Baphuting Bo Seleka Community v Borakologadi Communal Property Association and Others (LCC108/2016) [2017] ZALCC 7 (21 June 2017)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

Case No.: LCC108/2016

Before: The Honourable Justice Molefe

Heard On: 26 April 2017

Delivered: 21 June 2017

In the matter between:

BAPHUTING BO SELEKA COMMUNITY

Applicant

And

BAROKOLOGADI COMMUNAL PROPERTY ASSOCIATION

1st Respondent

BAROKOLOGADI BA GA MATOE COMMUNITY

2nd Respondent

DEPARTMENT OF RURAL DEVELOPMNET & LAND

REFORM

3rd Respondent

COMMISSION ON RESTITUTION OF LAND RIGHTS

4th Respondent

REGIONAL LAND CLAIM COMMISSIONER,

NORTH WEST PROVINCE

5th Respondent

NORTH WEST PARKS AND TOURISM BOARD

6th Respondent

MINISTER OF RURAL DEVELOPMENT & LAND

REFORM

7th Respondent

BATLOKWA BO KGOSI MATLAPENG

8th Respondent

JUDGMENT

MOLEFE J

[1] The applicant seeks interlocutory and declaratory relief against the first and second respondents and an order as follows:

1.1 That the 1st and 2nd respondents, and any person acting under its/their instructions, be interdicted from selling, leasing, subdividing, rezoning or

developing the land (as described in paragraph 4 of the founding affidavit), pending the outcome of the applicant’s application

for restitution of its rights in the land in terms of the provisions of the Restitution of Land Rights Act 22 of 1994(“the Act”);

1.2 That the 1st and 2nd respondents, and all persons acting under its/their instructions, be ordered to stay all steps in connection with the development and leasing of the land, including any applications for land use rights and in terms of the National Environmental Management Act, pending the outcome of the applicant’s application for restitution of its rights in the land in terms of the provisions of the Act;

1.3 That this Court declare that the applicant community and its members have rights of access and use of the land, including grazing of livestock, gathering of firewood and visiting of grave sites, pending the outcome of the applicant’s application for restitution of its rights in the land in terms of the provision of the Act;

1.4 That the 1st and 2nd respondents, and all its community members and representatives be ordered to restore the applicant community’s access to the land pending the outcome of its application for restitution of its rights in the land in terms of the provisions of the Act;

1.5 That the 1st and 2nd respondents and all of its community members, be interdicted from interfering with the applicant community and its members exercise of their rights of access to and use of the land, including grazing of livestock, gathering of firewood and visiting of grave sites, pending the outcome of the applicant’s application for restitution of its rights in the land in terms of the provisions of the Act;

1.6 That the agreement, entered into pursuant to the provisions of the section 42D of the Act, concluded between the applicant and the 2nd respondent on or about 31 November 2002, be set aside;

1.7 That this Court, pursuant to the order provided for in paragraph 4 above, make any other order that it deems fit.

Background

[2] During 1996, a land claim was lodged on behalf of the second respondent for the restitution of rights of the Melorane land pursuant to the provisions of section 2 of the Act. An overlapping claim was lodged on behalf of the applicant around the same time. A mediation process was entered into which resulted in a settlement agreement being concluded between the Baphuting (applicant) Land Claims Committee and the Barokologadi (second respondent) Land Claims Committee. This resulted in a mediation settlement agreement (the agreement) between the two parties in 2002.[1]

[3] The agreement which is being challenged by the applicant, provided inter alia that:

“1. The parties will jointly pursue the claim on the land known as Melorane.

2. The Baphuting (the applicant) relinquish any separate claim or any right to claim independent of the claim submitted by the Barokologadi community.

3. The claim will be pursued by the central committee to ensure that the members of the parties will equally share in the benefits that will flow from the claim on Melorane.

4. The Barokologadi community (second respondent) recognizes the rights that the Baphuting had on the land and will strive to protect their interest in the pursuit of the claim.

5. The Baphuting will have two representatives on the Barokologadi Central committee.

6. The Baphuting will have the right to participate in all community meetings.

7. The benefits flowing from the claim will be discussed depending on what is offered to the Barokologadi community.”

[4] The land claim was successful and the properties that were the subject matter of the land claim were registered under the umbrella

of the Barokologadi Communal Property Association (the first respondent) in March 2007. The first respondent is a registered communal property association according to the provisions of the Communal Property Associations Act 28 of 1996 and its primary purpose is to own, manage and develop the various properties restored to the broader Barokologadi Community. The

membership of the first respondent includes the applicant and the second respondent who were disposed rights in the properties and their spouses and descendants of such persons (land claim beneficiaries).

[5] The first respondent began to develop the land for the benefit of the members of the first respondent. Such development is directly

contemplated in the Restitution Settlement Agreement, concluded in 2007[2]. Through their entitlement to membership of the first respondent, the members of the applicant are entitled to share in the benefits flowing from any such development.

[6] The following farms are the restored land, which together comprise an area known as Melorane (the land):

6.1 All the portions of Lotteringskop 115 KP (Sebele);

6.2 Eerstepoort 136KP (Eerstepoort);

6.3 Wolwehoek 135 KP (Wolwehoek);

6.4 Doornhoek 134 KP (Doornhoek);

6.5 tweedepoort 113 KP (Tweedepoort);

6.6 Rooderand 117 KP (Rooderand);

6.7 Genadendal 116 KP (Genadendal);

6.8 Leeuwenhoek 112 KP (Leeuwenhoek);

6.9 Mooiplats 94 KP (Mooiplats);

The applicant community members primarily reside in the Molatedi village, which is situated at a short distance from the Sebele farm.

[7] During the new window period for lodgement of claims, the applicant lodged its own restitution application on or about 30 June 2015 and such claim is still pending. In its restitution application, the applicant submits that its community was forcibly removed from the land and dispossessed of its right in land which occurred after 19 June 1913. The applicant contends that the applicant community was already settled on the land by the time the second respondent community arrived on the property. The applicant, a constituent part of the first respondent, has brought this application, not only to challenge the validity of the agreement concluded in 2002, but also to interdict any development on the claimed land.

[8] The First Respondent’s counsel raised two points in limine to this application, namely:

i. the impact of the Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others 2016(5) SA 635 (CC) (LAMOSA) case and

ii. undue delay to challenge the 2002 mediation settlement agreement.

The impact of LAMOSA

[9] It is common cause that the applicant’s claim is based on the June 2015 claim (the second claim) lodged over the restored

properties. This claim was lodged when the Restitution Act had been amended by the Restitution of Land Rights Amendment Act of 2014 and the process for the lodgement of claims had been extended to 2019. However, a few months thereafter, the Constitutional Court

delivered a judgment which froze the proceedings of an application or claim under the dispensation of the amendment.

[10] In LAMOSA, amendments to the Restitution Act that enabled claimants to lodge claims up to 2019 were challenged. The Court upheld the challenge and held that a just and equitable order would be to interdict the settlement and referral to the Land Claims Court of all new claims whether competing with the old claims or not. In particular, the Court held:

“In the face of the prospective order of invalidity, a question arises as to when and how the preserved new claims that compete with old claims will be considered. The effect of the prospective nature of the declaration of invalidity is to keep alive the contentious section 6(1)(g) of the Restitution Act insofar as the disposal of the old and preserved new claims is concerned. In terms of this section, the Commission must ensure that priority is given to old claims. This raises all the problems that the applicants are complaining about and brings about uncertainty that may be prejudicial to the claimants whose claims were lodged by 31 December 1998. Because the AA has been declared invalid in its entirety, I do not find it necessary to grapple with what exactly section 6(1)(9) means merely for purposes of how it should apply to old and preserved new claims. It seems to me that a just and equitable remedy is to interdict the settlement and referral to the Land Claims Court, of all new claims, whether competing with the old or not. Our wide remedial power under section 172(1)(b) of the Constitution permits us to do so. Even though the new claims have

been kept live, the reality is that the Restitution Act under which they were lodged has been found to be invalid. The interdict is consonant with this reality. In the face of the declaration of invalidity there cannot be much cause for complaint for keeping the new application in abeyance. Also, the question of how new claims should be dealt with whilst outstanding old claims is fraught with imponderables. It is best left to the legislative to resolve”.

[11] In Emakhaseni Community and Another v Minister of Rural Development and Land Reform and Others case number LCC01/2009, four Judges of this Court considered the meaning and implications of the LAMOSA judgment and the following order was made:

“1. No new claim lodged between 1 July 2014 and 28 July 2016 can be adjudicated upon or considered in any manner whatsoever by this Court in any proceedings for the restitution of rights in land in respect of old claims lodged before 31 December 1998;

2. New claimants who contest old claims lodged before 31 December 1998 may be admitted as interested parties solely to the extent that their participation may contribute to the establishment or rejection of the aforementioned old claims or in respect of any other issue the presiding judge may allow to be addressed in the interest of justice.”

[12] The legal position is clear. The applicant’s claim lodged in June 2015, clearly falls within the ambit of the LAMOSA interdict. It is one of the claims that may not be processed until and unless the legislature enacts the amendment to the Restitution

Act. The legislation that made it possible for people to lodge claims after 1998 has been declared invalid. This Court therefore, has no jurisdiction to entertain claims flowing from a statute that has been found to be unconstitutional. Therefore, the applicant’s

interdict can be dismissed on this point in limine alone.

Delay to challenge the 2002 settlement

[13] The applicant seeks to set aside the mediation settlement concluded between the applicant and the second respondent on or about 31 November 2002. The effect of the settlement agreement was that all communities will fall under the first respondent. The first

respondent’s counsel argues that although the agreement was reached in 2002, the applicant only challenges it in 2016, 14 years later. There is no application by the applicant for condonation for institution of the proceedings after such a lengthy time nor is there any explanation for the delay even though the issue of delay was pertinently raised by the first respondent in the answering affidavit.

[14] Applicant’s counsel incorrectly submitted that in South Africa, hard and fast rules/criteria do not exist for purposes of ascertaining the unreasonable delay and referred the Court to the European Court of Human Rights case law[3], wherein the various criteria in the assessment of an undue delay are listed as:

(a) the complexity of the case;

(b) the conduct of the applicant;

(c) the conduct of the relevant authorities;

(d) what is at stake for the applicant in the proceedings and

(e) the state of the proceedings.

I do not agree with the submissions made by the applicant’s counsel that this matter is a restitution claim and is complex as it relates to what occurred over 100 years ago. The application before me is not a restitution claim but an interdict and application to set aside a mediation settlement agreement.

[15] The rule against delay has always been part of the South African legal system. Its utility is explained by the Constitutional Court in Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC) at paragraph 11 wherein the Court stated the following:

“Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interest of justice. They protract the disputes over rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs, Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can urgently be taken.”

[16] I have carefully examined all the relevant circumstances in this case, including the period of delay, the applicant’s conduct in launching this application, what is at stake, not only for the applicant but also for the first and second respondents and as above-mentioned the state of the proceedings and I am satisfied that the delay herein is inordinate and undue. As such, it is not possible on equitable grounds to overlook the undue delay by the applicant. The delay is not only prejudicial to the respondents, it is also prejudicial to the interest of justice. On this ground, the application must be dismissed. Although the application can be dismissed on the two points in limine, I would like to deal with the merits of this application.

Ad Mediation Settlement Agreement

[17] The applicant contends that the agreement is not binding on both parties for the following reasons:

17.1 The signatory of the agreement, purportedly on behalf of the applicant was not authorised;

17.2 The agreement is void for vagueness;

17.3 It is unjust and inequitable for the first respondent to have acquired ownership over the land;

17.4 The agreement (ostensibly concluded pursuant to the provisions of section 42D (2) of the Act) does not contain the confirmation required in terms of Section 42D (2) of the Act.

17.5 If it is found to be a valid agreement, same has been terminated.

I shall now deal with these points ad seriatum:

Lack of authority and coercion

[18] Although the applicant concedes that the signatory of the agreement, the late Mr George Masimong was the applicant’s representative even in the mediation process, it is submitted that he was not authorised to enter into or conclude the agreement on behalf of the applicant as there was no resolution taken by the applicant community to authorise him to sign the agreement. It is further alleged that Mr Masimong was threatened and coerced or intimidated by members of the second respondent and the fourth respondent to sign the agreement.

[19] The mediation process concluded in November 2002 was facilitated by an independent mediation team chaired by Ms Zuki Tshiqi (currently a Supreme Court of Appeal Judge). Counsel for the first respondent argued that should there have been any intimidation and/or coercion, the applicant’s representative would have alerted the mediator. Furthermore, the agreement only became effective after it was certified in terms of section 14(3) of the Act, four (4) years after the agreement was concluded. Respondent’s counsel further argued that the applicant participated in the other processes that followed after the conclusion of the agreement and acted in terms of the subsequent Restitution Settlement Agreement concluded in 2007.

[20] I have noted that there is no confirmatory affidavit from the late Mr Masimong to confirm the applicant’s version as due to the delay, the witness s no longer available to testify and the applicant attempts to introduce a “new” version of what Mr Masimang would contend. On the facts before me I am not satisfied that the signatory lacked the authority to sign nor that was he intimidated to sign the agreement.

Void for vagueness

[21] Applicant contends that the provision of the agreement to the effect that “The benefits flowing from the claim will be discussed depending on what is offered to the Barokologadi community”, renders the agreement void for vagueness as the nature and extent of the benefits which are to accrue to the applicant community have not been agreed upon.

[22] I do not agree with the applicant’s contention. The mediation settlement agreement merely contained an agreement by the Land Claim Committees of the applicant and the second respondent regarding how the claim should be processed and finalised. The claim was finalised in accordance with this settlement agreement and as part of the settlement, the first respondent was created. I do not find any vagueness in the agreement. In my opinion, the primary purpose of the agreement was to establish a vehicle (first respondent) through which the applicant and the second respondent would receive the land claimed.

Unjust and inequitable nature of the agreement

[23] It is the applicant’s submission that no legal justification exists for the second respondent’s claim to have been

successful, as the second respondent community found the applicant community on the land when they occupied the land during 1870 and was allowed by the applicant to reside on the land. It is further argued that had the rights been fully and properly investigated, the seventh respondent would not have accepted the agreement.

[24] In essence, the applicant requires this Court to perform functions of the Commission (fourth and fifth respondents) and to determine the validity of the claim. The Act is very clear and requires the Commissioner to satisfy himself or herself that the claim was lodged in a prescribed manner, that the claim is not precluded by the provisions of section 20 of the Act, and that the claim is not frivolous or vexatious. The applicant’s reasoning on this point has no merit, and this Court has no powers to determine the applicant’s claim.

Non-compliance with section 42D (2) of the Act

[25] It is contended by the applicant that although the agreement was concluded pursuant to the provisions of section 42D of the Act, the agreement is materially lacking in confirming the rights of all the members of the community to have access to the land or compensation, does not identify the person or entity who will hold the land on behalf of the community nor does it indicate nor ensure the manner of accountability of the first respondent (or any person who holds the land on behalf of the community). The agreement therefore it is argued, does not contain the required peremptory requirements of section 42D (2).

[26] In my view, there is no merit on this submission. The Restitution Settlement Agreement entered into between the Department of Land Affairs, the first respondent and various organs of State was concluded in terms of section 42D and contains all requirements of this section. The Mediation Settlement Agreement on the other hand, was not required to comply with this section but rather with section 13 of the Act.

Agreement terminated due to repudiation

[27] Applicant’s counsel submitted that should the Court find that the agreement is valid, the first and second respondents have repudiated same by not allowing the applicant to receive any benefits from the successful restitution claim. It is alleged that the applicant has been denied access to the land for purpose of grazing, visiting grave sites and that some of the applicant community members have been intimidated, harassed and threatened when visiting the grave sites and this repudiated the agreement. It was submitted that the said repudiation has been accepted by the applicant and as a consequence, the agreement has been lawfully terminated.

[28] Counsel for the first respondent denies both the repudiation and that the applicant has been denied access to the land for purposes of visiting burial and other heritage sits. It was further submitted by the first respondent’s counsel that currently there is no one having access to Sebele for grazing purposes. Sebele has always been earmarked for eco-tourism use, which is consistent with the use of the property before restitution. This argument clearly shows that there are material disputes of facts which would be a ground for the dismissal of the application. The test for repudiation is not subjective, but is objective. Repudiation is accordingly not a matter of intention, it is a matter of perception[4] . It therefore goes without saying that the applicant bears the onus of proof that there was repudiation. In Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SCA) at 287 at para 18 the Court stated that the conduct from which an inference of repudiation is to be drawn, must be “clearcut and

unequivocal”, which in my view is not the case in this matter.

Ad interdict

[29] In addition to the declaratory relief, the applicant seeks to interdict the first and second respondents from developing and

leasing the land including any applications for land use rights. Applicant submits that the first and second respondents are in the process of developing the land, and more especially, the Sebele farm for purposes of establishing inter alia, game breeding and tourism facilities.

[30] Applicant further submits that the first respondent has further, with the assistance of Standford Holdings, prepared a business plan for a development which includes general commercial farming, rare species game farming and extensive leisure projects including lodges and conferences centres. The first respondent has further, with the assistance of Stanford Holdings, prepared a business plan for a development which includes, general commercial farming and extensive leisure projects including lodges and conference centres. The first respondent has further made an application in terms of the National Environmental Management Act 107 of 1998 for authorisation to clear indigenous vegetation for the purpose of constructing tourist accommodation. An agreement has also been

concluded with the sixth respondent for portions of the land to be incorporated into Madikwe game reserve. The applicant contends that this will reduce the area of land available to the applicant community from any form of access or benefit to the land.

[31] Counsel for the applicant argued that should the development continue, the purpose of the applicant lodging its restitution claim will be defeated as the applicant community would be completely prevented from any kind of access or benefit to the land. It is further argued that if the development continues, the applicant would be vested with a token ownership over the land but still subject to the dictates of the lessee and/or other parties and will not be able to utilize the land as per desires of the community.

[32] The first respondents, in its answering affidavit submit that the applicant has not established or demonstrated a “reasonable

belief” that the development of the first respondent’s properties is contrary to the objectives of the Act. This is a mandatory requirement for granting an interdict sought in terms of section 6(3) of the Act. It is further submitted that the activities currently taking place on the properties (land) were specifically contemplated throughout the claim lodged in 1996 and settled in 2007. Respondent’s counsel contends that the ongoing developments can never defeat the objectives of the Act, and stopping such developments would be contrary to those objectives. I agree with this submissions.

[33] Finally, prior to the hearing of this application, an order was granted by this Court on 10 February 2017 by Acting Judge Canca in terms of which the third, fourth and fifth respondents were directed to consider any possible settlement solutions including by way of mediation, to the issues in the pleadings before this Court. The report was only provided to the Court and both parties on the date of the hearing of this application, being 26 April 2017. I requested both parties to consider the contents of the report and to supplement their heads of argument if necessary.

[34] The report by the Chief Director, Office of the Chief Land Claims Commissioner dated 10 March 2017 inter alia stated that:

“8.2. On 8 March 2017, a meeting was held between the two communities, in order to find an amicable solution. During the meeting it transpired that there was no intention of settling this dispute, despite the fact that both communities have signed a settlement agreement before; specifically Baphuting Bo Seleka community are disputing the validity of the settlement agreement alternatively they refusing (sic) to work with Barokologadi Communal Property Association.

8.3 The Commission is always willing to assist in order to acquire alternative land (alternative redress – just and equitable redress) once a determination of a right in land that has been lost by Baphuting has been established, in the new window period. However, during the meeting it materialised that Baphuting were not interested in accepting alternative land even if land could be made available.”

[35] The recommendations by the Commission are that further research be conducted in order to establish the lost rights in land of the applicant, alternatively that the applicant must await the compliance of the LAMOSA judgment in order for their new claim to be investigated.

[36] In my opinion, the recommendation in the report that further research be conducted in order to establish the lost rights in land of the applicant is not competent in law. Any dispute relating to the new claim is not capable of adjudication by this Court or by the Land Claims Commissioner as the Commissioner is interdicted form investigating or processing the claims lodged after 01 July 2014 (LAMOSA judgement). Although the new claims were not declared to be invalid, they have been held in abeyance pending any legislative process.

[37] I am satisfied that the restitution settlement agreement concluded in 2007 was that all communities would henceforth fall under the Communal Property Association (the first respondent). The value of the Communal Property Associations particularly in land disputes was noted by the Constitutional Court in Bakgatla ba Kgafela Communal Association v Bakgata ba Kgafela Tribal Authority and Others[5].

“There can be no doubt that these principles safeguard the interest of members of traditional communities and empower them to participate in the management of communal property. The creation of an association introduces participatory democracy in the affairs of traditional communities. All members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community.”

[38] While communal property association must function through the democratic ethos, it is ironically those very same ethos that could alienate some other members of the association, which seems to have occurred in this case. Years after the agreements were reached, the applicant seems to take a different view to that of the majority represented by the first respondent. The report by the third, fourth and fifth respondents clearly indicates that the applicant is refusing to work with the first respondent and that the second respondent is willing to share any benefits derived from the land with the applicant. This in my view should not be permitted as this conflicts with the aims and objectives of the restitution of land to communities through democratic and participative structure. Such situations if allowed, ultimately leads to disintegration, multiplicity of claims and would unfortunately undermine the true benefits of land reform.

[39] In the circumstances, the following order is made:

1. The application is dismissed with no order as to costs.

_________________

Judge D.S Molefe

Judge of the Land Claims Court

APPERANCES:

Counsel for the Applicant: Adv S Guldenpfinnig

Instructed by: Van Velden Duffy Incorporated

Counsel for the Respondents: T Ngcukaitobi

Instructed by: Bowman Gilfillan Attorneys

[1] Record page 53 Annexure “BAP2”

[2] Record papers 246 – 269 annexure TZ6

[3] Undue delay in case law of the European Court of Human Rights, Varicak Marica v Croatio Osiquranje, November 2011 by Els Dinjens

and Warda Henning

[4] B Braun Medical (Pty) Ltd v Ambsaam 2015(3) SA 22

[5] 2015 (6) SA (CC) at paragraph 29