Mangethe Committee v Regional Land Claims Commissioner, KZN and Others (LCC36/09) [2011] ZALCC 4 (17 February 2011)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC36/09

RANDBURG

Before: Mpshe AJ

Decided: 17 February 2011

In the matter between

MANGETHE COMMITTEE …...............................................................................APPLICANT

And

THE REGIONAL LAND CLAIMS COMMISSIONER, KZN …...................1ST RESPONDENT

THE MINISTER OF LAND AFFAIRS …...................................................2ND RESPONDENT

CHIEF LAND CLAIMS COMMISSIONER …............................................3RD RESPONDENT

INKOSI KHAYELIHLE WISEMAN MATHABA N.O. …............................4TH RESPONDENT

RICHARD THEMBA MTHEMBU N.O. …..................................................5TH RESPONDENT

ANTON MANDLA MANZINI N.O. ….........................................................6TH RESPONDENT

WILSON NDLOVU N.O. …........................................................................7TH RESPONDENT

ELNA KHUPHUKILE NDLOVU N.O ….....................................................8TH RESPONDENT

ABEL BOY NDLOVU …............................................................................9TH RESPONDENT

BHEKITHEMBA RICHARD SITHOLE N.O. …........................................10THRESPONDENT

BHEKELIHLE PETROS NKWANYANA N.O. …....................................11TH RESPONDENT

COTRIDA MDANDA N.O. …...................................................................12TH RESPONDENT

NQUDU ALFRED MSWELI N.O. ….........................................................13th RESPONDENT

MUHLE GODFREY MHLONGO N.O. …..................................................14th RESPONDENT

THE MANGETE LANDOWNERS ASSOCIATION ….............................15TH RESPONDENT

WYOLA SWARTZ / VERONA PRETORIUS …......................................16TH RESPONDENT

DEPARTMENT OF PUBLIC WORKS …................................................17TH RESPONDENT

VINCENT SEVERS ….............................................................................18TH RESPONDENT

GRANVILLE SHENKER ….....................................................................19TH RESPONDENT

WINSTON BOND …................................................................................20TH RESPONDENT

JUDGMENT

____________________________________________________________________

MPSHE AJ

Introduction

This is an application in terms of Section 36(1) of the Restitution of Land Rights Act 22 of 1994 (the Act). The relief sought states:

Reviewing the decisions of the Minister of Land Affairs and the Chief Commissioner of Land Affairs and Bhekafama Trust to contract the S42D Agreement of the Resitution of Land Rights Act 22 of 1994 (“the framework agreement”) which was concluded at Mangethe on the 30th November 2002.

That the said S42D framework agreement be set aside and the Minister of Land Affairs and the Chief Commissioner of Land Affairs refer this matter de novo to the Land Claims Court in terms of S 14 of the Restitution of Land Rights Act 22 of 1994.

That the Respondents be ordered to pay the costs of this application jointly and severally.

Background

The applicant is made up of persons residing in the area of Mangethe in reserve 7A 15826 within the Mtunzini Magisterial District in KZN. The reserve is commonly known as Dunn’s Reserve.

The community of Mangethe was dispossessed of unregistered land rights as contemplated in Section 1 of the Act. The community was made up of 199 families of the time of dispossession which took place between the period 1976 -1977.

The community lost its rights as a result of racially discriminatory laws and practices as contemplated in Section 2 (1) (a) of the Act. These discriminatory laws are:

The John Dunn Act 15 of 1935

Bantu Trust Act 18 of 1936

Proclamation 118 of 1974

Proclamation 118 of 1974 as amended by Proclamation 88 of 1977 and

The Native Land Act 27 of 1913

On the 14 August 1996 a claim was lodged by Inkosi Khayelihle Wiseman Mathaba with the commission more specifically first respondent herein.

The Inkosi Khayelihle Wiseman Mathaba acted on behalf of the Mangethe community.

The land claimed was reserve 7A # 15826 comprising of 70 subdivisions and a remainder.

The said claim was accepted and published in the Government Gazette Notice # 1421 of 1998 dated 24 July 1998 in terms of Section 11 (1) of the Act.

A trust known as Bhekamafa Trust was then formed by the claimant community. This trust has as its trustees the Fourth to Fourteenth respondents. Bhekamafa Trust was formed in terms of Section 6 (1) of the Trust Property Control Act 57 of 1988.

As its main objective the trust provides that it will acquire rights in land, hold, develop or improve, manage such land or property to the benefit of its members.

Pursuant to protracted negotiations a Section 42D agreement was signed on the 30 November 2002.

The applicant was allegedly formed on the 3 February 2008 to investigate the delay in the claim. On April 2008 after communication with the commission applicant discovered that the Section 42D framework agreement had been concluded.

Almost five (5) months later on the 10 August 2008. Applicant decided to engage services of a lawyer to challenge the Section 42D agreement.

The current application was then launched eighteen (18) months later on the 27 March 2009.

MERITS OF THE CASE

The first to fourth respondents raised two points in limine namely locus standi of the applicant and inordinate delay in launching of the review application. The fourth to fourteen respondents raised a third point in limine being the jurisdiction of this court.

I shall now deal with those points in limine.

LOCUS STANDI OF APPLICANT

It is trite that a party instituting litigation proceedings has to allege and prove locus standi. The onus so to do lies with that party throughout the proceedings. Mars Inc: v Candy World (Pty) Ltd [1990] ZASCA 149; 1991 (1) S.A. 567 (A) (a) 575.

Mrs. Gabriel for the First to Third respondents argued that the applicant has no locus standi to bring this application. She further stated that applicant was not a universitas personorum and therefore not a legal entity. Applicant in its founding affidavit nor replying affidavit did not allege existence of a constitution. This happened despite the fact that respondents 1-14 mention this fact in their respective answering affidavits.

It needs to be mentioned that Mr. Choudree for applicant informed the court in argument that a constitution was in existence and same will be produced. Of importance is that the existence of the said constitution was mentioned by counsel upon enquiry by the court.

Perusal of the said constitution reveals that the constitution was signed on the 02 June 2008. I fail to comprehend as to why it was not alleged and attached to the founding affidavit.

I do not know the evidential value of this constitution for the following reasons:

On the unnumbered page under ACCEPTANCE AND ADOPTION OF THE CONSTITUTION it is stated “All members listed above are deemed to have adopted this constitution and they are bound by it”. The meaning thereof , in the absence of any list of persons, is that the very committee members adopted this constitution on behalf of a community they allegedly represent.

Under the PREABLE (supposed to be Preamble) the community met and put the applicant in existence on the 03 February 2008. This is clear that the alleged constitution has no support of the community neither was it adopted by the community the applicant seeks to represent.

There is no list of attendants or community members who participated in the establishment of the applicant.

I find it difficult to accord this document any evidential value.

Applicant in its replying affidavit refers to Rule 10 (1) (f) of the Rules of this court. The rule provides as follows:

“Any entity which is a community may under these rules be cited as a party in its own name without reference to the names of its members or office bearers”. (My emphasis)

I have already indicated supra that there is no evidence proving that applicant is an entity. There is further no evidence to the effect that applicant is a community.

Counsel for the applicant was at pain to show the court a list of at least members of the community that are represented by the applicant. It is not surprising as no such list exists. It is trite that a committee is generally representative of a certain number of people.

The founding affidavit of Sipho Michael Kunene page 13 paragraphs 1.4 refers to “a resolution adopted on 10 August 2008 authorizing the deponent” to bring this application. Perusal of Annexure “A” referred to reveals clearly that this is not a resolution but minutes of a meeting held by this group of people.

In his heads of Argument Mr. Choudree for the applicant referred to section 38 of the Republic of South Africa Constitution # 108/1996. The section provides as follows:

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are:

anyone acting in their own interest;

anyone acting on behalf of another person who cannot act in their won name;

anyone acting as a member of, or in the interest of, a group or class of persons;

anyone acting in the public interest; and

an association acting in the interest of its members.

Section 38(a) to (d) is not applicable to the applicant but 38 (e). However, 38 (e) does not avail applicant with locus standi. Applicant did not reveal its members for whose interest it is acting. If indeed applicant is an association. FERREIRA v LEVIN N.O. & OTHERS 1996 (1) BCLR (1) CC @ paragraph 231.

First point in limine is unassailable.

INORDINATE DELAY

It is trite that review proceedings in general must be launched “without unreasonable delay” or reasonably quickly. This is the position in terms of the Promotion of Administrative Justice Act (PAJA) 3 of 2000, and common law review. There is however no time stipulation in the common law review and the courts are to consider all relevant circumstances in deciding on the reasonableness or otherwise of the delay.

This application is based on the provisions of Section 36 of the Act. The section provides as follows:

Any party aggrieved by any act or decision of the Minister, Commission or any functionary acting or purportedly acting in terms of this Act may apply to have such act or decision reviewed by the Court.

The Court shall exercise all of the Supreme Court’s powers of review with regard to such matters, to the exclusion of the provincial and local divisions thereof.

Mr. Choundree, counsel for the applicant submitted that the delay was caused by the fact that applicant was kept in the dark about S42D agreement. He further submitted that applicant could not obtain information quickly. This of course can not fly having regard to paragraphs 24 and 25 of the founding affidavit on page 23.

Perusal of paragraph 24 of the founding affidavit reveals that Applicant knew of the existence of the S42D. This was in April 2008. That Applicant was formed on the 03 February 2008 with the intention to investigate the delay.

Perusal of paragraph 25 to the founding affidavit reveals that various documents were given to their applicants’ attorney upon request. Nowhere in the affidavit is the reason for the delay dealt with. Mr. Choundree in his Heads of Argument states that the delay is properly explained in the papers and should be condoned. I find no reason why I should XXX to this submission. The delay issue is not dealt with in the papers, it is not on record. At page 330 paragraph 4.1 to the applicants reply to the first, second and third respondents answering affidavit states:

“The delay in instituting these proceedings has been elaborated on in the founding Affidavit”.

This is a mere statement finding no support in the Founding Affidavit.

REASONABLENESS OF THE DELAY.

The delay has to be reasonable depending on the circumstances of each and every case. However the requirement is that review proceedings are to be launched within a reasonable period – CHESTERFIELD HOUSE (PTY) LTD v ADMINISTRATOR OF THE TRANSVAAL & OTHERS 1951 (4) S.A. 421 (1) @ 424D – E.

Our courts have in previous decision barred review proceedings based on two months delay whilst others would in addition to delay period consider exceptional circumstances to allow condonation. HEPWORTHS LTD v THORNLOE AND CLARKSON LTD 1922 TPD 336.

VISSER, VISSER AND DU TOIT v UNION GOVERNMENT 1943 CPD.297.

It is trite that our courts in considering condonation for the delay, do not only consider the lapsed period but focus also, strongly on the presence or otherwise of prejudice to the respondent.

In casu the discovery of information that led to these proceedings was in April 2008. Five months later on the 10 August 2008 applicant engaged services of a lawyer. The proceedings were finally launched eight (8) months later. The total period is thirteen (13) months.

It is important to note that the S42D sought to be reviewed was concluded on the 30 November 2002. This totals seven years after the event. I have already indicated supra that no reasons were given for the delay. Applicants have not filed condonation for the delay iether.

On the question of prejudice there is no evidence on record by the applicant that if the relief sought is denied applicants will suffer prejudice. Instead Ms Gabriel for first to third respondents addressed court on prejudice to be suffered by the respondents should the S42D be reviewed and set aside. I am inclined to agree with counsels’ submission.

IN ASSOCIATED INSTITUTIONS PENSIONS FUND & OTHERS v VAN ZYL & OTHERS 2005 (5) S.A. 302 (SCA) @ paragraphs 46-47 the following was said:

“[46] Since PAJA only came into operation on 30 November 2000 the limitation of 180 days in s 7(1) does not apply to these proceedings. The validity of the defence of unreasonable delay must therefore be considered with reference to common-law principles. It is a longstanding rule that courts have the power, as part of their inherit jurisdiction to regulate their own proceedings, to refuse a review application if the aggrieved party had been guilty of unreasonable delay in initiating the proceedings. The effect is that, in a sense, delay would ‘validate’ the invalid administrative action (see eg Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004]) 3 All SA 1) at para {27}). The raison d’etre of the rule is said to be twofold. First, the failure to bring a review within a reasonable

time may casue prejudice to the respondent. Secondly, there is a public interest element in the finality of administrative decisions

and the exercise of administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41).

[47] The scope and content of the rule has been the subject of investigation in two decisions of this Court. They are the Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander 1986 (2) SA 57 (A). As appears from these two cases and the numerous decisions in which they have been followed, application of the rule requires

consideration of two questions:

Was there an unreasonable delay?

If so, should the delay in all the circumstances be condoned?

(See Wolgroeiers at 39C – D)

[48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Court’s discretion. It is an investigation into the facts of the matter in order to determine whether, in all the circumstance of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned ( see Setsokosane at 86E – F).(Emphasis added.) “

See also: THE CONCERNED LAND CLAIMNANTS ORGANISATION OF PORT ELIZABETH v PORT ELIZABETH LAND AND COMMUNITY RESTORATION ASSOCIATION & OTHERS [2006] ZACC 14; 2007 (2) SA 531 (CC) @ 543 – 544 paragraph 29 – 31.

AD JURISDICTION OF THIS COURT:

This point in limine was raised by fourth to fourteenth respondents Counsel for the respondents Ms Shaik did not take this point any further in her

submissions. I think this was a wise move as no basis for this point in limine exists.

Having upheld the first two points in limine I come to the conclusion that the application stands to be dismissed.

Consequently I order as follows:

Application is dismissed

Each party to pay its costs.

______________

M J MPSHE AJ

PRESIDING JUDGE