Regional Land Claims Commissioner for Mpumalanga v Minnaar NO (LCC42/2006) [2007] ZALCC 2 (8 February 2007)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC42/2006

Before Gildenhuys J

Date of Hearing: 6 February 2007

Judgement handed down: 8 February 2007

In the matter between :

THE REGIONAL LAND CLAIMS COMMISIONER Applicant

FOR MPUMALANGA (First respondent in the main applicant)

and

GABRIEL PETRUS MINNAAR N.O Respondent

(Applicant in the main application)

JUDGMENT

GILDENHUYS J :

[1] By order dated 8 December 2006 I reviewed and set aside with costs a decision by the applicant to publish a notice in the Government Gazette that a restitution claim has been lodged in terms of the Restitution of Land Rights Act, No 22 of 1994, by Mr Nkosi Menzani Rainslee on behalf of the Daisy Kopje Community, insofar as the notice relates to portions 1, 2, 3, 4, 6, 7, 8, 11 and 13 of the farm Daisy Kopje 643 JT. I also ordered further, related relief. The applicant applied for leave to appeal to the Supreme Court of Appeal against the whole of my judgment and order.

[2] The first ground of appeal is that the review application was not brought within 180 days, as required in terms of Promotion of Administrative Justice Act No 3 of 2000. This ground was abandoned during argument before me.

[3] Mr Ncongwane, who appeared on behalf of the applicant, strenuously argued that the applicant’s decision to accept the claim and to publish notice thereof in the Government Gazette is not administrative action and could therefore not have been reviewed. According to the judgment of Oliver JA in Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003(1) SA 373 (SCA) at 380 A-C, it is clearly administrative action. There is no reasonable possibility that another Court might arrive at a different conclusion.

[4] The gist of the case is the following. Mr N M Rainslee, acting on behalf of the Nkosi family, submitted a claim under the Restitution of Land Rights Act for the restitution of Portion D of the Farm Daisy Kopje. That much appears from the claim form. After investigation, the applicant accepted the claim and published notice thereof in the Government Gazette. However, the notice describes the claim as a claim brought by Mr N M Rainslee on behalf of the Daisy Kopje Community and in respect of the entire farm Daisy Kopje.

[5] When the case was originally argued before me, I questioned Mr Güldenpfennig (who appeared on behalf of the respondent) quite robustly on whether an arguable case has not been made out:

that Mr Rainslee, when he lodged the claim, intended to act on behalf of a community now known as the Daisy Kopje community, and also intended to claim the entire Daisy Kopje farm; and

that the first respondent, when examining the claim, and taking into account information which is not contained in the claim form, concluded that to have been Mr Rainslee’s intention; and

that the applicant was entitled under sec 11(2) of the Restitution of Land Rights Act to condone the fact that the claim form does not express the true intention of the claimant, and that he did condone it.

Upon reflection, when considering my judgment, I concluded that an arguable case has not been made out on the basis set out above (or on any other basis), and that the applicant should therefore not have accepted and published the claim. It is, however, possible that another Court might come to a different conclusion.

[6] The question at issue in this case is an important one. There are other pending review applications where claims have been accepted and notice thereof published in the Government Gazette, notwithstanding that the claims as published are not consistent with the contents of the claim forms.

[7] There is another aspect of this matter that I should deal with. The applicant seems to imply, in par [2] of the grounds of appeal, that I prevented his counsel, Mr Ncongwane, from fully arguing his case. The applicant furthermore alleges that during argument at the original hearing, I informed his Counsel that I was “in entire agreement” with his client’s case, and critical of the review application [par 12 of the grounds of appeal]. He also alleges in par 12 that he was assured during argument that the Court will not make a cost order, as there was no need to depart from the Court’s usual practice of not making such orders.

[8] Mr Ncongwane submitted written heads of argument. I recollect that I said to Mr Ncongwane that he need not repeat in oral argument what is contained his written heads. Mr Ncongwane might well have inferred from this and from my questioning of Mr Güldenpfennig that prima facie I am in agreement with his submissions. It is alleged in par 13 of the grounds for appeal that I gave such a “prima facie indication”. I did not, however, inform Mr Ncongwane that I am “in entire agreement” with the case he submitted to me (as alleged in par 12 of the grounds for appeal), nor did I prevent him from putting any arguments to me.

[9] As far as the cost order is concerned, I told Mr Ncongwane when he argued before me that a cost order should be granted in favour of his client in the event of his client being successful, that it is the usual practice of this Court not to make costs orders, except in special circumstances. He was certainly not “assured” by me that I will not make a cost order against his client.

[10] Mr Güldenpfennig informed me from the bar that my recollection of what was conveyed by me to Mr Ncongwane accords with his own recollection.

[11] For the reasons set forth above, I make the following order:

Leave is hereby granted to the applicant to appeal to the Supreme Court of Appeal against the whole judgment and order (including the order as to costs) handed down by me on 8 December 2006 in this matter.

(b) The costs of this application will be costs in the appeal.

______________________JUDGE A GILDENHUYS

LAND CLAIMS COURT

Appearances

For the applicant :

Mr S Güldenpfennig instructed by Pieter Nel Attorneys, Nelspruit

For the respondent :

Mr A T Ncongwane instructed by The State Attorney, Pretoria