[Home] [Databases] [WorldLII] [Search] [Feedback] South Africa: Land Claims Court

You are here:  SAFLII >> Databases >> South Africa: Land Claims Court >> 2005 >> [2005] ZALCC 6

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Hlaneki and Others v Commission on Restitution of Land Rights and Others (LCC43/02) [2005] ZALCC 6 (9 September 2005)

.PDF of original document

.RTF of original document

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC43/02

Held in Randburg on 02 August 2005

Before Moloto J and Zybrands A (assessor)

Decided on: 09 September 2005

In the matter of :

CHABANE JACKSON HLANEKI First Applicant

TRIBAL AUTHORITY OF THE HLANEKI TRIBE Second Applicant

HLANEKI TRIBE Third Applicant

And

COMMISSION ON RESTITUTION OF LAND RIGHTS First Respondent

REGIONAL LAND CLAIMS COMMISSIONER, [LIMPOPO] Second Respondent

REGIONAL LAND CLAIMS COMMISSION, [LIMPOPO] Third Respondent

BASEME WILLIE MASWANGANYI Fourth Respondent

MASWANGANYI COMMUNITY Fifth Respondent

MINISTER OF LAND AFFAIRS Sixth Respondent

JUDGMENT

MOLOTO J:

1. This is an application in terms of the Restitution of Land Rights Act¹ (“the Act”) for the review of certain decisions and acts of the first, second and third respondents. The fourth and fifth respondents were joined for any interest they may have in the outcome of the application. It appears to be common cause that the fourth and fifth respondents reside in the area of jurisdiction of the third applicant. In any case, the fourth respondent lodged a land claim on behalf of the fifth respondent with the third respondent and part of the land so claimed overlaps with the land claimed by the third applicant. The third respondent is said to be the Regional Land Claims Commission. There is no such entity, however nothing turns on it.

2. The first applicant lodged a land claim with the third respondent on behalf of the third applicant. The claim was lodged on 28 December 1998, and a number of annexures were lodged with the claim form. By letter dated 8 May 2002, and over the signature of the second respondent, the third respondent dismissed the third applicant’s land claim. The letter read, in part, that-

3. (1) the “land claim has failed to comply with subsection 3 of section 10 of the Restitution of Land Rights Act, 1994 ----, because Chief Hlaneki lodged the claim on behalf of the Hlaneki Tribe and did not have the required mandate from the Tribe to lodge the claim on its behalf.”

5. (2) That “the Hlaneki Tribe is claiming the same area it is currently occupying. This therefore means that the Tribe was never dispossessed of any land rights on the said area as it is still occupying it.”

7. (3) “In essence, the Regional Land Claims Commission: Limpopo Province finds the Hlaneki Tribe land claim to be frivolous and vexatious”

9. (4) “The land claim is thus dismissed until the Tribe can provide this office with extrinsic information, which will justify the land claim.”

11. From the above, the issues to be decided were formulated as follows:

13. - the decision that the claim has not been lodged in the prescribed manner, with particular reference to the provisions of section 10(3) of the Act.

15. - the decision that the claim is precluded by the provisions of section 2 of the Act, in particular that the Hlaneki Tribe was not dispossessed of any rights in land.

17. - the decision that the claim lodged by the Hlaneki Tribe is frivolous and vexatious and stands to be dismissed in terms of section 11(3) of the Act.

18. - the decision, as a result of the aforegoing, not to cause notice of the claim to be published in the Government Gazette in terms of section 11(1) of the Act and not to further investigate the claim after publication.

20. And

• Costs.

23. Review Proceedings:

3. It is important to establish the law applicable in prosecuting review proceedings, before dealing with the actual review itself. Mr. Shakoane, for the first, second and third respondents, argued that an application for review is to be brought on one or more of the grounds of review to wit, the existence of an irregularity or procedural impropriety, illegality, lack of jurisdiction and irrationality. In addition, so it was submitted, the applicants are required to allege and prove the grounds they rely upon in their supporting affidavits. In support of this submission we were referred to a long list of authorities². To the extent that these authorities support Mr Shakoane’s contention, they propound the common law grounds of review. The grounds of review have been codified into the Promotion of Administrative Justice Act³ (“PAJA”), which was enacted after the dates of most of the authorities referred to.

4. PAJA has broadened the grounds of review. In terms of PAJA administrative action affecting any person must be procedurally⁴ and substantively⁵ fair. In addition to PAJA, section 36 of the Act provides for even wider grounds of review. It provides that –

27. “(1) any party aggrieved by any act or decision of the Minister, Commission or any functionary acting or purportedly acting in terms of this Act may apply to have such act or decision reviewed by the Court.

29. (2) The Court shall exercise all of the Supreme Court’s powers of review with regard to such matters, to the exclusion of the provincial and local divisions thereof.”

5. Mr. Havenga, for the applicants, contended that the application was brought in terms of the Act (section 36) and PAJA. I agree that these two Acts are the law in terms of which the application had to be brought. I turn now to the issues to be decided.

32. (1) Compliance with Section 10(3) of the Act

6. Section 10(3) provides that –

35. “If a claim is lodged on behalf of a community the basis on which it is contended that the person submitting the form represents such community, shall be declared in full and any appropriate resolution or document supporting such contention shall accompany the form at the time of lodgement: Provided that the regional land claims commissioner having jurisdiction in respect of the land in question may permit such resolution or document to be lodged at a later stage.”

7. It is common cause that the claim form states that the claimant is the third applicant and that the basis on which the first applicant contended that he represented the third applicant is that he is the chief of the third applicant. It is also common cause that, with the form was submitted, among others, a document entitled “Gazankulu Wetgewende Vergadering: Sertifikaat van Regsmag: Kaptein Chabane Jackson Hlaneki.” The body of this document grants Chief Chabane Jackson Hlaneki (the first applicant) civil and criminal jurisdiction over his tribe, the third applicant. The document was submitted in substantiation of the contention that the first applicant represented the third applicant in submitting the claim form. None of the respondents queried the validity of the document or the chieftainship of the first applicant over the third applicant. Yet the second and third respondents decided the form did not comply with section 10(3).

8. It is important to note that section 10(3) calls for a “resolution or document” (my emphasis) in support of the contention that the actor represents the principal. It is a well-known fact, which this Court can take judicial notice of, that chiefs act as representatives of their tribes. A document showing that the first applicant acts on behalf of the third applicant by virtue of the powers and jurisdiction he has over the third applicant is sufficient proof of this representative capacity without necessarily necessitating a special resolution authorizing him to lodge the claim. If I am wrong, then it at least calls for further investigation, not summary dismissal. Therefore the second respondent should have been on guard, and rather have investigated the matter further.

9. The proviso to section 10(3) was another procedure open to the first, second and third respondents. They proffer no explanation for not following this procedure, except to say that the claim would still have failed for other reasons. That is not, and should not be, a reason for an adverse finding on this issue. If there are other reasons justifying such a finding, then the claim should have been dismissed for those reasons, not this one.

10. A further alternative procedure was to condone the non-compliance (as they saw it) in terms of section 11(2) which provides that –

42. “(2) The regional land claims commissioner concerned may, on such conditions as he or she may determine, condone the fact that a claim has not been lodged in the prescribed manner.”

11. Indeed this was a case where such condonation would have been appropriate, given the documents submitted and referred to above. That would be so because the following further documents, which tend to support the contention that the first applicant represented the third applicant, were also lodged with the form:

45. (a) Government Notice number 1854 of 29 November 1957 which established a tribal authority for the Hlaneki Tribe under Chief William Makatsana Hlaneki (the first applicant’s father);

47. and

49. (b) the description of the succession of the chiefs of the Hlaneki Tribe, stating that the first applicant is the lawful successor.

12. If the first, second and third respondents were still not satisfied with all the documents referred to above, then they could have acted, and indeed ought to have acted, in terms of section 6(1)(b) which provides that the Commission or Chief Land Claims or regional land claims commissioner must “take reasonable steps to ensure that claimants are assisted in the preparation and submission of their claims.”

13. Failure to act in terms of any of the sections referred to above, coupled with the attitude of the respondents as evidenced in the answering affidavit, demonstrates not only a dereliction of duty, but also a high–handed approach. I find that the applicants substantially complied with the provisions of section 10(3) of the Act and that the actions of the first, second and third respondents in determining that section 10(3) was not complied with, were in breach of section 6(2)(d),(e)(iii) and (vi); and (f)(ii) of PAJA.

53. (2) Compliance with section 2 of the Act:

54. Section 2(1) of the Act states:

55. “(1) A person shall be entitled to restitution of a right in land if-

56. (a)

57. (b)

58. (d) it is community or part of a community dispossessed of a right in land

59. after 19 June 1913 as a result of past racially discriminatory laws or

60. practices; and

61. (e) the claim for such restitution is lodged not later than 31 December

62. 1998.”

14. The claim form states the following in so far as dispossession is concerned:

65. “When we trekked into this area it was unclaimed state land and uninhabited. Our right to possess the land as a tribe was never proclaimed in a Act to enable (sic) us to full title, Historically the land belongs to the tribe. Our right to possess the land was restricted by the racial laws that was (sic) passed. Historically the land belongs to our tribe and not to the state. We were deprived of the mineral rights and the proceeds. It was alienated without our permission and our consent.”

15. Elsewhere on the claim form in response to the question “Other evidence to substantiate your claim:” is the answer “See Bundle,” presumably the annexures to the form. Among the annexures to the form are letters, memoranda, maps and minutes from some of which there are indications of disputes between the third applicant and the fifth respondent. The maps indicate that the fifth respondent resides on land described as belonging to the third applicant. Indeed the applicants allege that there is an overlap between their claimed land and that of the fifth respondent. There is also a reference to disputes about mining iron ore. Whether the loss of mineral rights referred to in the claim form is a reference to this iron ore, is a matter for investigation.

16. The second and third respondents dismissed the applicant’s claim on the grounds that the applicants are claiming the same land which they currently occupy. Therefore, so the reasoning goes, there was no dispossession because the applicants were not physically removed. The said respondents characterise the applicants claim as one for secure tenure and suggest that the applicants’ remedy is to be found in the Communal Land Rights’ Bill and not the Act. The claim form states that the third applicant has been on the land since 1881 which could mean they have indigenous title to the land. They further state that the State has allocated the land or a portion thereof to itself and refuses to recognize the tribe’s title to the land. This could be a dispossession.

17. The second and third respondents seem to interpret a right in land to be physical possession or occupation. This interpretation is not only found in the paragraphs referred to above⁶; it is also found in the answering affidavit. This is a narrow interpretation of “a right in land.” The Act defines “a right in land” as-

71. “any right in land whether registered or unregistered, and may include the interests of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question.” (my emphasis).

18. The definition is wide enough to include the right to tenure security, assuming without accepting, that the second and third respondents are right in their interpretation. Indeed our Courts have recognized the existence of a right in land where no physical removal took place⁷.

19. The claim was dismissed notwithstanding a claim for ownership. This is clearly incorrect as ownership is a right in land. This has been confirmed by the Supreme Court of Appeal⁸ and the Constitutional Court⁹. These Courts found that ignoring The Richtersveld Community’s indigenous rights to ownership by the State was a dispossession. The claim form, in casu, states clearly that the applicants’ right to ownership, including access to minerals, has been dispossessed. The claim form mentions being denied “full title.”

20. The second respondent misinterpreted his functions under section 11(1) and (3) of the Act when he determined the merits of the applicant’s claim. He does not have the power to adjudicate the merits. This Court has rejected the view that the word “satisfied” in section 11(1) means “prove.” Dodson J, as he then was, held as follows:

76. “That, in my view, is not the correct meaning to be attached to the term

77. ‘satisfied’ in relation to section 11(1)(b). It is sufficient if the applicants

78. show in relation to both the factual and legal issues that they have an arguable case, even if the arguments are relatively weak”¹⁰ He went on to say that “to require applicants to prove their cases before the Regional Land Claims Commissioner would be to exceed the Constitutional and statutory mandates conferred on the Commission.”¹¹

21. The approach of Dodson J was referred to by the Supreme Court of Appeal in the matter of Mahlangu N.O. v Minister of Land Affairs & Others.¹² Referring to Dodson J’s statement that a claimant need only to exhibit an “arguable case,” Nugent JA said the following:

81. “In my view, even that threshold might be too high, but it is not

82. necessary in this appeal to decide that question. It is sufficient to say that on the material that is before us, it is doubtful that the commission was entitled to decline to consider the present claim and instead to make alternative recommendations. If that is correct, the community would of course have been entitled to have the commission’s finding and recommendations set aside on review”

22. The Supreme Court of Appeal further confirmed, in the Mahlangu case above, that the Commissioner does not have the power to adjudicate on the merits of the claim, that his function is to receive and investigate claims for restitution and to attempt to resolve them through mediation and negotiation, and that it is only the Land Claims Court that has the power to adjudicate on the merits of the claim if negotiations have failed. This accords with Dodson J’s views in the Farjas case.

23. In a separate but concurring judgment in the Farjas case, Bam P also discussed the interpretation of section 11(1) and (3). He stated that the procedure in section 11(1) is to a large extent a mechanical kind of decision-making and that in respect of the questions whether (i) the claim was lodged in the prescribed manner; or (ii) the dispossession occurred after 19 June 1913; or (iii) whether an order has been made by the Court in respect of the rights relating to the land, the commissioner exercised no independent discretion. He described the proper approach to section 11(1) to be to “view its procedure as a coarse sieve rather than a fine one.”¹³ Only claims that are “patently bogus” or “without substance” or claims which “on a purely mechanical or objectively determinable reasoning, fell outside the parameters of the legislation”¹⁴ may, according to Bam P, be rejected by the commissioner under section 11(1)(c). This approach accords with that of the Supreme Court of Appeal in the Mahlangu case.

24. Mr. Shakoane argued that the date of dispossession mentioned in the claim form disqualifies the claim. That date is stated as 1881, an obvious mistake. That it is a mistake is apparent from the preceding answer on the form which reads as follows:

87. “2 Which department /body acquired the property? The State regards it as its property, although our tribe has inhabited the land since 1881. It were (sic) recognised by the State that the land with the legal rights of ownership belongs to us, because the racial laws and racial Land Act of 1913 deprived us from (sic) full title.”

25. If the deprivation was effected by a 1913 Act, it is quite obvious that to say the dispossession took place in 1881 was a mistake. Even the second respondent saw it as a mistake, for he said the following in the Acceptance Criteria.

90. “In terms of the information provided by Chief Hlaneki in subsection 2.1 of section 2 of the Claim form the alleged dispossession took place around 1881. This date summarily disqualifies the claim by the Hlaneki Tribe in terms of subsection 1(a) of section 2 of the Restitution of Land Rights Act, 1994 (Act 22 of 1994) as amended. Even if what has been written in subsection 2.1 of section 2 of the claim form was to be condoned on the basis of lack of understanding of the question, the Hlaneki Tribe would still not qualify for restitution of land rights as already explained in 3 supra” (my emphasis)

26. The actions of the first, second and third respondents in dismissing the applicants claim on the basis that there was no dispossession, are reviewable on the grounds that they infringe section 6(2)(d), e(iii) and (f) (ii) of PAJA.

93. (3) That the application is frivolous and vexatious

27. The second respondent made the determination that the applicants’ claim is frivolous and vexatious on the basis that there was no dispossession as they still occupied and used the land they are claiming. I have already determined that the decision by the second respondent that there was no dispossession is reviewable. Therefore there can be no basis for the decision that the claim was frivolous and vexatious. It was pointed out in the Farjas case that the concept “frivolous and vexatious” has an established legal meaning. It refers to a claim or legal proceeding “which is pursued where there is plainly no prospect of success and the motive of the claimant or plaintiff is to harass the defendant.”¹⁵

28. The decision by the second respondent that the claim should be rejected on the basis that it is frivolous and vexatious is, in my view, unreasonable and should be set aside. This view is persisted with in the present application. The respondents, in referring to the applicants’ claim used words such as “patently bogus”, “without substance”, “patently devoid of any merits or prospects of success”, “ill-advised”, “fallacious”, “despised” and refer to the review application as an “ostensible abuse” of the court process. This, was high-handed of the respondents.

29. The respondents repeatedly stated that the dismissal of the claim was only “conditional”, and that the applicants should have brought further “extrinsic information” to the Commission instead of bringing this application. What is meant by “Conditional dismissal” is not explained. The applicants lodged their claim on 28 December 1998, three days before the cut-off¹⁶ date for lodging claims. The effect of dismissing the claim on 8 May 2002, was that any re-lodgement of the claim would be out of time. It is cold comfort to suggest that the applicants could pursue the claim in terms of Chapter IIIA¹⁷ of the Act, as that would expose the applicants to the expense of investigating the claim themselves. If the respondents seriously wanted further information from the applicants, then they should have asked for such information without dismissing the claim. The applicants were entitled to bring this application.

30. The applicants are pursuing a constitutional right. The first to third respondents are functionaries who have to receive and investigate the applicants claim in an objective, fair and responsible manner. Yet their approach to both the claim and the application was anything but objective, fair and responsible. In fact Mr Havenga described their approach as “aggressive, almost arrogant, obstructive and seemingly biased”. He decried the treatment they meted out to the applicants as compared to that meted out to the fourth and fifth respondents, and stated that the conclusion is almost inescapable, that the “decisions and actions by the first to third respondents may have been tainted by bias, may have been taken with an ulterior purpose or motive (as yet unexplained), in bad faith or arbitrarily or capriciously. The submission was based also on the manner in which the applicants’ claim was investigated (if at all), compared to the almost meticulous investigation of the fourth and fifth respondents claim. Based on the above, Mr Havenga submitted that the decision that the applicants’ claim is frivolous and vexatious and indeed the decision to dismiss it, stood to be reviewed under section 6(2)(f) and (h) of PAJA. I agree. I would add section 6(2)(d), (e)(ii), (iii), (v), (vi) and (f)(ii).

31. Costs

100. The conduct of the second respondent in handling the applicants’ claim and conducting these proceedings was reprehensible, calling for costs on a punitive scale, if requested. However, Mr Havenga, both in the order prayed and heads of argument, left the scale of the costs in the discretion of the Court. In fairness to him, he added that a special costs order may not be inappropriate. In the premises I will not make a special costs order.

102. Order:

104. The following order is made:

1. The following actions or omissions of the first, second and third respondents are reviewed and set aside:

107. 1.1 the decision that the third applicant’s land claim form does not comply with the requirements of section 10(3) of the Restitution of Land Rights Act, 22 of 1994;

109. 1.2 the failure to investigate the third applicants claim and in particular the failure to request and permit the lodgement of a resolution by the third applicant in terms of section 10(3) of the Restitution of Land Rights Act, 22 of 1994;

111. 1.3 the decision to dismiss the third applicant’s land claim in terms of section 11(3) of the Restitution of Land Rights Act, 22 of 1994.

2. The land claim lodged by the third applicant in terms of the provisions of the Restitution of Land Rights Act, 22 of 1994 on 28 December 1998, substantially complied with the provisions of section 10 of the said Act.

3. The second respondent is ordered to cause notice of the third applicant’s land claim to be published in the Government Gazette and to take steps to make it known in the district in which the land in question is situated in terms of section 11(1) of the Restitution of Land Rights Act, 22 of 1994.

4. The second respondent is ordered to take all further steps in terms of the Restitution of Land Rights Act, 22 of 1994 and the rules of the Commission to bring the third applicant’s land claim to finality, including but not limited to investigating the merits of the third applicant’s land claim and the competing portion of the fifth respondent’s land claim, to mediate and settle any disputes arising from the competing claims, and defining any issues which may still be in dispute between the third applicant and the fifth respondent or any other interested party, with a view to expediting the hearing of the claim by the Court.

5. The first, second and third respondents are ordered to pay costs of the application jointly and severally, the one paying the others to be absolved.

____________________

JUDGE J MOLOTO

I agree,

_________________________

A ZYBRAND – Assessor

118. For the applicant :

119. Adv Havenga

For the first, second and third respondents:

Mr Shakoane instructed by The State Attorneys, Johannesburg.