Hilton Community v Minister of Agriculture, Land Reform and Rural Development and Others (LCC72/2020) [2023] ZALCC 15 (18 May 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC72/2020

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/NO

Date : 18/05/2023

Before: The Honourable Acting Judge President Meer

and Assessors Professor S.S Luthuli and Ms A. Andrews

Heard on: 15 to 18 May 2023 in Verulam, KwaZulu-Natal

Delivered on: 18 May 2023

In the matter between:

HILTON COMMUNITY Plaintiff And MINISTER OF AGRICULTURE, LAND REFORM & RURAL DEVELOPMENT First Defendant THE REGIONAL LAND CLAIMS COMMISSIONER, KWAZULU-NATAL Participating Party TREASURE COVE TRUST Second Defendant ELLA HUE ESTATE (PTY) LTD Third Defendant IBHUBESI COMMUNITY TRUST Fourth Defendant

JUDGMENT

MEER AJP.

[1] This is a community claim for restitution of rights in land in which financial compensation is sought. The land claimed is Lots 3[…]5, 3[…]7, 3[…]0 and 3[…]9 Hilton in KwaZulu-Natal. The land is owned by the Second and Third Defendants. They oppose the claim on the basis firstly, that no community resided on and was

dispossessed of the claimed land, and secondly, that an annexure to the claim form indicates that Ms Thokozile Ngcobo who filled in the form, was removed from land elsewhere.

[2] The First Defendant and Participating Party abide the decision of the Court. The Fourth Defendant aligns itself with the Plaintiff’s community claim. It does so on behalf of persons it purportedly represents who claim to be dispossessed community members.

[3] Whilst the Plaintiff is cited as the Hilton Community, the claim has its genesis in a land claim form filed by the late Ms Thokozile Ngcobo, in December 1998 at the offices of the Regional Land Claims Commissioner, KwaZulu-Natal (“RLCC”). There is nothing on the claim form to indicate that Ms Ngcobo was claiming on behalf of the Hilton Community. The name of the Applicant in paragraph 1 of the claim form is recorded as Thokozile Ngcobo. She is also named in paragraph 3 as the person who lost the right in land. Paragraph 4 of the claim form curiously records under full particulars of applicant “Mambuzane Howick”.

[4] A letter attached to the claim form states as follows in relevant part:

“We lived at eMxhakeni with grandfather….. We lived together at Hilton at Gweje’s F[…] opposite to the school called S[…] Primary and Girls High School……….. We moved in 1939 from ka Gweje.”

[5] The RLCC did not in my view properly investigate the claim. Had its staff done so, and had they at an early stage asked the late Ms Ngcobo or her family to point out the land she was allegedly dispossessed from, as did the Court during an inspection in loco on the claimed land conducted on 16 May 2023, they would have established that she was not moved from the claimed land.

[6] The parties gathered at 11h30 at a spot approximately 600 metres down the common boundary of Erf 3[…]9 and Erf 3[…]0 for the inspection. The pointing out during the inspection in loco by Ms Nomzamo Mutwa, a cousin who lived with Ms Ngcobo on the land from which they were moved, indicated they were moved to an area 2.5 km away from the claimed land and as stated in the annexure to the claim form, was opposite S[…] School. This is undisputed. Had the RLCC conducted this exercise, that would have put paid to the claim.

[7] Regrettably, however, the RLCC did not adopt this course. Instead, for reasons which are not apparent, it embarked on a course of entertaining Ms Ngcobo’s claim as a community claim and referred it as such in an initial referral report to this Court. Consequently, by the time the claim was referred, the Plaintiff was cited as the Hilton Community and the Fourth Defendant had entered the fray ostensibly representing dispossessed community members. The Fourth Defendant filed a notice to participate, but no response to the referral report. Ms Manicum for the Fourth Defendant stated that it aligned itself to the Plaintiff’s response to the referral report. Curiously, however there is no mention of the Fourth Defendant in the

Plaintiff’s response. Nor is there any explanation therein of a link between the Fourth Defendant Trust and the Plaintiff community or any other entity that was allegedly dispossessed of the claimed land. From the pleadings it is not at all apparent how the Fourth Defendant Trust brings itself within the ambit of this claim.

[8] Not surprisingly, after the claim was referred to Court, the RLCC came to the view that it had mistakenly referred the claim as a community claim. It consequently filed an amended referral report reflecting a change of mind about the nature of the claim. The amended report now categorized the claim as a family claim by Ms Ngcobo. This, after the RLCC had engaged with various persons who claimed to be members of the Hilton Community and the Fourth Defendant, and had even gone so far as to engage in a verification exercise with various persons. In so doing the RLCC would regrettably and understandably have raised the expectations of these persons about what they could gain from the claim lodged by Ms Ngcobo.

[9] At the aforementioned inspection in loco at which Ms Mutwa pointed out that the land occupied by the Ngcobo family was not the claimed land, two witnesses for the Fourth Defendant also pointed to areas from which they were allegedly dispossessed. Mr Nzama, the first witness for the Fourth Defendant originally pointed out an area beyond the claimed land near the railway line as the area from which his family was moved in 1982. Later on however Mr Nzama pointed to a different spot on Erf 3[…]9 about 100 metres from where the parties had gathered. Similarly, Mr Mazibuko pointed to an area beyond the claimed land from which his family was moved, and then in a change of heart he pointed to a vacant area on Erf 3[…]0 where he stated his family had been removed from, also in 1982. Aside from the unreliable nature of these conflicting pointings, the alleged removals in 1982 have no relation whatsoever to the claim on which they rely, being that of Ms Ngcobo for a removal in 1939 and not 1982.

[10] From the inspection in loco there was no evidence whatsoever that a community as defined in the Restitution of Land Rights Act No 22 of 1994 had resided on or was removed from the claimed land. The definition of community in Section 1 of the Act is as follows:

“community” means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group.

[11] In terms of Rule 57 (1) I thereafter ordered a separate hearing on the following issue of law for prior adjudication:

“Was the Plaintiff and the Fourth Defendant a community as defined in the Restitution of Land Rights Act No 22 of 1994 dispossessed of the claimed land” Counsel for the Plaintiff and Counsel for the Fourth Defendant conceded there was no evidence that the Plaintiff and the Fourth Defendant were a community as so defined. This concession was properly made. Neither the Plaintiff’s response to the referral report on which both the Plaintiff and the Fourth Defendant relied, nor the parties’ witness statements contained such evidence. Nor, as aforementioned, did such emanate from the inspection in loco. The Plaintiff’s expert report did not state that a community as defined had resided on the claimed land and the aerial photographs of the land dating back to the 1930’s did not depict such occupation. This being so, the claim stands to be dismissed.

Costs

[12] In Trustees for the Time being of the Biowatch Trust v the Registrar Genetic Resources and Others 2009 (6) SA 232CC at paragraph 24 it was said:

“… particularly powerful reasons must exist for a court not to award costs against the state in favour of a private litigant who achieves substantial success in proceedings brought against it”

[13] This was echoed by this Court in a number of cases. In Elambini Community v Minister of Rural Development and Others LCC88/2012, 30 May 2018 this court said at paragraph 157:

“This Court has, in a number of cases, granted costs against the State and in favour of private litigants who have achieved substantial success in proceedings against the State. It has done so on the basis that land claims litigation, deriving as it does from Section 25 (3) of the Constitution, is in the genre of constitutional litigation. See Makhukhuza Community Claimants (LCC 04/2009) [2010] ZALCC 26 (18 November 2010) at paragraph 30; Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 (LCC) at paragraph 35 and 36; Greater Tenbosch Land Claims Committee and Others v Regional Land Claims Commissioner and Others (74/06) [2010] ZALCC 25 (15 September 2010). Ms Naidoo, for the First Defendant, in opposing the costs order sought, argued that the present matter is distinguishable from that in inter alia Quinella supra, in that in those judgments the Commission’s conduct was subject to justifiable criticism. The First Defendant, she submitted, had not conducted herself in any manner warranting an order of costs against her. In support of her argument she referred me to the judgment in Competition Commission of South Africa v Pioneer Hi–Bred International Inc and Others 2014 (2) SA 480 (CC). In that case the Court set aside a costs order against the Competition Commission and in so doing emphasised that the

Competition Commission was not acting as a mere opposing party in civil litigation.”

[14] In keeping with the above decisions, the Second and Third Defendants who have achieved success in litigating against the state are entitled to their costs. I accordingly grant the following order:

1. The Plaintiff’s claim for restitution of rights in land in respect of Lots 3[…]5, 3[…]7, 3[…]9 and 3[…]0

Hilton KwaZulu-Natal is dismissed.

2. The First Defendant and the Participating Party (RLCC KwaZulu-Natal), jointly and severally, the one to pay the other to be absolved, shall pay such costs of the Second and Third Defendants as are allowed by the Taxing Master on a party and party scale, such costs to include the following:

2.1 The cost of employment of counsel, the cost of their attorney as well as the attorney’s correspondent if any.

2.2 The qualifying fees and expenses of the Second and Third Defendants’ expert witnesses.

Y S MEER

Acting Judge President

Land Claims Court

I agree.

S S Luthuli

Assessor

A Andrews

APPEARANCES:

For the Plaintiff: Adv. T. Kadungure Adv. T. Ngcobo Instructed by: Nzimande L.V Attorneys For the First Defendant and Participating Party: Adv. S Jikela SC Instructed by: State Attorney – KwaZulu-Natal For the Second and Third Defendant: Adv. A. de Wet SC Instructed by: Clarke Smith Attorneys For the Fourth Defendant: Adv. T. Manicum Instructed by: Chetty, Asmall & Maharaj Attorneys