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[2020] ZALCC 14
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Saint and Others v Chief Land Claims Commissioner and Others (LCC36/2018) [2020] ZALCC 14 (1 October 2020)
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RTF formatIN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO: LCC 36/2018
Before: The Honourable Ms Acting Judge President Meer
Heard on: 16 September 2020
Delivered on: ………………..
In the matter between:
REVELL CLIVE SAINT First Applicant
RRR VENTURES CC Second Applicant
DDD VENTURES CC Third Applicant
KEMBALI FARMS CC Fourth Applicant
SILVER HILLS NURSERIES (PTY) LTD Fifth Applicant
VSHAMBANI CC Sixth Applicant
IRENE SAINT Seventh Applicant
LIGITPROPS 1034 CC Eighth Applicant
DOVEA ESTATES CC Ninth Applicant
DOVEA TRUST Tenth Applicant
MAYO FARM CC Eleventh Applicant
ASHBROOK FARMS (PTY) LTD Twelfth Applicant
ASHBROOK TRUST Thirteenth Applicant
BECHOO BROTHERS FARMING ENTERPRISES CC Fourteenth Applicant
RICHARD HOUGHTING Fifteenth Applicant
HIBBERDENE / MTWALUME FARMERS ASSOCIATION Sixteenth Applicant
and
CHIEF LAND CLAIMS COMMISSIONER First Respondent
REGIONAL LAND CLAIMS COMMISSIONER,
KWAZULU-NATAL Second Respondent
MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM Third Respondent
THE MATHULINI COMMUNAL
PROPERTY ASSOCIATION Fourth Respondent
INKOSI BHEKIZIZWE NIVARD LUTHULI Fifth Respondent
THE VALUER GENERAL Sixth Respondent
PAUL ANTHONY SAAD Seventh Respondent
B J GASA FARM CC Eighth Respondent
JUDGMENT
MEER AJP
Introduction
[1] The Applicants seek a declaratory order to give effect to a settlement agreement concluded in terms of section 14(3) of the Restitution of Land Rights Act, 22 of 1994 (“Restitution Act”) in settlement of a land claim lodged by the Mathulini Community. The agreement, labelled “Heads of Agreement” was reached with the Mathulini Community Land Claimants, the Regional Land Claims Commissioner, KwaZulu-Natal, the Second Respondent and the land owners of various properties claimed by the claimants in the Hibberdene area of KwaZulu-Natal, who are the First to Sixteenth Applicants. The Agreement was signed by the parties in November and December 2010. The Agreement records a settlement of the claim in three phases. The first phase of the settlement of the claim has been implemented and the Applicants wish to proceed to the next two phases. The Applicants contend that the agreement pertains to all three phases of the settlement of the claim.
[2] The application is opposed by the First, Second and Third Respondents (“State Respondents”). Their stance is that the implementation of phases 2 and 3 of the agreement must be stalled until dissension in the Mathulini Community between two factions pertaining to who the legitimate representatives are, and the issues relating to the constitution of the Fourth Respondent, are resolved. Upon a proper construction of the Agreement, they contend, there is no automatic entitlement to extend the provisions applicable to the first phase to the second and third phases of the Mathulini land claim. In particular, they rely on clause 3.3 of the Heads of Agreement which enables a reassessment and restructuring of the agreement where necessary in the light of advice on fiscal and other implications arising therefrom, in a manner acceptable to the parties. The Fourth and Fifth Respondents, being the Mathulini Community Property Association and Inkosi Luthuli, who lodged the claim on behalf of the claimant community, support the application.
[3] The dispute between the parties in essence pertains to the interpretation of the agreement, the relevant clauses of which are set out below –
“2. INTRODUCTION AND PURPOSE OF AGREEMENT
2.1 The Claimants have, under references KRN6/2/2/E/47/0/0/80; KRN6/2/2/E/47/0/0/74; KRN6/2/3/E/47/0/0/79; KRN6/2/2/E/47/0/0/80 instituted land claims with the Commissioner, in terms of the Restitution Act, for the restitution of land in the Hibberdene area of Kwazulu-Natal (“the claim”).
2.2 The Claim encompasses the land described in annexure “A” hereto, which is presently owned by the Landowners, and has been made available to the Commissioner for the purposes of settlement of the Claim; subject to an agreement entered into in terms of section 42D of the Restitution Act; between all interested parties to the Claim.
2.5 Each of the Parties reserve its rights in the event that no agreement is reached on all the issues.
2.6 The agreement records an agreement in principle reached with the Claimants, the Landowners, the Commissioner and the HMG following discussions with the presentations to each of them.
2.7 The parties intend that this agreement –
2.7.1 shall be subject to the parties proceeding with the preparation and conclusion of a comprehensive agreement (“the Settlement Agreement”) for the settlement of the Claim in respect only of the land described in annexure “A”, albeit in three phases as indicated in clause 3 of this Agreement; and
2.7.2 shall be utilised by the parties for communication with interested third parties until the Settlement Agreement has been concluded.
3. PHASED SETTLEMENT OF THE CLAIM
3.1 The Parties have agreed to the phased settlement of the claim, following financial constraints faced by the Commissioner.
3.2 The claim shall therefore be settled, subject to the approval of the claim by the Minister or his delegate in terms of section 42D of the Restitution Act, through three phases as follows:
3.2.1 The first phase shall encompass the acquisition of approximately 2000 hectares of cane land, which shall be located in a block that can be managed as an economic unit. It is envisaged that approval of this phase of the Claim shall be obtained on 1 April 2011 or as soon as possible thereafter.
3.2.2 The details relating to the second and third phases shall be determined by the parties as soon as possible after the conclusion of the Settlement Agreement relating to the settlement of the first phase, referred to in clause 3.2.1.
3.2.3 It is recorded that the Commissioner and/or the Landowners may require that a new valuation report for the properties, to be subject to the second and/or third phase, be conducted.
3.3 The provisions of clause 3.2 of this Agreement shall be reassessed where necessary in light of advice on fiscal and other implications arising therefrom, and may be restructured to effect a settlement of the claim in any other manner acceptable to all the Parties.”
“5. ESTABLISHMENT OF LEGAL ENTITY TO HOLD THE LAND ONCE RESTORED
5.1 It is recorded that the Claimants shall form a legal entity for the benefit of all of the Claimants, on terms acceptable to the Commissioner, to hold and manage the land that shall be transferred in terms of the agreements referred to in clause 4.5 of this Agreement.
6. COMMUNICATION
6.3 to meet as soon as possible to negotiate and settle the terms of the Settlement Agreement; and
6.4 that they shall endeavour to conclude their negotiations as a matter of urgency.”
Undisputed relevant background facts
[4] Prior to the conclusion of the Heads of Agreement, a memorandum of understanding was concluded on 23 October 2008between the Hibberdene Management Group (“HMG”) representing the land owners and the Emathulini Development Forum (“the forum”) representing the claimants. The Applicants point out that the representatives of the First and Second Respondents were au fait with the provisions of the memorandum of agreement when the Heads of Agreement were drafted.
[5] Annexed to the Heads of Agreement is Annexure A which contains a list of all the claimed properties identified to be subject to the heads of agreement.
[6] Pursuant to the conclusion of the Heads of Agreement, a submission was prepared by the then project officer of the Second Respondent, Mr Dlamini, dated 20 June 2011, in terms of section 42D of the Restitution Act (“the Phase 1 submission”). This was signed by the Minister on 17 February 2012. The Applicants contend and it is undisputed that the Agreement was amplified or varied as contemplated in clauses 2.7.1, 6.3 and 6.4 and the recordal thereof is contained in paragraphs 8.2, 10.1 and 10.2 of the Phase 1 Submission document which records the further agreements envisaged in the aforementioned clauses as follows:
“8.2 Post-settlement agreements
The land to be acquired for settlement of the claim shall be used for commercial farming. The claimant community will enter into a management agreement with the Hibberdene Management Group which will assist them in terms of skills transfer and management of the properties until the whole claim is settled and beyond. (Annexure 10).
10. AGREEMENT REACHED AMONGST PARTIES (CERTIFICATION) IN TERMS OF SECTION 14(3) OF THE ACT
10.1 Agreement –
The parties agree that the claim will be settled via full title ownership in the form of a title deed which will be transferred to the claimants. The claim will be settled in 3 phases due to the capital required to settle the claim in one financial year. The land shall be used mainly for its current land use which shall be enhanced with the claimant’s participation through skills transfer and eventually moving to full ownership of the project by claimants.
The parties concerned agreed to the manner in which the claim is to be settled and also the phasing of the claim for the next 3 financial years starting from the current year, this has been produced in writing in the form of the heads of agreement.
10.2 Certification
The RLCC has satisfied herself with the manner in which the parties have negotiated the settlement of the Mathulini land claim”.
[7] The particulars of the immovable properties subject to the claim as referred to in Annexure A to the Agreement are precisely the same property descriptions that are replicated in paragraph 2.4 of the Phase 1 submission.
[8] The First to Third Respondents were parties to these further agreements as contained in the Phase 1 submission, and by their signatures thereto acknowledged these agreements and its contents.
[9] Phase 1 was finalised and the management agreement which was contemplated in the Heads of Agreement was implemented. Paragraph 4 of the Heads of Agreement refers to the Management Agreement in relevant part as follows –
“4. PROCESSES TO BE FOLLOWED WITH REGARDS TO THE FIRST PHASE
4.2 HMG shall submit to the Commissioner a revised proposal, in relation to the first phase, of how the land to be identified in terms of clause 4.1 of this Agreement, shall be managed to ensure production discipline, profitability, sustainability and skills development of the Claimants: no later than 15 January 2011.
4.5.3 An agreement for the management of the land between the Transferee, as the new owners, and HMG; the nature of which shall depend of the proposal forwarded by HMG in terms of clause 4.2 of this Agreement.”
[10] The Management Agreement was concluded on 12 September 2012 before the transfer of the immovable property subject to Phase 1. The Management Agreement was entered into by and between the Hibberdene Management Group and the Mathulini Communal Property Association. Pursuant to the finalisation of Phase 1, the Applicants attended a meeting with representatives of the First and Second Respondent where the following was agreed in respect of the Management Agreement applicable to the Phase 2 and 3 properties –
10.1 That the terms of agreement in respect of the Heads of Agreement and the management agreement would apply to Phases 2 and 3;
10.2 That the post-settlement model would apply to Phases 2 and 3;
10.3 That the terms of the Management Agreement applicable to Phase 1 would apply to Phases 2 and 3.
[11] A further Section 42D submission was drafted dealing with Phase 2 (“Phase 2 submission”) and this was signed by the Regional Land Claims Commissioner (“RLCC”) on 5 September 2013. It is undisputed that the aforesaid Management Agreement was accepted by the RLCC in the Phase 2 submission which inter alia refers to “the settlement model agreed upon which has been signed, and the “agreed post-settlement plan”. It is furthermore undisputed that the Management Agreement would also apply to Phases 2 and 3.
[12] The purpose of the Phase 2 submission is recorded as follows:
“To request the Minister to approve the settlement amount of R104,559,023.00 for the acquisition of properties in terms of the settlement of the Mathulini Community land claim in terms of section 42D read with 42E and 42A of the Restitution of Land Rights Act No 22 of 1994”.
[13] In respect of clause 3.2.2 of the Heads of Agreement, the Applicants contend and it is not disputed that the details relating to the Phase 2 and 3 properties as referred to in that clause have already been determined by the parties in respect of Phase 2. The Phase 2 submission, contained in a memorandum signed by the Second Respondent on 5 September 2013, the Applicants point out contains the details of the Phase 2 as determined by the parties as set out in clause 6.4.4 of the Phase 2 submission. I note that in that clause a list of properties being restored and details pertaining thereto are provided. The Applicants point out that at a meeting held on 2 August 2013 attended by officials of the Second Respondent, land owners and members of the Fourth Respondent, the details of the properties subject to Phase 2 included in the Phase 2 submission were identified. They point out and this is undisputed, that the details relating to the Phase 3 properties need not be identified as these would constitute the remaining claimed land, identified in Annexure A to the Heads of Agreement.
[14] The Applicants argue, without dispute, that the reference to “details” in the Heads of Agreement at clause 3.2.2 is not qualified and can only relate to the identification of the properties which would be subject to Phases 2 and 3.
[15] Further valuations were conducted by the Second Respondent in respect of the properties subject to Phases 2 and 3. Court applications were instituted for a re-evaluation of Phase 2 properties. These applications were not opposed and orders by consent were granted, which included cost orders against the State Respondents.
[16] Subsequent to the re-valuations of Phase 2 and the failure to submit written offers to the land owners, an order was granted by consent by this Court to this effect. The Court order also called upon the Second Respondent to make available the Phase 3 valuations. Various offers to purchase were made pursuant to the Court orders to purchase the Phase 2 properties. Mr Maphuta, the Regional Land Claims Commissioner: KwaZulu-Natal, the deponent of the Second Respondent’s answering affidavit, signed the offers. The Applicants point out that notwithstanding this, he contends in his answering affidavit that the Heads of Agreement do not relate to Phases 2 and 3 and note that he also signed the Phase 2 submission.
[17] At a meeting held on 21 November 2016, the Second Respondent agreed to provide a timeframe by when the Valuer General, the Sixth Respondent will complete his valuations for the Phase 2 and 3 properties.
[18] An affidavit by Mr Dlamini, who was the project officer of the RLCC when the processing of the claim was done, states that it was at all times accepted, understood and agreed by the Mathulini Community that Phases 2 and 3 would be finalised on the same basis as Phase 1 and in accordance with the terms of the Management Agreement as well as the Heads of Agreement.
Stance of the First to Third Respondents
[19] The State Respondents do not dispute any of the aforementioned background facts. However, they contend that the implementation of Phases 2 and 3 must be stalled and there should be a reassessment and restructuring of the agreement because of the dissension and factions within the Mathulini Community. Clause 3.3 of the Heads of Agreement, they contend, entitles them to restructure the settlement of the claim having regard to fiscal and other implications in any manner acceptable to the parties. The provisions of these clauses, they contend, give them a wide latitude to restructure the second and third phases of the settlement of the claim after a re-assessment of the financial and other implications. It is contended that the word “re-assessed” in this paragraph must at the very least include an evaluation of the limitation and challenges arising from the implementation of the first phase of the claim. The restructuring of the second and third phases of the claim would necessarily be connected to such an assessment. This inference it is stated is re-enforced by the use of the word “therefrom”. The only reasonable meaning that could be attributed to these words is that the second and third phase of the settlement could be structured in a different way from the first.
[20] The First to Third Respondents contend further that the second and third phases require restructuring as envisaged at clause 3.3 of the Heads of Agreement as the implementation of the first phase has created friction and dissension in the Mathulini Community. These disputes have resulted in a number of factions arising, one of which is represented by the Fifth Respondent. At the forefront of the other faction is Mr Radebe and his supporters. The answering affidavit of Mr Maphuta refers to this group as the “concerned group” which is vehemently opposed to the Fifth Respondent being involved in the restitution process. Mr Maphutha states that the disputes between the Radebe and Luthuli factions revolve inter alia around the following:
20.1 That executive members of the Fourth Respondent appointed in 2012 were not representatives of the Mathulini Community;
20.2 That Luthuli himself and other members were not persons who were dispossessed of land;
20.3 That Luthuli and members of his family were over-represented on the committee;
20.4 That persons who had not been dispossessed of land were beneficiaries of the agreements concluded with the Applicants;
20.5 That the Mathulini Tribal Authority, the head of which is Luthuli, was the beneficiary of 20% of the annual turnover of the Fourth Respondent in terms of the Fourth Respondent’s constitution;
20.6 That the terms of the Management Agreement were prejudicial to the Community; and
20.7 That large sums of money running into millions had been misappropriated.
He notes that a number of applications have been brought in this Court by one or other of these factions.
[21] The State Respondents contend there is merit in the concerns raised by the Radebe faction, which include whether the Heads of Agreement read with the Management Agreement and memorandum of understanding are in the interests of those persons who have been dispossessed, and whether the Fifth Respondent is the legitimate representative of the Claimant Community. They also contended that the provisions of the constitution of the Fourth Respondent have contributed to the problems between the two factions. These matters require resolution before consideration can be given to the implementation of the second and third phases of the settlement of the claim, they say. It is for these reasons that the First to Third Respondents do not support the implementation of the second and third phases of the settlement of the claim. They point out that that on a proper construction of the Heads of Agreement, there is no automatic entitlement to extend the provisions applicable to the first phase to the second and third phases of the Mathulini land claim. Mr Aboobaker on behalf of the State Respondents submitted that the failure to join Radebe and all claimants aggrieved by the arrangements currently in place was a fatal defect in this application.
[22] The difficulty with the State Respondents’ approach is that the matters which they say require resolution before the implementation of Phases 2 and 3 have already been resolved by this Court. In Mathulini Communal Property Association and Others v Minister of Rural Development and Land Reform and Others [2018] ZALCC 31, Canca AJ ordered as follows in relevant part:
“1. The constitution of the First Applicant dated 23 June 2012 is declared lawful and valid”. (The first applicant before Canca AJ is the Fourth Respondent before me, the Mathulini Community Property Association.)
“5. The decision taken at the meeting held on 24 June 2017 to register a new committee for the applicant is declared invalid”.
(Canca AJ ruled that the purported annual general meeting held by the Radebe faction on this date was unlawful and that the decision taken there including, the election of the new executive committee, was unlawful and invalid.)
“6. The appointment of the 6th to 15th Respondents as members of the First Applicant’s committee is declared invalid.”
(The sixth to fifteenth applicants before Canca were Radebe and members of his faction.)
“9. The counter application which seeks to have the 6th to 16 the Respondents declared the First Applicant’s lawful committee is dismissed.”
[23] In his comprehensive judgment, Canca AJ carefully summarised and considered the facts and circumstances pertaining to the feud between the two factions, the challenge by Radebe to the validity of the constitution of the Fourth Respondent, and the battle for leadership. He also conveniently summarised the issues in some of the 11 to 13 applications brought before this Court, pertaining to this feud.
[24] Mr Radebe testified before Canca AJ in support of his stance that the constitution of the Fourth Respondent was not valid. It was common cause that the constitution was adopted at a meeting on 23 June 2012 after a number of workshops were conducted by the Second Respondent, that Radebe was elected Chairperson of the eleven-member Interim Committee formed in terms of the constitution of the Fourth Respondent and he signed the constitution. Radebe’s evidence that he was pressurised into signing the constitution and did not have sufficient time to acquaint himself with its contents at the meeting was contradicted by his own witness. Canca AJ rejected Radebe’s evidence and called into question his credibility. A report of the meeting quoted in the Canca judgment records that 116 members of the community were present and that 111 members voted in favour of accepting the constitution and 5 voted against it. At paragraphs 33 and 34 of his judgment Canca AJ states –
“[33] The main challenge to the validity of the constitution, as I understand it, revolves around the process which led to its adoption, including Radebe’s allegation that he was inter alia, coerced into signing same without having adequately acquainted himself with its contents. There is, however, nothing in the evidence, both oral and that which is presented in the papers, that leads me to conclude that the CPA’s constitution is unlawful and invalid.”…
[34] The only conclusion, from a conspectus of all the evidence, is that the belated challenge to the validity of the constitution is motivated by the bad-blood between the protagonists. I find that the CPA’s constitution is lawful and valid.”
[25] The judgment of Canca AJ also records that the testimony of Mr Dlamini, the project officer formerly employed by the Second Respondent, was that the Second Respondent had worked with the committee in existence when the claim was lodged, including in conducting the verification exercise. Mr Naidoo for the Fourth and Fifth Respondents pointed out that a comprehensive investigation was conducted whereafter the beneficiary list was generated by the Second Respondent with the cooperation of the Community.
[26] In a further judgment between the same parties as were before Canca AJ, and under the same case number dated 3 December 2018, Barnes AJ at para 39 found that those persons elected as committee members at a meeting of 6 December 2017 are the committee members of the Communal Property Association, the first applicant before her. These members were the second to ninth applicants before Barnes AJ, being Luthuli and members of his faction. A petition to the Supreme Court of Appeal by the Radebe faction, challenging the finding of Barnes AJ, was refused on 21 August 2019.
[27] I was invited by Mr Aboobaker to dissociate myself from the judgments of Canca AJ and Barnes AJ. There is no reason to accept the invitation. Both judgments are sound and correctly arrived at on the basis of the evidence and I am certainly bound by them given the dismissal of the petition by the Supreme Court of Appeal. In the light of these judgments I do not consider that the joinder of Mr Radebe and the other persons referred to by the State Respondents was necessary.
[28] The State Respondent’s reasons for restructuring of the Heads of Agreement cannot in the light of these judgments be sustained. The State Respondent’s reasons for restructuring, namely dissension within the Community, does not in any way pertain to fiscal matters and in my view cannot fall within the ambit of “advice on fiscal and other implications arising therefrom,” which invokes the reassessment and restructuring envisaged at clause 3.3 of the Heads of Agreement. The concerns of the State Respondents do not entitle them to a restructuring of the second and third phases of the composite agreement between the parties. If the State Respondents were aggrieved by the judgment of Canca AJ and the dismissal of the appeal petition in the Barnes AJ judgment, it was open to them to appeal against the judgment of Canca AJ and to apply for leave to appeal to the Constitutional Court against the dismissal of their petition in the Supreme Court of Appeal. As submitted by Mr Roberts for the Applicants, by failing to do so, they have acquiesced in those judgments. Their concerns about the constitution of the Fourth Respondent could have been pursued through the mechanisms provided for in the Communal Property Association Act 28 of 1996.
[29] Mr Naidoo for the Fourth and Fifth Respondents submitted, correctly in my view, that the allegations in the answering affidavit of Mr Maphutha are unsubstantiated, hearsay and speculative. All the disputes he refers to were referred to in affidavits before Canca AJ and Barnes AJ and were dealt with in those judgments. The issue of verification of beneficiaries was similarly dealt with on the basis of evidence before Canca AJ and the list of beneficiaries was accepted by him. Mr Naidoo submitted that it was shocking that Mr Maphutha was aligning himself with a group that was in essence found by the Court not to be the valid committee representatives of the claimants. I note that no community member attested to an affidavit in support of the allegations by Mr Maphutha.
[30] I note moreover that neither the Applicants, the Fourth and Fifth Respondents, nor indeed even the First to Third Respondents, have, on the evidence presented in the papers, indicated that any of the provisions of Phases 2 and 3 should be restructured pertaining to the settlement. There is also no evidence that there is any advice on fiscal and other implications entitling a reassessment of clause 3.2. of the Heads of Agreement. Nor is there evidence of any restructuring acceptable to the parties. On the contrary, from the undisputed evidence, the parties have committed themselves to the restoration of the properties to the claimants in three phases in accordance with the memorandum of understanding, the Heads of Agreement, the Management Agreement, and the Section 42D submissions. The evidence shows that the details in respect of the three phases have been determined. The Applicants point out moreover that the Heads of Agreement do not require a further written agreement to be concluded in respect of the second and third phases as contended by the State Respondents.
[31] Pertinently, the Phase 2 submission records at paragraph 11.1:
“The parties agree that the claim will be settled via full title ownership in a form of a title deed which will be transferred to the claimants. The claim will be settled in three phases due to the capital required to settle the claim in one financial year. The parties concerned agree to the manner in which the claim is to be settled and also the phasing of the claim in three successive financial years starting from 2012/2013”.
[32] The State Respondents have clearly exhibited their intention to comply with Phases 2 and 3 and did not indicate any intention to reassess the provisions of clause 3.2 of the Heads of Agreement, by virtue of the following –
32.1 Electing to have the properties subject to Phases 2 and 3 revalued;
32.2 Consenting to an order to have the Phase 2 properties to be revalued;
32.3 Consenting to an order dated 20 June 2016 to submit offers to purchase to the land owners in respect of the Phase 2 properties and further to make available the valuation reports in respect of Phase 3;
32.4 Submitting offers to purchase in respect of the Phase 2 properties to the land owners on 16 September 2016 and agreeing to a timeframe for completing valuations in respect of Phases 2 and 3.
[33] The circumstances in this case are similar to those which prevailed in Unica Iron and Steel v Mirchandani 2016 (2) SA 307 (SCA), referred to me by Mr Roberts, where performance commenced in terms of an agreement. At paragraphs 24 to 26 of the judgment, the Court held this was irreconcilable with the contract having been conditional upon a subsequent, formal agreement being concluded and signed. The parties all regarded the agreement as binding and proceeded to implement its terms. Similarly, in this matter, the performance in terms of Phase 1 in accordance with the Heads of Agreement and the valuations conducted in terms of clause 3.2 of the Heads of Agreement are irreconcilable with the assertion that the agreement was conditional upon a formal subsequent agreement being signed, insofar as this is asserted by the State Respondents.
[34] In view of all of the above, the State Respondents’ reliance on clause 3.3 of the Heads of Agreement is misplaced. An interpretation of the composite agreement comprising the Heads of Agreement and all other agreements negotiated by the parties, in the context of all the circumstances, favours the stance of the Applicants. As was said by Lewis JA in Novartis SA v Maphil Trading 2016 (1) SA 518 (SCA) at paragraph 27 –
“I do not understand these judgments to mean that interpretation is a process that takes into account only the objective meaning of the words, and does not have regard to the contract as a whole or the circumstances in which it was entered into. This Court has consistently held, for many decades, that the interpretation process is one of ascertaining the intention of the parties – what they meant to achieve. And in doing that, the Court must consider all the circumstances surrounding the contract to determine what their intention was in concluding it”.
The intention of the parties and what they meant to achieve gleaned from the context of the composite agreement, the facts, background circumstances and the manner of implementation thereof, was that the agreement pertained to all three phases. They meant to achieve the settlement of the entire claim. Phases 2 and 3 thus stand to be implemented and the Applicants are entitled to the relief they seek.
Costs
[35] Mr Roberts and Mr Naidoo sought an award of attorney and client costs against the State Respondents. Mr Naidoo submitted it was shocking that Mr Maphutha, the Regional Land Claims Commissioner, who is meant to play an impartial role in assisting the Court, has aligned himself with the Radebe faction. The Radebe faction’s representatives’ appointments to the Fourth Respondent’s committee, and their challenge to its constitution was found by Canca AJ to be invalid. He pointed out that the assertion that the Commission funded the Radebe faction in some 11 to 13 applications in this Court which challenged the standing of the Fourth Respondent and its committee, to avoid the binding composite agreement, remains uncontradicted. Mr Roberts submitted that the farming operations of the landowners have been affected by the stance of the State Respondents who were parties to all the agreements as is evidenced by the correspondence between the parties.
[36] It is disquieting that the basis for the State Respondent’s opposition to this application, namely that there are matters which require resolution before Phases 2 and 3 are implemented, pertain precisely to those matters which have already been determined by Canca AJ and Barnes AJ. The decisions on these matters by this Court are res judicata vis–a-vis the State Respondents who were parties in the applications before Barnes AJ and Canca AJ. The State Respondents elected not to appeal the judgments or invoke any remedies under the Communal Property Associations Act. Their conduct in resuscitating these very matters and persisting that there is merit in the concerns raised by the Radebe faction, notwithstanding this Court’s judgments, was contrary to their perceived role as an impartial participating party in restitution cases. Their conduct in so doing is also contrary to the intent displayed by them over many years in negotiating and approving the settlement of the entire claim.
[37] The consideration and award of attorney and client costs against the state respondents in Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Land Reform and Others [2010] ZALCC 14 at paragraphs 34 to 36, by this Court, is apposite in the circumstances of this case. Commenting on conduct akin to that displayed by the State Respondents in this matter it was said at paragraph 34 –
“Conduct of this ilk on the part of state officials flies in the face of fair contractual practice and furthers the aims of neither land restitution not the right thereto as embodied in the Act and Constitution.”
At paragraph 36 it was said –
“It should not be necessary to force the State through a court order to comply with its contractual obligations and an Applicant who is forced to seek such an order should not be out of pocket. I am satisfied that the Respondents’ conduct attracts the punitive cost order sought.”
I am similarly satisfied that the conduct of the State Respondents calls for censure in the award of the punitive cost order sought. This is a case in which the Applicants and the Fourth and Fifth Respondents should be reimbursed for their litigation expenses so that they will be less out of pocket than they would be if party and party costs were awarded. See Swartbooi and Others v Brink 2006 (1) SA 203 (CC) at paragraph 27 where the Court recognized that parties to the litigation ought not to have been put to the inconvenience and expense occasioned by the attempt to justify decisions that were invalid and untenable. See also Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) and Van der Merwe & Another v Taylor N.O. & Others 2008 (1) SA 1 (CC), which reaffirm the importance of the State’s duties of public administration and service, part of which is giving timeous effect to contractual obligations.
[35] In view of all of the above declaratory orders in the following terms are granted:
1.1 The Heads of Agreement concluded on 17 December 2010, the Management Agreement, concluded on 12 September 2012, and the Section 42D submission of both Phases 1 and 2 constitute the settlement agreement contemplated by section 14(3) of the Restitution Act, concluded between the parties;
1.2 The Heads of Agreement read with the Management Agreement and the Section 42D submission of both Phases 1 and 2 and annexure “RS23” to the Founding Affidavit are valid and enforceable and pertain to Phases 2 and 3 of the Mathulini Land Claim;
1.3 The Second Respondent has certified in the Section 42D Phase 1 submission that he/she is satisfied with the settlement agreements, concluded in terms of section 14(3) of the Restitution Act as set out in paragraph 1.1 above;
1.4 The Third Respondent has in accordance with Section 42D of the Restitution Act by his signature signified his satisfaction pertaining to the entitlement to restitution by the claimants of all the claimed land referred to in Government Notice 175, published in Government Gazette No 25963 of 6 February 2004, in terms of section 42D(1)(d) of the Restitution Act.
2. The Third Respondent is directed to acquire all the claimed properties referred to in Annexure “X” hereto, in terms of section 42E of the Restitution Act and to award and transfer such land to the Fourth Respondent in terms of section 42A of the Restitution Act.
3. The First, Second and Third Respondents are directed to take all steps necessary to determine just and equitable compensation in terms of section 25(3) of the Constitution of the Republic of South Africa of the immovable properties, including having the immovable properties being the subject of Phases 2 and 3 of the Mathulini Land Claim revalued within 60 days of the granting of this order.
4. The First, Second and Third Respondents are directed to provide the Applicants with copies of the new and current valuations and manner of computation of just and equitable compensation, in respect of the immovable properties, the subject of Phases 2 and 3 of the Mathulini land claim, within 15 days of compliance with paragraph 2 aforesaid.
5. In the event of the values as determined by the First, Second and Third Respondents not being acceptable to the Applicants, leave is granted to the Applicants to apply to this Court to determine just and equitable compensation payable by the State to each respective Applicant, in terms of section 22(1)(b) of the Restitution Act read with section 25(3) of the Constitution of the Republic of South Africa.
6. The First, Second and Third Respondents are ordered to pay the costs of the Applicants jointly and severally, the one paying the other to be absolved, such to include the costs of two counsel, on a scale as between attorney and client.
7. The First, Second and Third Respondents are ordered to pay the costs of the Fourth and Fifth Respondents, jointly and severally, the one paying the other to be absolved on a scale as between attorney and client.
_________________________
Y S MEER
Acting Judge President
Land Claims Court
APPEARANCES
For the Applicants Adv. M G Roberts SC
Adv. E Roberts
Instructed by:
Cox & Partners Attorneys
For the First, Second and
Third Respondents Adv. T N Aboobaker SC
Adv. M J Ngcobo
Instructed by:
State Attorney - KwaZulu Natal
For the Fourth and Fifth Respondents Adv. M Naidoo SC
Instructed by:
Alexanders Incorporated