Nephawe and Another v Regional Land Claims Commissioner, Limpopo and Others (LCC 93/2010) [2013] ZALCC 8 (17 May 2013)

Nephawe and Another v Regional Land Claims Commissioner, Limpopo and Others (LCC 93/2010) [2013] ZALCC 8 (17 May 2013)

The Court found that the first respondent did take a decision to dismiss the Vhangona Nation land claim, as the exercise of statutory power under Rule 3 constitutes a reviewable decision. However, the provisions of PAJA do not apply because the decision was made before PAJA came into operation. The applicants failed to properly bring a review application under the Restitution Act, as they did not use the correct form or procedure, resulting in the absence of the record of proceedings necessary for the Court to determine compliance with Rule 3. Regarding the Nephawe Community claim, the Court found no evidence of dismissal and held that the claim was validly lodged but had not been...

Citation
[2013] ZALCC 8
Parties
Applicant: Azwidowi Tshidziwelele Nephawe; Applicant: The Nephawe Royal Council; Respondent: Regional Land Claims Commissioner, Limpopo; Respondent: Regional Land Claims Commission, Limpopo; Respondent: Chief Land Claims Commissioner; Respondent: The Commission on Restitution of Land Rights
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
17 May 2013
Case Number
LCC 93/2010
Procedural Posture
Review Application / Judgment
Outcome
The application is dismissed in respect of the Vhangona Nation claim. The first respondent is ordered to process the Nephawe Community claim within 30 days. No order as to costs.
Judges
Sidlova, Mpshe
Legal Topics
Restitution of Land Rights Act, Judicial Review, Administrative Action, Common Law Review
Land and Property Administrative Law Restitution of Land Rights Act Judicial Review Administrative Action Common Law Review

Case Brief

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Parties

Azwidowi Tshidziwelele Nephawe

Applicant

The Nephawe Royal Council

Applicant

Regional Land Claims Commissioner, Limpopo

Respondent

Regional Land Claims Commission, Limpopo

Respondent

Chief Land Claims Commissioner

Respondent

The Commission on Restitution of Land Rights

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the first respondent took a decision to dismiss the Vhangona Nation land claim.
  2. 2 Whether the provisions of the Promotion of Administrative Justice Act (PAJA) apply to the first respondent's decision.
  3. 3 Whether the decision to dismiss the Vhangona Nation land claim was compliant with Rule 3 of the Commission's Rules.

Ratio Decidendi

The Court found that the first respondent did take a decision to dismiss the Vhangona Nation land claim, as the exercise of statutory power under Rule 3 constitutes a reviewable decision. However, the provisions of PAJA do not apply because the decision was made before PAJA came into operation. The applicants failed to properly bring a review application under the Restitution Act, as they did not use the correct form or procedure, resulting in the absence of the record of proceedings necessary for the Court to determine compliance with Rule 3. Regarding the Nephawe Community claim, the Court found no evidence of dismissal and held that the claim was validly lodged but had not been...

Court Disposition

The application is dismissed in respect of the Vhangona Nation claim. The first respondent is ordered to process the Nephawe Community claim within 30 days. No order as to costs.

Orders

  • The application in respect of the Vhangona Nation is dismissed.
  • The first respondent is ordered to take steps in accordance with section 11(1) of the Restitution Act regarding the Nephawe Community claim within 30 days of this order.