Mavhundulu Community v The Minister of Agriculture, Rural Development & Land Reform and Others (LCC125/2008) [2021] ZALCC 19 (16 August 2021)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 125/2008

(1) REPORTABLE: YES.

(2) OF INTEREST TO OTHER JUDGES: YES.

(3) REVISED: YES/NO.

In the matter between:

MAVUNDULU COMMUNITY APPLICANT

and

THE MINISTER OF AGRICULTURE, RURAL

DEVELOPMENT AND LAND REFORM FIRST

RESPONDENT

REGIONAL LAND CLAIMS COMMISSIONER SECOND

RESPONDENT

DJ SCHEUER FARMING CC THIRD

RESPONDENT

MANFRED MARTIN HILLERMAN FIFTH

RESPONDENT

HERMAN THEODOR HEYER SIXTH

RESPONDENT

EVANGELICAL LUTHERAN CHURCH NEW HANOVER SEVENTH RESPONDENT

HOPEWELL TRUST EIGHTH

RESPONDENT

ROLF MATTHEW SCHRODER NINTH

RESPONDENT

UHLMANN FAMILY TRUST TENTH

RESPONDENT

MANFRED VICTOR SCHRODER TWELFTH

RESPONDENT

WOERNER TRUST THIRTEENTH

RESPONDENT

WHITE THORN TRUST FOURTEENTH

RESPONDENT

RM MARK FAMILY FIFTEENTH

RESPONDENT

WITTEMOUNTAIN TRUST SIXTEENTH

RESPONDENT

MANFRED MEYER FAMILY TRUST SEVENTEENTH

RESPONDENT

WERNER MEYER FAMILY TRUST EIGHTEENXTH

RESPONDENT

WERNER MARK REDINGER NINETEENTH

RESPONDENT

AMBLESIDE MEATS CC TWENTIETH

RESPONDENT

BRIAN BASIL MITROPOULUS TWENTY

FIRST RESPONDENT

TMJ INVESTMENT 15 CC TWENTY

SECOND RESPONDENT

DROGEMOLLER LIF & SHORT-TERM

BROKERS CC TWENTY

THIRD RESPONDENT

ROLAND GERHARD FRENZEL TWENTY

FOURTH RESPONDENT

COCOHAVEN 1057 CC TWENTY

FIFTH RESPONDENT

ROYHEATH RAMDEWU AND REETHA

RAMDEWU TWENTY

SIXTH RESPONDENT

UCL CO-OPERATIVE LTD TWENTY

SEVENTH RESPONDENT

MOOIZICHT TRUST TWENTY

EIGHTH RESPONDENT

IN RE:

MLULEKI MARTIN CHITHI FIRST

APPLICANT

DLUDLU ATTORNEYS SECOND

APPLICANT

M C NTSHALINTSHALI ATTORNEYS THIRD

APPLICANT

HEARD ON: 14 MARCH 2019 -29 MARCH 2019;12 AUGUST 2019 -23 AUGUST 2019, 2 MARCH 2020 -20 MARCH 2020, 24 JUNE 2021

JUDGMENT ON: 16 AUGUST 2021

Canca, AJ

INTRODUCTION

[1] There are three opposed applications and an unopposed one before me. All are the progeny of the judgments handed down by me on 31 March 2020 and 25 May 2020. The opposed applications are for leave to appeal to the Supreme Court of Appeal by:

1.1 the Mavundulu Community (“the claimants”) in respect of the dismissal of their claim for the restoration of rights in land as contemplated in the Restitution of Land Rights Act, 22 of 1994 (“the Restitution Act”)

and by

1.2 Mluleki Martin Chithi; Dludlu Attorneys and MC Ntshalintshali Attorneys (collectively, hereinafter referred to as “the

affected parties”). The affected parties seek leave to appeal my order denying them fees earned whilst representing the claimants

in the prosecution of the claim referred to in sub-paragraph 1.1 above.

[2] The unopposed application is for condonation for the late filing of a Supplementary Notice for Leave to Appeal to the Supreme Court of Appeal by the claimants.

[3] The first application (“the initial application”), which was launched by the claimants themselves, as they were unrepresented at the time, does not meet the requirements for an application for leave to appeal set out in the Rules of this Court and stands to be struck off the roll. More on this below. However, the claimants were subsequently legally represented, during what I refer to as the “main application”, which substituted the initial one. The

[4] The initial and the main applications, as well as the application launched by the affected parties, hereinafter called the “costs

order application” are opposed by the landowner respondents. These are the respondents who were represented during the trial by attorney, Mr. Van Der Merwe of Cox & Partners and Mr. Roberts SC with Ms. Roberts, as well as during these proceedings. The aforesaid applications are dealt with under separate headings with their various order set out at the end of the judgment.

[5] The offending order handed down on 31 March 2020 reads as follows:

“7.1 The individual claim added by the Plaintiff in October 2017 is not valid in law and is dismissed.

7.2 There is no order as to costs.”

[6] The orders in the judgment, handed down on 25 May 2020, are set out in the following terms:

“1. It is declared that the Plaintiff is not a community as defined in the Restitution of Land Rights Act, No. 22 of 1994.

2. The Plaintiff’s claim for restitution of rights in land is dismissed.

3. The First Defendant, the Minister of Rural Development and Rural Development, shall bear the costs of the Third to Eighteenth

Defendants on a scale as between party and party. Such costs shall include the following:

3.1 The employment of two counsel and attorneys in respect of all trial dates, the quantum of which shall be determined by the Taxing Master;

3.2 The costs of counsel and attorneys for attending all pre-trial conferences, the costs incurred in respect of consultations with

representatives of the land owner defendants, and the costs in respect of consultations with the land owners’ experts, Dr. D Whelan, Mr. C Henderson, Mr. P Hellig, Colonel Cloete and Mr. B Land.

3.3 The qualifying fees and expenses, including travelling and accommodation expenses, of the expert witnesses of Dr. D Whelan, Mr. C Hendersen, Mr. P. Hellig, Colonel Cloete and Mr. B Land, such as to include the costs of inspections in loco conducted by them, the consultations by them with the land owner defendants to obtain relevant information to compare their reports, the drafting of the reports and the consultation time with the land owner defendants’ counsel and attorneys.

3.4 All costs of drafting maps and obtaining of all aerial photographs and/or making copies thereof for trial.

3.6 All costs incurred by the land owner defendants’ attorneys in preparation, indexing and pagination of all bundles of documents,

maps and photographs, transcript of court proceedings and making copies thereof.

[4] The fees of Plaintiff’s legal representatives, Mr.Chithi, Dludlu Attorneys and MC Ntshalintshali Attorneys, are disallowed in full for the entire matter. They are ordered to repay to the relevant entity that funded them on behalf of the State, whatever fees that may already have been paid to them.”

[7] The first and second respondents, The Minister of Agriculture, Rural Development and Land Reform (“the Minister”) and the Regional Land Claims Commissioner (“RLCC”), together hereinafter referred to as “the State respondents”, do not oppose any of the applications and have elected to abide the Court’s decision.

BACKGROUND

[8] There has been a delay in the finalization of this matter which requires a brief explanation.

[9] Apart from the inconveniences caused by the various Government imposed restrictions to contain the spread of the Covid virus, I was indisposed for a while and the claimants’ previous legal representatives, as indicated above, withdrew their services.

[10] Being mostly indigent, the claimants’ action was funded by the Department of Agriculture, Rural Development and Land Reform (“the Department”) via its Land Reform Management Facility.

[11] Finding themselves without legal representation, the claimants were also, initially, let down by the Department, when it refused to continue funding the prosecution of their claim in a Court with a higher jurisdiction than this one.

[12] Then, apparently without the benefit of legal advice, the claimants lodged the initial application. Simultaneously with the aforesaid application, they appealed to this Court to assist them in persuading the Department to fund the legal costs to be incurred in appealing my judgment.

[13] I personally interceded on their behalf and was able to persuade the Department to agree to fund the main application. Moreover, further time was lost when it was discovered that two days of the trial were not recorded, making it difficult for the claimants’ new legal representatives for fully acquaint themselves with the matter. A reconstruction of a transcript for those two days was eventually done by Snellers, with the assistance of Dictaphone recordings of the trial made by Mr. Van Der Merwe, referred to in paragraph [4] above.

THE INITIAL APPLICATION

[14] This application was launched by the claimants following the dismissal of their claim, and the adverse costs order against their legal representatives, who had by then, apparently withdrawn their services. The application does not comply with the relevant legal requirements.

[15] To illustrate the point, I set out below the letter which accompanied the application.

“03 JUNE 2020

THIS LETTER ACCOMPANIES THE LETTER OF APPEAL WE SENT ON 11 [sic] JUNE 2020. CASE. NO 125/2008

Hi Sir/Madam

1. Inkosi SW Cebekhulu has confirmed that advocates and attorneys were instructed by them to send the application.

2. He also confirmed that they are no longer represented and would like the court to assist them to get the attorneys for the matter.

3. We cannot afford the advocates and attorneys since we lack finance.

4. The judge (Mr. Nchanca (sic)) who was handling the case, failed to tell us where do we belong since he declared us non-residents of Mavundulu.

5. We suspect that the judge is not doing his work properly, nor have knowledge of what he is doing.

6. He also failed to separate the claimants but included all claimants and said their application failed. In simple terms, there are claimants who followed every rule and dates of submission.

7. We strongly believe that another court can handle this matter or case properly, fairly and honestly.

Inkosi SW Cebekhulu.”

[16] The grounds for leave to appeal in this application were characterized by Mr. Roberts as having

“…been drafted in a haphazard manner by someone not au fait with the drafting of grounds of appeal.”

I agree with this characterization.

[17] Given that Mr. Roberts argued the grounds of appeal, I am constrained to consider those grounds, albeit briefly, in order to demonstrate the inadequacies of the application.

[18] At the core of the application is the allegation of bias, or the apprehension thereof, on my part which the claimants base, inter alia, on the following, namely that:

18.1 they were denied from hearing the evidence of the landowners, including their expert, Dr. Whelan;

18.2 I shouted at the witnesses;

18.3 the manner of addressing Inkosi Cebekhulu was inappropriate;

18.4 I was taking sides;

18.5 the judgment is brief and that certain key factors are missing;

18.6 I allowed Mr. Roberts to accuse Mr. Cebekhulu of “talking nonsense”.

[19] The grounds alluded to in the previous paragraph are supported by the following statements in the Notice of Appeal (“the Notice”):

19.1 “the Claimants’ feel that the hearing of the claim was not fair to them”.

19.2 “the Judge was shouting to [sic] our witnesses in a way that they felt afraid and this happened towards the end of the hearing”.

19.3 “the Judge was looking down onto [sic] Inkosi Cebekhulu”

19.4 “the Judge was taking sides because he was not giving equal time to both parties (white attorneys and our attorneys) according to our view.”

[20] Mr. Roberts submitted that the abovementioned allegations were devoid of substance and are not borne out by the record. He cited, inter alia, R v Hepworth 1928 AD 265 at 277, where the Court states that:

“A Judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognized rules of procedure, but to see that justice is done.”

[21] Mr. Roberts submitted that the Court, contrary to the allegations of bias, “bent over backwards to ensure a fair trial”. He further submitted, as support for the submission, that the Court,

“inter alia, granted time when time was required, ensured that the interpreter correctly translated the evidence, ordered a further

inspection in loco during the trial to assist a witness to conduct a pointing out, displayed patience when witnesses testified and ruled on issues when these were required and when objections were raised, but was also firm with Counsel that arrived late for trial and when Court proceedings were disrupted.

The learned Judge also expressed his displeasure when a witness deliberately lied whether he understood English or not.”

[22] I now deal with the grounds of appeal and not necessarily in the order in which they are set out in paragraphs [18] and [19] above.

[23] Failure to allow Dr. Whelan to testify does not give rise to an apprehension of bias nor is it evidence thereof. Given that the question of whether a community existed or not is a legal issue, I was well within my rights to exercise my judicial discretion to separate the issue of whether a community had been proven at the close of the claimants and the State respondents’ cases. The aforementioned reason for not hearing the testimony of Dr. Whelan, applies with equal force to the complaint that I did not allow the landowners to testify.

[24] The allegation that I shouted at witnesses is incorrect. The only time I addressed a witness sternly, was, when the witness who had earlier testified that he was a qualified teacher, claimed, under cross-examination, that he did not understand English. On expressing my skepticism on the veracity of that statement, the witness conceded that he did, in fact, understand English. It was his right to inform the Court that he preferred to testify or respond to the cross-examination in vernacular, but failed to do so, despite the fact he and the rest of the witnesses for the claimants were legally represented at that time.

[25] The ground that Mr. Roberts allegedly stated that one of the witnesses, Mr. Cebekhulu, was “talking nonsense” is also a misstatement of the facts. The statement emanated from the interpreter and, when objected to by the witness, the interpreter duly apologised. The allegation that I did not give equal time to both parties’ legal representatives is not borne out by the record.

REQUIREMENTS TO BE MET IN AN APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL.

[26] Rule 69 of the Rules of this Court, and in particular, Rule 69(2) sets out what a notice in applications of this nature must contain. The following must appear from the said notice:

“(a) the findings of fact and law appealed against;

(b) whether the whole or part only of the order is appealed against, and if part only, which part;

(c) the grounds on which leave to appeal is sought; and

(d) the court to which leave to appeal is sought.”

[27] It is evident from the above, that the claimants’ application falls woefully short of the abovementioned requirements and therefore stands to be struck off the roll. The only other issue is to determine whether an award of costs, sought by the landowner

respondents, is justified.

[28] It is trite that this Court is loath to mulch a losing party with costs. A costs order against the losing party is, generally, only granted where there are special circumstances, of which I find none in this case.

[29] Whilst it is true that the claimants’ legal representatives withdrew their services, probably in the light of the order which denied them their fees, it is reasonable to assume that, one or more, of their legal representatives informed and/or explained the gravamen of my judgment, both in respect of the claimants’ claim and its effect on their continued involvement in the matter as legal representatives. The first paragraph of the letter quoted in paragraph [15] above appears to confirm that this application was lodged on the advice of legally trained persons.

[30] Although the Court recognizes that the claimants might be aggrieved by the judgment, the contents of paragraph 5 (and to a lesser extent paragraph 6) of their hereinbefore quoted letter, reeks of contempt for this Court and would, ordinarily, warrant a costs order (and possibly, a punitive one), given the scurrilous nature of the contents of those paragraphs.

[31] However, the application so glaringly does not comply with the requirements to be met for an application of this nature that, in my view, it did not require the services of counsel with Mr. Roberts’ seniority and experience. And, even if it did, Mr. Roberts could easily have pointed out the non-compliance with the relevant laws of the initial application via oral argument from the Bar.

[32] In the circumstances, and because of the unsophisticated and indigent nature of the claimants, I exercise my discretion not to award costs against them in respect of their initial application.

CONDONATION APPLICATION

[33] Before considering the merits of the main application, it is convenient to first dispose of the application for the condonation of the late filing of the main application. The condonation application was unopposed as that all the parties were aware of the position the claimants found themselves in, following the withdrawal of the counsel and attorneys who represented them at the trial as well as their initial difficulties in obtaining funding. Condonation was duly granted as prayed for.

THE MAIN APPLICATION

[34] The claimants, following the Court’s intervention, and who had by now obtained legal representation, launched this application which supplemented their initial application.

[35] The claimants’ new legal team is led by Ms. Poswa-Lerotholi SC. with Ms. Shazi. Dludlu Attorneys, their attorneys of record during the trial but who had also withdrawn their legal services, were re-instated as the claimants’ attorneys.

[36] The grounds upon which the main application is based include allegations that the Court:

36.1 misapplied and misinterpreted Rule 57(1);

1.27cm; text-indent: 0.11cm; line-height: 107%"> 36.2 erred in finding that the claimants were not a community; and

36.3 erred in disqualifying the claimants’ expert witness, Dr. Ndlovu.

[37] A brief background of the events leading to the main application is appropriate. The claimants launched an action in terms of the Restitution Act for the return of land which they claim they were dispossessed of. The land concerned portions or sub divisions of the farms Spitzkop and Mooiplaats, situated in the New Hanover Magisterial district, approximately 40/50 km north-east of Pietermartizburg, KwaZulu – Natal.

[38] Having lodged a community claim within the deadline for the submission of restitution of rights in land before the end of 1998, the claimants, subsequently amended the community claim by introducing individual claims, in the alternative.

[39] Prior to the claimants and the State closing their respective cases, Mr. Roberts reminded the parties that he intended, at an appropriate time, to argue that the alternative claim introduced by way of the amendment was bad in law.[1] This was a repeat of a statement made by Mr. Roberts at the commencement of the trial during the middle of March 2019.

[40] Following the closure of the claimant community and the State’s cases, Mr. Roberts, before calling the witnesses for the landowner respondents, applied for leave, despite objections by Mr. Chithi, to argue, at that stage of the proceedings, his fourth point in limine, namely that the alternative claim introduced by the amendment was bad in law.

[41] In the light of the fact that the parties were given advanced notice, both at the commencement of the trial and during the course of the testimonies of the witnesses for the claimants and the State, that this issue would be raised at an appropriate time, I adjourned the trial to allow counsel time to prepare argument. Having heard argument, I granted the application for the dismissal of the land claim sought to be based on individual claims, as an alternative to the one lodged as a community claim.

[42] The reasons for finding the alternative claim introduced by the amendment bad in law, are set out fully in my judgment dated 31 March 2020 and will serve no purpose to repeat same in this judgment.

[43] Before Mr. Roberts called the witnesses for the landowner respondents to testify, I indicated to the parties that there was an issue which might be conveniently decided before any other evidence was heard, namely, whether the claimants had proved that they were a community as defined in the Restitution Act. I ordered that the issue be separated in terms of Rule 57(1)(c) of the Rules of this Court and that heads of argument be provided, within a given period. In the result, I found that the claimants had failed to prove that it was a community.

[44] Ms. Poswa-Lerotholi, contends that the Court erred in raising the issue alluded to in the previous paragraph and by allowing it to be argued at that stage of the proceedings. She further contends that that amounted a misapplication and a misinterpretation of Rule 57(1). It was also contended that the Court also erred in finding that the claimant was not a community by having failed to employ a purposive approach in interpreting the Restitution Act. In doing so, the Court failed to follow Section 39 (2) of the Constitution, so the contention continued. Finally, it was argued that the Court erred in disqualifying Dr. Ndlovu, who testified on behalf of the claimants, as an expert.

[45] These contentions were supported, inter alia, by the following submissions:

1. the claimants were not given an opportunity to address the Court before it invoked the rule. The claimants had a right to be heard given that invoking the rule at that stage of the proceedings was prejudicial to their rights and so, offended against the principle of natural justice. According to Ms. Poswa – Lerotholi, the Supreme Court of Appeal will find that by applying Rule 57 (1) at that stage, the Court prejudiced the claimants, who, she submitted, proceeded with the trial “… under the assumption that the amendment, which had been made three (3) years before the trial started had been allowed”.

2. Rule 57 (1) is designed to be part of a pre-trial procedure which permits the separation of issues at the close of pleadings and not at “what ultimately was the end of the trial” given that the claimants and the State had closed their cases, the contention continued. The rule is meant to facilitate the prior

adjudication of certain points of law or facts before the ventilation of the dispute between the parties and does not envisage the “adjudication of matters which should be decided at the end of the trial after the assessment of all the evidence”, Ms. Poswa-Lerotholi further submitted.

3. The testimonies of the claimants’ witnesses, both lay and expert, (including a report compiled by an official in the employ of the office of the RLCC, showed that the claimants were a community, it was submitted. The Court’s finding offended against the approach of Section 39(2) of the Constitution which enjoins Courts to promote the spirit, purport and objects of the Bill of Rights when interpreting legislation, so the submission continued. Given that the Restitution Act is, inter alia, meant to restore rights to persons whose rights to land had been dispossessed as a result of past racially discriminatory laws and practices, the Court should have followed the spirit of the Bill of Rights but failed to do so, it was argued.

4. Finally, Ms. Poswa-Lerotholi argued that in dismissing Dr. Ndlovu’s evidence as an expert was an error on the Court’s part given his qualifications and the fact that he was a lecturer at the University of Pretoria.

[46] Short shift can be made of the above contentions. The record shows that the parties were given ample time to prepare heads of argument and to argue the issue as I have indicated earlier. The contention that the claimant community was not given an opportunity to address the Court before invoking the rule has no merit, as I show in the following paragraph.

[47] Section 32 of the Restitution Act clothes judges with the power to, inter alia, manage the procedure and manner of conducting a trial and, thus, permits a judge to curtail the proceedings to ensure that resources, both public and private, are not wasted. This Court, unlike most, is vested with inquisitorial powers in terms of Section 32(3)(b) of the Restitution Act to conduct any part of any of its proceedings on an informal or inquisitorial basis and to identify issues to be determined separately. I was under no obligation, in my view, to be addressed by the parties before separating the issues.

Mlifi v Klingenberg 1999(2) SA 674 (LCC).

[48] Also, I am of the view that Rule 57(1) is not limited to only facilitating points of law or fact before the ventilation of a dispute between the parties. The aforesaid Rule reads as follows:

“57 PRIOR ADJUDICATION UPON ISSUES OF LAW OR FACT

(1) Should the Court, upon application by any party or of its own accord, be of the opinion that there is an issue of law or fact in a case which may conveniently be decided –

(a) before further documents are delivered in the case;

(b) before evidence is led in an action; or

(c) separately from some other issue,

the Court may order a separate hearing of that issue, and grant any extensions of time periods prescribed in the rules which may be desirable because of the separate hearing.”

[49] The elements under which a Court may decide it convenient to deal with an issue of law or fact separately, are framed in the alternative and, therefore, need not all have to be present at the same time. The use of the word “or” instead of “and” between (1) (b) and (c) supports this view. Consequently, I was entitled to invoke the provisions of Rule 57 (1)(c) in determining whether the claimants had made out a case on the evidence before me at that stage of the hearing.

[50] The legal point was whether the claimants had, in fact, proved that there was a community in existence which had been dispossessed of a right in land subsequent to 19 June 1913. I found against the claimants and have motivated my reasons for doing so in the 25 May 2020 judgment. Repeating same here would be tautologous.

[51] Ms. Poswa-Lerotholi referred me to a number of authorities in support of her contention that the Court erred in finding that the claimants did not meet the definition of a “community”. The first case cited by her was Mazizini Community v Minister of Rural Development and Land Reform and Others 2020 (3) All SA 318 (SCA) at paragraph [45], where the Court held:

“The meaning of ‘community’ is not rigid. The important factor is an accepted coordinated way of life amongst a group of people that guides their access and utilization of the land and natural resources within their environment – what the Constitutional Court described as an established orderly settlement pattern, common traditional practices, pooling of resources for farming purposes, economic activities and leadership structure.”

[52] It was further contended that my judgment, at paragraph [43], acknowledged that the community shared and practiced common traditional rituals, social interaction and that the group had shared rules. What Ms. Poswa-Lerotholi, omits to mention, however, is the wording of the penultimate and ultimate sentences of paragraph [43] of my judment. These sentences read as follows:

“Whilst the evidence does establish that the group did have shared rules, none of this related to shared rules determining access to land held in common by that group. See the dictum of the learned Judge President in Elambini supra:

[141] Thus it is settled law that for a community litigant to succeed in a restitution claim it must prove that it existed as a community after 19 June 1913, that it derived its possession and use of the land from common rules, and that it existed as the same community at the time that the claim was lodged. If at the time of dispossession, the possession and use of the land did not derive from common rules, but were supplanted by labour tenancy rules, the rights in land were not held by a community at the time of dispossession.”

The operative sentence of paragraph [43] quoted above, is found in the second line, where it is stated that: “… none of this related to shared rules determining access to land held in common by that group.”

[53] In paragraph [45] of my judgment, I find that the claimants failed to establish that they occupied the land held in common under shared rules determining access to the land. I further note “It was stated in paragraph 11 of the Amended Response, quoted in paragraph [11] above, that the customary rights held by the claimant community to the land were reduced to those of labour tenants over time and gradually reduced to those of farm laboures over a period of time,” This does not support the requirement of shared rules determining rights in land held in common.”

Also see Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd, [2007] ZACC 12; 2007 (6) SA 199 (CC) at paras [33] to [47], where the Constitutional Court gives a detailed analysis of the definition of “community” for the purposes of restitution claims under the Restitution Act. This definition differs from the ordinary meaning of “community”. I am of the view that this difference was not appreciated by the legal representatives of the claimants.

[54] My disqualification of Dr. Ndlovu as an expert and therefore disregarding his evidence is also taken issue with by the claimants.

The testimony of Dr.Ndlovu in respect of both his qualifications and evidence is dealt with in fair detail in paragraphs [32] to [37] of my judgment. The submissions on behalf of the claimants that the Court misdirected itself in disqualifying Dr. Ndlovu as an expert and that it erred in rejecting his evidence “out of hand” are not convincing, particularly, in the light of the contents of paragraphs [32] to [37] of my judgment.

[55] The test for the grant of leave to appeal, following the commencement of the (now not so new) Superior Courts Act 10 of 2013 (“the new Act”) on 23 August 2013, is now firmly settled in our jurisprudence. The threshold for the grant of leave to appeal has been raised by the new Act. See The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others LCC 14R/2014 at paragraph [6].

[56] I have carefully considered all of the contentions and the authorities cited in support thereof by Ms. Poswa-Lerotholi and am of the view that it is unlikely that another Court would come to a decision different to mine. An appeal to the Supreme Court of Appeal to overturn the 25 May 2020 judgment has no reasonable prospects of success. That being the case, this application by the claimant community also cannot succeed.

[57] Although the landowner respondents have asked for costs, they did not advance any special circumstances to depart from the general rule that this Court does not award costs to the winning party absent special circumstances, of which I find none.

THE COSTS ORDER APPLICATION

[58] The affected parties seek leave to appeal to the Supreme Court of Appeal the costs orders against them in my judgment dated 25 May 2020. The first of the orders disallowed the payment of their fees in full for the entire matter. The second order directed the affected parties to repay the fees that had already been paid to them by the Land Reform Management Facility which funded the litigation.

[59] The grounds and the motivations in support thereof amount to approximately 69 paragraphs in their Notice. Most of these grounds

and submissions include issues raised in an application for my recusal contained in a separate judgment (handed down on the same day as this judgment) and are discussed in detail in the recusal application. In addition, my judgment of 25 May 2020 also sets out my reasons for reaching the decisions which the affected parties seek to show as having led to the alleged misdirection and/or the misapplication of the law on my part.

[60] To respond to the submissions and/or contentions made in this costs order application but already covered and dealt with in the recusal application will amount to prolixity in a judgment that is already wordy.

[61] I do, however, intend to clarify submissions set out in paragraphs 58 and 59 of Ms. Norman’s heads of argument. She contends in the aforesaid paragraphs that, judging from the contents of (one of several drafts that normally precede the final one) a draft judgment that, somehow found its way to publication by Safllii that I,

“… was of the view that it would be just to allow the First Affected Party at least part of his fees up to the commencement of trial at New Hannover and to allow the fees of the Plaintiff’s attorneys in full, in a quantum as would be determined by the Taxing Master”

[62]. Then, Ms. Norman states that “It is not clear what ultimately changed the mind of the Learned Judge in this regard.” The draft judgment is annexed to Ms. Norman’s heads of argument

[63] One of the (many) attractions of being on the Bench is the spirit of collegiality among the members of the judiciary. And, it is in the exercise of that spirit that a colleague can always seek the counsel of another when grappling with a particularly difficult decision or to just “bounce off” an issue with one or more colleagues.

[64] Following the actions referred to in the previous paragraph, I perused a number of cases, including Pheko & Others v Ekurhuleni City 2015 (5) SA 600 (CC) at paragraphs 51 and 53. Although Pheko deals with the awarding of de bonis propriis costs which the Constitutional Court found to be a penalty for improper conduct, the same principle, in my view, applies with equal force where an officer of the Court has acted inappropriately in disregard of his professional responsibilities. A Court is given a discretion to assess the gravity of the conduct objectively. See Public Protector v SARB 2019 (6) SA 253 (CC) at paragraph 46.

[65] In the present matter, the affected parties were aware or should have been aware of the fact that, having been funded with public funds, they had an obligation towards the State. Their position was analogous to that of public servants who litigate with public funds or defend matters with those funds. South African Social Security Agency & Another v Minister of Social Development & Others [2018] ZACC 26 at paragraph 37.

[66] The disallowance of the costs of counsel and the attorney is not novel in this Court. See the dictum of Dodson J and Moloto J in Dhanpaul Singh v Minister of Land Affairs & Agriculture [1999] 2 All SA 578 (LCC) where the Court held:

“In deciding on the costs order relating to the recovery of legal aid costs, this Court must exercise its wide discretion afresh. There are particular factors which it must consider which are specific to the type of order under consideration. Firstly, and most importantly, when dealing with legal aid, one is dealing not with the costs of another party, but with scarce public funds. Secondly, those funds are made available to lawyers in the context of a relationship of trust and good faith as between the lawyers and the legal aid grantor. The question which must be asked is whether there was such a serious misuse of those public funds and such an abuse of the relationship of trust and the judicial processes commenced pursuant to the legal aid instruction, that it would be unconscionable for the Applicants’ legal representatives to recover their fees and disbursements from the legal aid grantor.” It is further stated

“In this particular matter, the funds have been used to wage a completely unwarranted litigation against the Third Respondent which is itself the legal aid grantor.”

[67] However, notwithstanding the above, and having given due consideration attention to the submissions by both Ms. Norman and Mr. Roberts, I have come to the view that the appeal has reasonable prospects of success. I say this for the following reasons:

67.1 the breach of the ethical standards I set for the legal representatives may not justify the severe penalty of disallowing their fees;

67.2 disallowing their entire fees may not be justified, since they could not be expected to know from the beginning that the claimants were not a community as required by the Restitution Act.

[68] In the circumstances, in my view, based on the above alone, there is a reasonable possibility that the Supreme Court of Appeal might come to a decision different from mine.

[69] The costs associated with this application will be costs in the appeal.

ORDERS

[70] There are accordingly, orders as follows:

1. The Initial application.

1.1 The Initial application is struck from the roll.

1.2 There is no order as to costs.

2. The Condonation application

2.1 The application for condonation of the late filing of the Notice for leave to appeal to the Supreme Court of Appeal by the claimants is granted.

2.2 There is no order as to costs.

3. The Main application

3.1 The supplemented application by the claimants for leave to appeal to the Supreme Court of Appeal the judgment of this Court dated 25 May 2020 is dismissed.

3.2 There is no order as to costs.

4. The Costs Order application

4.1 The claimants’ legal representatives (Mr. MM Chithi; Dludlu Attorneys and MC Ntshalintshali Attorneys) are hereby granted leave to appeal to the Supreme Court of Appeal against order number 4 of the orders in the judgment dated 25 May 2020.

4.2 The costs attended to this application shall be costs in the appeal.

________________________

MP Canca

Acting Judge, Land Claim Court

Appearances

For the Claimant Community: Adv. Poswa-Lerotholi with Adv. Shazi

Instructed by: Dludlu Attorneys, Durban.

For the Affected Parties: Adv. Norman SC with Adv. Nqala

Instructed by: Gordon Zungu Attorneys, Durban.

For the State Attorney: Adv. Naidu

Instructed by: State Attorney, Durban.

For the Landowner Respondents: Adv, Roberts SC with Adv. Roberts

Instructed by: Cox & Partners, Vryheid.

[1] Pursuant to the amendment of the community claim to individuals, in the alternative, the landowner respondents filed several points in limine in the form of a special plea one of which attacked the amendment as being bad in law given that the amendment was inserted after the cut-off date of 31 December 1998.for the lodgment of a valid restitution claim.