Regional Land Claims Commissioner and Others v Jazz Spirit 12 (Pty) Ltd and Others (LCC26/10) [2015] ZALCC 15 (11 September 2015)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: LCC 26/10

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

Before: The Honourable Mpshe AJ

Heard on:…….19…..08….15…

Delivered on:..11……09….15…

In the matter between:

THE REGIONAL LAND CLAIMS COMMISSIONER First Applicant

SEDICK SADIEN Second Applicant

EBRAHIM SADIEN Third Applicant

and

JAZZ SPIRIT 12 (PTV) LTD First Respondent

YAMIV (PTV) LTD Second Respondent

MR HEIN R BADENHORST Third Respondent

THE REGISTRAR OF DEEDS Fourth Respondent

SOUTH AFRICAN RIDING ASSOCIATION FOR

THE DISABLED ASSOCIATION ("SARDA")

Intervening Party

JUDGEMENT

INTRODUCTION

[1] The South African Riding for the Disabled Association ("SARDA") Cape Town Branch issued an application on 8 September 2014 in which it seeks the following substantive orders:

1.1 leave to intervene in the proceedings under the above case number;

1.2 condonation for the late filing of the application;

1.3 rescission of paragraph 3 of the order of 24 March 2010 and the whole judgement, and order of 7 December 2012 as varied on 8 February 2013;

1.4 costs of suit to be paid by the First and Second Applicants, together with any party opposing the relief sought, Jointly and severally.

BACKGROUND

[2] The present application relates to Erf 142 Constantia which was awarded to the Second Applicant by this Honourable Court in terms of an order handed down on 8 February 2013.

[3] On 18 July 2014 SARDA filed an intervention and rescission application in this Honourable Court. SARDA withdrew that application

on 30 July 2014 and subsequently launched a similar application In the Supreme Court of Appeal (SCA) before whom an appeal, solely on the issue of costs, was pending.

[4] The intervention and rescission application filed in the SCA was also heard on 27 August 2014 prior to the hearing of the appeal on the issue of costs. The SCA dismissed the intervention and rescission application with costs on the day of the hearing of the application and issued its reasons in a judgement delivered on 22 September 2014.

HISTORY RELEVANT TO THIS APPLICATION

[5] On 24 March 2010 this Court interdicted the development and subdivision of remainder Erf 2274 Constantia pending, inter alia, restitution proceedings for the restoration of the remainder Erf 2274

Constantia into the name of the Sadien family. It also granted an order substituting the Second and Third Respondents, Sedick and Ebrahiem Sadien, as Claimants.

[6] On 7 December 2012, this Court ordered the restoration of a portion of Erf 1783 Constantia, measuring ten hectares in extent, in accordance with the provisions of the Restitution of Land Rights Act 22 of 1994 ("the Act''), to Sedick Sadien, a descendant of Omar Sadien, who was a co-owner of “Sillery Constantia” - the land that was dispossessed from the

Sadien family.

[7] However, because Erf 1783 Constantia was considerably smaller than the land from which the family was dispossessed, this Court amended its order to award an equivalent size in land. That is why, on 8 February

20131 this Court varied its 7 December 2012 order to read:

"A portion of the property Erf 142 Constantia (measuring 8.9 hectares) situated in the Western Cape Province shall be transferred to the second respondent".

PARTIES

[8] First Applicant is the Regional Land Claims Commissioner (Western Cape) with offices in the Western Cape Province.

[9] Second Applicant is the son to the deceased Claimant, Mogamat Rashaad Sadien.

[10] Third Applicant is the son to the deceased Claimant, Magmoed Sadien.

[11] First Respondent is a company duly registered according to the company laws of South Africa.

[12] Second Respondent is a company duly registered according to the company laws of South Africa. Second Respondent is the owner of Erf 2274 Constantia in the Western Cape Province.

[13] Third Respondent is the director of First Respondent.

[14] Fourth respondent is a juristic person established in terms of the Deeds Registries Act 47 of 1937 with offices at Plein Street, Cape Town.

[15] The intervening party is SARDA. It is a public interest, non-profit organisation whose objective include providing therapeutic horse and pony riding for people living with disabilities to promote their education and to improve their conditions of life generally by training, recreation

and rehabilitation.

[16] It is important to give a brief history as to how the intervening party ("SARDA") is connected to Erf 142 Constantia.

[17] The intervening party has been in occupation of the property for the

past 35 years.

[18] Intervening party leased the property in 1981 from the School Board of the Cape. The said lease expired on 30 June 2001 and was thereafter renewable on an annual basis. The last annual renewal expired on 30 June 2007.

[19] The Department of Transport and Public Works in the Western Cape Provincial Government informed the intervening party that the lease will not be renewed any further beyond 30 June 2007.

[20] However, a month-to-month basis rental was agreed upon. The intervening party is currently occupying the property.

[21] The property is currently managed by the Department of National Works (National Government).

[22] As a resuft of an order handed down on 8 December 2013, awarding Erf 142 Constantia to Second Applicant, intervening party launched this application.

[23] Only First and Second Applicants oppose this application.

[24] The condonation for the late filling of this application is not opposed.

LEAVE TO INTERVENE IN THE PROCEEDINGS

[25] The application is in accordance with the provisions of section 29(1) of the Act which provides:

“Any interested person, including on organisation, may apply to the Court for leave to Intervene as a party to any proceedings before the Court.”

[26] Whilst Rule 13(1) to the rules of this Court provides:

"Any person whose rights may be affected by the relief claimed in a case and who is not a party in the case may, within a reasonable time after he or she became aware of the case, apply to the Court/or leave to intervene in the case."

[27] The intervening party is regarded to be a third party who intervenes in a case in which he/she has an interest. The Intervening party, if successful in the application may be joined as either Plaintiff or Defendant.

[28] The test in such applications is that the intervening party has to prove that he/she has a direct and substantial interest in the proceedings.

[29] In Minister of Local Government and land Tenure and Another v Sizwe Development and Others: In Re Sizwe Development and Flagstaff

Municipality[1] the court stated the requirements for acceptance of an intervening party as follows:

"(a) The applicant must satisfy the Court that:

(i) he has a direct and substantial Interest in the subject-matter of the litigation, which could be prejudiced by the judgement of the Court ...;

(ii) the application is made seriously and is not frivolous and that the allegations made by the applicant constitute a prima facie case or defence ...

(b) A 'direct and substantial interest: means ... an interest in the right which is a subject­ matter of the litigation and ... not merely a financial interest which is only on indirect interest in such litigation."

[30] The direct and substantial interest in the subject-matter of the litigation is regarded as being the decisive criteria. [2]

[31] The phrase "any interested person" in section 29(1) of the Act means a person with a "direct and substantial interest''.[3]

[32] I now turn to the facts of this application in relation to the law as stated above.

[33] The intervening party in order to succeed has to have substantial interest in the subject-matter of litigation. The litigation to which intervening party requires acceptance is one of a land claim in accordance with the Act.

[34] The claim was lodged by second and third applicants against the state.

[35] At that stage and throughout litigation to the handing down of

judgement, intervening party had nothing to do with the property under claim. Intervening party had no interest whatsoever in the subject­ matter of litigation. The awarded Erf 142 Constantia was not the subject­ matter of litigation.

[36] Rule 13(1) of rules of this Court, inter-alia, provides that:

“any person whose rights may be affected by the relief claimed In a case...”

[37] Intervening party has failed to prove that the land claim, being the relief claimed, was going to or had the potential of affecting its rights.

[38] The intervening party relies on the decision of Emfuleni Resorts (Pty) Ltd and Manzini Community[4]. The Emfuleni Resorts (Pty) Ltd case is distinguishable from this application in that the Prudhoe Community,

being the appellants had substantial interest in the property awarded by court to the Manzini Community. The Prudhoe Community had to be admitted as intervening party because its rights were clearly affected by the relief claimed.

[39] The presence of direct and substantial interest appears, as argued by intervening party, to be found in the fact that

intervening party is entitled to compensation[5] in terms of section 35(9) of the Act, which provides:

"Any state-owned land which is held under a lease or similar arrangement shall be deemed to be in the possession of the State for the purposes of subsection (1) (a): Provided that, if the Court orders the restoration of a right in such land, the lawful occupier thereof shall be entitled to just and equitable compensation determined either by agreement or by the Court."

[40] Provisions of this section do not provide for direct substantial interest. The section attempts to compensate person(s) who may be affected by the order awarding the possessed property to another party. It does not provide the current possessor or lawful occupier with the requirements to be admitted in the initial proceedings.

[41] The submissions of the intervening party are untenable. The application stands to be dismissed.

[42] Having made a finding on the intervening application, I find

it

unnecessary to attend to the rescission application.

COSTS

[43] In this matter costs have to follow the event.

[44] The intervening party initially launched this application on 18 July 2014 with this Court. On 30 July 2014 the said application was withdrawn in order to be pursued in the Supreme Court of Appeal. After failure in the Supreme Court of Appeal the intervening party reinstated the application on 06 October 2014.

[45] The withdrawal on 30 July 2014 did not tender costs.

[46] First Applicant argued for such costs.

[47] I am of the opinion that such costs in favour of first and second applicants are permissible.

[48] I make the following order:

(a) Condonation for late filing of the application is granted.·

(b) Application to intervene is dismissed.

(c) Intervening party is to pay costs including wasted costs occasioned by the withdrawal of the previous application on 30 July 2014. Regarding First Applicant, costs will be costs of two counsels.

______________________

M. J. MPSHE

Acting Judge in the Land Claims Court

[1] 1991(1) SA 677 (TK) at page 678 - 679

[2] Ex Parte Sudurhavld (Pty) Ltd: In Re Namibia Marine Resources (Pty) Ltd v Ferlna (Pty) Ltd 1993 (2) SA 737 (NM)

[3] Ex Parte Beukes and Bekker (1998) 1 All SA 34 (LCC)

[4] 2011JDR 1163 (SCA)

[5] Replying Affidavit pp 228 paragraph 6