Mahlangu NO v Minister of Land Affairs and others (LCC116/99) [2003] ZALCC 3 (6 February 2003)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Held at Randburg on 23 January 2003 CASE NUMBER: LCC 116/99

before Moloto J

Decided on: 06 February 2003

In the matter between:

MAHLANGU, NH N.O. Applicant

and

THE MINISTER OF LAND AFFAIRS First Respondent

THE PREMIER OF GAUTENG Second Respondent

THE COMMISSION ON RESTITUTION OF LAND RIGHTS Third Respondent

THE REGISTRAR OF DEEDS Fourth Respondent

THE PREMIER OF THE NORTHERN PROVINCE Fifth Respondent

MANALA TRIBAL AUTHORITY Sixth Respondent

THE VUKU ZENZELE GROUP Seventh Respondent

BANTWANE TRIBE Eighth Respondent

ISCOR LIMITED Ninth Respondent

THE MINISTER OF AGRICULTURE Tenth Respondent

JUDGMENT

MOLOTO J:

This is an application for leave to appeal against an order of this court given on 27 December 2000 dismissing an application by the applicant in terms of the proviso to section 38B(1) of the Restitution of Land Rights Act1 (“the Act”), for leave to apply directly to the Court for restitution of a right in land and other relief. The application for leave to appeal was granted. Following are my reasons for granting such leave.

As appears from the judgment2 appealed against, it was never the intention to refuse the applicant leave to apply for restitution of the right in land. The view was that, before such application could be made, the applicant had to exhaust its remedies before the Regional Land Claims Commissioner (“RLCC”) by way of bringing under review the latter’s decision that the applicant’s claim did not qualify as a restitution claim.

The right to claim restitution of a right in land is protected in the Bill of Rights.3 It has been said that “a generous interpretation ... suitable to give to individuals the full measure of the fundamental rights and freedoms”4 be adopted. As against this guideline it is possible that another court might come to the conclusion that failure to exhaust one’s remedies before the RLCC is no bar to approaching a court for leave to apply for restitution in terms of section 38B of the Act. I am fortified in this belief, that another court might come to a different conclusion, by the Constitutional Court judgment in the matter of Bannatyne v Bannatyne.5 The relevant part of this judgment reads:

“Process-in-aid will not ordinarily be granted for the enforcement of a judgment of another court if there are effective remedies in that court which can be used. However, there may well be instances in which the facts of a particular case justify approaching a High Court for such relief....It is for the applicant to show that there is good and sufficient reason for the High Court to enforce the judgment of another court. What constitutes 'good and sufficient circumstances' warranting a contempt application to the High Court will depend upon whether or not in the circumstances of a particular case the legislative remedies available are effective in protecting the rights of the complainant and the best interests of the children. This much is confirmed in section 38 of the Constitution which permits a court to grant appropriate relief where it is alleged that a right in the Bill fo Rights has been infringed or threatened.”6

For the above reasons leave to appeal was granted.

JUDGE J MOLOTO

For the applicant: Adv C R Jansen instructed by De Jager & Associates, Pretoria.

For the first, second, third, fifth and tenth respondents: Adv M I Ismail instructed by the State Attorney, Pretoria.

1 Act 22 of 1994, as amended

2 At paragraph 54 thereof.

3 See section 25(7) of the Constitution, Act 108 of 1996.

4 Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) ([1979] 3 All ER 21) quoted with approval in S v Zuma and Others 1995(2) SA 642 at para [14]. See also South African National Defence Force Union v Minister of Defence and Another [1999] ZACC 7; 1999 (4) SA 469 (CC) at para [28].

5 CCT 18/02, 20 December 2002, available from www.law.wits.ac.za.

6 Note 5 above, at para [22]-[23].