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IN THE LAND CLAIMS COURT OF South Africa

HELD AT RANDBURG

CASE NO: 3/1998

DATE: 08 APRIL 2015

THE DEPARTMENT OF LAND AFFAIRS..............................................................Applicant

In the application of:

RALPH DANIEL JACOBS............................................................................................Plaintiff

In the matter between:

And

THE DEPARTMENT OF LAND AFFAIRS AND OTHERS.................................Defendants

Before: The Honourable Mpshe AJ

Heard on: 02 March 2015

Delivered on: 08 April 2015

JUDGEMENT

INTRODUCTION

1. This is an interlocutory application to a pending restitution of rights in land claim. The first defendant in the main matter, being the Department of Land Affairs and Rural Development seeks to be granted

leave to withdraw a validity of the claim admission made in the restitution matter.

2. Further to be granted leave to defend the claim and to pay costs of this application. The application is opposed by the plaintiff.

BACKGROUND

3. One Abraham September who was married in community of property to Elizabeth September was granted property known as UAP 28A on a perpetual quitrent on 22 November 1892. Abraham September died on 5 July 1898 and was survived by seven children. Their mother Elizabeth September died on 1 April 1918.

4. Plaintiffs father, David Daniel Jacobs timeously lodged a land claim in respect of Erf 38 Upington and the farm UAP 28A.

5. After processing the claim by officers of the Chief Land Claims Commissioner, the said claim was then referred to this Court in terms of Land Rights Act ("the Restitution Act").

6. Only the farm UAP 28A Gordenia, hereinafter referred to as "the property", is relevant to this application.

7. First defendant disputed the validity of the claim.^[1] On the 23 December 2013 first defendant, acting through the office of the State Attorney Bloemfontein communicated the following to the plaintiff: "We have been instructed by our client that the defendant no longer disputes the validity of the claim "

This admission was made at a pre-trial conference.

8. It is this admission that the defendant now wants to withdraw.

REASONS FOR THE WITHDRAWAL OF THE APPLICATION

9. The Defendant's case is that the 'Validity admission" was made in error because of the misapprehension of the consequences and implications of the judgement in the Erf 38 case.

10. Further that the claim raises certain issues that can be used as a defence against the claim. These are inter-alia:

(i) Whether the dispossession was as a result of racially discriminatory practices?

(ii) Whether the dispossession occurred before or after 19 June 1913? and

(iii) Whether the dispossessed received just and equitable compensation?

11. Defendant contends that, given the prima-facie view on their part, that the claim is not valid, it would not be in a public interest to pay a large compensation to the tune of R117 million if the claim is considered invalid.^[2]

WHY WAS THE ADMISSION MADE?

12. The deponent Cindy Benyane states that the UAP claim together with other claims were a subject of intense discussion regarding its validity. She was then advised to admit the validity of the claim, which advice she took and admitted the validity on the 03 December 2013.

13. Paragraph 8 of the application at page 10 reads as follows:

"During the course of these discussions in the office of the Regional Land Claims Commissioner, I was advised by the Commission's legal staff that the validity of the UAP claim should be admitted. The legal staff in the office of the Regional Land Claims Commissioner stated that the claimants were the same as those in the Erf 38 case, the circumstances of the dispossession were the same, and that in the light of the judgement given by this Court in the Erf 38 claim, the validity of the UAP claim should be admitted."

"I assumed that the Commission's legal staff had also discussed the matter with our attorney and counsel. Relying on the advice of our legal staff I decided that the validity of the UAP claim should be admitted. On 3 December 2013,1 instructed the State Attorney accordingly."

14. She further states that the error was made in good faith. The contents of both affidavits by Ruwayde Baulackey and Cindy Benyane are not materially disputed.

ISSUES TO BE DETERMINED

15. Is the 'Validity admission" an administrative action?

If the answer is in the affirmative, why were provisions of Promotion of Administrative Justice Act 3 of 2000 (PAJA) not followed?

16. If the admission is not an administrative action, has the defendant satisfied all requirements for the withdrawal of an admission?

17. The defence of the plaintiff is that the decision to admit the validity of the claim amounted to administrative action. This submission is premised on the fact that the said admission was made by state officials.^[3] Submissions conclude that the said state officials by virtue of having taken a decision to admit the validity of the claim is now rendered functus officio.

I do not intend dealing with the principle of functus officio but it suffices to say the submission is without merit as it will be clearer later in this judgement.

18. An administrative action is defined in section 1 (i) of PAJA as:

"Any decision token or any failure to take a decision, by-

(a) an organ of state, when -

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power, or performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect."

19. JR de Ville^A states that in determining an administrative action, the focus is not on the body performing the action, but on the nature of the action being performed.

20. The SCA defines an administrative action as follows^[4]:

"[24] A s I so id in Kuzwayo v Representative of the Executor in the Estate of the late Masilela, not every act of an official amounts to administrative action that is reviewable under PAJA or otherwise. I found there that the act of signing a declaration by a Director-General of the Department of Housing to the effect that a site permit be converted into the right of ownership, and the signing of the deed of transfer giving effect to that declaration, were simply clerical acts.

[25] Administrative action entails a decision, or a failure to make a decision, by a functionary, and which has a direct legal effect on an individual. A decision must entail some form of choice or evaluation. Thus while both the Master and the Registrar of Deeds may perform administrative acts in the course of their statutory duties, where they have no decision­making function but perform acts that are purely clerical and which they are required to do in terms of the statute that so empowers them, they are not performing administrative acts within the definition of the PAJA or even under the common law."

21. Mr Krige, for the plaintiff argues that the mere fact that a decision to admit the validity of the claim was taken by state officials makes that decision an administrative action. I disagree. It may happen that an official does make a decision without obtaining the authority to do so from any statute or legislation, without adversely affecting the rights of any individual with direct external legal effect. Such an act cannot be said to be administrative act.

22. If I attend to Home Affairs offices to apply for an identity document I will be attended to by a state official who will then mechanically check my application as to compliance. The official then accepts my application resulting in issuing of an identity document. Is the official's act administrative? The answer will be in the negative.

23. The decision must entail some form of choice or evaluation. The Home Affairs official had no evaluation to make. In casu, the defendant through the legal representative conveyed the admission to the plaintiff. It is of importance that the communication was at a pre-trial conference in a pending litigation.

24. Mr. Krige viva voce argued that the said admission adversely affects the rights of the claimants being the right to restitution of rights in land. This argument is void of substance. The claimants retain the right even without the admission.

25. On the strength of the authorities cited herein I find that the validity admission is not an administrative action and the provisions of PAJA do not apply.

26. I now consider whether the withdrawal application satisfies the requirements.

27. Mr. Krige, for the plaintiff correctly submits that the error may be changed only upon providing just reasons.^[5] However, he further argued that the reasons and / or explanations provided are insufficient and does not find same to be reasonable. This then admits the presence of an error.

28. The test laid down for the withdrawal of an admission is that a reasonable explanation has to be provided, this will necessarily entail the reasons why an admission was made and why the need to withdraw. The Court must ensure absence of prejudice that may be occasioned by the withdrawal.^[6]

29. The explanation given by respondent is captured in the affidavit of Ruwayda Baulackey^[7] in the following manner:

"I concluded that the admission of the validity of the UAP claim had been made in error; because of a misapprehension of the consequences and implications of the judgment in the Erf 38 case."

30. The deponent Cindy Benyane, the Chief Director in the office of the Regional Land Claims Commissioner explains that discussions took place around the issue of validity of the claim. The discussions are said to have been "extensive".^[8] Benyane continues and states:

"The legal staff in the office of the Regional Land Claims Commissioner stated that the claimants were the same as those in the Erf 38 case. The

circumstances of the dispossession were the same, and that in the light of the judgement given by this Court in the Erf 38 claim, the validity of the UAP claim should be admitted".^[9]

"..... relying on the advice of our legal staff I decided that the validity of the UAP claim should be admitted."^[10]

"On reflection, I appreciate and acknowledge that I did not sufficiently consider the judgement of this Court in the Erf 38 claim before making this decision. I now recognise that while the claimants are the same and the social context in and around Gordonia is the same; the particular factual circumstances of each of the dispossessions is in fact quite different."^[11]

31. This evidence is not contradicted by the plaintiff save that it is insufficient and does not provide a reasonable explanation.

32. Given the fact that I have no other evidence before me save that of Benyane and Baulackey regarding the reasonableness of the explanation, I come to the conclusion that the explanation is probably fair.

33. Mr. Krige for the plaintiff submitted that the prejudice to be suffered by the plaintiff is that their claimants' right to restitution is taken away or affected. This cannot be correct. The withdrawal or not of the admission does not and will not affect the claimants' right to restitution. At worst, the claimants' advantage of not having to prove validity of the claim will

be taken away, but this is not a right but a duty to prove on the part of a litigant.

34. There is no probability of prejudice to befall the plaintiff.

35. I consequently order as follows:

(a) Application to withdraw the validity admission made on the 23 December 2013 is granted.

(b) The defendant is given leave to defend the claim.

(c) The defendant is ordered to pay the costs of this application.

J.M MPSHE (AJ)

Land Claims Court of South Africa

For plaintiff : Advocate J. Krige

Instructed by : Chennels Albertyn Attorneys

Stellenbosch 021 883 8910

For defendants : Advocate G. Bundlender

Instructed by : State Attorney

Kimberley

053 807 7806 / 053 832 7687

⁴ Judicial Review of Administrative Action in South Africa at page 44

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