BO Woodburn Family Trust v Minister of Agriculture, Land Reform and Rural Development and Others (LCC81/2024) [2024] ZALCC 42 (13 December 2024)

IN THE LAND COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NUMBER: LCC81/2024

BEFORE THE HONOURABLE FLATELA J

Heard on: 10 October 2024

Delivered on: 13 December 2024

In the matter between:

THE BO WOODBURN FAMILY TRUST Applicant and THE MINISTER OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT First Respondent THE REGIONAL LAND CLAIMS COMMISSIONER: KWAZULU-NATAL PROVINCE Second Respondent MADZIKANE COMMUNITY Third Respondent

ORDER

The following order is made:

1. Pending finalisation of case number LCC 23/2023,the first and second respondents, are interdicted from taking any further steps to degazette the land claim of the third respondent in respect of the properties as gazetted by Government Gazette Notice No. 836/2007,published in the Government Gazette on 13 July 2007.

2. There is no order as to costs.

JUDGMENT

FLATELA J

Introduction

[1] The Applicant, Bo Woodburn Family Trust, approached this court on an urgent basis to seek interim interdictory relief against the First and Second Respondents pending finalisation of case number LCC 23/2023 ( the main proceedings). The interim interdict sought to prevent the First and Second Respondents from taking any steps to de-gazette the land claim lodged on behalf of the Third Respondent in respect of the Applicant’s property described as Portion 1 of the Farm Cromwell No. 2 No. 4544 in extent 158,4091 hectares held under title deed T22625/1994 (‘the applicant’s property’). The Applicant also seeks punitive costs against the State Respondents.

[2] The Third Respondent’s land claim against the applicant’s property was published in Government Gazette No. 836/2007 on 13 July 2007. Notwithstanding the publication of the Third Respondent’s land claim over 17 years ago, the First and Second Respondent (‘the State Respondents’) did not acquire the Applicant’s properties. The State’s reason for not administratively settling the Third Respondent's land claim is that it was consolidated with two other land claims, and thereafter, the claim was settled in 2013. Inkosi Msekezi Zulu disputes the State’s version on behalf of the Third Respondent.

[3] On the 06 March 2023, the Applicant instituted the main proceedings, seeking inter alia orders compelling the First and Second Respondent to acquire its properties, namely,

i.Potion 1 of the Farm Cromwell No. 2 No. 4544 in extent of 158, 4091 hectares held under Title Deedd T22625/1994;

ii.Remainder of the Farm Lot XX No. 8211, Registration No ET, measuring 154, 7704 hectares; and

iii.The Farm Lot LK 9393, Registration Division ET, measuring 160, 7898 hectares (collectively known as “Finchley” for the restoration of the Third Respondent’s claim in terms of the Restitution of Land Rights Act 22 of 1994 (‘The Restitution Act’). The matter is pending before this Court.

[4] Inkosi Msekezi Zulu, on behalf of the Third Respondent, supports the relief sought in the main application.

[5] The Second Respondent, on behalf of the State, opposes the main application and has delivered an answering affidavit filed on 22 June 2023. In the answering affidavit, the Second Respondent inter alia contend that––

a. The Applicant rejected the State’s Respondents’ offer to purchase the Applicant’s properties;

b. The Third Respondent’s claim was fully settled in 2013, and no further properties would be acquired; and

c. Acquiring and restoring the unclaimed land to the Third Respondent would result in overcompensation. As a result, Mr Ndlovu, on behalf of the State Respondents, submitted that the State was in the process of degazetting the Third Respondent’s claim.

[6] The Applicant and the Third Respondent are disputing the settlement of the claims in the main proceedings. They contend that they were under bona fide impression and belief that the Applicant’s properties would also be acquired. The issue regarding the settlement of the Third

Respondent’s claim is pending before this court. The Applicant further contends that the withdrawal of the 13 July 2007 publication

would render the main application nugatory or obsolete.

[7] The Applicant contends that on 15 April 2024, a “without prejudice” meeting was called by the Applicant between the parties and their legal representatives to discuss the matter to avoid further litigation. It was during that meeting that Mr. Ndlovu, the Head of Legal in the office of the Second Respondent, threatened that the First and Second Respondents would immediately degazette the Third Respondent’s claim.

[8] As a result, the Applicant then sought an undertaking from the First and Second Respondents’ attorneys that the First and Second Respondents would not take any action to withdraw the publication of the Third Respondent’s land claim, pending the main proceedings. The State Respondents’ attorneys advised the Applicant’s attorneys that no decision had been made and that they would inform them when the decision had been made. This response from State Respondents triggered the urgent application

issued on 13 May 2024.

[9] On 15 May 2024, after having perused the application, I was satisfied that the allegations, if established, rendered the matter urgent and justified the relief sought in terms of the Notice of Motion. I thereafter issued directions in terms of Rule 34(3)(b) of the Rules of this Court relating to the service of pleadings, the time limits for delivery of answering and replying affidavits, the time, date and venue or venues for the hearing. The matter was set down on 25 July 2024.

[10] The matter did not proceed on the scheduled date due to non-compliance with the directives. The matter was finally heard on 10 October 2024.

[11] The Respondents are opposed to the application. The State Respondents raised a point in limine relating to the urgency of the application and the disclosure of a “without prejudice” meeting.

[12] Regarding urgency, the State Respondents deny that this matter is urgent. They contend that the Applicant has failed to state the circumstances that render the matter urgent and the reason why substantial redress could not be afforded by a hearing in due course.

[13] The State Respondents contend that no decision has been made regarding degazetting the Third Respondent’s claim. The State Respondents aver that the Applicant is well aware that pursuant to the launching of the main proceedings, the Second Respondent instructed various experts to assist him in assessing the issue of overcompensation and that the issue of degazetting of the Third Respondent’s claim will depend on the experts' opinions.

[14] The Applicant contends that the matter is urgent as the State Respondent’s action by taking actions to degazette the Third Respondent’s Claim is aimed at depriving them of the right in terms of section 34 of the Constitution and the remedies that they may have in future do not provide them substantial relief.

[15] It is now opportune to describe the parties, the Factual background, the issues, the parties' summary of submissions, and the legal framework. I will then apply the law to the facts.

The Parties

[16] The Applicant is the Bo Woodburn Family Trust, a Trust registered in terms of Section 6(1) of the Trust Property Control Act 57 of 1988 with Registration NO: IT 2716/1994/PM.

[17] The First Respondent is the Minister of Agricultural, Land Reform and Rural Development, in his official capacity, and is responsible for the implementation of the provisions of the Restitution Act. The Second Respondent is the Regional Land Claims Commissioner Kwazulu-Natal in his official capacity as such and in terms of the provisions of the Restitution Act.

[18] The Third Respondent is the Madzikane Community, a claimant community as envisaged by the provisions of the Restitution Act.

Factual Background

[19] Akin to many other land restitution claims, this matter has a protracted history. The claim on behalf of the Third Respondent was lodged on 31 December 1998 with respect to various properties in the magisterial district of Ixopo, Kwa-Zulu Natal. The Applicant’s property was part of the properties that were claimed. The claim was accepted as prima facie valid by the Second Respondent. Notice no 836 of 2007 was thereafter published in the Government Gazette on 13 July 2007.

[20] Subsequent to the publication, the Second Respondent entered into various negotiations with different owners regarding the acquisition of their land for the purpose of restoring it to the Third Respondent. Various properties were acquired on behalf of the Third Respondent, but as stated earlier, the Applicant’s properties were not acquired by the State.

[21] The State has provided some reasons why the Applicant’s properties were not acquired. In their answering affidavit, the State Respondents disputed that Chief Msekezi Zulu instituted the claim on behalf of the Third Respondent instead, the following is stated:

a. On 17 July 1995, BhekamaBhaca David Zulu lodged the claim on behalf of the Third Respondent with the Land Claims Commission Kwa-Zulu Natal.

b. Further claims with respect to the same land were lodged in 1998 by Dlatipi Zulu and Mayihlome Zulu.

c. All three claims on behalf of the Third Respondent were consolidated into one claim. Subsequently, the Department of Agriculture and Rural Development acquired properties for the purpose of settling the Third Respondent’s claim in terms of Section 42 D read with Section 33 of the Restitution Act, thus, the claim was finalized/settled with the claimant community in 2013.

[22] The State Respondents contends further that during the negotiations, the Applicant, represented by two brothers, did not agree to sell the properties at the time. During the year 2008, the Applicant’s properties were evaluated and offers made by the State were rejected. The state avers those other landowners accepted offers, and the State acquired their properties. The acquired properties were restored in two phases between the period of 2012 and 2013 in full and final settlement of the claim. It was only on 25 March 2022, approximately 10 years after the Third Respondent’s claim was finalised, that the Applicant called a meeting with the

Department to discuss the sale of their properties. At this meeting, the Applicant’s representative informed the representatives of the State Respondents that the Applicant was now willing to sell all three properties.

[23] The State Respondents contend further that the Applicant was aware that pursuant to the launching of the main application, the Second Respondent instructed the State Attorney to appoint various experts to assist him in assessing the issue of overcompensation, as stated in the answering affidavit. A decision to degazette the Third Respondent’s claim will depend upon the opinion of experts, and in the event a decision is taken to proceed with degazetting, the Applicant will be given an opportunity to engage with the opinion before the decision is taken. The Applicant has stated that when such a decision is made, the State Respondents should inform them so that they bring an urgent application to prevent degazetting.

Issue

[24] The issue to be determined is whether the Applicant has fulfilled the requirements of an interim interdict to prevent the degazetting of the Third Respondent’s property.

The Applicant’s submissions

[25] The Applicant contends that the Trust and the other landowners whose properties were claimed formed a group of landowners as they were prepared without prejudice to their rights to discuss the voluntary acquisition of the farms for the Third Respondent for the benefit of the local economy and to ensure that farming remains sustainable in the greater area. Various meetings were held between the officials of the Second Respondent (RLCC) and the land owners. During those meetings, the land owners were advised that if one farm was claimed and another of the same farmer was not, the RLCC could consider buying both farms if such farms are, for any reason, dependent on each other for functionality.

[26] The Applicant contends further that the landowners were advised that if they were not satisfied with the valuation done by the State Respondents, they were entitled to obtain their valuation to compare with the valuation of the RLCC. The farms will be acquired by fair market-related property valuations, after which the landowners can decide whether to settle the claim or not.

[27] The Applicant contends that the farms were valued, and certain farms were acquired for the benefit of the Third Respondent. The Applicant’s farms were not acquired. It contends that it was at all material times under the impression that the State Respondents would also acquire Finchley properties for restoration to the Third Respondent.

[28] The Applicant averred that the State Respondents had been dragging the Applicant for years until the Applicant approached its current attorneys of record for legal advice. In March 2023, the Applicant instituted the main proceedings in which it seeks orders compelling the State to acquire Finchley in terms of the Restitution Act for the benefit of the Third Respondent and further procedural orders dealing with such acquisition.

[29] The Applicant contends further that upon receiving the State Respondent’s opposing affidavit filed on 23 June 2022, it learned for the first time that the Third Respondent's claim was settled fully and finally in 2013 and that the State Respondents do not intend to acquire any further land for the Third Respondent. In their answering affidavit, the First and Second Respondents alluded to the fact that due to such a final settlement, the claim would be degazetted.

[30] It is apposite to record that the decision to halt further acquisition of land was strange considering that the State Respondents claim to be awaiting expert opinions from valuers.

[31] The Applicant and the Third Respondent are disputing the settlement of the claims. The Chief requested that a meeting be organised with all the parties so the matter could be discussed to avoid further litigation. The meeting took place on 15 April 2024; the matter was not settled. It is at this meeting that the State Respondents, through Mr Ndlovu, indicated that the State Respondents would immediately degazette the claim. The Applicant’s legal representatives indicated that should the State Respondents elect to follow the procedure in terms of Section 11A(2) of the Restitution Act, the Applicant would obtain an interdict against the State Respondents. The Applicant indicated that it would seek such an interdict in view of the fact that there is a pending matter before this Court in which there is a fundamental factual dispute not only between the Applicant and State Respondents but also between the claimants (Third Respondent) and the State Respondents as to whether the claim has been finally settled. The Applicant stated that it was of the view that the degazetting of the land claim can only be seen as malicious.

[32] An undertaking was sought from the State Respondents that they would not proceed with the degazetting of the properties until the main proceedings had been finalised, failing which the interdict would be sought. The State Attorney, on behalf of the State Respondents, informed the Applicant that a decision to degazette the claim had not yet been made. The Respondents undertook to inform the Applicant once the decision was made. This indicates that there is a possibility that such a decision would be made. The State Respondents did not say that it would not be made.

Point in limine raised by the State Respondents

[33] The State Respondents raised a point in limine regarding the urgency of the application and the disclosure of " without prejudice” meeting discussions.

[34] On urgency, the State Respondents deny that this matter is urgent on the basis of a failure by the Applicant to state the circumstances that render the matter urgent, that the Applicant has failed to show why substantial redress could not be afforded by a hearing in due course.

[35] Mr. Ndlovu, on behalf of the Second Respondent, avers that the issue of the withdrawal of the claim was addressed in paragraph 21 of the Second Respondent’s answering Affidavit dated 23 June 2022, wherein the Applicant was informed that the Second Respondent was “now” in the process of degazetting/withdrawing the Third Respondent’s claim as it had been settled in the above phases.

[36] The State Respondents contended that the Third Respondent's claim was consolidated with two other claims that were lodged on behalf of the Third Respondent by Chief BhekamaBhaca David Zulu and Dlatipi Mayihlome Zulu.

[37] On 21 June 2023, the Second Respondent was served with the Applicant’s Rule 35 (12) and (14) notice.

[38] On 12 December 2023, the Second Respondent delivered his response to the Notice together with an affidavit dealing with the document that could not be traced.

[39] On 26 January 2024, the Applicant delivered a further Rule 35(12) and (14) Notice.

[40] On 7 March 2024, the Second Respondent delivered his response to the Applicant’s notice together with the affidavit dealing with the documents that could not be traced.

[41] On 15 April 2024, the parties held a meeting to discuss the matter on a “without prejudice” basis. The State Respondents aver that the Applicant’s legal team requested an undertaking to be informed as soon as the decision to withdraw the Third Respondent’s claim is taken. As soon as they are informed, they will bring an urgent application to prevent the withdrawal of the Third Respondent’s claim.

[42] The State Respondents aver further that in a meeting held on 15 April 2024, the Applicant was informed that no decision was made to degazette the Third Respondent’s claim. The State Respondents undertook to inform the Applicant as soon as the decision was taken to withdraw the claim on 26 May 2024. The State Respondents are waiting for the report from the experts regarding overcompensation; thus, the Applicant has not laid a foundation for seeking an interdict.

[43] It was further submitted on behalf of the State Respondents that this application is based on what transpired in the without prejudice meeting, which was held on April 15, 2024. The negotiations undertaken to settle the disputes are privileged from disclosure. The Respondents did not consent to disclosure of the discussion between the parties, and therefore, the matter ought to be dismissed on these grounds alone.

[44] I now turn to deal with the first point in limine raised by the Respondents on urgency. In this court, the urgent applications are governed by Rule 34, which provides as follows:

URGENT APPLICATIONS

(1) In urgent applications, the Court may—

(a) dispense with any provision of these Rules, including those which prescribe the forms, service requirements and time limits for applications; and

(b) dispose of the matter at a time and place and in a manner and in accordance with a procedure (which must, as far as practicable, be in accordance with these Rules) as it considers just.

(2) The applicant must set out in his or her founding affidavit the circumstances which he or she avers render the matter urgent and the reasons why he or she cannot obtain substantial redress at a hearing in due course.

[45] Dealing with the requirement of urgency in Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership[1], the Supreme Court of Appeal, expressed as follows:

‘… Urgency is a reason that may justify deviation from the times and forms the Rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief.’

[46] The Applicant contends that its rights in terms of section 34 of the Constitution in the main application are threatened by the conduct of the State Respondents in that to commence or to continue with a process to degazette the claim, the State Respondents would effectively remove the cause of action of the Applicant in the main proceedings, thereby depriving the Applicant of the right to have the dispute that can be resolved by application of law decided in a fair public hearing.

[47] Simply put, the Applicant avers that once the claim is degazetted, there will be no claim on behalf of the Third Respondent; thus, the conduct of the RLCC by degazetting the claim will nullify its main proceedings, which constitutes prejudice and affects their rights in terms of section 34 of the Constitution.

[48] The Applicant contends that after filing the main proceedings, they thought the Respondents would suspend the process of degazetting the claim pending the finalisation of the main proceedings. It thus came as a shock to the Applicant that the State Respondents were still considering degazetting the claim. Hence, the Applicant sought an undertaking from the State Respondents.

[49] The Applicant contends that by continuing with the process of degazetting, the State Respondents are enjoined in terms of section 165 (4) of the Constitution to assist and protect the court through legislative and other measures to ensure the independence,

impartiality, dignity, accessibility and effectiveness of the courts.

[50] The Applicant contends that the constitutional obligations of the State Respondents would include matters instituted and already pending. These matters should, in terms of section 34 of the Constitution, be permitted to continue until the conclusion of the court process. The Applicant contends that to commence the process of degazetting the claim while the matter is still pending would be contrary to the obligations of the Respondents in terms of section 164(4) of the Constitution.

[51] Mr Ndlovu disputes that he threatened to degazette the Third Respondent’s claim immediately during the meeting of 15 April 2024. The State Respondents aver that the Applicant was told that no decision was made to degazette the claim and the Applicant would be informed immediately after the decision to proceed in terms of section 11 A (2) of the Restitution Act had been made.

[52] It was submitted on behalf of the State Respondents that a claim cannot be withdrawn immediately without first notifying and affording interested parties a right to make representations. This would, however, only take effect after a decision to degazette has been made. Interested and affected parties would, so, contend the State Respondents have a right to make representations as to why the claim should not be withdrawn in terms of section 11A (2) of the Restitution Act.

[53] It was further submitted on behalf of the State Respondents that, in any event, the Applicant has other remedies available to it. In the event the Second Respondent decides to withdraw the claim, the Applicant can bring the review proceedings to set aside the decision.

[54] On the other hand, the Applicant contends that the right to representations afforded by section 11A (2) of the Restitution Act would not be an adequate remedy to protect the rights of the Third Respondent in that:

[55] A decision must be taken either to withdraw or to amend a gazette notice in terms of sections 11 (2) and (4) after that notice is published to notify the parties of the decision, calling upon the affected party to show cause to the contrary to the satisfaction of the Second Respondent.

[56] The Applicant contends that the onus is placed on the Applicant and the Third Respondent to convince the Second Respondent that the claim should not be amended or withdrawn after the Second Respondent has effectively decided that it should be withdrawn or amended. This process constitutes prejudice in that their rights in terms of section 34 of the Constitution would be nullified through the conduct of the RLCC.

[57] Furthermore, the Applicant contends that the actions of the State Respondents of attempting after 10 years of the settlement claim and only after the institution of the main proceedings to enforce its rights in terms of section 11 A (2) of the Restitution Act would result in removing the Applicant’s cause of action.

[58] The Applicant conceded that a Review is the only remedy available after the decision to degazette. Still, it would be expensive and prolonged, which would not effectively ensure the same protection as an interdict.

Discussion

[59] Dealing with legal principles regarding urgency, Pullinger AJ in Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others[2], expressed himself as follows in paragraph 21:

‘It must be apparent, therefore, that the right to approach the Court for urgent relief is inextricably tied to a litigant's rights under section 34 of the Constitution. In Chief Lesapo,[3] The Constitutional Court said: "[a]n important purpose of s 34 is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law…"[4]

and

"… s 34 and the access to courts it guarantees for the adjudication of disputes are a manifestation of a deeper principle; one that underlies our democratic order."[5]

[60] Having considered the Applicant's contention that the main application is pending and that a decision to degazette would denude its cause of action of practicality and infringe its right as contained in section 34 of the Constitution, I am of the considered view that it is just that the matter be heard on an urgent basis in the interest of justice and to facilitate a just and speedy resolution of land restitution matters, which takes a number of years for them to be resolved. A case in point is this matter, the claim was lodged in 1998. Still, it has not been completely resolved. Therefore, I find that this matter is urgent.

[61] The second point in limine is that this application is based on “without prejudice” negotiations, which are privileged from disclosure.

[62] The legal principles on this subject were neatly summarised in Naidoo v Marine Trade Insurance Co Ltd[6], where the Court said:

‘The bona fides of the parties in that regard was not questioned. At first blush, therefore it would appear that, in accordance with the general; “without prejudice” rule such correspondence, once respondent objected to its being adduced in evidence, was wholly inadmissible. The rationale of the rule is public policy: parties to disputes are to be encouraged to avoid litigation and expenses (nowadays very high), delays, hostility, and inconvenience it usually entails, by resolving their differences amicably in full and frank discussions without fear that, if the negotiations fail, any admissions made by them during

such discussions will be used against them in ensuing litigation. (Kapeller v Rondalia Versekeringskorporasie van Suid Afrika Bpk 1964 (4) 722 (T) at 728 F-G, Scmidt Bewysreg at 420; Hoffman SA Law of Evidence 2nd ed at 155; Vaver at 94.)’

[63] In ABSA Bank Ltd v Hammerle Group[7], the Court said:

‘It is true that as a general rule, negotiations between parties which are undertaken with a view to settlement of their disputes are privileged from disclosure. This is regardless of whether or not the negotiations have been stipulated to be on a “without

prejudice”. However, there are exception to this rule. One of these exceptions is that an offer made, even on a without prejudice

basis, is admissible in evidence as an act of insolvency. Where a party therefore concedes insolvency, as the respondent did in this case, public policy dictates that such admissions of insolvency should not be precluded from sequestration or winding up proceedings, even if made on a privileged occasion. The reason for the exception is that liquidation or insolvency proceedings are a matter which by its very nature involves the public interest.’[8]

[64] The difficulty facing the State Respondents is that in their answering affidavit, the Respondents referred the court to a letter from the Applicant’s attorneys dated 18 April 2024, which records the discussion between the parties. The relevant part records the following:

a. The conference was arranged to grant Inkosi Zulu the opportunity to address some of the aspects raised by Mr. Ndlovu in the answering affidavit, such as the effect of the contention that the Third Respondent’s claim has been fully settled and that Inkosi Zulu indicated that the Third Respondent considered the matter finalised.

b. Mr. Ndlovu stated that the stance of the Second Respondent is that the Third Respondent has been adequately compensated and that any further land awarded to the community will result in overcompensation. He indicated that the Second Respondent would proceed to degazette the Applicant’s properties and that it was, at the time, in the process of doing so.

c. After deliberations in this regard, it was agreed that in the event of the Second Respondent taking a decision to degazette the Applicant properties and the claim of the Third Respondent, such intention to degazette shall first be communicated by Ms. Msani to Mr. Van der Merve well in advance of the publication of any notice in terms of the provisions of section 11(A)(2) or (3) of the Restitution Act. This would be done to ensure that the Applicant will be in a position to apply for an interdict to prevent

such publication. All communication between the Second Respondent and the Applicant is to be done through the offices of the State Attorney and Messrs. Cox and Partners in this regard.

d. It was then agreed that the State Attorney would, by no later than 26 April 2024, inform Messrs. Cox and partners in writing whether or not the Second Respondent will proceed with its intention to degazette the claim. Should she need more time to take instructions, she would be at liberty to contact Mr. Van Der Merve to make reasonable arrangements in this regard. The Applicant would not unreasonably refuse an indulgence as long as the parties remain committed to a reasonable time frame within which to take instructions and to make decisions that will impact the pending litigation.

[65] I agree with the Applicant that the Respondents waived the “without prejudice” privilege in their answering affidavit when they attached the entire minutes of the meeting, thereby disclosing the negotiations. The minutes recorded state that the State Attorneys were to inform the Applicant’s Attorneys in writing whether or not the Second Respondent will proceed with its intention to degazette the claim. Should she need more time to take instruction, she would be at liberty to contact Mr. Van Der Merve to make reasonable arrangements in this regard. The State Respondents were invited to comment and amend the minutes, but they did not. The second point in limine is equally devoid of merit and is dismissed.

[66] Now that I have dealt with the point in limine, I consider it prudent to deal with the legislative framework dealing with the issues raised in this matter.

Legislative Framework

The Constitution

[67] Section 25(7) of the Constitution provides that:

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.

[68] The Restitution of Land Rights Act 22 of 1994 was enacted to give effect to section 25(7) regarding the restitution of land rights to individuals or communities that were dispossessed of their land as a result of racially discriminatory laws or practices.

[69] Section 2 of the Restitution Act outlines the criteria for the entitlement to restitution. It 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 seek restitution of that right.

[70] The Restitution Act provides various role players through which the constitutional right of restitution is to be realised. They are the Commission on Restitution of Land Rights, the First and Second Respondents, respectively. The Second Respondent is part of the Commission on Restitution of Land Rights.

[71] Section 6 of the Restitution Act outlines the general functions of the Commission on Restitution of Land Rights. The Claim for restitution is directed to the Second Respondent, which is enjoined to, among other things, investigate the merits of the claim, decide on a prima facie as to whether the provisions of section 2 do not preclude it, and whether it is not frivolous or vexatious. Once the Commission on Restitution of Land Rights has accepted the claim, the claim will be published in the Gazette. It is then investigated further and either mediated with the view to settling or referred to the Land Claims Court for adjudication.

[72] Section 6(1)(c) of the Act requires the Chief Land Claims Commissioner to advise claimants of the progress of their claims.

[73] Section 11(1) of the Restitution Act provides:

‘11. Procedure after lodgement of claim

(1) If the regional land claims commissioner having jurisdiction is satisfied that─

(a) the claim has been lodged in the prescribed manner;

(b) the claim is not precluded by the provisions of section 2; and

(c) the claim is not frivolous or vexatious,

he or she shall cause notice of the claim to be published in the Gazette and in the media circulating nationally and in the relevant province and shall take steps to make it known in the district in which the land in question is situated.’

Section 11A (2) and (3) of the Restitution Act states that:

11A. Withdrawal or amendment of notice of claim

(2) Where during the investigation of a claim by the Commission the regional

land claims commissioner having jurisdiction has reason to believe that any of the criteria set out in paragraphs (a), (b) and (c) of section 11(1) have not been met, he or she shall publish in the Gazette and send by registered post to—

(a) the claimant;

(b) the owner; and

(c) where applicable, a person who has made representations in terms of subsection (1) and any other party, who to his or her knowledge, may have an interest in the claim,

a notice stating that at the expiry of the period mentioned in the notice, the notice of the claim published in terms of that section will be withdrawn unless cause to the contrary has been shown to his or her satisfaction.

a. At the expiry of the period contemplated in subsection (2), the regional land claims commissioner shall, unless cause to the

contrary has been shown to his or her satisfaction, withdraw the notice of claim and—

(a) advise the persons mentioned in that subsection by notice sent by registered post;

(b) cause notice of his or her decision to be published in the Gazettes; and

(c) take other steps to make his or her decision known in the district in which the land in question is situated.

[74] The role of the Land Court was contained in the now-defunct Chapter III of the Restitution Act. This chapter has now been repealed and replaced by the Land Court Act 6 of 2023 (‘Land Court Act’). In terms of section 25 of the Land Court Act, this court may, amongst others, grant interdictory relief.

[75] The State Respondents submitted that after the Applicant launched the application, the Second Respondents instructed the State Attorney to appoint experts to assist him in assessing the issue of overcompensation; thus, a decision to degazette the Third Respondent’s claim will be based on the experts' report which will be discovered for the applicant’s consideration before a decision is taken.

[76] The State Respondents attached an instruction letter to the experts. The purpose of instructions to the experts is clearly stated in paragraph one of the letter, which states as follows: “Please note that this is a complicated matter, and it is challenging the current policy on the just and equitable compensation, and we will need an SCA in the near future, to give a clear guidance in determining the issue of the just and equitable compensation. Before we approach the SCA, we need a balanced judgment in the Land Claims Court and a proper legal representation. So that we can establish a clear legal precedent and change the jurisprudence narrative on the issue of overcompensation or under compensation”.

[77] While the State Respondents are within their rights to instruct their experts to advise on the issue of overcompensation, it is the Land Court that is empowered to deal with the issue of compensation, including overcompensation. Section 11 (A) (2) of the Restitution Act does not empower the Second Respondent to degazette on the grounds of overcompensation.

[78] The primary jurisdictional fact contained in section 11A(2) of the Restitution Act is that there must be an investigation prior to

the withdrawal of the publication. The claim of the Third Respondent is not under investigation, and the Second Respondent did not indicate that an investigation was pending. This jurisdictional fact has, therefore, not been established by the State Respondents; what has instead happened is that the Second Respondent has put the proverbial “cart before the horse.” They ought to have investigated, which would presumably involve experts on valuations, amongst others, before deciding on over-compensation. Even then, the State Respondents are not the final arbiters on what is and equitable compensation. Such an issue has to be referred to this Court for determination.

[79] In the answering affidavit, the State Respondents clearly state that they intend to degazette the Third Respondent’s claim, and this renders the substantive issue relating to the interdict sought common cause.

[80] As a result of inter alia the aforegoing, I am satisfied that the Applicant has established a strong prima facie right.

[81] In EFF V Gordhan[9] the Constitutional Court said the following:

Before a court may grant an interim interdict, it must be satisfied that the applicant for an interdict has good prospects of success in the main review. The claim for review must be based on strong grounds which are likely to succeed. This requires the court adjudicating the interdict application to peek into the grounds of review raised in the main review application and assess their strength. It is only if a court is convinced that the review is likely to succeed that it may appropriately grant the interdict.” [Own emphasis]

[82] More recently in Eskom v Vaal River Residents[10] The content or nature of a prima facie right open to some doubt was discussed in the ad nauseum. Madlanga J writing for the majority, having analysed the prima facie right and what would lead to a dismissal of an interim interdict,

said:

“If, in the interim interdict proceedings, it were to appear unlikely that the intended review would succeed, that would detract from the requirement of a prima facie right.”

[83] I am satisfied that the prima facie right, though open to some doubt, has been established as the Applicant brought a dispute before

this Court on the acquisition of their property. That issue, which also forms the nexus of the dispute in this application, is still pending before this Court. At all material times prior to the pending application, the State Respondents had unequivocally indicated that they would acquire the Applicant’s property.

[84] It is, therefore, inexplicable as to why, while there are pending proceedings that are linked to the acquisition of the Applicant’s property, an administrative step is countenanced by the Second Respondent to withdraw the publishing of the Applicant’s claim.

[85] The Applicant has had meetings with the State Respondents, where the validity of the claim was not an issue, nor was the issue of overcompensation ever explored. The sole issue that inhibited the third respondent’s claim from being finalised in relation to the Applicant’s property is the purchase price to be paid to the Applicant in lieu of the acquisition.

[86] It also, on a prima facie basis, seems to me that the Second Respondent created a legitimate expectation to both the Applicant and

the Third Respondent that the Applicant’s property would be acquired. However, that is an issue that needs to be determined in the main application.

[87] In the light of the history of the matter and the facts as summarised hereinabove, the jurisdiction fact of an investigation has

not been established. In the premises the Applicant has established a strong prima facie right as it seems like the Second Respondent is acting ultra vires.

[88] It is also clear to me that the apprehension of harm has been established as the Second Respondent contemplated a decision to degazette. Addressing this issue, it was submitted on behalf of the Respondent that this degazetting is still on the air”. It was also a threat indicated in a meeting that the applicant’s property would be removed from those that have been published in terms of section 11 of the Restitution Act. To the extent that the State Respondents are still contemplating degazetting of the Third

Respondent’s land claim, the threat of degazetting justifies the Applicant’s anxiety. The Applicant seeks to avert being involved in a protracted review process pertaining to the threatened degazetting decision. This justifies the Applicants’ urgent approach to this Court.

[89] Insofar as irreparable harm is concerned, the fact that the degazetting would render the Applicant’s rights in the main application nugatory satisfies the irreparable harm that they will suffer. If the publication of the land claim is withdrawn, then their right to compel the State to settle the land claim due to its validity not being in dispute would be impaired. Their only hope would be that a review application will re-establish such rights. This process would render the entire main application nugatory, or it

would have to stay pending a review application that could take years to finalize. This court cannot countenance this. The Second

Respondent should await the finalisation of the main application before taking any steps to withdraw the publication.

[90] As it relates to the balance of convenience, I am of the view that the balance of convenience favours the granting of the application. Since the Applicant has a strong prima facie right, the State Respondents would suffer no prejudice if the status quo is retained until the main application is finalised. The balance of convenience favours the Applicant.

[91] The alternative remedies suggested by the State Respondents are not sufficient to ensure that the pending application proceeds and this Court inquires as to whether or not the claim of the Third Respondent has been finalised together with the aspect of possible

overcompensation.

[92] In the premises, I order as follows:

1. Pending finalisation of case number LCC 23/2023,the First and Second Respondents are interdicted from taking any further steps to degazette the land claim of the Third Respondent in respect of the properties as gazetted by Government Gazette Notice No. 836/2007,published in the Government Gazette on 13 July 2007.

2. There is no order as to costs.

Luleka Flatela

Judge

Land Court of South Africa

Date of hearing: 10 October 2024

Date of judgment: 13 December 2024

Appearances

Counsel for the Applicant: C G VAN DER WALT SC

Instructed by Cox & Partners

Counsel for the Respondents: Choudree SC

Instructed by the State Attorney, KwaZulu Natal -Durban

[1] Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership and Others 2006 (4) SA 292 (SCA) para 9.

[2] [2023] ZAGPJHC 1162 (13 October 2023).

[3] Chief Lesapo v North West Agricultural Bank and another [1999] ZACC 16; 2000 (1) SA 409 (CC) para 13.

[4] Ibid para 13.

[5] Ibid para 16.

[6] 1978 (3) SA 666 (A) at p 677A-E.

[7] Absa Bank Ltd v Hammerle Group 2015 (5) SA 215(SCA) para 13.

[8] Ibid para 13.

[9] 2020 (6) SA 325 CC para 42

[10] 2023 (5) SA BCLR 527 (CC) para 272