Madondo Land Claim Community v Commission on Restitution of Land Rights, KwaZulu-Natal and Others (LCC48/2015) [2016] ZALCC 22 (17 November 2016)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC48/2015

Before: The Honourable Ncube AJ

Heard on: 04 November 2016

Delivered on: 17 November 2016

In the matter between:

MADONDO LAND CLAIM COMMUNITY

Applicant

and

COMMISSION ON RESTITUTION OF

LAND RIGHTS, KWAZULU NATAL

First Respondent

REGIONAL LAND CLAIMS COMMISSIONER,

KWAZULU NATAL

Second Respondent

CHIEF DIRECTOR: LAND RESTITUTION

Third Respondent

CHIEF LAND CLAIMS COMMISSIONER

Fourth Respondent

MINISTER FOR RURAL DEVELOPMENT & LAND

REFORM

Fifth Respondent

SILINDOKUHLE COMMINUNITY TRUST

Sixth Respondent

JUDGMENT

Ncube AJ

[1] This is an application in which the Madondo Land Claim Community (“applicant”) seeks an order declaring the first to fourth respondent’s Notice in terms of Rule 28 (2) of the Land Claims Court Rules, read with 35 (12) of the Uniform Rules of High Court as being irregular and have it set aside. The application is opposed.

[2] The applicant initially applied for the review and setting aside of the decision of the first respondent, to transfer the land claimed by the applicant into the name of a Trust known as Silindokuhle Trust. I shall refer to that application as (“the main application”).

[3] In the main application the applicant further sought an order directing the first, second and third respondents to register the land acquired by the applicant into the name of the Modondo Community Trust.

[4] The applicant successfully lodged a land claim with the first respondent. A monetary compensation was awarded as being equitable

redress. The Silindokuhle Trust was formed. Monies paid as compensation were paid into the Silindokuhle Trust account. That was

the decision, which the applicant in the main application sought to be reviewed and set aside.

[5] In paragraphs 49, 50 and 51 of the founding affidavit, Mr Mqhwagi Mncube of the applicant states:

“49. It is further worth mentioning that the Restitution Discretionary Grants allocated to the claimants in terms of the Section 42D submission in the amount of R3 150 000 .00 were paid into the banking account of Silindokuhle Community Trust. Thereafter, they were subjected to wanton looting by the erstwhile trustee of the Fifth respondent with the full knowledge and/or collusion with officials of the Commission. In proof of this averment, I annex herewith a copy of the Ithala bank statement and mark same “MM9”.

50. I am fortified in believing the existence of such collusion on account that the said misuse of the funds paid over to banking account of the fifth respondent was never subjected to any forensic investigation even though the officials of the Commission promised that such steps will be taken as far back as July 2011.

51. It is an inescapable and undeniable reality that the officials of the First Respondent deliberately clustered the various claims of communities around Weenen with the sole purpose of defrauding them of the grants allocated to them and furthermore to stifle any development aspiration that such communities might have”

[6] The respondents failed to file their answering affidavits until the applicant placed them under bar. On the last day, of them being under bar, the respondents filed a Notice (“the Notice.”) in terms of Rule28 (2) of the Rules of the Land Claims Court read with Rule 35 (12) of the Uniform Rules of High Courts. The Notice required the applicant to produce the document on which the allegations stated in paragraphs 49 to 51 were based.

[7] For purposes of convenience, it is necessary to quote Rules 28 (2) and 35 (12) in full.

Rules 28 (2) of the Rules of the Land Claims Court provides:

“Where these rules are silent in any matter, the Uniform Rules and the procedure in civil actions and applications followed by the division of the Supreme Court having Jurisdiction in the area where the land is situated, apply.”

Rule 35 (12) of the Uniform Rules of High Court provides:

“Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleading or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding, provided that any other party may use such document or tape recording.”

[8] Since the Rules of the Land Claims Court do not have a Rule. dealing with matters dealt with in Rule 35 (12), respondents relied on Rule 35 (12) of the Uniform Rules of High Court to require the applicant to produce the document on which it based the allegations made in paragraphs 49, 50 and 51 of its founding affidavit.

[9] The applicant construed the delivery of Rule 35 (12) notice by the Respondents to be an irregular step and applied that it be set aside. The grounds on which the applicant bases its application are that:

30.1. “That the respondents failed to invoke the provisions of Rule 28 (2) of the Land Claims Court read with Rule 35 (12) of the Uniform Rules of Court within the 15 days afforded to them by the Applicant’s Notice in terms of Rule 25 (3);

30.2. The Respondents decision to file the Notice is aimed at infringing the Applicant’s rights to finality in the matter and furthermore to undermine the authority of the court.

30.3. The Respondents curiously elect to file the sad Notice on the last day of them being placed on bar by the Applicant.

30.4. The said Notice is extremely prejudicial to the Applicant, which, as an impoverished community, has to be lumbered with unnecessary

legal costs for the litigation with no end in sight.

30.5. The Respondents are hell bent to ensure that the legal costs in the matter are eventually beyond the reach of the applicant.

30.6. The Respondents resorted to the filing of the notice as a calculated decision to frustrate the passage of the Applicant’s main application.”

[10] Ms Norman, counsel for the respondents, correctly, in my view, argued that Rule 35 (12) does not set a time limit within which a party may file such a notice. The only requirement is that the notice must be filed before the hearing of the matter. Therefore, she argued, the submission by Mr Hlatshwayo, the attorney for the applicant, that the notice should have been filed within 15 days allowed by the applicants, does not carry water. Ms Norman argued further that the contention that such notice should be filed before the respondents were placed on bar, is not concomitant with the requirements of Rule 35 (12).

[11] Rule 35 (12) requires a party who, in his pleadings or affidavit, makes reference to a document or a tape recording, to produce such a document, or a tape recording for inspection by the other party and also to allow such other party to make a copy of the said document or a transcription of the said tape recording.

[12] In paragraph 49, 50 and 51, the applicant never made reference, within the meaning of Rule 35 (12), to any document or tape

recording. It is true that in paragraphs 49, 50 and 51 of the founding affidavit, the applicant alleges corruption on the part of the officials of the Commission. In support of those allegations, the applicant annexed to its founding affidavit, a copy of a bank statement “MM9”. The respondents are aware of that bank statement. It does not appear anywhere in the applicants founding affidavit that it has in its possession a document or a tape recording. The applicant has not made reference to any document or tape recording on which allegations of corruption are based.

[13] The object of Rule 35 (12) is to give a litigant an opportunity to inspect and copy any document that is mentioned in his opponent’s

pleading or affidavit – see Protea Assurance Co Ltd v Waverley Agencies cc 1994 (3) SA 247. As Mr Hlatshwayo correctly argued, Rule 35 (12) does not require a production of any other evidence, except the document or tape recording, which a party refers to in his pleading or affidavit.

[14] Ms Norman argued that for a deponent to make allegations made on paragraph 49, 50 and 51 of his affidavits, he must have a document from which he obtained such information. That is an assumption, it is not what the applicant says in its affidavit and it is not what Rule 35 (12) requires.

[15] There is no doubt that the allegations made against the respondents are scandalous. However, in my view, the respondents could have applied in terms of Rule 23 (2) of the Uniform Rules of High Court to have those allegations struck out from the applicant’s

affidavit. I am not persuaded to believe that filing of Rule 35 (12) Notice was justified in the circumstances of this case.

[16] In the result, I made the following order:

1. The application is granted.

2. Respondent’s notice in terms of Rule 28 (2) of the Land Claims Court Rules, read with Rule 35 (12) of the Uniform Rules of High Court is set aside as an irregular step.

3. The frst, second, third and fourth respondents are ordered to file their answering affidavit in respect of the applicant’s main application within ten (10) days from the date of receipt of this order.

[4] Costs reserved.

_____________________________

Ncube AJ

Acting Judge of the Land Claims Court