Bangani v Minister of Rural Development and the Land Reform and Another (CA25/2016) [2017] ZAECMHC 4; [2017] 2 All SA 453 (ECM) (7 March 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

APPEAL CASE NO. CA25/2016

In the matter between:

NONTSAPO GETRUDE BANGANI

Appellant

and

THE MINISTER OF RURAL DEVELOPMENT AND

THE LAND REFORM

1st Respondent

THE REGIONAL LAND CLAIMS COMMISSION

2nd Respondent

FULL BENCH APPEAL JUDGMENT

D VAN ZYL DJP:

[1] This is an appeal against the finding of the Eastern Cape Local Division, Mthatha (the Court) that it lacked jurisdiction to determine the appellant’s claims against the Minster of Rural Development and Land Reform (first respondent) and the Regional Land Claims Commissioner (second respondent). The Court found that the Land Claims Court has exclusive jurisdiction to determine the dispute. This finding was based on the provisions of the Restitution of Land Rights Act (RLRA).[1] The RLRA was enacted to give effect to section 25(7) of the Constitution[2] in terms of which a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, “to the extent provided by an Act of Parliament”, either to restitution of that property or to equitable redress.

[2] The background to the appeal is as follows: The appellant instituted an action against the respondents for payment of an amount of R94,762,26c with interest and costs. The claim was founded on a written contract (agreement) entered into in April 2009 between the Mdlankomo-Moyeni Community (Community), the Nyandeni Local Municipality (Municipality), and the two respondents. The agreement provided inter alia for the payment by the second respondent of the amount of R88,167,26c to 907 households as compensation for the loss of the rights which the Community had in land described as the Libode Commonage. According to the agreement the land, which now vests in the Municipality, was used prior to 1935 by members of the Community to graze their cattle. The Community was effectively dispossessed of their grazing rights by the introduction of legislation in the apartheid era aimed at regulating the use of the land. The agreement also provides for what is described as a project fund made up of “restitution settlement grants” of R6 595,00 per household. These were the two amounts claimed by the appellant in her summons which add up to the total of

R94,762,26c.

[3] In their plea the respondents raised an objection to the appellant’s locus standi to sue on the agreement. The objection was premised on the provisions of section 2(3)(b)[3] of the RLRA in terms of which a natural person who has died after the lodgement of a claim as envisaged in the RLRA without leaving a will, may be substituted by a direct descendant.[4] It was pleaded that the appellant is the wife of the son of the claimant and not a direct descendant as envisaged in the section. She was consequently not, and could not be a party to the agreement which she seeks to enforce. The existence of any agreement between the parties was also denied by the respondents in their plea over.

[4] At the trial the respondents in limine raised another objection. It was contended that the Court lacked jurisdiction to determine the dispute. The basis of the objection was that the dispute raised falls within the exclusive jurisdiction of the Land Claims Court as provided in section 22 of the RLRA. In its judgment the Court narrowly focused on the jurisdiction question and made no findings with regard to the issue of locus standi or the merits of the appellant’s claim. It found that the appellant’s claim was founded on an agreement as envisaged in section 22(1)(cE) of the RLRA, that her claim for payment amounted to the “enforcement” of an agreement as envisaged in paragraph (cE), and that it consequently lacked jurisdiction to entertain the appellant’s claim. The Court proceeded to dismiss the action and made no order with regard to the costs of the action. The costs order is seemingly premised in the Court’s view that the respondents could reasonably have raised the jurisdictional issue at an earlier stage of the proceedings, thereby avoiding the unnecessary wastage of time and costs.

[5] The appeal is with the leave of the Court. It also granted the respondents leave to pursue a cross-appeal which was essentially

directed at the costs order. The cross-appeal was abandoned and nothing further needs to be said about it.

[6] The issue for determination in this appeal is whether the High Court has jurisdiction to determine the appellant’s claim.

Jurisdiction in the present context means the power or competence of a court to determine and dispose of the issue between the

parties.[5] Limitations may be placed upon such power in relation to territory, the parties, the amount in dispute, or as in the present matter, the subject matter of the dispute. National legislation may be a source of such a limitation. It is the Constitution which vests judicial authority in the High Court, and section 169 provides that the High Court may decide “any matter not assigned to another Court by any Act of Parliament.”[6]

[7] In section 22 of the RLRA the legislature created a court known as the Land Claims Court. Although it has all the powers of a High Court having jurisdiction in civil proceedings at the place where the land in question is situated, it does not possess general or inherent jurisdiction[7]. Unlike the High Court that derives its judicial authority from the Constitution, the Land Claims Court gets its authority from a statute and its powers are circumscribed.[8] The powers which it does possess are however to the exclusion of the High Court.[9] That this is so is clear from the intention of the legislature as expressed in section 22. It provides that there shall be a court of law “to be known as the Land Claims Court which shall have the power, to the exclusion of any court contemplated in section 166 (c), (d) or (e) of the Constitution” to determine a number of matters listed in paragraphs (a) to (d) of the section.[10]

[8] The Court in my view correctly found that it lacked material jurisdiction in respect of those matters which the legislature in section 22(1) of the RLRA assigned to the exclusive jurisdiction of the Land Claims Court. The Land Claims Court was created as a specialist court charged to administer and interpret the RLRA[11]. To that extent it has been vested with wide remedial powers and with exclusive jurisdiction to decide matters which are to be determined in terms of the RLRA. The effect of section 22(1) is that the High Court does not have the authority or the power to determine any of the listed matters. [12] That power has been left to the Land Claims Court. A judgment given by the High Court contrary to section 22(1) shall be void ab initio and of no force and effect.[13]

[9] The question is then whether the appellant’s claim amounts to the determination of a matter as contemplated in section 22(1) of the RLRA. Relevant for present purposes is the power of the Land Claims Court in paragraph (cE) “to determine any matter including the validity, enforceability, interpretation or implementation of an agreement contemplated in

section 14(3), unless the agreement provides otherwise.” There are two aspects to this question. The first is whether the appellant’s claim is a matter that includes the “enforceability” or “implementation” of an agreement. The second aspect is whether the agreement on which the appellant’s claim is founded is an agreement as “contemplated in section 14(3)” of the RLRA.

[10] The appellant’s claim is one for specific performance of the terms of a written contract. It is a matter that falls squarely within what is contemplated by the legislature in paragraph (cE).

[11] Is the contract an agreement as envisaged in section 14(3) of the RLRA? Section 14(3) reads as follows:

“If in the course of an investigation by the Commission the interested parties enter into a written agreement as to how the claim should be finalised and the regional land claims commissioner having jurisdiction certifies in writing that he or she is satisfied with the agreement and that the agreement ought not to be referred to the Court, the agreement shall be effective only from the date of such certification or such later date as may be provided for in the agreement.’

[12] The RLRA provides context to section 14(3). Section 2 entitles a person or community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws and practices, to restoration of that right. A claim for restitution is directed to the Commission on Restitution of Land Rights (Commission), which is required, among other things, to investigate the merits of the claim, make a determination as to whether it is not precluded by the provisions of section 2, and whether it is not frivolous or vexatious.[14] Once the claim has been accepted by the Commission through the Regional Land Claims Commissioner (Regional Commissioner), the claim will be published in the prescribed manner.[15] The claim is then investigated further[16] and either mediated with the view to reaching a settlement,[17] or referred to the Land Claims Court for adjudication.[18] Before the matter is referred to that Court the Regional Commissioner must, among other things, certify that the matter is ready for hearing by the Court.

[13] The RLRA allows for the recognition of a positive outcome to mediation as provided for in section 13. It allows the parties

to enter in an agreement in settlement of a claim. The terms of the agreement are however not free from scrutiny by the Regional

Commissioner and the Land Claims Court. To that extent section 14(3) provides that where parties who have an interest in a claim has reached agreement in respect of the claim, and have entered into a written agreement, the agreement will only be effective from the date on which the Regional Commissioner has certified that he or she is satisfied with the agreement, and that the agreement ought not to be referred to the Land Claims Court. Subsection (3) must be read with subsection (3A). Subsection (3A) determines when the Regional Commissioner may choose to refer the matter to the Land Claims Court. He or she may do so if of the opinion, amongst other things, that the agreement is not just and equitable in respect of any party, or contrary to the provisions of the RLRA, or there is doubt as to the validity or feasibility of the agreement.

[14] In the present matter the contract on which the appellant relies for her claim was entered into in terms of section 42D of the RLRA. The agreement records that to be the position.[19] That section empowers the Minister “when 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” to enter into an agreement with the parties who have an interest in the claim providing inter alia, as in the present matter, for the payment of compensation.

[15] The fact that the agreement was concluded in terms of section 42D does not in my view take it outside the provisions of the RLRA, or put differently, it does not operate to give the agreement any status different from an agreement as contemplated in section 14(3). I say that for the following reasons: Neither section 14(3), nor section 42D states that to be the position, and there is no obvious reason why a section 42D agreement should not also be subject to certification by the Regional Commissioner. Both sections deal with agreements reached in relation to a claim as envisaged in the RLRA, and section 14(3) is not limited to an agreement entered into between the parties to a land claims dispute. Instead, it includes agreements that are entered into by the “interested parties”, a term wide enough to also include the Minister.

[16] Further, the reasons listed in section 14(3A) for the Commissioner refusing to certify the agreement, and instead refer it to Court, are equally relevant to an agreement entered into in terms of section 42D. What is however more important is that section 14(3A) explicitly refers to and includes an agreement in terms of section 42D. In paragraph (v) the Regional Commissioner is authorised to refer the agreement to Court if of the opinion that “the agreement does not comply with section 42D(2).” Section 42D(2) states that where the claimant is a community, as is the position in the instant matter, the agreement must provide for all the members of the community to either have access to the land, or to any compensation paid on a basis that is fair and non-discriminatory towards any person.

[17] Another aspect is that the purpose of section 14(3) is consistent with a section 42D agreement being subject to certification. As stated, section 42D serves to authorise the Minister to enter into a settlement agreement with interested parties. It provides the framework within which that power is exercised, and certification by the Commissioner, and the referral of the agreement to the Land Claims Court as provided in section 14, serves as an oversight mechanism to the exercise of that power.

[18] I am accordingly satisfied that the legal premise on which the Court found that it lacked jurisdiction, is correct. At the hearing of the matter counsel for the appellant did not seek to contend otherwise. Instead counsel chose to confine himself to the argument that the Court was not placed to make the finding it did as it had no, or insufficient evidence before it to find as a fact that the Commissioner had issued a certificate as contemplated in section 14(3). The difficulty with this argument is the underlying proposition that the words “of an agreement as contemplated in section 14(3)” in section 22(1)(cE) refer to an agreement that has been certified by the Regional Commissioner, or to put it differently, that the existence of the Regional Commissioner’s certificate is a condition precedent or jurisdictional fact to the exclusive

jurisdiction of the Land Claims Court. The opposite, which is in my view the correct position, is that the words are simply

referring to the enforcement, interpretation etcetera of an agreement entered into by interested parties with regard to the finalisation of a claim for restitution as envisaged in the RLRA, which agreement is subject to certification. As there is, on the facts, no merit in the argument raised, I do not intend to deal with the underlying legal question raised thereby.

[19] The appellant’s argument was premised on the observation of the Court in its judgment that the Commissioner’s certificate was not placed before it.[20] This comment must however be seen in the context of the documentation that was before the Court. It is common cause that what was introduced into evidence was the agreement and a memorandum that preceded it. The memorandum was prepared with the view of seeking the approval of the Acting Chief Land Claims Commissioner for the finalisation and settlement of the Community’s claim in respect of the land in question. In this memorandum it is stated that a Ms Faleni, the Regional Land Claims Commissioner for the Eastern Cape “will certify in writing, as provided for in terms of section 14(3) of the RLRA, and that the agreement be effective from the date of signature by the parties.” It was with reference to this that the Court in its judgment made the statement on which counsel placed reliance.

[20] However, the Court did not stop there. It proceeded in the same paragraph of the judgment to state that it was not necessary for the production of the certificate as envisaged in the memorandum by reason of the fact that the terms of the agreement itself makes reference to the Commissioner certifying the agreement in terms of section 14(3). That this is the correct position is evident from clause 20.3.2 of the agreement where it is recorded that the parties are satisfied that the Commissioner, who was also a party to the agreement, “certifies in terms of section 14(3) of the Restitution Act that she is satisfied with this agreement and that the agreement ought not to be referred to Court.”

[21] The effect of this is that the Commissioner’s certificate has been incorporated into the agreement, and the agreement took effect from the date of the signing thereof. There is in my view no obstacle to the Commissioner choosing to certify the agreement in this manner. Save for the fact that it must be in writing, there are no prescripts in the RLRA with regard to the form which a Commissioner’s certificate must take. What is further evident from the agreement is that the parties did not choose, as they are authorised to do in section 22(1)(cE), to exclude from the Land Claims Court’s jurisdiction the determination of any of the matters contemplated in paragraph (cE). [21] On the contrary, they elected to incorporate section 14(3) into their agreement.

[22] Accordingly, I conclude that the Court was correct in finding that the Commissioner had issued a certificate as contemplated in section 14(3) of the RLRA, and that it correctly upheld the respondents’ objection to its jurisdiction.

[23] An aspect that requires further comment is that in its order the Court included in the first paragraph an order that the “action must be instituted before the Land Claims Court.” In her heads of argument the appellant took issue with the competency of this part of the order on the basis that neither party asked for it, and that it operates to deprive the appellant of choosing which court next to approach. There is some merit in this challenge. This order is superfluous and can mean nothing more than a declaration that the Land Claims Court is the competent Court to determine the issues as they have been formulated in the appellant’s action in the High Court. Subject to this, the appeal must be dismissed.

[24] With regard to costs, as the appellant was unsuccessful with the issue raised in the appeal, there exists no reason for the costs of the appeal not to follow the result. The only remaining issue is that of the reserved costs of the hearing of the appeal on 21 October 2016. On that day the matter was postponed. Counsel for the respondents acknowledged that the respondents, at whose instance the postponement was granted, should bear the costs thereof.

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

(a) Save for the deletion of paragraph 1 of the order issued by the Court a quo, the appeal is dismissed with costs.

(b) The respondents are to pay the wasted costs occasioned by the postponement of the appeal on 21 October 2016.

___________________

D VAN ZYL

DEPUTY JUDGE PRESIDENT

I agree

_______________________

FBA DAWOOD

JUDGE OF THE HIGH COURT

_________________________

RWN BROOKS

Counsel for the Appellants: Adv. A M Bodlani

Instructed by:

Messrs A S Zono & Associates

Suite 153 – 1st Floor, ECDC Building

York Road

MTHATHA

For the Respondent:

Adv. P V Msiwa

Instructed by:

State Attorney

Broadcast House

No. 94 Sisson Street, Fortgale

Date Heard:

17 February 2017

Judgment Delivered:

07 March 2017

[1] Act 22 of 1994 as amended.

[2] Act 108 of 1996.

[3] “(3) If a natural person dies after lodging a claim but before the claim is finalised and – (a) . . . (b) does not leave a will contemplated in paragraph (a), the direct descendants alone, may be substituted as claimant or claimants.”

[3] “(3) If a natural person dies after lodging a claim but before the claim is finalised and –

(a) . . .

(b) does not leave a will contemplated in paragraph (a), the direct descendants alone, may be substituted as claimant or claimants.”

[4] According to the definition of a “direct descendant” in section 1 of the RLRA, it includes “the spouse or partner in a customary union of such person whether or not such customary union has been registered.”

[5] Graaff-Reinet Municipality v Van Reyneveld’s Pass Irrigation Board 1950 (2) SA 420 A at 424.

[6] SA Broadcasting Corporation Ltd v National Director of Public Prosecutions at par [88].

[7] Macassar Land Claims Committee v Maccsand CC (201/2016) 2016 ZASCA 167 (23 November 2016).

[8] SA Broadcasting Corporation Ltd v National Director of Public Prosecutions [2006] ZACC 15; 2007 (2) BCLR 167 (CC) at par [88]. It is a court as envisaged in section 166(e) of the Constitution.

[9] Section 22(2) of the Act.

[10] It is a well recognised rule of statutory interpretation that a clear provision is necessary to establish legislative interference with the jurisdiction of the High Court. See De Bruin v Director of Education 1934 AD 252 at 258 and Lenz Township Co (Pty) Ltd v Lorentz NO en andere 1961 (2) SA 450 (A) at 455B – C.

[11] Florence v Government of the Republic of South Africa [2014] ZACC 22 at para [121].

[12] A similar provision is found in section 20(2) of the Extension of Security of Tenure Act 62 of 1997. See Khumalo v Potgieter 2001 (3) SA 63 (SCA) at para [10].

[13] Voet Commentarius ad Pandectas 2.1.19. See Lubbe v Bosman 1948(3) SA 909 (O); Master of the High Court v Motal NO 2012 (3) SA 325 (SCA) at para [12] to [14] and MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute 2014 (3) SA 481 (CC).

[14] Section 11(1).

[15] Section 11(1).

[16] Section 12.

[17] Section 13.

[18] Section 14.

[19] Clause 1.12.

[20] Paragraph 23 of the judgment.

[21] “unless the agreement provides otherwise.”