Crafcor Farming (Pty) Ltd v Regional Land Claims Commissioner, Kwazulu-Natal and Others (LCC46/2007) [2009] ZALCC 10 (4 September 2009)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NO: LCC46/2007

Held at Pietermaritzburg on 19 June 2009

Before

Ncube A J

Decided on 04 September 2009

In the matter between:

CRAFCOR FARMING (PTY) LTD Applicant

and

THE REGIONAL LAND CLAIMS COMMISIONER First respondent

KWAZULU NATAL

MFANUTHINI ALTON MBATHA Second respondent

MATISENI COMMUNITY Third respondent

MBATHA FAMILY Fourth respondent

JUDGMENT

NCUBE A J:

[1] This is an application for review. The applicant seeks an order reviewing and setting aside the decision of the first respondent to publish the restitution claim lodged by the second respondent as a community claim instead of publishing it as a claim by an individual claimant. The application is opposed by all four respondents.

[2] The applicant is the Crafcor Farming (Pty) Ltd. The applicant owns some but not all the farms which were published in the Government Gazette issued by the first respondent. The applicant contends that the claim lodged by the second respondent was not lodged as a community claim and it was not lodged in respect of the whole lot of farms which were published in the Governments Gazette.

[3] The first respondent is the Regional Land Claims Commissioner for Kwazulu-Natal. The second respondent is Mfanuthini Alton Mbatha. The third respondent is Matiseni Community and the fourth respondent is the Mbatha Family. All the respondents entered appearances for defend. A record was delivered by the first respondent, containing the documents with reference to which the decision to publish notice of the claim, was taken. However the said record was delivered only after the applicant had taken steps to compel the first respondent to file the record.

[4] The second respondent signed a Land Claim from on 16 December 1998. The original claim form was completed in the IsiZulu language but it was subsequently translated into the English language by the official translator who was hired by the first respondent. The second respondent is illiterate. He was assisted by his 13 year old daughter in completion of the Land Claim from. In the Land Claim form there are paragraphs which were not filled in but a “dash” sign was placed on those paragraphs. In his translation Mr Moloi the translator, only dealt with those paragraphs of the Land Claims form which were filled in.

[5] I have read both the original claim form completed in IsiZulu and the English translation thereof.

[6] The relevant paragraphs of the Land Claim form are quoted hereunder. The parts which are completed in manuscript are written in italics. Responses by the claimant are underlined:

“NAME OF APPLICANT: ALTON M MBATHA

Details of Property/ land being claimed in terms of the Restitution of Land Rights Act, 1994 (Act No 22 of 1994):

1. Property description: Rural/Urban ( Delete which is not applicable ):

If it is rural land, the Portion (s), name(s) and number(s) of the farm and district in which it is situated: the land in a farm in Dundee which belongs to Matheesen in Mankala at Mahlokohla next to Mnyathi and Bhanya in the KZN Province.

2. Which department/body acquired the Property?: Government building GG

3. Full particulars of the person who lost the right in land:

Name/Community/Trust: Alton ID Number of individual claimant: 5102065450081

4. Full particulars of applicant, if not the person who has lost the right in land:

Name/Community/Trust:____________________( dash written )

If you are acting on behalf of a Community/trust, please give your

Name ________________( dash written )

I D Number ___________( dash written )

In what capacity are you acting?

_________________________ (left blank)

5. Do you know about any other family member that might have an interest or claim on the land. If so please give details: there are my brothers who were in the farm before me when I was still young and my sisters.

6. Please give the reason for your claim. (if you need more space, please attach a separate page):

I want personally ensure that the government returns the place so that I can build, be able to cultivate the land and keep livestock. Some of the livestock were taken by whites.

10. I (full name) Mfanuthini Alton Mbatha certify that the above mention information is

correct to my knowledge.

Signature: (signed) Date 16/12/98

Place: Richards Bay “

[7] An acknowledgement of receipt of the land claim was forwarded to “Alton M Mbatha” on 21 January 1999. At that stage, the claim

was not regarded as a community claim but as an individual claim by Alton M Mbatha1.

[8] The Land Claim form is a founding document on which a Land Restitution Claim is based. It is a first document in the Land Restitution claim. In casu, the Land Claim form shows that the claim is a claim by an individual person in respect of a certain farm in the Dundee district in an area known as Matheesen2.

[9] After receipt of the claim, the case was assigned to a researcher, Patrick Masinga, at the office of the Regional Land Claims

Commisioner. Patrick Masinga prepared a report for the Regional Land Claims Commisioner. The report called “validation report” was prepared on 28 October 2005. For purposes of this judgment, I shall refer to paragraph 8 of the said report. Paragraph 8 of the report reads as follows:

“8 WERE PEOPLE REMOVED/DISPOSSED:

(Individual/Community/Group Individuals actually disposed/Company/Other)”

The researcher has written the word “Community”

[10 ] Mr Masinga also prepared a case report. The relevant paragraphs of the report read as follows:

“1.1 This report gives a summary of forced removals of the Matiseni claimant community from the farms mentioned below……….

1.2……….. Mr Mnfanafuthi Alton Mbatha lodged the claim on behalf of a group of tenants of the Matiseni farm. The Community as defined in section 1 of the Act and as further contemplated in section 2(1)(d) read with section 10 of the Act. The claimant community is claiming their land back in terms of the provisions of the Restitutions of Land Rights Act 22 of 1994.

The Claimant community of Matiseni and their forefathers occupied the land as far back as the 1800’s

6. CLAIMANT PROFILE

Mr Mfanuthini Alton Mbatha lodged the claim on behalf of the people of Matiseni in his capacity as a member of the community. He is representing a community of about 300 families that were removed from the farm.

8. RESEARCH CONDUCTED ON THE CLAIM

The oral history was gathered from the claimants in early August 2005.

10. RECOMMENDATION

10.1 The claim should be gazetted as soon as possible since the history of removals and land dispossessions comply with the prescribed section 11(1) of the Restitution of Land Rights Act 22 of 1994 ( as amended) for Approval.”

[11] The case report of Mr Masinga is dated 28 October 2005. It was checked by the project manager Mhlaba Silinda on 03 November 2005.

The Regional Land Claims Commisioner accepted the recommendation of the researcher to publish the land claim. The land claim was published in the Government Gazette Notice No 531 dated 13 April 2006. The Government Notice shows the claimant to be “A.M.Mbatha on behalf of the Matiseni Community”

The notice further shows that the claim has been lodged in respect of 19 properties. Out of these 19 properties, only 7 properties are owned by the applicant.

[12] Notice 531 of 13 April 2006, was subsequently amended by Amendment Notice No. 124 of 2007 dated 16 February 2007. The purpose of the amendment was to add more properties. The amendment notice contains 39 properties of which 9 are owned by the applicant. Out of a total of 48 properties published in both the original and amendment notices only 16 properties are owned by the applicant. The rest is owned by people who are not party to these proceedings.

[13] Section 10(3) of the Restitution of Land Rights Act3 (the act) provides:

“If a claim is lodged on behalf of a community the basis on which it is contended that the person submitting the form represents such community, shall be declared in full and any appropriate resolution or document supporting such contention shall accompany the form at the time of lodgment: Provided that the regional land claim commissioner having jurisdiction in respect of the land in question may permit such resolution or document to be lodged at a later stage.”

[14] The provisions of section 10(3) of the Act were not complied with. The claim form lodged by Mr Mbatha was not accompanied by any resolution or document supporting the contention that the claim was a community claim. In fact Mr Mbatha did not even contend in the claim form that he was representing any community when he lodged the claim.

[15] In the answering affidavit of the second, third and fourth respondents, deposed to by the second respondent, the second respondent4 states:

“I am authorized to depose to this affidavit on behalf of the third and fourth respondents and as proof thereof I annex thereto a copy of the resolution of the Matiseni Land Claim Committee marked “MLM1 ”.

[16] There are three problems with the above statement. The first problem is that the answering affidavit is date the 31st of October 2008. The second problem is that the resolution “MLM1” referred to in the affidavit does not authorize Mr Mbatha to lodge a claim on behalf of the Community. It authorizes one Mr Simon Khayelihle Mtshali to “sign all necessary legal documents in case number LCC46/2007”. The third problem is that the said resolution is dated the 30th of September 2008. It is clear therefore that both affidavit and the so called resolution were not before the first respondent when she took the decision to publish the claim as a community claim on 13 April 2006 and she could not have taken that information into consideration.

[17] The information which was before the first respondent when she took a decision to publish Mr Mbatha’s claim as a community claim was the following:

17.1 The land claim form

17.2 The validation report

17.3 The certificate of compliance

17.4 the case report.

[18] The land claim form clearly shows the claim to be a claim by Mr Mnfanafuthi Alton Mbatha or the Mbatha family. The validation report does not contain any information to conclude that Mr Mbatha lodged a claim on behalf of the community. The certificate of compliance does not indicate the basis for the claim to be Gazetted as a community claim. The case report shows that oral history was gathered. The person who gathered that oral history is not identified. There is no record of the information gathered. There is no mention of the names of the people who supplied information.

[19] Mr Seneke, legal representative for the second, third and fourth respondent, has referred to the Hlaneki case 5in an attempt to justify Mr Mbatha’s claim as a community claim. The facts are different. “Hlaneki” claim was clearly a community

claim. It was a claim by the Hlaneki tribe which was properly represented by the tribal chief. In casu, there is no evidence of the existence of a tribe.

[20] In the answering affidavit of the second, third and fourth respondents, the second respondent states that his grandfather and his father were traditional leaders6 however, he does not claim to be a traditional leader himself. It is clear from the papers that the first respondent engaged in a homestead identification exercise, where various members of the community were present. The first homestead identification was on 29 August 2006, the second one on 13 September 2006, the third one on 14 September 2006, the fourth one on 15 September 2006 and the last one was on 27 October 2006. The problem with this exercise is that it was undertaken long after the claim had been published on 13 April 2006.

[21] In my view Mr Mbatha’s claim was not properly investigated. It is clear that Mr Mbatha and the fourth respondent do have a valid claim which, needs to be investigated further. The boundaries of the land claimed by the second and fourth respondents were not properly defined. The Mbatha family could not have claimed the whole of the Matiseni farm but only a certain portion thereof. This is borne out by the claim form7 where it says “Umhlaba osepulazini”,which means “ the land in a farm”. This is an indication that the claim is not in respect of the whole of the Matiseni farm.

[22] There was simply no basis on which the first respondent could have concluded that the claim was a community claim and that it was a claim in respect of all the properties mentioned in Government Notice 531 of 2006 and the Amendment Notice of 2007. I am mindful of the fact that the claimant needs to do no more than to present an arguable case8. This, in my view, does not give the first respondent an authority to substitute the Mbatha family claim with a community claim9.

[23] Section 33(1) of the Republic of South African Constitution Act10 guarantees everyone the right to administrative action that is lawful, reasonable and procedurally fair. When the Regional Land

Claims Commissioner decides to publish a restitution claim, he or she performs an administrative action within the meaning of the Promotion of Administrative Justice Act11. Such administrative action must be lawful, reasonable and procedurally fair.

[24] In the present case, there is no connection between the information placed before the first respondent and the subsequent decision taken to publish a claim as a community claim. The decision to do so was not a rational decision. A functionary must make a decision which is rationally justifiable12. In Trinity Broadcasting (Ciskei) V Independent Commissions Authority of South Africa13, Howie P (as he then was) held that a reviewing court will ask:

“………is there a rational objective basis justifying the connection made by the administrative decision-maker between the material made available and the conclusions arrived at”

[25] I now turn to the consideration of the appropriate order which this court should make. In so doing, I must bear in mind that there are land owners who are not party to these proceedings. Those land owners were informed of these proceedings but they chose not to participate. I cannot exclude the possibility of other landowners having entered into negotiations or having willingly sold their farms to the first respondent for the settlement of certain community members.

[26] The applicant has asked this court not to remit the case to the first respondent for reconsideration. In my view, it will serve no purpose to remit this matter to the first respondent for reconsideration as she has formed an opinion and took an irrational decision to publish the Mbatha family claim as a community claim. In the circumstances of this case, this court should take a decision which will replace the first respondent’s decision. This is appropriate in exceptional cases 14and the present case is one of those cases.

[27] I shall now deal with the question of costs. It is the usual practice of this court not to make cost orders. However, this

practice can be departed from, in certain exceptional cases. The circumstances of the present case justify an award of costs.

Firstly, the first respondent took a decision which was highly irrational and disturbingly inappropriate in the circumstances.

Secondly, the first respondent did not comply with the rules, she failed to deliver the record. As a result of the first respondent’s

failure to deliver the record, the applicant took steps to file an application to compel the first respondent to deliver the said

record.

[28] There were two interlocutory applications in this matter. The first one was the application to compel the delivery of the record. That application was brought by the applicant.

The second interlocutory application, was the application to amend the record which had been delivered. That application was brought by the first respondent and it was initially opposed by the applicant. The Notice to oppose was subsequently withdrawn by the applicant. This was after the first respondent had explained to the applicant that the record was incomplete as the first respondent had found a whole lot of other documents. In my view, the applicant is entitled to the costs of the present application and the costs of the first interlocutory

application but not to the costs of the second interlocutory application which was brought by the first respondent.

[29] In the result, I make the following order:

The decision of the first respondent to publish notice in the Government Gazette that a claim has been lodged in terms of the Restitution of Land Rights Act by A M Mbatha on behalf of the Matiseni Community only in so far as it relates to properties owned by the applicant and listed in the schedule to Notice 531 of 2006 published in Government gazette on 13 April 2006 and amended in terms of Notice 124 of 2007 which was published in Government Gazette on 16 February 2007, is reviewed and set aside.

The first respondent is directed to withdrawn Notice No 531 published in the Government gazette on 13 April 2006 and Amendment Notice No. 124 published in the Government Gazette on 16 February 2007 in so far as those notices relate to property owned by the applicant.

The first respondent is directed to conduct an inspection with the second respondent, in the presence of the applicant’s attorney of record and the second respondent’s attorney on a date to be agreed upon by all the attorneys for the purpose of allowing the second respondent to point out the claimed position of his homestead and the boundaries of the area in respect of which he claims the Restitution of the Rights in Land.

The first respondent is directed to publish a fresh notice in the Government Gazette that a claim has been lodged in terms of the Restitution of Land Rights Act by A M Mbatha and that the claim relates only to property known as Matiseni Farm.

The first respondent is ordered to pay the applicant’s costs of this application including costs of the first interlocutory application, taxed as between party and party.

__________________________

ACTING JUDGE T M NCUBE

LAND CLAIMS COURT OF SOUTH AFRICA

For Applicant: Adv G Goddard

Instructed by: Venn, Nemeth + Hart Attorneys

Pietermaritzburg

For the first respondent: Adv P Naidu

Instructed by: State Attorney

Durban

For second, third and fourth respondents: Adv Seneke

Instructed by: State Attorney

1. Founding Affidavit, paragraph 20, which is admitted by the first respondent in her opposing affidavit, paragraph 14.

1. Founding Affidavit, paragraph 20, which is admitted by the first respondent in her opposing affidavit,

paragraph 14.

2. See paragraph 1.1 of the claim form ( Annexure “ B “ )

3. Act No 22 of 1994.

4. See paragraph 3 , page 458 of the indexed record.

5. Hlaneki and Others v Commission on the Restitution of Land Rights and Others [ 2006 ] All SA 633 ( LCC ).

6 . See paragraph 10.6 of the affidavit, page 461 of the record

7 . See paragraph 1.1 of the claim form (Annexure “B “ ). 8 . See Farjas ( pty) Ltd v Land Claims Commissioner KwaZulu-Natal 1998 ( 2 ) SA 900 ( LCC ) at 924 D, Hlaneki ( Supra)

7 . See paragraph 1.1 of the claim form (Annexure “B “ ).

8 . See Farjas ( pty) Ltd v Land Claims Commissioner KwaZulu-Natal 1998 ( 2 ) SA 900 ( LCC ) at 924 D,

Hlaneki ( Supra)

8

9 . See Gabriel Petrus Minaar N. O v Regional Land Claims Commissioner- Mpumalanga and Others 42/2006 page 9.

9 . See Gabriel Petrus Minaar N. O v Regional Land Claims Commissioner- Mpumalanga and Others 42/2006

page 9.

10 . Act 108 of 1996.

11 . Act 3 of 2000.

12 . See Ampofo and Others v MEC for Education, Arts, Culture, Sports and Recreation, Northern Province and Another 2002 ( 2 ) SA 215 ( T ) paragraph ( 55 ) at 234 G.

12 . See Ampofo and Others v MEC for Education, Arts, Culture, Sports and Recreation, Northern Province and

Another 2002 ( 2 ) SA 215 ( T ) paragraph ( 55 ) at 234 G.

13 . 2004 ( 3 ) SA 346 ( SCA ) Paragraph ( 21 ) at 354 H -355 A.

14 . See Gauteng gambling Board v Silverstar Development Ltd and Others 2005 ( 4 ) SA 67 ( SCA ) paragraph ( 28 ) at 75E-G and paragraph ( 39 ) at 79 G.

14 . See Gauteng gambling Board v Silverstar Development Ltd and Others 2005 ( 4 ) SA 67 ( SCA ) paragraph

( 28 ) at 75E-G and paragraph ( 39 ) at 79 G.