Hlaneki and Others v Commission on Restitution of Land Rights and Others (LCC43/02) [2005] ZALCC 8 (14 October 2005)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC43/02

Held in Randburg on 13 October 2005

Before Moloto J

Decided on: 14 October 2005

In the matter of:

CHABANE JACKSON HLANEKI First Applicant

TRIBAL AUTHORITY OF THE HLANEKI TRIBE Second Applicant

HLANEKI TRIBE Third Applicant

And

COMMISSION ON RESTITUTION OF LAND RIGHTS First Respondent

REGIONAL LAND CLAIMS COMMISSIONER, [LIMPOPO] Second Respondent

REGIONAL LAND CLAIMS COMMISSION, [LIMPOPO] Third Respondent

BASEME WILLIE MASWANGANYI Fourth Respondent

MASWANGANYI COMMUNITY Fifth Respondent

MINISTER OF LAND AFFAIRS Sixth Respondent

JUDGMENT

MOLOTO J:

On 9 September 2005 this Court granted a review application against the applicants (respondents in the review application). The first, second and third applicants now seek leave to appeal to the Supreme Court of Appeal against that order. The “notice and grounds of application for leave to appeal” states that the fourth applicant is cited “merely in her capacity as the Minister responsible for the administering of the Restitution Act, particularly in so far as there are potential constitutional issues that may arise in the adjudication of this matter”. The fourth applicant had been cited as the sixth respondent in the review application. It is not clear whether by citing her in the above-described manner in this application, it is intended to convey that she abides the Court order in the review application. The fourth and fifth respondents in the review application did not participate in that application.

The Court in the review application was constituted by Mr. Andre Zybrands, as assessor, and myself. Mr Zybrands was not available on the day of hearing of the application for leave to appeal. If the application was not heard on that day, I would be unavailable to hear if for the next four years. Acting in terms of section 28(9)(b) of the Restitution of Land Rights Act1, the parties agreed unconditionally in writing to accept the decision of the remaining member as the decision of the Court.

The application for leave to appeal was filed on 3 October 2005, a day late in terms of the rules of Court. There was no accompanying application for condonation of the late filing of the application for leave to appeal. The matter was set down for hearing on 13 October 2005. On 12 October 2005 an “affidavit on condonation” with annexure, was filed. There was no notice of application for condonation of the late filing of the application for leave to appeal filed with the said affidavit. The failure to file a notice of application for condonation and the late filing of the application for leave to appeal are condoned.

Before dealing with the merits of the application it is appropriate to deal with certain allegations contained in the grounds for leave to appeal relating to the conduct of the review application. I shall do so by first quoting the allegations and later quoting, without comment for the greater part, from the record of such proceedings. The only comment will be directed at an issue, the explanation of which may not be apparent ex facie the record. That issue relates to the allegation that the Court did not offer the applicants the opportunity “to reply after answering argument by the respondent’s counsel”.

The allegations are that:

“1. At the commencement of the hearing of the review application on 2 August 2005, the Court stated that it did not want to hear argument from the Respondents’ counsel and therefore that it wanted to hear argument only from the Applicant’s counsel ostensibly because it had already concluded that the Applicants did not have a case. Counsel for the Applicants then commenced with argument and not long after such commencement the Court stated that:

1.1 it could not understand why it is contended on behalf of the Applicants that the dismissal of the Third Respondent’s claim is conditional because in its

view it is final;

1.2 later, that it could not understand why the Applicants persisted in presenting its argument, particularly in respect of the date of the alleged dispossession and the issue as to whether the dismissal of the claim by the Second Applicant was final or conditional and that in so far as it is concerned the issue is clear and it would not change, no matter how much argument could be presented on behalf of the Applicant.

It was then protested by counsel on behalf of the Applicants that it appears from the

Court’s remarks that it has made up its mind and prejudged the issues in the matter and therefore that any argument on behalf of the Applicants would not persuade the Court and/or achieve the desired results such that it would not be any help to continue to address the Court. The Court had suddenly relented and indicated to counsel for the Applicants that it would listen to the argument and open its mind to persuasion. It however, with respect, appear from the Court’s judgment regarding the issues as to the Second Applicant’s actions and decision in relation to:

2.1 The (preliminary) investigation or otherwise of the Third Respondent’s claim;

2.2 The Respondent’s compliance or otherwise with Section 10(3) of the Restitution Act;

The Third Respondent’s dispossession of land rights;

The nature and effect of the Second Applicant’s decision and also

contained in the letter of 8 May 2002 as also quoted in the judgment (see paras 2 and 29 of Court’s judgment); and

The objectivity, fairness and compliance with the applicable provisions of the Restitution Act (see paragraphs 13 and 30 of the Court’s judgment),

That the Court has, with respect, actually continued to maintain its prejudging of the matter and did not necessarily open its mind to persuasion by the Applicants, so much so that the Applicants were not offered the opportunity to reply after answering argument by the Respondent’s counsel.”

The issues to which I wish to reply by quoting from the record are the allegations that-

this court did not want to hear argument from the respondents’ counsel “ostensibly because it had already concluded that the applicants did not have a case;”

Quote from p1 lines 11 to 14.

JUDGE: Thank you very much Mr. Shakoane. Mr. … I would like to hear the respondent. I don’t think there’s any need to hear you.

in the Court’s view dismissal of the third respondent’s claim was final

Quote from p6 line 23 to p7 line 12

JUDGE: Let me ask Mr. Shakoane, what is the meaning of conditional dismissal? MR SHAKOANE: What it means Judge is simply that, until, let me just read from the document itself. When you read the letter which has been send. JUDGE: No, I’ve seen the letter. I have seen the letter. Let’s just discuss the concept of conditional dismissal. Once you have dismissed, what is the effect of a dismissal? Once you have dismissed a case, for the applicant to resuscitate that case, he must come … (inaudible) … shouldn’t it? MR SHAKOANE: No. JUDGE: Ja, of course, if you have dismissed, you have dismissed. If you have not dismissed, you say, your papers are not in order, go and get them in order, the same papers, and come back with the same papers, but you don’t say you’re dismissed.

the date of the alleged dispossession of the third respondent and that the Court would not change on whether the dismissal of the claim was conditional or final, “no matter how much argument could be presented on behalf of the applicant;”

Quote from p12 line 26 – p13 line 29;

JUDGE: You know Mr. Shakoane, I’ll tell you, I may not be able to put my finger on the page or the letter, even the Commissioner, in his own papers has actually considered, without anybody saying anything, that this was a mistake on the part of the person who filled this thing. MR SHAKOANE: Where do we find that Judge? JUDGE: I’m now looking at your paginated papers, which are completely different from the papers that I used to prepare. MR SHAKOANE: I’m … JUDGE: Can you bring my files in the office please? MR SHAKOANE: Our papers … JUDGE: I had the papers that were filed at the time of filing, and somebody made new files, so. MR SHAKOANE: Yes, we received an index last week from the … JUDGE: That’s fine, that’s fine, that’s fine, but it must be in the answering affidavit. Can we look at the answering affidavit? MR SHAKOANE: That it is a mistake? JUDGE: Ja, and I think the replying affidavit does deal with that. MR HAVENGA: Judge, I think you’re looking for page 372 paragraph 160, it was duly admitted but it was a mistake in the claim form. JUDGE: 372? MR HAVENGA: 372, paragraph 160. JUDGE: Ja, I thought it must be in the answering affidavit.

Quote from p14 lines 1 – 31

JUDGE: “Safe to note that the applicant’s claim, that the date of 1881 has been

erroneously inserted in paragraph 2.1 of their claim form, and that it actually indicates the date of which the alleged traditional ownership of the land was acquired. The remainder of the allegations therein contained are denied, as it specifically traversed and the applicant’s are put to the prove thereof”. Okay? It was an obvious, it’s an obvious misunderstanding of the form, doesn’t it look like that for you MR SHAKOANE: Well, that’s what the applicant is saying, that they made a mistake, yes, and my submission Judge was, the court ought not, looking at the information, as what’s in the hands of the Commissioner, would he, when he makes the report, would he have had basis to come to the conclusion to which he did? The affidavit … JUDGE: Are you saying that that’s not the kind of thing you would have cleared up, is it not the case of the Commissioner, that you had consultations with the applications, in meetings before you decided?

Quote from p15 line 23 to p16 line 31

JUDGE: Let’s look at the form. Let’s look at the form, and look at the wording of that question. MR SHAKOANE: Of which question? MR HAVENGA: I think what you were really looking for is in the acceptance report, paragraph 8.1, the dismissal report, where it was clear that the Commissioner realised that this is probably a mistake. 8.1 JUDGE: Paragraph 8.1? MR HAVENGA: 8.1, at page 8 of bundle 1. MR SHAKOANE: Judge, I believe I read that 8.1 when the court then referred me to what would have been in the affidavit. That is the paragraph I have read to the court and with respect to my learned friend, … JUDGE: Ja, you didn’t read the whole of 8.1. MR SHAKOANE: In the process of reading the Judge said, intervened to say, it was a clear mistake and it’s acknowledged by the Respondent. JUDGE: Yes, and the acknowledgement is in the rest of that paragraph. Even if what has been written in sub-section 2.1 of section 2 of the claim form, was to be condoned, on the basis of lack of understanding of the question, the Hlaneki Tribe would still not qualify for restitution of land rights as already explained in 3 … (inaudible) … Now, this is an acknowledgement by the Commissioner himself. MR SHAKOANE: What he is saying is, you know, it’s like in any process of decision making, what he is saying that, assuming that my basis, as regard to that, are incorrect, I would still hold the view that the claim does not comply with the criteria.

the Court’s response (during the review application) to protestations by applicants’ counsel that it appeared the Court had prejudged the issues.

Quote from p17 line 1 to 20

JUDGE: I don’t understand why you are belabouring this point, but you can go as long as you like on it because your client’s reasons that stands to be reviewed, are:

You have no mandate. You are claiming land that you are on already and you just want an upgrade of rights, or security of tenure.

Nowhere in the reasons is it being said that you were dispossessed in 1881, clearly indicating that the Commissioner saw that to be a mistake on the part of the person who completed the form, and he

says so, in so many words, in paragraph 8.1. He is not using 1881 as a basis for rejecting the claim.

Quote from p17 line 24 to p18 line 1 to 30

MR SHAKOANE: No, it depends whether or not, if ever I will not be able to persuade the

court on that aspect, then … JUDGE: No, no, no, I’m not preempting you. You can persuade me that in fact I’m wrong in thinking, that that does not form the basis of the Commissioner’s decision. MR SHAKOANE: Well, I heard the note from the Judge to say that I can pursue the point, I mean the court doesn’t understand why I am belabouring the point, and I can persuade as much as I like, … JUDGE: Ja, no, what I meant, what … MR SHAKOANE: So that to me, with respect to the court, it means that the court has made up its mind on that aspect, and I cannot change the court’s mind, and … JUDGE: I’m sorry, I’m sorry, if that’s how it came across, that’s not what I meant. What I meant was, that I’m not here to curtail you from your argument. If you do want to pursue it you are free to pursue it, but the reason why I was not understanding why you’re pursuing it, is because I didn’t see it as one of the reasons for rejecting the claim, from the point of view of the Commissioner, but if it is, you are welcome to pursue it. MR SHAKOANE: Well Judge, I will not … I would have liked to get the court through my submission through that, but … JUDGE: No, no, no, please do, please do. MR SHAKOANE: It doesn’t seem that I will pass through that one. JUDGE: No, go ahead.

I turn now to the allegation that the Court denied the applicants’ counsel the right to reply. The fact is that the present respondents were applicants in the review application. Respondents’ Counsel did not present his opening argument because the Court had said it did not need to hear him. I mention here that both counsel had filed written heads of argument which the Court read before the hearing. As is practice, the Court presumed the parties had exchanged copies of such heads. So, when applicants’ counsel stood up to argue, he was in fact answering, after which respondents’ counsel replied. There was no further right of reply available to the applicants’ counsel, acting then as he did, for the respondents, unless he applied for one. He did not apply for such right.

The application for leave to appeal contains a long list of grounds of appeal, some of which appear to be repetitions. The said grounds refer to issues canvassed in the judgment and to which I have nothing more to add.

It is trite that the test for the grant of an application for leave to appeal is whether the applicant has prospects of success on appeal. To answer this question a court must be satisfied that another could come to a different finding. I am not so satisfied. In the circumstances the application can, therefore, not succeed.

The following order is made:

The application for leave to appeal is dismissed with costs.

____________________

JUDGE J MOLOTO

For the applicants:

Mr Shakoane instructed by State Attorneys.

For the first, second and third respondents:

Adv Havenga instructed by C H Coetzee Attorneys.

1 Act 22 of 1994, as amended.