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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case Number: LCC 121/2017

Heard on: 25-29 November 2019 & 17-21 February 2020

Delivered on: 16 March 2020

In the matter between:

LUHLWINI MCHUNU COMMUNITY                                                                       PLAINTIFF

and

LAWRENCE HANCOCK                                                                              FIRST DEFENDANT

PETER GOBLE                                                                                         SECOND DEFENDANT

BUCKSTONE CC                                                                                         THIRD DEFENDANT

MICHAEL ROBERTS                                                                              FOURTH DEFENDANT

HALLIWELL PROPERTY TRUST                                                            FIFTH DEFENDANT

ARTHER JAMES ARATHOON                                                                  SIXTH DEFENDANT

AMANDA JANE CAMPBELL                                                              SEVENTH DEFENDANT

JOHN NORMAN CAMPBELL                                                                EIGHTH DEFENDANT

WILLEM JAN SCHORTEMEIJER                                                           NINTH DEFENDANT

BETH SUSAN SHAW                                                                                  TENTH DEFENDANT

BRETT DAVID SHAW                                                                        ELEVENTH DEFENDANT

QONDISA CECIL NGWENYA                                                            TWELFTH DEFENDANT

GLR PROPS 005 CC                                                                       THIRTEENTH DEFENDANT

NEWINVEST 136 (PTY) LTD                                                      FOURTEENTH DEFENDANT

MICHAEL BENSON                                                                          FIFTEENTH DEFENDANT

VENGARITE (PTY) LTD                                                                  SIXTEENTH DEFENDANT

ELPIS TRUST                                                                              SEVENTEENTH DEFENDANT

MACKENZIE TRUST                                                                    EIGHTEENTH DEFENDANT

SAPPI MANUFACTURING (PTY) LTD                                      NINETEENTH DEFENDANT

MONDI (PTY) LTD                                                                           TWENTIETH DEFENDANT

CHURCH PROVINCE

OF SOUTHERN AFRICA                                                           TWENTY-FIRST DEFENDANT

REGIONAL LAND CLAIMS COMMISSIONER

FOR KWAZULU-NATAL                                                      TWENTY-SECOND DEFENDANT

THE MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM                                                               TWENTY-THIRD DEFENDANT

 

Concerning Farms:-

Remainder Portion 0, Portion 1, Remainder of Portion 2, Remainder of Portion 9, Portion 10, Remainder of Portion 15, Portion 16, Portion 17, portion 18, Remainder of Portion 31, Portion 34, Portion 35, Remainder of Portion 37, Portion 41, Portion 42, Portion 43, Portion 44, Portion 49, Remainder of Portion 55, Portion 75, of the Farm Halliwell No. 924.

Portion 1, Portion 2, Portion 3, Remainder of Portion 5, Remainder of Portion 10, Portion 13, Portion 24, Portion 26 of Farm Shafton No. 1014.

 

JUDGMENT

 

MEER AJP

Introduction

[1] This judgment considers the following separate issue of law, in terms of Land Claims Court Rule 57(1)(c):

“Is the Plaintiff a community as defined in the Restitution of Land Rights Act, No. 22 of 1994?” 

On 20 February 2020 at the close of the Plaintiff’s case in a trial based on a claim by a community for restitution of rights in land under the Restitution of Land Rights Act, No. 22 of 1994 (“the Act”), I ordered a separate hearing on the above issue of law.

[2] The Plaintiff lodged a claim for restitution of rights in land in terms of section 2(1)(d) of the Act. The claim was a community claim. Section 2(1)(d) and (e) of the Act state as follows:

“2. Entitlement to restitution

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

(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.”

[3] In order to succeed in its claim the Plaintiff was therefore required to prove first and foremost that it was a community as defined in the Act. That definition is considered in detail below. It goes without saying that in the event of the Plaintiff failing to prove this first threshold requirement, its claim would not be able to succeed. Equally in the event of the Plaintiff proving that it was a community, it could go on to establishing the other threshold requirements, namely, dispossession of a right/s in land after 19 June 1913 as a result of past racially discriminatory laws and practices without receiving just and equitable compensation.

[4] The trial commenced for a week in November 2019 and continued between 17 – 21 February 2020 in Durban.  At the close of the Plaintiff’s case, by which time the Plaintiff had led the evidence of 8 lay witnesses and 2 experts, the Plaintiff applied on 19 February 2020 to amend its claim from a community claim to one lodged by individuals in terms of sections 2(1)(a) and (c) of the Act. The application was refused on the basis that the evidence made clear that a community claim was intended to be lodged, the amendment was bad in law, prejudicial to the Defendants, vague, embarrassing and excipiable. See my judgment in the above case number delivered on 20 February 2020 and thereafter remitted for publication on 27 February 2020.

[5] Also on 20 February 2020, upon dismissing the amendment application, I ordered a separate hearing in terms of Rule 57(1)(c) on the aforementioned issue of law as to whether the Plaintiff is a community as defined in the Act. On 6 March 2020 I heard argument on this issue of law.

[6] At the hearing, the Plaintiff’s stance was firstly that it would be inapposite for this Court to determine whether the Plaintiff is a community as a separate issue of law, and secondly that the Plaintiff is a community as defined in the Act. The stance of all of the Defendants and the Participating Party was that the Plaintiff is not a community as defined in the Act.  This judgment considers the separate issue of law.

 

Legal context

[7] The word “community” is defined in section 1 of the Act as follows:

““community” means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group.”

[8] Context to the definition of community has been given in various judgments of this Court and the Constitutional Court. See In re Kranspoort Community 2000 (2) SA 124 (LCC); Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC); Salem Party Club and Others v Salem Community and Others 2018 (3) SA 1 (CC); Mazinzini Community and Others v Minister of Rural Development and Land Reform and Others [2018] ZALCC 5; Elambini Community v Minister of Rural Development and Land Reform and Others [2018] ZALCC 11. In Goedgelegen, the Constitutional Court established an acid test as to what constitutes a group of persons whose rights in land are derived from shared rules determining access to land held in common by a group.  Moseneke DJP at paragraph 45 stated that the acid test remains whether a community derived their possession and use of the land from common rules. At paragraph 46 he went on to say that this means “that labour tenancy does not sit well with commonly held occupancy rights”. Goedgelegen then, as was stated in Salem supra at paragraph 113, firmly established that no rights in land vested in labour tenants as a community.

[9] I pause at this juncture to mention that in November 2019 when the hearing in this matter commenced before me the Goedgelegen judgment and the other judgments referred to above were well known amongst the practitioners before this Court. The acid test pertaining to community held land as established in Goedgelegen was referred to at length in Elambini supra, which provided a synopsis of the case law of this Court and the Constitutional Court on what constituted a community.  Mr Chithi, the leader of the legal team for the Plaintiff, Mr De Wet for the First to Eighteenth and Twenty-First Defendants and Ms Naidoo for the Twenty Second Defendants all appeared in Elambini representing the same constituent clients.

 

Rule 57 (1) (c)

[10] Land claims Court Rule 57(1)(c) entitles a Court of its own accord to order a separate hearing on an issue of law which may conveniently be decided separately from any other issue. The Rule states:

“Prior Adjudication upon Issues of Law or Fact.

(1) Should the Court, upon application by any party or of its own accord, be of the opinion that there is an issue of law or fact in a case which may conveniently be decided…

(c) separately from some other issue,

the Court may order a separate hearing of that issue, and grant any extensions of time periods prescribed in the rules which may be desirable because of the separate hearing.” I ordered a separate hearing in terms of Rule 57(1)(c) after the Plaintiff had adduced all its evidence, as a finding on this issue could be decisive of the entire case and avoid a protracted trial continuing, predominantly at State expense, and also at the expense of the landowners. It must be noted that in this case, as in the majority of restitution trials, the State funds all litigants except the landowners. Thus in the interests of expeditiously, economically and efficiently managing this matter, I ordered the separate hearing on this discreet issue of law, indeed I felt obliged to.

[11] Mr Chithi took issue with my order in terms of Rule 57(1)(c), submitting that the question as to whether the claimant was a community should be determined with the other elements for restitution specified in section 2 of the Act, and that it would be inapposite and unjust to determine that issue in isolation. It was not at all clear to what end these submissions were made. It is trite that an order of court once granted stands until it is set aside by a court of competent jurisdiction. See Erasmus Superior Court Practice Service 45, 2014 at B1-306F.  It may be set aside on appeal, rescinded or varied by way of an appropriate application or mero motu by the Court as permitted in the Rules. Submissions such as made by Mr Chithi do not approximate any of these steps and simply do not pass muster. The submissions also fail to appreciate that having granted the order, I am functus officio and I have no authority to correct, alter or supplement it. See Firestone South Africa (Pty) Ltd v Genticuro A. G. 1977 (4) SA 298 A at 306 F to H.   The order granted in terms of Rule 57(1)(c) is clearly permitted and Mr Chithi conceded as much. His contention that the Plaintiff would be deprived of a full hearing by the determination of the separated issue, is without merit. The Plaintiff has adduced all its evidence and was thus not constitutionally deprived of a full hearing. It is ludicrous to suggest, as the Plaintiff does, that it would be unjust to consider if the Plaintiff has discharged its onus after it has delivered all its evidence.

 

Is the plaintiff a community as defined in the Act?

[12] The Plaintiff bore the onus of establishing at the close of its case, prima facie at the very least, that it was a community as defined in the Act.  An assessment of the Plaintiff’s relevant pleadings and evidence reveals the following about the discharge of this onus.

[13] In its statement of claim the Plaintiff stated at paragraph 28 that after 1913, notwithstanding the transfer of the land to white ownership the claimant community continued to occupy the land as occupants and /or tenants and/ or labour tenants. At paragraph 33 it went on to state:

“Nevertheless, the Claimant Community and/or their ancestors resided on the land claimed at the behest of white farmers who allowed the Claimant Community’s occupation of the land on the basis that the Claimant Community and their ancestors would provide labour to the white farmers in exchange for being allowed to reside thereon, in this regard the existing Claimant Community as well as their ancestors were tenants and/or labour tenants of the white farmers.”

[14] From the outset, therefore, as contended by Mr Mossop on behalf of the 19^th to 21^st Defendants, the Plaintiff’s claim was that of a number of people relying on individual contracts of labour tenancy and not that of a community as defined in the Act.

[15] Eight lay witnesses testified during 25 to 29 November 2019 at considerable length and detail for the Plaintiff. Each witness was pertinently asked during examination in chief by either Mr Chithi or Mr Cele, the two counsel for the Plaintiff, “What defined you as a community?” Their responses were as follows:

13.1 Mr Lucky Julius Mchunu testified that the fact that those who lived on the claimed land attended slaughterings, weddings and funerals together defined them as a community.

13.2 Mr Jabulani Simon Mchunu said they did everything together, and that it was the duty of the elderly persons to position those who wanted a site. He added however “the rule was that the land was being supervised, or watched by whites”.

13.3 Mr Z M Mchunu said matters were all resolved by one Induna and weddings and funerals were attended together.

13.4 Mr Thembise Mchunu said they jointly attended slaughterings, marriages and other events.

13.5 Fikelepihi Indaba, aged 73, who still resides on the claimed land said “in the event there would be a theft we would all go there and in the event there was anything we were called together…”.

13.6 Joseph Zondi said that a camp was given to the community by one De La Hey.

13.7 John Zondi said they were a community because of the way they lived. In the event that there were occasions, they, as a community, all came together and faced whatever happened as a community.

13.8 Quondeni Mguni did not testify at all about the Plaintiff being a community as defined in the Act. In fact, her evidence can be disregarded as she testified that her mother was removed from the claimed land in 2007 after the cut-off date for lodging claims in 1998. The Plaintiff’s legal team ought not to have wasted the Court’s time in calling her as a witness.  

[16] A common thread running through the evidence of all the lay witnesses was that their forebears had worked on farms owned by white farmers and that they were forced to leave when the numbers of cattle they could keep were reduced. They were given the option either to remain and work on the farms with fewer cattle, or to leave. They chose to leave.

[17] The Plaintiff’s expert witness historian, Dr V Khumalo confirmed that the claimed land was owned by white land owners from the early 1850’s and that possession, access and the use of the land was determined and granted by the respective land owners. The relationship between the families on the farms and the landowners was based on tenancy. He conceded, in what Mr Mossop described as a death knell to the Plaintiff’s claim, that the rights of landowners to use their property as they chose and to decide who may have access to it, and on what terms, conflicted with the claims of the workers, tenants and their families. Astonishingly, Dr Khumalo preferred to use his own definition of community as opposed to the definition employed by the Act, with which he took issue. Dr Khumalo perceived his role as an expert as being to advance the case of the Plaintiff and went so far as to suggest that he acted for them. I agree with Mr Mossop that he did not position himself as a true expert, intent on assisting the Court with objective evidence and that his evidence did not adhere to the criteria concerning expert witnesses articulated in Twine and Another v Naidoo and Another [2018] 1 All SA 297 at paragraphs 18 (k), (m) and (n). His evidence did nothing to advance the Plaintiffs’ claim.

[18] The Plaintiff’s second expert witness, land surveyor Mr Xolani Xaba, did not testify about the Plaintiff’s status as a community as defined in the Act. He testified about photographic and map evidence of the claimed land from 1944 to 1978.

[19] From the above it is clear from the Plaintiff’s statement of claim, the evidence of the lay witnesses and that of the Plaintiff’s experts that the Plaintiff has patently not established prima facie or on any basis that they or their ancestors were a group of persons whose rights in land were derived from shared rules determining access to land held in common by them. The evidence makes it clear that the rights in land were held by the land owners who determined who might have access to the land and on what terms, as stated by Dr Khumalo. Not a single witness testified that their forbears or ancestors acquired occupation or use of the land through common rules or shared rules determining access to such land. What little evidence was adduced about their constituting a community focused on their farming, social and cultural interactions as opposed to shared rules regulating access to land, a constant refrain being that they attended weddings, funerals and other functions together.

[20] The following extract from Elambini supra applies equally to the circumstances and evidence in this case:

“[142] There are parallels between Goedgelegen supra and this case. In Goedgelegen indigenous ownership of land in the 1800s was supplanted by white settler ownership of the land and the rights in land held by the indigenous owners in time degenerated to labour tenancy and farm worker rights.  These, the court found, were not rights in land derived from shared rules determining access to land held in common by a group, as specified in the definition of community.  Or, as was stated in Salem, these rights did not sit well with commonly held occupancy rights.

[143] The following extracts from Goedgelegen are in my view pertinent to the case before us. I take the liberty therefore of quoting somewhat extensively from the pertinent paragraphs.  At paragraphs 35 to 38, Moseneke DCJ stated as follows:

‘[35] At the heart of this enquiry is whether the occupational rights in the land were derived from shared rules determining access to land held in common.  At its core, the question is whether the labour tenants, through shared rules, held the land rights jointly.  The community and individual applicants contend that they did.  They support this contention by pointing to the history of their use and occupation of the land and to the attendant social arrangements.  Their forebears lived on the farm since the mid-1800s, before the first registered owner Mr Hattingh in 1889, and the claimants continue to do so despite successive registered ownership of the land... 

[37] However, what is clear on all the evidence is that the indigenous ownership of land in the original Boomplaats farm was lost before 1913.  Once they had lost ownership, they were compelled to work for the owner.  Their relationship with the owner was coercive.  The Land Claims Court found, correctly in my view, that “the white owners took possession of the land, and compelled the inhabitants to become labour tenants.

[38] Although they had lost indigenous ownership, they continued to exercise the right to occupy the land, to raise crops and to graze their livestock.  Successive registered owners did not terminate these rights.  By 1969, the collective indigenous title to land of the Popela Community had succumbed to settler dispossession and subsequent land laws on ownership and occupation of land by black people.  Members of the community had been successfully coerced into being farm labourers whose occupational interest in the land had become subject to the overriding sway of the registered owner.  They had to work the lands of the owner without wages in order to live there.’  (Footnotes omitted.) 

[144] In finding that the claimants in Goedgelegen were not a community as defined in the Act, Moseneke DCJ at paragraphs 45 to47, went on to state as follows:

‘[45] … The acid test remains whether the members of the Popela Community 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.  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 ten years, to toil on the farm if they were to live there.  The registered owner made it clear that he did not heed any rules of the community on land occupation.  They made the rules and the labour tenant had to obey…

[46] 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 individualised 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.  It must however be recognised that despite the fiction of the common law in regard to the consensual nature of labour tenancy, on all accounts, the labour tenancy relationships in apartheid South Africa were coercive and amounted to a thinly veiled artifice to garner free labour.

[47] I conclude that by 1969, no rights in land remained vested in the labour tenants as a community.  It has not been shown that, at the point of dispossession in 1969, the community of tenants on Boomplaats held the land in common under shared rules that they could enforce effectively in the face of an individualised system of labour tenancy…”  (Footnotes omitted.)’

[145] Similarly, as in Goedegelegen, whatever indigenous ownership of land rights might have been held in common by the forbearers of the Plaintiff as a community, had with the acquisition of the claimed land in the mid 1850’s, degenerated into the rights of labour tenancy and farm workers.”

[21] In this matter before me, the evidence of the Plaintiff itself, was that the land on which their ancestors worked as labour tenants was owned and controlled by others. This being so, the Plaintiff on its own version was not a group of persons whose rights in land derived from shared rules determining access to land held in common by them, and accordingly the Plaintiff is not a community as envisaged by the Act. The mere presence of their forbears on the land as labour tenants did not make them into a community, a misapprehension that Mr Chihti appeared to labour under, in referring to the  evidence which established their presence.  Nor do the circumstances which prevailed in Salem supra, to which he referred at length, assist the Plaintiffs. This matter is clearly distinguishable from Salem which involved a commonage used by indigenous persons and farmowners jointly. The acid test established in Goedgelegen has simply not been met and the Plaintiff’s claim stands to be dismissed.

 

Costs

[22] As reiterated by this Court in Elambini supra at paragraphs 155 to 158, referencing the Constitutional Court in Biowatch Trust v the Registrar, Genetics Resources and Others 2009 (6) SA 232 (CC) at paragraph 24, in constitutional litigation if a land owners’ defence against the State is good, the State should bear the costs. As was pointed out in Biowatch at paragraph 24, particularly cogent reasons must exist for a Court not to award costs against the State in favour of a private litigant who is substantially successful in proceedings brought against it.  There is absolutely no merit in the submission by Ms Naidoo for the Twenty Second Defendant that the Landowner Defendants have not been substantially successful, given that my finding leads to the dismissal of the Plaintiff’s claim and a release of their land. The Landowner Defendants are thus entitled to their costs as against the State represented in these proceedings by the Twenty Second Defendant.

[23] Mr de Wet sought costs of the Eighteenth to Twenty First Defendants on a scale as between attorney and client on the grounds that the Regional Land Claims Commissioner who previously degazetted the claim, regazetted the claim despite recognizing that, at best, members of the Plaintiff may have individual claims, but not a community claim. Similarly, Mr Mossop sought attorney and own client costs on the basis that the Nineteenth Defendant’s land had incorrectly been included in the notice published in the Government Gazette, as its land was never identified in the claim form. A reference to “Shafton Grange” was not to its land, being “Shafton, he submitted”, and no oral evidence was led of any person residing upon the Nineteenth and Twentieth Defendants’ land.   It is established law that a Regional Land Claims Commissioner in satisfying herself/himself that a claim has been lodged in the manner prescribed in section 11(1) of the Act, does not adjudicate claims. See Farjas (Pty) Ltd v Regional Land Claims Commissioner, KZN 1998 (2) SA 900 at 926I-927E. A Regional Land Claims Commissioner is thus certainly not empowered to adjudicate whether a claim is an individual or community claim. Nor in researching a claim is that official tasked with uncovering evidence that may only be produced later at trial, as has occurred in respect of who occupied the 19^th and 20^th Defendants’ land. I am thus disinclined to grant the punitive costs as sought. Nor do I believe that the discrepancy in the description of the Nineteenth Defendant’s land warrants such an order.

Were the proceedings vexatious, frivolous and an abuse of the Court and should Plaintiff’s legal teams’ fees be disallowed?

[24] At the hearing I mero motu asked Mr Chithi for submissions as to whether the fees of the Plaintiff’s legal team comprising an attorney and 2 advocates, wholly funded by the State, ought to be disallowed in the event of my finding against the Plaintiff as I have. I raised this, given their persistence and pursuit on behalf of the Plaintiff with a community claim when there was no shred of evidence to prove the legally established acid test post Goedgelegen that the Plaintiff derived its use and possession of the land from common rules.

[25] I raised this especially given that Mr Chithi, the leader of the Plaintiff’s legal team, had appeared for the Plaintiff in Elambini supra which, as aforementioned, involved a community claim for restitution, as in the instant matter. In Elambini, Mr Chiti and the Plaintiff’s legal team unsuccessfully argued, contrary to Goegelegen, that persons who were at best labour tenants or farm workers on privately owned land constituted a community as defined in the Act. In Elambini at paragraph 149 it was stated:

“It is disquieting that the Plaintiff, who was legally represented, and significantly at the state’s expense, throughout these proceedings, could have pursued and persisted with a community claim without adducing a shred of evidence to prove the legally established acid test post Goedgelegen, that they derived their possession and use of the land from common rules.”

Post-Elambini at the very least Mr Chiti was thus well-versed with the requirements for instituting and succeeding with a community claim. This notwithstanding he persisted with this claim as a community claim.

[26] I raised the fees of the Plaintiff’s legal team also, given that during a telephonic pre-trial conference  I specifically cautioned the Plaintiff’s legal team to consider whether in the light of the established case law, the claim as a community on the part of the Plaintiff could pass muster, and cautioned them that there could be cost implications if it did not.

[27] Mr Chithi submitted that an order disallowing costs would be a deterrent for legal practitioners to represent claimants. He himself would no longer do so.

[28] There is ample authority to characterise proceedings which are obviously unsustainable, as frivolous and/or vexatious and/or an abuse of the process of the court and to strike these or visit them with punitive costs, including costs de bonis propriis. In African Farms and Townships Ltd v Cape Town Municipality 1963 2 SA 555 (A) it was said at 565:

“Our law recognises that the Court has an inherent power to strike out claims which are vexatious; see Western Assurance Co v Caldwell's Trustee, 1918 AD 262 at p. 272. An action is vexatious and an abuse of the process of Court inter alia if it is obviously unsustainable. This must appear as a certainty, and not merely on a preponderance of probability.”

The proceedings instituted by the Plaintiff’s legal team were clearly unsustainable.

[29] The Vexatious Proceedings Act 3 of 1956 authorises a court to prohibit legal proceedings by any person who has persistently and without any reasonable ground instituted legal proceedings. For the purposes of this Act, the element of persistency is a necessary one. Heugh and Others v Gubb 1980 (1) SA 699 (C) at 702F.  The litigation in the present case fits the persistency criteria, given Mr Chithi’s persistence with a community claim notwithstanding his lack of success with the same nature of evidence in Elambini.  

[30] The following oft quoted passage of Gardiner JP in In re Alluvial Creek Ltd 1929 CPD 532 at 535, has resonance:

“There are people who enter into litigation with the most upright purposes and a most firm belief in the justice of their cause, and yet these proceedings may be regarded as vexatious when they put the other side to unnecessary trouble and expense with which the other side ought not to bear”.

[31] More recently in Mashishi v Mdladla and Others [2018] 7 BLLR 693 (LC), Van Niekerk J said the following, which too, resonates with the conduct of the Plaintiff’s legal team:

“[14] Judge Owen Rogers recently suggested that it is improper for counsel to act for a client in respect of claim or defence which is hopeless in law or on the facts . . . Although these assertions are directed primarily at counsel . . . the same principles apply to attorneys, and indeed all those who have the right of audience before a court. . . . By this he means that counsel must be able to formulate a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they are all accepted by the court, will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is 'quite satisfied' that one or more of them will fail. In particular, there is an ethical obligation on counsel, to ensure that only 'genuine and arguable' cases are ventilated, and that this be achieved without delay (at p 51).

[15] What is significant about Judge Rogers' argument is his acknowledgement that there is no express or even implied prohibition against pursuing the hopeless case to be found in the General Council of the Bar's Uniform Rules of Professional Conduct. The obligation not to accept or pursue a hopeless case is located outside of the formal rules of professional conduct, in sources that include the court's power to stay those proceedings that amount to an abuse of process, the court's right to mulct a practitioner in costs (something that necessarily implies impropriety), and the founding values of the Constitution; in particular, effective, efficient and expeditious adjudication (at pp 4950).” (own emphasis)

Van Niekerk J then commented about the recent spate of such “hopeless” cases before the Labour Court (para 16), held that the case at bar was a hopeless one (para 17) and then issued a warning to practitioners (para 18) that “those who appear in this court should be aware that in future the pursuit of the hopeless case will attract consequences.”

[32] This applies equally to cases in the Land Claims Court and in the instant case in particular, where the attorneys’ and counsels’ conduct in pursuing with a community claim was in my view vexatious, frivolous and an abuse of the process of the Court, and should  attract sanction. I do not believe that such a step might deter legal practitioners from appearing for claimants, as suggested by Mr Chiti. On the contrary, it will deter them from litigating vexatiously. 

[33] The Plaintiff’s legal team’s vexatious, frivolous and abusive litigation would be capable of attracting an award of costs de bonis propriis. I have however chosen to impose the lesser sanction of disallowing the legal fees of the Plaintiff’s legal team, given my finding concerning the state’s liability for costs in accordance with Biowatch supra. I nonetheless caution legal practitioners, especially those fortunate enough to be funded at State expense to act for litigants in this Court, that the time is fast approaching when they will be mulcted with the considerable costs of their opponents, de bonis propriis for litigating vexatiously.

[34] I order as follows:

1. The Plaintiff is not a community as defined in the Restitution of Land Rights Act, No. 22 of 1994.

2. The Plaintiff’s claim for restitution of rights in land is dismissed.

3. The Twenty Second Defendant, the Minister of Rural Development and Land Reform, shall bear the costs of the Eighteenth to Twenty First Defendants on a scale as between party and party. Such costs shall include the following:

3.1 The employment of counsel and attorneys in respect of all the trial dates, the quantum of which is to be determined by the taxing master;

3.2 The costs of the counsel and attorneys for attending all pre-trial conferences, the costs incurred in respect of consultations with representatives of the defendant landowners, and the costs in respect of consultations with the experts listed below and the witnesses who testified, including all travelling expenses and costs in respect of travelling time, the quantum of which is to be determined by the taxing master;

3.3 The travelling and reasonable related expenses of the defendant landowners who attended the trial of the matter;

3.4 The qualifying fees and expenses of the expert witnesses set out below, such to include the costs of the inspections in loco conducted by them, the consultations by them with the defendant landowners to obtain relevant information to compile their reports, the drafting of the reports and the consultation time with the defendants’ counsel and attorneys;

3.5 All costs of drafting maps and obtaining of all aerial photographs and/or making of copies thereof for the trial;

3.6 All costs incurred by the defendants’ attorneys in preparation, indexing and pagination of all bundles of documents, maps and photographs, transcript of court proceedings and making copies thereof.

4. The experts referred to above, are as follows:

4.1 Dr D Whelan;

4.2 Dr D Harrison (conveyancing certificates).

5. The fees of the Plaintiff’s legal team, Attorney Sinama and Advocates Chithi and Cele, for this entire matter are disallowed in full. They are ordered to repay to the relevant entity that funded them on behalf of the State, whatever fees that may have already been paid to them.

  

___________________

Meer Y S

Acting Judge President

Land Claims Court

Appearances

For the Plaintiff: Adv. Chithi

Instructed by: Sinama & Associates

For the 1^st to 18^th Defendants: Adv. de Wet SC      

Instructed by: McCarthy & Associates

For the 19^th and 20^th Defendants: Adv. Mossop SC           

Instructed by: Shepstone & Wiley

For the 21^st Defendant: Adv. de Wet SC      

Instructed by: Tatham Wilkes Inc.

For the 22^nd Defendant and Participating Party: Adv. Naidu       

Instructed by: State Attorney

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