IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC21/2007
Date of hearing: 24 February 2010
Date of judgment: 30 April 2010 
In the matter between:

MIDLANDS NORTH RESEARCH GROUP 
AND OTHERS								     Applicant                                                                  

and 

KUSILE LAND CLAIMS COMMITTEE				     Plaintiff/Claimant

THE REGIONAL LAND CLAIMS COMMISSIONER,
KWAZULU NATAL AND OTHERS				            Respondent

JUDGMENT ________________________________________________________________

GILDENHUYS J

[1] This is a claim for legal costs against the Land Claims Commission (“the Commission”), arising from a restitution claim referred to this Court by the Regional Land Claims Commissioner: Kwazulu-Natal (“the RLCC”) in terms of the Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”). The facts on which the claim is based are set forth hereunder.

[2] A claim for the restitution of land rights was lodged with the Commission on 30 December 1998 by Mr Ngcobo on behalf of the Kusile community (“the claimant”) in respect of certain land in KwaZulu-Natal. The RLCC investigated the claim and concluded:
•	that it is not precluded by sec 2 of the Restitution Act;
•	that it is not frivolous or vexatious; and
•	that it was lodged to the satisfaction of the RLCC.

Notice of the claim was thereupon published in the Government Gazette of 25 June 2004 under Notice No 1148 of 2004. The notice contains a list of 33 properties (“the properties”) which are claimed. The properties are in private ownership.

[3] After being compelled to do so by a Court Order, the RLCC referred the restitution claim to this Court for adjudication. The claim is contested by almost all the property owners (“the opposing land owners”). They are mostly white. They were represented in the restitution proceedings before this Court by attorney Mr van der Merwe and by senior and junior counsel, Mr Roberts and Mr van der Walt. One owner of several of the properties, the Ingonyama Trust, was separately represented by attorney Mr Coetzee and by counsel Mr van Rooyen. The RLCC was represented by Ms Jonas from the State Attorney’s office in Durban and by senior and junior counsel, Mr Choudree and Ms Naidoo.

[4] The opposing land owners contend that the claim is invalid on several grounds. Because the restitution claim has not yet been finally disposed of, I will confine myself to two of the grounds. It is not necessary for purposes of this judgment to consider the others.

[5] Firstly, the opposing land owners say that at the time of the alleged dispossession (which the claimant says occurred during or after 1921), a number of families who consider themselves to be part of the claimant community, lived on portions of the properties as labour tenants. Most if not all of the properties were farmed by their white owners. The labour tenants were, generally speaking, allowed to live on the properties and were allocated some land by the landowners for purposes of grazing cattle and growing crops, all in return for labour to be provided by the labour tenants to the land owners. Because the claimant families did not occupy the entire properties but only portions thereof, their claim can, at best, be for the portions which they did actually occupy. It was not contested by any of the parties that this is indeed the position.

[6] Secondly, the opposing land owners aver that the rights of the claimant families in the land were not derived from shared rules governing access to land held in common by the claimant families, but on terms imposed on them by the owners of the properties. The restitution claim can therefore not be a community claim. Support for this argument can be found in the judgment of Moseneke DCJ in Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) at 212D-216D.

[7] After several pre-trial conferences, the hearing commenced on 18 March 2009. The claimant, as plaintiff, was responsible for indexing and collating the Court’s papers. The papers were very voluminous. The indexing and collating were not properly done. The documents were not arranged in chronological sequence and many irrelevant documents were included in the bundles. The Court’s papers were indexed and collated at the very last minute. Counsel did not have similarly indexed papers. In order for the matter to proceed, the opposing land owners’ attorneys took it upon themselves to rectify the indexing and collating. I stood the matter down for a day to enable them to do so.

[8] It would have been difficult to proceed with the hearing without proper maps. The RLCC did not provide proper maps. In fact, the RLCC did not conduct any mapping exercise of note. The land owners, again in order to get the matter to proceed, had proper and very useful maps prepared at their own cost, and made them available at the hearing. They also provided a number of aerial photographs.

[9] It became apparent, after the first two witnesses called by the claimants had testified, that the above two grounds of opposition raised by the land owners had merit. The hearing was then postponed sine die and further conferences followed to explore a way forward.

[10] Restitution of rights in land can be by way of restoration of the land which the claimants was dispossessed of, or by way of equitable redress. Equitable redress can take the form of monetary compensation or an award of alternative state-owned land. The claimants wanted restoration, and this was recommended by the RLCC. The RLCC was well aware of the grounds of objection raised by the land owners, but disregarded them when making this recommendation.

[11] It was evident from the evidence of the two witnesses and from debates at the conferences that the claimants are faced with the following difficulties: Firstly, it would be arduous and time-consuming to identify the individual patches of land occupied by each of the claimant families on the properties. It became apparent that the situation and extent of many of them would be disputed. Secondly, it might not be feasible to restore to the claimant a large number of small individual tracts of land excised from intensively farmed land units. Thirdly, the individual tracts of land were occupied by members of the claimant, not by virtue of shared rules governing access to land held by them in common, but on terms imposed by the white owners of the properties. The community claim may well have to be converted into a large number of individual restitution claims, which might not be achievable under the Restitution Act and which will involve considerable costs and delays.

[12] Faced with these difficulties, the claimants decided to opt for financial compensation rather than restoration of the tracts of land which the individual families were dispossessed of, with the exception of five properties, all belonging to the 11th defendant (the Ingonyama Trust). The result was that none of the properties except the aforesaid five remained subject to the claim for restoration. This was placed on record at a pre-trial conference held on 11 September 2009. The claimant’s demand for restitution in the form of financial compensation is still pending in this Court. I will at this point in time say no more about it.  

[13] At a subsequent pre-trial conference held on 21 February 2010, I was informed that the claimants are no longer claiming the five Ingonyama Trust properties. In fact, the claimants never intended to claim those properties. The properties were included in the Government Gazette notice by mistake. The cadastral descriptions of some of the claimed land as ascertained by the RLCC were wrong. This error came to light after the maps prepared and aerial photographs provided by the opposing land owners became available. The outcome is that the five properties are no longer subject to a restoration claim. 

[14] The opposing land owners (and also the Ingonyama Trust) incurred substantial costs before reaching the hearing stage of the proceedings. They applied for cost orders against the Commission and/or against the claimants. I heard their applications in Pietermaritzburg on 24 February 2010.

[15] It has in the past been the practice of this Court not to make cost orders in cases wherein restitution of land rights are claimed, unless there are special circumstance which warrant a cost order. The practice of not making cost orders is based on the litigation being “in the genre of social litigation” or being “public interest litigation”. The practice conforms with the general rule applicable in constitutional litigation that in the absence of special circumstances, an unsuccessful litigant ought not to have to pay his opponent’s costs.

[16] The right to restitution of property dispossessed as a result of past racially discriminatory laws or practices is a constitutional right. It originates from section 25(7) of the Constitution, which reads as follows:-

“25.     (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.”

Parliament enacted the Restitution Act to fulfill its constitutional obligation under section 25(7).

[17] The following subsections of section 25 of the Constitution also impact on land restitution:

“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.

(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).”

It follows from the above that litigation concerning restitution of rights in land is constitutional litigation if it is undertaken to assert or defend a constitutional right (which, in casu, could be a right to restitution and or a right in property) . That is one of the reasons why this Court, in the absence of special circumstances, did in the past not make cost orders in such cases.

[18] In a recent Constitutional Court judgment, Biowatch Trust v Registrar, Genetic Resources and Others, 2009 (6) SA 232 (CC), Sachs J gave guidelines on the proper judicial approach to be followed in determining cost awards in constitutional litigation. He commenced by stating (at 239 H-I) that –

“Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of the parties, the conduct of their legal representatives, whether a party achieves technical success only, the nature of the litigants and the nature of the proceedings. I mention these examples to indicate that the principles which have been developed in relation to the award of costs are by their nature sufficiently flexible and adaptable to meet new needs which may arise in regard to constitutional litigation. They offer a useful point of departure. If the need arises the rules may have to be substantially adapted; this should however be done on a case by case basis. It is unnecessary, if not impossible, at this stage to attempt to formulate comprehensive rules regarding costs in constitutional litigation.”

The learned judge then proceeded to identify a number of signposts which the Court could and should follow in exercising its discretion on the award of costs.

[19] The following principles enunciated by the learned judge applies to all constitutional litigation:

“[17] Section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law. No party to court proceedings should be endowed with either an enhanced or a diminished status compared to any other. It is true that our Constitution is a transformative one based on the understanding that there is a great deal of systematic unfairness in our society. This could be an important, even decisive factor to be taken into account in determining the actual substantive merits of the litigation. It has no bearing, however, on the entitlement of all litigants to be accorded equal status when asserting rights in a court of law. Courts are obligated to be impartial with regard to litigants who appear before them. Thus, litigants should not be treated disadvantageously in making costs and related awards simply because they are pursuing commercial interests and have deep pockets. Nor should they be looked upon with favour because they are fighting for the poor and lack funds themselves. What matters is whether rich or poor, advantaged or disadvantaged, they are asserting rights protected by the Constitution”

[20] It was furthermore held in the Biowatch case that in litigation between the State and private parties seeking to assert a constitutional right, the State should ordinarily pay the costs if it loses. The rationale for this general rule is threefold:

“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse. Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of constitutional democracy. Thirdly, it is the State that bears primary responsibility for ensuring that both the law and State conduct are consistent with the Constitution. If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of State conduct, it is appropriate that the State should bear the costs if the challenge is good, but if it is not, then the losing non-State litigant should be shielded from the costs consequences of failure. In this way responsibility for ensuring that the law and the State conduct are constitutional is placed at the correct door.”

The learned judge added a note of caution by stating:

“If an application is frivolous or vexatious, or in any other way manifestly inappropriate, the applicant should not expect that the worthiness of its cause will immunize it against an adverse costs award.”

[21] In conclusion, the learned judge emphasized 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.” 

[22] I turn to the restitution process. Only claims lodged with the Land Claims Commission on or before 31 December 1998 are valid. The claims are investigated by the Regional Land Claims Commissioner for the area concerned. If the RLCC is satisfied that the claim was timeously lodged, that it is not precluded by section 2(1) of the Restitution Act and that it is not frivolous or vexatious, he or she must give notice of the claim in the Government Gazette. Further investigations by the RLCC follow thereafter. If a settlement of the claim is not achieved, it must be referred to the Land Claims Court by way of a formal notice of referral. A copy of the notice must be served on all interested parties (including the claimant and the land owners).

[23] A claim for the restoration of land (being a form of restitution of a right in land) is a claim against the State. Where a landowner opposes a land restoration claim on its property, it opposes a demand by the claimant that the State acquire or expropriate the property in order to transfer it to the claimant. There is no lis between the claimant and the property owner.

[24] The RLCC actively participated in the proceedings before this Court. After the commencement of the proceedings, it amended its report delivered in terms of sec 14(2) of the Restitution Act. Annexed thereto is a so-called Investigation Report prepared for the RLCC by Mr M P Zuma, dated 18 February 2003. The report contains the following paragraphs sv “History of dispossession as described by Claimants” (I quote verbatim):

“The RLCC has held a series of meetings with the community during it indicated to the Commission that they were mentioned farms between 1921-1978. Before this period the community enjoyed beneficial occupation rights. The claimants have indicated to the Commission that they enjoyed grazing as well as planting rights. When whites arrived in the area in 1900. Relations between them and the community were good.white farmers and the community lived side by side peacefully. However in the 1920s relations started to deteriorate as farmers suddenly instructed the local community to move from the land they were occupying. The reason given by the white farmers was that they had bought the land from the government.

The wards or Izigodi affected were Chameni, Faye and Isikhoto. People that were residing on these wards. These wards were turned into farms and all people that were residing on them became labour tenants.

[25] The opposing land owners pointed out to the RLCC in representations submitted to it under sec 11A of the Restitution Act and also in its formal response to the referral report that the farms comprising the claimed properties were all surveyed in the 19th century. The first Deeds of Grant for each farm were issued as follows:
1.	Applesbosch to P H van Rooyen in 1853
2.	Newlands to J Kirkham in 1860.
3.	Marchmont to J Gifford in 1895
4.	Lot R4 to A Gordon in 1906
5.	Lot R5 to J M Culverwell in 1911
6.	Little Noodsberg to W H Acutt and D Leslie in 1864
7.	Lot 18B to A D Gilson in 1892

[26] The opposing land owners demonstrated convincingly that the properties were already held under private title when the alleged dispossession commenced during or about 1921. This fact, so they say, disproves the averment that the properties or any right therein was held by a community as defined in sec 1(iv) of the Restitution Act. Despite all evidence to the contrary, the RLCC maintained that the alleged community owned the properties or alternatively occupied the properties under a trust arrangement.

[27] In a formal reply (dated 31 October 2008) to the response delivered by the opposing land owners, the RLCC submitted as follows:

“a)	S2 of the Act defines “community” as “unless the context indicated otherwise, a community was any group of persons whose rights in land were derived from shared rules determining access to land held in common by such group and includes part of any such group.

b)	Through the investigation, the RLCC concluded that the Plaintiff constituted a sufficiently cohesive group of persons.

c)	Through the investigation, the RLCC concluded that the Plaintiff demonstrated some element of commonality with the community as it was at the time of dispossession.

Therefore the RLCC is satisfied that the requirements of S2(1)(d) of the Restitution Act were fulfilled.

[28]  At the time of the formal reply by the RLCC, the judgment of the Constitutional Court in the Goedgelegen case was already delivered and published in the South African Law Reports. In this case, Moseneke DCJ held as follows:

“The acid test remains whether the members of the Popela Community [the claimants] derived their possession and use of the land from common rules in 1969. The answer must be in the negative. By then each of the families within the community had been compelled to have its own separate relationship with the Altenroxels [the land owners]. They pointed out the land for use by each family. They ordered them to dispense with their livestock. They required them singularly, and often also their children as young as 10 years, to toil on the farm if they were to live there.”

Later in the judgment, Moseneke DCJ said

“In any event, at its very core, labour tenancy under the common law arises from a so-called innominate contract between the landowner and the labour tenant, requiring the tenant to render services to the owner in return for the right to occupy a piece of land, graze cattle and raise crops. In name, it is an individualized transaction that requires specific performance from the contracting parties. This means that labour tenancy does not sit well with commonly held occupancy rights. It is a transaction between two individuals rather than one between the landlord and a community of labour tenants.”  (my underlining)

[29] In the case of Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Olivier JA stated that the claim procedure for the restitution of land rights is divided into four phases, viz:

1.	the lodgement of the claim; 
2.	the “acceptance” of the claim by publication thereof in the Governement Gazette;
3.	the investigation of the claim; and
4.	the referral of the claim.

The opposing landowners contend that the third (investigative) phase of the claim procedure was not properly conducted by the RLCC. 

[30] The RLCC should have recognized that it were individual families and not a community that was dispossessed. The RLCC should also have recognised that the individual families did not occupy the entire extent properties which are being claimed, but at best only portions thereof. The resistance to the claim for restoration by the opposing landowners was therefore fully warranted.

[31] The RLCC stuck to his findings despite the opposing land owners’ submissions under sec 11A of the Act, and maintained his stance even after delivery of the opposing landowners’ response in this Court. He should have realized much earlier that the claim for restoration, in the form in which it was submitted, cannot succeed. It is apparent, not only from the oral evidence submitted by the claimants, which evidence must have been available during the investigative process, but also from Mr Zuma’s Investigation Report of 18 February 2003.

[32] The Commission is an organ of State. It’s functions in terms of sec 6(1) of the Restitution Act include the following:

“(a)	subject to the provisions of section 2, receive and acknowledge receipt of all claims for the restitution of rights in land lodged with or transferred to it in terms of this Act;
(b)        ……
(c) 	……
(cA)	investigate the merits of claims contemplated in paragraph (a);
(cB)	……
(d)	……
(e)	define any issues which may still be in dispute between the claimants and other interested parties with a view to expediting the hearing of claims by the Court;
(eA)	draw up reports on unsettled claims for submission as evidence to the Court and present any other relevant evidence to the Court;
(f)	……”

In short, the Commission manages the restitution process on behalf of the State.

[33] This Court, seized with litigation under the Restitution Act, must deal with conflicting constitutional rights. A claimant who qualifies has a constitutional right to seek restitution of land rights which were taken from him. A landowner has a constitutional right to preserve his property. The RLCC should not favour any of them to the disadvantage of the other. The RLCC is a central role player, with the task of deciding whether or not a claim is prima facie valid.

[34] Oliver JA stated Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern Province and Mpumalanga, and Others that “this is not a task that can be done in a superficial, cursory manner”. If the RLCC is satisfied that the claim appears to be in order, he proceeds to publish it. Thereafter, he conducts a futher investigation, and attempts to resolve the claim through mediation and negotiation. If a land owner believes that a restitution claim is not valid, or that the claimant is claiming more than what he is legally entitled to, he has the right to shield himself and his property against such a claim. His resistance is against the State which, through the RLCC, has decided that the claim is prima facie valid. Because neither the RLCC nor the State can be the final adjudicator of a dispute over the validity of a claim, the Land Claims Court was given that duty. As part of that duty, the Court was given a wide discretion to make cost orders.

[35] In my view, as long as the parties concerned, namely the claimants and the landowners, act in good faith by participating in the litigation, none of them should be treated differently from the others. They are all in litigation with the State, represented (in this case) by the RLCC. Where the position taken by the RLCC was shown to be untenable, costs should be awarded against the Commission. This approach is in line with the judgment in the Biowatch case, to which I have already referred. 

[36] Mr Choudree submitted, with reference to the case of Ferreira v Levin that no special reasons exist why the State must pay the costs of the landowners. Sachs J considered Ferreira v Levin in his Biowatch judgment, and said:

“The need for flexibility and a careful case-by-case approach was in fact emphasized in one of the first cases heard by this court, Ferreira v Levin. In a judgment on costs given separately from the judgment on the merits, Ackermann J pointed out that the courts have over three years developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general principle, have his or her costs.

During the 13 years that have passed since Ferreira v Levin was decided we have indeed gained considerable experience of costs awards made on a case-by-case basis. A number of signposts have emerged. Without departing from the general principle that a court’s discretion should not be straitjacketed by inflexible rules, it is now possible and desirable, at least, to develop some general points of departure with regard to costs in constitutional litigation.”

I have already set forth the “points of departure” developed in the Biowatch case and observed them in reaching my conclusion.

[37] Mr Choudree also referred me to the case of Ndebele-Ndzundza Community v Farm Kafferskraal No 181 JS, where Moloto J declined to order the State to pay the landowner’s costs incurred in the hearing of a claim for the restitution of land rights. Moloto J expressed himself as follows:

“ The reason for costs is generally that the party ordered to pay such costs has lost. That the State pays its own costs or costs of the claimants cannot be a reason for the State to be ordered to pay the opposing parties’ costs. The State pays it own costs and those of the Commission because it and the Commission had certain views about the case which they wanted to represent in the trial. The State did not disclose to the Court why it paid the claimant’s costs, and was entitled not to do so. Similarly, it is not correct to say the Department (presumably the DLA and the Commission) made no attempt to assist in the case and conceded the claim. They assisted by engaging counsel to argue the case from their point of view and the Court found such argument invaluable.”

The above approach was generally adopted by this Court in the past in respect of the State’s and the Commission’s participation in litigation for the restitution of land rights. It has, however, been overridden by the “points of departure” set forth in the Biowatch case. It is no longer necessary for there to be exceptional reasons before costs can be awarded against the State in land restitution litigation.

[38] Even if the approach set forth in the Biowatch case (supra) is not followed, a cost order against the Commission would still be appropriate in this case because of the inadequate manner in which the RLCC investigated and presented the case. The Commission, as an organ of state, bears an obligation to ensure that the work of this court is not impeded by inadequate investigation and that time is not unnecessarily spent on claims which, in the form in which they were referred to the Court by the RLCC, can manifestly not succeed. The RLCC failed in this duty. 

[39] The opposing land owners asked for costs on an attorney and client scale.
I am not convinced that a punitive cost order against the Commission is justified. It is well-known that the RLCC in KwaZulu-Natal suffered and still suffers serious capacity problems and staff shortages. There was no willful neglect on the part of the RLCC officials, although I do find the cold shoulder presented to the opposing land owners during the investigation of the claim regrettable. I am also distressed that the RLCC did not comply or timeously comply with a number of directives which I gave at pretrial conferences prior to the hearing. However, during the hearing itself and also at pretrial conferences subsequent to the hearing the RLCC officials and particularly the counsel and attorney briefed by the RLCC were very cooperative and supportive of the efforts to find solutions to the many difficulties besetting the case. I will therefore not make any punitive cost order against the RLCC.

[40] The RLCC is not solely to blame for all the delays. The claimant in restitution proceedings has the same duties as a plaintiff in an action. Blame for the failure to index and collate the Court’s papers properly must be laid at the door of the claimant’s attorneys. The RLCC indicated during argument before us that it will accept liability for any cost order which the Court might make relating to this failure, provided the costs are awarded on a party and party scale.

[41] The Ingonyama Trust was made aware of the restitution claim on 7 December 2007. On 6 November 2008 it addressed a letter to the RLCC, reading as follows:

“I refer to the land claim lodged by Kusile Community which includes the above properties owned by the Ingonyama Trust.

		In order that an informed reaction to this claim can be given I am instructed by 
the Board to request the following information from you:
1.	A detailed map showing the extent of the claim in respect of land owned by the Trust i.e. does the claim cover the whole of the above properties or parts thereof only?
2.	Full details and history of the claim evidencing the Kusile Community’s rights to the land;
3.	An indication of the compensation payable to the Board for the loss of the land;
4.	Confirmation that all the communities through their Traditional Council structures, occupying the land surrounding the properties have been fully consulted and have agreed to the claim;”

The RLCC did not adress the issues raised by the Ingonyama Trust in the above letter. 

[42] After a proper mapping exercise was undertaken by the opposing land owners (something the RLCC should have done), it appeared that the claimant never intended to claim the Ingonyama Trust properties listed in the Government Gazette of 25 June 2004. The properties were wrongly included by the RLCC as part of the claimed land. The Ingonyama Trust had every right to participate in the proceedings before this Court to protect its ownership of its properties. Had the RLCC conducted a more thorough investigation of the claim, especially after receipt of the letter of 6 November 2008, the participation of the Ingonyama Trust in these proceedings would not have been necessary. In my view, the Ingonyama Trust is entitled to a cost order against the Commission.

[43] For the reasons set forth above, the following order is hereby made:

(a)	The Commission must pay the costs, taxed as between party and party, incurred by the 1st to the 10th defendants in these proceedings, including:
(i)	the costs of all hearings, pre-trial conferences, consultations  and inspections;
(ii)	the costs of collating, indexing and paginating the Court’s papers and making copies thereof where necessary;
(iii) 	the costs of obtaining, preparing and copying the maps and aerial photographs used in the proceedings, including the fees and charges of all professionals employed for purposes thereof;
(iv)	the fees and disbursements of the agricultural expert Mr Clive Henderson;
(v)	the fees and disbursements of both the instructing attorneys (Cox & Partners) and their Pietermaritzburg correspondents;
(vi)	the costs of two counsel, including their costs of attending pretrial conferences, consultations and inspections in preparation for the hearing; and
(vii)	the reasonable travelling and accommodation costs of counsel, the instructing attorney and the agricultural expert Mr Clive Henderson incurred in preparation for the hearing (including consultations and inspections) and in attending pretrial conferences and the hearing itself.

(b)	The Commission must pay the costs, taxed as between party and party, incurred by the 11th defendant in these proceedings.

 ____________________
A GILDENHUYS
Judge of the Land Claims Court

I agree

____________________
M WIECHERS
Assessor	

Appearances
For the 1st to 10th defendants:
  Mr ABT van der Merwe
  Cox & Partners

For the 11th defendant:
  Mr P K Coetzee
  Mason Incorporated

For the Regional Land Claims Commissioner, the Chief Land Claims Commissioner and the Minister of Land Affairs:
  Mr RBG Choudree SC
    instructed by
  The State Attorney – KwaZulu-Natal