The answer must be in the negative. By then each of the families within the
community had been compelled to have its own separate relationship with the
Altenroxels [the land owners]. They pointed out the land for use by each family.
They ordered them to dispense with their livestock. They required them
singularly, and often also their children as young as 10 years, to toil on the farm if
they were to live there.”
Later in the judgment30, Moseneke DCJ said
“In any event, at its very core, labour tenancy under the common law arises from
a so-called innominate contract between the landowner and the labour tenant,
requiring the tenant to render services to the owner in return for the right to
occupy a piece of land, graze cattle and raise crops. In name, it is an
individualized transaction that requires specific performance from the contracting
parties. This means that labour tenancy does not sit well with commonly held
occupancy rights. It is a transaction between two individuals rather than one
between the landlord and a community of labour tenants.” (my underlining)
[29] In the case of Gamevest (Pty) Ltd v Regional Land Claims Commissioner 31,
Olivier JA stated that the claim procedure for the restitution of land rights is
divided into four phases, viz:
28
2007(6) SA 199(CC).
At 215 D-F of the judgment
30
At 215G-216A.
31
2003 (1) SA 373 (SCA) at 379C-380H.
29
14
32
1.
the lodgement of the claim;
2.
the “acceptance” of the claim by publication thereof in the
Governement Gazette;33
3.
the investigation of the claim;34 and
4.
the referral of the claim.35
The opposing landowners contend that the third (investigative) phase of the claim
procedure was not properly conducted by the RLCC.
[30] The RLCC should have recognized that it were individual families and not a
community that was dispossessed. The RLCC should also have recognised that
the individual families did not occupy the entire extent properties which are being
claimed, but at best only portions thereof. 36 The resistance to the claim for
restoration by the opposing landowners was therefore fully warranted. 37
[31] The RLCC stuck to his findings despite the opposing land owners’
submissions under sec 11A of the Act, and maintained his stance even after
delivery of the opposing landowners’ response in this Court. 38 He should have
realized much earlier that the claim for restoration, in the form in which it was
submitted, cannot succeed. It is apparent, not only from the oral evidence
submitted by the claimants, which evidence must have been available during the
32
Sec 10 of the Restitution Act.
Sec 11(1) of the Restitution Act.
34
Ss 11(6), (7) and (8) of the Restitution Act.
35
Sec 14 of the Restitution Act.
36
In terms of sec 11(1) of the Restitution Act the RLCC must cause notice of a claim to be published in the
Government Gazette if he is satisfied, inter alia, that the claim is not precluded by the provisions of section
2. He engages in administrative action when taking that decision – see Gamevest (Pty) Ltd v Regional Land
Claims Commissioner, Northern Province and Mpumalanga and Others, 2003 (1) SA 373 (SCA) at 380AC.
37
They have every right to protect their property from unjustified expropriation and against invalid land
claims.
33
38
15
investigative process, but also from Mr Zuma’s Investigation Report of 18
February 2003.39
[32] The Commission is an organ of State40. It’s functions in terms of sec 6(1) of
the Restitution Act include the following:
“(a)
subject to the provisions of section 2, receive and acknowledge receipt of
all claims for the restitution of rights in land lodged with or transferred to it
in terms of this Act;
(b)
……
(c)
……
(cA)
investigate the merits of claims contemplated in paragraph (a);
(cB)
……
(d)
……
(e)
define any issues which may still be in dispute between the claimants
and other interested parties with a view to expediting the hearing of
claims by the Court;
(eA)
draw up reports on unsettled claims for submission as evidence to the
Court and present any other relevant evidence to the Court;
(f)
……”
In short, the Commission manages the restitution process on behalf of the State.
39
40
See par [24] above.
Sec 239 of the Constitution, 1996, contains the following definition of “organ of state”:
“’organ of state’ means –
(a)
any department of state or administration in the national, provincial or local sphere of
government; or
(b)
any other functionary or institution
(i)
exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of any
legislation,
but does not include a court or a judicial officer;
16
[33] This Court, seized with litigation under the Restitution Act, must deal with
conflicting constitutional rights41. A claimant who qualifies42 has a constitutional
right to seek restitution of land rights which were taken from him. A landowner
has a constitutional right to preserve his property. The RLCC should not favour
any of them to the disadvantage of the other. The RLCC is a central role player,
with the task of deciding whether or not a claim is prima facie valid.
[34] Oliver JA stated Gamevest (Pty) Ltd v Regional Land Claims Commissioner,
Northern Province and Mpumalanga, and Others 43 that “this is not a task that can
be done in a superficial, cursory manner”. If the RLCC is satisfied that the claim
appears to be in order, he proceeds to publish it. Thereafter, he conducts a futher
investigation, and attempts to resolve the claim through mediation and
negotiation. If a land owner believes that a restitution claim is not valid, or that
the claimant is claiming more than what he is legally entitled to, he has the right
to shield himself and his property against such a claim. His resistance is against
the State which, through the RLCC, has decided that the claim is prima facie
valid. Because neither the RLCC nor the State can be the final adjudicator of a
dispute over the validity of a claim, the Land Claims Court was given that duty.
As part of that duty44, the Court was given a wide discretion to make cost
orders.45
[35] In my view, as long as the parties concerned, namely the claimants and the
landowners, act in good faith by participating in the litigation, none of them
should be treated differently from the others 46. They are all in litigation with the
41
Cf the dictum of Chaskalson P in the Transvaal Agricultural Union case quoted in n 12 above.
Claimants who qualify are listed in sec 2(1) of the Restitution Act.
43
2003(1) SA 373 (SCA) at 387B.
44
See Mahlangu NO v Minister of Land Affairs and Others 2005(1) SA 451 (SCA) at452I-J.
45
In terms of Sec 35(2) (9) of the Restitution of Act the Land Claims Court –
“may make such orders for costs as it deems just, including an order for costs against the State or
the Commission.” (my underlining)
46
It is commonly known that in many cases the State funds the legal costs of restitution claimants. It does
so pursuant to sec 29(4) of the Restitution Act, which reads as follows:
42
17
State, represented (in this case) by the RLCC. Where the position taken by the
RLCC was shown to be untenable, costs should be awarded against the
Commission. This approach is in line with the judgment in the Biowatch case47, to
which I have already referred.48
[36] Mr Choudree submitted, with reference to the case of Ferreira v Levin49 that
no special reasons exist why the State must pay the costs of the landowners.
Sachs J considered Ferreira v Levin in his Biowatch judgment, and said:50
“The need for flexibility and a careful case-by-case approach was in fact
emphasized in one of the first cases heard by this court, Ferreira v Levin. In a
judgment on costs given separately from the judgment on the merits, Ackermann
J pointed out that the courts have over three years developed a flexible approach
to costs which proceeds from two basic principles, the first being that the award
of costs, unless otherwise enacted, is in the discretion of the presiding judicial
officer, and the second that the successful party should, as a general principle,
have his or her costs.
During the 13 years that have passed since Ferreira v Levin was decided we
have indeed gained considerable experience of costs awards made on a caseby-case basis. A number of signposts have emerged. Without departing from the
general principle that a court’s discretion should not be straitjacketed by inflexible
rules, it is now possible and desirable, at least, to develop some general points of
departure with regard to costs in constitutional litigation.”
“Where a party can not afford to pay for legal representation itself, the Chief Land Claims
Commissioner may take steps to arrange legal representation for such party, either through the
State legal aid system or, if necessary, at the expense of the Commission.”
In the light of the principles enunciated in the Biowatch case (supra), this section might well discriminate
unfairly against more affluent litigants in land restitution matters.
47
2009(6) SA 232 (CC).
48
See [18] – [21] above.
49
Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others, 1996 (2) SA 621
(CC).
50
At p 239D-E and H-I.
18
I have already set forth the “points of departure” developed in the Biowatch
case51 and observed them in reaching my conclusion.
[37] Mr Choudree also referred me to the case of Ndebele-Ndzundza Community
v Farm Kafferskraal No 181 JS52, where Moloto J declined to order the State to
pay the landowner’s costs incurred in the hearing of a claim for the restitution of
land rights. Moloto J expressed himself as follows 53:
“ The reason for costs is generally that the party ordered to pay such costs has
lost. That the State pays its own costs or costs of the claimants cannot be a
reason for the State to be ordered to pay the opposing parties’ costs. The State
pays it own costs and those of the Commission because it and the Commission
had certain views about the case which they wanted to represent in the trial. The
State did not disclose to the Court why it paid the claimant’s costs, and was
entitled not to do so. Similarly, it is not correct to say the Department
(presumably the DLA and the Commission) made no attempt to assist in the case
and conceded the claim. They assisted by engaging counsel to argue the case
from their point of view and the Court found such argument invaluable.”
The above approach was generally adopted by this Court in the past in respect of
the State’s and the Commission’s participation in litigation for the restitution of
land rights. It has, however, been overridden by the “points of departure” set forth
in the Biowatch case. It is no longer necessary for there to be exceptional
reasons before costs can be awarded against the State in land restitution
litigation.
[38] Even if the approach set forth in the Biowatch case (supra) is not followed, a
cost order against the Commission would still be appropriate in this case
because of the inadequate manner in which the RLCC investigated and
51
In paras [18] – [21] above.
2003(5) SA 375 (LCC).
53
At 395B-C of the judgment.
52
19
presented the case.54 The Commission, as an organ of state, bears an obligation
to ensure that the work of this court is not impeded by inadequate investigation
and that time is not unnecessarily spent on claims which, in the form in which
they were referred to the Court by the RLCC, can manifestly not succeed. 55 The
RLCC failed in this duty. 56
[39] The opposing land owners asked for costs on an attorney and client scale. 57
I am not convinced that a punitive cost order against the Commission is justified.
It is well-known that the RLCC in KwaZulu-Natal suffered and still suffers serious
capacity problems and staff shortages. There was no willful neglect on the part of
the RLCC officials, although I do find the cold shoulder presented to the opposing
land owners during the investigation of the claim regrettable. I am also distressed
that the RLCC did not comply or timeously comply with a number of directives
which I gave at pretrial conferences prior to the hearing. However, during the
hearing itself and also at pretrial conferences subsequent to the hearing the
RLCC officials and particularly the counsel and attorney briefed by the RLCC
were very cooperative and supportive of the efforts to find solutions to the many
difficulties besetting the case. I will therefore not make any punitive cost order
against the RLCC.
[40] The RLCC is not solely to blame for all the delays. The claimant in restitution
proceedings has the same duties as a plaintiff in an action. 58 Blame for the failure
to index and collate the Court’s papers properly must be laid at the door of the
54
A cost order was made against the Commission in Farjas (Pty) Ltd and Another v Regional Land Claims
Commissioner, KwaZulu-Natal 1998(2) SA 900 (LCC).
55
Compare the remarks by O’Regan J in South African Liquor Traders’ Association and Others v
Chairperson, Gauteng Liquor Board, and Others 2009(1) SA 565 (CC) at 581D-F.
56
See the judgment of Moloto J in Dukuduku Community v Regional Land Claims Commissioner, KZN,
2006 (3) SA 515 (LCC) at 514I-515B where the learned judge considered a similar failure by a Regional
Land Claims Commissioner to do a proper investigation, as a result whereof he decided to award costs
against him.
57
An attorney and client cost order was made in the Liquor Traders’ Association case [supra note 50],
where an organ of state failed to comply with its duties.
58
Rule 38(9) read with rule 56 of the Land Claims Court rules.
20
claimant’s attorneys.59 The RLCC indicated during argument before us that it will
accept liability for any cost order which the Court might make relating to this
failure, provided the costs are awarded on a party and party scale. 60
[41] The Ingonyama Trust was made aware of the restitution claim on 7
December 2007.61 On 6 November 2008 it addressed a letter to the RLCC,
reading as follows:
“I refer to the land claim lodged by Kusile Community which includes the above
properties owned by the Ingonyama Trust.
In order that an informed reaction to this claim can be given I am instructed by
the Board to request the following information from you:
1.
A detailed map showing the extent of the claim in respect of land owned
by the Trust i.e. does the claim cover the whole of the above properties
or parts thereof only?
2.
Full details and history of the claim evidencing the Kusile Community’s
rights to the land;
3.
An indication of the compensation payable to the Board for the loss of
the land;
4.
Confirmation that all the communities through their Traditional Council
structures, occupying the land surrounding the properties have been fully
consulted and have agreed to the claim;”
The RLCC did not adress the issues raised by the Ingonyama Trust in the above
letter.
59
I must add, in fairness, that the claimant’s local attorneys instructed correspondents in Randburg to
collate and index the Court’s papers. The correspondents were not familiar with the case.
60
The legal costs of the claimant is funded by the Commission. Mr Choudree, in his argument before us,
indicated that the State will set off any costs which it has to pay as a result of remissness on the part of the
claimants’ attorney against any payment of compensation which the State might make to the claimants.
61
The papers were served on the Ingonyama Trust on that date. See the return of service, p 17 of the notices
bundle.
21
[42] After a proper mapping exercise was undertaken by the opposing land
owners (something the RLCC should have done), it appeared that the claimant
never intended to claim the Ingonyama Trust properties listed in the Government
Gazette of 25 June 2004. The properties were wrongly included by the RLCC as
part of the claimed land. The Ingonyama Trust had every right to participate in
the proceedings before this Court to protect its ownership of its properties. Had
the RLCC conducted a more thorough investigation of the claim, especially after
receipt of the letter of 6 November 2008, the participation of the Ingonyama Trust
in these proceedings would not have been necessary. In my view, the
Ingonyama Trust is entitled to a cost order against the Commission.
[43] For the reasons set forth above, the following order is hereby made:
(a)
The Commission must pay the costs, taxed as between party and
party, incurred by the 1st to the 10th defendants in these
proceedings, including:
(i)
the costs of all hearings, pre-trial conferences, consultations
and inspections;
(ii)
the costs of collating, indexing and paginating the Court’s
papers and making copies thereof where necessary;
(iii)
the costs of obtaining, preparing and copying the maps and
aerial photographs used in the proceedings, including the
fees and charges of all professionals employed for purposes
thereof;
(iv)
the fees and disbursements of the agricultural expert Mr
Clive Henderson;
(v)
the fees and disbursements of both the instructing attorneys
(Cox & Partners) and their Pietermaritzburg correspondents;
22
(vi)
the costs of two counsel, including their costs of attending
pretrial conferences, consultations and inspections in
preparation for the hearing; and
(vii)
the reasonable travelling and accommodation costs of
counsel, the instructing attorney and the agricultural expert
Mr Clive Henderson incurred in preparation for the hearing
(including consultations and inspections) and in attending
pretrial conferences and the hearing itself.
(b)
The Commission must pay the costs, taxed as between party and
party, incurred by the 11th defendant in these proceedings.
____________________
A GILDENHUYS
Judge of the Land Claims Court
I agree
____________________
M WIECHERS
Assessor
Appearances
For the 1st to 10th defendants:
Mr ABT van der Merwe
Cox & Partners
For the 11th defendant:
23
Mr P K Coetzee
Mason Incorporated
For the Regional Land Claims Commissioner, the Chief Land Claims
Commissioner and the Minister of Land Affairs:
Mr RBG Choudree SC
instructed by
The State Attorney – KwaZulu-Natal
24