Matabane Community v Minister of Rural Development And Land Reform and Others (LCC 99/2009) [2013] ZALCC 15 (30 October 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELDATRANDBURG

CASE NO.: LCC 99/2009

DATE: 30 OCTOBER 2013

THE MATABANE COMMUNITY..........................................................................................Claimant/Plaintiff

Concerning certain farms in the Waterberg District Limpopo Province

And

MINISTER OF RURAL DEVELOPMENT AND LAND REFORM.......................................First Defendant

AFRIBLAZE LEISURE (Pty) and 16 OTHERS..............................................................2nd to 17th Defendants

OTHER PARTICIPATING PARTIES................................................18™ AND FURTHER DEFENDANTS

JUDGMENT

1. The matter concerns an interlocutory application launched as part of the proceedings instituted in this Court to finalise a restitution claim by the applicant.

2. In order to place the application in its proper context a few remarks concerning the nature and importance of land restitution claims generally are apposite.

3. Section 25 of the Constitution expressly provides in subsection (1) thereof that the right to property is protected and that no one may be arbitrarily deprived of property. Subsection (2) permits expropriation through a law of genera! application, for a public purpose or in the public interest, subject to compensation. Subsection (4) determines that "public interest" includes "the nation's commitment to land reform...". Subsections (6) and (7) establish the entitlement of persons or communities who suffered insecurity of tenure or deprivation of land as a result of past discrimination to redress and restitution to the extent determined by an Act of Parliament.

4. For purposes of the present dispute, a restitution claim in respect of several farms, the applicable statute is the Restitution of Land Rights Act 22 of 1994. (“the Act”). Its preamble firmly establishes that the Act was placed on the statute book to give content to the constitutional principle of land reform:

To provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices; to establish a Commission on Restitution of Land Rights and a Land Claims Court; and to provide for matters connected therewith.

WHEREAS the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provides for restitution of property or equitable redress to a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices;

AND WHEREAS legislative measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken to promote the achievement of equality/’

5. Section 4 of the Act establishes the Commission on the Restitution of Land Rights. Its functions are set out in section 6 of the Act. Because of the importance of the duties that are imposed upon the Commission by the

imperative wording of this section ("The Commissioner shall............... "), it is quoted

in full: General functions of Commission

6. (1) The Commissioner shall, at a meeting or through the Chief Land Claims

Commissioner, a regional land claims commissioner or a person designated by such commissioner -

(a) subject to the provisions of section 2, receive and acknowledge receipt of all claims for the restitution of rights in land lodged with it in terms of this Act;

(b) take reasonable steps to ensure that claimants are assisted in the preparation and submission of claims;

(c) advise claimants of the progress of their claims at regular intervals and upon reasonable request;

(d) subject to the provisions of section 14, report to the Court on the terms of settlement in respect of successfully mediated claims;

(e) define any issues which may still be in dispute between the claimants and other interested parties with a view to expediting the hearing of claims by the Court; at regular intervals, take appropriate steps to make public information regarding the persons entitled to claim restitution of rights in land in terms of section 121 of the Constitution, the limitations imposed by section 2, and the manner in which claims may be lodged with the Commission.

(2) The Commission may, at a meeting or through the Chief Land Claims Commissioner a regional land claims commissioner or a person designated by such commissioner -

(a) monitor and make recommendations concerning the implementation of orders made by the Court under section 35;

(b) maker recommendations or give advice to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of this Act;

(c) refer questions of law and interpretation to the Court;

(d) ensure that priority is given to claims affecting a substantial number of persons, or persons who have suffered substantial losses, or persons with particularly pressing needs;

(e) generally, do anything necessarily connected with, or reasonably incidental to the expeditious finalisat ion of claims."

6. There can be no doubt about the fact that the Commission and its Commissioners, Regional Land Claims Commissioners and other functionaries are obliged to not only assist claimants whose claims have been validated to achieve a resolution of such a claim, but also to ensure that validated claims are disposed of with reasonable expedition. The very purpose of and reason for the existence of the

Commission is the need acknowledged by the founding fathers of the Constitution that grave wrongs perpetrated in the past upon

communities and individuals by the discriminatory deprivation of property through apartheid legislation and practice must be redressed. Injustice must be put right by the Commissioners and other functionaries of the Commission. The Act emphasizes the need to proceed with expedition - see i.a. Section 6(1 )(c).

7, It is therefore disconcerting that thousands of claims - counsel for the National and Regional Land Claims Commissioners estimated that the number of outstanding claims may run to between seven and nine thousand - have not remotely been finalized almost twenty years after the Act was passed. One could be forgiven to assume that under these circumstances the offices of the National Land Claims Commissioner (NLCC) and the Regional Land Claims Commissioner (RLCC) would be clamouring at the gates of the Court insisting upon speedy resolution of outstanding matters. The opposite, however, appears to be the case in this matter that deals with a claim that was brought to the Commission more than eighteen years ago. The Commission and its functionaries have, as will appear from the chronology below, been remiss in the performance of their duties to advance the claimants’ case as speedily as possible.

8. In the present instance the 2nd to 17th respondents/defendants (“the defendants”), the land owners affected by the acceptance of the applicant’s claims,

formed the view prior to the end of the year 2007 that the claims would not and could not be finalised by way of mediation or other

processes under the direction and control of the Commission. When requests to refer the matter to this Court were denied, the said

respondents applied for a mandamus under case no LCC 16/2007 to that effect. The Commission opposed the relief sought which was granted in spite thereof. An application for leave to appeal failed during about 2008.

9. The granting of the mandamus obliged the Commission to prepare a Notice of Referral to enable the proceedings in this Court to commence. It was only issued on the 27th May 2009. There is no explanation on the papers why it took almost a year to take this step. Even less is there an explanation for the failure to fully include in such notice all the information required by the Act and the Rules.

10. The claimants only filed their appearance on the 30th September 2010, whereafter the matter was allocated to Kahanovitz AJ, who held a total of seven pre-trial conferences, the first of which was convened for the 15th June

2011. At this stage, two years or more after the Notice of Referral was issued, it was common cause that not all interested parties had been joined. In fact, it is common cause that nothing had been done to advance the preparation of the case that had to be presented to this Court. The Court therefore issued an order that the State Attorney should effect service of the Notice of Referral on all interested parties on or before the 16th September 2011 while the Regional Land Claims Commissioner should file a certificate regarding competing claims by 19 August 2011. The Commission and the State Attorney failed to give effect to these orders.

11. The second pre-trial conference was in the meantime held on 27th July 2011, at which it was recorded that the 2nd to 17th Defendants’ attorney had supplied the addresses of all interested parties that had not been served yet to the State Attorney, who undertook to serve before the 19th August 2011, while the Regional Land Claims Commissioner undertook to file the certificate relating to competing claims by 19 August 2011.

12. When the third pre-trial conference took place, on the 2nd September 2011, these undertakings had not been honoured. An order was issued dated the 14th September 2011 calling upon the Commission to file an affidavit within 10 days dealing with the previously issued directives. If

these had not been complied with, the Commission must explain in such affidavit why it should ot be held to be in contempt of Court, why it should not be ordered to comply with the previous orders within ten further days and why its legal representatives should not be ordered to pay the costs of the pre-trial conferences of 27 July and 2 September 2011 de boniis propriis on the scale of attorney and client, alternatively why the Commission should not pay such costs on the punitive scale.

13. In spite of this expression of judicial displeasure at the continued failure to comply with the Court’s orders, no effect was given to them, even though compliance therewith was demanded at two further pre-trial meetings on 30th September 2011 and 6 March 2012. On the 16th March 2012 the Court ordered the National Land Claims Commissioner, Mr Maphoto, the Regional Land Claims Commissioner, Mr Singh, the Commission’s legal officer, Mr R

Mulaudzi as well as the project officer, Ms Seabi to attend the next conference together with staff members of the State Attorney. This next conference was held on the 11th April 2012. The National Land Claims Commissioner failed to attend, as did the Regional Land Claims Commissioner, and only the official of the latter’s office who had been ordered to attend did so. Ms Mosidi of the State Attorney was the only official employed by that office who heeded the Court’s directive.

14. The Court now ordered the Commission and the State Attorney to comply by not later than the 11th May 2012 and again called for an explanatory affidavit why the Commission and the State Attorney should not be held to be in contempt of Court and should not be ordered to pay the costs of the previous proceedings on the scale of attorney and client. Mr Mulaudzi

eventually filed an affidavit by the 14th May 2012, claiming compliance with the orders of Court. These assertions were challenged by the 2nd to 17th Defendants. On the 17th May 2012, the last of the pre-trials held before Kahanovitz AJ, he set a date for an interlocutory application relating to these issues for the 13th July 2012. The parties prepared heads of argument in accordance with his directives, but when they arrived to argue the matter on this day, it transpired that the Acting Judge’s appointment had not been renewed.

15. A further enrolment of the matter followed on the 13th February 2013, when the matter had to be postponed again to the 9thth September 2013 because of the unavailability of the claimants’ legal representative. When the matter was called eventually - more than five years after the mandamus to refer the principal dispute to the Court had been granted - it soon became clear that in spite of all the judicial reprimands inherent in the directives issued since 2009

there still had been no full compliance with the Court’s orders. Not all interested parties had been served with the Notice of Referral nor had the office of the Chief Director: Restitution been formally served with it. In addition, information the commission is required to provide in terms of Rule 39 (1) (0; (h); (m); (n) and (o) was still outstanding. These sub-rules require the following aspects to be dealt with:

"(h) all requisite agreements, certificates, reports, lists and recommendations required in terms of section 14 of the Restitution of Land Rights Act;

35 (1), (2), (3), (4) or (6) of the Restitution of Land Rights Act, if any such order is required or ought to be considered by the Court;

(n) details of any compensation that was paid to the claimant upon the dispossession of his or her right in land; and

(0) in the event that the persons concerned have reached agreement as to how the claim should be finalised, also -

(i) the agreement concerned;

(it) a certificate under section 14(1) (c) of the Restitution of Land Rights Act that the regional land claims commissioner concerned is satisfied that the agreement is appropriate;

(Hi) a written request signed by the parties to the agreement that the agreement be made an order of the Court;

(iv) an endorsement of the written request by the Chief Land Claims Commissioner under section 14(3) of the Restitution of Land Rights

Act; and

(v) where the agreement or the request that it be made an order of the Court was signed on any party's behalf, proof that the signatory was duly authorised. “

Section 14 of the Restitution of Land Rights Act 22 of 1994 as amended governs the process by which a proper referral of an acknowledged claim must be effected:

14. Referral of claims to Court

(1) If upon completion of an investigation by the Commission in respect of specific claim -

(a) the parties to any dispute arising from the claim agree in writing that it is not possible to settle the claim by mediation and negotiation;

(b) the regional land claims commissioner certifies that it is not feasible to resolve any dispute arising from such claim by mediation and negotiation; or

(c ).........

(d) the regional land claims commissioner is of the opinion that the claim is ready for hearing by the Court, the regional land claims commissioner having jurisdiction shall certify accordingly and refer the matter to the Court.

(2) Any claim referred to the Court as a result of a situation contemplated in subsection (1)(a), (b) or (d) shall be accompanied by a document -

(a) setting out the results of the Commission’s investigation into the merits of the claim;

(b) reporting on the failure of any party to accede to mediation;

(c) containing a list of the parties who have an interest in the claim;

(d) setting out the Commission’s recommendation as to the most appropriate manner in which the claim can be resolved.

(3) If in the course of an investigation by the Commission the interested parties enter into a written agreement as to how the claim should be finalised and the regional land claims commissioner having jurisdiction certifies in writing that he or she is satisfied with the agreement and that the agreement ought not to be referred to the Court, the agreement shall be effective only from the date of such certification or such later date as may be provided for in the agreement.

(3 A) If the regional land claims commissioner having jurisdiction is of the opinion that -

(i) a question of law arising out of the agreement needs to be resolved;

(it) there is doubt as to whether or not all parties who have an interest in the claim are parties to the agreement;

(Hi) there is doubt as to the validity of the agreement or any part of it;

(iv) there is doubt as to the feasibility of the implementation of the agreement;

(v) the agreement does not comply with section 42D(2);

(vi) the agreement is not just and equitable in respect of any party:

(vii) the agreement is contrary to any provision of the Act;

(viit) the authority of any signatory is in doubt;

(ix) the agreement is vague or contradictory;

(x) the parties to the agreement agree that it is desirable that the agreement be made an order of Court;

(xi) the agreement ought to be referred to the Court for any other good reason, he or she may refer the matter to the Court.

(4) A referral under subsection (3A) shall be accompanied by a copy of the relevant deed of settlement and a report containing -

(a) concise information about the background to the claim and the settlement;

(b) information necessary for the Court to establish whether or not it has jurisdiction;

(c) the reasons for the referral of the matter to the Court; and

(d) the regional land claims commissioner’s recommendations, if any, as to how the matter should be dealt with.

(5) Any interested party shall be entitled, upon payment of the prescribed fee, to copies of the documents contemplated in this section,

including the submissions of other interested parties in relation to any matter contemplated in this section.

(5A)..........

(6) Subject to the provisions of Chapter III A, the Court shall not make any order in terms of section 35 unless the Commission has, in respect of the claim in question, acted in accordance with the provisions of this section: Provided that the Court may, on good cause shown, condone any noncompliance with the provisions of this section.

(7) .......... ”

17, A further matter that raised its head during argument was the fact that the claimant’s legal representatives had not been paid, although funding in terms of the Act had been granted.

18. The Claimant’s claim was lodged more than eighteen years ago. Restitution of Land Rights is essentially constitutional litigation as set out by Gildenhuys J in Midlands North Research Group and Others v Kusile Land Claims Commiittee and Another 2010 (5) SA 57 LCC. The Commission is an Organ of State- created for the very purpose of safeguarding the constitutional rights of claimants and landowners alike, who both find themselves in litigation with the State and whose interests and competing claims must be treated with due diligence and respect. Respect for the rights of parties presenting competing claims to an Organ of State demands that the disputes between the holders of constitutional rights should be settled as speedily as possible. Mr Ncongwana SC admitted during argument that the passing of eighteen years since the lodging and acceptance of a claim that has even now not been properly referred to the Court, in spite of the various orders and directives dealt with

above, can by no stretch of the imagination be described as being constitutionally compliant. In addition, the claimant is a community numbering some 300 000 persons, and is therefore a group that is in terms of section 6(2)(d) of the Act entitled to have their claim prioritised.

19. It is self-evident from the chronology of the proceedings that the Commission, and NLCC and the RLCC as well as the State Attorney’s office have been grossly remiss in performing their duties. In addition, their failure to heed repeated directives and orders by this Court is a matter of very grave concern. As Organs of State and, in the case of the State Attorney, as officers of this Court they have an indisputable constitutional obligation to assist and protect the courts to ensure their dignity and effectiveness as decreed by section 165 of the Constitution:

165. Judicial authority.-

(]) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fearfavour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5) An order or decision issued by a court binds alt persons to whom and organs of state to which it applies.”

20. The repeated failure to obey the Court’s orders in these proceedings, and to perform the functions demanded through the directives, has led to the defendants’ demand that they be held in contempt, which will be dealt with below.

21. Attention must first be paid to the explanation proffered by the State parties for their remissness. This explanation is contained in the affidavit by Mr

Richard Mulaudzi, a Legal Administrative Officer in the Office of the Regional Land Claims Commissioner for the Limpopo Province. It is dated the 14th May

2012. In it, Mr Mulaudzi claims that service of the Notice of Referral was effected on all interested parties at that stage, with some returns of non­service having been received. It is common cause that the claim that all interested parties had been served was not correct and was, in fact, still contradicted by the facts set out above on the 9th September of this year. Similarly, the certificate of competing claims was still deficient when the affidavit was filed.

22. Regarding the gross delays that occurred in the finalisation of the matter, Mr Mulaudzi asserted that, in reliance on an affidavit by a legal assistant in the State Attorney’s office, the file was initially handled by Mr Mthimunye, who resigned from the of the State Attorney in about October 2009, whereafter the file was taken over by Mr Moiusi, who in turn resigned at the end of

April 2011. According to Mr Modukanele, he was appointed to the State Attorney’s office on 1 November 2010. He was overwhelmed by a huge work load which rendered him unable to attend to any task other than the most urgent ones. It is a matter of record that in June 2011 Mr Modukanele was still unable to locate this matter’s file. His health suffered stress-related setbacks as a result of his circumstances. He was given an assistant at a later stage.

23. In respect of the failure on the part of the Land Claims Commissioners to attend the pre-trial conference in April 2012, Mr Mulaudzi explained that they had not been informed of the Court’s directive requiring them to be present and that the then newly appointed RLCC was not in office when that order was made.

24. In answer to this affidavit, Mr Grobbelaar, the attorney acting on behalf of the defendants, took issue with the suggestion that the delays and failures to comply with the Court’s directives had been satisfactorily dealt with. He pointed out that, i.a., other interested parties had still not been joined at the time the affidavit was sworn to, to which Mt Muiaudzi replied that the identity of some of them was unknown to the Commission until the defendants’ attorney supplied their particulars mero motu to the State Attorney. Prior to that date, he added, the Commission had laboured under the impression that Mr Grobbelaar was acting for all the landowners.

25. It was common cause that Mr Muiaudzi had, at the pre-trial conference that was held on the 6th March 2012, opposed the call that the National and Regional land Claims Commissioners should attend the next pre-trial conference in person - which they failed to do. In his replying affidavit, - which incidentally was filed out of time - he gratuitously added that he was of the view '...it would not serve much purpose for the Chief Land Claims Commissioner and/or the Regional Land Claims Commissioner to be deviated by Court to appear. This was my view and I had reasons for this view. The commission has appointed the state attorney and counsel who were, or would, in any event, be in attendance in (sic) all the pre-trial conference (sic). In addition to this, I as the person dealing with the claim within the office of the commission was also in attendance. I did not find any compelling reason that necessitated that the commissioner should be ordered to attend"

26. He added that he had made several calls to the State Attorney’s offices to ensure compliance with the Court’s directives and to keep himself informed of the progress of the service of the notice of Referral and the notice to all interested parties. He denied that either the Commission or the State Attorney had been remiss to an extent that was deserving of censure.

27. Viewed dispassionately, Mr Mulaudzi’s affidavit explains nothing more than that literally nothing was done by either the officials in the Commissioners’ offices or by the officers of the court in the State Attorney’s employ from 2009 until about April 2012, whereafter very little was done to bring this matter to finality. The file was clearly shifted from one person to another, with no attention being paid to the claimants’ interests, the defendants’ concerns or the Court’s instructions and directives. The failure to identify all interested parties is astounding, as is the assertion that the commission believed that Mr Grobbelaar was acting for all landowners. This impression could only have arisen from a failure to properly read the documents filed by Mr Grobbelaar over the years. To describe the situation as a sorry one would be to understate the picture of apparent administrative chaos and professional neglect that is painted by the explanatory and the replying affidavit.

28. In addition, Mr Mulaudzi’s remarks regarding the need for the Commissioners to obey the Court’s instruction to attend a pre-trial conference are grossly inappropriate and display a highly regrettable attitude toward the Court’s dignity and authority. His views regarding the need to obey a Court’s order are, at least prima facie, contemptuous and display an extremely worrisome ignorance of his duties as a civil servant employed by an Organ of State toward the courts in general, and toward this Court in this matter in particular. Orders of Court must be complied with, regardless as to whether they are issued correctly or otherwise, until they are recalled or set aside. This is a fundamental principle of a democratic constitutional State. As Froneman J (as he then was), writing for the unanimous Full Court, stated in Burchell v Burchell case No 364/2005 (ECD) (not reported) at par [10]:

"Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law” (Footnotes omitted).

Mr Mulaudzi’s personal opinion of such order is totally irrelevant. His duty as a civil servant is to obey a court order. If he or his superiors regard such order as wrong or as in conflict with the law, they have every right to appeal or seek a rescission thereof, but until such event every person is obliged to act in accordance with what the Court has decreed. Mr Mulaudzi would be well advised to study the example of the first post-apartheid President of the Republic of South Africa in President of the Republic of South Africa & Others v South African Rugby Football Union & Others 2000 (1) SA 1 (CC), particularly par [240] to [245].

29. It is against this background that the defendants’ insistence on a punitive costs order and a finding that the State Attorney and the Commission’s and Commissioners’ are in contempt of court must be adjudicated.

30 Adv Ncongwane SC, who appeared with together with adv Ngobese for the Commssion, prepared succinct heads of argument in which he submitted, as he did in his oral submissions, that there was no proof that any official or officer of the Court had been guilty of contempt. In addition, he submitted, that no order as to costs should be made against the Commission or the State Attorney as their conduct was not such that it required censure. Least of all, he argued, would an order of costs on the scale of attorney and

client be appropriate as it would amount to an award of damages to the defendants.

31. To address the issue of costs first, it is correct that until recently, this court refrained from making costs orders against unsuccessful parties or those who had caused unnecessary delays unless they acted vexatiously, dishonestly or frivolously. This position has changed after the Constitutional Court’s judgment in the Biowatch matter, as Gildenhuys J explained in The Mhlanganisweni Community v The Minister of Rural Development and Land Reform & Eight Others; Case No: LCC 156/2009 (19 April 2012), at par. [99] and further:

"[99] In the past, it was not the practice of this Court to make costs orders in restitution matters unless there were special circumstances which warranted such orders. The reason for this practice was that litigation in restitution matters are 'in the genre of social litigation’. See Department of Land Affairs v Witz; in re various portions of Grassy Park 2006 (1) SA 86 (LCC) at 102A. This practice was modified after the Constitutional Court decision in Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC). It was held in that case per Sachs J (in par [56] of the judgment, at 2561-257A): ‘[56] I conclude, therefore, that the general point of departure in a matter where the State is shown to have failed to fulfil its constitutional and statutory obligations, and where different private parties are affected, should be as follows: the State should bear the costs of litigants who have been successful against it, and ordinarily there should be no costs orders against any private litigants who have become involved.'

[100] The principles adopted in the Biowatch case have been followed by this Court in the matter of Midlands North Research Group and Others v Kusile Land Claims Committee and Another 2010 (5) SA 57 (LCC) and a number of subsequent cases. “

32. In the Kusile matter the same Judge held that costs should be awarded against the Commission if it adopted an untenable position. Going further, he added:

[38] Even if the approach set forth in the Biowatch case (supra) is not followed, a cost order against the Commission would still be appropriate in this case because of the inadequate manner in which the RLCC investigated and presented the case. The Commission, as an organ of state, bears an obligation to ensure that the work of this court is not impeded by inadequate investigation and that time is not unnecessarily spent on claims which, in the form in which they were referred to the Court by the RLCC, can manifestly not succeed The RLCC failed in this duty’ (Footnotes omitted).

33. In the present instance, the actions of the Commission, or the lack thereof, are worse than in Kusile. Not oniy was it solely to blame for the delay of the proceedings, with the exception of the postponement of the hearing of the 13th February 2013, but the delays were accompanied and caused at least in part by the failure to heed the Court’s directives. In addition, its functionary, Mr Muiaudzi, displayed an attitude toward the Court and its orders that is regrettable, to say the least. Under the circumstances it is appropriate to mark the Court’s displeasure with a punitive costs order, bearing in mind that the defendants did not cause the waste of time and resources the Commission’s failures have brought about. The defendants suggest that the order should be made against the RLCC as representative of the State in these proceedings. This suggestion is practicable and sound.

34. it is therefore appropriate to make the following order in regard to costs:

1. The Regional Land Claims Commissioner is, as representative of the State and its organs, ordered to pay the 2nd to the 17th defendants’ costs in respect of the pre-trial hearings held on 15th June 2011; 27 July 2011; 2 September 2011; 6 March 2012; 11 April 2012 and 17 May 2012 as well as the hearings on 9 September 2013 and 12 September 2013 on the scale of attorney and client;

2. No order is made in regard to costs in respect of the hearing arranged for the 13th February 2013.

3. The question of the claimant’s costs is postponed sine die.

35. Turning to the defendants’ demands that the Commission itself or its functionaries should be held in contempt, Mr Ncongwane SC relied upon the pronouncement in Fakie N.O, v CCII Systems (Pty) Ltd 2006

(4) SA 326 (SCA) that disobedience of a civil order or judgment can only constitute contempt of court if such disobedience is both wilful and mala fide. A mere refusal to comply with an order of court may constitute prima facie proof of contempt, but any applicant seeking to hold the offender in contempt would have to establish all the elements of the criminal character of the offence. The majority of the court in Fakie endorsed the approach followed in Burchell supra and in Uncedo Taxi Seivice Association v Maninjwa & Others 1998 (3) SA 417 (ECD) that civil proceedings for contempt of court, aimed at ensuring compliance with an order that was disobeyed, are criminal

in nature and require the applicant to prove every element of the offence beyond a reasonable doubt.

36. Such proof may be difficult to establish in motion proceedings such as the present. Faced with a denial of the relevant mental requirement of intention and bad faith in the affidavits filed by the party accused of having acting contemptuously, an applicant may be forced to seek a reference to oral evidence and cross-examination of the alleged offender before such proof can be established. In the present instance

it is clear that no proof beyond reasonable doubt can be held to have been provided, even given Mr Mulaudzi’s ill-advised comments, which obviously reflect his honest opinion at the time, however wrong, irrational and ill-considered it may have been.

37. In addition, it is quite impossible to ascribe the criminal intent to disregard the court’s authority to a collective such as the Commission, as the majority of its functionaries were in all probability completely unaware of the present proceedings. The defendants have not seriously sought to hold any individual in contempt and no person has been called upon to answer to such a charge in the context of the present proceedings.

38. It follows that no finding of contempt can be made and the defendants’ submissions in this regard must be dismissed.

FUTURE CONDUCT OF THE PROCEEDINGS

39. This matter must be brought to finality as soon as possible. One of the major reasons for the unacceptable delay that has occurred in the proceedings is the fact that the claimants and the defendants - and for that matter the court - have not always been aware of the identity of the individual functionary in the offices of the Commissioners or the State Attorney who was at any given time responsible for this claim. During the last hearing the Court therefore proposed that the individual

in the respective offices dealing with this matter be identified and be ordered to ensure compliance with any directives and orders that still remain outstanding. In addition, such functionary is ordered to immediately inform the court and ail interested parties if he or she transfers the file to another individual in the respective office for whatever reason. Such person accepting responsibility for the matter must be identified and must personally confirm to the court and all interested parties that the file is from that moment under his or her control.

40. During argument it was determined that the outstanding issues should be addressed by the identified individuals in the fashion set out in the further order:

1. The state officials in the Limpopo Province responsible, in their respective capacities for managing and compiling of research reports of various land claims, management of land claims, advancing ail claims to finality as required and provided for in the Restitution of Land rights Act 22 of 1994(“the Act") and its Regulations, in as much as these apply to the present matter, are identified below:

1.1 FRANK MIYELANI NKANTING; Director Operations Regional Land Claims Commissioner (RLCC): Limpopo

Cell No: 082 4195 258

Tel No: 015) 287 2601/2 Email: nkatingi@ruraldevefopmentgov.za Address: 96 Schoeman Street, Kagiso House, Polokwane, 0699

1.2. ISAAC PETER; Acting Director Legal Section National Land Claims Commission (NLCC) in respect of funding in terms of section 29 (4) of the Act

Cell No: 082 574 9149

Tel No: (012) 312 6293

Email: Szpeter@ruraldevelopment.gov.za

Address: 184 Cnr Bosman & Jacob Mare (Jeff Masemola) Street, Pretoria

1.3. KANTORO ISAAC CHOWE; Deputy State Attorney

Cell Ni: 083 527 8921 Tel No: 012 309 1562 Fax No: 086 507 2194 Email: ichowe@iustice.qov,za

Address: SALU Building, Thabo Sehume & Francis Baard Street, Pretoria

2. The certificate of competing claims dated 16*h August 2011 will be formally filed in terms of the rules. It is recorded that the certificate in question reflects that the land

claim lodged by the Matabane Community overlaps and competes with the land claims lodged by the claimants described below:

2.1. Moiekoa/Mosima/Mashiane land claim in respect of the farm Buffershoek 41 KR.

2.2 Molekoa Sekungwe land claim in respect of the farm Buffelskop 29 KR and various portions of the farm Grootfontein 31 KR has been referred to court under case No LCC1/2010.

2.3. Fatlane LW land claim in respect of the farm Doornslot 36 KR.

2.4. The first competing claim aforementioned is still under investigation and due to such pending investigations; the said claim cannot at this stage be gazetted and cannot be referred to court in terms of section 14 of the Act.

2.5. The third competing claim of Fatiane LW was merged with the Matabane claim in respect of the farm Doornslot

36 KR and has been settled and restored to the Matabane Community.

2.6. All relevant and applicable information regarding the competing land claims mentioned above will be delivered by way of a supplementary report in terms of Rule 39(i) (h) (m) (o) and (n) mutatis mutandis.

3. It is recorded that the land claims for the Matabane Community and for the properties fully described hereunder have been restored to the Matabane Community in terms of the Act:

3.1. Portion 1 and 7 of the farm Muisvogelskraal 654 LR;

3.2. Portion 2 of the farm Libanon 653 LR;

3.3. Remaining extent of the farm Doornslot 36 LR;

3.4. Portion 2 and 5 of the farm Muisvogelskraal 654 LR

4. The commission; through the office of the State Attorney (Mr. Chowe) will ensure that the Notice of Referral, a copy of the report in terms of section 14

(2) of the Act, as well as the list of the documents and/or information listed in Rule 39 is served on all interested parties who have not yet been served with the said notice;

4.1. It is recorded that the list of the interested parties who have not been served with the Notice of Referral is reflected in Annexure B, excluding parties in column 1, 2, 4, 6, and 13;

4.2. the office of the Chief Director: Restitution is to be formally served with the Notice of Referral;

4.3. the commission will, through the State Attorney (Mr. Chowe) fulfil its mandatory function in terms of Rule 38 (4) by submitting to court proof of service to all interested parties.

5. The commission will supplement the report filed in terms of Rule 39 (1) by including therein the information required by Rule 39 (i) (h) (m) (o) and (n).

6. The aforementioned steps must be finalised by the commission within thirty (30) days from the date of this order.

7. It is recorded that the issue of funding of the claimant’s legal expenses has been addressed in a letter dated 2013/02/05.

Signed in Pretoria on this 30th day of October 2013.

E BERTELSMANN

Judge of the High Court

ANNEXURE“B”

LANDOWNERS OF LAND AFFECTED BY THE MATABANE COMMUNNITY LAND CLAIM WHO ARE NOT REPRESENTED & GROBBELAAR ATTORNEYS AND WHO NEED TO BE SERVED WITH THE NOTICE OF REFERRAL

1 s Portion 4 of the farm 117 Canon Cresent, Ifaft.

AaLbersberg Muisvogelkraal 654 LR Brits Tel: 014 755 2271 or 082 322 6495 4 Walker, Clive Hatton Portion 5 of the farm Muisvogelkraal 654 LR The farm Krokodilrivier which is situated approximately 25 km outside Vaalwater on the Sterkstroom Turnoff; the first farm on the right hand side Tel: 082 870 5971 5 Sinodale Kommissie vir die Diens Van Barmhartigheid Ng Kerk N-Tvl Portion 6 of the farm Muisvogelkraal 654 LR Notice of Referral to be served on the “NG Kerk Sinode” situated in Jacob Mere Street, Pretoria j ! 6 Limpopo Provincial Govermnent Portion 2, 3, 4 and the R/E of the farm Poerspruitdrift 651 KR The Mowaneng Building, 40 Hans van Rensburg Street, Polokwane Tel: (015) 287 6000 7 Transnet Ltd Portion 1 of the farm Poerspruitdrift 651 KR Carlton Centre, 150 Commissioner Street, Johannesburg Tel: 011 308 3000 8 Zelpy Portion 6 of the farm 9 Flamboyant Street, Bela

2236(Pty) Ltd Poerspruitdrft 651 KR Bela c/o Tjaart Oosthuizen j i and Co, chartered accountant on behalf of Zelpy 2236(Pty) Ltd 9 NTK Limpopo Portion 7 of the farm ■ 84 Limpopo Street, Agricultural Ltd Proespruitdrift 651 KR Modimolle Enslins Bethlehem Incorporated, chartered accountant for j ! NTK Limpopo Agricultural | Ltd at 3 Boshoff Street, Bethlehem, Free State Province 10 Quaggashoek Portion 1 of the farm Grootfontein j 797 Hanny Street, Pretoria Game Safari 31 KR Gardens, Pretoria (Pty) Ltd 11 Van der Portion 2 of the farm Grootfontein Madikela Game Reserve, Merwe, Carol 31 KR Vaalwater Ann Tel: 014 755 4332 12 Botha, Karel Portion 2 and 3 of the farm P 0 Box 84, Vaalwater, Izak Jacobus Buffelshoek 41, KR 0530 Tel: 082 808 5247 The Farm Buffelshoek, Kraal 4, Vaalwater 13 IAN R/E of the farm Geluksfontein Visarendweg 101, Developments 643 LR Kameeldrif- Oos, Pretoria

CC S 13 Van Niekerk, Portion 1 of the farm Portion 33 of the farm j Eric Geluksfontein 643 LR Nooitgedacht 525 JR, Bronkhostspruit Tel: 082 388 2589