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FLYNOTES: LAND TENURE – Restitution of rights – Compensation – Standing to bring appeal – Order was final and definitive in effect – Limited standing to compensation and precluded any other relief – Confirmed that lawful occupiers have no interest in transfer of land beyond entitlement to just and equitable compensation – Attempt to revisit finding without a rescission application was impermissible – Deviation from previous decisions requires coherent and compelling reasons which were absent – Leave to appeal refused.

 

CONSTITUTIONAL COURT OF SOUTH AFRICA

 

                                                                                          Case CCT 379/24

 

In the matter between:

 

SOUTH AFRICAN RIDING FOR THE

DISABLED ASSOCIATION                                                                                     Applicant

 

and

 

REGIONAL LAND CLAIMS COMMISSION,

WESTERN CAPE                                                                                       First Respondent

 

MAGHERDIEN SADIEN N.O.

(on behalf of the Imam Dout Sadien Family Trust)                                 Second Respondent

 

ABDURAGHMAAN SADIEN

FAMILY TRUST                                                                                         Third Respondent

 

MOHAMED ALLIE EBRAHIM N.O.

(on behalf of the Bapa Sadien Family Trust)                                            Fourth Respondent

 

MAGHERDIEN SADIEN N.O.

(on behalf of the Boeta Toyer Sadien Family Trust)                                    Fifth Respondent

 

BOETA OMAR FAMILY TRUST                                                                Sixth Respondent

SEDIEK SADIEN                                                                                  Seventh Respondent

 

 

Neutral citation:     South African Riding for the Disabled Association v Regional Land Claims Commission, Western Cape and Others [2025] ZACC 25

 

Coram:                  Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Rogers J, Savage AJ, Theron J and Tshiqi J

 

Judgment:             Kollapen J (unanimous)

 

Heard on:              2 September 2025

 

Decided on:            13 November 2025

 

Summary:              Land — land reform — restitution — claim — right to intervene of lawful occupier — may intervene only for purpose of determining compensation — Restitution of Land Rights Act 22 of 1994 — section 35(9)

 

Practice — judgments and orders —  whether previous order was interlocutory — order final in effect — previous order finally determined standing

Rescission — absence of application for rescission — functus officio

 

Parties — locus standi — what constitutes — standing previously determined — applicant lacking legal standing

 

 

 

ORDER

 

 

 

On application for direct leave to appeal from the Land Court of South Africa, Randburg:

1.       Leave to appeal directly to this Court is refused with costs.

 

 

 

JUDGMENT

 

 

KOLLAPEN J (Mlambo DCJ, Majiedt J, Mathopo J, Rogers J, Savage AJ, Theron J and Tshiqi J concurring):

 

 

Introduction

[1]            This is an application for direct leave to appeal brought by the South African Riding for the Disabled Association (SARDA) against a November 2024 judgment and order from the Land Court.  This application forms part of a fifteen-year litigation saga concerning a land restitution claim.  The matter is opposed by the first respondent, the Regional Land Claims Commission, Western Cape (Commission); the second to sixth respondents, who represent several trusts composed of members of the Sadien family (Sadien family); and the seventh respondent, Mr Sediek Sadien.

 

Factual background

[2]            The history of this matter centres around the dispossession of a piece of land in Constantia, Erf 2274.  The land was acquired by a forebear of the Sadiens in 1902.  His sons (Imam Dout, Toyer, Omar, Ismail, and Abduraghmaan) bought the land from their late mother’s deceased estate at an auction in 1956.  The land was then transferred in 1958 to Imam Dout, Toyer, Omar, Abduraghmaan and the estate of Ismail, who died after the purchase but before the land was transferred.  The brothers and their families lived together on the land, using it to grow and sell fruits and vegetables.

 

[3]            In 1961, as a result of the Group Areas Act[1] and Proclamation 34 of 1961[2] issued pursuant thereto, Erf 2274 fell within a “white group area”.  Consequently, the Sadien brothers were dispossessed of their land and were forced to sell it in 1963 for roughly half the value they had paid.

 

[4]            Post-1994, various members of the Sadien family filed land claims in respect of the dispossessed land before the Commission on Restitution of Land Rights between 1995 and 1998.  Four of these claims were consolidated into one family claim on behalf of the family claimants by the Commission between 2001 and 2003.  In relevant proceedings starting in 2010, Sediek and Ebrahim, two direct descendants of the original claimants and grandchildren of two of the Sadien brothers, were acting in a representative capacity for members of the Sadien family.

 

[5]            SARDA is a non-profit organisation which provides equine therapy to children with disabilities, including scheduled programming for learners from special needs schools in and around Cape Town.  SARDA has occupied four erven in Constantia, including Erf 142 which is owned by the State, since 1980.[3]  During its occupation, SARDA made a number of improvements to Erf 142 as were required for its work.

 

Litigation history

[6]            On 7 December 2012, the Land Claims Court concluded that the Sadien brothers were dispossessed of the land as a result of racially discriminatory laws and practices.  The Land Claims Court ordered that a portion of state-owned land, Erf 1783 Constantia, be transferred to Sediek Sadien in response to the Sadien family restitution claim, as the original dispossessed land could not be restored to its original status.  This order was varied on 8 February 2013, replacing Erf 1783 with Erf 142 to better align with the size of the original dispossessed land.

 

[7]            SARDA, which was occupying the land under a lease, was not notified of the proceedings that led to the substitution of Erf 1783 with Erf 142.  In September 2014, SARDA applied for leave to intervene before the Land Claims Court to challenge this varied order and sought to have the varied order set aside.  The Land Claims Court concluded that the right to compensation did not constitute a direct and substantial interest and refused SARDA’s intervention.  On 31 March 2016, the Land Claims Court refused leave to appeal and a petition to the Supreme Court of Appeal was also unsuccessful.  SARDA then filed an application for leave to appeal to this Court in 2016.

 

[8]            On 23 February 2017, this Court delivered judgment in the matter after calling for written argument but without an oral hearing.[4]  It granted leave to appeal and upheld SARDA’s appeal to a limited extent.  It held that SARDA’s interest as a lawful occupier of state-owned land (Erf 142) gave it a direct and substantial interest to intervene in the restitution proceedings on the basis of its right to just and equitable compensation under section 35(9) of the Restitution of Land Rights Act[5] (the Act).  However, this Court went on to find that SARDA’s interest was limited to compensation and that it did not have an interest in the transfer of Erf 142 to the Sadien family.  This Court, therefore, found it unnecessary to rescind the varied order of the Land Claims Court but held that SARDA’s intervention for the purpose of determining compensation was necessary.  This Court remitted the matter to the Land Claims Court for the determination of compensation payable to SARDA.

 

[9]            What followed was a failed mediation process to determine SARDA’s compensation and a dispute between the Sadien family and Sediek Sadien surrounding the handling of the awarded land.  Various trusts representing the Sadien family filed a notice to intervene in the Land Claims Court on 5 February 2024 to substitute themselves as the parties who were entitled to the substantive relief under the 2012 and 2013 orders.  SARDA opposed the family’s intervention application and filed a counter-application, seeking that the 2012 order and varied 2013 order be amended to remove Erf 142 from the remit of those orders, or alternatively that those orders be rescinded.

 

[10]        On 1 November 2024, the Land Court, which has replaced the Land Claims Court,[6] granted the leave to intervene and substitution request by the Sadien family trusts but dismissed SARDA’s counter-application.  This was on the basis that the Land Court was bound by this Court’s 2017 judgment, which determined that SARDA’s interest is limited to compensation in the matter.  It is this decision of the Land Court which is the subject of SARDA’s application for leave to appeal before this Court.

 

Leave to appeal

[11]        SARDA seeks leave to appeal for two purposes.  First, SARDA asks this Court to set aside the Land Court’s 2024 substitution order on the grounds that it is incapable of execution, is incoherent and is bad in law.  Second, it asks this Court to grant an order rescinding the Land Claims Court’s 2013 varied order.  The basis for both legs of SARDA’s challenge relies on its contention that it had a direct and substantial interest in the 2013 order and the 2024 substitution order, going beyond mere compensation.

 

[12]        SARDA contends that it had standing to apply to the Land Court to reconsider the terms of this Court’s 2017 order which limited its interest to compensation.  It argues that this Court’s order was interlocutory and capable of variation by the Land Court.  In the event that it was final, SARDA asks this Court to depart from its 2017 order on the ground that it was made per incuriam (through lack of care).  In SARDA’s view, the interests of justice favour granting direct leave to appeal because it maintains the matter can only come to finality through the consideration of whether this Court’s 2017 order was wrongly decided.

 

[13]        The Commission disputes SARDA’s claim to standing and submits that there is no basis for granting SARDA direct leave to appeal.  SARDA, says the Commission, impermissibly asks this Court to depart from its earlier decision and seeks a complete rehearing of the 2017 matter.  Similarly, according to the Sadien family, SARDA is requesting a rehearing of this Court’s 2017 judgment which definitively ruled on SARDA’s interest in respect of the land claim without finding a need to rescind the 2013 order.  The Sadien family contends that there is no coherent or compelling reason for this Court to depart from its 2017 order, and public policy considerations and the interests of justice emphasise the need for finality.

 

Condonation

[14]        SARDA requests condonation for the late filing of its application for direct leave to appeal against the judgment and order of the Land Court dated 1 November 2024 but only mailed to, and received by, SARDA on 28 November 2024.  SARDA submits that an electronic copy of its application for direct leave to appeal was served on the respondents and filed in this Court on 20 December 2024.  If the date is reckoned from 28 November 2024, as it should be, the application was filed timeously and therefore no condonation is required.

 

[15]        The Commission requests condonation for the late filing of its notice of intention to oppose together with its answering affidavit.  The Commission submits that its attorneys of record only received the application on 20 January 2025 after which it immediately sought counsel to prepare the answering affidavit, which was filed on 4 February 2025.  If the date is reckoned from 20 January 2025, the answering affidavit was filed a day late.  The Commission submits that SARDA will not suffer prejudice if condonation is granted.  Although the answering affidavit was filed late, there is a reasonable and acceptable explanation and SARDA will not suffer any prejudice as a result of the late filing.  While SARDA will suffer no prejudice if condonation is granted, the Commission would, if condonation were refused, especially considering the nature of the case and the role played by the Commission in restitution cases.  Therefore, condonation is granted.

 

Replying affidavit

[16]        SARDA seeks leave to file a replying affidavit in this Court to respond to contentions made in the respondents’ answering affidavits.  This replying affidavit does not present any new information which would assist this Court in its disposition of the matter.  It is not in the interests of justice to admit the replying affidavit and leave to file the replying affidavit is refused.

 

Standing

[17]        The submissions of the parties to which I have referred raise in the sharpest terms the question of SARDA’s standing in this matter.  Standing is a “matter of procedural justiciability”.[7]  Standing, while procedural, “goes to the substance of the applicant’s entitlement to come to court”.[8]  It has been described by this Court as “an important element in determining whether a matter is properly before a court”[9] and “a tool a court employs to determine whether a litigant is entitled to claim its time, and to put the opposing litigant to trouble”.[10]  Standing is an issue that must be dealt with in limine (at the outset).  In general, it is both separate from, and antecedent to, the merits of a dispute.[11]

 

[18]        The onus rests on the party instituting proceedings to allege and prove that it has standing.[12]  Standing may be arrived at in our law via two routes – under the Constitution and at common law.[13]  Under the Constitution, section 38 affords standing to different categories of litigants seeking to vindicate rights in the Bill of Rights.  At common law, litigants must be able to show a sufficient, personal and direct interest for standing.[14]  In this matter, we are concerned with standing at common law in light of the fact that SARDA is not seeking to vindicate a right in the Bill of Rights.  In establishing its standing, the obstacle SARDA faces is that in 2017 this Court decided that SARDA’s interest in relation to the restitution proceedings is limited to compensation.

 

Did this Court’s 2017 order finally determine SARDA’s standing?

[19]        In bringing this application, SARDA initially attempted to side-step this Court’s 2017 finding by arguing that this Court’s order in relation to the scope of its limited standing was interlocutory.  Although this Court limited the right of intervention to the question of compensation, SARDA contended that the limitation did not elevate the status of the order granting leave to intervene to that of a final order.  It contended that once the matter had been remitted to the Land Court, it was open to that Court to reconsider this Court’s order on good cause shown.  This argument cannot be sustained.

 

[20]        In South Cape Corporation,[15] the Court identified the features of the two different types of interlocutory orders.  It said:

 

“In a wide and general sense the term ‘interlocutory’ refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation.  But orders of this kind are divided into two classes: (i) those which have a final and definitive effect on the main action; and (ii) those, known as ‘simple (or purely) interlocutory orders’ or ‘interlocutory orders proper’, which do not.”[16]

 

[21]        The approach in determining whether a procedural order is purely interlocutory or final in effect was also considered in Pretoria Garrison.[17]  There, the Court opined that an order is not a simple or purely interlocutory order if it is such as to “dispose of any issue or any portion of the issue in the main action or suit” or if it is such that it “irreparably anticipates or precludes some of the relief which would or might be given at the hearing”.[18]  Our courts have held that in determining whether an order is final, it is important to bear in mind that “not merely the form of the order must be considered but also, and predominantly, its effect”.[19]

 

[22]        If regard is had to the issue before this Court in 2017 and the reasoning of this Court in disposing of the case, it is clear that the 2017 order was final and definitive in effect.  This Court was required to consider whether SARDA had a direct and substantial interest in the 2013 varied order of the Land Claims Court that would have entitled it to challenge the order.  This Court found that SARDA’s direct and substantial interest in the litigation was confined to intervening for the purposes of determining its right to compensation and for this purpose only.  This Court said:

 

“It is in this limited sense that it had a direct and substantial interest in the proceedings.  This interest does not include the question whether Erf 142 must be transferred to the Sadiens.  Its interest is restricted to the entitlement to just and equitable compensation which must be determined by agreement or by the Land Claims Court.”[20]

 

[23]        Although this Court’s 2017 judgment related to what may be described as a procedural issue on SARDA’s right to intervene, the order made by this Court rested on a substantive interpretation of the Act.  This Court reaffirmed the nuanced framework the Act establishes to balance the rights of those who are dispossessed with the interests of lawful occupiers.  At the same time, this Court made clear that the rights of lawful occupiers who reside on land do not trump the rights of claimants to have their land restored.  This Court interpreted section 35(9) of the Act and held that it “authorises transfer of the state land to a claimant without the involvement of the lawful occupier of the land in question”; however, it “safeguards the occupier’s interest by conferring on it an entitlement to just and equitable compensation”.[21]  This Court’s determination of SARDA’s interest in the proceedings flowed from this interpretation.  Despite being housed in an intervention application, this Court’s finding concerned the substance of SARDA’s interest in the context of the Act.

 

[24]        There is no doubt that the order was final in effect and definitive of SARDA’s interest.  The effect of that order was to limit SARDA’s standing in the proceedings to compensation and in this way, the order irreparably precluded any other relief SARDA would be minded to seek in the restitution proceedings.  It could never be suggested that another court, seized with the question of SARDA’s standing, could alter this Court’s finding after it had pronounced on it.

 

[25]        During the hearing of this matter, SARDA’s legal representative rightly accepted the final nature of this Court’s 2017 order.  In light of this concession, and in the face of a final order which limited its standing to compensation, how then does SARDA claim to be entitled to stand before this Court?  SARDA takes the position that this Court’s 2017 order in relation to its standing was wrongly decided and ought to be rescinded.

 

Is rescission of this Court’s 2017 order properly before this Court?

[26]        To understand whether SARDA has properly sought rescission, it is necessary to outline the nature of the application before us.  In this Court, SARDA seeks direct leave to appeal against the Land Court’s 2024 order.  At no point has SARDA brought an application for rescission of this Court’s 2017 order.  At the hearing of this matter, SARDA’s legal representative accepted that no rescission application in respect of the 2017 order had been brought and that SARDA ought to have brought such an application for this Court to be in a position to properly consider rescission.  What SARDA effectively asks of this Court is to rescind its previous order without seeking any relief to that effect.  This simply cannot be countenanced.

 

[27]        Legal certainty and finality are fundamental to the protection of the rule of law.[22]  This Court has emphasised that it “has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned” and that it “must not easily and without coherent and compelling reason deviate from its own previous decisions, or be seen to have done so”.[23]  In Zuma,[24] this Court held:

 

“Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end.  The Constitutional Court, as the highest court in the Republic, is constitutionally enjoined to act as the final arbiter in litigation.  This role must not be misunderstood, mischaracterised, nor taken lightly, for the principles of legal certainty and finality of judgments are the oxygen without which the rule of law languishes, suffocates and perishes.”[25]

 

Does SARDA have standing in the appeal?

[28]        Given the final nature of this Court’s 2017 order and given that no proper application for rescission serves before this Court, I share the sentiments of the lower court that it is both “puzzling and somewhat troubling”[26] that SARDA considered itself entitled to bring these proceedings.  In 2017, this Court found that SARDA “misconceived the extent of its interest” by seeking to involve itself in the Sadien family’s land claim.[27]  The application before us today extends beyond a mere misconception on the part of SARDA; it extends to what can only be viewed as a refusal to accept the extent of its interest and a disregard of this Court’s 2017 order.

 

[29]        In terms of this Court’s 2017 judgment, SARDA has no interest in the Sadien family’s land claim and transfer of the land other than to secure just and equitable compensation.  Not only was the lower court bound by this Court’s 2017 finding, so was SARDA.  I find that SARDA lacked standing to oppose the intervention application in the Land Court, lacked standing to bring a counter-application and, finally, lacks standing to bring this appeal.

 

Jurisdiction

[30]        The conclusion I have reached on standing makes it unnecessary to address whether this matter engages the jurisdiction of this Court.  SARDA is not entitled to approach a court on this issue.  In the circumstances, the question whether this Court has the power to adjudicate upon and dispose of the matter does not arise.

 

Merits

[31]        In the absence of standing, this Court “should, as a general rule, dispose of the matter without entering the merits”.[28]  I am alive to the caution expressed by this Court in Giant Concerts that “the interests of justice under the Constitution may require courts to be hesitant to dispose of cases on standing alone where broader concerns of accountability and responsiveness may require investigation and determination of the merits”.[29]  This is simply not one of those instances.  In making the finding that SARDA lacks standing, I accept that the rules of standing should not be used formalistically to avoid fulfilling this Court’s important function.[30]  However, I do not understand this caution to mean that there are never instances where a matter may be disposed of on standing alone.  In fact, in this matter, the interests of justice cry out for finality and respect for this Court’s 2017 order which already determined SARDA’s standing.

 

[32]        In conclusion and in urging a resolution of this long outstanding matter, I raise its importance in the broader context of restitution within which this dispute is located.  Restitution is the means for the state, and society at large, to begin to address and rectify the injustices of the past which in many respects are still pervasive more than 30 years into our democracy.  The restitution programme has faced many challenges and the constitutional promise of restitution remains unfulfilled for many claimants.[31]  Against this background, this Court must stand fast in its commitment to restitution’s potential to transform South African society.  This Court is obliged “to advance the declared purpose of the Restitution Act, which is to provide restitution and equitable redress to as many victims of racial dispossession of land rights after 1913 as possible”.[32]

 

[33]        Addressing past injustices and providing equitable redress inherently requires finality.  The importance of finality in restitution proceedings is mirrored in section 11(7) of the Act.[33]  It is not for lawful occupiers of state-owned land to continually obstruct the restitution process through unending litigation surrounding restitution claims.  Unwarranted delays in the restitution process are antithetical to both the restitution programme and the constitutional right to restitution enshrined in section 25(7) of the Constitution.

 

[34]        The Sadien brothers were dispossessed of their land in 1963 and, over 60 years later and 13 years after the original restitution award, the Sadien family still has not been able to regain possession of that which is owed to them.  Through repeated legal challenges and the disregard for this Court’s 2017 judgment, SARDA has furthered the delay in the finalisation of this long outstanding claim for restitution.  The Sadien family has waited long enough to receive the right in land to which they are legally entitled.  SARDA’s continuous attempts to challenge the 2013 order, though it has been settled for over eight years, cannot be overlooked in light of the injustice faced by the Sadien family and the significance of restitution.

 

Costs

[35]        The awarding of costs remains within the discretion of the Court.  The general rule is that the successful party should be awarded their costs.[34]  The respondents have requested that, even if the Biowatch principle[35] were to apply, this Court depart from it and make an appropriate costs order against SARDA, owing to SARDA’s conduct in delaying the restitution process through protracted litigation processes.

 

[36]        The Biowatch principle provides that costs should not be ordered against a party where a party seeks to enforce fundamental constitutional rights against the state.  The important reason underpinning this principle is that “one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the state . . . lest such orders have an unduly inhibiting or ‘chilling’ effect on other potential litigants in this category”.[36]  Thus, in constitutional litigation against the state, even an unsuccessful private litigant is spared costs, unless the application is frivolous or vexatious.[37]  The application of the Biowatch principle is not unqualified.  If the application is frivolous or vexatious, or in any other way manifestly inappropriate, it will be treated as an ordinary civil case.

 

[37]        In light of this Court’s finding that SARDA has disregarded its previous order and prolonged the restitution process by intervening in processes where it lacks standing, this Court finds no reason why SARDA falls within a category protected by the Biowatch principle.  No fundamental constitutional right against the state was sought to be enforced in these proceedings.  Even if SARDA were to fall within the protective realm of Biowatch, I find that this is a suitable case for departure from the principle.[38]  What SARDA impermissibly seeks to do is to re-litigate an issue which has been finally disposed of, and even then its attempt to do so is so procedurally inept and devoid of merit that it must be removed from the shield of Biowatch protection.  Accordingly, the ordinary principles of costs would apply.  However, this Court recognises that SARDA is a non-profit organisation which does important work to assist the disability community.  In light of this, this Court will exercise its discretion and direct that the applicant pay the respondents’ costs in this Court, but not the costs of two counsel as requested by the first respondent.

 

Conclusion

[38]        In the circumstances, I conclude that SARDA had no standing to institute these proceedings.  The result, therefore, is that the appeal must fail.

 

Order

[39]        The following order is made:

1.       Leave to appeal directly to this Court is refused with costs.

For the Applicant:	M Wagener, Attorney with right of appearance
For the First Respondent:	D J Jacobs SC and L J Krige instructed by Office of the State Attorney, Cape Town
For the Second to Sixth Respondents:	B Joseph SC and Y Abass instructed by Ighsaan Sadien Attorneys

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