Mariti Landgoed (Pty) Ltd v Minister of Land and Agricultural Affairs and Others (LCC132/06) [2008] ZALCC 9 (24 April 2008)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT RANDBURG)

Case no: LCC132/06

Heard: 10 March 2008

Decided: 24 April 2008

In the matter between:

MARITI LANDGOED (PTY) LTD Applicant

and

THE MINISTER OF LAND AND

AGRICULTURAL AFFAIRS 1st Respondent

COMMISSSION ON RESTITUTION

OF LAND RIGHTS 2nd Respondent

REGIONAL LAND CLAIMS COMMISSIONER

MPUMALANGA 3rd Respondent

SANDFORD COMMUNITY TRUST 4th Respondent

JUDGMENT

Gildenhuys J:

[1] The litigation between the parties in this matter became settled, except for the question of costs. The sole issue now before me is who must pay the costs.

[2] The applicant is the owner of land known as portion 42 of the farm Sandford No 291 KU. The land is subject to a restitution claim by the Stanford Community in terms of the Restitution of Land Rights Act No 22 of 1994. The claim was published in the Government Gazette on 22 November 2002. The applicant was prepared to sell the land to enable the first respondent to restore the land to the fourth

respondent.

[3] The applicant concluded three agreements to sell the land to the first respondent: the first on 18 January 2004, the second on 13 September 2004 and the third on 22 November 2005. All of these agreements were subject to the suspensive condition that the Minister approves the sale. None of the agreements resulted in a binding, unconditional sale of the land. The Minister’s approval of the transaction could not be obtained timeously, or at all.

[4] During October 2006, the applicant brought an application to this Court, claiming relief under the Promotion of Administrative Justice Act No3 of 2000. The first, second and third respondents served a notice of appearance to defend on 13 November 2006.

[5] After answering and replying affidavits were delivered, the matter was set down for hearing on 18 and 19 February 2008. On 18 February 2008 the applicant applied for an amendment of its notice of motion by adding the following additional prayer:

“That the third respondent is ordered to refer the fourth respondent’s restitution claim to the Court in terms of the provisions of section 14(1)(b) or (d) of the Restitution of Land Rights Act, 1994, within a period one month after date of this order, alternatively such longer time as the Honourable Court may find just, unless the parties have reached a prior settlement, or the first respondent has served an expropriation notice on the applicant prior to the expiry of the period of one month”

The amendment was opposed. The hearing of the main application, and also the hearing of the application for amendment, was then postponed to 10 March 2008.

[6] On 29 February 2008 the parties concluded a settlement agreement. It reads as follows:

“The applicant and the first, second and third respondents in this matter agree to

settle the application pending before the Land Claims Court under case no:

LCC132/06, in the following terms:

1. The first respondent undertakes to expropriate the applicant’s Farm, namely the Remaining Extent of Portion 46 (a portion of Portion 2) of the Farm Sandford 291KU, on or before 10 May 2008, in terms of the provisions of s42E of the Restitution of Land Rights Act, 1994, read with the Expropriation Act, 1975, and will serve the final notice of expropriation on the applicant within the period referred to above.

The applicant hereby consents to the expropriation and that a final notice of expropriation being served on him without the need to first provide the applicant with a notice of intended expropriation.

The parties’ consent to this agreement being dealt with by the Court in terms of Rule 62(1)(a) of the Land Claims Court Rules.

Consequently, only the issue of costs was argued before me on 10 March 2008.

[7] Mr Havenga, who appeared for the applicant, submitted that the first, second and third respondents should be ordered to pay the applicant’s costs, mainly on the basis of alleged improper behaviour of the respondents in the conduct of negotiations for the sale of the land, their ostensible high-handed attitude, averred groundless accusations of unlawful and improper conduct made against the applicant in the respondents’ answering affidavit and the respondents’ failure to perform their duties expeditiously.

[8] In a long line of decisions of this Court, it was held that cost orders will normally not be granted. See Hlatshwayo and Others v Hein 1990 (2) SA 834 (CC) at paragraphs [24] – [26] and Ngcobo & Another v Van Rensburg and Others 1999 (2) SA 525 at paragraphs [29] – [30]. The reason is that litigants should not be discouraged from approaching this Court to enforce their rights through fear of an adverse cost order. This approach will not necessarily be followed where the conduct of one of

the parties is discreditable, or where fairness requires otherwise.

[9] Mr Havenga submitted that practice of not making cost orders should not apply to caces against the State, particularly where the State takes an indefensible position. I fail to see why in this respect the State should be treated differently from any other litigant. If a party acts improperly, that party bears the risk of an adverse cost order, irrespective of whether it is the State of somebody else.

[10] I cannot, without full argument, conclude whether the applicant’s claim as set forth in its notice of motion (before its amendment) would have succeeded or not. It will not be practicable for me, merely for the purpose of deciding whether or not I should deviate from this Court’s general policy of not making cost orders, to go fully into the merits of the claim. Suffice to say that, despite some unsubstantiated aspersions in the respondents’ answering affidavit concerning the applicant’s integrity, there is insufficient reason to depart from the general policy of not making cost orders.

[11] As pointed out by Mr Bedhesi, the outcome of this matter is that by compromise between the parties, the process for the purchase of the applicant’s property has been short circuited in the sense that all preliminary and repetitive procedures are excluded and the final course of expropriation is put into effect. All parties are losers in that neither party achieved the prayers claimed in the papers filed and, after settlement, all parties became winners in that the settlement of the fourth respondent’s claim by restoring the applicant’s property to them, has moved many strides ahead.

[12] I agree with Mr Bedhesi. The case was settled on an basis not envisaged in the papers prior to the application for amendment of the notice of motion.

[13] For the reasons given above, I will make no cost order in this matter.

____________

A Gildenhuys

JUDGE OF THE LAND CLAIMS COURT

Appearances

For the applicant

Mr H S Havenga

instructed by

Couzyn Hertzog & Horak, Pretoria

For the first, second and third respondents

Mr Bedhesi SC

The State Attorney, Pretoria