Bakgatla ba Kgafela Communal Property Association v Kgafela and Others (LCC219/2012) [2013] ZALCC 6 (3 January 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC219/2012

Before: Judge Loots

Heard on 31 December 2012

Reasons for judgment handed down 3 January 2013

BAKGATLA-BA-KGAFELA

COMMUNAL PROPERTY ASSOCIATION ..............................................................Applicant

and

KGOSHI KGOLO KGAFELA KGAFELA .......................................................1st Respondent

KGOSI NYALALA JOHN PILANE .................................................................2nd Respondent

KGOSI DAVID RAMPO PHETWE ..................................................................3rd Respondent

KGOSI KAGISO PILANE ...............................................................................4th Respondent

KGOSI THARI PILANE ...................................................................................5th Respondent

KGOSI SEGANE PILANE .............................................................................. 6th Respondent

BAKGATLA-BA-KGAFELA TRIBAL COUNCIL ............................................7th Respondent

WENHAUS 2000 (PTY) LTD ..........................................................................8th Respondent

REGIONALLAND CLAIMS COMMISSIONER

...............................................9th Respondent

CHIEF LAND CLAIMS COMMISSIONER ....................................................10th Respondent

MOSESKOTANELOCALMUNICIPALITY ....................................................11th Respondent

JUDGMENT

[1] This is an application for an interim interdict to prevent the development of property on the farm Saulspoort 38 JQ which the applicant alleges that it owns. It alleges that it derived ownership of the property as a result of a land claim made in terms of the Restitution of Land Rights1 (the Restitution Act).

[2] The application is opposed by the second respondent, who says that he is the Kgosi (Senior Traditional Leader) of the Bakgatla-Ba-Kgafela Traditional Community, and the seventh respondent, cited as the Bakgatla-Ba-Kgafela Tribal Community (hereafter referred to as ‘the respondents’).

[3] The respondents raise a number of defences, including the issue of whether this court has jurisdiction to hear the application and the issue of whether the applicant has locus standi. The locus standi issue is the subject of a separate opposed application which has been set down for hearing in this court on 29th January 2013 under case number LCC 80/2012, in which the applicant claims an order declaring it to be a registered Community Property Association in terms of the Communal Property Associations Act 28 of 1996, or alternative relief. The interdict is claimed pending finalisation of case number LCC 80/2012.

[4] I indicated to counsel in chambers before the commencement of the hearing that they should focus on the issue of whether the development complained of is taking place on land which was subject to the restitution process, because there is a denial in the opposing affidavit that this is so. It is clear that this court has jurisdiction only if the interdict relates to land which has been or is to be awarded to the applicant pursuant to a claim in terms of the Restitution Act. I further indicated that I would not entertain argument as to the standing of the applicant since this is the subject of LCC 80/2012.

[5] Having heard counsel and having considered the papers, I am satisfied that the applicant has not discharged the onus which it has of persuading me that the development complained of is occurring on land which was subject to the restitution process. That being so, the application must be dismissed both on account of the court’s jurisdiction not having been established and on account of the applicant not having established a prima facie right which would entitle it to be granted an interim interdict. My reasons for this decision follow.

[6] The applicant asked for an order interdicting development activities which it alleges began on its property Saulspoort on or about 17th November 2012. It alleged that the property had been awarded and transferred to it in accordance with the Restitution Act.2 In support of this allegation, the applicant attached as Annexure BBKCPA 2, a memorandum of the Commission on Restitution of Land Rights reflecting the approval of the settlement. The applicant alleges that it was formed in terms of the Communal Property Association Act3 to take transfer of the land and hold it for the benefit of the claimant community.

[7] The second respondent in the opposing affidavit, which was made also on behalf of the seventh respondent, admitted that earthmoving activities had commenced at Saulspoort during November in preparation for the construction of a retail centre which would house a shopping mall. The respondents however deny that this development is taking place on land acquired by the applicant or the community through the restitution process.

[8] The respondents allege that the development which the applicant wants to interdict is part of a larger development plan which commenced in 2008. A soccer stadium was built in time for the 2011 FIFA World Cup and an office park was built which houses the offices of the Tribal Authority. The retail centre is the third development, others are to follow. Counsel for the respondents illustrated this by referring to a diagram attached to the opposing affidavit as part of Annexure NJM 1, which depicts the proposed development. The diagram reflects that these developments will all be on the remainder of portion 1 of Saulspoort 38 JQ, as alleged by the respondents.

[9] Counsel for the respondents then referred to the document annexed to the applicant’s founding affidavit (Annexure BBKCPA 2) which records the approval of the settlement of claims by the Bakgatla Ba Kgafela Tribes in respect of certain farms including Saulspoort 38 JQ. He pointed out that this document approves the settlement of claims in respect of only four portions of Saulspoort 38 JQ and that the remainder of portion 1 is not included.4 It is alleged in the opposing affidavit that the remainder of portion 1 is ‘still registered in the name of the Bakgatla Tribe held under trusteeship of the Department of Rural Development and Land Reform’ and that a letter had been obtained from the Department ‘whereby the developers were notified that the Department has no objection to the intended development.’ This letter is Annexure NJM1.

[10] In response to this argument counsel for the applicant referred to the minutes of a meeting of the Bakgatla Ba Kgafela Land Rights Holders, which is Annexure NMJ 4 to the opposing affidavit. The document records that the purpose of the meeting was to obtain consent for developments to be undertaken on portion 1 of the farm Saulspoort 38 JQ, a portion of the farm Kodoesfontein 40 JQ and a portion of the farm Schaapkraal 170 JP. Referring then to the section 42D approval document(Annexure BBKCPA 2), he pointed out that it was not only certain portions of the farm Saulspoort which were subject to the restitution settlement, but also the whole of the farms Koedoesfontein and Schapskraal. He argued that, since the development approval referred also to these

farms, that gave the applicant grounds to claim the interdict. This argument cannot succeed because this application was brought by way of urgency expressly on the basis that a development had been commenced on Saulspoort on land owned by the applicant.

[11] I indicated to the applicant’s counsel that in order to succeed he would have to be able to demonstrate to me that the current development activities are taking place on land which was subject to the restitution process. He conceded that he was not able to do this.

[12] The onus of establishing that the requirements for the granting of an interim interdict have been satisfied is on the applicant.5 The applicant has not established the first of these requirements, which is a prima facie right. That right would be ownership of, or some other enforceable right in, the land on which it alleges development activities commenced on or about 17th November 2012.

[13] The fact that the applicant has not established that the development activities are taking place on land which was awarded to it in terms of a restitution process also means that there is no basis on which the court has jurisdiction to grant the relief claimed. The Land Claims Court was established in terms of the Restitution Act6 and its jurisdiction is limited to matters concerning the restitution of land in terms of that Act and matters in terms of the Land Reform (Labour Tenant Act)7 and the Extension of Security of Tenure Act.8

Order

The following order is accordingly made:

The application is dismissed with costs.

____________

C E LOOTS AJ

Land Claims Court

Representative for Applicant

L. P. Leshabana of LEOFI LESHABANA Inc

Attorney for the 2nd and 7thRespondent

W. T. Mothuloe of MOTHULOE ATTORNEYS

Counsel for the 2nd and 7thRespondent

K Chwaro

1Act 22 of 1994.

2Section 14(3) of the Act provides for settlement of claims without referral to the Land Claims Court. Section 42D(1) of the Act empowers the Minister to enter into an agreement with the parties who are interested in the claim providing for, inter alia, the award of the land claimed.

3Act 28 of 1996.

4Paragraph 3.1 of the document.

5As to these requirements, see Herbstein& van WinsenThe Civil Practice of the High Courts of South Africa 5th ed by Celliers, Loots &NelVol at 1457 and the cases there cited.

6Section 22.

7Act 3 of 1996.

8Act 62 of 1997.