Bhana N.O. and Another v Gihwala and Others (LCC 07/2012) [2014] ZALCC 18 (4 July 2014)

Bhana N.O. and Another v Gihwala and Others (LCC 07/2012) [2014] ZALCC 18 (4 July 2014)

The court found that the application was brought within the 180-day period prescribed by PAJA, as the applicants only became aware of the administrative action when notified of the registration of transfer in favour of the first respondent. The will of Mrs Jelli Bhana, which bequeathed her entire estate to the second applicant, was sufficiently broad to include the right to restitution, and section 2(3)(a) of the RLRA does not require express reference to the land claim. The purported cession of the land claim to the first respondent was invalid, as land claims are personal and not capable of cession. The administrative decisions to transfer the property to the first respondent were made...

Citation
[2014] ZALCC 18
Parties
Applicant: Bharat Kumar Bhana N.O.; Applicant: Bharat Kumar Bhana; Respondent: Dipak Gihwala; Respondent: Registrar of Deeds; Respondent: Chief Land Claims Commissioner; Respondent: Minister of Land Affairs; Respondent: Master of the High Court (Deceased Estates); Respondent: City of Tshwane; Respondent: Manoo Gihwala
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
4 July 2014
Case Number
LCC 07/2012
Procedural Posture
Review Application / Judgment After Hearing on Merits
Outcome
Application granted. Administrative decisions awarding and transferring the property to the first respondent are reviewed and set aside. The property is awarded to the first applicant as full owner. Costs awarded against the first respondent.
Judges
Canca
Legal Topics
Restitution of Land Rights Act, Review of Administrative Action, Succession and Land Claims, Group Areas Act Dispossession, Locus Standi, Time Bar Under Paja
Land and Property Administrative Law Restitution of Land Rights Act Review of Administrative Action Succession and Land Claims Group Areas Act Dispossession Locus Standi Time Bar Under Paja

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Parties

Bharat Kumar Bhana N.O.

Applicant

Bharat Kumar Bhana

Applicant

Dipak Gihwala

Respondent

Registrar of Deeds

Respondent

Chief Land Claims Commissioner

Respondent

Minister of Land Affairs

Respondent

Master of the High Court (Deceased Estates)

Respondent

City of Tshwane

Respondent

Manoo Gihwala

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the applicants are time barred from bringing the review application under PAJA.
  2. 2 Whether the will of Mrs Jelli Bhana validly disposed of the right to restitution under section 2(3)(a) of the RLRA.
  3. 3 Whether the purported cession of the land claim to the first respondent was valid.

Ratio Decidendi

The court found that the application was brought within the 180-day period prescribed by PAJA, as the applicants only became aware of the administrative action when notified of the registration of transfer in favour of the first respondent. The will of Mrs Jelli Bhana, which bequeathed her entire estate to the second applicant, was sufficiently broad to include the right to restitution, and section 2(3)(a) of the RLRA does not require express reference to the land claim. The purported cession of the land claim to the first respondent was invalid, as land claims are personal and not capable of cession. The administrative decisions to transfer the property to the first respondent were made...

Court Disposition

Application granted. Administrative decisions awarding and transferring the property to the first respondent are reviewed and set aside. The property is awarded to the first applicant as full owner. Costs awarded against the first respondent.

Orders

  • The decisions of the third, fourth and/or sixth respondents and/or their officers or officials to award, nominate, and transfer Erf 394 Marabastad, Pretoria to the first respondent are reviewed and set aside.
  • The Deed of Transfer T70900/2011, transferring Erf 394 Marabastad, Pretoria to the first respondent, is set aside and cancelled.