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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT PIETERMARITZBURG

CASE NO:  LCC 125/2008

In the matter between:

MAVUNDULU COMMUNITY                                                                               CLAIMANT

and

THE MINISTER OF AGRICULTURE, RURAL

DEVELOPMENT AND LAND REFORM                                               FIRST DEFENDANT

REGIONAL LAND CLAIMS COMMISSIONER                                  SECOND DEFEDANT

DJ SCHEUER FARMING CC                                                               THIRD DEFENDANT

MANFRED MARTIN HILLERMAN                                                       FIFTH DEFENDANT

HERMAN THEODOR MEYER                                                             SIXTH DEFENDANT

EVANGELICAL LUTHERAN CHURCH NEW HANOVER             SEVENTH DEFENDANT

HOPEWELL TRUST                                                                          EIGHTH DEFENDANT

ROLF MATTHEW SCHRODER                                                           NINTH DEFENDANT

UHLMANN FAMILY TRUST                                                                TENTH DEFENDANT

MANFRED VICTOR SCHRODER                                                 TWELFTH DEFENDANT

WOERNER TRUST                                                                  THIRTEENTH DEFENDANT

WHITE THORN TRUST                                                          FOURTEENTH DEFENDANT

RM MARK FAMILY TRUST                                                         FIFTEENTH DEFENDANT

WITTEMOUNTAIN TRUST                                                         SIXTEENTH DEFENDANT

MANFRED MEYER FAMILY TRUST                                   SEVENTEENTH DEFENDANT

WERNER MEYER FAMILY TRUST                                         EIGHTEENTH DEFENDANT

WERNER MARK REDINGER                                                  NINETEENTH DEFENDANT

AMBLESIDE MEATS CC                                                           TWENTIETH DEFENDANT

BRIAN BASIL MITROPOULUS                                           TWENTY FIRST DEFENDANT

TMJ INVESTMENTS 15 CC                                            TWENTY SECOND DEFENDANT

DROGEMOLLER LIF & SHORT-TERM

BROKERS CC                                                                     TWENTY THIRD DEFENDANT

ROLAND GERHARD FRENZEL                                     TWENTY FOURTH DEFENDANT

COCOHAVEN 1057 CC                                                        TWENTY FIFTH DEFENDANT

ROYHEATH RAMDEWU AND REETHA

RAMDEWU                                                                           TWENTY SIXTH DEFENDANT

UCL CO-OPERATIVE LTD                                            TWENTY SEVENTH DEFENDANT

MOOIZICHT TRUST                                                          TWENTY EIGHTH DEFENDANT

 

Concerning:  Land described by the Mavundulu Community (Claimant Community) at the time of the dispossession concerning certain portions/sub divisions of the farm Spitzkop and Mooiplaats situated in New Hanover Magisterial district, KwaZulu-Natal.

 

Judgment delivered on: … May 2020

 

DRAFT JUDGMENT-21/5

 

CANCA AJ

 

INTRODUCTION

[1] At the close of the Plaintiff’s case (and that of the first and second respondents), in a trial based on a claim by a community for restitution of rights in land, under the Restitution of Land Rights Act, No. 22 of 1994 (“the Restitution Act”), I granted an application for the dismissal of a land claim sought to be based on individual claims, as an alternative to the one lodged as a community claim,[1]. That application was brought by the land owner defendants. I then indicated to the parties that there was an issue which might be conveniently decided before any other evidence was heard.

[2] The issue is whether the Plaintiff, who had lodged the community claim in terms of Section 2(1)(d) of the Restitution Act, has proved that there was a community in existence which was dispossessed of a right in land, post 19 June 1913.

[3] I ordered that the issue be separated in terms of Rule 57(1)(c) of the Rules of this Court[2] and that Heads of Argument be provided.

[4] The crisp legal issue for determination in this judgment is not dissimilar to the one considered by Judge President Meer, in the recent judgment of Luhlwini Mchunu Community v Hancock and Others [2020] ZALCC 2 (16 March 2020), namely:

“Is the Plaintiff a community as defined in the Restitution of Land Rights Act, No. 22 of 1994?”  

[5] It is appropriate to give a brief description of the genesis of this matter and a summary of the events that have led us to this stage of the trial, before considering the issue alluded to in the previous paragraph.

 

BACKGROUND

[6] The claim was lodged on behalf of the Mavundulu community on 30 December 1998 by Mr. Sipho Cekekhulu. He was authorized to do so by a resolution dated 9 August 1998. The claimed land consists of property situated in the Magisterial district of New Hanover, a small town located approximately 40 kilometers north-east of Pietermaritzburg, in the Province of KwaZulu-Natal.

[7] The Second Defendant, the Regional Land Claims Commissioner: KwaZulu-Natal (“the RLCC”), accepted and investigated the claim as a community claim. The claim was duly published in the Government Gazette Notice 17 of 2007 (“the Notice”).

[8] The properties published in the Notice were withdrawn, in terms of a Court Order dated 18 January 2010. The list of properties was amended by Government Gazette Notice 642 of 2011. However, the claim remained gazetted as a community one.

[9] This trial only relates to the farm Mooiplaats No. 1315, which was granted to a Mr. Cornelius J. Laas in March 1853, and the Spitzkop No. 1129, which was granted to Mr. Cornelius J. G. Vermaak in May 1851. It is not denied that the aforementioned farms underwent certain sub-divisions and changed ownership over the years, in particular, prior to 1913 and thereafter.

[10] The trial commenced in the New Hanover, referred to in paragraph [6] above, and was preceded by an inspection in loco of the claimed land on 15 and 16 March 2019.

[11] The Plaintiff, in various parts of its Amended Response to the Referral, states the following:

11.1 “Mavundulu Community’s members were in occupation of the claimed land since time immemorial prior to the arrival of the white people who later came to the land surveyed it, subdivided it and registered it in title deeds.”

11.2 “The claimant community was then compelled to live side by side with the white people.”

11.3 “The customary rights held by the claimant community to the land were reduced to those of labour tenants over time and gradually reduced to those of farm labourers over a period of time. The claimant community members were forced to work for the various white owners on their land and those who were not willing to be subjected to the labour tenancy and farm labourer system were forced to seek residence in the black townships and black rural areas in the greater KwaZulu-Natal Province including Greytown, Pietermaritzburg, Hammersdale and in Zululand.”

11.4 “As a pre-cursor to the dispossession, the white people

8.1 In 1903 dismantled the chieftaincy of chief Cebekhulu, Mavundulu by kidnapping him and throwing him in a deep (obidini) which is also one of the live landmarks and left him to die there”.

[12] Mr. Roberts, assisted by Ms. Roberts, for the land owner defendants, and Ms. Naidu, for the State defendants, argued that the Plaintiff’s response to the referral and the evidence tendered in support of its claim does not support the existence of a community as defined in the Restitution Act but rather that of a group of individuals living on the claimed land as farm workers and/or labour tenants.[3] I agree with counsel that the quoted extracts make it abundantly clear that the claimants are not a “group of persons whose rights are derived from shared rules determining access to land held in common by such group.” [4]

 

THE LAW

[13] According to Section 2(1)(d) of the Restitution Act, a person shall be entitled to restitution of a right in land if it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices. The claimant for such restitution must have been lodged the claim, with one of the offices of the Land Claims Commission, by not later than 31 December 1998.

[14] Section 1(iv) of the Restitution Act defines a “community” as follows:

“Community means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group and includes part of any such group.”  

[15] A right in land is defined in Section 1(xi) of the Restitution Act as “any right in land whether registered or unregistered …”

[16] The law as to what constitutes a community in restitution of rights in land claims is trite. Department of Land Affairs and Others v Goegelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 119 (CC) at para 45. Also see the authorities giving legal context to the definition of community set out by Judge President Meer in paragraph [8] of Luhlwini Mchunu, namely, In re Kranspoort Community 2000 (2) SA 124 (LCC); Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC) and Elambini Community v Minister of Rural Development and Land Reform and Others [2018] ZALCC 11.

[17] Sections 30(1) of the Restitution Act grants this Court the discretion to admit any evidence which it considers relevant and cogent to a matter being heard by it, whether or not such evidence would be admissible in any other Court of law.

 

THE TESTIMONY OF THE LAY WITNESSES CALLED BY THE PLAINTIFF

[18] The Plaintiff, over the course of several weeks, led the evidence of eight witnesses, two of whom testified as experts. Their testimonies are summarized below.

[19] Mr. Umbrose Absolom Ndlovu, in support of the Plaintiff’s case that they lived as a community, testified that, if there was a death, the induna, (a person akin to a foreman or a supervisor at the workplace) would announce the death and the place of its occurrence to the rest of the community. No ploughing would take place during that period and that, during the harvest, they would not eat that which they had been reaped until after the Inkosi had blessed the harvest and had tasted the crop. A further example was that, in the event of a wedding, the inkosi had to be notified and he would instruct the induna or certain members of the community to ensure that the ceremony took place without incident.

[20] This witness, however, conceded during cross-examination that, although Mr. Cebekhulu Mavundulu was the Chief/Inkosi of the area in which the claimed land falls when the whites arrived, the whites starting making the rules by which they lived by, particularly after his disappearance in 1903. And, anyone who did not adhere to those rules would have to leave or pay the consequences for not adhering to the rules. He further stated that the whites restricted their grazing land and the number of livestock each household could keep. In addition, they identified the grazing and ploughing areas, restricted their right of movement as well as the number of houses which each household could erect in their homesteads. According to Mr. Ndlovu, his family was evicted, inter alia, because his father’s livestock was overgrazing and that he had refused to reduce their number to that set by the farm owner.

[21] Mr. Sipho Wilson Cebekhulu, who was born on 3 March 1947, testified that he was told that the whites, who arrived in the area during the reign of Chief Cebekhulu Mavundla, came with documents, issued by the Government, which authorized them to become the owners of the claimed land. (The land owner defendants’ pleadings show that these were grants and that they were issued to a Mr. Vermaak and Mr. Laas during 1850 and 1851 respectively. See paragraph [9] above).

[22] He further stated that his family was evicted during the early 1960s because his father refused to reduce his livestock, which the owners of the farm stated were overgrazing and encroaching on the owners’ grazing land.

[23] During cross-examination, Mr. Sipho Wilson Cebekhulu conceded that the owners of the farm made the rules in respect of grazing, movement, visiting rights, functions and occupation rights on the property.

[24] Mr. Makhonda Albert Ntanzi, who did not refer to the claim land at all during his evidence-in-chief, testified that when his father fell ill, and was unable to offer his labour, his mother had to work for the owners in order for them to retain the right to continue living on that property. His further testimony was that they were evicted when his mother, eventually, also fell ill and was unable to continue working for the land owners.

[25] Mr. Ntanzi conceded during cross-examination that after the whites took over, it was them who decided where Black people could stay and bury their dead, not the Inkosi. He also conceded that most of his testimony was based on what he had heard from his mother.

[26] Mr. Mpikayipheli Petros Ngubane, an educator, testified that he was born on 9 February 1954 and that that he and his family left the farm Mooiplaats during 1958 or 1959. He stated that he was informed of their eviction by his grandfathers and uncles and that they settled on another farm. He would have been 4 or 5 years old at the time of their removal to the other farm which does not form part of the claimed land.

[27] Mr. Ngubane did not testify about any land that was held in common by the Cebekhulu which they were dispossessed of.

[28] Mr. Tenman Dludla, who was born in 1960, based his evidence on what he was told by his grandmother given that he was too young at the time of his family’s eviction from a farm, which he said was known as the Bentley farm.

[29] This farm is one of those listed in the Government Gazette which was withdrawn in terms of the Court Order dated 18 January 2010. It does not form part of the claimed land. Consequently, given that his evidence related to property that falls outside the claimed land, his testimony is irrelevant and does not assist the Plaintiff’s case.

[30] Ms. Linda Rohoda Qwabe, born Cele, testified that her father’s employment was terminated upon his injury at work. A relative then commenced work on the farm on his behalf but left that employ and the farm when she (the relative) got married. She and her family were then evicted from the farm.

[31] A conspectus of the evidence by the above-mentioned lay witnesses, the bulk of which was hearsay, leads, inevitably, to the conclusion that they and their forebears lived (and worked) on the claimed land under the rules of the white farmers.  Also, the evictions from the claimed land appear to have mostly been because of a failure to abide by the rules set by the farmers. Therefore, the evictions cannot be classified as having been as the result of racially based legislation or practices.

[32] Given that there was testimony that the permission to reside was linked to the obligation to provide labour, the land claimants were, at best, farm workers and labour tenants.

 

THE TESTIMONY OF THE PLAINTIFF’S EXPERT WITNESSES

[33] Dr. Ndlovu, who, inter alia, alleged that he is a heritage expert because, according to him, land is part of heritage, testified on the anthropological facts pertaining to this claim, given that he is not a historian. He asserted that his MA degree in anthropology, although conceding that he did not study anthropology at an undergraduate level, and a PhD (in rock art), qualified him to testify as an expert in the field of anthropology. His expertise as an expert witness was placed in issue by Mr. Roberts and Ms. Naidu, who both contended that Dr. Ndlovu’s evidence be rejected.

[34] Dr. Ndlovu’s evidence was mostly based on “interviews with land claimants” whose identity he refused to disclose. This is, inter alia, evident from page 7 of his expert report where the following is stated:

“For the purpose of this report which is characterized by primary data gathered from interviews with the land claimants, I limit my discussion to issues to do with access and rights to land:”

[35] In brief summary, Dr. Ndlovu evidence was that, not only was Mavundulu, according to his informants, a “local name” “directly linked to the presence of the land claimants in the area” but that there was in existence a claimant community who shared traditional rituals and/or rules on the claimed land, although the exercise of same was subject to the permission of the white farmers. He could not elaborate how those rules were implemented in respect of the land jointly as a group.

[36] Dr. Ndlovu, who conceded under cross-examination that he did not conduct an independent archival research but merely relied on the report of Dr. Whelan, the land owner defendants’ expert witness, stated that he neither verified the archival documents of Dr. Whelan nor looked at the aerial photography in respect of the claimed land.

[37] It is, furthermore, noteworthy, as submitted by Mr. Roberts, that Dr. Ndlovu, who was, generally, dismissive of the land owners’ archival documents during cross-examination, did not profess to have any skill or knowledge to analyse oral and archival evidence to determine whether there was in existence a community and/or persons who lost rights in land, subsequent to 19 June 1913.

[38] I agree with Mr. Roberts and Ms. Naidu that Dr. Ndlovu does not qualify as an expert. He has not provided satisfactory evidence or information to satisfy the test whether he is a competent witness or not. His evidence is, consequently, rejected.

[39] The plaintiff also called Mr. Schoeman, who has expertise in analyzing aerial photography, to testify as to the existence of people living on the claimed land. He readily conceded that he was not an expert and considered his appointment merely to assist the Court and other experts to make informed decisions.

[40] The photography on which Mr. Schoeman based his testimony only starts from 1937 onwards and included property and structures which did not form part of the claimed land. The gist of this witness’ testimony is that there was evidence of commercial as opposed to subsistence farming as well as a number of farmsteads and farming infrastructure on the claimed land as from 1937.

[41] Mr. Roberts contended that Mr. Schoeman’s evidence did not advance the plaintiff’s assertion that that there was a community in existence that occupied the claimed land and which land was used by it as a community to the exclusion of the white farm owners. I agree. Mr. Schoeman did not testify about the plaintiff’s alleged status as a community as defined in the Restitution Act.

 

DISCUSSION

[42] The claimant community bore the onus to prove that it existed as a community as defined in the Restitution Act. Such proof entails, inter alia, that it or part thereof, existed as a community since after 19 June 1913 and at the time the claim was lodged. In addition, the community has to show that it had been victim to racial dispossession of rights in land. See Goedgelegen Tropical Fruits supra and Elambini supra.

[43] The Plaintiff’s Amended Report to the Referral, quoted in paragraph [11] above, and the evidence of its lay and expert witnesses, does not establish that the claimants or their ancestors were a group of persons whose rights in land were derived from shared rules determining access to land held in common by them. Rather, the aforesaid pleading and the oral evidence points to rights in land held by the white farmers. They made the rules as to who could have access to their land and set the terms on which the claimants and their ancestors could occupy and use designated portions of a particular farm.

[44] The material aspects of the lay witnesses’ testimony evidenced labour tenancy rights and/or that they and their forbears were farm workers, and not the rights of a community as defined in the Restitution Act. The fact that the land claimants shared and exercised certain traditional rituals, social interactions, had small allotments, which they used for gardening purposes and keeping kraals for their livestock, the number of which was set by the farmer and, generally, engaged in subsistence farming, does not meet the test of the definition of community. Whilst the evidence does establish that the group did have shared rules, but none of them related to shared rules determining access to land held in common by such group. See the dictum of Judge President Meer in Elambini supra:

“ [141] Thus it is settled law that for a community litigant to succeed in a restitution claim it must prove that it existed as a community after 19 June 1913, that it derived its possession and use of the land from common rules, and that it existed as the same community  at the time that the claim was lodged. If at the time of dispossession, the possession and use of the land did not derive from common rules, but were supplanted by labour tenancy rules, the rights in land were not held by a community at the time of dispossession.”

[45] Moreover, given the parallels between this case, Luhlwini Mchunu and Elambini, the dictum of Judge President Meer, at paragraphs [143] – [145] in Elambini, and quoted in full in Luhlwini Mchunu, is apt in this matter.

 

CONCLUSION

[46] The Plaintiff has not, in my view, established that they occupied the land held in common by them under shared rules determining access to land. It was stated in in paragraph 11 of the Amended Response, quoted in paragraph [11] above, that the “ customary rights held by the claimant community to the land were reduced  to those of labour tenants over time and gradually reduced to those of farm laboures over a period of time,” This does not support the requirement of “shared rules determining rights in land held in common.”

 

COSTS

The fees of the land owner defendants’ legal teams.

[47] Although this Court does not award costs to the successful party, unless there are special circumstance, it is now settled law that if a private litigant succeeds in constitutional litigation against the State, that litigant should be entitled to a costs order. Moloto Community v Minister of Rural Development and Land Reform and Others 2019 (3) 523 (LCC) at para [30]. Sachs J, in Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) at paragraph 24, the learned Judge states that “particularly powerful reasons must exist for a court not to award costs against the State in favour of a private litigant who achieves substantial success in proceedings brought against it.”

[48] Moreover, in supporting the principles set out in the decision of Matladi obo Matladi Family v Greater Tubatse Local Municipality and Others [2013] ZACC 21; 2013 8 BCLR 909 (CC) at paragraph [12], the Constitutional Court re-iterated the fact that “a claim for restitution of rights in land is an important constitutional issue.”  Defending a constitutional right, particularly, successfully against the State, warrants a costs order in favour of the successful private litigant.

[49] The Biowatch principles relating to costs have been applied in numerous cases in this Court, including the following: Midlands North Research Group and Others v Kusile Land Claims Committee and Another (LCC21/2007) [2010] ZALCC 19; 2010 (5) SA 57 (LCC), paras [18] – [21] and [35]; Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Land Reform and Others 2010 (4) SA 308 par [35]; Mathibane and Others v Normandien Farms (Pty) and Others [2017] ZASCA 163; [2018] 1 All SA 390 (SCA) 2019 (1) SA 154 (SCA) par [77].21; 2013 (8) BCLR 909 (CC).

[50] Ms. Naidu, who strongly opposed the punitive costs order against the State defendants sought by the land owner defendants, argued, without much conviction, that the Court should follow its practice of not making a costs order unless special circumstances existed. The State defendants have not conducted themselves in a manner which warranted a costs order, so the argument continued. Ms. Naidu did not present any “powerful reasons” as to why the Court should depart from the very clear rule set by the Constitutional Court in Biowatch supra insofar as the State’s liability to pay the costs of “a private litigant who achieves substantial success in proceedings brought against it.”  The land owner defendants have demonstrably achieved success in this matter in the light of my finding that the plaintiff has failed to proof it’s claim. They are entitled to costs in this matter.

[51] Ms. Naidu, contended, in the alternative to her submission that there should be no costs order in this matter, that should I be minded to award costs to the land owner defendants, then such an award should be on a party and party scale to include the cost of only one counsel. This was based on the submission that, not only were the land owner defendants alone in briefing two counsel, had a very experienced senior instructing attorney but that the matter was not a complex one.

[52] I do not think that it is up to this Court to prescribe to land owner defendants or land owner respondents, in land claim matters, the number of counsel they should engage in a particular matter. It seems to me that that is a matter that is a matter best left to those instructing them and the Taxing Master. When a land owner, in matters of this nature, finds him/herself suddenly in a position that they may lose their property to a land claim, it does not seem unreasonable to me for such an individual to seek the best available assistance to either save his property or get the best possible value for same should the facts support a particular land claim. 

[53] I am, however, not persuaded that the land owner defendants are entitled to a costs order on a scale as between the scale as between attorney and client, as contended for by Mr. Roberts. The high-water mark for his contention for such an order is the submission in his Heads of Argument that “a prudent legal representative would scrutinize the evidence and interrogate their witnesses before a trial commences”. And, had that been done, Ms. Naidu and/or her instructing attorney would, inter alia have known that Dr. Ndlovu was not an expert and should have gleaned from the report of Dr. Whelan that there was no community long before the trial. The legal representatives for the State defendants “recklessly caused the trial to proceed in circumstances where they ought to have known that there is no prospect of success”, so the submission continued. This does not rise to the level where a punitive costs order is justified.

[54] In denying the land owner defendants’ prayer for a punitive costs order against the State defendants in Luhlwini Mchunu, the learned Judge President states the following:

“It is established law that a Regional Land Claims Commissioner in satisfying herself/himself that a claim has been lodged in the manner prescribed in section 11(1) of the Act, does not adjudicate claims. See Farjas (Pty) Ltd v Regional Land Claims Commissioner, KZN 1998 (2) 900 at 926I – 927E. A Regional Land Claims Commissioner is thus certainly not empowered to adjudicate whether a claim is an individual or community claim. Nor in researching a claim is that official tasked with uncovering evidence that may only be produced later at trial, as has occurred in respect of who occupied the 19^th and 20^th Defendants’ land. I am thus disinclined to grant the punitive order sought….”

This dictum applies with equal force in this matter.

[55] In the light of all of the above, I find that the land owner defendants are entitled to party and party costs against the State.

 

The fees of the plaintiff’s legal team.

Mr. Chithi’s fees.

[56] After posing to counsel the question raised in paragraph [4] above, namely, whether the plaintiff was a community, I asked Mr. Chithi to also furnish me with written submissions, when responding to the aforesaid question, as to why his fees, and those of that instructing him, should not be disallowed.

[57] The issue of the possible disapproval of fees for the plaintiff’s legal representatives was raised, mero moto, as was the case in Luhlwini Mchunu. The legal fees for the plaintiff’s legal team, in that matter, was disallowed mostly on the basis that the learned Judge found the legal team’s

“… persistence and pursuit on behalf of the Plaintiff with a community claim when there was no shred of evidence to prove the legally established acid test post Goedgelegen that the Plaintiff derived its use and possession of the land from common rules.”

was “vexatious, frivolous and abusive litigation…”. Luhlwini Mchunu at paragraphs [24] and [33].

[58] Mr. Chithi argued strongly that an advocate is duty bound to present his client’s case as best he can, even if he is of the view that his client is unlikely to succeed and, therefore, he and those instructing him, were entitled to their fees. I agree. That, however, does not permit the advocate to argue the case on manifestly incorrect submissions relating to the law.

[59] A legal representative cannot accept instructions that are patently unsustainable in law. For example, if the legal representative has to represent a client facing a damage’s claim based on fraudulent conduct, he cannot argue that the fraud is not a delict in South African law. That would be patently incorrect. That legal representative may, however, argue that his or her client’s conduct was not fraudulent, even if in his own opinion it was fraudulent.

[60] Mr. Chithi, although not yet senior counsel, is an advocate who is very experienced in matters involving this Court and appears often in the Land Claims Court, particularly in cases emanating from KwaZulu-Natal. That province, on the whole, has the most cases on this Court’s Roll. Mr. Chithi must therefore be well aware that a group of persons cannot claim restitution of land in terms of the Restitution Act if their rights in the land are not derived from shared rules determining access to land held in common by such a group.

[61] In the present matter, Mr. Chithi knew ( or should have known) from the outset that the plaintiff could not submit any evidence which might satisfy the legal requirements that their rights in land must be derived from shared rules determining access to land held in common by the group and/or community, he should have advised the group that their community claim cannot possibly succeed, and offered to surrender his brief. As can be gleaned from the evidence tendered by the plaintiff, there is no evidence which, arguably, shows that the rights of which the plaintiff was dispossessed were derived from shared rules within the group and not from the land owners. Moreover, Mr. Chithi was counsel in both Elambini and the Luhlwini cases in which the definition of “community” contained in the Restitution Act was at issue.

[62] Even if Mr. Chithi had not realized the dismal prospects of success of the Plaintiff’s claim, it should, given his long experience as a practitioner in Land Claims Court matters, have dawned on him, after sight of the land owner defendants’ experts’ reports, that the claimants’ persistence with the claim was akin to a voyage on the Titanic, doomed, sadly, to end in failure. This was another opportunity for him to surrender his brief on the basis suggested in paragraph [62] above and the one below. A refusal to grant an order precluding legal representatives is not novel. See Minister of Rural Development and Land Reform v Normandiem Farms (Pty) Ltd and Others, Mathibane and Others v Normadien Farms (Pty) Ltd and Others [2017] ZASCA 163; [2018] 1 All SA 390 (SCA); 2019 (1) SA 154 (SCA) par [83].

[63] The following quotation from the “South African Legal Practice Council’s Code of Conduct made under the authority of section 36(1) of the Legal Practice Act, 28 of 2014 published on 10 February 2017; GN 81 of 2017 (GG 40610)” (“the Code”) is apt and in particular, the following:

“3. Legal practitioners, candidate legal practitioners and juristic entities shall –

3.10 advise their clients at the earliest possible opportunity on the likely success of such clients’ cases and not generate unnecessary work, nor involve their clients in unnecessary expense;

9.9 A legal practitioner shall, in giving any advice about the prospects of success in any matter, give a true account of his or her opinion and shall not pander to a client’s whims or desires. However, in any matter in which the legal practitioner’s opinion is adverse to the prospects of success, the legal practitioner may upon client’s insistence place before a court the client’s case for the adjudicating officer to decide the matter and the legal practitioner shall advance that case as ……

25.3 Counsel shall upon acceptance of a brief exercise personal judgment over all aspects of the brief and shall not permit any person to dictate how the matter is to be conducted. If the decisions made or advice given by counsel are not acceptable to the instructing attorney or to the client, counsel must offer to surrender his brief, and if the instructing attorney elects to accept the surrender, counsel must forthwith withdraw.

26.2 Counsel shall not refuse to accept briefs in an area of practice in which they profess to practice or in a court in which they profess to practice on the grounds that they disapprove of the client or of the client’s opinions or alleged conduct or because of any disregard in which such person might be held.

60.1 A legal practitioner shall not abuse or permit abuse of the process of court or tribunal and shall act in a manner that shall promote and advance efficacy of the legal process.”

[64] The Judge President, in Luhwini Mchunu, cited with approval, the dictum of Van Niekerk J, in the Labour Court case of Mashishi v Mdlala and Others [2018] 7 BLLR 693 (LC). The learned Judge in Mashishi states that:

“[14] Judge Owen Rogers recently suggested that it is improper for counsel to act for a client in respect of claim or defence which is hopeless in law or on the facts… Although these assertions are directed primarily at counsel… the same principles apply to attorneys, and indeed all those who have the right of audience before a court….By this he means counsel must be able to formulate a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they are all accepted by the court, will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is “quite satisfied that one or more of them will fail. In particular, there is an ethical obligation on counsel, to ensure that only ‘genuine and arguable’ case cases are ventilated, and that this be achieved without delay (at p51).

[15] What is significant about Judge Rogers’ argument is his acknowledgement that there is no express or even implied prohibition against pursuing the hopeless case to be found in the General Council of the Bar’s Uniform Rules of Professional Conduct. The obligation not to accept or pursue a hopeless case is located outside of the formal rules of professional conduct, in sources that include the court’s power to stay those proceedings that amount to an abuse of process, the court’s right to mulct a practitioner in costs (something that necessarily implies impropriety), and the founding values of the Constitution; in particular, effective, efficient and expeditious adjudication.” See paragraph [31] of Luhlwini Mchunu.

The Labour Court is a court of similar jurisdiction as the Land Claims Court.

[65] Proceeding with litigation that is obviously unsustainable, is considered frivolous and/or vexatious and/or an abuse of the process of the Court. See Luhlwini Mchunu at paragraph [28] and the authorities cited in that paragraph.

[66] The case of Emantanjeni Community v Commission on Restitution of Land Rights and Others [2019] ZALCC 31 also supports my view that Mr. Chithi is precluded from recovering any fees in this matter:

“[42] Initially, the Respondents sought costs against the Applicant but did not persist with this at the hearing, instead they persist with the claim that the Applicant’s legal representatives should not be allowed to recover their legal costs under legal representation provided in terms of section 29(4) of the Act. There is no need to deal with the legal fees of Advocate Shakoane SC who informed this Court that he volunteered his services and the issue of fees in relation to him does not arise. In my view, the Applicant’s legal representatives’ costs, should be disallowed following receipt of the answering affidavit. The Applicant’s legal representatives should never have advised the Applicant to launch the main application.

…

[44] When public funds have been provided to litigants in terms of section 29(4) of the Act there is a fiduciary duty on the legal representatives to be responsible when instituting litigation and they must bring litigation that is fully motivated. When a legal representative fails to do so and brings unwarranted applications, there is no reason why this Court should not disallow their fees. As soon as the Applicant’s counsel became involved in the matter he must have realized that the application was ill-advised and there is no reason why the Commission should pay his fees.”

[67] In the light of the above, I am of the view that Mr. Chithi is not entitled to the fees he would have earned during the trial of this matter. For the sake of clarity, his fees are limited to those earned up to and until the commencement of the trial, including the fees earned during the inspection in loco.

 

Plaintiff’s instructing attorneys’ fees.

[68] Having been an attorney, initially for a number of years, in a small one to four person African law firm, I take judicial notice of the fact that, given the clientele, most of these firm, apart, possibly in areas such as Criminal and Motor Vehicle Accident insurance cases, they do not specialize in any particular aspect of the law. This is a legacy of our past and not a reflection of the practitioner. An in-depth knowledge of the law has, in most cases, been left by attorneys in the type of practice I have described above, to counsel.

[69] The instructing attorney in this matter, Dludlu Attorneys, falls within the category of attorneys referred to in the previous paragraph. It might well be that he and his firm relied on the advice of Mr. Chithi. I do not recall him appearing in a case before me during my six years acting on this Bench. To deny the instructing attorneys their fees in the circumstances of this case would in my view not be justified and reasonable.

[70] Notwithstanding the finding made in the previous paragraph, I would like to draw the attention of all practitioners in this Court to Judge President Meer’s dictum at paragraph [33] of Luhlwini Mchunu where the learned Judge states:

“I nonetheless caution legal practitioners, especially those fortunate enough to be funded at State expense to act for litigants in this Court that the time is fact approaching when they will be mulcted with the considerable costs of their opponents, de bonis propriis for litigating vexatiously.”

[71] In the result, I order as follows:

1. The Plaintiff is not a community as defined in the Restitution of Land Rights Act, No. 22 of 1994.

2. The Plaintiff’s claim for restitution of rights in land is dismissed.

3. The First Defendant, the Minister of Rural Development and Rural Development, shall bear the costs of the Third to Eighteenth Defendants on a scale as between party and party. Such costs shall include the following:

3.1 The employment of two counsel and attorneys in respect of all trial dates, the quantum of which shall be determined by the Taxing Master;

3.2 The costs of counsel and attorneys for attending all pre-trial conferences, the costs incurred in respect of consultations with representatives of the land owner defendants, and the costs in respect of consultations with the land owners’ experts, Dr. D Whelan, Mr. C Henderson, Mr. P Hellig, Colonel Cloete and Mr. B Land.

3.3 The qualifying fees and expenses, including travelling and accommodation expenses, of the expert witnesses of Dr. D Whelan, Mr. C Hendersen, Mr. P. Hellig, Colonel Cloete and Mr. B Land, such as to include the costs of inspections in loco conducted by them, the consultations by them with the land owner defendants to obtain relevant information to compare their reports, the drafting of the reports and the consultation time with the land owner defendants’ counsel and attorneys.

3.4 All costs of drafting maps and obtaining of all aerial photographs and/or making copies thereof for trial.

3.6 All costs incurred by the land owner defendants’ attorneys in preparation, indexing and pagination of all bundles of documents, maps and photographs, transcript of court proceedings and making copies thereof.

4. The fees of Plaintiff’s counsel, Mr. Chithi are disallowed as from the start of the trial in New Hannover but includes his attendances at the inspection in loco.

5. The fees of the Plaintiff’s attorneys of record are allowed in a quantum as shall be determined by the Taxing Master.   

 

 

_________________________

                                                MP CANCA

                                                Acting Judge, Lands Claims Court

 

 

Appearances:

For the Applicants

Adv M M Chiti

  instructed by

Dludlu Attorneys, M C Ntshalintshali Attorneys

For the 1^st and 2^nd Defendants

Adv P Naidu

instructed by

The State Attorney KZN

For the 3^rd to 28^th Defendants

Adv M G Roberts SC

with him

Adv E Roberts

instructed by

Cox & Partners

 

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