Emakhasaneni Community and Another v Minister of Rural Development and Land Reform and Others (LCC 03/2009) [2014] ZALCC 13 (9 June 2014)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT DURBAN

LCC 03/2009

Heard on 9 June 2014

Judgment delivered on 23 July 2014

In the matter between:

EMAKHASANENI COMMUNITY............................................................................................Plaintiff

ISIZWE SAKWA DLUDLA (DLUDLA TRIBE)........................................................Intervening Party

and

THE

MINISTER OF RURAL DEVELOPMENT

AND

LAND REFORM.....................................................................................................First Defendant

REGIONAL LAND CLAIMS COMMISSIONER,

KWAZULU-NATAL.....................................................................................................Second Defendant

VRIENDSCHAP BOERDERY.......................................................................................Third Defendant

SPES BONA TIMBER ESTATE (PTY) LTD..............................................................Fourth Defendant

CENTRAL TIMBER CO-OPERATIVE LTD...............................................................Fifth Defendant

WESSEL

HENDRIK ELS...............................................................................................Sixth Defendant

MAPHOLOBA

FARMING CC..................................................................................Seventh Defendant

MANZINI ESTATE (PTY) LTD..................................................................................Eighth Defendant

WILLEM VERMAAK....................................................................................................Ninth Defendant

WANSBECK

FARMS CC..............................................................................................Tenth Defendant

VLAKPOORT TRUST..............................................................................................Eleventh Defendant

JJS

MARITZ MERINO TRUST................................................................................Twelfth Defendant

MERKOR

FARM TRUST......................................................................................Thirteenth Defendant

E D

MARITZ MERINO TRUST...........................................................................Fourteenth Defendant

RAYMOND

JAMES MCMURRAY.........................................................................Fifteenth Defendant

HAYDN

PERCIVAL FAMILY TRUST...................................................................Sixteenth Defendant

KERRIE INV (PTY) LTD....................................................................................Seventeenth Defendant

SWAAR

BEGIN LANDGOED CC.......................................................................Eighteenth Defendant

RUDIE

STEPHANUS SCHNETLER...................................................................Nineteenth Defendant

C A LEITCH & SONS (PTY) LTD.........................................................................Twentieth Defendant

SCHNETLER TRUST.........................................................................................Twenty-First Defendant

LEON

JOHANNES BEUKES........................................................................Twenty-Second Defendant

ANDREW

JAMES STUART MCLLRATH....................................................Twenty-Third Defendant

MONDI LTD.....................................................................................................Twenty-Fourth Defendant

PHINDITHEMBA MPUMELELO MANQELE &

AGNESS

SAMKELISWE MANQELE............................................................Twenty-Fifth Defendant

MTHONJANENI MUNICIPALITY.................................................................Twenty-Sixth Defendant

ROMAN

CATHOLIC CHURCH.................................................................Twenty-Seventh Defendant

PEACH FARM (PTY) LTD.............................................................................Twenty-Eighth Defendant

PETER

JAMES RIDDEN.................................................................................Twenty-Ninth Defendant

PROVINCIAL DIRECTOR: DEPARTMENT

OF

LAND REFORM OFFICE.................................................................................Thirtieth Defendant

REGISTRAR OF DEEDS.....................................................................................Thirty-First Defendant

JUDGMENT

INTRODUCTION

[1] This is an application for wasted costs brought by the third to the sixth and the eighth to the twenty third defendants (the “land owner defendants”) against the plaintiff, the intervening party and the first and second defendants, arising from the postponement of a trial.

[2] The postponement was, in the first instance, necessitated by the intervening party who had applied to intervene and for the trial to be postponed in order for it to bring an application to intervene and thereafter apply to review the manner in which the claim was gazetted, some 10 days before commencement of the trial.

[3] The applications to intervene and for the trial to be postponed were filed on 2 June 2014. These applications were unopposed and orders to that effect were granted at the commencement of the hearing of this application on 9 June 2014. The postponement was, in the second instance, brought about by the plaintiff (“the claimant community”) seeking the withdrawal of certain admissions made by its legal representative at a telephonic conference held on or about 4 June 2014 and the conversion of their community claim into one that accommodated the individual claims of its members. The withdrawal of the admission and the pursuit of allegedly individual claims are vigorously opposed and will necessitate the filing of further papers and, in all probability, the leading of oral evidence. Orders to postpone the trial to allow the parties to take the necessary steps were also granted on 9 June 2014.

[4] It now remains for me to consider the issue of wasted costs occasioned by the postponement.

THE

PARTIES

[5] The plaintiff is the Emakhasaneni Community which claims in its capacity as an entity representing the interests of its members.

[6] The intervening party is the Isizwe Sakwa Dludla, (which loosely translated, means the Dludla Tribe).

[7] The first and second defendants, the Minister of Rural Development and Land Reform and the Regional Land Claims Commissioner,

KwaZulu-Natal are cited in their capacities as (a) the official representing the State against whom claims for land restitution are brought and (b), the official representing the Commission on Restitution of Land Rights in KwaZulu-Natal which is tasked,

under the Restitution of Land Rights Act No. 22 of 1994 (the RLRA), to investigate claims for the restitution of rights in land, and the feasibility of settling such claims. The third to sixth and eight to twenty third defendants are owners of some of the land which forms part of the subject matter of the land claim.

BACKGROUND

FACTS

[8] A claim for the restitution of rights in land in respect of property, located in the area surrounding the town of Melmoth in KwaZulu-Natal, was lodged on 8 December 1995. The claimed land consists mostly of commercial farms located within the district of Melmoth. The second defendant, after investigating the land claim, accepted it as being valid and caused the claim to be published in Government Gazette Notice 520 of 2006 dated 13 April 2006 as a claim lodged by the claimant community. Following failure to settle the claim through mediation and negotiation, the claim was referred to this court on 2 January 2009 for adjudication in terms of section 14(1)(b) of the RLRA. It must be underlined that the claim as gazetted does not include the town of Melmoth itself, although the intervening party contends that it was always part of the claim. The intended review by the intervening party is aimed at including the town in this claimant community’s claim.

[9] On 3 June 2009, the representative of the intervening party in these proceedings, Dumisani Dludla (Dludla), who alleges that he is the brother of the person who signed the land claim form, the late Cleophas Dludla, addressed a letter to the second defendant

requesting an urgent status report on their land claim application as the claimant community. Then on 16 July 2009, Dludla, again wrote to the second defendant and recommended, inter alia, that the claim be proceeded with by way of arbitration rather than via the courts as that would be cheaper. The court, in his view, should be resorted to only when the negotiations and arbitration had failed. He also expressed general unhappiness with the manner in which the second defendant was processing the application.

[10] At a telephonic conference held on 26 October 2010, involving all the parties, including Dludla, the late Judge President Bam directed the second defendant to, inter alia, examine whether the claim form correctly identified the claimant community or not, ascertain who the claimants and their representatives were and to arrange a meeting with Dludla and the claimant community in order to resolve the issues amongst them so as to enable him to ascertain whether or not the matter had been brought to court pre-maturely.

[11] Various conferences were held thereafter. At a telephonic conference held on 3 February 2011, the late Judge President Bam expressed the opinion that the community was divided and that, until the second defendant had advised that it was unable to resolve the issue of the division in the community, the matter could not proceed. The referral to this court was, according to him, premature. The second defendant was once more directed to facilitate a meeting with the communities in order to resolve their internal disputes and thereafter to furnish the parties with a report. A meeting was then arranged with the communities but Dludla failed to attend it.

[12] The next telephonic conference was held on 19 April 2011 and during this conference, Dludla again expressed unhappiness with the State Attorney and the manner in which its representative and the second defendant were handling the claim. The court then directed the second defendant to secure legal representation for the claimant community albeit that there was more than one faction.

[13] At a face to face conference held on 22 September 2011, presided over by Judge Sardiwalla, the parties were advised that second defendant had appointed a legal representative for the claimant community. The fracture in the claimant community became stark during this conference. It was clear that were two factions one of which was led by Dludla. Discussion of matters of substance then, in the view of the presiding Judge, became pointless and he directed the community to meet once more and attempt to resolve their dispute regarding representation.

[14] In a letter dated 11 October 2011, Dludla advised the State Attorney, Judge Sardiwalla and the first defendant that the claimants had resolved on 8 October2011 that the matter should be negotiated by themselves, the land owners and the Mthonjaneni Municipality (which includes the town of Melmoth). He also advised that they had appointed Don Kali & Company (Kali) as their legal representatives.

[15] The next face to face conference took place on 27 February 2012 wherein Kali, on behalf of the intervening party, also participated.

However, approximately a month later, Kali withdrew from the case.

[16] The claimant community, having now obtained legal representation, responded to the referred claim in April 2012. The land owner

defendants replied to the second defendant’s report and the claimant community’s response and statement of claim in

September 2012.

[17] The claimant community responded to the land owner defendants’ reply and thereafter the pleadings closed. The matter was then set down for a 5 day trial starting on 9 June 2014. The trial had to be postponed indefinitely due to the problems set out above.

[18] This court has a wide discretion in dealing with costs. (See Van Zuydam v Zulu 1999(1) SA 776(LCC) at 751C-D) and it is trite that the court will not order costs in land claim cases in the absence of special circumstances. This is because litigation for the restitution of land rights is constitutional in nature and involves public interest. (See In re Former Highlands Residents 2000 (1) SA 489 (LCC) at 498B and Haakdoornbult Boerdery CC and Others v Mpahela & Others 2007 (5) SA 596 (SCA) at 618.) The landowner defendants have nonetheless insisted on a costs order against both the intervening party, the claimant community and the second defendant on the grounds that the intervening party unreasonably delayed until the very last moment before deciding to launch an application to intervene; the claimant community had not objected to the claim as gazetted and needed to withdraw an admission against strenuous opposition; and against the second defendant on the grounds that the second defendant is to blame for failing to resolve the disputes in the claimant community before the trial date.

THE

CLAIM AGAINST THE INTERVENING PARTY

[19] It is common cause that Dludla has been aware of the existence of this claim since at least 3 June 2009 when he penned the letter calling for a status report on the claim from the second defendant. It is also not disputed that, although having had what can only be called a stormy relationship with the second defendant, Dludla was part of the conferences where the dispute amongst the claimant community and the intervening party, the issue of their representation and Dludla’s dissatisfaction with the second defendant was discussed. Consequently, he was privy to the issues he now raises for approximately 5 years before this intervention.

[20] Mr Naidoo, for the intervening party, although unable to offer any explanation as to why Dludla had taken so long to intervene in the matter and why a review application is set to be launched approximately 9 years after the claim was gazetted, argued that a costs order against the intervening party would be a form of punishment against it for the persistence of Dludla in having the

intervening party made a party in this matter. He strongly opposed the costs order prayed for by the land owner defendants.

[21] I am not persuaded that the circumstances under which the intervening party has sought to interpose itself in this matter does not warrant it to be mulcted in costs as prayed for by the land owner defendants. The evidence clearly shows that Dludla was for a number of years aware of the fact that the intervening party was not cited as a party to the matter. In addition, he was aware, or ought, reasonably, to have been aware, of the fact that the town of Melmoth was not included in the claim that was referred to this Court despite it having been part of the land claimed in the claim form submitted by his late brother, Cleopas Dludla, the then headman of the intervening party.

[22] Dludla, as can be gleaned from his correspondence and contributions at the various conferences, is obviously a literate man and it cannot be said that he was unaware of his rights and the recourse to secure those rights. Indeed, the intervening party had an opportunity to bring the applications it now seeks during the period between October 2011 and March 2012, when it had the services of its own attorney, Kali.

[23] It ill-behoved the intervening party, in the circumstances, to launch the application to intervene and for the trial to be postponed at the eleventh hour, as it were. It had legal representation, knew that it was not party to the land claim submitted to this Court and ought to have launched an application to intervene and review the second defendant’s decisions much earlier than now. I consequently find that the intervening party’s failure to do so timeously constitutes a special circumstance which warrants a costs order against it.

[24] For the reasons preceding, a case has, in my view, been established for the departure from the general rule of this Court not to award costs. Dludla has not adduced any evidence to show that he is authorised to bring these applications on behalf of the intervening party. As a result, I find that Dludla, in his personal capacity, and any other members of the intervening party who are later found to have mandated him, jointly and severally, the one paying the other to be absolved, should bear the wasted costs prayed for by the land owner defendants.

THE

CASE AGAINST THE CLAIMANT COMMUNITY

[25] Mr Moosa, for the claimant community, strenuously opposed the inclusion of the claimant community in an order for the wasted costs. He contended that such inclusion amounted to a shotgun approach by the land owner defendants and that such an order would be inappropriate at this stage of the proceedings. According to Mr Moosa, the intervening party was in exactly the same position as the land owner defendants and therefore he submitted that the more appropriate course for the Court to adopt was for the costs to be costs in the cause.

[26] However, when we put it to him that the claimant community’s intention to amend its claim and to retract admissions made by him at a pre-trial conference would have necessitated a postponement, Mr Moosa could not convincingly argue against that proposition. This is so because the application for the withdrawal of the admissions would require a substantial explanation and might even require him to give evidence. Mr Moosa conceded that he would have to present a substantial explanation and advised that he intended to do so. The stance of the claimant community, in the circumstances, would also not have permitted the trial to commence and, in my view, the claimant community’s actions constitute special circumstances and should attract a costs order against it as well.

[27] In view of the above, I find that a costs order must also follow the claimant community.

THE

CLAIM AGAINST THE SECOND DEFENDANT

[28] Mr Roberts, on behalf of the land owner defendants, contended that a costs order should also be granted against the second defendant because, in the land owner defendants’ view, it had failed to comply with the provisions of section 10(4) of the RLRA. Section 10(4) of the RLRA reads as follows:

“If there is any dispute as to who legitimately represents the community, for purposes of any claim under this Act, the regional land claims commissioner having jurisdiction may in the manner prescribed in the rules made by the Chief Land Claims Commissioner in terms of section 16, in order to have a person or persons elected to represent the community-

(a) Take steps for drawing up a list of names of the members of the community;

(b) Direct that a meeting of such community be convened and an election be held at that meeting;

(c) Take such other steps as may be reasonably necessary for the election.”

[29] According to Mr Roberts, the second defendant was aware of the dispute between the claimant community and the intervening party

regarding representation as far back as 2010 and despite the dispute manifesting itself several times since then and the late Judge

President Bam finding that there were competing claims, failed to resolve the issue.

[30] Ms Norman, for the second defendant, denied that there were competing claims. Ms Norman also submitted that the second defendant attempted on several occasions to have meetings with Dludla but that he had failed to attend those meetings given his lack of confidence in the second defendant, the State Attorney and the legal representative appointed for the claimant community.

[31] Whether or not the second defendant was truly remiss in not establishing the correctness of the merits of Dludla’s claims

cannot be established on the papers. The issue will have to be dealt with in evidence. If the second defendant was wrong in not

ascertaining the validity of Dludla’s claims, it may well be mulcted in costs. For that reason, the issue of whether the costs order against the claimant community, Dludla, and any other member of the intervening party who is later found to have mandated him, should be expanded to include an order that the second defendant should pay costs, jointly and severally, with the other parties, shall be deferred for determination at the trial.

[32] In the light of the findings set out in this judgment, I make the following order:

The plaintiff claimant community, Dumisani Dludla and those members of the intervening party who are later found to have mandated Dumisani Dludla, shall pay the wasted costs of the third, fourth, fifth, sixth, eight, ninth, tenth, eleventh, twelfth, thirteenth,

fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second and twenty-third

defendants, jointly and severally, the one paying the other to be absolved. Such costs shall be on a party and party scale and shall include the costs of 2 counsel for 5 days.

___

M. P. CANCA

Acting Judge in the Land Claims Court

I agree

_____

E.

BERTELSMANN

Judge of the Land Claims Court