Minaar NO v Regional Land Claims Commissioner for Mpumalanga and Others (LCC42/06) [2006] ZALCC 12 (8 December 2006)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NO: LCC42/06

Held at Randburg on 6 November 2006

Before Gildenhuys J

Decided on: 8 December 2006

In the matter between:

GABRIЁL PETRUS MINAAR N.O. Applicant

and

THE REGIONAL LAND CLAIMS

COMMISSIONER FOR MPUMALANGA First Respondent

NKOSI MENZANI RAINSLEE Second Respondent

NKOSI FAMILY

as represented by the second respondent Third Respondent

DAISY KOPJE COMMUNITY Fourth Respondent

_____________________________________________________________________

JUDGMENT

GILDENHUYS J:

[ 1] The Regional Land Claims Commissioner for Mpumalanga published a notice in the Government Gazette that a claim has been lodged by the Daisy Kopje Community for restitution of the entire farm Daisy Kopje no 643, registration division JT, in terms of the Restitution of Land Rights Act No 22 of 1994 (“the Act”). The farm is situated in the area of the Umjindi Local Municipality (Barberton). The applicants applied for the review of the decision of the Regional Land Claims Commissioner to publish the notice, on the grounds that the claim was not lodged as being a community claim, and that it was not lodged in respect of the whole of the farm Daisy Kopje.

[ 2] The applicants between them are the registered owners of portions 1, 2, 3, 4, 6, 7, 8, 11 and 13 of Daisy Kopje. The previous description of portion 4 was “portion D”. The fifth and sixth applicants are the present owners of portion 4. The owners of portions 5, 9 and 10 of Daisy Kopje do not participate in these proceedings.

[3] The first respondent is the Regional Land Claims Commissioner for Mpumalanga. The second respondent is Nkosi Menzani Rainslee. The third respondent is described as the “Nkosi family as represented by the second Respondent”. The fourth respondent is described as the “Daisy Kopje Community”, which is also represented by the second respondent. The State Attorney entered an appearance to oppose the review application on behalf of all the respondents. A record was duly delivered by the first respondent, containing the documents with reference to which the decision to publish notice of the claim, was taken. Only the first respondent delivered an answering affidavit.

[4] The second respondent signed a Land Claims Form on 29 December 1998. The relevant paragraphs are quoted hereunder. The parts completed in manuscript are in italics:

“Details of property/land being claimed in terms of the Restitution of Land Rights Act, 1994 (Act No 22 of 1994):

1. Property description: Rural/Urban (Delete which is not applicable):

1.1 If it is rural land, the portion(s), name(s) and number(s) of the farm and district in which it is situated: Daisy Kopje Farm Portion: D Register D.V JU Mpumalanga Baberton District 643 JT

2. Which department/body acquired the property? Jackson

3. Full particulars of person who lost the right in land:

- Name/Community/Trust: Ngoko Willy Nkosi

- ID number of individual claimant: deceased

4. Full particulars of applicant, if not the person who has lost the right in land:

Name/Community/Trust: Nkosi family

If you are acting on behalf of a community/trust please give your:

- Name: Nkosi Menzani Rainslee

- ID number: 3109065146082

- In what capacity are you acting? Family Representative

5. Do you know about any other family member that might have an interest or claim on the land?

5.1 If so, please give details: See note attached

[The “note attached” is not part of the record. Apparently, it could not be found]

6. Please give the reason for your claim. (If you need more space please attach a separate page):

We are situated far away from each other we need to come together and stay communally like we use to do.

We want to be next to our graves.

We want to do crop and stock farming.

7. Other evidence to substantiate your claim:

Graves

Oral evidence

10. I (full name) Nkosi Menzani Rainslee certify that the above mentioned information is correct to my knowledge

Signature: RM NKOSI Date: 29.12.98

Place: Nelspruit”

[ 5] An acknowledgment of receipt of the claim was sent to

the “Nkosi Family” on 14 April 1999. The claim was at that stage not regarded as a

claim by the fourth respondent.

[6] After receipt of the claim, a research report was prepared for the Regional

Land Claims Commissioner by Mr Don Maziya, a project officer in the Commissioners office. The relevant paragraphs of the report reads as follows:

“1.1 The Regional Land Claims Commission received a land claim for Daisy Kopje 643 JT from NKOSI MENZANI RAINSLEE on behalf of his Community on the 28 December 1998….

2. PARTICULARS OF THE CLAIM

2.1 The claimant is Mr. NKOSI MENZANI RAINSLEE ID NO. 3109065146082. He is claiming on behalf of the community of Daisy Kopje. (See Annexure A. Claim form)

3. PROPERTY DESCRIPTION AND LOCALITY RESEARCH

3.1 The claimed property is described as Daisy Kopje 643 JT situated in the Umjindi Local Municipality (Baberton), in the Mpumalanga Province.

15. RECOMMENDATIONS

15.1 It is recommended that the claim does comply with all the provisions in terms of the provisions of section 2(1), and can be accepted based on the following reasons:

(i) the claim substantially complies with the requirements as stipulated in the Restitution of Land Rights Act, Act 22 of 1994 (as amended);

(ii) the claim is not precluded by the provisions of section 2 of the Restitution of Land Rights Act, Act 22 of 1994 (as amended).

15.2 It is recommended that the claim be published in the Government Gazette in terms of section 11(6) of the Restitution of Land Rights Act 22 of 1994.”

[ 7] The report by Mr Don Maziya is dated 11 May 2005. The Regional Land Claims Commissioner accepted his recommendation that notice of the claim be published in the Gazette. It was published on 3 June 2005 in respect of every subdivision of the farm Daisy Kopje. The notice in the Gazette states that the claim “has been lodged by Mr Nkosi Menzani Rainslee … acting in his capacity as a Chairperson of Daisy Kopje Community”.

[8] After the publication in the Gazette, the first respondent sent notices of the claim to the owners of all the subdivisions of Daisy Kopje. In response to a query from the applicants, the office of the first respondent stated in a letter dated 17 August 2005:

“On the claim form dated 29/12/98 the claimant lodged a claim on the farm Daisy Kopje stating Portion D.

Before we accept a claim to be valid, we investigate the merits of that claim.

Through out our investigation we found that the claimant’s family was scattered beyond Portion D, and used all other portions of the farm for their everyday duties. (to collect wood and herbs)

Also the graves of the other families of the community are not on Portion D. As Blacks were not allowed to own land, the claimants had unregistered rights on the property.”

[my underlining]

[ 9] The applicants made representations as envisaged in section 11A of the Act to the office of the first respondent for the withdrawal of the notice published in the Gazette. The applicants were informed that their request for the withdrawal “will not be considered”. Having achieved no success through exercising their internal remedies under section 11A, the applicants then lodged these review proceedings. They alleged in their founding papers that the first respondent erred in deciding -

“8.1 To publish the said claim as a community claim:

It is submitted that from the claim form it is clear that no claim has been lodged for and on behalf of any community. It is further clear from the claim form that Mr. Menzani Rainslee Nkosi has instituted a claim in his own right or on behalf of his family.

8.2 To publish a claim against the whole of the farm Daisy Kopje:

It is submitted that from the claim form it is clear that the alleged claim is instituted in respect of portion D of the said farm and not in respect of any other portion of the said farm. As pointed out above, portion D is presently known as portion 4(four). The said claim should never have been published against the other portions of the said farm.”

These decisions, so they say, are ultra vires, wrong in fact and bad in law.

[10] Before deciding on the relief claimed, I will set out the legislative background to the acceptance and publication of restitution claims. One of the functions of the Land Claims Commission as set out in section 6(1) of the Act is to:

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

This case turns on the proviso “subject to the provisions of section 2”.

[ 11] Section 2(1) of the Act provides that a person shall be entitled to restitution of

a right in land if-

“(a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(b) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(c) he or she is the direct descendant of a person referred to in paragraph (a) …

(d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and

(e) the claim for such restitution is lodged not later than 31 December 1998.”

[12] Section 11 of the Act provides for the publication of notice of claims in the Gazette. It reads as follows:

“(1) If the regional land claims commissioner having jurisdiction is satisfied that-

(a) the claim has been lodged in the prescribed manner;

(b) the claim is not precluded by the provisions of section 2; and

(c) the claim is not frivolous or vexations,

he or she shall cause notice of the claim to be published in the Gazette and shall take steps to make it known in the district in which the land in question is situated.

(2) The Regional Land Claims Commissioner concerned may, on such conditions as he or she may determine, condone the fact that a claim has not been lodged in the prescribed manner.

(3) A frivolous or vexatious claim may be dismissed by the Regional Land Claims Commissioner concerned.”

[ 13] The functions and duties of a Regional Land Claims Commissioner under section 11 of the Act was considered by of this Court in Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC). Dodson J said (at 924B-C) that the investigation into the merits of a restitution claim takes place only after the claim has been accepted in terms of section 11(1) of the Act. The strength of the claim is not important at the acceptance stage, provided that there is an arguable case. In the same case Bam P held as follows (at 936G-I):

“However, I am firmly of the view that … total exclusion [of a claim] was intended to occur only in patently bogus claims or claims without substance or claims which on a purely mechanical or objectively determinable reasoning, fell outside the parameters of the legislation.”

[ 14] In Mahlangu NO v Minister of Land Affairs and Others 2005 (1) SA 451 (SCA), Nugent JA referred to the Farjas case and said (at 455D-E):

“The LCC pointed out in Farjas (Pty) Ltd v Regional Land Cliams Commissioner KwaZulu-Natal 1998 (2) SA 900 (LCC) para [41] that it is not the function of a regional commissioner – and that applies also to the commission – to adjudicate upon the merits of a claim for restitution. While s 11(1) of the Act requires a regional commissioner to be satisfied that a claim ‘is not precluded by the provisions of s 2’ before the process is set in motion, Dodson J held that a claimant need exhibit only ‘an arguable case’ (at 924C). In my view even that threshold might be too high but it is not necessary in this appeal to decide that question.”

[15] A decision by a Regional Land Claims Commissioner to publish a restitution claim is “administrative action” within the meaning given to that term in the Promotion of Administrative Justice Act No 3 of 2000 [“PAJA”]. In Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 (1) SA 373 (SCA), Olivier JA held (at 380A-C) that the Regional Land Claims Commissioner:

“…may proceed with the aforesaid publication [of a claim] only if he or she is satisfied that (a) the claim has been lodged in the prescribed manner; (b) the claim is not precluded by the provisions of s 2; and (c) the claim is not frivolous or vexatious (s 11(1)(a), (b) and (c)). After giving consideration to these requirements, the Regional Land Claims Commissioner then has to take an administrative decision and perform an administrative action, viz to refuse acceptance of the claim or to accept the claim.”

[16] The requirement in section 11(1) of the Act that the Regional Land Claims Commissioner must be “satisfied” inter alia that the claim is not precluded by section 2 before he can publish, does not mean that the claimant must prove that the claim is not so precluded. As I have said, the claimant needs to do no more than present an arguable case. See Farjas (Pty) Ltd v Regional Land Claims Commissioner KwaZulu-Natal (supra) at 924D and Hlaneki and Others v Commission on the Restitution of Land Rights and Others [2006] All SA 633 (LCC) at 639e-640c. If, however, the claim “on a purely objectively determinable reasoning fell outside the parameters of the Legislation” (as per Bam P in the Farjas case), it must be excluded.

[ 17] I will first consider whether it is arguable, on the information contained in the record, that the provisions of section 2(1) have been complied with in respect of those subdivisions of Daisy Kopje (excluding portion 4) which belong to one or more of the applicants.

[18] The land claim form contains the deeds office description of the land claimed. It is stated to be portion D (now known as portion 4) of Daisy Kopje. Yet it is alleged in the research report [par 3.1] that the claimed property “is described as Daisy Kopje”. That is incorrect. It is also alleged in the research report [par 2.1] that Mr. Nkosi Menzani Rainslee “is claiming on behalf of the community of Daisy Kopje”. That is not borne out by the land claim form, and is also incorrect. In par 4 of the land claim form it is stated that the claimant is the “Nkosi family”.

[19] The first respondent ex post facto motivated his decision to publish the notice in letters to the applicant’s attorney dated 17 August 2005 and 11 October 2005. He stated that through investigations by his office it was found that the claimant’s family was scattered beyond portion D and that they also used the other portions of Daisy Kopje for their everyday duties. The first respondent does not disclose from where he obtained that information. It is not substantiated by anything in the record. Even if the information is correct, that by itself does not give the family a claim in respect of the other portions. No claim as required by section 2(1)(e) of the Act was lodged in respect of the other portions. The first respondent has no power to include unclaimed portions of Daisy Kopje in the claimed land.

[20] The first respondent furthermore alleged in the letters that “graves of the other families of that community (presumably the so-called Daisy Kopje community) are not on portion D”. Only one family lodged a claim. The first respondent has no power to substitute the Nkosi family by a different claimant which also includes other families.

[ 21] The first respondent expanded on the reasons previously given for his decision to publish the notice of the claim in his answering affidavit. He made the following allegations in par 6.3:

“6.3 The claim was investigated by officials of the first Respondent. The investigations revealed that;

6.3.1 the land claimed was correctly indicated and lodged as a community claim in the claim form;

6.3.2 although the completed claim form reflected that the claim was for portion D of Daisy Kopje farm, having applied my mind to the facts before me, I was satisfied that the claim is on behalf of the community and is in respect of the whole farm of Daisy Kopje. A research report compiled by the officials of the first Respondent is annexed hereto marked annexure “B”.”

The research report contains no basis for the conclusion that the claim is in respect of whole farm. There is only the ipse dixit of the researcher.

[22] The research report recommends that the claim be published in the Government Gazette. The first respondent referred to the recommendation in his answering affidavit, and then said:

“6.5 This recommendation is premised from the fact that, the claim is not of the second Respondent, who is also lodging the claim on behalf of the community of Daisy Kopje. This is correctly derived from the claim form.

6.6 In addition to the a foregoing, after the investigation and verification process were carried out, it revealed that the claim on the land goes beyond portion D and covered the whole of Daisy Kopje farm. …

6.7 Accordingly, as the claim fulfilled the substantial requirements and having condoned any minor indications of the non-compliance with the provisions of the Act, I published the notice referred to as annexure “H1” in the founding affidavit, which notice was published in the Government Gazette of 3 June 2005. …”

[23] It would appear to me that the land claim form shows the restitution claim to be a claim lodged on behalf of the third respondent . I do not see how it can be “derived from the land claim form” that the second respondent is also lodging a claim on behalf of the fourth respondent, as the first respondent alleges. I also fail to understand how an investigation and verification process can “reveal” that the claimed land extends beyond portion D. There is no manifestation that the person who signed the claim form intended, at the time when he lodged the claim that the claimed land should also include other land. Even if he has had such an intention, that subjective intention alone cannot expand a claim which ex facie the claim form is limited to portion D, to also include other subdivisions of Daisy Kopje.

[24] I turn to portion 4 of Daisy Kopje. In my view, the third respondent might well be a “community” as defined in the Act, and it might well be that its claim is not precluded by the provisions of section 2 of the Act. A decision to publish notice of the claim in the Gazette would be justifiable, but only insofar as it relates to portion 4 and only as a claim by the third respondent.

[25] Under section 36 of the Act, any person aggrieved by any act or decision of the Commission or any functionary acting in terms of the Act, may apply to have such act or decision reviewed by this Court. This Court may exercise all of the High Court’s powers of review. The standard of review is set forth in section 33(1) of the Constitution of the Republic of South Africa read with section 6(2) of PAJA.

[ 26] A functionary must make decisions which are rationally justifiable. See Ampofo and Others v MEC for Education, Arts, Culture, Sports and Recreation, Northern Provonce and Another 2002 (2) SA 215 (T) par [55] at 234G. It has been held by Howie P in Trinity Broadcasting (Ciskei) v Independent Communications Authority of South Africa 2004 (3) SA 346 (SCA) par [21] at 354 H – 355A that a reviewing court will ask:

“…is there a rational objective basis justifying the connection made by the administrative decision-maker between the material made available and the conclusion arrived at”

S ee also Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 304 (LAC) par [37] at 316D-E.

[27] As I have indicated, there is no rational connection between the information available to the first respondent and the administrative act he performed by concluding that the restitution claim is a claim for the entire farm Daisy Kopje, and that it is a claim made by the fourth respondent. That brings me to the question of whether, despite the irrationality of the first respondent’s conclusion, he is still entitled to give notice of the claim as being a claim by the fourth respondent for the whole farm.

[28] Decisions by an administrative functionary must comply with the requirements of the authorising statute. If a decision would have been ultra vires under the common law because the person exercising the power to make the decision exceeded his or her statutory authority, it will be subject to review under the Constitution read with “PAJA”, because it would be unlawful. See Parmaceutical Manufacturers Association of SA and Another: in re ex parte President of the Republic of South Africa and Others 2000 (2) SA 647 (CC) par [50] at 698D and Vorster and Another v Department of Economic Development, Environment and Tourism, Limpopo Province and Others [2006] ZAGPHC 44; 2006 (5) SA 291 (T) at 299 J – 300A. In the present case, the first respondent was not authorised under the Act to add additional subdivisions of Daisy Kopje to the single subdivision claimed, nor to replace the third respondent by the fourth respondent as claimant.

[ 29] I proceed to consider what order this Court should make in the light of my finding that the administrative action taken by the first respondent is not rationally justifiable and without legality. This Court is in as good a position as the first respondent to decide on the acceptance of the claim under section 11(1) of the Act. The result must be a forgone conclusion. There is no point in remitting the decision to the first respondent for reconsideration. The first respondent has been so inept in arriving at his previous conclusion that it would be unfair to expect from the applicant’s to submit to his jurisdiction again. See Cora Hoexter, The New Constitutional and Administrative Law vol 2, p292-293. In my view, this is an exceptional case in which the Court should take its own decision which will replace the first respondent’s decision. See Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) par [28] at 75E-G and par [39] at 79G.

[ 30] The obvious lack of rationality in arriving at the decision to publish and the unlawfulness of the publication enjoins me to depart from the usual practice of this Court not to make cost orders, and to order the first respondent to pay the applicants’ costs. Moloto J adopted a similar approach in Hlaneki v Commission on Restitution of Land Rights and Others [2006] 1 All SA 633 (LCC) at 642d, where the Regional Land Claims Commissioner took a manifestly indefensible position.

[31] For the reasons set forth above, I make the following order:

(a) The decision of the first respondent to publish notice in the Government Gazette that a claim has been lodged in terms of the Restitution of Land Rights Act by Mr. Nkosi Menzani Rainslee on behalf of the Daisy Kopje Community insofar as it relates to portions 1, 2, 3, 4, 6, 7, 8, 11 and 13 of the farm Daisy Kopje 643 JT, is hereby set aside.

(b) The first respondent is directed to withdraw the notice published in the Government Gazette of 3 June 2005 (insofar as the notice relates to portions 1, 2, 3, 4, 6, 7, 8, 11 and 13 of the farm Daisy Kopje 643 JT).

(c) The first respondent is directed to publish a fresh notice in the Government Gazette that a claim has been lodged in terms of the Restitution of Land Rights Act on portion 4 of the farm Daisy Kopje 643 JT by Mr. Nkosi Menzani Rainslee on behalf of the Nkosi family.

(d) The first respondent must pay the applic ants’ costs, taxed as between party and party.

_______________________

JUDGE A GILDENHUYS

JUDGE OF THE LAND CLAIMS COURT

APPEARANCES :

For the applicant:

MR S GÅ°LDENPFENNIG

instructed by:

PIETER NEL ATTORNEYS

NELSPRUIT

For the first respondent:

MR AT NCONGWANE

instructed by

THE STATE ATTORNEY

PRETORIA