Dutch Reformed Presbytery:Mafikeng v Minister of Public Works and Others (LCC 43/2021) [2022] ZALCC 30 (22 June 2022)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 43/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

22 June 2022

In the matter between:

DUTCH REFORMED PRESBYTERY: MAHIKENG

Applicant

and

MINISTER OF PUBLIC WORKS

First Respondent

MINISTER OF DEFENCE AND MILITARY VETERANS Second Respondent

MINISTER OF AGRICULTURE,

RURAL DEVELOPMENT AND LAND REFORM

Third Respondent

KAGISANO-MOLOPO LOCAL MUNICIPALITY

Fourth Respondent

JUDGMENT

COWEN J

1. This is an application for leave to appeal against the whole of my judgment and order in the above matter. I delivered judgment on 11 March 2022. Both the Minister of Public Works (the First Applicant) and the Minister of Defence and Military Veterans (the Second Applicant) seek leave to appeal.

2. The applications for leave to appeal were argued before me on 14 June 2022. Mr Matebese SC and Ms Mteto appeared for the Applicants. Ms Mteto argued the application with Mr Matebese making submissions in reply. Mr Voster appeared for the Respondent, the Dutch Reformed Presbytery: Mahikeng. The Respondent opposes the application.

3. The application was initially set down for hearing on 11 May 2022. At that stage only the Second Applicant had applied for leave to appeal. The Second Applicant also sought condonation for the late filing of its application – it was two days’ late. In circumstances where the First Applicant was not aware of the hearing date and had not indicated its attitude to the appeal, I postponed the matter until 6 June 2022. In the interim period, the First Applicant indicated that it would abide the Court’s

decision. However, when the matter was called on 6 June 2022, Mr Matebese (then appearing only for the Second Applicant) informed the Court that the First Applicant had informed the Second Applicant that it too intended to apply for leave to appeal on substantially the same grounds as the Second Applicant. On the request of the parties appearing (the Second Applicant and the Respondent) I then postponed the application until 14 June 2022 to allow the applications to be heard at the same time. I granted costs occasioned by the postponement against the First Applicant and reserved the question of the scale of costs indicating that I was considering the award of costs on an attorney and client scale. The First Applicant then applied for condonation for the late application for leave to appeal and delivered its application. None of the parties opposed either of the applications for condonation, which I grant. In doing so, I do not thereby condone the manner in which the postponement of 6 June 2022 came about, which in my view warrants the award of costs against the First Applicant on an attorney and client scale. That a postponement would be the likely outcome when the Court was informed that day that an application was imminent would and should have been obvious. Yet the First Applicant itself addressed no further communication to the Court and did not itself request any postponement. Instead, having informed the Court it would abide the process, it rested content on merely informing the Second Applicant, just before the hearing itself, that it intended to apply for leave belatedly and left it to Mr Matebese – at that stage not instructed by the First Applicant – to deal with the difficulties that would obviously emerge. An absence of proper regard for court process of this sort warrants sanction.

4. Section 17(1) of the Superior Courts Act 10 of 2013 provides that leave to appeal may only be given where the judge is of the opinion that:

“(a) the appeal would have a reasonable prospect of success; or

(b) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.”

5. The SCA has held that:

“[a]n applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal’.[1]

6. This Court has held that the use of the word ‘would’ in section 17(1)(a)

‘indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against’.[2]

7. The First Applicant seeks leave to appeal on various grounds, some overlapping. While I have considered the application in its totality, I deal herein briefly with only certain issues raised.

8. First, the Court is said to have erred by conflating the concepts of eviction and relocation. There is no evidence, it is contended, that the government at any stage decided to evict the Pomfret Community. In my view, there is no reasonable prospect that an appeal would succeed on these grounds .

9. Second, the Court is said to have erred in finding that the attempts at relocation are the reason for the current absence of adequate services and specific mention is made in paragraphs 9 and 10 of the application to facts that the Court allegedly ignored and which are said to gainsay this finding. The information as appears on record was considered. Moreover, I am not persuaded that there is a reasonable prospect an appeal would succeed on these grounds having regard to all of the evidence before the Court.

10. Thirdly, the Court is said to have erred in its interpretation and application of the decision of the Constitutional Court in Kyalami Ridge[3] with the result that it erred in not joining the organs of state specifically entrusted with provision of certain services in terms of the Constitution and applicable legislation. In consequence, Ms Mteto submitted, the Court has ordered the Applicants to exercise powers and perform functions they do not have in terms of the Constitution or legislation in breach of the fundamental principle of legality. In my view these submissions misunderstand this Court’s judgment and the import of its order which does not require any party to do anything they are not constitutionally or statutorily empowered to do. Indeed, Mr Matebese conceded as much in reply.

11. Fourthly, Ms Mteto submitted during argument that the Court erred in concluding that the Minister of Public Works is the nominal owner of Pomfret Farm. The registered owner is the Republic of South Africa and the correct party to cite would then be the Government of the Republic of South Africa. Ms Mteto was unable to point me to where this ground is raised or substantiated in the application for leave to appeal and it was not raised previously. I am in any event not persuaded that there is a reasonable prospect that an appeal would succeed on this ground in light of the evidence before the Court on this issue: it is common cause on the papers that the Minister of Public Works is the nominal owner and custodian of the property, which is owned by the Republic of South Africa.

12. In the application for leave to appeal, there is passing reference in paragraph 19, to there being a compelling reason why the appeal should be heard. However, none is stated. Mr Matebese submitted in reply that the case raises important constitutional issues about the application of the principles enunciated in Kyalami Ridge in context of the Extension of Security of Tenure Act 62 of 1997 (ESTA). I agree, but am not satisfied that this suffices to warrant this Court granting leave to appeal in context of this case, the evidence before the Court and the pleaded grounds for leave to appeal.

13. The Second Applicant also seeks leave to appeal on various grounds, certain of which also concern the First Applicant. While I have considered the application in its totality, I deal herein only with certain issues raised.

14. First, the Court is said to have erred in concluding that the Second Applicant is a person in charge of Pomfret. While I accept, as I did in my judgment, that the position of the Second Applicant is less clear than that of the First Applicant,[4] I am unable to conclude that there is a reasonable prospect that an appeal would succeed on this basis. Reliance was placed on the definition of that term in section 1(1)[5] and the provisions of section 1(2) of ESTA.[6] The provisions of section 1(2) are raised for the first time in this application. Nevertheless, they do not assist the Second Applicant as the certificate in question is not the only manner of proof of the requisite authority. As regards section 1(1), while I omitted

expressly to refer to the sub-section in my judgment, the reasoning in paragraph 24 deals in substance with that issue.

15. Second, the Court is said to have erred in not dismissing the application on the basis that other organs of State responsible for the provision of services had not been joined. The Court’s approach to joinder is set out in the judgment and I refer too to what I say in paragraph 10 above. The First and Second Respondent are not required under the orders to perform duties that they are not permitted by law to perform. Also related hereto is a contention that the judgment and order disables compliance with section 41(1) of the Constitution, but this was neither adequately explained nor is it correct. The converse is so.

16. Third, it is contended that the Fourth Respondent in the application, the Kagisano-Molopo Local Municipality is the party responsible for the provision of services together with other state functionaries. But this submission misunderstands the purpose of the application which is focused on the duties of the First and Second Respondents in terms of ESTA which flow from their position as owners and persons in charge. The Fourth Respondent and other state functionaries continue to be vested with duties regarding the provision of services, which are not the subject of the judgment and orders sought to be appealed.

17. Having regard to the totality of both applications and the grounds pleaded, I have concluded that they should be refused.

18. I make the following order:

18.1. The First Applicant’s application for condonation is granted.

18.2. The First Applicant’s application for leave to appeal is dismissed.

18.3. The Second Applicant’s application for condonation is granted.

18.4. The Second Applicant’s application for leave to appeal is dismissed.

18.5. There is no order for costs in the above applications.

18.6. The costs occasioned by the postponement from 6 to 14 June 2022 shall be paid by the First Applicant on an attorney and client scale.

COWEN J

Land Claims Court

Date of hearing: 14 June 2022

Date of judgment: 22 June 2022

Appearances:

First and Second Applicant: Mr Matebese SC & Ms Mteto instructed by the State

Attorney, Pretoria

Respondent:

Mr Voster instructed by Messrs Moolman and

Pienaar Inc

[1] MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) at para 17.

[2] Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015) at paragraph [3] citing The Mont Chevaux Trust (IT 2012/28) & Tina Goosen and 18 others (LCC14R/2014) at para 6. The point made is that section 17 creates a higher bar for leave to appeal than was the case before the Superior Courts Act came into force.

[3] Minister of Public Works and others v Kyalami Ridge Environmental Association and another (Mukhwevho intervening) 2001(3) SA 1151 (CC).

[4] See paragraph 23.

[5] Person in charge is defined to mean ‘a person who at the time of the relevant act, omission or conduct had or has legal authority to give consent to a person to reside on the land in question.’

[6] Section 1(2) provides: “In respect of unalienated State land, unsurveyed State land, or land registered in the name of the state or an institution or functionary exercising powers on behalf of the State – (a) “owner or person in charge” includes a person who has been certified by the Director-General, on application made in the prescribed manner, to be the owner or person in charge, subject to the conditions that the Director-General may determine; and (b) a certificate purporting to have been issued by the Director-General in terms of paragraph (1) shall constitute prima facie evidence of the authority of that person named in it to act as owner or person in charge of the land concerned, and shall be admissible in evidence on its production in a court.”

[6] Section 1(2) provides: “In respect of unalienated State land, unsurveyed State land, or land registered in the name of the state or an institution or functionary exercising powers on behalf of the State –

(a) “owner or person in charge” includes a person who has been certified by the Director-General, on application made in the prescribed manner, to be the owner or person in charge, subject to the conditions that the Director-General may determine; and

(b) a certificate purporting to have been issued by the Director-General in terms of paragraph (1) shall constitute prima facie evidence of the authority of that person named in it to act as owner or person in charge of the land concerned, and shall be admissible in evidence on its production in a court.”