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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

CASE NO: LCC30/2008

Decided on : 31 May 2010

In the matter between:

MOTLALEPULA ELIZABETH MOEKETSI Plaintiff

and

REGIONAL LAND CLAIMS COMMISSIONER

GAUTENG AND NORTH WEST PROVINCES First Defendant

THE CHIEF LAND CLAIMS COMMISSION OF

LAND RIGHTS Second Defendant

THE MINISTER OF LAND AFFAIRS Third Defendant

JUDGEMENT

MIA A J:

[1] The plaintiff in this matter is Morapedi Howard Seuoe, the chairperson of the Kwa Dukathole Land Claims Committee. He acts in his personal capacity and on behalf of the Kwa-Dukathole Land Claims Community. The latter is a community comprised of approximately 706 members, who allege that they lost their land due to racial discriminatory laws and have lodged a claim in terms of the Restitution of Land Rights Act 22 of 1994 as amended, (hereafter referred to as the “Restitution Act”). The plaintiff issued summons for payment in the amount of R42 360.00 plus interest at the prescribed rate calculated from October 2005. The plaintiff is represented by Advocate Malowa instructed by Matloga Attorneys. The defendants herein, the Regional Land Claims Commissioner Gauteng and North West Provinces, the Chief Land Claims Commission and the Minister of Agriculture and Land Affairs are represented by Advocate P. Nonyane instructed by the State Attorney.

[2] The action according to the plaintiff is a request for compensation for the loss of land due to racially discriminatory laws. The plaintiff bases the amount of his claim on the allegation that the first defendant compensated some of the individual claimants. It is alleged that the first defendant paid a particular claimant family R60 000.00 per family per dwelling/ stand. The plaintiff alleges that Zodwa Sigasa was paid R20 000.00 and two other claimants in her household received the balance of R40 000.00 adding up to the R60 000.00 per stand.

[3] A special plea and a plea on the merits were filed herein. The parties have agreed to separate the special plea from the merits of the matter. The special plea is dealt with below. The plea is to be dealt with later in the event that the special plea does not succeed.

[4] The first defendant alleges that there is extinctive prescription on the debt due to the plaintiff’s delay in referring the matter to this Court and requests that the claim be dismissed. Having heard counsel for both the parties, I dismissed the special plea. The reasons for my order appear below.

[5] Mr. Nonyane submits that the issues this Court should consider are the following:

(a) what constitutes a debt?

(b) when does prescription begin to run?

(c) what interrupts prescription?

(d) what is service of process as contemplated in section 15 of the Prescription Act 1969.

(e) to which debts does the Prescription Act apply?

[6] I accept for the present the Defendant’s submission that whilst not defined in the Act the word “debt” has a wide meaning. Having regard to the special plea, the Court is specifically concerned with the meaning of the word “debt” within the meaning of the Prescription Act. In CGU Insurance Limited v Rumdel Construction (Pty) Ltd¹ Jones AJA, in referring to the Prescription Act 68 of 1969 noted that:

“ ‘there is… a discernible looseness of language’ in its use thereof with the result that ‘debt’ means different things in different contexts. For this reason ‘debt’ in the context of s 15(1) must bear ‘a wide and general meaning’. It does not have the technical meaning given in the phrase ‘cause of action’ when used in the context of pleadings.”

The Courts have distinguished ‘cause of action’ from ‘debt’ and Jones AJA refers to the decision in Drennan Maud & Partners v Pennington Town Board 1998(3)SA 200SCA at 212G-I where the court per Harms JA,

“…emphasised that ‘debt’ does not mean ‘cause of action’, and indicated that that the kind of scrutiny to which a cause of action is subjected in an exception is inappropriate when examining the alleged debt for purposes of prescription.”²

[7] I accept further the submission by Mr. Nonyane for the defendant that the obligation to pay is created by statute, namely section 25(7) of the Constitution of the Republic of South Africa Act 108 of 1996 ( hereafter “the Constitution”) and section 2 of the Restitution Act.

[8] The Restitution Act introduces time frame requirements for the submission and investigation and resolution of all claims as a result of dispossession of rights in land as a result of past racially discriminatory laws or practices. In terms of section 2 of the Restitution Act,

” [doja22y1994s2] 2     Entitlement to restitution

    (1) A person shall be entitled to restitution of a right in land if-

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

       (b)…..

(c)…

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

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

[9] The 19 June 1913 and the 31 December 1998 are the only two time frames indicated by the Restitution Act. There is no indication that the defendant disputes that the claim was lodged timeously or that the land was dispossessed after 19 June 1913. In the present case the claim was lodged with the RLCC prior to 31 December 1998.

[10] The RLCC has the power to investigate the claim after it has been successfully lodged and may refer the claim for mediation or arbitration. Should such mediation not be successful, and after the RLCC certifies that the parties cannot resolve the claim by mediation or negotiation, the matter may referred to this Court in terms of section 14 of the Restitution Act. Section 36 of the Restitution Act also permits any party aggrieved by any act or decision of the Minister or the RLCC to apply to have such act or decision reviewed by this Court.

[11] In the present matter the claim was investigated. The last correspondence from the RLCC indicates that the matter was still under investigation. The RLCC undertook to facilitate a further meeting once its investigations were complete. I can see no further record of such a meeting and neither of the parties have referred me to such a meeting. I am not informed that the RLCC investigated and made an offer to settle the communities’ claim after the investigation was complete. Thus it is not clear what the status of the claim is according to the RLCC and whether anything is due to the claimants.

[12] It is required of the State that it respects, promotes and fulfills the rights in the Constitution. The Bill of Rights binds the legislature, the executive, the judiciary and all organs of state. Section 25 provides that:

“25     (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) ….

(3) ….

    (4) …

(5) ..

(6) …

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1). [ My emphasis]

    (9) Parliament must enact the legislation referred to in subsection (6).

[13] The defendant argues that the plaintiff’s claim constitutes a debt as contemplated in the Prescription Act No 68 of 1969. Further that the claim has prescribed by virtue of the provisions of section 11(d) which provides as follows:

“[doja68y1969s11] 11     Periods of prescription of debts

    The periods of prescription of debts shall be the following:

       (a)     …

(b)     …

(c)     …

(d)     save where an Act of Parliament provides otherwise, three years in respect of any other debt.

[14] Having regard to the nature of the claim in terms of the Restitution Act, the only time frame imposed are the dates of dispossession being the June 1913 and the time for lodgement being 31December 1998. The plaintiff claim complies with both dates. The correspondence of the RLCC indicates that they were investigating the claim. There is no indication what became of such investigation and how it impacted on the claim submitted by the plaintiff. Consequently it is not clear in view of the absence of the outcome of such further investigations what rights flowed from the result of the investigations. It is not clear that a debt had arisen and consequently I cannot find that prescription is applicable.

__________________

Shanaaz Mia

Acting Judge of the Land Claims Court

APPEARANCES

For the Applicants

Advocate Malowa instructed by Matloga Attorneys

Pretoria

For Defendants

Advocate Paul Nonyane instructed by State Attorney

Pretoria

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