Radebe v Minister of Rural Development and Land Reform and Others (LCC73/2020) [2022] ZALCC 46 (21 September 2022)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC73/2020

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

NOT REVISED

Before: Honourable Meer AJP and Muvangua AJ

Heard on: 21 November 2022

Delivered on: 21 November 2022

In the matter between:

GOODWIN SIMON THEMBALETHU RADEBE Plaintiff And MINISTER OF RURAL DEVELOPMENT & LAND REFORM First Defendant THE REGIONAL LAND CLAIMS COMMISSIONER, KWAZULU-NATAL Participating Party HENK ZAAL TRUST Second Defendant

JUDGMENT

MEER AJP

[1] The Second Defendant applies for its costs arising from its opposition to a land claim lodged by the Plaintiff in respect of the farm Waag Alles, in KZN, owned by it. Costs are sought against the First Defendant and Participating party.

[2] In its opposition to the claim the Second Defendant challenged the feasibility of restoring the land claimed. The claim was ultimately settled on the basis that the claimant elected to claim monetary compensation and not physical restoration. The Second Defendant thus achieved substantial success.

[3] In Trustees for the Time being of the Biowatch Trust v the Registrar Genetic Resources and Others 2009 (6) SA 232CC at paragraph 24 it was said:

“… 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”

[4] This was echoed by this Court in a number of cases. In Elambini Community v Minister of Rural Development and Others LCC88/2012, 30 May 2018 this court said at paragraph 157:

“This Court has, in a number of cases, granted costs against the State and in favour of private litigants who have achieved substantial success in proceedings against the State. It has done so on the basis that land claims litigation, deriving as it does from Section 25 (3) of the Constitution, is in the genre of constitutional litigation. See Makhukhuza Community Claimants (LCC 04/2009) [2010] ZALCC 26 (18 November 2010) at paragraph 30; Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 (LCC) at paragraph 35 and 36; Greater Tenbosch Land Claims Committee and Others v Regional Land Claims Commissioner and Others (74/06) [2010] ZALCC 25 (15 September 2010). Ms Naidoo, for the First Defendant, in opposing the costs order sought, argued that the present matter is distinguishable from that in inter alia Quinella supra, in that in those judgments the Commission’s conduct was subject to justifiable criticism. The First Defendant, she submitted, had not conducted herself in any manner warranting an order of costs against her. In support of her argument she referred me to the judgment in Competition Commission of South Africa v Pioneer Hi–Bred International Inc and Others 2014 (2) SA 480 (CC). In that case the Court set aside a costs order against the Competition Commission and in so doing emphasised that the Competition Commission was not acting as a mere opposing party in civil litigation.”

[5] Given my finding that the Second Defendant achieved substantial success, it is entitled to the costs. I accordingly grant the following order:

1. A declaratory order is made that the Second Defendant’s property, specifically Lot 18 of the Farm Waag Alles 8899 GS, is no longer subject to the restrictions in section 11(7) of the Restitution of Land Rights Act, 1994. The Regional Land Claims Commissioner (the participating party) is directed to withdraw the publications in Government Gazettes no. 19085 relating to the Second Defendant’s property within 60 (sixty) days of date of a settlement being reached between the Plaintiff and the First Defendant or a court order finally determining the Plaintiff’s claim.

2. The First Defendant and the Participating Party (RLCC Kwa Zulu Natal), jointly and severally, the one to pay the other to be absolved, shall pay the taxed or agreed costs of the Second Defendant in this matter on a party and party scale, such costs to include the following:

2.1. The cost of employment of senior counsel (as per brief), the cost of their attorney as well as the attorney’s correspondent as allowed by the Taxing Master.

2.2. The cost of senior counsel and attorney for:

2.2.1. Preparation and attendance of all pre-trial conferences;

2.2.2. Consultations with the Second Defendant.

2.2.3. Consultations with experts Malcolm Gardiner of DDP VALUATION AND ADVISORY SERVICES (PTY) LTD, Peter Dacomb and Dr. Philip Theunissen.

2.3. The qualifying fees and expenses of the expert witnesses mentioned above, such to include the cost of visiting the various archives, copying of discovered documents, the inspections in loco conducted, the consultations with the Second Defendant and other witnesses to obtain relevant information and documentation to compile a report (whether counsel and/or the attorney was present during such consultations or not), the drafting of the report and the consultation time with Second Defendant’s counsel and attorney.

Y S MEER

Acting Judge President

Land Claims Court

I agree.

N MUVANGUA

Acting Judge

APPEARENCES

For the First Defendant and Participating Party: Adv. M.D Zulu Instructed by: State Attorney – KwaZulu-Natal For the Second Defendant: Adv. S. Guldenpfenning Instructed by: Velile Tinto & Associates Inc.