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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG

CASE NO: LCC117/2015

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

DATE: 30/06/2017

Before: Poswa - Lerotholi, AJ

Heard on: 27 February 2017... .. .. .. ..

Delivered on June 2017

In the matter between

THE JOZANA COMMUNITY DEVELOPMENT                                                       Applicant

TRUST

And

MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM                                                                                 First Respondent

MINISTER OF ENVIRONMENTAL AFFAIRS                                       Second Respondent

MINISTER OF WATER AFFAIRS                                                              Third Respondent

CHIEF LAND CLAIMS COMMISSIONER                                               Fourth Respondent

REGIONAL LAND CLAIMS COMMISSIONER                                          Fifth Respondent

JOE GQABI DISTRICT  MUNICIPALITY                                                  Sixth Respondent

SENQU MUNICIPALITY                                                                       Seventh Respondent

TSHANI CONSULTING CC                                                                     Eighth Respondent

BLOEM WATER COMPANY                                                                     Ninth Respondent

MR MAFALTIRI- CHAIMAN OF                                                                Tenth Respondent

THE SO-CALLED MAGWIJI COMMITTEE.

Judgment

POSWA-LEROTHOLI AJ

Introduction

[1] This is a review application in  terms of the Promotion of Administrative Justice Act No. 3 of 2000 ("PAJA"). The Applicant is seeks to set aside a  decision taken by the Director-General Rural Development and Land Reform ("the Director-General") in a letter dated 28 January 2010, suing on behalf of the Jozana Community. None of the Respondents opposed the application.

[2] The Applicant inter alia claims restoration of  the land in  and around Jozana  Dam in the Senqu Municipality, Sterkspruit.  It also claims compensation for land expropriated in order to build the Jozana Dam, which is officially also referred to as the 'Holo Hlahatsi Dam'. The dam was built by the  former Transkei Homeland Government in 1979. Furthermore, the Applicant claims the royalties that accrued for the utilisation of water which is a natural resource as well as the proceeds from the eco-tourism project at Jozana Dam.

[3] The basis of the claim is that the Jozana Community was dispossessed of rights in land as a result of a past racial law and that just and equitable compensation was not received as provided for at section 2 of the Restitution of Land Rights Act No.22 of 1994 ("the Restitution Act").

[4] It is common cause that the Jozana community is laying claim to the same piece of land as the Magwiji Community. Whilst there is no certainty about the status of the Jozana community claim, it is common cause that the claim of the Magwiji community is at an advanced stage. However, the Applicant asserts that the Jozana community is the only community entitled to the restoration of that land, and not the competing claimant, the Magwiji community. The Applicant contends that the Magwiji community came to settle in the area much later than the Jozana community under the jurisdiction of Chief Henry Jozana.

[5] According to the Director-General under the First Respondent, the Magwiji community were found to be the legitimate claimants over the disputed land. As a result, the state holds the land in trust on behalf of a Community Property Association ("the CPA") created in terms of the Communal Property Association Act No. 28 of 1996 for the Magwiji community. Ownership of the property will be passed on to the Magwiji Communal Property Association upon completion of the process. The Senqu Municipality is responsible for the eco­ tourism development project.

Historical Background

[6] Historically, the Jozana community are of amaHlubi tribe and direct descendants of Langalibalele Ka Mthimkhulu, the king of amaHlubi.

[7] The claim relates to 4 villages which allegedly form the administrative area. The Jozana community claim the following areas: Jozana's Hoek, Jozana's Nek, Jozana's Reach, Sunduza and Bensonville. The Applicant claims that the late Chief Henry Jozana was unlawfully removed as chief and banished to the district of Qumbu.

The grounds of review

[8] The Applicant's cause of action arises out of a letter addressed by Mr T T Gwanya, the former Director-General of the Department of Rural Development and Land Reform, to the Applicants. The Director-General rejected the Applicant's claim.

[9] The Applicant argues that the letter by the Director-General was an irregular, unlawful, ultra vires, administrative decision. Furthermore, the Applicant contends there was non-compliance with the procedural requirements for restitution claims.

The letter dated 28 January 2010

[10] The letter by the Director-General reads as follows:

"Your fax dated 17 September 2009 refers.

In response to the issues raised, kindly be advised that the Magwiji community claimants had enjoyed beneficial occupational rights to the land over a Jong period of time. The fact that they had unregistered rights does  not  disqualify  them  from  benefitting  from the Restitution

Programme, as the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) recognises unregistered land rights.

The claimants are entitled to choose whichever option for redress of their lost rights. In this case, the Magwiji Community has opted for restoration of their land in the form of a title deed and to benefit from any development taking place on the claimed land. This means, they qualify for restitution grants and other additional funding as stated in section 42C of the Restitution of Land Right Act(sic)."

Currently, the land is state land and holding legal entity in the form of a Communal Property Association that has been formed in terms of the Communal Property Associations Act, 1996 (Act No. 28 of 1996), on behalf of the claimants. Upon the settlement of the claim, the land will be registered under the Magwiji Communal Property Association.

However, that is an Eco Tourism Development Project on the claimed land that is owned by the Senqu Local Municipality. The Office of the Regional Land Claims Commissioner for Eastern Cape has entered into negotiations with all the relevant stakeholders on the manner in which the claim has to be finalised to enable the claimants to benefit in any development ventures on the claimed land."

[11] According to the Applicant, the effect of the letter was to-

11.1         unilaterally deprive the indigenous majority of the inherent right to compensation for  the  loss  of  land,  for  the  purpose  of  creating the Transkei homeland in 1979;

11.2         deny the indigenous majority of the communities of 'divine and eternal privileges and inalienable rights' to communal ownership of the Jozana Dam;

11.3        discriminate against the Applicant and treat it as a pariah in the land of their birth;

11.4         violate the claimants' right to equality;

11.5         deny the claimants' right to due process and the right to be heard in relation to matters affecting the human and constitutional rights on issues related to communal land ownership, and their unquestionable rights to compensation for the loss of their homes for properties as aforesaid;

11.6         cause divisions between the claimants and the Tenth Respondents.

11.7         wrongfully and illegally announce that the government owns the Jozana Dam and the Senqu Municipality owns the eco-tourism project at the dam including all future projects relating to the development of  the Dam.

11.8         Withhold payment of the sum of R11 000 000.00 offered in full and final settlement by the government to all the claimants including the Magwiji Community. This claim is not supported by any evidence.

[12] The relief  sought  by  the  Applicant  is  not  framed  with  legal  precision.  The application consists of several components. Firstly, the review and the setting aside of the decision of the Director-General. Secondly, the Applicant seeks directives against various Respondents. In the papers before court, the  initiators of the review application are described interchangeably as 'claimants and Applicant's. Elsewhere, there is a reference to 'all claimants including the Magwiji Community'. The orders sought may be summarised as follows:

12.1         That the First Respondent pay a sum of R11 000 000.00 as promised to all claimants including the Magwiji Community as full and final settlement of the Jozana Land Claims of 1998;

12.2         That the First Respondent facilitate the implementation of the provisions of section 42C in favour of the Applicant.

12.3         That Senqu Municipality, the Seventh Respondent be ordered to-

12.3.1                 cease and desist from making unilateral advertisements regarding eco-tourism projects or development at the Jozana Dam without consulting the claimants pending finalisation of this application.

12.3.2                  permit the claimants to participate in the eco-tourism projects

12.3.3                  honour its obligations concerning service delivery.

12.4         That Tshani Consulting CC, the Eighth Respondent herein be ordered to-

12.4.1                refund R400 000.00 which was due to the eco-tourism projects.

12.4.2                take responsibility for the structural defects in the buildings it constructed as an independent contractor.

12.5         That the Minister of Water Affairs, the Third Respondent be ordered to pay royalties due to the Applicant from 1994.

The submissions

[13] Apropos review of the decision of the Director-General the cause of action is constitutional in nature, based on the right to just administrative action guaranteed in section 33 of the Constitution, read with PAJA.

[14] The other causes of action are, in my view, not supported by any credible allegations and are not able to be dealt with in this application. As an  illustration, the claim against the Tshani Consulting CC, the Eighth Respondent is essentially a damages claim for R400 000.00 in respect of alleged defective construction work by the Close Corporation. Similarly, the claim for R11 Million against the First Respondent is not supported by any credible evidence; as is the claim for royalties against the Minister of Water Affairs. For the aforementioned reasons, I will only address the review of administrative action.

[15] It was correctly argued on behalf of the Applicant that the Restitution Act, gives effect to section 25 of the Constitution. The Applicant seeks to enforce the right to just administrative action guaranteed in section 33 of the Constitution read with PAJA.

What Constitutes Administrative Action?

[16] The main issue that arises is whether the letter by the Director-General constitutes reviewable administrative decision.

[17] Section 33 of the Constitution grants everyone the right to administrative  action-

(1)          Everyone has a right to administrative action that is lawful, reasonable and procedurally fair.

(2)          Everyone whose rights   have  been  adversely affected by administrative action has the right to be given written reasons.

(3)          National legislation must be enacted to give effect to these rights, and must -

(a)          provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(b)          promote an efficient administration."

[18] PAJA gives effect to the constitutional imperative in section 33(3) above. PAJA defines administrative action in section 1 as:

"any decision taken, 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 any legislation; or

(b)         a natural or juristic person, other than an organ of state, when 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, but does not include - ... "

Judicial Review of Administrative Action

[19] Section 6  of PAJA makes provision for judicial review of   administrative action.

Section 6(1) permits any person to institute proceedings in a court or a tribunal for the judicial review of administrative action.

[20] Section 6(2) enumerates in detail certain circumstances in which this court is empowered to review administrative action. Relevant to this matter are the provisions of section 6(2)(a) on the principle of legality, section 6(2)(c) on procedural fairness, and section 6(2)(f) pertaining to an action not authorised  by the empowering provision. The said provisions overlap somewhat, in the sense that the charge is that the Director-General acted beyond his power and also failed to follow the procedure prescribed in the Restitution Act relating to the claims process.

[21] The inquiry focuses mainly on the conduct of the administrator. At issue in this matter is whether the administrator acted ultra vires. Such analysis gives rise to an inquiry into compliance with the principle of legality. The principle of legality requires that "power should have a source in law" and "is applicable   whenever public power is exercised. Public power can be validly exercised only if it is clearly sourced in law".[1]

[22] In Roux v Health Professions Council of SA and another [2012] 1 All SA 49 (SCA) at para 32 Mhlantla JA stated that-

"The principle of legality dictates that administrative authorities such as the HPCSA cannot act other than in accordance with their statutory powers. The decision of the pro forma complainant to include the misdiagnosis charge was not "sourced in law" and has  offended  against the principle of legality. The decision has to be reviewed and nullified for want of statutory power. It follows that the misdiagnosis charge has to be set aside."

[23] The Director-General's decision may be set aside on the ground that it was procedurally unfair as envisaged in Section 6(2)(c). Procedural fairness is a constitutional imperative in administrative law.. Section 33(1) of the Constitution confers on everyone the right to administrative action that is not only reasonable but also procedurally fair. A fair administrative procedure depends on the circumstances of each case.

[24] Furthermore, the decision of the Director-General is not authorised by the empowering provision per section 6(2)(f). The Director-General has no authority to adjudicate on the merits of the applicant's claim as such is the preserve of the Land Claims Court. In relation to settling a claim for   restitution, s 420(1) of the Restitution Act contemplates a role for the Minister. It provides:

"If the Minister is satisfied that a claimant is entitled to restitution of a right in land in terms of section 2, and that the claim for such restitution was lodged not later than 30 June 2019, he or she may enter into an agreement with the parties who are interested in the claim..."

providing for one or more of the following:

(a)      The award to the claimant of land, a portion of land or any other right in land: Provided that the claimant shall not be awarded land, a portion of land or a right in land dispossessed from another claimant or the latter's ascendant ...

[25] The Minister is empowered inter alia to-

25.1         award land to the claimant, provided it has not been already awarded  to another claimant who was dispossessed;

25.2         pay compensation to the claimant;

25.3         award land and compensate the claimant

on such terms and conditions, he or she deems fit.

[26] On receiving the Applicant's letter, the Director-General should have referred the Applicant's claim to the Commission. Section 13 of the Restitution Act stipulates that  if  during  the  process  of  investigation,  there  are  two or more competing claims, the Chief Land Claims Commissioner may direct the parties concerned to attempt to settle their dispute through a process of mediation and negotiation.[2]

[27] The matter should then have been referred to this Court for adjudication on the merits. A referral to the Land Claims Court is dealt with under s 14(1) of the Restitution Act occurs if-

27.1         upon completion of an investigation by the Commission in respect of specific claim the parties to any dispute arising from the claim agree in writing that it is not possible to settle the claim by mediation and negotiation;

27.2         the regional land claims commissioner certifies that it is not feasible to resolve any dispute arising from such claim by mediation and negotiation;

27.3         or the regional land claims commissioner is of the opinion that the claim is ready for hearing by the Court.

27.4         the regional land claims commissioner having jurisdiction shall certify accordingly and refer the matter to the Court."

[28] Instead the Director-General in the letter in effect a summarily dismissed the Jozana claim. As aforestated, the Director-General is not authorised by the enabling legislation to deal with the merits of the claim.

[29] PAJA defines administrative action as any decision taken by a functionary, exercising public power. Thus, administrative action is the pre-cursor to judicial review.[3] Therefore, a party seeking to invoke section 33 must prove that the functionary took administrative decision within the context of the enabling legislation, which in this case is the Restitution Act.

[30] The grounds of review have been codified in PAJA. In terms of PAJA, the grounds must be procedurally and substantively fair.[4] Section 6(2)(a)

The Powers of the Director-General in the Restitution Act

[31] The role of the Director-General in the process of the restitution of rights in land to persons or communities which were dispossessed is limited. The only role specific to the Director-General in land claims is set out in the Restitution Act.

[32] The powers conferred on the Director-General in the Restitution Act are more facilitative in nature. In the process of claims, the involvement of the Director­ General is to facilitate functions which require state intervention. The State effects restitution, and it is the State through the Minister which purchases land for this purpose.[5]

[33] The main role of the Director-General relates to the financial aspects  of the land claims process.

33.1        As the accounting officer he is required to receive annual estimates of expenditure from the Chief Land Claims Commissioner or his designate;[6]

33.2        The Regional Land Claims Commissioner or the Director-General may, of his or her own accord, file a report in any application in terms of this Chapter and shall do so if so directed by the Court.[7]

[34] The other powers which the Director-General may exercise are  those delegated by the Minister in terms of section 7{2A} the Restitution Act. These include those conferred on the Minister in terms of section 42C, 42D, and 42E with regard to the financial aid to claimants, concluding agreements with claimants as well as the acquisition of land respectively.

[35] In Quinella Trading (Pty) Ltd and others v Minister of Rural Development and Land Reform and others, Meer, J described these powers -

"This is the delegation of a public statutory power. It is the type of delegation identified by Professor Wiechers as decentralisation. See Wiechers M Administrative Law Butterworths 1985 at page 54. According  to  Wiechers,  decentralisation  occurs  where  powers   and functions  are  transferred  to  an  independent  body  or  organ,   which carries out these powers and functions entirely in its own name, the delegate becoming fully responsible for the exercise of the power.'[8]

[36] It is evident from the letter that there are two competing claims as envisaged in section 13 of the Restitution Act; that of the Magwiji community and that of the Jozana community. However, having acknowledged this, the Director-General, in the impugned letter effectively dismissed the competing claim of the Applicants out of hand. The decision was conveyed by the Director-General in the letter of 28 January 2010constituted administrative action, (See Gamevest (Pty) Ltd v Regional Lands Claims Commissioner, Northern Province and Mpumalanga and others 2003 (1) SA 373 (SCA) at paragraph 7, capable of being reviewed.

[37] Nugent, JA in Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works (Grey's Marine Hout Bay ):[9] stated that:

'[A]t the core of the definition of administrative action is the idea of action (a decision) of an administrative nature taken by a public body or functionary".

[38] In Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ) at para [5] (Bhugwan), the High Court cited Gamevest[10], and quoted from Olivier JA's judgment in the latter case in which he said:

“.. .the words administrative action ... emphasise the very first question to  be  asked  and  answered  in  any  review  proceeding:  what   is   the administrative act which is sought to be reviewed and set aside? Absent such an act, the application for a review is still-born.”

Olivier JA then went on to say:

“What is an administrative act for the purpose of justiciability? There is no neat, ready-made definition in our case Jaw, but in Hira and Another v Booysen and Another 1992 (4) SA 69 (A) Corbett CJ at 93A-B required, for common-law review, the non-performance or wrong performance of a statutory duty or power; where the duty/power is essentially a decision-making one and the person or body concerned has taken a decision, a review is available.”

[39] In Bhugwan, at issue was the interpretation of the justiciability of a "decision", in terms of PAJA[11] consistently with the justiciability of an "administrative act" in terms of section 33 of the Constitution. The court in Bhugwan accepted the cautionary words expressed by Lord Steyn  in R v Secretary  of  State for  the Home Department, Ex parte Daly[12]  that, in evaluating  an allegedly   decision­ making process, "context is everything".

[40] In Bhugwan, it was held that in a case for the review of an administrative decision that the impugned letter in which the "decision" was articulated   "doesnot p urport to close the door after a final and determinative decision had been made".[13]

[41] A decision has been taken by the Director-General in the letter. It states that  the Magwiji Community qualifies in terms of section 42C of the Restitution Act which permits the Minister to grant a subsidy flowing from a court order or an agreement in terms of section 42D or 14(3) of the Restitution Act.  Section 42D(3) permits the Minister to delegate any power conferred in terms of section 42C to the Director-General. Consequently, the letter constitutes administrative action covered by PAJA. It is a decision taken by a natural person exercising public power or performing a public function in terms of the empowering legislation.

[42] The Commission on Restitution of Land Rights ("the Commission") established by section 4 the Commission has the primary role of receiving,  investigating and processing claims as envisaged in section 6 of the Restitution Act. The Commission is an organ of State. Any agreement negotiated by the offices of the Commission or a Regional Land Claims Commissioner in settlement of a land claim is therefore not binding unless done so under delegated powers, or  is entered into by the Minister under section 42D of the Act.

[43] Section 7{2A) of the Restitution Act allows for the delegation of powers and performance of functions, from the Minister to the Director-General. The Director-General may, delegate his powers to the Regional Land Claims Commissioner, who may, in turn delegate his or her powers to the Land  ClaimsCommi ssioner.     The  principle  of  "delegatus  non  potest  delegare"  is  to be maintained throughout.

[44] This application for review presupposes that administrative action has been taken. It is evident from the above that the power to process land claims lies  with the Commission, not the Director-General.

[45] It is evident from the correspondence that the Jozana Community had been heard on at least two occasions; on 13 April 2005 and in East London and a follow-up meeting in on 29 April 2005 in Sterkspruit. The letters however  are not very clear on this and the department ignored requests for reasons by the Jozana Community, even the court papers filed did not spur the department  into action.

[46] There is also evidence of various forms of direct interaction between the Commission and the Jozana Community.

[47] On 26 January 2010, the Regional Land Claims Commissioner("RLCC") invited the Jozana Community to a meeting at the regional offices in East London on  28 January 2010. The meeting proceeded as planned, in the presence of the Chief Land Claims Commissioner. The Jozana Community registered various complaints about the manner in which the claim had been handled. The Commission advised that their complaints would be escalated to the National Office and a further meeting will be held nearer the claimants.

[48] Whist awaiting further investigations as promised, by the Chief Land Claims Commissioner, the  Applicant  received  a  letter  from  the  erstwhile   Director- General, Mr Gwanya dated 28 January 2010. Although the Applicant expressed surprise at this turn of events, it is clear that they had also written a fax (dated 17 September 2009) to the Director-General to which the latter was clearly responding.

The Land Claim Procedure

[49] In Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 (1) SA 373 (SCA), Olivier JA stated that the claim procedure for the restitution  of land rights is divided into four phases, viz:

49.1         the lodgement of the claim;[14]

49.2         the "acceptance" of the claim by publication thereof in the Government Gazette;[15]

49.3         the investigation of the claim;[16] and

49.4         the referral of the claim.[17]

[50] In terms of section 11(1) of the Restitution Act the Regional Land Claims Commissioner must cause the notice to be published in the Government Gazette if he is satisfied, inter alia, that the claim is not precluded by the provision of section 2. He engages in administrative action when taking that decision- see Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern Province and Mpumalanga and others, 2003 (1) SA 373 (SCA) at 380A-C.

[51] Section 2(1) of the Restitution Act lists the different categories of persons entitled to restitution, this includes persons directly affected by the dispossession, including their section 2 direct descendants: deceased estates; as well as communities or sections of communities.

[52] Section 11(1) prescribes the procedure to be followed once a claim is    lodged.

There are certain pre-requisites, which must be met before a claim is processed. The Regional Land Claims Commissioner having jurisdiction must be satisfied that-

"(a)       the claim has been lodged in the prescribed manner;

(b)        the claim is not precluded by the provisions of section 2; and

(c)         the claim is not frivolous or vexatious."

[53] The Regional Land Claims Commissioner is granted the discretion to deal with claims, which do not meet the above criteria. The failure to file a claim in the prescribed manner may be condoned,[18] whilst a frivolous or vexatious claim  may be dismissed.[19] Section 11(4) is peremptory, if the Regional Land Claims Commissioner decides that the criteria set out above have not been met, he or she shall advise the claimant accordingly, and the reasons for such decision.

[54] This court has explained the nature and extent of the powers exercised by the Commission in Farjas (Pty) Ltd v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 at p 923 at paragraph 40, Dodson J stated that the nature of the inquiry constitutes a preliminary stage where the Commissioner must be satisfied that the claim fulfils the pre-requisites for the Commission to undertake a full-scale investigation in terms of section 12 of the Act. The court went on to explain that the word 'satisfied' within the context of the provision merely means that claimant must show that they have an arguable case, even if it is a weak case.[20]

[55] There is no evidence before court as to whether the Applicant adhered to any of the steps outlined above. What we do know, is that the Minister stated that the Jozana Community did not lodge a claim, whilst the Jozana Community contends that it lodged a claim but, the claim file was changed from 'Jozana Claim File' to 'Magwiji Claim File' through an act of ill-will by some unnamed officials at the Commission.

[56] The general scheme of the Act grants the Commissioner a facilitative and investigative role while the adjudicative powers are the preserve of the courts.[21] In the light of the above, highly unlikely that the Minister could have invoked any of the powers of the Commission in the letter.

[57] Section 36 of the Restitution Act confers on this court the power to review decisions of the Minister, Commission or any other functionary exercising its powers in terms of the Restitution Act. Any party aggrieved by the decisions of such functionary may review the said decisions. When exercising its powers of review, the Land Claims Court shall exercise the same powers of review as the High Court.

[58] For the reasons stated above, section 36 of the Restitution Act would also not apply as there was no decision taken by any functionary.

[59] The Director-General has neither the authority to receive claims, nor does he have the authority to adjudicate or take decisions on the merits of a claim, such is the preserve of this court.[22]  The impugned letter purports to do so.

[60] The following order is made: -

1.    The decision taken by the Director-General in the letter of 28 January 2010 is hereby reviewed and set aside.

2.    The Fourth Respondent is directed to take all necessary steps to refer the matter to the Land Claims Court for adjudication on the merits.

3.   There is no order as to costs.

_______________________

S POSWA-LEROTHOLI

 

Acting Judge of the Land Claims Court

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