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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD IN RANDBURG)

CASE NO.: LCC 04/2009

In the matter of:

MAKHUKHUZA COMMUNITY CLAIMANTS:

CONCERNING:-

Land described by the Makhukhuza Community at the time of the dispossession as comprising in the following farms:

Venters Lager 129 (1), Klippaats Fontein 1235, Erf Deel 13577, Bardenhorst Vallei 1196, Droogkop 7970, Mains 2071, Braemer 2064, Kleine Fontein 1160, Rhenoster Fontein 1051, Spioen Kop 1274, Groote Hoek, Brakfontein 2208, Marias Heuvel2946, Weston 2365, Arcadia 2179, Alexandria 2180, Smalhoek 1282, Rietfontein 1329, Blue Bank 12887, Situated within u Thukela District, and the local jurisdiction of Bergville in the province of Kwa-Zulu Natal

Heard on : 18 November 2010

Delivered on :

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JUDGMENT

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MEER J

1. On 19 November 2010 a settlement was reached in the land restitution claim brought by the Plaintiff, the Makhukhuza Community, in terms of Section 2 of the Restitution of Land Rights Act No 22 of 1994 (the Act), for physical restoration of several farms situated in the Thukela district of Kwa- Zulu Natal. In terms of the settlement agreement the Plaintiff accepted in full and final settlement of their restoration claim against the State, some 996 hectares of land to be acquired by the State from the Defendant landowners (Defendants), in terms of Section 42A of the Act and thereafter to be transferred to Plaintiff. It is recorded in the settlement agreement that the Defendants dispute the validity of the claim whilst the State agrees that the Plaintiff is in principle entitled to restitution in respect of Defendant’s land. No settlement could be reached on the question of costs and we heard argument on that aspect only.

2. The Defendants sought attorney and client costs against the Regional Land Claims Commissioner Kwa-Zulu Natal (RLCC). The basis on which such punitive costs were sought was that the RLCC had been woefully lacking in its investigation of the land claim. The RLCC after investigating the claim, had, Defendants contended, incorrectly categorized it as a community claim over all the claimed land including Defendants’ farms, (as opposed to individual claims in respect of portions thereof) and thereafter had referred it to this Court for adjudication as such. As a consequence, the Defendants’ farms had been encumbered by the land claim for several years, they had been “dragged” to court at considerable expense. The background to the claim is set out hereunder.

3. The claim was lodged with the RLCC on 11 December 1998. The claim form indicates that the person who lost the right in land is the “Makhukhuza Tribe” represented by Masengemi Shangela Jim in his capacity as “Makhukhuza Tribe Leader”. The claim was gazetted all of four years later in July 2002. Thereafter the claim was unable to be settled by the RLCC and remained in abeyance for seven years until January 2009 when it was referred to this Court. The referral was preceded by a court order obtained by the Defendants in terms of Section 14 (1) of the Act compelling the RLCC to refer, and a subsequent contempt application against that official for failing to comply with the referral order.

The Referral Report

4. The referral report dated 12 December 2008 indicates that the Plaintiff claimant community comprises approximately 98 households and records, “In the light of the current owners’ contestation that the claimant community is not a “community” or a part of a community as envisaged in the Act, the claimant community have indicated that, in the alternative to a community claim, the Claimants claim restitution in their personal capacities.”

Under the heading “Acceptance Criteria” the report states:

“2.1.2.1 ….. The claimant community is a claimant as defined in terms of section 1 of the Act, and therefore competent in terms of Section 2 of the Act, to bring a claim for the restitution. At all material times hereto, the claimant community has always been a community envisaged in the Act as it derived its right on the land from shared rules determining access to land held in common as a group under traditional leadership¹ ….

2.1.2.2 The claimant community was dispossessed of its right as customary owners , alternatively beneficiaries, which they held in the land for many years… The dispossession was a direct result of the Native Land Act, Development Trust and Land Act and the Group Areas Act”.

5. Various different averments are made in the referral report as to when the rights in land were lost. At paragraph 1.4 it is stated:

“Some members of the claimant community, as presently constituted, are direct descendants of the original community that occupied the claimed land and were forcibly removed in or around 1967, while other members are original occupiers that were dispossessed of their rights in the land.”

In contrast, at paragraph 2.1.2.4 it is said:

“ The dispossession occurred in or around 1920 to 1939”

In further contrast a validation report dated 5 November 2001 prepared by Maswazi Ndlela and signed by the RLCC cites the date of dispossession as follows “Removals begun in 1960’ until early 1990’s.”

Investigation Report

6. The Referral Report indicates that the acceptance criteria is derived from the Investigation Report referred to also as the Acceptance Report, compiled by Maswazi Ndlela, an official in the office of the RLCC, in terms of Rule 5 of the Rules compiled as required by Section 14 (2) (a) of the Act Excerpts from the acceptance report concerning the dispossessions are as follows:

“History of Dispossession of rights in the land being claimed

2.2.1 The land in question is described as a dry country on which institution of “labour farms” had developed along with labour tenancy. The said properties were used by the tribe of Makhukhuza under Inkosi ya Mangwane. Because of the laws and policies of that time the white men were privileged to assume ownership of any amount of land without any consent of the people occupying the land. As a result all arable land of our people was taken and fenced off by the whites/ and black people who did not want to work as labour tenants were moved to dry Bantu areas like Action Homes, Blue Bank, Green Point and Hambrook. The land under claim was used by white farmers to house and provide some agricultural land for their labour tenants ….

“ 2.2.2 Starting in the 1920s and 1930s gathering momentum in the 1950s and 1960s, labour tenancy came under increasing attack as the state, with the support of the South African Agricultural Union sought first to control and limit and then to eliminate labour tenancy on South African farms …..

2.2.4 Large numbers of tenants passively resisted the eviction and had to be forced out by hut burning, bulldozers, arrests and prosecution….

7. The sources relied upon for validation of the claim are set out in the report thus:

“2.6 Research done on claim

Information gathering to effect the validation of the claim had been done, which includes a meeting with the claimants as well as archival research around removals surrounding the district of Bergville and Escourt area.”

The Acceptance Report records that the claim has been lodged in the prescribed manner, that it is not frivolous or vexatious and that it was lodged to the satisfaction of the RLCC, all of which are precursors specified at Section 11 (1) of the Act, for the publication of the notice of the claim in the Government Gazette and for steps to be taken to make the claim known in the district in which the claimed land is situated.

8. Significantly the Acceptance Report goes on to state at paragraph 3.3.2 inter alia:

“ The results of the preliminary investigation conducted by the RLCC provided sufficient prima facie evidence of the following:

a) The people who had been living on the area in question had enjoyed individual land rights, which could be described at the very least as labour tenants.

b) ……. ”

9. Even more significantly paragraph 5.2 of the Acceptance Report describes the rights lost by the claimants as follows:

“5.2 Description of rights lost as defined by Act

The claimants had a right of using and occupying such land whilst the ownership was vested with the landlord (farm owner). They had a right to utilize the land on the basis that they individually remained loyal to the landowner as labour tenants. Thus a claim does exist for individual rights as labour tenants in terms of Section 1 of Act 22 of 1994 as amended by Acts 84 of 1995 and 78 of 1996.”

10. From the above extracts it becomes apparent that the assertion in the Referral Report that at all material times the claimant community derived its “right on the land from shared rules determining access to land held in common as a group under traditional leadership”, is not echoed in the Acceptance Report. For the latter report makes clear that at the time of dispossession, the land under claim was owned by white farmers on which labour tenants resided, and it was as labour tenants that persons were dispossessed.

11. The Referral Report characterized the claim as a community claim in apparent disregard of the Constitutional Court Judgment in Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC) where Moseneke DJC held as follows at 215 D – F:

“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 judgment, Moseneke DCJ said at 215 G – 216 A

“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.”

Given that the Goedgelegen judgment had already been delivered and published as of December 2008, the date of the Referral Report, there can be no excuse for the RLCC to have adopted the stance that this was a community claim.

12. I note that disturbingly, there are different and contradictory dates furnished for precisely when the dispossession, relied on for the claim, occurred.. The referral report at paragraph 1.4² initially mentions 1967, but later at paragraph 2.1.2.4³ states dispossession occurred in or around 1920 to 1939. The investigation report at paragraph 2.2.2⁴ pegs the dispossession at 1920s to 1930s gathering momentum in 1950s and 1960s, whilst the validation form⁵ categorically asserts the removals “begun” in 1960s until early 1990s. Whatever the date, from the investigation report it would appear that at the earliest of these dates, being 1920, the persons who were dispossessed held individual rights as labour tenants⁶.

Plaintiff’s response to Referral Report

13. In the response to the Referral Report the Plaintiff states under a heading Rights in Land, as follows:

“4 The claimant community was in exclusive occupation of the claimed properties. The claimed properties are presently being used for commercial agricultural farming.

5 The rights held by the claimant community to the claimed land were akin to those held under customary law and /or traditional ownership and /or communal ownership and /or beneficial occupation and /or labour tenant’s interests…

6 The Makhukhuza Community’s members were in occupation of the claimed land prior to the arrival of white people who later came to their land and registered them in title deeds. The customary rights held by the claimant community to the land were reduced to those of labour tenants over time and gradually to those of farm labourers.

7 . . . . .

8 By government Notice 2761, dated 31^st July 1970, the Government prevented further labour tenant contracts from being entered into and no labour tenants were supposed to be registered in respect of any land in the area specified in the schedule thereto.

9 Members of the community who did not want to accept full time service as farm labourers but chose to remain on the farms were regarded as unlawful squatters and were removed in terms of the Prevention of Illegal Squatting Act and the Native Trust and Land Act of 1936.”

14. From the above it would seem that the Plaintiff’s response echoes that of the Investigation Report, that at the time of dispossession the persons who were removed were labour tenants. I note from paragraph 8 of the excerpt from the Plaintiff’s response quoted above, that the Plaintiff links the date of dispossession to the Government Notice of July 1970, presenting us with yet another date of dispossession. The Plaintiff’s response is vague about the precise legislative measure under which the dispossession occurred, tabulating instead a list of inter alia the major racially discriminatory statutes pertaining to land.

Defendants’ Response to Referral Report

15. The Defendants in their response of 15 September 2010 deny that any rights in respect of the claimed land were held by a community as defined in Section 1 (iv) of the Act. They aver that the deeds history of the claimed land disproves that the land was held as such. Referring to the claim being based on forced removals in and around 1967, as per the Referral Report, and between the 1960s and 1990s as per the Validation Report, it is pointed out that the farms claimed were all surveyed prior to 1960 and private owners owned the farms for many years prior thereto.

16. This is borne out by the title deeds to the Defendants’ farms as contained in Bundles A and B of the historical documents prepared by Defendants for the trial and filed on 2 November 2010. A perusal of the title registers, windeed reports and conveyancers’ certificates reveal that from 1852, the date of the first deed, there has been a continuous period of ownership and farming by private farm owners. Transfers of farms through title deeds, created by subdivisions, consolidations and endorsements, passed in the main through different generations of families that made up the farming community of Bergville and Ladysmith. The only sale to outsiders appears to be transfers to the State or local residents, the most recent being that of Gary Green Farms on 15 July 2009. Then there are deeds of grant, extracts of the Natal Almanac Register from 1868, correspondence, vouchers for farming activities, documents of church events, marriages, and family histories of the Dew Drop Community in Bergville, all of which support Defendants’ stance.

17. The information contained in the historical bundles and witness summaries remain unchallenged as neither expert summaries nor any other trial bundles were filed by the Plaintiff. A directive from this Court requiring plaintiff to file their witness summaries by 25 October was simply ignored, a fact about which I voice my displeasure. I note also that it was the Defendants’ and not the Plaintiff’s legal representatives who indexed and paginated the court files and arranged for maps of the claimed land.

18. The RLCC’s replication of 26 October 2010 to the Defendants’ response states in respect of the deeds history of the claimed land, that the fact that the claimed land was not registered in the name of the claimant community does not lead to the inference that the claimant community did not reside on the land or that they did not have rights in the claimed land. The response simply does not deal with the contention by Defendants that the deeds history of the claimed land disproves that the land was held by a community as defined at Section 1 of the Act, meaning “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.”

Argument on Costs

19. Mr Roberts on behalf of the Defendants, in arguing for attorney and client costs, contended that the RLCC, on proper investigation, ought to have realized that a community as defined in the Restitution Act did not have rights in the claimed land. He submitted that the claim was vexatious and frivolous and ought not to have been gazetted in terms of Section 11 of the Act. The investigation report, he contended, was inadequate and had not properly considered the merits. No evidence was produced of the archival research referred to in the report. The RLCC was slack, lackadaisical and did not do their homework, he said. A deeds office search would have shown that the claimed land had been purchased by private owners as far back as 1852 and had not been held by a community, as was evident from the public documents and historical bundles prepared by Defendants. The claim was consequently incorrectly couched as a community claim.

20. The Defendants, Mr Roberts submitted, had been brought to court primarily by the RLCC and their land had been encumbered for several years by a claim devoid of merit. Some of them had to secure loans to fund their defence. He said the fact that the Plaintiff who had claimed 31000 hectares was prepared to settle for far less, was indicative of the fact that their’s was not a community claim concerning all the claimed land. He pointed out also that 3723.2653 hectares owned by the State was also part of the claimed land. The fact that the State had not seen fit to restore any of such land to the Plaintiff indicated that the State itself did not believe there to be any merit in the claim. Defendants were entitled to their costs on the ground that they had been substantially successful.

21. Ms Naidoo, who represented the RLCC, in opposing the costs sought, argued that the claim was a community claim and had been correctly referred to this Court as such. She disputed the contention that the claimed land had not been held by a community, adding that this had not been tested in oral evidence. From the consultations with the community, she said, the RLCC had been satisfied that it was a community claim. Ms Naidoo did not challenge the evidence as per the title deeds in Defendants’ historical bundles, indicating the claimed land had been registered in the names of farmers at the time of dispossession.

Finding

22. From a careful conspectus of all the evidence it remains unchallenged that at the time of the alleged dispossession the claimed land was not held by a community whose rights in land were derived from shared rules determining access to land held in common by them. But for a bald and unsubstantiated statement to this effect in the referral report neither the Investigation Report, the validation form, the Plaintiff’s response nor even the replication avers let alone proves that plaintiff’s rights in land were derived from shared rules determining access to land held in common by them. I do not accept that in the absence of oral evidence, a conclusion that a community did not have rights in the claimed land, could not be reached, given the weight of uncontested evidence as per the pleadings and historical documents.

23. The RLCC incorrectly categorized Plaintiff’s claim as a community claim over all the claimed land and did so even in the face of its own investigation report which made clear that at the time of dispossession the persons who were dispossessed were labour tenants who had individual as opposed to communal rights in land. That the forefathers of these labour tenants may in the previous century have occupied the claimed land, does not detract from the fact that as at the alleged dispossession the land was not occupied communally by a community as defined in the Act.

24. No heed was paid to the opposing landowner Defendants’ response to the effect that the claimed land was already held under private title at the time of the alleged dispossessions, (a fact which in all probability was raised by these Defendants during negotiations prior to the referral). Nor it would appear did the RLCC bother with a Deed’s Office search. Instead, even after the settlement the RLCC continued to maintain that the claimed land was held by the Plaintiff as a community.

25. Since in the instant case labour tenants could not have occupied the entire claimed land but only portions thereof, a restitution claim can at best be for the portions which they did actually occupy. As the claim was lodged as a community claim only, with the standing of the Plaintiff as the community that was allegedly dispossessed, the claim would not have succeeded in that form, given the evidence. Had the claim been lodged on behalf of individual labour tenants, the situation would have been different. In Midlands North Research Group and Others v Kusile Land Claims Committee and Another 2010 (5) SA 57 Gildenhuys J when faced with a similar scenario, observed as follows at paragraph 11,

“The community claim may well have had to be converted into a large number of individual restitution claims, which might not be achievable under the Restitution Act and which will cause considerable costs and delays.”

26. The investigation of the Plaintiff’s claim was in my view shoddy and the RLCC did not adequately acquit itself in performing its functions as prescribed in the Act. Section 6 (1) (cA) of the Act lists as one of these functions the investigation of the merits of claims lodged for the restitution of rights in land. Prior to the investigation the procedure which the Commission is expected to follow after claims are lodged and when they are referred to the Court is as prescribed at Sections 11 and 14.

27. In Farjas (Pty) Ltd 1998 (2) SA 900 (LCC) Dodson J, in distinguishing between the acceptance and investigation stages of a claim aptly said at 923 H – 924C

• The structure of that part of the Act which deals with the Commission as well as specific provisions such as s 11A(2) and s 14(2)(a) make it clear that the investigation into the merits of the claim by the Commission takes place after the claim has been accepted in terms of s 11(1). This suggests that the strength of the claim is not important at the acceptance stage, provided that there is an arguable case. The strength of the claim is something which is assessed in the course of the investigation.”

28. In similar vein Olivier JA in Gamevest (Pty) Ltd v Regional Land Claims Commissioner Northern Province and Mpumalanga and Others 2003 (1) SA 373 SCA at 378 A - B, stated ;

“. . . the scheme of the Restitution Act is such that the receipt of a claim and an acknowledgment of such receipt is a formal act, not amounting to an administrative decision or action. Only after the lodgment, can and must the Regional Land Claims Commissioner examine the claim, and satisfy himself or herself whether the claim is, inter alia, not precluded by the provisions of s 2 (see s 11 (1) (b)). This is not a task that can be done in a superficial, cursory manner.”

29. The RLCC cannot be faulted for accepting the Plaintiff’s claim, in terms of Section 11(1), for it can be said an arguable case was presented at the acceptance stage before an investigation into the merits occurred. The receipt of the claim was a formal act. The same can however not be said about the investigation and validation of the claim which, to borrow from the words of Olivier J, was conducted “in a superficial and cursory manner”, the net effect whereof was that Defendants’ farms have been subjected to a community claim for several years at considerable cost and prejudice to them.

30. The Constitutional Court in Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC), found 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. Sachs J stated at 247 B–C

“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.”

The characterisation of litigation concerning the constitutional right to restitution of rights in land in the genre of constitutional litigation, was followed in the Kusile judgment supra. In keeping therewith and the subsequent decisions in Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 (LCC) and Greater Tenbosch Land Claims Committee and Others v Regional land Claims Commissioner and Others LCC (74/06) [2010] ZALCC, 15 September 2010, it is of course no longer necessary for there to be exceptional circumstances before costs are awarded against the State or an organ thereof.

31. In Kusile supra Gildenhuys J said at paragraph 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 presented the case. 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. The RLCC failed in this duty.”

These words resonate in the instant case and I am persuaded that costs stand to be awarded against the Commission. Included in such costs as was properly conceded, must be the wasted costs of the first day of trial, 15 November 2010, due to the RLCC’s failure, contrary to several directions of this Court, to effect service on all interested parties.

32. I am however not convinced that a punitive cost order on the attorney client scale is justified. Whilst the investigation was far from adequate there was no willful neglect on the part of the RLCC. Moreover whilst the claim was incorrectly categorized as one on behalf of a community, I am not persuaded that it was frivolous and vexatious. It cannot be said it was pursued in circumstances where there was plainly no prospect of success or that the motive of the Plaintiff was to harass the Defendants⁷.

33. I accordingly grant the following order:

1. The Land Claims Commission shall pay the costs of the Defendants

taxed as between party and party such to include the amounts referred

to in subparagraph (a) to (h). These amounts will be paid within a period

of 30 days from taxation thereof:

1. The employment of two counsel and an attorney in respect of all trial

dates allocated, the quantum of which is to be determined by the taxing master;

2. The necessary and reasonable costs of two counsel and an attorney for attending all pre-trial conference, the necessary and reasonable costs incurred in respect of consultations with the Defendants, and the costs in respect of consultations with the experts listed below, including all reasonable travelling expenses and the costs in respect of travelling time, the quantum of which is to be determined by the taxing master;

3. The necessary and reasonable costs of attending inspections in loco by two counsel and the attorney, the quantum of which is to be determined by the taxing master, including costs in respect of travelling time and traveling expenses;

4. All necessary and reasonable costs incurred by the attorney acting for the Defendants for the purposes of attending consultations, inspections in loco and the trial itself;

5. The necessary and reasonable travelling and accommodation expenses of the witnesses of the Defendants to attend the trial of the matter;

6. The necessary and reasonable qualifying fees and the expenses of the expert witnesses listed in paragraph 2 below, such to include the costs of the inspection in loco conducted by Mr. C. Henderson, the consultations by them with the Defendants to obtain relevant information to compile their reports and the consultation time with the Defendants’ two counsel and attorney, and the reservation fees for the trial;

7. All necessary and reasonable costs of obtaining of aerial photographs;

8. The necessary and reasonable costs incurred by the Defendants’ attorney in compilation, preparation, indexing and paginating of bundles of documents, maps and photographs and making copies thereof as well as indexing and paginating of the Court bundles and file;

9. The reserved costs of the Section 14(1) Application, which costs stood down for later determination.

2. The experts referred to above in paragraph (f) are as follows:

1. Mr. van Jaarsveld a historian;

2. Clive Henderson an agricultural expert;

3. Brian Land a mapping expert;

4. S Botha a conveyancer;

5. D Gosling a conveyancer;

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MEER J

I agree.

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NCUBE AJ

I agree.

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B. PADAYACHI

(ASSESSOR)

For Plaintiffs: Advocate Chithi instructed by M.C. Ntshalintshali Attorneys,Durban, Kwazulu Natal.

For Defendants: Advocate P. Naidu instructed by S. Naidoo, The State Attorney, Kwazulu Natal.

For Landowners: Advocate M.G. Roberts SC, C.G. Van der Walt instructed by Christopher, Walton & Tatham Attorneys, Ladysmith, Kwazulu Natal.

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