---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NUMBER:  LCC 41/2011

In the matter between:

ELTON NZIMANDE AND 129 OTHERS                                                                Applicants

and

THE DIRECTOR GENERAL OF THE DEPARTMENT                               First Respondent

OF RURAL DEVELOPMENT AND LAND REFORM

MS NELISIWE SITHOLE

THE HEAD OF THE DEPARTMENT, MPUMALANGA

PROVINCIAL DEPARTMENT OF AGRICULTURE,

RURAL DEVELOPMENT AND LAND ADMINISTRATION                   Second Respondent

THE ACTING CHIEF LAND CLAIMS COMMISSIONER                          Third Respondent

THE ACTING REGIONAL LAND CLAIMS

COMMISSIONER, PROVINCE OF MPUMALANGA                              Fourth Respondent

THE MATSAMO COMMUNAL PROPERTY

ASSOCIATION CPA/07/1070/1                                                                  Fifth Respondent

JUDGMENT

MIA J

INTRODUCTION

[1]    This is an application to review the decision of the first, third, and fourth respondents (the respondents) to accept and to settle the land claim lodged by the fifth respondent and the Masuku community. There were two applications before this court. The applicant applied to file its supplementary affidavit. The application to file a supplementary affidavit was not opposed by the first to fourth respondents. The fifth respondent filed an answering affidavit in opposition.

BACKGROUND

[2]    At the time of the application, the Matsamo Communal Property Association were awaiting transfer of land collectively known as “Inala Farm” to the beneficiaries. It is for this reason that the applicants seek to review the decision of the fourth respondent to accept the Matsamo land claim, which was published in the Government Gazette dated 20 June 2008. The applicant seeks to review the decision of the third and fourth respondents to purchase Inala Farm in terms of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) and transfer it to the National Government pending finalization of the Tenbosch Claims Committee matter “which land shall be transferred to the qualifying group forming the Tenbosch Land Claims Committee”. The applicants contend that Inala Farm land was initially acquired under the Settlement Land Acquisition Grant (“SLAG”) programme[1] on their behalf in 1996. They sought an order to be declared the sole beneficiaries of Inala Farm under a suitable entity to be established with the assistance of the first respondent.

[3]    The basis for the relief they sought was that they relied on the then Minister of Land Affairs, Ms Thoko Didiza, having identified the beneficiaries of the SLAG programme, which sought to provide financial assistance to beneficiaries of the Land Redistribution Programme in 1997 to provide the impoverished farm workers, labour tenants and women and emergent farmers with residential and agricultural land in order to improve their livelihoods. The applicants were part of 418 households who were successful in obtaining the Settlement Land Acquisition Grants in the amount of R 15 000,00 per household, which were intended for financing the acquisition of land and specifically the farm known as Inala farm. The applicants or their predecessors were employed by or were labour tenants of the previous owners. Most of the applicants lived on the farms or were born on the farms. When the previous owners of the land, the Schoeman family, encountered financial difficulties, the applicants used their grant amounts to acquire the land. The manner in which the acquisition proceeded was that a trust was established which held 49% of the shares in Inala Farm. The applicants were beneficiaries in the trust. A certain Mr de Wet (unrelated to the Schoeman family) held the remaining 51% shares. Soon thereafter, Inala Farm ran into financial difficulties resulting in their creditors launching an application for its liquidation. A final order for liquidation was granted in the North Gauteng High Court. None of the beneficiaries opposed the order.  

ISSUES FOR DETERMINATION

[4]    Apart from the interlocutory application for leave to admit the applicants’ supplementary affidavit, there are three substantive issues which crystalized for determination during the hearing. These are:

4.1.  Whether this review application was brought timeously?

4.2   Whether Inala Farm was acquired by the applicants?

4.3   Whether the decision to award Inala Farm to the applicants was replaced with a decision to award the same farm to the Matsamo CPA, and if so, whether such replacement was competent?

COUNSEL’S SUBMISSIONS

[5]    Mr. Mtsweni, counsel for the applicants, submitted that the Court should admit the supplementary affidavit because the information in the affidavit was relevant and important for the determination of the review matter before the Court. The new information was introduced because he was not involved in the initial drafting of the papers and the information was not previously placed before the Court. The current legal team only discovered the omission of a further ground on which the applicant’s case was based when they were preparing for the hearing of the matter.  They needed to consult with the clients who are all elderly in order to amend the papers. Due to the COVID pandemic a consultation was only possible on 1 March 2021 during which the ground of review appearing in supplementary affidavit surfaced. It became apparent that the ground of relief sought to be introduced at this late stage had been overlooked by the previous legal team, specifically counsel.

[6]    Counsel for the applicants submitted moreover that there was good cause[2] for the application to be granted and the Court should consider the prejudice the applicants would suffer if they were not granted leave to file their supplementary affidavit. The Court would be saddled with dealing with an important matter of land and its ownership without the benefit of having all the relevant information before it. Additionally, he contended, if leave were granted, there would be no prejudice to the respondents, who had been afforded an opportunity to file an answering affidavit by Potterill J. The fifth respondent, appreciating the underlying reason for this late application, filed its answering affidavit without any misgivings. He submitted that viewing the matter through the prism of the principle audi alteram partem ensured that the applicants had access to court, especially since the decision had far-reaching implications for the applicants’ in terms of the land issue. He referred to the decision of Twala J in Ndlebe v Budget Insurance Ltd [2019] ZAGPJHC 320 where the Court said –

“The audi alteram partem rule is a fundamental principle of our law which is enshrined under the bill of rights in the Constitution. Courts are enjoined not to shut the door in the face of a litigant for flimsy reason or minor technical defenses raised by the other party.”.[3]

          He continued moreover that flowing from the above, it was imperative that the parties be afforded an opportunity to make submissions and to be heard regarding the land claim before the land was transferred to the fifth respondent.

[7]    He argued furthermore that whilst the fifth respondent will argue that sections 11 and 14 of the Restitution Act provide for the applicants to object and to make representations, these are two different and distinct opportunities to object to a claim and should not be conflated. He argued that section 11 makes provision for the opportunity to object to a claim after it had been published in the Government Gazette, while section 14 makes provision to make representations after a decision has been taken to award the land to a particular claimant. They are two distinct and separate rights to be exercised at two different points in the process of a land claim. In his view, the applicants’ prospects of success were overwhelming. Therefore, he submitted, this  Court should not refuse the application for leave to supplement their case as this would curtail the applicants’ constitutional right of  access to the court in terms of section 34 of the Constitution of South Africa[4] and to have the matter ventilated fully having regard to all relevant aspects.

[8]    Counsel for the applicants conceded that there has been a substantial lapse of time. He however impressed upon the Court that the litigants are lay persons litigating and seeking advice from legal representatives. He argued moreover that the legal representatives could have been negligent or remiss and the litigants relied on them to properly plead their case not knowing that some issues may have been omitted. Under these circumstances, he contended that the Court should adopt a generous approach and not penalise the litigants for the conduct of the legal representatives. In this regard he relied on the ratio in Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) (“Saloojee”) at 140H-141 where the court stated:

“This Court has on a number of occasions demonstrated its reluctance to penalise a litigant on account of the conduct of his attorney. A striking example thereof is to be found in R v Chetty, 1943 AD 321. In that case there was an even longer delay than here, and the excuses offered by the attorney concerned were clearly unsatisfactory, but the Court nevertheless granted condonation.”

In considering the above, he submitted that the applicants should not be prejudiced by their previous counsel’s oversight.  

[9]    In summation, he argued that notwithstanding the lapse of time for lodging the review and filing a further supplementary affidavit, there was a question of prejudice to the applicants, who had a right to be heard, in circumstances where they faced overwhelming prospects of success. Therefore, the applicants’ application for leave to file the supplementary affidavit should be granted. He anticipated the fifth respondent’s argument that the application is ten years late and the applicants’ application would delay the matter further. He pointed out that the fifth respondents were afforded an opportunity to file an answering affidavit by Potterill J and there would be no further substantial delay if the matter were considered having regard to the supplementary affidavit.  

[10]  Mr. Gumbi, counsel for the first, third and fourth respondents, submitted that the aforementioned respondents did not oppose the filing of the supplementary affidavit. The first, third and fourth respondents, however, opposed the review application. Mr. Gumbi submitted that the Court could not entertain a review application as the applicants’ were not the claimants as defined by the Restitution Act. It was not possible to grant interim relief without a claim form which ought to be lodged with the fourth respondent in terms of s 10 (1) of the Restitution Act before the cut-off date of 31 December 1998.[5] Moreover, he continued, the applicants could not claim restitution rights over the land in terms the SLAG programme granted by the Minister pursuant to section 10 of the Provision of Land and Assistance Act 126 of 1993 as the latter Act does not regulate the restitution of land rights over Inala farms. The applicants did not submit their claim form to the fourth respondent before the cut-off date of 31 December 1998 and their claim could not be entertained by this court. The applicants’ interest in Inala Farms ceased when they failed to oppose the voluntary liquidation brought by the creditors in 2006 in the North Gauteng High Court. On 20 June 2006, the fourth respondent gazetted the claim lodged by the Matsamo Community in respect of Inala farms and further amended the claim on 20 August 2008 pursuant to section 11 (1) of the Restitution Act.  Anyone affected, including the applicants, were invited to submit their objections within 30 days from the date of publication. The applicants did not file any objections or submit comments and views against the gazetting of the claim. The fourth respondent followed a lawful, reasonable and procedurally fair process before concluding the section 42D Agreement with the Matsamo Community. The applicants have no basis to prove that the fourth respondent failed to consult the applicants prior to the decision to conclude the section 42D Agreement based on the facts and/or law. Counsel concluded that the facts and legal principles relied on in the cases referred to by the applicant are distinguishable from the review application before this Court.

 [11] Mr Hitchings, counsel for the fifth respondent, submitted that the Court should determine whether the supplementary affidavit should be admitted.  He argued that the applicants had not filed any affidavit by their erstwhile legal team indicating they had not considered the ground the current legal team sought to introduce at this late stage in the proceedings. He argued moreover that the applicants failed to file an appropriate amendment in the past ten years. They had not furnished an explanation whatsoever for this inordinate delay. This raised the question whether the application related to issues which are triable at the present stage. He noted that the first, third and fourth respondents had not opposed the filing of the supplementary affidavit but opposed the review application.

[12]  He submitted that the fifth respondent’s submissions overlapped with those of the first, third and fourth respondents but wished to highlight certain aspects and stood by all points raised in his heads of argument despite them not being canvassed due to time constraints.  He pointed out that the applicants avoid an explanation for the ten-year delay with a simple explanation that they changed their legal team. This explanation, he contended, was not satisfactory as it did not account for the full ten-year period. He also relied on the Saloojee case, where the Court stated at 141 C-E:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”.

[13]  The absence of a satisfactory explanation for the full period was lacking, he argued. The change in the legal teams did not account for the ten-year period as the change in the legal team was a recent development. Furthermore, in the event that the Court considered admitting the supplementary affidavit, there was no application for condonation. He continued moreover that the applicants failed to make out a proper case explaining why there has been such a long delay in approaching the court for relief. Additionally, he contended the issue they sought to introduce was not sustainable as the matter required a proper conspectus of the matter and not a myopic view.

[14]  Counsel for the fifth respondent submitted that fairness in litigation demanded that matters be finalized without delay and as soon as possible. Furthermore, he argued the interests of justice demanded that there must be finality to litigation. The conduct of the applicants demonstrated they had not been diligent in proceeding with the matter to date. He pointed out that the fifth respondent had to apply for a trial date as well as attend to the chronology whilst the applicants did absolutely nothing. Now at a very late stage when the proceedings are underway, the applicants, without explanation, seek to change the course by introducing an affidavit out of course. He argued that litigation ought not be conducted in this fashion. It compelled the respondents to argue matters which are not prima facie arguable in the sense that the issues are not prima facie sustainable as they were originally pleaded.

[15]  Regarding the review application, counsel for the fifth respondents submitted that that in the affidavit filed by the first, third and fourth respondents, the liquidator’s intention to auction the property was published. The applicants received notice thereof in relation to the liquidation proceedings. They did not object or indicate that they intended launching any proceedings which impacted on the Court’s decision to issue a final order. Moreover, prior to the liquidation proceedings, the applicants were given notice of the fifth respondent’s land claim when it was published in the Government Gazette.  Thus they had received notice in terms of section 11 of the Restitution Act.  Despite the notification which was published, the applicants did not explain why they did not object at that stage and why they raise the issue at this late stage and allege that they did not have the opportunity to be heard. He argued that they confused the rights they had acquired upon receipt of the SLAG monies to purchase Inala Farm in terms of the SLAG programme with rights a claimant obtained in terms of the Restitution Act. They did not in fact purchase the land or Inala Farm, rather they became beneficiaries in a trust which held shares in Inala Farm.

[16]  Counsel for the fifth respondent reasoned that the applicants must have appreciated that this investment did not work well for them as the farm was sold after a final liquidation order was granted by the North Gauteng High Court. The Land Claims Commissioner published three Government Gazette notices in July 2004, June 2008 and August 2008 in respect of the fifth respondents’ claims as well as the Matsamo Community. On 12 March 2004 after the North Gauteng High Court granted the order, the liquidators were instructed to conclude contracts of employment with the applicants. This was well before the publication in the Government Gazettes. Counsel submitted that the applicants, despite being aware of their circumstances, did not object to the liquidation proceedings and did not object to the fifth respondents’ land claim in respect of Inala Farm. The applicants no longer have a claim to the land after the liquidation and sale of Inala Farm.  It could not be said that the decision must be reviewed where they did not lodge a claim. They held no competing claim to the land.  He submitted that ordinarily the issue of costs would be dispensed with but in the present matter, the applicants were dilatory and drew out the matter unnecessarily. In view hereof they should be ordered to pay the costs and the application should be dismissed.

ADMISSION OF THE SUPPLEMENTARY AFFIDAVIT

[17]  On the issue of leave to supplement there was no opposition by the first, third and fourth respondent. The fifth respondents however opposed the filing of the affidavit and relied on the Saloojee case, as did the applicants. The Court in the Saloojee matter stressed the need to apply for condonation and to follow the practice rules of the Court. In that matter, the blame was cast on the attorneys for the delay. The Court noted as indicated above that litigants should not be prejudiced by the conduct of their legal representatives but did not accept the explanations furnished for the inordinate delays by their legal representative delays and also placed responsibility on litigants to ensure that they held their legal representatives accountable.

[18]  In the present matter, the applicants briefed new counsel when the matter was at an advanced stage. This required consultations with clients who were elderly and in the wake of the COVID pandemic it was not possible to consult earlier, according to counsel for the applicants. This explanation is tendered for the submission of the late supplementary affidavit. It was also advanced that it is in the interests of justice that all relevant factors be considered when coming to a just decision. This must be considered along with the opposition by the fifth respondent who suggested this was an unnecessary delay and that there was no reasonable explanation and no affidavit from the previous counsel. The submissions made on behalf of the fifth respondents were relevant, however it is equally important to consider the matter having regard to all relevant facts. The applicants’ supplementary affidavit is thus permitted to enable the matter to proceed considering the merits having regard to all factors.

Was the review application brought timeously?

[19]  The applicants seek to review the decision taken to purchase the land for the fifth respondents when, in the applicants’ view, there was an existing decision taken in respect of the same land which had not been reviewed and set aside. Furthermore, the applicants are aggrieved that they were, in their view, not afforded an opportunity to make representations before the decision was taken to purchase the land for the fifth respondents. They do not accept the argument put forward by the respondents that whilst they may have occupied and worked on the land and been beneficiaries of the trust which held shares in Inala Farms, the property was sold pursuant to a final liquidation order granted by the North Gauteng High Court, which they did not oppose either as employees on the farm or as beneficiaries of the trust.

[20]  The application was brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). Section 7(1) of PAJA provides:

“7(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without unreasonable delay and not later than 180 days after the date-

(a)   subject to subsection (2) (c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection (2) (a) have been concluded; or

(b)   where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

[21]  In Opposition to Urban Tolling Alliance v South African National Road Agency Ltd [2013] 4 All SA 639 (SCA) at para 23 the Court stated :

“[23]   Although the delay rule has its origin in common law, it now finds its basis in s 7(1) of PAJA which provides in relevant part:

'1.   Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date –

                                        …

[24]   Section 9(1) provides, however, that the 180-day period 'may be extended for a fixed period, by agreement between the parties or, failing such agreement, by a court or tribunal, on application by the person or administrator concerned'. Section 9(2) provides that such an application may be granted 'where the interests of justice so require'.”.

[22]  Having regard to section 7 of PAJA, the application is inordinately late. The applicants brought an application to file a supplementary affidavit. This dealt with the reasons for introducing a new ground of review. It did not address the issues of condonation and neither was the original application accompanied by an application for condonation setting out the extent of the delay or an explanation for the delay to enable the Court to determine that it is in the interests of justice that condonation be granted. For the reasons indicated above, the supplementary affidavit was admitted. Counsel for the applicants argued however that the application for review was not brought in terms of PAJA but was a brought under the principle of legality. The standard applicable is thus not limited to the 180-day rule. All that is required is to ascertain whether the delay is unreasonable and undue as determined in Khumalo and Another v MEC for Education, KwaZulu-Natal 2014 (5) SA 579 (CC).

[23]  In Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC), the Court held that where there was a delay in terms of PAJA there must be an application for condonation, however where the review was based on legality there was no similar time line. The principle of legality approach is more flexible when considering the delay. At paragraph 53 the Court stated:

“[53] Even if the unreasonableness of the delay has been established, it cannot be 'evaluated in a vacuum' and the next leg of the test is whether the delay ought to be overlooked.   This is the third principle applicable to assessing delay under legality. Courts have the power in a legality review to refuse an application where there is an undue delay in initiating proceedings or discretion to overlook the delay. There must however be a basis for a court to exercise its discretion to overlook the delay.  That basis must be gleaned from the facts made available or objectively available factors.”.

[24]   The decision sought to be reviewed was taken in in 2008. The application for review was lodged in 2011. This constitutes a three-year delay. The applicants advocated that the principle of legality was the basis for the review and relied on the decision in Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others 2014 (1) SA 604 (CC). I find no support for the applicants’ contention that the legality principle is the basis of review supported in the AllPay matter. The Court held in AllPay above as follows at paragraph 28 –29:

“[28] Under the Constitution there is no reason to conflate procedure and merit. The proper approach is to establish, factually, whether an irregularity occurred. Then the irregularity must be legally evaluated to determine whether it amounts to a ground of review under PAJA. This legal evaluation must, where appropriate, take into account the materiality of any deviance from legal requirements, by linking the question of compliance to the purpose of the provision, before concluding that a review ground under PAJA has been established.

[29] Once that is done, the potential practical difficulties that may flow from declaring the administrative action constitutionally invalid must be dealt with under the just and equitable remedies provided for by the Constitution and PAJA. Indeed, it may often be inequitable to require the rerunning of the flawed tender process if it can be confidently predicted that the result will be the same.”

 [25] The applicant’s case based on PAJA falters in that the application was brought some three years after the decision was taken. It did not comply with the 180-day requirement. Having regard to PAJA and the Buffalo City Metropolitan Municipality decision, the application being more than 180 days late is per se unreasonable. Having concluded that the application is late, it remains to be determined whether the interests of justice require an extension of the 180-day period. This can only be determined where the applicants tender an explanation for the full extent of the delay. In the present matter, the applicants’ state that they were beneficiaries of the property at the relevant time and therefore did not object. They were labour tenants on the farms and worked on the farms many having been born there before the owners experienced serious difficulties. The Department of Rural Development and Land Reform stepped to the fore to assist the applicants through the SLAG programme to acquire land. They received cash amounts, which was invested in a trust, which trust held shares in the property and the applicants were the beneficiaries of the trust. A certain Mr de Wet held 51% of the shares whilst the applicants held 49% of the shares through the trust. It did not occur to the applicants that their positions as beneficiaries of the trust holding shares in the property was the very basis for their objection to the fifth respondents claim, if they did not wish to hand over the land for compensation. There is simply no feasible explanation why they did not lodge an objection in 2004 when the fifth respondents’ claim was first published and posed a threat to their continued occupation in the event that restitution of the land was considered, which competed with their occupation and their interest.

[26]  Whether the application is considered in terms of PAJA and the court considers it to be in the interests of justice to extend the 180-day period or whether the matter is considered in terms of the principle of legality and the applicants have more flexibility, they are still required to furnish an explanation for the undue delay. The explanation furnished by the applicants that they had an interest in the land and were secure in their occupation overlooked the competing interest of the fifth respondent and was unwise and ill-advised. On both interpretations the review was late. It was not brought timeously and no good reason is furnished for the delay.

Was Inala Farms acquired by the applicants?

[27]  The second issue for determination was whether the applicants had acquired Inala Farms. On the applicants’ own version, they were labour tenants and the State’s intention was to assist them in acquiring land. The vehicle utilized to achieve this goal was the SLAG programme. The intention of acquiring land appears to have eluded the applicants. This is evident when regard is had to the share certificates. Mr. Mtsweni conceded, when perusing the share certificates, that the applicants did not have ownership of Inala Farms nor did they own shares in Inala Farms. He thus insisted from the bar that the applicants should be given their land. They were the beneficiaries of a trust which held shares in Inala Farm. The trust held 49% of the shares whilst Mr. de Wet held 51% of the shares in Inala Farm. It is clear that any interest the applicants acquired with assistance of the SLAG programme as beneficiaries through the trust was lost when the final liquidation order was granted and the land was sold. The applicants did not lodge a claim in terms of the Restitution Act. It is evident from the share certificates that the applicants did not acquire Inala Farm. Furthermore, Inala Farm was liquidated and sold which resulted in the applicants losing their investment. Whatever interest they acquired was lost. The facts indicate that they did not see fit to object at any stage or lodge a claim to the land called Inala Farm, that they believed they were entitled to.

Was the decision to award Inala Farm to the applicants replaced with the decision to award the Farm to Matsamo CPA and if so, whether such decision was competent?

[28]  The decision to assist the applicants to acquire land known as Inala Farm was through the SLAG programme. This programme does not appear to have been successful as the farm was the subject of liquidation proceedings. Neither Mr. de Wet nor the applicants, who were the beneficiaries of the trust, opposed the interim liquidation order. The applicants were retained as employees on Inala Farm after the final liquidation order was granted and would thus have been aware of the change in the circumstances of the farm.

[29]  The applicants base their claim on the assumption that as beneficiaries of the SLAG programme they qualified for restitution of Inala Farm. There is no reference to any section in the SLAG programme which affirms that the applicants’ grant qualified them for restitution of land under the Restitution Act. Thus, they could not acquire the land on that basis. They were given funds in the amount of R15 000 per recipient to purchase the Inala Farm in terms of the SLAG programme. They did not file a claim form in terms of section 10 of the Restitution Act. Their claim to land was thus not a restitution claim in terms of the Restitution Act. The fourth respondent was bound by the claim forms submitted in terms of the Restitution Act by the claimants. When the property was sold after the final liquidation order was granted, the applicants did not make out a case for their claim in ownership in the land, especially because they did not object to the liquidation of the farm as beneficiaries in the trust when the property was sold.

[30]  The relief afforded to the applicants to acquire land was complete after the funds paid in terms of the SLAG programme were paid and the trust was formed. The claim by the fifth respondent was dependent on a claim being lodged. There was no objection to the claim filed by the fifth respondent, thus the applicants’ complaint that they were not consulted holds no water. They were obliged to protect their interest in Inala Farm when they were beneficiaries of the trust which held shares in Inala Farm. This ought to have been done by lodging an objection as their interest was affected. Their silence and inaction led to the final liquidation order being granted. It was only after the final liquidation order was granted, there having been no objections and no opposition to the final liquidation, that the question of purchasing the land to restore it to the fifth respondent was considered. There was never a time where there were competing claims between the applicants and the fifth respondent before the fourth respondent to suggest that one decision was substituted for another.

 [31] In the event that the applicants were still the beneficiaries of Inala farm, the fourth respondent would have had to consider whether it wished to purchase the property from Mr De Wet and the trust in order to restore the land to the fifth respondent. At that stage, consultations may have been considered. The fourth respondent always had the alternative option of compensation to the fifth respondent. This did not occur however as the property became available for sale due to the final order of liquidation granted by the North Gauteng High Court. It was under those circumstances that the property was purchased with the intention of restoring it to the fifth respondent.  Thus it is not correct to state that there was a decision to award Inala Farm to the applicants in terms of the Restitution Act. The applicants were never claimants in terms of the Restitution Act. Furthermore, it is not correct that a decision to award land to the applicants was replaced with the decision to award Inala Farm to the fifth respondents. Mr. Mtsweni conceded that when he read the share certificates it was apparent that the applicants were never awarded any land and were not awarded Inala Farm. He placed on record that the applicants were beneficiaries of the trust which held shares in Inala farm. This concession reinforces my conclusion that there was never any substitution of a decision by the fourth respondent in conjunction with any of the other respondent and or the relevant Minister to replace one decision with another in terms of the Restitution Act. Consequently, on these facts, regardless of the inordinate delay of ten years or inaction on the part of the applicants to approach this Court, there is no decision to review in terms of the PAJA read with ss 25 and 33 of the Constitution. For the reasons in the preceding paragraphs, the application of the applicants for a review of a decision by the respondents ought not to succeed.  

COSTS

[32]    What remains is the issue of costs. Counsel for the applicants submitted that whilst costs remain within the Court’s discretion, the principles applicable in this Court are trite. The applicants should not be mulcted with costs as they are people of straw and are pursuing a constitutional right where same has been denied. In keeping with the practice of this Court in social legislation matters and in line with BiowatchTrust v Registrar, Genetic Resources, And Others 2009(6) SA 232 (CC) not to award costs except in exceptional circumstances, of which I find there to be none in this matter, I make no order as to costs.    

ORDER

[33]  For the reasons above I order as follows:

1.               The application is dismissed.

2.               Each party shall pay their own costs.

                                                                                    ________________

                                                                                                     Mia J

                                                                                                     Acting Judge

                                                                                                     Land Claims Court

APPEARANCES

For the Applicants:                          Adv D Mtsweni and Adv D Mosoma

Instructed by                                  Mthetwa Attorneys

For the State Respondents:           Adv L Gumbi

Instructed by                                   State Attorney

For Fifth Respondent:                     Adv BD Hitchings

Instructed by                                  Magagagula George Mcetywa Inc

Hearing                                          3 May 2021

Judgment                                      18 October 2021

---

---