Niehaus v Regional Land Claims Commissioner and Others (LCC147/2010) [2013] ZALCC 14 (6 September 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG

CASE NUMBER: LCC147/2010

DATE: 6 SEPTEMBER 2013

In the matter between

CHRISTOPHER CHARLES DE MOWBRAY NIEHAUS...................................................................Applicant

And

THE REGIONAL LAND CLAIMS COMMISSIONER..............................................................1st Respondent

THE CHIEF LAND CLAIMS COMMISSIONER.....................................................................2nd Respondent

THE MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM.................................................................................................................3rd Respondent

MOSIMA COMMUNITY................................................................................................................4th Respondent

MAJADIBADU COMMUNITY.....................................................................................................5th Respondent

MABULA-MOSIMA COMMUNITY..............................................................................................6th Respondent

Before: Loots AJ

Judgment delivered on 6 September 2013

JUDGMENT

[1] In Transvaal Agricultural Union v Minister of Land Affairs and another the Constitutional Court held that, in dealing with land restitution matters, courts are required to balance the competing interests of land owners and claimants for restitution of land rights. Unfortunately, it is not that simple, because there is always a third party before the Court: the Commission on Restitution of Land Rights.

[2] The Restitution of Land Rights Act 22 of 1994 (the Restitution Act) places an onerous burden on the Commission. It must receive and acknowledge receipt of all claims; publish notice of each claim in the Government Gazette if it has been properly lodged and if there appears to be entitlement to restitution; take steps to make the claim known in the district in which the land in question is situated; investigate the merits of the claim; consider representations made by interested parties and amend or withdraw claims where appropriate; mediate and settle disputes arising from claims and report to the court on such settlements; and refer the claim to the court if its not possible to settle it by mediation and negotiation. This case, like many others, demonstrates that the Commission has simply not been able to discharge these responsibilities effectively. The result is that many of the cases

brought before the Land Claims Court in recent years are claims for judicial review of the Commission’s administrative action or lack thereof.

[3] The applicant owns two adjacent game farms in Limpopo, which are referred to as Star 567 LR and Onschuld 568 LR (the farms). In his founding affidavit the applicant says that during 2006 an acquaintance told him that there may be land claims in respect of these farms. He became concerned and addressed an enquiry to the Regional Land Claims Commissioner (RLCC) for the province, the first respondent. The response he received was that the RLCC had no record of any claim. Thereafter, an estate agent, to whom he had given a mandate to sell the farms, made a similar enquiry to the RLCC and received the response that there were land claims in respect of the farms.

[4] These conflicting reports set the scene for many years of uncertainty, during which time the applicant and his attorneys tried

to obtain a clear answer from the RLCC as to whether claims had been lodged against the farms. On the 1st April 2010, in response to repeated requests for information about the land claims allegedly lodged over the applicant’s properties, a bundle of documents relevant to claims instituted by the Majadibodu Community was delivered on behalf of the RLCC to the applicant’s attorneys. None of the documents provided in this bundle applied to the farms.

[5] A notice which had been published in the Government Gazette on 11th March 2005 indicated that there were claims in respect of certain properties in the area by the Majadibodu Community, however the applicant’s farms were not listed in this notice as properties in respect of which claims had been lodged.

[6] Eventually, in 2010, the applicant brought an application to this court for an order declaring that there are no claims in respect of his two farms and an order that the RLCC should amend its data base to reflect this. Initially the applicant cited only the RLCC for the Limpopo province as the first respondent and the Chief Land Claims Commissioner as the second respondent. At a later stage the Minister of Rural Development and Land Reform was joined as the third respondent and three communities who had been identified as possible claimants in respect of the applicant’s land were joined as the fourth, fifth and sixth respondents.

[7] On 15th December 2010 Gildenhuys J issued a rule nisi calling upon the RLCC and these three communities (fourth to sixth respondents) to show cause why an order should not be made declaring that none of the three communities had lodged a claim against the applicant’s

two farms. The fifth respondent, the Majadibodu Community, and the RLCC responded by delivering affidavits in which it was alleged that the Majadibodu Community had lodged claims against the farms. This caused the rule nisi to be discharged on the return day.

[8] The order made by Gildenhuys J on 15th December 2010 also required the RLCC to report on whether it was possible and feasible to identify from its records whether any land restitution claims had been lodged over the farms. In response to this order, a report

signed by Mr Tele Maphoto, the Regional Land Claims Commissioner for Limpopo, on 19th January 2012 was filed with the Registrar of the Court. This report stated that the office of the RLCC had gone through its records. In its hard-copy files relating to the three communities it found no evidence of claims having been lodged in respect of the applicant’s farms. However, its electronic

database disclosed that the farms were affected by claims. The report concluded with the following statement:

‘It would seem that the farms were erroneously or fraudulently captured on the electronic land claim database as they do not appear anywhere in the hard copies and therefore our office will take the corrective measures by removing the farms from the database.’

This was good news for the applicant, however, on 20th February 2012 Mr Maphote signed an answering affidavit to the applicant’s

founding affidavit in this application, which had the effect of retracting the statement quoted above. In that affidavit he goes to great lengths to explain the processes of the Commission and the problems which it has encountered, before making the following

statement:

‘We still do not know how and why the farms appear on the systems but we cannot rule out the possibility of a supporting document until the restitution process has been finalized.’

[9] The application was eventually set down for hearing on 4th December 2012. On that day I granted a consent order at the request of the parties. In terms of the first and third paragraphs of the order, the first to third respondents (the Chief Land Claims Commissioner, the RLCC and the Minister, hereinafter referred to as ‘the state respondents) were required to deliver a status report on the claims lodged by the Majadibodu Community in the Waterberg area by 5th February 2013, after which the parties could file affidavits relating to the report.

[10] A status report entitled ‘Status Report on Majadibodu’ was delivered by the State Attorney. This report took the form of a table in which the office of the RLCC for Limpopo listed, in four columns, farms that had been claimed; farms that had been researched and gazette; farms that had been researched, gazette and settled; and farms still to be researched. The applicant’s two properties were the last farms listed under ‘farms still to be researched’. An explanatory note stated that because these two farms did not appear on the RLCC’s data base at the time of research, they had not yet been researched and gazetted and that they would be researched in the 2013/2014 financial year.

[11] In terms of the second paragraph of the consent order referred to in paragraph 9, the RLCC (first respondent) undertook to publish notice of the claims in respect of the applicant’s two farms in terms of section 11(1) of the Restitution Act not later than 31 March 2013. The order further provided that if the RLCC failed to do this, it would be deemed to have decided that the criteria set out in section 1(1) had not been met and must advise the claimants accordingly giving reasons for the decision not to accept the claim, as required by section 11(4) of the Act.

[12] On 5 April 2013 a notice was published in the Government Gazette which amended the notice of 11 March 2005, which is referred to in paragraph [5] above, by adding the applicant’s two farms to the list of properties affected by the claims lodged by the Majadibodu Community. This amendment notice was given in terms of section 11A(4) of the Act.

[13] Heads of argument were filed on behalf of the applicant and the state respondents in preparation for the hearing of argument on 25 April 2013. On 23 April the attorney representing the Majadibodu Community addressed a letter to the Registrar which advised that, despite a judgment given by Acting Judge Kahanowitz on 5 October 2011 (Gildenhuys J concurring) ordering the Commission to pay for legal representation for the Majadibodu Community, they had still not been provided with any funding. Counsel for the Majadibodu Community was present in court when the matter was called on 25 April 2013, but advised that he was not in a position to present argument because of the failure of the Commission to provide funding for legal representation. I ruled that the Court would proceed to hear argument by counsel for the applicant and the state respondents, but gave an undertaking that I would not make any order precluding the Majadibodu Community’s claim without giving it an opportunity to make representations to the court.

[14] The applicant argued that the status report by the RLCC does not comply with the order made by consent on 4 December 2012 because it reflects that no investigations have been made in respect of the claims over the applicant’s farms. Counsel for the state

respondents submitted that the order did not require a report indicating the outcome of investigations. All it required was a report on the status of the Majadibodu Community’s claims. On this issue I agree with the submissions made by counsel for the state respondents. The relevant paragraph of the order simply provides:

‘1st to 3rd Respondents are to deliver to the parties and file in court by 15 February 2013 a status report of the claims that have been lodged by the fifth respondent in the Waterberg area.’

I cannot read more onerous obligations into the order, as counsel for the applicant urges me to do. The applicant was party to the drafting of the consent order and the meaning of this paragraph is clear.

[15] The second issue raised by the applicant is that the notice published in the Gazette is not in compliance with the consent order because it was published in terms of section 11A(4) of the Act instead of section 11(1) of the Act, as stipulated in the consent order. The applicant is correct in that, in terms of paragraph 2 of the consent order, the RLCC undertook to publish the claims in terms of section 11(1) of the Act. Counsel for the state respondents submits that section 11A(4) empowers the RLCC to amend a gazette notice of a claim in order to correct an obvious error and that it was entitled to publish notice of the claims using this section. The provisions of the relevant sections of the Act are:

‘11 Procedure after lodgement of claim

(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 vexatious,

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.

[Sub-s. (1) amended by s. 5 (a) of Act 78 of 1996 and substituted by s. 4 (a) of Act 18 of 1999.]’

…

(4) If the regional land claims commissioner decides that the criteria set out in paragraphs (a), (b) and (c) of subsection (1) have not been met, he or she shall advise the claimant accordingly, and of the reasons for such decision.

[Sub-s. (4) substituted by s. 4 (b) of Act 18 of 1999.]

11A Withdrawal or amendment of notice of claim

(1) Any person affected by the publication of the notice of a claim in terms of section 11 (1) may make representations to the regional land claims commissioner having jurisdiction for the withdrawal or amendment of that notice.

(2) Where during the investigation of a claim by the Commission the regional land claims commissioner having jurisdiction has reason to believe that any of the criteria set out in paragraphs (a), (b) and (c) of section 11 (1) have not been met, he or she shall publish in the Gazette and send by registered post to-

(a) the claimant;

(b) the owner; and

(c) where applicable, a person who has made representations in terms of subsection (1) and any other party, who to his or her knowledge, may have an interest in the claim,

a notice stating that at the expiry of the period mentioned in the notice, the notice of the claim published in terms of that section

will be withdrawn unless cause to the contrary has been shown to his or her satisfaction.

[Sub-s. (2A) amended by s. 5 of Act 18 of 1999.]

(3) At the expiry of the period contemplated in subsection (2), the regional land claims commissioner shall, unless cause to the contrary has been shown to his or her satisfaction, withdraw the notice of claim and-

(a) advise the persons mentioned in that subsection by notice sent by registered post;

(b) cause notice of his or her decision to be published in the Gazette; and

(c) take other steps to make his or her decision known in the district in which the land in question is situated.

‘(4) The regional land claims commissioner having jurisdiction may, during the investigation of a claim by the Commission and after following the procedure set out in subsection (2), unless cause to the contrary has been shown to his or her satisfaction, amend the notice published in terms of section 11 (1), whereafter the provisions of paragraphs (a), (b) and (c) of subsection (3) shall apply mutatis mutandis: Provided that the regional land claims commissioner may, without following the procedure set out in subsection (2), amend the notice to correct any obvious error in it, and cause notice of his or her decision to be published in the Gazette. (My underlining)

[S. 11A inserted by s. 6 of Act 78 of 1996.]’

[16] Counsel for the state respondents argued that the omission of the applicant’s farms from the notice published on 11 March 2005 was an obvious error and that the RLCC could therefore utilize section 11A(4). I cannot accept that the failure to list the

applicant’s two farms in the 2005 notice was an obvious error. Judicial officers are all too aware what is meant by an ‘obvious

error’ because the only kind of error that a judicial officer may mero motu correct in a judgment or order that he or she has made is a ‘patent error’. The words ‘obvious’ and ‘patent’ in these contexts mean the same thing. What they mean is that the wording does not reflect the intention of the author. If the omission of the two farms was an ‘obvious error’ then any informed person who read the notice or order would realize that there is a mistake and the author, on reviewing the notice or order, would realize that there was a mistake.

[17] If the omission of the applicant’s farms from the 2005 notice was an obvious error, one would have expected the RLCC to correct this error when the applicant and his agents started querying whether the farms were under claim, which queries began in 2006 and continued through to 2010. It is clear from the affidavits and other documents delivered by or on behalf of the RLCC that it was not regarded as an obvious error. Mr Mapote went so far as to say that the applicant’s farms must have been listed on their data base by fraud or mistake and that the data base would be corrected. If the notice was ‘obviously’ incorrect it would be the notice and not the data base which stood to be corrected.

[18] Counsel for the applicant argued that there is another, perhaps more cogent, reason why the proviso to section 11A(4) of the Act is not the appropriate section under which to publish the claims in respect of the applicant’s farms. He submitted that if one looks a section 11A(4) in the context of section 11A as a whole it is clear that it was not intended to be utilized for the original publication of a claim. Section 11A was inserted into the Act to give a landowner in respect of whose claim a notice had been gazetted the opportunity to make representations to the RLCC. This right only comes into operation once a notice has been published in terms of section 11(1). To allow the original proclamation of a claim to be published in terms of section 11A(4) would deprive the landowner of the right to make representations and upset the sequence of procedures provided for in the Act.

[19] It is clear that what the legislature intended when it added the proviso to section 11A(4) was that if an obvious error became

apparent to the RLCC during the course of considering representations, or perhaps at some other time, the error could be corrected by way of an amendment without going through the section 11A(2) procedure, In this case there is no evidence that the RLCC ever regarded the omission of the applicant’s farms from the notice to be an error.

[20] In any event, the RLCC cannot bypass section 1(1) of the Act because in terms of that sub-section the RLCC must publish notice of a claim if satisfied, and only if satisfied, that the criteria contained in paragraph (a), (b) and (c) of the sub-section have been met. This is why the consent order required the publication to be made in terms of section 1(1) of the Act.

[21] I accordingly find that the publication of the notice in terms of section 11A(4) did not constitute compliance with the court order made on 4 December 2012. That notice must, therefore, be set aside.

[22] The applicant’s counsel argued that if I came to this conclusion then the provision of the consent order in terms of which it would be deemed that there were no claims against the applicant’s properties by any of the three identified communities should become operative, subject to confirmation after the Majadibodu Community had the opportunity to respond. This would serve no purpose since the Majadibodu Community has already delivered an affidavit in response to the rule nisi which makes it clear that they intend to pursue their claims in respect of the applicant’s land.

[23] The Majadibodu Community responded to the rule nisi issued by Gildenhuys J by delivering an affidavit made by Moreba Johannes

Majabidodu, the Chairman of its ‘trust entity’, in which it is alleged that the community lodged a claim in 1996 over land which includes the applicant’s two farms, and to which is annexed evidence in support of that allegation. In view of this affidavit and the fact that the RLCC did make an attempt to publish the claims over the applicant’s farms, I cannot allow the deeming provision to come into operation. Whether such a deeming order is enforceable in circumstances where the relevant legislation requires an administrative official to make a decision is, in any event, questionable.

[24] I accordingly turn to the relief claimed by the applicant. In his amended notice of motion, the applicant claimed an order declaring that there are no claims against his two farms and an order that the first and second respondent should amend their data bases to reflect this. I am of the opinion that a declaratory order to the effect that there are no claims in respect of the farms is not appropriate relief for a number of reasons.

[25] The most compelling reason why the relief claimed is not appropriate is that a court must always be careful not to make an order which curtails or renders unenforceable a right which an interested party may have without giving that party an opportunity to make representations to it. Gildenhuys J was at pains to point this out to the applicant’s counsel when he heard the initial application. He was, however, persuaded to issue a rule nisi when the ambit of the order claimed was amended to refer specifically to three identified communities on whom the rule nisi could be served. One of these communities came forward in response to the rule nisi, asserting that it has a claim and providing evidence thereof. Once this happened the applicant should have abandoned its attempts to obtain a declaratory order to the effect that there are no claims in respect of his two farms.

[26] Another factor that a court must take into consideration when deciding whether to grant a declaratory order is the impact that the order claimed would have. In Fose v Minister of Safety and Security, Kriegler J held that the term ‘appropriate relief’ as used in section 38 of the Constitution should be interpreted as follows:

‘When something is appropriate it is ‘specially fitted or suitable’. Suitability in this context, is measured by the extent to which a particular form of relief vindicates the Constitution and acts as a deterrent against future violations of the rights enshrined in Chapter 3. In pursuing this enquiry one should consider the nature of the infringement and the probable impact of a particular remedy. One cannot be more specific. The facts surrounding a violation will determine what form of relief is appropriate.’

Mr Maphote, acting as the Chief Land Claims Commissioner, has stated on affidavit in this matter that there are thousands of claims in respect of which section 1(1) notices have not yet been published. This means that there are thousands of landowners who do not know that claims have been lodged in respect of their land. If the declaratory order claimed is made then every landowner who fears that there might be a claim against its land might be entitled to a similar declaratory order.

[27] Counsel for the state respondents argued that a further reason why a declaratory order should not be granted is that the court can make a declaration only in respect of a question of law, not in respect of a fact. Section 22(1)(cA) of the Restitution Act appears to support this argument and there is some authority to this effect. However, in view of the reasons given in paragraphs [23] and [24] above, I will not decide this issue.

[28] The claims for an order declaring that there are no claims against the applicant’s two farms and an order that the first and second respondent should amend their data bases to reflect this can accordingly not be granted. Certain relief was claimed in the alternative, but the applicant did not persist with the alternative claims. The applicant has achieved a position, by way of the consent order, where the RLCC undertook to publish the claims by a certain date. I have held that the publication in terms of section 11A did not fulfill the obligation that it undertook, but I accept that the RLCC was bona fide in believing that this sub-section could be utilized. I am, therefore, going to order that the claims must be published in terms of section 11(1) of the Act within thirty days of the date of this order.

Costs

[29] The applicant has not succeeded in obtaining the relief which he claimed, but in Biowatch Trust v Registrar Genetics Resources and others the Constitutional Court held that in litigation between the state and a private party seeking to assert a constitutional right, if the state wins then ordinarily each party should pay its own costs. At paragraph [23] Sachs J, after setting out the reasons for the development of this principle, said:

‘…courts should not lightly turn their backs on the general approach of not awarding costs against an unsuccessful litigant in proceedings

against the state where matters of genuine constitutional import arise.’

Litigation concerning the restitution of land rights is constitutional litigation and the rights asserted by the applicant before this court are ‘of genuine constitutional import.’ I will accordingly make no order as to costs.

Order

The following order is made:

1. The application is dismissed.

2. The notice published by the first respondent in terms of s11A(4), being Government Notice No. 343 in Government Gazette 36307 dated 5 April 2013, is hereby set aside.

3. The first respondent is ordered to publish, within 30 days of the date of this order, notice in terms of section 11(1) of the Restitution of Land Rights Act 22 of 1994 of the fifth respondent’s claim in respect of the applicant’s two farms and to give notice that Government Notice No. 343 in Government Gazette 36307 dated 5 April 2013 has been set aside by this court.

4. No order is made as to costs.

C E LOOTS

Acting Judge

Land Claims Court

Parties represented by:

Applicant : Advocate Leech SC

Instructed by Mr N Kirby and Ms A Ngidi

from Werksmans Attorneys

1st, 2nd, 3rd Respondent : Advocate P Nonyana

Instructed by Mr M Makhubela (state attorney)

5th Respondent : Advocate Shakoane SC

Instructed by Mr M Magigaba of Magigaba

Incorporated.

[1] 1997 (2) SA 621 (CC) para [36].

[1] Established by section 4 of the Restitution of Land Rights Act 22 0f 1944 (the Act).

[1] Section 6(1)(a) of the Act.

[1] Section 11 read with section 2 of the Act.

[1] Section 6(1)(cA) of the Act.

[1] Section 11A of the Act.

[1] Sections 6(1)(cB) and (d) of the Act.

[1] Section 14 of the Act.

[1] Government Notice No. 343 in Government Gazette 36307 dated 5 April 2013.

[1] Both the Collins English Dictionary and the Shorter Oxford English Dictionary describe the adjective ‘patent’ as meaning ‘obvious’.

[1] The rules of the High Court make provision for the rescission or variation of an order or judgement in which there is ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission. A “patent error or omission” has been described as an error or omission as a result of which the judgement granted does not reflect the intention of the judicial officer pronouncing it: First Consolidated Leasing Incorporation Limited v MacMullan 1975 (3) SA 606 (T) at 608F. In Seatle v Protea Assurance Company Limited 1984 (2) 537 it was held that the rule does no more than restate the common law position as described by Trollip JA in Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 289 (A) at 306F–307G. The same principle applies in the Magistrates’ Courts: see Jones & Buckle ‘The Civil Practice of the Magistrates’ Courts in South Africa’ 10th edition by Van Loggerenberg Vol I Act 253. Zee also SAFRAWU obo Mgidlana v Bonnita (Pty) Limited, [2000] JOL 7469 (LC) paras [9] – [16, where the court deals with the words ‘obvious error’ in the context of section 144 of the Labour Relations Act 66 of 1995.

[1] The sequence of the land claims procedure was described in Gamevest (Pty) Ltd v Regional Land Claims Commissioner Northern Province and Mpumulanga 2003 (1) SA 373 (SCA).

[1] It is not necessary for me to express an opinion as to whether the proviso to s 11A(4) can be utilized in circumstances other than where the error was discovered after receiving representations in terms of s 11A(1). For an example of an amending notice, see Notice 106 of 2011 published in Government Gazette 34043 on 13 February 2011.

[1] Transcript of proceedings before Gildenhuys J on 1 December 2010.

[1] [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) para [95].

[1] The Constitution of the Republic of South Africa, Act 108 of 1996.

[1] Fose v Minister of Safety and Security 1997(3) SA 786 (CC) para 97. See also Sanderson v Attorney-General, Eastern Cape 1998(2) SA 38 (CC) para 38.

[1] If section 11 of the Restitution Act provided that the RLCC must publish all section 11(1) notices by a certain date, then there would be a legal basis on which the court could consider making the kind of declaratory order claimed by the applicant, but there is no time limit within which notice of claims must be published in terms of section 11(1).

[1] This section provides that the Land Claims Court has the power:

[1] In Herbstein & Van Winsen ‘The Civil Practice of the High Courts of South Africa’ 5th edition by Cilliers, Loots & Nel the following case law is cited at 1439 fn 75 as authority for the proposition that a declaratory

order will be refused ‘where a declaration as to fact and not a right is sought’: Electrical Contractors’ Association (South Africa) v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T) at 519–520 (whether a circular contained false statements); Caluza v Independent Electoral Commission 2004 (1) SA 631 (Tk) at 638 (whether a decision had been taken).

[1] 2009 (6) SA 232 (CC) para [22--23].

[1] The Land Claims Court had already, before the Biowatch Trust decision, established a practice of not making any order as to costs unless there was good reason to do so: See Mahlangu v de Jager 1996 (3) SA 235 (LCC) st 246--7 and 2000 (3) SA 145 (LCC); Haakdootnbuly Boerdery CC v Mphela 2007 (5) SA 596 (SCA) 618.

[1] In re Midlands North Research Group and Others and Kusile Land Claims Committee 2010 (5) SA 57 (LCC); Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 (LCC) para [35]; Hoogenboesem v Minister of Rural Development & Land Reform and Another LCC 68/2005, delivered on 10 April 2013.

[1] The applicant asserted rights protected by sections 25, 32 and 33 of the Bill of Rights contained in Chapter 2 of the Constitution of the Republic of South Africa, Act 108 of 1996.