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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: 68/2006

Heard on : 19 March 2007

Decided on : 7 May 2007

In case between:

BOUVEST 2173 CC FIRST AAPLICANT

HENRI GEERKENS FAMILIETRUST SECOND APPLICANT

HENDRIK LOURENS SCOTT THIRD APPLICANT

MELLOWOOD BELEGGINGS BK FOURTH APPLICANT

JOHANNA MARIA GEYSER FIFTH APPLICANT

JOHANNES JACOBUS NEL SIXTH APPLICANT

WILLEM HENDRIK SAAYMAN SEVENTH APPLICANT

PLAASWELTEVREDEN 508 (PTY) LTD EIGHTH APPLICANT

HERBERG BOERDERY (PTY) LTD NINTH APPLICANT

HENDRIK BERNARDUS VAN DER WALT TENTH APPLICANT

MICHIEL FREDERICK & MARIA S M HORN ELEVENTH APPLICANT

BERGALLEEN BOERDERY CC TWELTH APPLICANT

MARIUA SUSANNA VAN TONDER THIRTEENTH APPLICANT

CASPER JAN HENDRIK VAN DER WALT FOURTEENTH APPLICANT

JAN & SARIE ELIZABETH JACOBS LEWIES FIFTHTEENTH APPLICANT

SOHNEL BOERDERY (EDMS) BPK SIXTEENTH APPLICANT

and

COMMISSION ON RESTITUTION OF LAND RIGHTS FIRST RESPONDENT

REGIONAL LAND CLAIMS COMMISSIONER: LIMPOPO SECOND RESPONDENT

MOKIBELO SATERDAG MOKITLANE THIRD RESPONDENT

BAHLALEROA COMMUNITY FOURTH RESPONDENT

SOIS LESIBA MOSEHLANA FIFTH RESPONDENT

MOKITLANE LAND CLAIM COMMITTEE SIXTH RESPONDENT

MOTSE COMMUNITY SEVENTH RESPONDENT

JUDGEMENT

GILDENHUYS J

[1] This is an application for the review of a decision taken by the Regional Land Claims Commissioner: Limpopo, to publish in terms of section 11(1) of the Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”), notices in the Government Gazette that a claim for the restitution of land rights has been lodged in respect of twenty farms listed in the notices. Two notices were published: notice no. 164 of 2005 and an amendment thereof, being notice no. 893 of 2005. The applicants are farmers who own some of the farms, or portions thereof. The first respondent is the Commission on Restitution of Land Rights. The second respondent is the Regional Land Claims Commissioner: Limpopo. The third to seventh respondents are claimants for the restitution of land rights in respect of the farms.

[2] Four claims for restitution which were submitted on claim forms as prescribed by the Chief Land Claims Commissioner, are of relevance in this matter. The first is a claim form signed by the third defendant (claiming on behalf of himself and his son Malos Mokitlane) in respect of the farm Mooimeisjesfontein 536 LR, dated 4 December 1997. The second is a claim form signed by Malose Johannes Makgae on behalf of the fourth respondent in respect of the farm Burgersvlei 496 LR, dated 7 December 1998. The third is a claim form signed by the fifth respondent (claiming on behalf of the Mosehlana, Maema Shiko and Cheche Monene families) in respect of the farms Dordrecht 578 LR, Moerdijk 598 LR and Gorcum 577 LR, dated 11 August 1996. According to the latter claim form, Philemon Mogobe Mosehlana is the person who lost the right in the land. None of the applicants in this application own any of the above-mentioned five farms. I will refer to the fourth claim form later.

[3] The claims contained in the first three claim forms were investigated by a project officer of the first respondent, Mr J P Sithole. He submitted a so-called acceptance report. Seventeen farms (including the above-mentioned five farms) are listed in par 1.1 of Mr Sitole’s report as being “the land under claim”. He stated in par 2 of his report that the claims lodged by the third, fourth and fifth respondents “on behalf of the [Motse] community comply substantially with the requirements in terms of section 10(3) of the Restitution Act”. In actual fact, the third, fourth and fifth respondents claimed only five of the seventeen farms.

[4] The second respondent accepted Mr Sithole’s report. Notice of the claims of the third, fourth and fifth respondents were then published in the Government Gazette in terms of section 11(1) of the Restitution Act. The notice contains the following statement:

“Mr Mokibelo Saterdag Mokitlane [the third respondent], Johannes Malose Makgae [who claimed on behalf of the fourth respondent], and Sois Lesiba Moshlana [the fifth respondent] lodged the claims on behalf of Motse community on the 12^th December 1997, 10^th December 1998, and 20^th August 1996 respectively.”

The Government Gazette lists twenty farms. Three of them (Alem 544 LR, Lith 541 LR and Baklyplaats 751 LR) are not listed in par 1.1 of Mr Sithole’s report as part of the “land under claim”.

[5] There is a fourth claim form contained in the records of the second respondent. The form is dated 28 December 1998. It was signed on behalf of the sixth respondent, which described itself as the “Mokitlane Land Claim Committee”. There is no reference in the form to the “Motse Community”. The claim form relates to the farms Mooimeisjesfontein 536 LR, Lith 541 LR, Alem 544 LR, Liliefontein 506 LR, Klein Denteren 495 LR, Uitkomst 507 LR, Groot Denteren 533 LR and Haasjesveldt 573 LR. These eight farms form part of the twenty farms listed in the Government Gazette notice as being farms allegedly claimed by the third, fourth and fifth respondents on behalf of the “Motse community”. There is no mention of this claim form in the report by Mr Sithole, nor in the notice published in the Government Gazette. The third, fourth, fifth, sixth and ninth applicants own some of these farms, or portions thereof.

[6] Lastly, there are seven farms listed amongst the aforesaid twenty farms in the Government Gazette notice in respect of which no claim form was presented. The farms are Riebeeck West 539 LR, Biesjeskraal 540 LR, Hottentots-Holland 538 LR, Varkfontein 650 LR, Kirstenbosch 497 LR, Baklyplaats 751 LR and Weltevreden 507 LR. The seventh, eighth and tenth to sixteenth applicants own some of these farms or portions thereof.

[7] The reason provided by the second respondent in his answering affidavit [par 19] for adding these seven farms is the following:

“On the very same basis of re-zoning, re-structuring and change of farm names, more specifically to the ignorance of the claimants in that regard and as to the real names of those farms made, it impossible, if not practically difficult, to know exactly the extend of the farms. After further research was made it was evident that out of the report made those farms were excluded, not necessary that they were not claimed initially.”

[8] The second respondent seems to be saying that the third, fourth and fifth respondents initially did claim these seven farms, but under different names. This is alleged to be the result of re-zoning, re-structuring and changes in farms names. The claimants, so the second respondent says, were ignorant of the “real names” of the farms. There is no evidence in the second respondent’s records of any changes in farm names. The claim forms are very specific, referring to the claimed farms by name and number. The second respondent fails to say which (if any) of the farm names changed, nor how the third, fourth or fifth respondents might have been misled. He did not put forward any rational basis on which he included the seven farms in the claimed land.

[9] In the opposing affidavit delivered by Mr Matlou on behalf of the third, fourth, fifth, sixth and seventh respondents, it is stated (in par 12 thereof) that the last-mentioned seven farms were claimed by the late Mr Matsobane Nkhumane on behalf of the Nkhumane clan, and that it is part of the Motse Community land claim. Mr Matlou avers that the claim was submitted to the Land Claims Commission before the closing date for the submission of claims, but gave no further details. No claim forms in respect of these farms are included in the records which the second respondent submitted to this Court.

[10] There seems to have been no investigation by Mr Sithole as to whether the claim lodged by the 6^th respondent and (allegedly) by Matsobane Nkhumane, complies with the provisions of section 2(2) of the Restitution Act. Neither the acceptance report nor the Government Gazette notices contain any mention of any such claims.

[11] In summary, of the twenty farms referred to in the notices, one was claimed by the third respondent, one by the fourth respondent, three by the fifth respondent, eight by the sixth respondent (including Mooimeisjesfontein, which is also claimed by the first respondent) and seven allegedly by Matsobane Nkhumane. The twentieth farm listed in the notices, Rietspruit 581 LR, does not seem to have been claimed by anybody. As I have said, the applicants own some of the farms (or portions thereof) claimed by the sixth respondent and (allegedly) by Matsobane Nkhumane, but not any of the farms claimed by the third, fourth and fifth respondents in their claim forms.

[12] Included in the records of the second respondent is a document dated 30 April 2002, stating that the “Bahlarwa, Mosehlane and Mokitlane Communities have agreed to bring their files together and appoint one leader to run Land-Affairs” [annexure F to the founding affidavit]. The document contains the names and signatures of a chairperson, a deputy chairperson, a secretary, a deputy secretary and a treasurer who are apparently mandated to drive the claim on behalf of the communities. At the bottom of the document the name “Mokitlane-Mosehlane-Matlou Land Claim Committee” appears.

[13] The inclusion of the seven farms allegedly claimed on behalf of the Nkhumane clan derives from an undated document contained in the records of the second respondent [annexure G to the founding affidavit]. It reads:

MOSEHLANA / MOKITLANE / MATLOU LAND CLAIM COMMITTEE POTGIETERSRUS

“1. The following farms are forming part of a broader land claims and exclusion of these farms shall be viewed as serious mistake in our history:

(Then follows the names of the seven farms)

The deceased Matsobane Nkhumane has lodged the claims with the commission on the above-mentioned farms.

2. We have the following things to justify our claim for the farms: ruins, Kraals, and graves”.

The agreement to establish the Mosehlana / Mokitlane / Matlou Land Claim Committee was recorded on 30 April 2002. The above-quoted document must therefore be of a later date.

[14] Also contained in the records of the second respondent is a resolution dated 2 October 2004 [annexure H to the founding affidavit]. It is signed on behalf of the “Mokitlane Mosehlane Matlou Makgae Community”. Paragraph 3 reads as follows:

“Our Land Claim, which was formerly known as Mokitlane Mosehlane Matlou Community Land Claim will be known as MOTSE COMMUNITY LAND CLAIM.”

[15] The name Motse was chosen as a name under which the various claimants will prosecute their “merged” claim. Notwithstanding the above, the second respondent stated in the notice published in the Government Gazette, after listing the twenty farms, that the third respondent, the fourth respondent and the fifth respondent lodged the claims “on behalf of the Motse Community on the 12^th December 1997, the 10^th December 1998 and the 20^th August 1996 respectively.” That is obviously incorrect.

[16] The second respondent admits that “Motse community” is a “merging name” adopted by the claimants with the permission of the first respondent. He contends that there is no reason to treat the various restitution claimants as individual entities. He says (in paragraph 18 of his answering affidavit);

“The fact that a name of one of the claimant was not initially mentioned does not mean that he was never a claimant. It must be noted that some of claimants were grouped under one name, not necessary that mentioning of one claimant exclude the other community members who were staying with a particular claimant. To avoid confusion the applicant should regard all the claimants as one claimant, the seventh respondent.”

[17] The second respondent also does not deny the applicant’s allegation that the practice to “merge” different claims can have and often has the effect that persons who did not lodge timeous claims would become beneficiaries of restitution through the “merger”. He states (in par 11 of his replying affidavit) that merger is “prudent” in cases where the “geographical area and the history is the same”. In the present instance, the effect of the “merger” is to broaden the claims brought by the third, fourth and fifth respondents in respect of specific farms, to become a “communal” claim which includes communities which have not lodged timeous claims and farms which are not listed in the claim forms of the third, fourth and fifth respondents. For instance, the Matlou community and possibly also the Nkhumane community did not lodge claims by 31 December 1998. They cannot obtain restitution by piggybacking onto other claimants. See In re Former Highlands Residents 2000 (1) SA 493 (LCC) at 495 C-E.

[18] Section 2(1) of the Act provides that a person shall be entitled to restitution of a right in land if-

“(a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(b) …

(c) …

(d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of a past racially discriminatory laws or practices; and

(e) the claim for such restitution is lodged not later than 31 December 1998.”

[19] Under section 6(1) of the Restitution Act, one of the functions of the Land Claims Commission, through a regional land claims commissioner, is to-

“(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;”

[20] Section 11(1) of the Restitution Act provides for the publication of notice of claims in the Government Gazette. It reads as follows:

“(1) If the regional land claims commissioner having jurisdiction is satisfied that-

1. the claim has been lodged in the prescribed manner;

2. the claim is not precluded by the provisions of section 2;

3. …

4. …

he or she shall cause notice of the claim to be published in the Gazette and shall take steps to make it known in the district in which the land in question is situated.

Only if there is prima facie compliance with the requirements of section 2 of the Act, may the Regional Land Claims Commissioner publish notice of the claim in the Government Gazette.

[21] That brings me to the norms which the Regional Land Claims Commissioner must apply to the acceptance of claims. It was held by Dodson J in Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC), that the investigation into the merits of a restitution claim is done only after the claim has been accepted in terms of section 11(1) of the Act. During the acceptance stage, it must only be shown that the claimants have an arguable case. Also in the Farjas case, Bam P held as follows (at 936 G-I):

“However, I am firmly of the view that…total exclusion [of a claim] was intended to occur only in patently bogus claims or claims without substance or claims which on a purely mechanical or objective determinable reasoning, fell outside the parameters of the legislation.”

[22] In Mahlangu NO v Minister of Land Affairs and Others 2005 (1) SA 451

(SCA), Nugent JA referred to the Farjas case and said (at 455D-F) that:

“While s 11(1) of the Act requires a regional commissioner to be satisfied that a claim ‘is not precluded by the provisions of s 2 before the process is set in motion, Dodson J held that a claimant need exhibit only ‘an arguable case’ (at 924C). In my view even that threshold might be too high but it is not necessary in this appeal to decide that question.”

[23] In Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 (1) SA 373 (SCA), Olivier JA said (at 380A-C) that the Regional Land Claims Commissioner-

“ …may proceed with the aforesaid publication [of a claim] only if he or she is satisfied that (a) the claim has been lodged in the prescribed manner; (b) the claim is not precluded by the provisions of s 2; and (c) the claim is not frivolous or vexatious (s 11(1)(a), (b) and (c)).

After giving consideration to these requirements, the Regional Land Claims Commissioner then has to take an administrative decision and perform an administrative action, viz to refuse acceptance of the claim or to accept the claim.”

See also Hlaneki and Others v Commission on the Restitution of Land Rights and Others [2006] All SA 633 (LCC) at 639e-640c.

[24] If the claim “on a purely objective determinable reasoning fell outside the parameters of the Legislation” (per Bam P in the Farjas case), it must be excluded. In other words, the Regional Land Claim Commissioner must be satisfied, already at the acceptance stage that, on the information in his possession, it is arguable that the claim falls within the parameters of sec 2(1) of the Restitution Act.

[25] The applicants seek a review of the second respondent’s decision:

• to accept the “Motse community” (the seventh respondent) as a claimant in respect of the applicant’s farms; and

• to publish a claim in respect of the applicant’s farms, where such farms were not claimed by the third, fourth or fifth respondents.

[26] In terms of section 1 of the Restitution Act-

“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 such group”

[27] It was held by Dodson J (Moloto J concurring) in In Re Kranspoort Community 2000 (2) SA 124 (LCC) at 143 F–144 D:

“That brings me to the current existence of a community. As I have said, it is clear that there must be a community in existence at the time of the claim. Moreover, it must be the same community or part of the same community which was deprived of rights in the relevant land. However, this does not mean that the identity of the claimant community, in terms of its constituent members, should be identical to the one which was originally dispossessed. This would be an anomaly, something which a statute is assumed to avoid. Communities cannot be frozen in time. Changes in the constituent families and the admission of new members and departure of others must mean that the face of a community changes over time. It would also be anomalous to suggest that a community which had been subjected to a forced removal should be required to show that, at the time of the claim, the members have rights in land held in common by the group. That requirement can only apply in respect of the situation which existed before the dispossession. In the circumstances, in deciding what meaning is to be given to the concept of a community at the time of the claim, the qualification ‘unless the context indicates otherwise’ at the beginning of s 1 comes into play and reliance cannot be placed on the definition of community in the Restitution Act. Dictionary definitions are also of little assistance. The meaning must be derived from its context. This seems to me to require that there must be, at the time of the claim,

1. a sufficiently cohesive group of persons to show that there is still a community or a part of a community, taking into account the impact which the original removal of the community would have had;

2. some element of commonality with the community as it was at the time of the dispossession to show that it is the same community or a part of the same community that is claiming.”

[28] In the present case, the claims which must be investigated are claims lodged by claimants who at the time of lodging qualified for restitution, not claims by a subsequently created entity which owes its existence to a “merger” of claims. It might be permissible, should it appear that a particular claimant is entitled to restoration of the land which it claimed, to transfer that land with the consent of the parties concerned into the name of an overarching entity which also accommodates land claimed by others. That is not the case in the present instance. The “Motse community” did not lodge any claim. There was no such community in existence at the time of dispossession.

[29] There is no indication in the records of the second respondent that he applied his mind to the question whether the seventh respondent was a community or not. On the contrary, the second respondent admits that “Motse Community” is a merging name for a number of land restitution claims which were combined into a single claim. There is nothing on record at the second respondent to show that a single community as defined in the Act ever had rights in land over the applicants’ farms, neither at the time of dispossession nor at any time thereafter.

[30] It was suggested on behalf of the second respondent that the reason why most of the twenty farms are not mentioned in the claim forms can be ascribed to “re-zoning, re-structuring and change of farm names”. The records of the second respondent contain no indication that the third, fourth and fifth respondents might at the time have intended to claim any land other than that described in the claim forms. The three claim forms referred to in Mr Sithole’s report and considered by the second respondent make no mention of any of the farms owned by the applicants.

[31] The requirements for a review of the second respondent’s decision to accept and publish the so-called claim are found in section 33(1) of the Constitution of the Republic of South Africa read with section 6(2) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA).

[32] Administrative action which is not authorised by the empowering provision, or which is taken for a reason not authorised by the empowering provision, or which contravenes a law is reviewable under section 6(2)(f)(i) or (f)(ii) of PAJA. These sections read as follows:

“6(2) A Court or Tribunal has the power to judicially review an administrative action if –

……

(f) the action itself-

(i) contravenes a law or is not authorised by the empowering provision; or

(ii) is not rationally connected to –

(aa) …

(bb)

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator.

[33] In Trinity Broadcasting (Ciskei) v Independent Communications Authority of South Africa 2004 (3) SA 346 (SCA), Howie P said (at 354H – 355A) that, in applying the rationality test set by section 6(2)(f)(ii) of PAJA, the reviewing Court will ask:

“is there a rational objective basis justifying the connection made by the administrative decision maker between the material made available and the conclusion arrived at.”

In casu, the second respondent concluded that the seventh respondent presented an arguable case that the restitution claim is not precluded by section 2(1) of the Restitution Act.

[34] In my view it cannot be disputed that:

• the applicant’s farms were not claimed in the claim forms signed by the third, fourth and fifth respondents;

• at the time of dispossession, the Motse community did not exist as a community which complies with the definition of “community” contained in section 1 of the Restitution Act;

• the Motse community did not itself lodge any claim; the name “Motse community” is a post-1998 creation;

• the Motse community as envisaged in the Gazette notices include more persons, families or communities than the third, fourth and fifth respondents.

[35] In terms of section 11(1)(b) of the Restitution Act, the second respondent may not publish a claim in the Government Gazette if it is precluded by the provisions of section 2. A person is not entitled to claim restitution of a right in land of which he was not dispossessed, or which he did not claim by 31 December 1998. A community which was not in existence at the time when the claims were lodged and which now include members who have not lodged claims, cannot be entitled to restitution. The acceptance and publication of such restitution claims are not authorised under section 11(1) read with section 2(1) of the Restitution Act, and is therefore subject to judicial review under section 6(2)(F)(i) of PAJA.

[36] The applicants contend that a mere reading of Mr Sithole’s report, when compared to the actual claim forms lodged with the second respondent by the third, fourth and fifth respondents, makes it clear that the second respondent’s decision to accept a “Motse Community land claim” for publication, was not rationally connected to the information available to the second respondent and the reasons for the decision put forward by the second respondent. I can find no rational basis on which the second respondent could have concluded that an arguable case was made out that the claim of the Motse community as published in the Gazette is not precluded by the provisions of section 2(1) of the Restitution Act. Insofar as that decision affects the applicants’ farms, the applicants are entitled to have it judicially reviewed under section 6(2)(f)(ii)(cc) and (dd) of PAJA.

[37] I conclude that the first and second respondents, on the information contained in the record which they filed in this case did not have the right in terms of the Restitution Act to accept and publish a claim for the restitution of land rights by the seventh respondent, insofar as the claim affects the properties of the applicants. I can, under section 9(1)(d) of PAJA, make a declaratory order to that effect.

[38] It was argued on behalf of the respondents that under section 11(2) of the Restitution Act, the second respondent is entitled to condone the fact that a claim has not been lodged in the prescribed manner, and that in this case he did in fact condone it. Section 11(2) reads as follows:

“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.”

It is not at issue in this case whether or not the claim has been lodged in the prescribed manner. It is at issue whether the claim is admissible under section 2(1) of the Restitution Act. In my view it is not. It is not a lawful claim, irrespective of the manner in which it was lodged. The second respondent cannot, by granting condonation, convert a claim which is precluded by section 2(1) into a lawful claim.

[39] Mr Molawa submitted on behalf of the first and second respondent (I quote from par 23 of his heads of argument) that:

“The provision of s 10(3) of the Act was also invoked to include the farms which were not originally incorporated within the claim and it is, self-explanatory in a single unambiguous way.”

Sec 10(3) of the Restitution Act records as follows:

“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.”

[40] I fail to understand how sec 10(3) can assist the respondents. The Motse Community (the 7^th respondent) did not exist at the time when the third, fourth and fifth respondents lodged their claims. There is also no evidence that any of them intended, at the time when they lodged their claims, to bring their claims on behalf of any entity not referred to in the claim forms.

[41] After the claim was published in the Gazette, the applicants embarked upon their own investigations into its validity. The investigations showed that the claim does not conform to the requirements of sec 2(1) of the Restitution Act. The applicants thereupon submitted representations to the second respondent in terms of section 11A of the Restitution Act to withdraw the notice in the Gazette. Section 11A(1) reads as follows:

“11A(1) Any person affected by the publication of the notice of a claim in terms of section 11(1) may make representations to the regional land claims commissioner having jurisdiction for the withdrawal or amendment of that notice.”

The representations by the applicants are dated 14 October 2005 and were delivered to the office of the second respondent by hand.

[42] Despite the statement by the second respondent in par 23.2 of his answering affidavit that “all the representation made by the Applicants were replied to”, the applicants maintain that the second respondent has not even acknowledged receipt thereof, nor did he reply in any manner whatsoever. In his answering affidavit, the second respondent does not say how or when he replied, nor did he produce any written answer. No reasons for the rejection of the representations were given, except for the statement in par 24.4 of his answering affidavit that he “has done its research and is satisfied with the finding”. In par 24.6 of his answering affidavit he says:

“The claims in this matter were properly lodged, investigated and published and there in no need for doing that for the second time.”

[43] The third to seventh respondents oppose to the review application, inter alia on the basis that it was brought outside the 180 day period referred to in section 7(1) of PAJA. Section 7(1) of PAJA requires proceedings for judicial review to be instituted without unreasonable delay and not later than 180 days after the date on which any proceedings instituted in terms of internal remedies have been concluded. The said respondents argue that the review application should have been brought within 180 days after the date of publication of the notice in the Gazette, namely 11 February 2005 or the amendment thereof on 10 June 2005.

[44] The Restitution Act provides an internal remedy under section 11A of the Act. The applicants made written representations in terms of section 11A(1) on 14 October 2005, which was within a reasonable time after the publication of the notices. In the concluding paragraph of the representations, the first respondent was requested to take a decision on the representations within 30 days after receipt thereof. The 30 day period expired on 13 November 2005. The second respondent did not establish that he reacted to the representations at all. If the 180 day period is calculated from 13 November 2005, it would expire on 12 May 2006. The review proceedings were instituted on 28 April 2006, within the 180 day period referred to in section 7(1)(a) of PAJA.

[45] I proceed to consider what order this Court should make in respect of the first and second respondents’ administrative decision to accept and publish the claims, insofar as the decision relates to the applicants’ farms. For the reasons given, the Court should review that decision. This Court is in as good a position as the first and second respondents to decide whether the claims as published are precluded by section 2(1) of the Restitution Act. The result must be a forgone conclusion. There is no point in remitting the decision to the first and second respondents for reconsideration. See Cora Hoexter, The New Constitutional and Administrative Law vol 2, p292-293. In my view, this is a case in which the Court should take its own decision which will replace the first respondent’s decision. See Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) par [28] at 75E-G and par [39] at 79G.

[46] The obvious lack of rationality in arriving at the decision to accept and publish the claim as a claim by the second respondent, enjoins me to depart from the usual practice of this Court not to make cost orders, and to order the first respondent to pay the applicants’ costs. Moloto J adopted a similar approach in Hlaneki v Commission on Restitution of Land Rights and Others [2006] 1 All SA 633 (LCC) at 642d, where the Regional Land Claims Commissioner took a manifestly indefensible position. The nature and importance of the case justify the employment of two counsel, and the costs of two counsel should be awarded.

[47] For the reasons set out above, I hereby make the following order:

1. It is declared that on the information contained in the record which the first and second respondents filed in this case, they were not entitled under the Restitution of Land Rights Act, 1994, to accept and publish a claim for the restitution of land rights by the seventh respondent in respect of the properties of the applicants listed in paragraph 2 of this Order.

2. The decision of the second respondent to accept a claim for restitution of land rights in the name of the seventh respondent and to publish notice thereof in the Government Gazette by way of Notices No 164 of 2005 and No 893 of 2005, is hereby reviewed and set aside, insofar as the decision relates to the following properties:

2.1 portion 1 and the remaining extent of the farm Groot Denteren 533LR, owned by the second applicant;

2.2 portion 3 and portion 6 of the farm Groot Denteren 533 LR, owned by the fifth applicant;

2.3 the remaining extent of portion 2 and portion 5 of the Farm Groot Denteren 533 LR, owned by the fourth applicant;

2.4 the remaining extent of the farm Klein Denteren 495 LR owned by the sixth applicant;

2.5 Portion 1 of the farm Liliefontein 506 LR and the remaining extent of the farm Liliefontein 538 LR, owned by the third applicant;

2.6 the farm, Bergsig 511 LR (previously a portion of the farm Uitkomst 507 LR), owned by the first applicant;

2.7 the farm Alkantrand 519 LR (previously part of the farm Uitkomst 507 LR), owned by the ninth applicant;

2.8 portion 1 of the farm Uitkomst 507 LR, owned by the sixth applicant;

2.9 the remaining extent of the farm Hottentotsholland 538 LR, owned by the eleventh applicant;

2.10 portion 4 of the farm Hottentotsholland 538 LR, owned by the twelfth applicant;

2.11 portion 4 of the farm Hottentotsholland 538 LR, owned by the twelfth applicant;

2.12 the remaining extent of the farm Hottentotsholland 538 LR, owned by the eleventh applicant;

2.13 portion 7, portion 17 and the remaining extent of the farm Kirstenbosch 497 LR, owned by the tenth applicant;

2.14 portion 5 of the farm Kirstenbosch 497 LR, owned by the fourteenth applicant;

2.15 portion 11 of the farm Kirstenbosch 497 LR, owned by the fifteenth applicant;

2.16 the remaining extent of portion 10 of the farm Kirstenbosch 497 LR, owned by the thirteenth applicant;

2.17 the remaining extent of the farm Weltevreden 508 LR, owned by the eighth applicant;

2.18 portion 1 of the farm Weltevreden 508 LR, owned by the seventh applicant; and

2.19 portion 2 of the farm Weltevreden 508 LR, owned by the sixteenth applicant.

3. The second respondent is hereby directed to publish a notice in the Government Gazette rectifying or replacing Notice No 164 of 2005 and 893 of 2005, so as to give effect to the order in par 2 hereof.

4. The first respondent is ordered to pay the applicants’ costs, including the costs of two counsel.

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A GILDENHUYS

JUDGE OF THE LAND CLAIMS COURT

Appearances

For the applicants:

Mr G L Grobler SC

with him

Mr H S Havenga

instructed by

Joubert & May

Tzaneen

For the first and second respondents:

Mr M J Malowa

instructed by

The State Attorney

Pretoria

For the third to seventh respondents:

Mr L Tshidzumba

instructed by

The Nkuzi Law Clinic

Polokwane

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