Bucklands Communal Property Association v Government of the Republic of South Africa and Others (LCC48/2006) [2007] ZALCC 29 (7 September 2007)
The court found that Mr Wellen had the necessary authority to launch and prosecute the proceedings on behalf of the Bucklands Communal Property Association. The applicant was held to have locus standi to apply for orders in terms of prayers 3, 4, 5, 7, and 9, and together with the Bucklands Community Development...
Source-derived case information.
- Citation
- [2007] ZALCC 29
- Parties
- Applicant: Bucklands Communal Property Association; Respondent: Government of the Republic of South Africa and Others
- Court
- Land Claims Court
- Jurisdiction
- South Africa
- Case Number
- LCC48/2006
- Procedural Posture
- Civil Application / Separated Issues Adjudication
- Outcome
- The court granted declaratory orders on the separated issues regarding authority, locus standi, effect of the arbitration clause, and jurisdiction.
- Legal Topics
- Locus Standi, Jurisdiction of Land Claims Court, Arbitration Clause Effect, Authority to Institute Proceedings, Restitution of Land Rights Act
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bucklands Communal Property Association
Applicant
Government of the Republic of South Africa and Others
Respondent
Procedural Posture
Civil Application / Separated Issues Adjudication
Legal Issues
- 1 Whether Mr Wellen had authority to launch and prosecute the proceedings on behalf of the applicant.
- 2 Whether the applicant has locus standi to seek the relief claimed in the notice of motion.
- 3 Whether the arbitration clause in the settlement agreement prevents the court from granting relief related to the agreement.
Ratio Decidendi
The court found that Mr Wellen had the necessary authority to launch and prosecute the proceedings on behalf of the Bucklands Communal Property Association. The applicant was held to have locus standi to apply for orders in terms of prayers 3, 4, 5, 7, and 9, and together with the Bucklands Community Development Trust, for prayers 2, 6, and 9. The arbitration clause in the settlement agreement did not preclude the court from granting any of the relief claimed, as it related only to implementation. The Land Claims Court was found to have jurisdiction under the Restitution of Land Rights Act to adjudicate the relief sought, and, where jurisdiction under a specific section was lacking, the...
Court Disposition
The court granted declaratory orders on the separated issues regarding authority, locus standi, effect of the arbitration clause, and jurisdiction.
Orders
- It is declared that Mr W M J Wellen had and has the necessary authority to prosecute these proceedings on behalf of the Bucklands Communal Property Association.
- It is declared that the Bucklands Communal Property Association has locus standi to apply for orders in terms of prayers 3, 4, 5, 7, and 9 of the Notice of Motion dated February 2006.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD IN KIMBERLEY
CASE NUMBER: LCC48/2006
In the matter between:
THE BUCKLANDS COMMUNAL PROPERTY ASSOCIATION Applicant
and
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
AND OTHERS Respondent
ORDER
Relief not proceeded with
1. It is recorded that the applicant indicated that in these proceedings, it no longer asks for relief in respect of the Hospital, Douglas (erf 507), erf 407, remainder erf 341, Douglas Suidermeent, and erf 397 Wynkelder under par 6 of the Notice of Motion dated February 2006; in the result, the relief under prayer 6 is now limited to farms 3, 4, 6 â 12, 16, 17 and 21 (âthe 12 farmsâ).
Substitution
2. It is ordered as follows:
2.1 that Louis Wilken be replaced as the 20th respondent by Darwo Trading No 60 (Pty) Ltd;
2.2 that Beetge & Seuns Bk be replaced as the 24th respondent by Johan Swiegers Familie Trust; and
2.3 that J E Germishuys be replaced as the 25th respondent by Vencill Trust.
Separated issues
3. In respect of the undermentioned issues, which have been separated for prior adjudication in par 15 of the pre-trail conference held on 22 May 2007, viz:
i. whether or not Mr Wellen has had or now has the requisite authority to launch and prosecute these proceedings on behalf of the applicant;
ii. whether the applicant has locus standi to ask for the relief claimed in each of the prayers contained in the notice of motion;
iii. whether the arbitration clause in the settlement agreement prevents the court from granting relief in respect of those prayers which relate to the settlement agreement; and
iv. whether the Land Claims Court has jurisdiction to grant the relief claimed in some or all of the prayers contained in the notice of motion;
It is ordered as follows:
3.1 It is declared that Mr W M J Wellen had the necessary authority to launch and has the necessary authority to prosecute these proceedings on behalf of the Bucklands Communal Property Association.
3.2 It is declared that the Bucklands Communal Property Association:
3.2.1 has the requisite locus standi to apply for orders in terms of
prayers 3, 4, 5, 7 and 9 of the Notice of Motion dated February 2006; and
3.2.2 together with the Bucklands Community Development Trust, has the requisite locus standi to apply for orders in terms of prayers 2, 6 and 9 of the Notice of Motion dated February 2006.
3.3. It is declared that the provisions of clause 19 of the agreement dated 14 June 2003 do not preclude this Court from granting any of the relief claimed in the Notice of Motion dated February 2006, inasmuch as clause 19 relates only to the implementation of the agreement.
3.4 It is declared that this Court has jurisdiction under the Restitution of Land Rights Act No 22 of 1994 to adjudicate on the relief asked for in the Notice of Motion dated February 2006; insofar as it may not have the requisite jurisdiction under any specific section of the Restitution of Land Rights Act, the Court considers it to be in the interests of justice to decide the issues concerned, as envisaged in section 22(2)(c) of the Restitution of Land Rights Act.