Isizwe Sakwa Dludla (Dludla Tribe) v Regional Land Claims Commissioner, KwaZulu-Natal and Others (LCC03/2009) [2017] ZALCC 9 (12 June 2017)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

BEFORE: BERTELSMANN J & CANCA AJ

CASE NO.: LCC 03/2009

DATE: 12-06-2017

In the matter between:

ISIZWE SAKWA DLUDLA (DLUDLA TRIBE)

Applicant

And

THE REGIONAL LAND CLAIMS COMMISSIONER, First

Respondent

KWAZULU-NATAL

MONDI LIMITED AND OTHER INTERESTED Second Respondents

PARTIES

EMAKHASENENI COMMUNITY

Third Respondent

CHIEF DIRECTOR: PROVINCIAL DEPARTMENT Fourth

Respondent

OF LAND REFORM

CHIEF DIRECTOR: DEPARTMENT OF LAND Fifth

Respondent

AFFAIRS: RESTITUTION

JUDGMENT ON REVIEW APPLICATION

BERTELSMANN J

INTRODUCTION

1. The applicant seeks a review of the first respondent's decision to gazette the claim lodged by Mr Dumisani Cleopas Dludla as a community claim of the Emakhasaneni without including the town of Melmoth in the claim. The claim as formulated by the late Mr Dumisani Cleopas Dludla was lodged on 8 December 1995 and was accepted without reservation by the first respondent.

2. It is common cause that the gazetted claim excludes the town of Melmoth. It also did not refer to the lsiszwe Sakwa Dludla (Dludla

Tribe), ("the intervening party''), as a claimant. The applicant contends that it is a community as defined in the Restitution of Land Rights Act 22 of 1994 and should have been acknowledged as having a claim competing with the Emakhaseneni community's claim. Furthermore the description of the land claimed should include 'all the land on which the town of Melmoth has been built/developed."

3. The applicant further seeks a stay of the present proceedings, namely the claim by the third respondent over and to land described in the referral, pending the processing of the claim formulated in the fashion set out in the preceding paragraph.

4. The review application was opposed by the first, fourth and fifth respondents.

The third respondent initially gave notice of its intention to oppose, but eventually supported the relief claimed in respect of the inclusion of the town of Melmoth, but did not support the prayer that the entire claim be suspended pending finalisation of the investigation and gazetting of the part of the claim relating to the town of Melmoth. The second respondents abided the decision of the court.

5. The issue of the proposed intervention has been decided and the applicant has been allowed to intervene, albeit at the price of a negative costs order. That leaves the question whether the claim that was accepted by the first respondent is correctly reflected in the gazetted claim. The first respondent contends that it was indeed correctly gazetted. The applicant on the other hand argues that, upon a correct interpretation of the claim advanced by the community, the town of Melmoth ought to be included in the claim.

6. The gazetted claim was referred to this Court in 2008. Various farms are affected by the claim which is opposed by the respective land owners. It is common cause that all these farms are in the same area as Melmoth.

7. The progress of the gazetted claim endured the usual tortuous delays while winding its way through the forensic maze that bedevils most opposed land claims. In the present instance the delays were extraordinary even by land claim standards. There were disputes

between the intervening party and the third respondent and repeated, but unsuccessful, efforts to resolve same by pre-trial conferences

and other meetings. Once the matter had been enrolled during the second half of 2015 the trial had to be postponed because of the

application to intervene by the intervening party. The review application was launched at the same stage and argued some time later. Once a new trial date had been determined for the second half of 2016, the Honourable Constitutional Court's judgment setting aside the Restitution of Land Rights Amendment Act caused a delay In the finalization of all pending restitution claims, as this Court had to consider the implications of the setting aside of the Amendment Act upon claims that had in the meantime been lodged in terms of the latter. ("the new claims"). This judgment on the review application had already been prepared, but was held back pending the hearing of this Court on the fate of the new claims. After the Court's determination of the status of these claims a new trial date was arranged for August 2017 while the parties to the review application were given an opportunity to make final submissions in the light of the Court's determination of the fate of the new claims. Some time expired before all the parties communicated that they had no further submissions to make. At this juncture it was discovered that the draft review judgment had been deleted from the presiding Judge's computer, presumably because he had since retired from active service. All efforts to trace a printed copy were in vain, necessitating a rewrite of the judgment. The words in this new version may differ slightly from those used in the original draft, but the result remains the same.

8. The above narrative provides strong support for the argument that an adversarial process in a High Court is hardly suited to drive what is supposed to be a conciliatory exercise of addressing past injustices by land restitution.

THE MERITS OF THE REVIEW APPLICATION

9. The review turns on the correct interpretation of a key phrase in the claim form prepared and signed by Mr Dumisani Cleopas Dludla when lodging the claim on behalf of the intervening party. The claim form was completed in lsizulu, Mr Dludla's mother tongue. Par 9 of the claim form invited the claimant to provide any further information other than the particulars already supplied in respect of the land that was dispossessed, the community that was deprived of its ancestral home, whether compensation was paid to those who had been deprived of their land and particulars of family members that might have an interest in the claim. The manuscript answer reads: 'Ngiyathonda ukuthi ikomishane ugzi ukuthi lendawo esayephuewa abaMhlophe iuinelewo manie eseyethuthutuiswa ngeme bulezi ezolimo

kanjalo nedolobe lakhe kuyo lendaye okuwerkha eminye imizi yakuta-Dludla. The english version ·of this phrase as supplied by the applicant records that: 'I would like the Commission to know that the place was seized from us by the Whites, it is now a place that has been developed with agricultural farms as well as the town has been built on the place where some of the Dludla homestead was built.'

10. The first, fourth and fifth respondents, who oppose the review application, translated he phrase somewhat differently: 'I like the Commission to know that the area of which we were dispossessed is a place which has now been developed with agricultural farms and the town is also situated in this area where some of the Dludla homesteads were built.' The State respondents contend that this phraseology excludes the town of Melmoth from the intervening party's claim.

11. A further indication that the applicants did not intend to include the town in their claim, according to the State respondents, is the fact that the applicant's representative deleted the words 'in an urban area' in paragraph 1 of the claim form, and selected the alternative ‘rural’ to describe the area and nature of the claim.

12. The term ‘rural’ does, of course, often apply to smaller settlements in areas that are situated in country districts some distance from cities and larger towns. Indeed, the South African Local Government Association and the Department of Rural Development and Land Reform refer in some of their official documents to 'rural towns'.[1] If the first respondent interpreted the word 'rural' as relating to agricultural land only he was clearly mistaken.

13. And there appears to lie the rub. It is common cause that the first respondent never, when investigating the claim, or preparing its referral report in terms of section 14 {2) of the Restitution of land Rights Act 22 of 1994, considered the question whether the rural town of Melmoth was included in the claim or not. It is clear that the first respondent erred in this respect and thereby failed, as Mr Shokoane for the applicants quite correctly pointed out during argument, to properly investigate and consider the applicant's claim.

14. Quite apart from the definition of a rural area, the first respondent misinterpreted the applicant's answer to the question put in paragraph 9 of the claim form, as quoted above. In argument it was virtually common cause that the applicant's translation of the lsizulu answer was the correct or nearest translation.

15. This finding puts the issue beyond doubt. The first respondent has not fully and correctly fulfilled its function to investigate and consider the applicant's claim. The application for a review is therefore justified on the facts of the case.

16. Rule 35 of the Rules of this Court provides for a review of, inter alia, any decision (or failure to decide) of any functionary and therefore also of the first respondent. The only potential problem in the way of granting the order sought by the applicant is the fact that the review was brought long after the first respondent decided to gazette its claim without any reference to the rural town of Melmoth. A strong argument might be advanced that the applicant should have reacted to this decision many years ago. On the other hand, it is clear that many efforts were made prior to the referral of the claim as gazetted to avoid the applicant having to join the proceedings as a competing party rather than as a part of the Emakhasaneni community. In addition restitution of land is a constitutional imperative in the realisation of ways to rectify the injustices of the past. A court must be slow to deny a land claimant with a claim that may be valid access to justice. The Restitution of Land Rights Act 22 of 1994 is an Act that is aimed at bringing about justice for communities that are often ill-equipped to safeguard their rights without the assistance of a legal representative and experience huge challenges because of poverty, lack of opportunities and skill and the consequences of the political wrongs of the past. Such acts must be given an interpretation that aims:

"to give the greatest possible protection and to promote the socio­ economic rights of victims ........ ... It must be construed at all times to give access to courts and justice rather than to limit access to justice." (See Law Society of South Africa & another v Minister for Transport & another [2010] ZACC 25; 2011 (1) SA 400 (CC)

per Shongwe JA in Mbele v Road Accident Fund 2017 (2) SA 34 (SCA). Although that judgment deals with Road Accident Fund matters the principle there enunciated is applicable in similar measure to land claims.

17. It follows that the review application must succeed to the extent that the first respondent's failure to consider, investigate and validate the applicant's claim must be set aside and the first respondent must deal with the same as if it had been validly lodged in compliance with the Restitution of Land Rights Act 22 of 1994.

18. In the meantime the gazetted part of the claim has been referred to this Court and has progressed to the trial stage. It would be impractical and wasteful both in respect of time and costs to suspend the trial until the Melmoth issue has been investigated and validated, gazetted or rejected. Rule 57 (1) (c) allows the Court to decide that an issue should be tried separately from any other issue arising in the matter. It is clearly appropriate and in the interests of justice and expediency to order that the question whether the claim regarding the town of Melmoth is valid and should be gazetted or rejected, should be tried separately from the claim to the properties now before this Court. An important further consideration in favour of a separation of the Melmoth issue is the fact that the owners of properties in the town will differ from the land owners currently before the court.

19. The successful applicant has asked for a costs order against the State respondents. Although the intervening party, the applicant, will presumably be provided with legal representation to pursue the Melmoth claim, it had to fund its own costs to date. A costs order is therefore appropriate.

The following order is therefore made:

1. The first respondent's decision not to include the town of Melmoth, alternatively, the first respondent's failure to include the town of Melmoth in the claim lodged by Mr Dumisani Cleopas Dludla on behalf of the Dludla Tribe, on the 8th December 1995, is reviewed and set aside;

2. The first respondent is ordered to deal with the aforesaid claim as a claim that was validly lodged in respect of the town of Melmoth and to deal therewith according to the provisions of the Restitution of Land Rights Act;

4. The first, fourth and fifth respondents are ordered to pay the applicant's costs.

__________________

E BERTELSMANN

Judge of the Land Claims Court

MP CANCA

Acting Judge of the Land Claims Court

APPEARANCES:

For the Applicant: Adv. Shakoane

Instructed by: Ntshalintshali Attorneys

For the 1st , 4th & 5th Respondent/s: Adv. Norman and Adv. Nqala

Instructed by: The State Attorney

[1] See: Guidelines for the Revitalisation of Rural Towns and Regions, 2012, Department of Rural Development and Land Reform, published by SALGA (South African Local Government Association)