Henning and Others v Baloyi and Others (LCC179/2021) [2022] ZALCC 31 (6 May 2022)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NUMBER: LCC179/2021

REPORT ABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

HLENGANI MACK NKUNA

1st Intervening party

LAND CLAIMANTS OF MODDERVLEI COMMUNITY

2nd Intervening party

In the matter between:

CARL ARTHUR HENNING

1st Applicant

THE MODDERVLEI COMMUNITY

2nd Applicant

EXPECTRA 615 (PTY) LTD T/A MUNUNZWU NEWCO

3rd Applicant

and

AMELIA BALOYI

1st Respondent

THE MINISTER OF AGRICULTURE, RURAL DEVELOPMENT &

LAND REFORM

2nd Respondent

THE REGIONAL LAND CLAIMS COMMISSIONER:

FOR LIMPOPO PROVINCE

3rd Respondent

THE RAMARU COMMUNITY

4th Respondent

MBANGAMBANGA COMMUNITY

5th Respondent

JUDGMENT

COWEN J

[1] Mr Hlengani Mack Nkuna and the Land Claimants of Moddervlei Community (the intervening parties) seek leave to intervene in proceedings

before me under case number LCC 179/2021. The application is brought in terms of Rule 13 of the Rules of this Court.[1] In the main application under LCC179/2021, three Applicants seek relief aimed centrally at interdicting the allegedly unlawful clearing and planting of a portion of a property known as the Remaining Extent of the Farm Moddervlei 44 LT, Limpopo Province (the property). I refer to this as the main application.

[2] The Second Applicant in the main application is cited as the Moddervlei Community. The Moddervlei Community has claimed restitution of the property in terms of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). Notice of its claim has been gazetted in terms of section 11 of the Restitution Act and it has been referred to this Court in terms of section 14 under case number LCC22/2005.

[3] The person acting on behalf of the Moddervlei Community in the main application is a Mr Mudau, who says he is its Chairperson, elected as such in 2004. The intervening parties dispute this and they say that in fact the Moddervlei Community is not properly before this Court. They want to intervene in the proceedings, and once admitted, intend to dispute the authority of Mr Mudau to represent the Moddervlei Community in terms of Rule 7 of the Rules of this Court. His position, they say, has long been in dispute. They say, amongst other things, that he was not the person who lodged the land claim - Mr Nkuna is - and he is not a member of the group that initially authorised Mr Nkuna to lodge the land claim on behalf of the Moddervlei Community. Rather, there is a long-standing dispute about Mr Mudau's position and claim to represent the Moddervlei Community. Moreover, there is a court order in place of 5 March 2008, made by Judge Meer (as she then was) requiring the Regional Land Claims Commissioner: Limpopo Province (the Regional Commissioner) to convene a meeting of the Moddervlei Community in terms of section 10(4) of the Restitution Act to establish who may legally represent the Moddervlei Community. That meeting has not been convened and it is contended that in those circumstances Mr Mudau may not represent the Moddervlei Community in legal proceedings.

[4] The application to intervene was instituted on 15 February 2022. On 3 March 2022, I issued directions regulating the exchange of affidavits. The application was argued on 12 April 2022 via MS Teams. Mr Majozi appeared for the intervening parties. Mr Havenga SC appeared for the first to third respondents, being the applicants in the main application. Mr Matloga observed the proceedings on behalf of the fourth and fifth respondents. There was no appearance for the remaining respondents in the main application being Mr Baloyi, the Minister of Agriculture, Rural Development and Land Reform and the Regional Commissioner.

[5] Rule 13 of the Rules of this Court, titled Intervention of Parties, provides in relevant part:

"(1) Any person whose rights may be affected by the relief claimed in a case and who is not a party in the case may, within a reasonable time after he or she became aware of the case, apply to the Court to leave to intervene in the case."

[6] The main application was instituted on 1 October 2021 on an urgent basis. It was managed on a semi-urgent basis in circumstances where the urgent court granted an interim order pending the determination of the application. The application was argued initially on 20 October 2021. However, this court thereafter granted an order joining the Fourth and Fifth Respondents and I exercised my inquisitorial powers to request further information from the parties. Further queries were addressed to the parties regarding the information supplied during the case management conference of 3 March 2022. It was then recorded that subject to the outcome of the intervention application, no further hearing would be required in the main

application. Thus, subject to the outcome of the intervention application, judgment is now pending in the main application.

[7] Accordingly, a notable feature of this application is the time when it is brought. Mr Majozi responsibly conceded that the intervening parties have not explained when they became aware of the case nor provided any information upon which I can conclude that the application was instituted within a reasonable time thereafter. In my view, this is a material omission in the circumstances of this case. I am in any event of the view that the application cannot succeed.

[8] In South African Riding for the Disabled Association v Regional Land Claims Commissioner and others (SARDA)[2] the Constitutional Court restated the test for intervention. It is whether the applicant has a direct and substantial interest in the subject matter of the case which could be prejudicially affected by the order of the court. As the Constitutional Court held: "This means that the applicant must show that it has a right adversely affected or likely to be affected by the order sought."[3] An applicant for intervention "does not have to satisfy the court at the stage of intervention that it will succeed", but it must at least "make allegations which, if proved, would entitle it to relief."[4]

[9] Disputes about the composition and representation of communities who have lodged land claims are not uncommon. The efficient, effective and economic resolution of disputes of this nature is vital to the restitution process. That there is a dispute about the Moddervlei Community is thus an important issue that requires resolution to enable its land claim duly to proceed.

[13] This does not, however, mean that the intervening parties' application to join the main application for purposes of dealing with the issue of authority must succeed. It is only necessary for me to deal with the central issue that they face, which is that they do not make any allegations which, if proved, would entitle them to relief in the main application. Indeed, their concern is not pleaded as a concern with the relief sought in the main application on behalf of the Moddervlei Community. They have said nothing about the stance that they would adopt in the main application and on what basis: their allegations focus on the internal dispute within the Moddervlei Community. In consequence, they have not shown that any interest that they may have will be prejudicially affected by the order of the Court in the main application.

[14] The parties made various submissions about the merits of the complaints about Mr Mudau but in view of my conclusions above it is not necessary for me to decide these. Moreover, it is undesirable to do so in these proceedings as they are shortly to be ventilated in the land claims proceedings themselves, which this Court has already placed under case management. Importantly, it has been confirmed in that process that both groupings within the Moddervlei Community will be afforded legal representation in terms of section 29 of the Restitution Act, and once arranged, the issue has been prioritised for resolution.

[15] I make the following order:

(1) The application for intervention is refused.

(2) The parties shall pay their own costs.

Cowen J JUDGE

LAND CLAIMS COURT

Date of Hearing: 12 April 2022

Date of Judgment: 6 May 2022

Appearances

Intervening parties Mr Majozi instructed by Kgaugelo Baloyi Inc

Applicants

Mr Havenga SC instructed by P Grobbelaar Attorneys

Fourth and fifth

Respondents Mr Matloga of Matloga Attorneys, Pretoria

[1] Cited below at paragraph [5].

[2] [2017] ZACC 4.

[3] Para [9]

[4] Para [9]