Republic of South Africa and Another v Meinjies and Others (LCC 44/1999) [2008] ZALCC 3 (25 March 2008)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Heard at Randburg on 25 March 2008

Before Ncube A J CASE NUMBER: LCC 44/1999

In the case between:

THE REPUBLIC OF THE SOUTH AFRICA First Applicant

THE REGIONAL LAND CLAIMS COMMISSIONER

LIMPOPO PROVINCE Second Applicant

and

STEPHANUS JACOBUS MEINJIES First Respondent

PHILIP JOOSTE Second Respondent

DEPARTMENT OF LAND AFFAIRS Third Respondent

MINISTER OF AGRICULTURE AND

LAND AFFAIRS Fourth Respondent

DEPARTMENT OF ENVIRONMENTAL AFFAIRS

AND TOURISM (LIMPOMPO PROVINCE) Fifth Respondent

H.L. HALL AND SONS LIMITED Sixth Respondent

ANDOVER AND LEAMINGTON

LAND CLAIMS COMMITTEE Seventh Respondent

MNISI COMMUNITY Eight Respondent

MNISI TRIBAL AUTHORITY Ninth Respondent

JUDGMENT

NCUBE A J

[1] This is an application for the joinder of parties. The application is brought in terms of Rule 12 of the Land Claims Court Rules. The applicants seek the joinder of the Second applicant as well as the Third to Ninth respondents as defendants in the main action in case LCC44/99. The main action is for the restitution of land rights, which is brought in terms of the provision of the Restitution of Land Rights Act.5 I shall refer to this Act herein as “the Act.” The first plaintiff in the main action is Mr. Stephanus Jacobus Meintjies, who is the first respondent in this application. The second plaintiff is Mr. Philip Jooste, who is the second respondent in this application. Mr. Philip

Jooste, by virtue of a power of attorney dated the 18th of April 1997, nominated the first plaintiff to represent him in the main action. The main and only defendant in the main action is cited as “The Government of the Republic of South Africa” (first applicant herein). The Regional Land Claims Commission, Limpompo province (second applicant herein) was never cited as a defendant in the main action.

[2] The first respondent herein is Mr. Stephanus Jacobus Meintjies (first plaintiff). The second respondent is Mr. Phillip Jooste (second plaintiff). The third respondent is the Department of Land Affairs. The fourth respondent is the Minister of Agriculture and Land affairs. The fifth respondent is the Department of Environmental Affairs and Tourism for the province of Limpopo. The sixth respondent is H. L. Hall and Sons Ltd. The seventh respondent is the Andover and Leamington Land Claims Committee. The eighth respondent is the Mnisi Community. The ninth respondent is the Mnisi Tribal Authority. The third to the ninth respondents, like the second applicant herein, were never cited as defendants in the main action, hence this application for their joinder.

[3] Before I deal with the merits of the application for joinder, it will be prudent for me to give a brief factual background of the main action. On September 1971, Mr. Stephanus Jacobus Meintjies (plaintiff in main action and first respondent herein), on behalf of companies to be formed, entered into a written agreement of sale with H. L. Hall and Sons Ltd. In terms of the agreement, Hall and Sons Ltd sold and Meintjies bought two farms Andover and Leamington. H. L. Hall and Sons Ltd was, by then the owner of those two farms.

[4] Mr. Meintjies purchased the two farms with the intention of developing them into a game sanctuary for nature conservation purposes. Mr. Meintjies physically occupied the property in or round about July 1971 and legal occupation was given to him as from 30 September 1971. During his period of occupation, Mr. Meintjies:-

4.1 Cut open overgrown boundaries

4.2 Ordered materials to erect a game fence on the outside boundaries of the property.

4.3 Reached an agreement to include the property as part of the Sandringham Nature Reserve and removed the common fence between the property and the Reserve.

4.4 He concluded agreements with businessmen to purchase undivided shares in the two farms at an agreed price of R 112-50 per morgen.

4.5 He generally exercised rights usually attached to ownership.

[5] Subsequent to occupation of the property by Mr. Meintjies, but before registration of transfer having been effected, The Government of the Republic of South Africa (defendant in the main action and first applicant herein) expropriated the property on 22 October 1971. The expropriation was carried out in terms of section 13 (1) of the Bantu Trust and Land Act,6 as amended, read with the Expropriation Act,7 as amended. On 5 June 1972, the property was registered in the name of the South African Bantu Trust. Mr. Meintjies avers that because of the expropriation, he was dispossessed of his right in the said property, being the right to accept transfer of the property upon payment of the purchase price and the right to occupy the property including the right to proceed with the sale of undivided shares in the property. Mr. Meintjies avers that he received no compensation in respect of the alleged dispossession of his rights.

[6] Eventually, H. L. Hall and Sons Ltd was compensated in the amount of R 1000 580.00. This compensation was in respect of three properties including two properties which Mr. Meintjies had purchased.

[7] On the 11th of August 1995, Mr. Meintjies lodged a restitution claim with the Commission on Restitution of Land Rights. According to the Commission, Mr. Meintjies’ claim was accepted by the Commission as being in compliance with the provision of section 2(1) (a) of the Act and the claim was accordingly gazetted.

[8] Competing claims with regard to the same property were lodged by the Mnisi Tribal Authority, Mnisi Community and the Sethlare Tribe. It is not clear if the claims of these claimants were accepted by the Commission. From the document marked “RLCC1” attached to applicants’ papers, it appears that the project officer assigned to the matter recommended the claims for acceptance and that the claims had to be gazetted accordingly. There is no evidence that such claims were ever gazetted. There is a strong possibility that they were never gazetted. The claimants in those claims filed a notice of motion with the Registrar of the Land Claims Court on 23 November 2003 under case number LCC 84/2003, asking the court to order the Regional Land Claims Commissioner to accept their claims and have the same gazetted accordingly. As it appears from the papers, that case did not proceed to finality.

[9] Mr. Meintjies subsequently amended his statement of claim. He is no longer claiming restoration of the two farms but he is now claiming equitable redress in the form of financial compensation.

[10] Mr. Meintjies’ claim was referred by the Regional land Claims Commission to the Land Claims Court for adjudication by virtue of the Referral notice dated 7 April 1999 and lodged with the Registrar of the Land claims Court on the 8th of April 1999. There is no evidence to show that the claims of the competing claimants have also been referred to the Land Claims Court.

[11] The referral notice was also served on Mr. Meintjies, the Department of Land affairs, Gold Fields Mining and the MEC for Agriculture, Land and Environment: Northern Province.

[12] The minutes of the Pre-Trial Conference which was held on 26 August 2002 indicate that it was agreed at that conference that the matter had to proceed by way of an action. Mr. Meintjies then filed a notice of action accompanied by his statement of claim. The Department of Land Affairs (3rd Respondent herein) and the Department of Environmental Affairs and Tourism (5th respondent herein) filed notices to participate in the main action. Apart from notice to participate, these departments also filed their pleas in response to a notice of action filed by Mr. Meintjies.

[13] I turn now to deal with the application for joinder. Before I deal with the merits of the application I must first deal with preliminary issues raised in affidavits. Firstly, there was an application for condonation of late filing of the replying affidavit by the applicants. That application was granted on the date of hearing of the main application. I need not say more about that application. There are two issues which should be determined. Firstly, the first respondent has questioned the locus standi of the second applicant to depose to an affidavit in respect of the first applicant. In short the question is whether or not the Commission on Restitution of Land Rights, of which the Regional Land claim Commissioner is a functionary, has authority to represent the Government of the Republic of South Africa.

[14] There is also an application moved by the applicants herein to strike out certain paragraphs of the affidavit filed by Mr. Scholtz, who is the legal representative for the first and second respondents. The reason advanced for the application to strike out is that such paragraphs contain hearsay evidence since the facts stated therein are within the knowledge of first and second respondents themselves and not their attorney.

[15] The founding affidavit attached to the notice of motion is deposed to by one Mashile Mokono, who identifies himself in paragraph 1 thereof as the Regional Land Claims Commissioner for the Limpopo Province. Mr. Mokono states in his affidavit that in his capacity as the Regional Land Claims Commissioner, he also represents the first applicant which is the Government of the Republic of South Africa. Again, in paragraph 4 of his affidavit Mr. Mokono avers that he also, in his capacity as the Regional Land Claims Commissioner represents the Government of the Republic of South Africa.

[16] Mr. Havenga, counsel for the first and second respondents, argues that the Commission on Restitution of Land Rights is a creature of statute, it is established by section 4 of the Act and as such it cannot represent the government.

[17] In my view, the starting point of exercise, is to decide whether or not the commission qualifies to be an organ of state. If it qualifies to be an organ of state, then it has authority to represent the state or the government. Organs of state are defined as meaning:-8

“(a) any department of state administration in the national, provincial or local sphere of government; or

(b) any functionary or institution:-

(i) exercising a power or performing a function in terms of the constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.”

[18] The Commission on Restitution of Land Rights is an institution which exercises a public function in implementing the constitutional imperative of Land reform contained in section 25(7) of the final constitution and the Act.9 Although an “organ of state” is defined in the constitution, the word “state” is not defined. Baxter10 points out that the word “state” is used as a collective noun for:-

“(a) the collective wealth (“estate”) and liabilities of the sovereign territory known as the “Republic of South Africa” which are not owned or owed by private individuals or corporations, and

(b) the conglomeration of organs, instruments and institutions which have as their common purpose the ‘management’ of public affairs, in the public interest, of the residents of the Republic of South Africa as well as those of her citizens abroad in their relations with South African ‘government’.”

[19] In light of the above, it is clear that the Commission on Restitution of Land Rights, forms part of “the conglomeration of organs, instrument and institutions which have as their common purpose the ‘management’ of the public affairs, in the public interest, of the residents of the Republic of South Africa,” specifically in relation to Land Restitution programmes. I am therefore satisfied, that the commission on Restitution of Land Rights is an organ of state and that the Regional land Claims Commissioner, as a functionary of the Commission has authority to represent the government of the Republic of South Africa.11

[20] Mr. Shakoane, counsel for the two applicants argues that in as far as the first

and second respondents’ answering affidavit is deposed to by their attorney Mr. Scholtz, without confirmatory affidavits from them, most of what is said in the answering affidavit constitutes hearsay and should be struck out. The paragraphs of the answering affidavit complained of are the following:-

(i) paragraph 6.1

(ii) paragraph 6.2

(iii) paragraph 15.3

(iv) paragraph 16-18

(v) paragraph 24

(vi) paragraph 25 Since the Rules of the Land Claims Court do not make provision for striking out, I shall refer to the uniform rules of high court in this regard. The cardinal rule is that the court may not grant the application to strike out unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if the application to strike out is not granted.12 [21] In paragraph 6.1 of the answering affidavit Mr. Scholtz states:- “The sixth respondent is H. L. Hall and Sons Ltd, the previous owner of the properties that form the subject of the restitution claim. The first respondent purchased the properties from H. L. Hall and Sons Ltd on behalf of companies to be formed, but just prior to transfer of the properties from Hall and Sons Ltd, the government expropriated the property from Hall and Sons. The claimants’ claim is based on their unregistered rights including the right to take transfer and to develop the properties, and H. L. Hall and Sons can therefore have no interest in this action” In my view, this statement does not amount to hearsay. I have considered all the paragraphs of the answering affidavit complained of. I am satisfied that all those paragraphs do not constitute hearsay, but they, like the above quoted paragraph, amount to legal conclusions which are gleaned from the pleadings in the main action. In any event, those paragraphs will do no harm to the case of the applicants in so far as the present application is concerned. Mr. Scholtz stated what was already common cause according to the pleadings filed of record. The application to strike out is accordingly dismissed. [22] I turn now to deal with the merits of the application for the joinder. Rule 12(1) of the Land Claims Court Rules provides; “Any number of persons, each of whom has a claim (whether jointly, jointly and severally, separately or in the alternative) may join as plaintiffs or applicants in a case against the same person, if their claims relate to substantially the same question of law or fact” (my emphasis). In the same vein rule 12(3) provides; “Several parties may be joined in the same case, either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or the applicant relates to substantially the same question of law or fact” (my emphasis) Rule 12 of the Land Claims Court Rules is analogous to Rule 10 of the Uniform Rules of High Court, which permits joinder of parties provided that the right to relief of the persons proposing to be joined on the question arising between them depends upon the determination of substantially the same question of law or fact.13 [23] The test is “whether or not a party has a direct and substantial interest in the subject-matter of the action, that is a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court.14” It goes without saying therefore that the application for a joinder of the second applicant, the third to ninth respondents will be granted only if they have a direct and substantial legal interest in the subject matter of litigation of Mr. Meintjies or if in terms of Rule 12, their claims relate to substantially the same question of law or fact. [24] In Amalgamated Engineering Union V Minister of Labour,15 the court applied two tests in order to decide whether a third party had direct and substantial interest. The first test was to consider whether the third party would have locus standi to claim relief concerning the same subject matter.16 The second test was to examine whether a situation could arise in which because the third party was not joined, any order the court might make would not be res judicata against him, entitling him to approach the court again concerning the same subject matter and possibly obtaining an order irreconcilable with the order made in the first instance.17 [25] There is no doubt that the seventh eighth and ninth respondents are a competing claimants in respect of the same land in respect of which Mr. Meintjies has lodged a claim. Having said this, it is important to mention that under the Act, any person is entitled to restitution of a right in land and has a right to restitution in full, for the right of which he or she was dispossessed. If more than one person was dispossessed of a right in respect of the same land, each of them has an independent right to restitution.18 There is no apportionment between them,as Mr Shakoane seems to suggest. [26] The case before me relates to a claim by Mr. Meintjies for equitable redress in the form of financial compensation. He alleges that when the farms, at that time, still registered in the name of H. L. Hall and Sons Ltd, were expropriated he was dispossessed of the rights under the deed of sale. I need not, for the present purposes decide whether that is a competent claim or not. The basis of the claim is entirely different from any other claim which may exist in respect of the same land. The rights of other claimants cannot be prejudicially affected by any judgment or award in respect of Mr. Meintjies’ claim. They, therefore do not have a direct and substantial interest in the issues to be decided in Mr. Meintjies’ matter. The application to join the seventh, eighth and ninth respondents can therefore not succeed. [27] The sixth respondent was expropriated in 1971 and it was subsequently compensated for the loss of the rights of ownership. No relief may be granted against the sixth respondent. The sixth respondent did not lodge a claim for restitution of the land. I fail to see what interest it can possibly have in the claim of Mr. Meintjies. If the sixth respondent was over-compensated when its land was expropriated in 1971, that situation cannot be rectified at this stage. As far as the application for the joinder of the government departments is concerned, they are already before the court as organs of the state under the umbrella of the first applicant (defendant in the main action) (being the Government of the Republic of South Africa). These departments are also at liberty to intervene in terms of rule 13(3) of the Land Claims Court Rules. No order is necessary to allow such intervention. They in fact delivered notices to participate in the case. [28] The fourth respondent, (Minister of Land Affairs and Agriculture) is already before the court as a member of the Cabinet of the Government of the Republic of South Africa and the political head of the Department of Land Affairs and Agriculture. Concerning the application to join the second applicant as one of the defendants, l have found earlier in this judgment that the Commission on Restitution of Land Rights is an organ of state. That being the case, the Commission is already before the Court through the Government of the Republic of South Africa [29] The practice of the Land Claims Court is not to make any court order against any of the parties except where circumstances warrant such an order. In my opinion this is an appropriate case where such an order is called for. There was no need for this interlocutory application. [30] In the circumstances, I make the following order; 1. The application for the joinder of the second applicant and the third to ninth respondents is dismissed. 2. The first and second applicants are jointly and severally, one paying the other to be absolved ordered to pay the costs of this application. ________________________ ACTING JUDGE T. NCUBE

(vi) paragraph 25

Since the Rules of the Land Claims Court do not make provision for striking out, I shall refer to the uniform rules of high court in this regard.

The cardinal rule is that the court may not grant the application to strike out unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if the application to strike out is not granted.12

[21] In paragraph 6.1 of the answering affidavit Mr. Scholtz states:-

“The sixth respondent is H. L. Hall and Sons Ltd, the previous owner of the properties that form the subject of the restitution claim. The first respondent purchased the properties from H. L. Hall and Sons Ltd on behalf of companies to be formed, but just prior to transfer of the properties from Hall and Sons Ltd, the government expropriated the property from Hall and Sons. The claimants’ claim is based on their unregistered rights including the right to take transfer and to develop the properties, and H. L. Hall and Sons can therefore have no interest in this action”

In my view, this statement does not amount to hearsay. I have considered all the paragraphs of the answering affidavit complained of. I am satisfied that all those paragraphs do not constitute hearsay, but they, like the above quoted paragraph, amount to legal conclusions which are gleaned from the pleadings in the main action. In any event, those paragraphs will do no harm to the case of the applicants in so far as the present application is concerned. Mr. Scholtz stated what was already common cause according to the pleadings filed of record. The application to strike out is accordingly dismissed.

[22] I turn now to deal with the merits of the application for the joinder. Rule 12(1) of the Land Claims Court Rules provides;

“Any number of persons, each of whom has a claim (whether jointly, jointly and severally, separately or in the alternative) may join as plaintiffs or applicants in a case against the same person, if their claims relate to substantially the same question of law or fact” (my emphasis).

In the same vein rule 12(3) provides;

“Several parties may be joined in the same case, either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or the applicant relates to substantially the same question of law or fact” (my emphasis)

Rule 12 of the Land Claims Court Rules is analogous to Rule 10 of the Uniform Rules of High Court, which permits joinder of parties provided that the right to relief of the persons proposing to be joined on the question arising between them depends upon the determination of substantially the same question of law or fact.13

[23] The test is “whether or not a party has a direct and substantial interest in the subject-matter of the action, that is a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court.14” It goes without saying therefore that the application for a joinder of the second applicant, the third to ninth respondents will be granted only if they have a direct and substantial legal interest in the subject matter of litigation of Mr. Meintjies or if in terms of Rule 12, their claims relate to substantially the same question of law or fact.

[24] In Amalgamated Engineering Union V Minister of Labour,15 the court applied two tests in order to decide whether a third party had direct and substantial interest. The first test was to consider whether the third party would have locus standi to claim relief concerning the same subject matter.16 The second test was to examine whether a situation could arise in which because the third party was not joined, any order the court might make would not be res judicata against him, entitling him to approach the court again concerning the same subject matter and possibly obtaining an order irreconcilable with the order made in the first instance.17

[25] There is no doubt that the seventh eighth and ninth respondents are a competing claimants in respect of the same land in respect of which Mr. Meintjies has lodged a claim. Having said this, it is important to mention that under the Act, any person is entitled to restitution of a right in land and has a right to restitution in full, for the right of which he or she was dispossessed. If more than one person was dispossessed of a right in respect of the same land, each of them has an independent right to restitution.18 There is no apportionment between them,as Mr Shakoane seems to suggest.

[26] The case before me relates to a claim by Mr. Meintjies for equitable redress in the form of financial compensation. He alleges that when the farms, at that time, still registered in the name of H. L. Hall and Sons Ltd, were expropriated he was dispossessed of the rights under the deed of sale. I need not, for the present purposes decide whether that is a competent claim or not. The basis of the claim is entirely different from any other claim which may exist in respect of the same land. The rights of other claimants cannot be prejudicially affected by any judgment or award in respect of Mr. Meintjies’ claim. They, therefore do not have a direct and substantial interest in the issues to be decided in Mr. Meintjies’ matter. The application to join the seventh, eighth and ninth respondents can therefore not succeed.

[27] The sixth respondent was expropriated in 1971 and it was subsequently compensated for the loss of the rights of ownership. No relief may be granted against the sixth respondent. The sixth respondent did not lodge a claim for restitution of the land. I fail to see what interest it can possibly have in the claim of Mr. Meintjies. If the sixth respondent was over-compensated when its land was expropriated in 1971, that situation cannot be rectified at this stage. As far as the application for the joinder of the government departments is concerned, they are already before the court as organs of the state under the umbrella of the first applicant (defendant in the main action) (being the Government of the Republic of South Africa). These departments are also at liberty to intervene in terms of rule 13(3) of the Land Claims Court Rules. No order is necessary to allow such intervention. They in fact delivered notices to participate in the case.

[28] The fourth respondent, (Minister of Land Affairs and Agriculture) is already before the court as a member of the Cabinet of the Government of the Republic of South Africa and the political head of the Department of Land Affairs and Agriculture. Concerning the application to join the second applicant as one of the defendants, l have found earlier in this judgment that the Commission on Restitution of Land Rights is an organ of state. That being the case, the Commission is already before the Court through the Government of the Republic of South Africa

[29] The practice of the Land Claims Court is not to make any court order against any of the parties except where circumstances warrant such an order. In my opinion this is an appropriate case where such an order is called for. There was no need for this interlocutory application.

[30] In the circumstances, I make the following order;

1. The application for the joinder of the second applicant and the third to ninth respondents is dismissed.

2. The first and second applicants are jointly and severally, one paying the other to be absolved ordered to pay the costs of this application.

________________________

ACTING JUDGE T. NCUBE

5 Act 22 of 1994.

6 Act 18 of 1936.

7Act 55 of 1965.

8 See section 239 of the final Constitution, Act 108 of 1996.

9 The Constitution of the republic of South Africa Act 108 of 1996.

10 L.G. Baxter “‘The State’ and other basic terms in public law” 1982 SALJ 212-236.

11 See also “executive authority” in LAWSA Vol 10 first re-issue ( 1998 ) page 8 at para 7

12 Rule 23(2) of the uniform rules of High Court. See also Putco Ltd v TV Radio Guarantee co 1984 (1) 443 at 456, D-E.

13 Rule 10(1)(3).

14 Erasmus Superior Court Practice, under Rule 10 page B1-G4.

15 1949 (3) SA 637 (A)

16 n 11 above at 661.

17 n 11 above at 660-1.

18 See section 2 of Act 22 of 1994.

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