---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT RANDBURG)

Case number: 75/2008

DATE: 28 JULY 2015

In the matter between:

THE DAANTJIE COMMUNITY...................................................................................First Applicant

SICELO AUDICIOUS NKOSI...................................................................................Second Applicant

MPAKENI MLENGENI TRIBAL AUTHORITY.......................................................Third Applicant

And

CROCODILE VALLEY CITRUS COMPANY (PTY) LTD.....................................First Respondent

THE REGIONAL LAND COMMISSIONER,

MPUMALANGA......................................................................................................Second Respondent

Heard on: 08 June 2015

Judgment delivered on: 28 July 2015

JUDGMENT

[1] The first to third applicants apply for leave to appeal a judgment and order of this Court, save for paragraphs one and four thereof, granted on 26 February 2015. The judgment dismissed an application for rescission of a judgment granted against them by default on 20 November 2008.

[2] The grounds of appeal at paragraphs one to ten of the notice of appeal (the ‘notice’) pertain to issues in respect of which reasoned findings are set out in the judgment. It is accordingly not necessary to traverse these here. Two new aspects were introduced and I consider these below.

[3] The principle to be adopted in applications for leave to appeal has been codified in section 17(1) of the Superior Courts Act 10 of 2013 (‘the new Act’) and is, inter alia, ‘whether the appeal would have a reasonable prospect of success’. Bertelsmann J, in The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others LCC14R/2014, (an unreported judgment of this Court delivered on 3 November 2014) in considering whether leave to appeal ought to be granted in that matter, held that the threshold for granting leave to appeal had been raised in the new Act. Bertelsmann J found that the use of the word ‘would’ in the new Act indicated a measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against. Consequently, the bar set in the previous test, which required ‘a reasonable prospect that another Court might come to a different conclusion’, has been raised by the new Act and this then, is the test to be applied in this matter.

[4] In paragraph eleven of the notice, the applicants contend that this Court

“… erred in not finding that there is a complete absence of evidence of an actual presence of permanent white settlement in the area claimed, prior to 1920.”

This, in my view, is of no relevance given that there is no evidence of the claimant community being in occupation of the land in question and being dispossessed thereof.

[5] The applicants, in paragraph twelve, further contend that the default judgment order of 20 November 2008 was extra ordinary and an unprecedented exercise of the Court’s power, and therefore not justified in the context of community land claims where there are clear historic links between the community and the land. This argument is also not sustainable as the two experts’ reports do not support the argued for ‘clear historic link’ between the claimant community and the land at the relevant time. I note, also, that the fact that the 20 November 2008 order was res nova or ‘an unprecedented exercise of the Court’s power’ is not per se a justification for the granting of leave to appeal. Janit v Van den Heever & Another NNO (No 2) 2001(1) SA 1064G/H – 1065B.

[6] The applicants further relied heavily, in argument, on (a) the merits of the underlying land claim and (b) the finality of our judgment in the rescission proceedings which, according to Mr Jansen, for the applicants, means that the Daantjie Community or any part thereof can never again claim some three thousand hectares of land under the Restitution of Land Rights Act, 22 of 1994(‘the Restitution Act’).

[7] The point on the merits of the underlying claim is dealt with in paragraph 48 of our judgment and does not bear repeating here. It is simply not so that our judgment denies the claimant community or any part thereof from ever again claiming the land under the Restitution Act. It is open to them to petition the Supreme Court of Appeal should they so wish.

[8] I have carefully considered the submissions of both counsel. I am however of the view that on the facts and evidence another Court would not come to a finding different from ours, especially regarding the absence of a bona fide defence. This being so, there is no reasonable prospect of success on appeal and leave to appeal is accordingly refused. This finding does not necessarily bar the claimant community from claiming restitution as there remains the option of a petition.

[9] Mr Du Plessis, on behalf of the first respondent, submitted that the applicants should be mulcted with the costs of this application. No reasons were furnished as to why we should deviate from the normal principle pertaining to costs in this Court. I can find no special circumstances in this matter that warrants deviation from this Court’s view on costs.

[10] In the result the following order is made:

1. The application for leave to appeal is dismissed.

2. No order as to costs.

MP Canca

Acting Judge: Land Claims Court

I agree.

M Mpshe

Acting Judge: Land Claims Court

Appearances:

For the applicants: Messrs CR Jansen SC and M Majozi

Instructed by: Singwane & Partners, Nelspruit.

For the First Respondent: Messrs Roelof Du Plessis SC and

JS Stone

Instructed by:Du Toit Smuts & Mathews Phosa Inc

Nelspruit.

---