Nwandlamhari Communal Property Association and Another v Mathebula and Others (LCC 89/2019) [2023] ZALCC 36 (22 June 2023)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 89/2019

In the matter between:

THE N’WANDLAMHARI COMMUNAL PROPERTY ASSOCIATION First Plaintiff MHLANGANISWENI COMMUNITY Second Plaintiff And MILLINGTON ZAMANI MATHEBULA First Defendant RICHARD MANGALISO NGOMANE Second Defendant SURPRISE WELCOME NTIMANE Third Defendant KAIZER MESHACK KHUMALO Fourth Defendant SIPHO ORANCE MKHWANAZI Fifth Defendant FRANK SOLLY BHUNGELA Sixth Defendant RULANI HARRIET MAWELA Seventh Defendant THUYANI SOUL DLAMINI Eighth Defendant MAVHURAKA COMMUNITY Ninth Defendant MINISTER OF RURAL DEVELOPMENT AND LAND REFORM Tenth Defendant DIRECTOR GENERAL: DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM Eleventh Defendant THE CHIEF LAND CLAIMS COMMISSIONER: COMMISSION ON RESTITUTION OF LAND RIGHTS Twelfth Defendant REGIONAL LAND CLAIMS COMMISSIONER: MPUMULANGA PROVINCE Thirteenth Defendant THE N’WANDLAMHARI COMMUNAL PROPERTY ASSOCIATION CONCERNED BENEFICIARIES Fourteenth Defendant

JUDGMENT

PLAINTIFFS’ APPLICATION IN TERMS OF RULE 45(1)

COWEN J

1. The application before me is an application in terms of Rule 45(1) of the Rules of this Court which regulates the rights of parties in action proceedings to obtain further particulars from another party. The plaintiffs are seeking further particulars from the 10th and 11th defendants, being the Minister of Agriculture, Rural Development and Land Reform (the Minister) and her Department’s Director-General (the Department).

2. The plaintiffs are the N’wandlamhari Communal Property Association (NCPA) and the Mhlanganisweni Community. The main action concerns who is entitled to benefit from land referred to in the proceedings as the Mala Mala land, comprising 9 (nine) parcels of land that are the subject of claims under the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). The NCPA and the Mhlanganisweni Community seek declaratory relief to the effect that only members of the Mhlanganisweni Community are entitled to share in the benefits of the Mala Mala land. The plaintiffs seek to exclude from its benefits, members of another community known as the Mavhuraka Community, whose members, it is said, laid claim to different land. The central tenet upon which their claim is based is found in the allegation, in paragraph 37A of the amended statement of claim, which reads:

‘37A When the CPA was formed, the Mhlanganisweni Community was informed by the relevant officials representing the Department that the Mavhuraka Community would be part of the CPA. The inclusion of this Mavhuraka Community in the CPA was imposed on the Mhlanganisweni Community without the Mhlanganisweni Community’s informed consent thereto being sought or obtained in that the Mhlanganisweni Community did not hold a community meeting and resolve to sign the resolution that was signed on 5 October 2013 at the Gavazana Primary School.’

3. The action is of real importance to the parties. It has generated vigorous opposition from the defendants. The first to ninth and fourteenth defendants include both the Mavurakha Community and individuals affected by the action. State defendants also oppose the action, specifically the Minister and her Department, and the Chief Land Claims Commissioner and the Regional Land Claims Commission, Mpumalanga.[1]

4. The action was instituted in 2019. The first sitting of the trial was in February 2022 when the parties argued certain special pleas, with judgment delivered on 18 May 2022. Evidence in the trial commenced during the second sitting, being 3 to 6 October 2022, during which the evidence of the plaintiffs’ first witness was completed. The matter was then postponed until March 2023 for its third session. However, although the matter was recalled, and various efforts made to enable its further prosecution, it did not proceed, save to conduct various case management meetings in terms of Rule 30 to promote the expeditious, economic and effective disposal of the case. The reasons for this are the subject of reserved costs of some magnitude, yet to be argued and decided, and may become the subject of further dispute, and I accordingly decline to deal with them in any detail.

5. For present purposes, it suffices briefly to mention certain related features without elaboration. First, in the period following the second session of the trial, a dispute, centrally between the plaintiffs and the fourteenth defendant has been ventilated in what the parties refer to as ‘a trial within a trial’,[2] which concerns the standing and authority of the first plaintiff, the NCPA, to prosecute these proceedings. This application

was argued during the same session as the ‘trial within a trial’ was ventilated, being 12 to 15 June 2023. Secondly, the main action is now provisionally scheduled to recommence on 17 July 2023, albeit that the matter cannot at this stage be formally re-enrolled.[3] Thirdly, shortly before the third session was due to recommence in March 2023, the plaintiffs amended their statement of claim. Fourthly, shortly after the amendment, the 10th and 11th defendants, and the 12 and 13th defendants, respectively, delivered counterclaims. Fifthly, the Court has continued to seek to case manage the action under Rule 30 to facilitate its economic, economic and effective disposal.

6. The plaintiffs now apply, in terms of Rule 45(1) of the Rules of this Court, for further particulars from the Minister and her Department in respect of their counter-claim dated 10 March 2023. The plaintiffs are yet to plead to the counter-claim, and as indicated above, the parties are still hoping to be ready to recommence the main action on 17 July 2023. Whether that will be possible remains to be seen, but this judgment is delivered in that context, and, due to the obvious urgency in its delivery, I do not deal with or fully detail all issues.

7. The particulars sought must be understood in light, inter alia, of the provisions of an agreement of sale concluded in respect of the purchase of the Mala Mala properties between the owners and the National Department of Rural Development and Land Reform on 3 September 2013 (the sale agreement). More specifically, Clause 8 is relevant which is titled ‘Nomination of Transferee’ and provides, in relevant part:

‘8.1 The Purchaser shall be entitled to by no later than 1 November 2013 to nominate any legal entity representing the Claimants as the Transferee and, subject to clause 8.6 below, direct that the transfer of the property be registered in the name of the Transferee to hold it on behalf of the Claimants, subject to the restrictive conditions indicated in Annexure C to be included in the title deed of the Property.

…

8.4 The Parties agree that this clause constitutes a stipulation alteri for the benefit of the Transferee and shall be open for acceptance by the Transferee. Upon acceptance of such benefit in terms of clause 8.5 the Transferee shall become a party to this Agreement solely for the purposes of taking transfer of the Property and discharging the corresponding obligation of the Purchaser to accept transfer of the Property, and subsequently to accept the risks and benefits of ownership of the Property, in terms of this Agreement. The Purchaser shall, however, remain liable to pay the Purchase Price and ensure compliance of all obligations of the Transferee hereunder.

8.5 The Transferee shall accept the benefit of the stipulation alteri set out in 8.4 above by delivering a notice to that effect to the Seller and the Purchaser by completion and delivery of a form of an acceptance substantially in accordance with the form of acceptance which is Annexure B to this Agreement.’

8. Annexure B, in turn refers to an acceptance of the benefit by the Mhlanganisweni Communal Property Association. The reference in the sale agreement to the Claimants is a reference to the Mhlanganisweni Community, which is in turn defined.

9. In their conditional counter-claim, the Minister and her Department refer to these parts of the sale agreement and then plead, amongst other facts, that

9.1. The Department did not nominate the Mhlanganisweni Community or a legal entity representing it as the transferee in respect of the acquisition of the Mala Mala land. (Clause 6.2)

9.2. The NCPA was nominated as the transferee in respect of the acquisition of the Mala Land land (Clause 6.4).

9.3. The members of the Mhlanganisweni Community were informed in full about the facts of the intention to and the consequences of the decision to form the NCPA especially as the vehicle to accept the benefit of the Mhlanganisweni claim and to substitute the NCPA for the entity to be established by the Mhlanganiswni Communtiy as the transferee in respect of the acquisition of the Mala Mala land.

10. The counter-claim of the Minister and her Department is detailed and extensive but its thrust is simple. In short, the Minister and her Department, relying on these and other facts, proceed to plead, amongst other things, that the Mhlanganisweni is estopped from denying various agreements and outcomes[4] and assert the legality of the arrangements. Moreover, they plead, in the event that if the Court makes certain findings in favour of the plaintiffs, then the decision to transfer the Mala Mala properties to the NCPA should be reviewed and set aside and the Mala Mala properties transferred to the State. The review is premised also on a series of further allegations which concern the understanding and basis upon which the Minister and Department effected the transfer.

11. The particulars sought are in respect of three paragraphs of the counter-claim but, in effect concern two decisions, described in the request as:

11.1. The decision not to nominate the Mhlanganisweni Community or a legal entity representing it as the transferee in respect of the acquisition of the Mala Mala land (referred to in paragraph 1 of the request); and

11.2. The decision to nominate the NCPA as the transferee in respect of the acquisition of the Mala Mala land (referred to in paragraph 2 of the request).

12. I refer to these as the first and second decisions. Later in the request, at paragraph 7, there is reference to a decision to substitute the Mhlanganisweni Community with the NCPA as the transferee. In substance this is a reference to the above two decisions, but I refer to it as the decision to substitute.

13. In brief, the request seeks the following particulars in respect of these decisions, in paragraphs 1,2 and 7 respectively. First, which individuals on behalf of the State took the decisions, secondly, when were they taken, thirdly, was the decision recorded in writing and fourthly, if so, a copy is sought. As to the latter request, it was foreshadowed during the case management process I refer to above that discovery would be requested when asking for further particulars.

14. I have considered these requests in light of the grounds of refusal advanced in the response to the request to provide the particulars,[5] the detailed content of the counter-claim and the submissions advanced by Mr Ogunrumbi (with him Ms Phasha) for the 10th and 11th Defendants.

15. Rule 45, titled ‘Further particulars’, provides:

(1) Any party in an action may—

(a)with leave of the Court at any time; and

(b)without leave of the Court, only once and after a reply has been delivered or the time for doing so has expired,

deliver a request to any other party for further particulars which are necessary to enable him or her to prepare for the hearing.

(2) The request under subrule (1) may, among other matters, require—

(a)details of the date of purchase, purchase price, size and title description (where available) of every property transaction to be used as a comparable transaction in the case; and

(b)in the form of an abridged resume, the basis upon which any compensation claimed or offered in the case is calculated.

(3) Any party to whom a request under subrule (1) was delivered must respond to it within fifteen days.`

16. The plaintiffs have set out their case at a level of generality, which is unfortunate.[6] I am nevertheless satisfied, in context of the pleadings and facts of this case, that there is sufficient information before me upon which I should conclude that the particulars are necessary for the plaintiffs to prepare for the hearing both for purposes of pleading and for purposes of preparing for the hearing itself. In context of the case management process that ensued during the third session and the provisional allocation of dates for the next session in July 2023, these processes must ensue in tandem and swiftly to enable the matter to proceed to finality economically, expeditiously and effectively. The parties are in agreement that the matter must proceed to finality as soon as possible.

17. On a consideration of the pleadings, I do not agree, as submitted on behalf of the Minister and Department, that the allegations in respect of which the particulars sought amount merely to denials, or a joining of issue on matters the plaintiffs have pleaded in paragraph 37A of their statement of claim and in respect of which they bear the onus of proof. Rather, the allegations concerning the two decisions underpin the case advanced in the counter-claim. For present purposes, I need arrive at this conclusion only in respect of the pleaded estoppel, but it appears to apply with equal force to the pleaded review which rests on allegations of fact additional to those pleaded by the plaintiffs. I am, further, unpersuaded by the objection that the particulars of fact sought constitute evidence.

18. The furnishment of the particulars sought will serve the purposes of calling for particulars, being to prevent surprise, to inform the plaintiffs with greater precision what the Minister and Department will prove so that they can prepare their case and will not, in doing so, tie the Minister or Department down unfairly.[7]

19. Mr Ogunrumbi submitted that the particulars sought in respect of the first decision are unnecessarily sought as it is clear from the broader context of the pleadings and the documents attached to the pleadings that it is the Minister who is the empowered functionary. In my view, this does not answer the request for at least two self-standing reasons. First, this is an issue which, in context, ought to have been explained in an answering affidavit and none was filed. Rather the Minister and Department elected to deal with the application on points of law. Secondly, the answer presupposes authorised decision-making, and an absence of delegation. It can also be noted that the submission itself reveals the absence of any unfairness to the Minister and her Department in being asked to supply it.

20. The Minister and Department also contended that the particulars sought in respect of the second decision and the decision to substitute need not be provided as it was not alleged that the decisions were taken by the State. In my view, this submission cannot be accepted as it is clear, in context, both that they were decisions that must have been taken and that they were taken by State functionaries. There is more force in the further submission that the import of the allegations to which the request in paragraph 7 relates are not focused on the decision to substitute. But in context of the request in this case, this is ultimately immaterial as the decision to substitute is a reference to the first two decisions.

21. Mr Ogunrumbi submitted that there was no obligation on the part of the State to nominate the Mhlanganisweni Community (or associated entity) as the transferee of the Mala Mala land and it thus cannot be compelled to prove any compliance therewith. But the case pleaded may not turn on the existence of any duty and in any event, whether there was such a duty (if ultimately requiring determination) is a matter best left for determination in the main action, not at this stage. In the meantime, the plaintiffs are entitled to know who, on behalf of the State, took the decisions, when and how, and receive copies if written, so that they can both plead and prepare for trial.

22. Subject to Biowatch Trust,[8] this Court only orders costs in special circumstances dealing as it does with social legislation. In my view there are none. However, as this is litigation in part against the State, this is a matter where costs should be in the cause. Mr Musandiwa submitted that the Court should make a suitable costs order to indicate its displeasure with the fact that the Minister and Department delivered their heads of argument late. In this regard, the initial dates for exchange of heads of argument were regulated by agreement of the parties, not by direction of the Court. Initially this matter was to be argued on 13 June 2023, but it was not, primarily because of the need to use the time to ventilate the dispute between the plaintiffs and the fourteenth defendant in circumstances where the application was postponed from 12 to 13 June 2023 when the plaintiffs made late discovery. Mr Ogunrumbi then undertook to deliver the heads of argument on 14 June 2023 but only did so during the morning of the hearing, on 15 June 2023. This was in circumstances when he was sitting in Court for the ventilation of the dispute between the fourteenth defendant and the plaintiffs, in respect of which he was due to make oral submissions and for which purpose the Court started early and sat late due to the postponement. Ultimately, I have insufficient information before me, and no evidence, upon which I can conclude that the circumstances of the delay should attract my censure. Furthermore, the plaintiffs accepted that they were not prejudiced by the delay and the hearing ensued without impediment or any need for postponement. Finally, the Court was not prejudiced.

23. I make the following order:

23.1. The 10th and 11th defendants are directed to produce further particulars in response to paragraphs 1, 2 and 7 of the plaintiffs’ request for further particulars dated 17 March 2023 in relation to the above action.

23.2. The particulars shall be furnished by no later than 4pm on Tuesday 27 June 2023.

23.3. Costs are costs in the cause.

JUDGE SJ COWEN

LAND CLAIMS COURT

Date of hearing: 15 June 2023

Date of judgment: 22 June 2023

Appearances (1st to 9th, 12 to 14th Defendants observing):

Plaintiffs:

Mr M Musandiwa

Instructed by Malatji & Co Attorneys

10th and 11th Defendants: Adv S Ogunrumbi and Adv L Phasha

Instructed by

The State Attorney

1st to 9th Defendants:

G W Mashele Attorneys

12th and 13th Defendants:

Adv C Marule

Instructed by

The State Attorney

14th Defendant:

Adv L Siyo

Legal Aid SA

[1] The twelfth and thirteenth defendants.

[2] I adopt this terminology for convenience and without characterising their nature.

[3] Under the case management process, the matter may not be formally re-enrolled until the parties have satisfied the Court that they are ready to recommence the matter,

the subject of a case management conference scheduled for 1pm on 4 July 2023. However, in view of the number of counsel and parties in the matter and the importance of finalising the matter as soon as reasonably parties, provisional dates have been arranged with the parties to recommence the trial on 17 July 2023 over a period of two weeks.

[4] Paragraph 8.

[5] As set out in paragraphs 1 to 8 and 43 of the response.

[6] Mindful of the dictum of Leach J in Szedlacsek v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner 2000(4) SA 147 (E) 150A-B referred to by counsel for the Minister and Department which held that an applicant for further particulars

‘must set out sufficient information to enable the Court to consider whether or not to exercise its discretion in his favour.’

[7] Thompson v Barclays Bank DCO 1965(1) SA 365 (W) at 369C-E.

[8] Trustees for the Time being of the Biowatch Trust v the Registrar Genetic Resources and others 2009(6) SA 232 (CC). Importantly, in para 24, the Constitutional Court held that ‘… particularly powerful

reasons must exist for a court not to award costs against the state in favour of a private litigant who achieves substantial success in proceedings brought against it.’