Sanlucar de Hoek (Pty) Ltd and Another v Frantz and Others (LCC122/2009) [2020] ZALCC 26 (15 June 2020)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

BEFORE: CANCA AJ

CASE NO: LCC 122/2009

In the matter between:

SANLUCAR DE HOEK (PTY) LTD 1ST APPLICANT

BLUE FALCON 140 RF (PTY) LTD 2ND APPLICANT

and

STL CHRISTO FRANTZ 1ST RESPONDENT

SARON LANDCLAIMS FORUM/24 RIVERS MSTA 2ND RESPONDENT

THE REGIONAL LAND CLAIMS COMISSIONER:

WESTERN CAPE

3RD RESPONDENT

THE MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM

4TH RESPONDENT

and in the matter between:

CASE NO: LCC 129/2012

THE REGIONAL LAND CLAIMS COMMISSIONER

WESTERN CAPE

APPLICANT

STL CHRISTO FRANTZ

1ST RESPONDENT

SARON LAND CALIMS FORUM/24 RIVERS MSTA

2ND RESPONDENT

SANLUCAR DE HOEK (PTY) LTD

3RD RESPONDENT

BLUE FALCON 140 RF (PTY) LTD

4TH RESPONDENT

THE MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM

5TH RESPONDENT

Judgment delivered on 15 June 2020

JUDGMENT

CANCA AJ

[1] There are two applications before me. The applicants in the first application are two owners of land that is subject to a land

restitution claim at issue in both applications. The respondents are Mr. Christo Frantz, the Saron Land Claims Forum/24 Rivers Mission Station Traditional Authority (jointly, the “Saron Forum”), the Regional Land Claims Commissioner for the Western Cape (“the RLCC”) and the Minister of Rural Development and Land Reform (“the Minister”). The applicant in the second application is the RLCC and the respondents are Mr. Christo Frantz, the Saron Forum, the land owners and the Minister.

[2] The Saron Forum launched an application and subsequently Mr. Christo Frantz also launched an application, each of them against the RLCC, claiming inter alia, a review of certain actions taken by the RLCC. The two land owners were subsequently joined as respondents to both applications. Although the aforementioned applications are not before me for adjudication, I shall deal with them briefly later in the judgment, as the two land owners and the RLCC seek certain relief pertaining to those applications.

THE PARTIES

[3] The first applicant, Sanlucar De Hoek (Pty) Ltd (“Sanlucar”), is a company with limited liability registered in terms of the company laws of the Republic of South Africa and one of the owners of land which is subject to the land claim.

[4] The second applicant, Blue Falcon 140 RF (Pty) Ltd (“Blue Falcon”), is also a company with limited liability. It is duly registered in terms of the company laws of the Republic of South Africa and is the second owner of land which is subject to the land claim.

[5] The RLCC is an organ of the Commission on Restitution of Land Rights in the Western Cape Province and is tasked, inter alia, with processing land claims instituted in that Province on behalf of the Commission on Restitution of Land Rights.

[6] Mr. Frantz is an adult male who describes himself, variously, as “the senior traditional leader of the traditional authority/community”[1] and as “the CEO of the Western Cape Provincial house of Traditional Leaders”.

[7] The Saron Land Claims Forum is, according to Mr. Christo Frantz, an umbrella body which represents the community of Saron in its prosecution of the land claim. The 24 Rivers Mission Station Traditional Authority is a body which Mr. Christo Frantz alleges has authority over all the land in the area and appears to have made common cause with the Saron Land Claims Forum in respect of the land claim.

[8] The Minister is cited in her official capacity as the official vested with executive authority in matters related to land claims.

BACKGROUND

[9] Mr. Frantz completed and lodged a land claims form for the restoration of a right in land, in terms of the Restitution of Land

Rights Act, No 22 of 1994 (‘the Restitution Act”), with the RLCC. The claim is for 10 farms and was lodged during August 1998 on behalf of the community of Saron (“the Saron Community”).

[10] Mr. Christo Frantz lodged the said claim form in his alleged capacity as the Deputy Chairman of an umbrella body which he avers represents most of the organizations in the Saron Community.

[11] A few months after lodging the claim referred to above, Mr. Christo Frantz lodged a further claim on behalf of the same community, during December 1998, again in his aforesaid capacity. This claim was also for the restoration of a right in land. The land is described as:

“Foot of Cape 24 Rivers (the portion from 24 Rivers up to the great Berg River in the West up to the South to the Small Berg River and in particular where it starts in the mountain.”

[12] Both claims were investigated as a single claim by the RLCC. However, prior to the conclusion of the investigation and the completion of a final report on the validity of the claim, the Saron Forum launched one of the review applications referred to in paragraph [2] above against the RLCC. I shall, for the sake of convenience, refer to that application as the First Saron Forum Application.

[13] In its replying affidavit, the RLCC avers, inter alia, that the First Saron Forum Application was pre-mature, as the validation of the claims had not yet been completed and that a final verification of the claimants had not yet taken place. No further steps appear to have been taken to bring the First Saron Forum Application to finality.

[14] With the First Saron Forum Application still pending, Mr. Christo Frantz then launched the other review application alluded to in paragraph [2] above. That application is, also for convenience’s sake, called the First Frantz Application in this judgment.

[15] The Saron Forum and Mr. Christo Frantz, in addition to the First Saron Forum and the First Frantz Applications, both launched further applications in this Court. One is dated 29 July 2016 and, inter alia, seeks an order for the restoration of the claimed farms to the traditional authority (“the Second Saron Forum Application”). The other one, launched during August 2019, inter alia, seeks an order for “the certification of the restitution application as a Class Action” and “that the Court refer[s] the dispute of [with] the respondents to the Constitutional Court” (“the Second Frantz Application”).

[16] It is now appropriate to set out, in some detail, the relief sought in the various applications, alluded to above, which are relevant to the relief sought by the land owners and the RLCC. The relief sought in both the Second Saron Forum and Second Frantz Applications, referred to in paragraph [15] above will now be considered below. They are referred to merely to underline the frequency of litigation brought by Mr. Christo Frantz personally and under his direction which litigation the applicants in both applications before me contend to be vexatious.

THE APPLICATIONS

[17] The application launched by the land owners, Sanlucar and Blue Falcon, shall, for the purposes of this judgment, be referred to as the Sanlucar/Blue Falcon Application. And, the application by the RLCC, is referred to as the RLCC Application.

[18] The relief sought in the Sanlucar/Blue Falcon Application is the following:

“(a) An order declaring that the conduct of the First Respondent in instituting applications for direct access to this honorable court in terms of chapter IIIA of the Restitution of Land Act, no 22 of 1994 (“The Restitution Act”) in respect of the land claims, under reference numbers F284 and F460 (“the land claim”), submitted by the Saron Community (“the community”), in his capacity as alleged senior traditional leader, is in breach of the order of Rogers J granted in the Western Cape High Court under case no: 4881/2014;

(b) An order holding the First Respondent in contempt of the order of Rogers J in case no: 4881/2014;

(c) That a fine, such as is deemed appropriate by this court, be imposed upon the First Respondent in regard to such contempt;

(d) Alternatively, that a period of imprisonment, such as is deemed appropriate by this court, be imposed on the First Respondent in regard to such contempt.

(e) An order declaring the First Respondent to be a vexatious litigant in respect of the land claims as envisaged in terms of Section 2(1)(b) of the Vexatious Proceedings Act, No 3 of 1956 and specifically prohibiting the First Respondent, and any other entity represented by him, or on whose behalf he acts, from instituting and /or proceeding with any legal proceedings against any land owner affected by the land claim in any court or in any inferior court relating in any way to the alleged processing of the land claim instituted by the Saron Community;

(f) An order declaring that the First Respondent and/or the Second Respondent is/are not entitled to pursue the land claim, which claim has not yet been referred to this honourable court by the RLCC,

(g) An order declaring that the duly elected Section 10(4) committee is the only body, which is currently entitled to pursue the land claim, which has not yet been referred to this honourable Court by the RLCC

(h) An order dismissing the applications for direct access purportedly instituted by the First Respondent and the Second Respondent due to (a) and/or (e) and/or (f) and/or (g) above, alternatively, an order interdicting and restraining the First Respondent, and any other entity represented by him, or on whose behalf he acts, and the Second Respondent from taking any steps in an attempt pursue the direct access applications under case numbers 129/2012 and 122/2009 and/or any other new matters;

(i) An order interdicting and restraining the First Respondent, and any other entity represented by him, or on whose behalf he acts, and the Second Respondent from taking any steps in an attempt to review the decision by the RLCC under case numbers: 129/2012 and 122/2009 and/or any other new matters;

(j) An order declaring that the 24 Rivers MSTA (the Second Respondent) does not possess the statutory authority to expropriate property and in particular the properties of the Applicants in terms of the Expropriation Act, No 63 of 1975 (“the Expropriation Act”);

(k) An order interdicting and restraining the First Respondent, and any other entity represented by him, or on whose behalf he acts, and the Second Respondent from taking any steps in their attempted process of expropriation and in particular, without derogating from the generality of the aforesaid order issuing expropriation notices; issuing notices calling for the delivery of title deeds; and/or the opening of criminal charges against the Applicants for their failure to hand over their title deeds to them;

(l) An order directing the First Respondent and/or the Second Respondent to pay the costs of this application on the scale as between attorney and own client;”

[19] The relief sought in the RLCC application is the following:

1. That the late filing and service of this Application be condoned.

2. That it be declared that the conduct by the First Respondent in instituting applications for direct access to this Honourable Court in terms of the Restitution of Land Rights Act, no 22 of 1994 (“the Restitution Act” in respect of the land claims, under reference numbers F284 and F460 (“the Saron Land Claims”), submitted by the Saron Claimant Community (“the Claimant Community”), in his alleged capacity as Senior Traditional Leader, stands in breach of the order granted by Judge Rogers in the Western Cape High Court under case no: 4881/2014 (“the Rogers Order”);

3. An order holding the First Respondent in contempt of the Rogers Order;

4. That a fine, such as is deemed appropriate by the Court, be imposed upon the First Respondent in relation to the contempt;

Alternatively,

That a period of imprisonment, such as the Court might deem appropriate be imposed on the First Respondent in respect of the contempt;

5. That it is declared that the First Respondent is a vexatious litigant in respect of the litigation instituted by him in relation to the Saron Land Claim as envisaged in terms of Section 2 (1)(b) of the Vexatious Proceedings Act, No 3 of 1956 and that it be specifically ordered that the First Respondent, and any other entity ostensibly represented by him, or on whose behalf he professes to act, from instituting or proceeding with any legal proceedings against the Applicant or any land owner affected by the Saron Land Claim in any Court.

6. That it be declared that neither the First Respondent or the Second Respondent are entitled to pursue the Saron Land Claim.

7. That it be declared that the duly elected section 10 (4) committee is the only body, which is currently entitled to pursue the Saron Land Claim.

8. That the applications for direct access purportedly instituted by the First and Second Respondents be dismissed, alternatively, an order interdicting and restraining the First Respondent, and any other entity represented by the latter, or on whose behalf he acts, as well as the Second Respondent, from taking any steps in an attempt pursue the applications instituted under case numbers 129/2012 and 122/2009 or any other new matters.

9. That the First Respondent, the Second Respondent and any other entity purportedly represented by the First Respondent is interdicted and restrained from taking any steps aimed at reviewing the decision by the RLCC under case numbers 129/2012 and 122/2009 or any other new matters.

10. An order directing the First Respondent to pay the costs of this application on the scale of attorney and own client;

11.Further, alternative relief.”

[20] The application for condonation of the late filing and service of the RLCC’s application was not opposed and was duly granted.

[21] The First Saron Forum Application is set out as follows in its Notice of Motion:

“1. The review of the following decisions/actions of the REGIONAL LAND CLAIMS COMMISSIONER WESTERN CAPE: THE VALIDATION OF SARON LAND CLAIM AS SET OUT IN THE VALIDATION REPORT;

Other relief:

2. THAT THE REGIONAL LAND CLAIMS COMMISSIONER, WESTERN CAPE BE GIVEN 30 DAY’S [sic] TO FINALISE THE VALIDATION the validation of the Saron community land Claims;

3. GRANTING APPLICANT SUCH FURTHER AND/OR ALTERNATIVE RELIEF;

4. THAT THE RESPONDENT PAY THE COSTS OF THE CASE.”

[22] The orders sought in the First Frantz Application appear as follows in the Notice of Motion:

“1] [Dat] die besluite van die Wes Kaapse Grondeise Kommessaris te hersien en;

1.1 Die besliut tersyde stel en te korrigeer.

1.2 Die Grondeis geldig verklaar in terme van seksie 11.1. p23-26

2. Dat die Kommissie onmiddelik:

2.1 Die kennisgewing in die Staats Koerant plaas en dit bekend maak in die distrik van die geisde grond S (11.1.c).

2.2 ‘n Mediator/arbitrator aanstel vir mediasie en onderhandelings met diegene op die grond volgens S (13.2.b) gelees met S (13.1.d).

3. Indien daar tekorkominge is in terme van S (11.1) bepaal wat die tekortkominge is en dat die Agbare Hof dit verwys vir verdere ondersoek.

4. Verdere en alternatiewe regshulp.

5. Dat die Respondent die koste betaal van hierdie Aansoek.”

[23] The applicants in both the Sanlucar/Blue Falcon and RLCC Applications appear, for the most part, to have hung their hats on the alleged breach of the Order granted by Rogers J in case 4881/2014. See paragraphs [18] (a) and (b) as well as [19] 2 and 3 above.

THE ORDER GRANTED BY ROGERS J IN CASE 4881/2014

[24] Given its centrality to the aforementioned applications, it may be convenient to set out a brief background to the facts that led to the Rogers J granting the aforementioned Order. On 15 November 2013, Davis J, under case number 2483/2012, granted a judgment against Mr. Christo Frantz in the Western Cape High Court. This was a matter in which Mr. Christo Frantz had, in his own name, launched an application against the Drakenstein Municipality, this being one of many applications which he had brought, unsuccessfully, against that Municipality.

[25] Rogers J, also of the Western Cape High Court Division, handed down a judgment in case number 4881/2014 on 11 June 2015. The applicant in that matter was “the Provincial House of the First Indigenous Leaders”, which was represented by Mr. Christo Frantz. Pursuant to dismissing the application, Rodgers J, in upholding a counter application, inter alia, found as follows:

“ That on the counter application the following order is made: In terms of Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, and without derogating in any way from the order made by Davis J on 15 November 2013 in Case 24083/2012, Christo Frantz is prohibited from instituting legal proceedings against any person in any court or in any inferior court relating in any way to his alleged status, or the alleged status of any other person, as a traditional leader, without the leave of the court or any judge thereof or of that inferior court as the case may be.”

[26] The phrase “any court” in the abovementioned Order could well include the Land Claims Court. More on this below.

THE LAW

[27] The Sanlucar/Blue Falcon and RLCC Applications turn, to a large extent, on the interpretation of the Vexatious Proceedings Act 3 of 1956 (“the Vexatious Proceedings Act” or “the VPA”) and, in particular, the definition of the word “court” in that Act.

[28] The powers of a court to impose restrictions on the institution of vexatious legal proceedings, in terms of the Vexatious Proceedings

Act, are set out in sub-section 2(1)(b), as follows:

“(1) (b) If, on an application made by a person against whom legal proceedings have been instituted by any other person or who has

reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is a prima facie ground for the proceedings.”

[29] The Constitution distinguishes between the Constitutional Court, a High Court and a court of similar status to a High Court. See sections 166(e), 169(a)(ii) and 172(2)(a). The Superior Courts Act No 10 of 2013 define “Superior Court” as meaning “the Constitutional Court, the Supreme Court of Appeal, the High Court and any court of a status similar to the High Court”. The Land Claims Court is a court of a status similar to the High Court. See section 22(2) of the Restitution Act.

[30] Mr. Combrink, for the RLCC, with whom Mr. van der Walt, for Sanlucar and Blue Falcon, made common cause, argued strongly that the Order granted by Rogers J, referred to earlier in this judgment, applied in these matters and that this Court had the requisite jurisdiction to find Mr. Christo Frantz in contempt of that Order.

[31] Reliance for the aforementioned argument was, inter alia, based on the provisions of section 22(2) of the Restitution Act, and in particular sub-sections (a) and (c), which provide as follows:

“Subject to Chapter 8 of the Constitution, the Court shall have jurisdiction throughout the Republic and shall have –

(a) all such powers in relation to matters falling within its jurisdiction as are possessed by a High Court having jurisdiction in civil proceedings at the place where the land in question is situated, including the powers of a High Court in relation to any contempt of the court;

(b) …………………………………………………………………………………………………

(c) the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it to be in the interests of justice to do so.”

[32] The aforesaid sub-sections, particularly the phrase “powers” … “possessed by a High Court”, in sub-section 22(2)(a) were, according to Mr. Combrink, the powers conveyed upon this Court by the Restitution Act, save that those powers are limited to “matters falling within its jurisdiction”.

[33] According to section 1 of the VPA, “court means any provincial or local division of the Supreme Court of South Africa [now the High Court].” It is, however, not apparent from this definition that a court of a similar status is included in this definition.

[34] Steenkamp J, after quoting section 2(1)(b) of the VPA, said the following at paragraph [34] in Maseko v CCMA and Others [2016] ZALCJHB 322; (2017) 38 ILJ 203 (LC):

“Despite the convoluted language, the impact of the provision is clear. This court [the Labour Court] may order that the employee may not institute any further legal proceedings if I am satisfied that the employee has persistently and without any reasonable grounds instituted the previous legal proceedings.”

The Labour Court is a court of similar status to the High Court.

[35] The judgment of the Supreme Court of Appeal, in Member of the Executive Council for the Department of Co-Operative Governance and Traditional Affairs v Maphanga [2020] 1 All SA 52 (SCA)/[2019 ZASCA 147] appears to have now clarified the issue of whether courts of a status similar to the High Court are included in the definition of “court” contained in the VPA. Maphanga supra was not yet contained in the law reports at the time Counsel submitted their Heads of Argument or when these applications were argued.

[36] Maphanga is an appeal against the dismissal by the Labour Court of the bulk of the relief sought by the appellant in an application launched by it against the respondent, Mr. Jabulani Crosby Maphanga (“Mr. Maphanga”). The main relief was sought under s 2(1)(b) of the VPA.

[37] Maya P, at paragraph 19 in Maphanga, states as follows:

“It follows that the disputes lodged by Mr. Maphanga in the Bargaining Council enjoy no higher status than those referred to the other extra-curial bodies and were not legal proceedings instituted in a court of or lower court. That leaves the review and appeal

proceedings which he launched in the Labour Courts in 2014, after the enactment of the Superior Courts Act, and the damages claim concerning the alleged sale in execution of his house, which he brought in the high court against the MEC. I include the Labour Court because I accept, for present purposes, that as a matter of construction of the definition of “court” in the Act, the fact that the Labour Court has a status equivalent to a high court brings it within the Act’s ambit. So the first requirement of these provisions is met and it remains to determine whether the proceedings were persistent and without reasonable cause.”

[38] It is clear from the dictum of Maya P, alluded to above, that the Supreme Court of Appeal has accepted, for purposes of its judgment in Maphanga, that a court of similar status to that of a High Court may make an order in terms of the VPA. And, as submitted by counsel, such an interpretation of the definition of “court” in the VPA, is bolstered by section 22(2)(a) of the Restitution Act.

[39] The purpose of contempt proceedings is twofold: to vindicate the Court’s honour by punishing the transgressor, and to secure performance in accordance with an order such as that granted by Rogers J, which was disobeyed. See Erasmus, Superior Court Practice, Vol 1, p A2 – 171 and Protea Holdings (Pty) Ltd v Wright and Another 1978 (3) SA 865 (W) 868B. If the High Court that made the Order in terms of the VPA can effectively deal with contempt of that Order, another Court must “tread carefully to assume jurisdiction.” Compare DS V RM 2015 (3) SA 424 (WCC) at paras [10] and [11] and Bannatyne v Bannatyne [2002] ZACC 31; 2003 (2) SA 363 (CC) at para [23].

[40] In the light of the Maphanga judgment, I find that the Order by Rodgers J also applies to proceedings in the Land Claims Court.

[41] The finding set out above is, however, not the end of the matter in relation to Mr. Christo Frantz’s conduct in litigating the Saron Community Land Claim.

DOES Mr. FRANTZ AND/OR THE SARON FORUM HAVE ANY LOCUS STANDI TO REPRESENT THE SARON COMMUNITY IN PURSUING THE LAND CLAIM?

[42] Persons from the Saron Community were elected in terms of section 10(4) of the Restitution Act[2] to represent the Saron Community (“the Section 10(4) Committee”), under the auspices of the RLCC on 23 April 2017.

The election was preceded by a dispute amongst the community as to who legitimately represented them for purposes of the land claims.

According to the Sanlucar/Blue Falcon and RLCC papers, Mr. Christo Frantz refused to cooperate and participate in the process which

elected the said committee.

[43] A committee elected in terms of section 10(4), is the only body entitled to represent a conflicted community in terms of the

Restitution Act. Mr. Frantz, from the papers filed by Sanlucar and Blue Falcon, as well as the RLCC, does not appear to enjoy the

support of the majority of the Saron Community. Moreover, the legitimacy of both the Saron Land Claims Forum and the 24 Rivers MSTA to represent the Saron Community has been put in issue by the RLCC following its interactions with members of that community.

[44] Mr. Christo Frantz is the only deponent founding the First and Second Saron Forum Applications. Also, there is no mandate granting Mr. Christo Frantz and the aforementioned bodies the right to pursue the land claims on behalf of the Saron Community. His jurisdiction and that of the respondents who have made common cause with him in these proceedings, to represent the Saron Community in the land claims have not been proven. The identities of the Saron Land Claims Forum and the 24 Rivers MSTA remain amorphous.

[45] Consequently, I find that Mr.Christo Frantz and the Saron Land Claims Forum as well as the 24 Rivers MSTA have, as from the date of the election of the Section 10(4) Committee, demonstrated no authority to represent the Saron Community in respect of the land claims.

[46] Both Mr. Christo Frantz and the Saron Forum have not sought to set aside the appointment of the Section 10(4) Committee through review proceedings. I agree with counsel that, for as long as the election of the Section 10(4) Committee is not set aside by this Court, it remains the only lawfully constituted body authorized to represent the Saron Community.

STATUS OF THE SARON FORUM AND FRANTZ APPLICATIONS.

[47] Having found that the Section 10(4) Committee is the only body entitled to represent the Saron Community in respect of this land claim, it follows that the the Saron Forum and Mr. Christo Frantz no longer have the authority to act on behalf of the Saron Community. The power to act on behalf of the Saron Community in respect of the land claim, now rests, solely with the Section 10(4) Committee.

DOES THE 24 RIVERS MISSION STATION TRIBAL AUTHORITY HAVE THE JURISDICTION TO EXPROPRIATE THE PROPERTIES OF SANLUCAR AND BLUE FALCON?

[48] The 24 Rivers Mission Station Tribal Authority, which styles itself as a traditional or customary authority, although not lawfully

established as such according to the papers, has on several occasions attempted to issue expropriation notices in respect of the claimed land in this matter. The said notices were issued in terms of the provisions of the Expropriation Act, No. 63 of 1975 (“the

Expropriation Act”). The latest notice, which called on Sanlucar and Blue Falcon to deliver their title deeds in terms of the Expropriation Act, was served on them on 3 August 2018.

[49] The powers to expropriate, according to Mr. van der Walt, do not vest in a traditional authority but with a local authority. Section 5(1) of the Expropriation Act reads as follows:

“If a local authority has the power to expropriate property or to take the right to use property temporarily, such power may only be exercised, mutatis mutandis, in accordance with the provisions of this Act.”

The local authority is currently the Drakenstein Municipality, so the submission continued.

[50] I do not agree that a local authority derives its power to expropriate from the Expropriation Act. A local authority does not

derive any power to expropriate from the Expropriation Act. The power must derive from other legislation. If the other legislation gives a local authority the power to expropriate, such power must be exercised mutatis mutandis in accordance with the Expropriation Act. The difference between deriving the power to expropriate, and the manner of exercising such power, is fundamental. I do, however, agree with Mr. van der Walt that the Expropriation Act does not bestow any expropriation powers on a tribal authority. This Court has no jurisdiction in the matter.

[51] Also, the notice of expropriation, at issue, does not disclose any purported power to expropriate that would bring validity of the expropriation within the jurisdiction of this Court. Only the Minister has, in terms of section 42E of the Restitution Act, the power to expropriate property for land reform purposes. The Restitution Act does not give such power to any other person or

entity. I find that I do not have jurisdiction to determine the validity of the purported expropriation.

SHOULD MR. CHRISTO FRANTZ BE PROHIBITED FROM INSTITUTING OR PURSUING LEGAL PROCEEDINGS IN THIS COURT?

[52] Mr. Christo Frantz has, either in his own name or in a representative capacity, launched four applications (two of them share the same case number) in this Court, relating to the Saron Community’s land claims. This litigation is dealt with below and, on the face of it, the applications are frivolous, without any legal basis and an abuse of the process of this Court.

[53] Both Mr. van der Walt and Mr. Combrink contended that Mr. Christo Frantz is a vexatious litigant in terms of section 2(1)(b) of the VPA. The VPA, however, does not provide for an order declaring a person to be a vexatious litigant, nor was I furnished with authority to support such a contention. The first part of the aforesaid sub-section provides that:

“If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court …”.

[54] Section 2(1)(b) of the VPA sets out two requirements which have to be met before a litigant can be prohibited from instituting legal proceedings. These are that:

54.1 legal proceedings have in the past been, or there is reason to believe will in the future be, instituted against one of the applicants. This requirement has been satisfied in this matter, given the various applications against the RLCC and the Minister brought by both Mr. Christo Frantz and the Saron Forum.

54.2 the litigant must have persistently instituted legal proceedings in a court, and that he or she did so without any reasonable ground. Counsel for the applicants in this matter referred to the fact that Mr. Christo Frantz, in various guises, instituted numerous cases in the Western Cape High Court which were found to be unmeritorious and, ultimately, resulted in the judgment by Rogers J. See the dictum of Gorven J in MEC for Co-Operative Governance and Traditional Affairs v Maphanga 2018 (3) SA 246 (KZP) at para [18]. The four applications launched by Mr. Christo Frantz and his co-respondents, referred to above, and, hereinafter, support the second requirement of persistence. See below.

[55] Mr. Christo Frantz’s litigation in the Western Cape High Court which resulted in the order by Rogers J and the four applications

brought in this Court, referred to in paragraph [52] above, and which have not been proceeded with, discussed briefly below, is sufficient evidence that the “persistent” element of the second requirement has been met.

[56] The relief sought in the First Saron Forum Application is for a review of the RLCC’s decision in the validation of the land claims when no decision had yet been taken as the validation of the claims had not been completed. Also, in the same application,

notwithstanding the fact that the first relief seeks a review of the RLCC’s decision, the second relief sought is that the RLCC be ordered to finalize the validation process within 30 days. Relief that clearly contradicts that sought in the first order.

[57] In the First Frantz Application, Mr. Christo Frantz, in addition to seeking a review of the RLCC’s “decision”, seeks an order declaring the land claims valid and that that order be published in the Government Gazette. He also seeks an order that a mediator or an arbitrator be appointed to mediate the dispute “… met diegene op die grond… (with those on the ground) [sic]”. Although a prayer for the appointment of a mediator or arbitrator is, generally, not considered unreasonable in matters where there is a dispute between parties, in these two matters, his application, manifestly, has no prospects of success given that the orders sought are/were premature. These orders cannot not be granted as the RLCC had, at that stage, not yet completed its research and the verification of the claim. Also, it is not possible for the RLCC to “restore the claimed farms to the traditional authority” when that traditional authority’s jurisdiction was been placed in issue by the Western Cape High Court, particularly, when the land claimed was that comprising:

“[the] Foot of Cape Rivers (the portion from 24 Rivers up to the great Berg River in the West up to the South to the Small Berg River and in particular where it starts in the mountain.”

The claimed land, referred to above, appears vague and is not supported by any evidence by Mr. Christo Frantz, that that land was occupied by a community of which he was a part of. Regard being had that a “community” is defined as:

“Any group of persons whose rights in land are derived from shared rules determining access to land held in common by such a group, and includes part of such a group;”

[58] The Second Saron Forum Application (which has the same case number as the First Saron Forum Application) seeks an order that the claimed land be restored to the traditional authority, this, notwithstanding that the Western Cape High Court has found that the alleged provincial house of traditional leaders (and hence, the traditional authority) had never been lawfully established. It, accordingly, prima facie, does not exist. Mr. Christo Frantz, has, in most of these matters, sought to clothe himself with the authority of a traditional leader. And, has referred to himself as such in the papers. The Western Cape High Court has found that no traditional authority exists in that Province. Mr. Christ Frantz, can, therefore, not appropriate to himself that title and, if he did, as appears to be the case in this and other matters, that title has no legal standing and is, therefore, worthless.

[59] The relief sought in the Second Frantz Application (which has the same case number as the First Frantz Application), includes, inter alia, orders for the certification of the land claims as a class action and that his dispute with the RLCC be referred to the Constitutional Court. The Restitution Act does not provide for class actions nor does this Court have the power to refer a matter to the Constitutional Court as prayed for by Mr. Christo Frantz.

[60] It is now settled law that the Court has the inherent right to prevent its procedure being abused and the power to deal with any matters necessary or incidental to performing its functions in terms of the Restitution Act or any other law. See the dicta of the very learned Innes CJ in Corderoy v Union Government (Minister of Finance) 1918 AD at 518 where it is held that a litigant was entitled to protection against “long -continued unsuccessful onslaughts in respect of the same matter” and that of Steenkamp J at paragraph [40] in Maseko alluded to in para [34] above. Also see Absa Bank v Dlamini [2007] ZAGPHC 241; 2008 (2) SA 262 (TPD) para 24 and paragraph [14] referred to in Maphanga at para [56] above.

[61] I am satisfied that Mr. Christo Frantz’s legal proceedings were persistent, without reasonable grounds and that an interdict

restraining him, in his personal or other capacities, from instituting or pursuing any further legal proceedings in this Court

sought by the applicants, is warranted in the circumstances.

[62] In the light of the above, and in terms of the inherent power of the Court to regulate its process, I intend to order that Mr. Christo Frantz may not initiate or pursue any further proceedings against the applicants in both applications before me or in respect of any matter pertaining to the Saron Community land claims, unless with due permission by the Judge President of this Court, an official of the Court or a Judge of the Court, appointed by the Judge President to grant such permission.

COSTS

[63] The costs in this Court are, generally, not awarded to the successful litigant. This is because of the Constitutional nature of the cases heard in this Court and, in particular, when the litigation is against the State. See Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) at para 24. Also, see Midlands North Research Group and Others v Kusile Land Claims Committee and Another (LCC21/2007) [2010] ZALCC 19; 2010 (5) SA 57 (LCC), at paras [18] – [21] and [35]. There are, in my view, given, the special circumstances, namely, the lack of a meritorious case or cases against the applications in these two matters, as well as the fact that I’ve found Mr. Christo Frantz, in his various guises, to have launched applications that are frivolous, unpersuasive and without reasonable or sufficient grounds for me to find that special circumstances exist in these matters to warrant a costs order against Mr. Christo Frantz and his co-respondents, the Saron Land Claims Forum and/or the 24 Rivers Mission Station Traditional Authority. I find that Mr. Christo Frantz should, in his personal capacity, bear the costs of these applications.

[64] Mr. Christo Frantz is a lay person. Whilst he may have had, and, possibly, still have ambitions, real or imagined, to be a lawyer, he, in my view, still has to fully acquaint himself with the nuances of the profession. He has done himself, and those whom he has sought to represent, no favours in what I consider to be a reckless pursuit in bringing the aforementioned four applications which clearly have no prospects of success. His actions constitute an abuse of the process of this Court. These actions have unduly burdened the Court’s resources and, in my view, have been frivolous.

[65] For all the reasons set out above, I order as follows:

65.1 In respect of both the Sanlucar De Hoek (Pty) Ltd and Another v STL Christo Frantz and Others, and the Regional Land Claims Commissioner: Western Cape v STL Christo Frantz and Others applications:

65.1.1 It is declared that the first respondent, by bringing the First and Second Frantz Applications, relying on his status as a traditional leader, breached the Order granted by Rodgers J in the Western Cape High Court under case no: 4881/2014.

65.1.2 An Order is hereby made declaring that the committee elected in terms of section 10(4) of the Restitution of Land Rights Act, No. 22 of 1998, on 23 April 2017 is the only body entitled to represent the Saron Community for the purposes of the two land claims lodged on its behalf on during August 1998 and during December 1998.

65.1.3 An Order is hereby made, under the common law powers of this Court to regulate its own procedures, staying the following legal proceedings instituted by Mr. Christo Frantz in this Court in his personal capacity and in his capacity as the purported representative of the Saron Land Claims Forum and/or the 24 Rivers Mission Station Traditional Authority, namely:

LCC 122/2009 and LCC 129/2012 (as well as the cases cited under the same case numbers and filed at Court during July 2016 and August 2019) (collectively referred to as “the Existing Applications”).

The aforesaid proceedings may not be proceeded with unless written leave is obtained from the Judge President in accordance with paragraph 65.1.5 below.

65.1.4 The first respondent is interdicted from:

instituting any legal proceedings or continuing with the Existing Applications in his personal or in any representative capacity relating to the land claimed in terms of the claims referred to in paragraph 65.1.2 above, unless the first respondent has first obtained the written leave of the Judge President of this Court to institute or proceed with such specified legal proceedings.

65.1.5 An order is made that:

65.1.5.1 The first respondent shall, prior to seeking the leave of the Judge President of this Court to institute or to proceed with any legal proceedings (including the Existing Applications), furnish 72 hours written notice setting out in full the basis for seeking such leave to the Judge President and any other respondent or defendant to those proceedings of his intention to seek such leave, to enable such respondent or defendant to those proceedings to make written submissions to the Judge President in response to the first respondent’s intention to seek such leave;

65.1.5.2 that in the event of the Judge President granting such leave to the first respondent to institute or proceed with any litigation (including the Existing Applications) that the first respondent is hereby ordered and hereby required to provide security for legal costs to the respondent and/or respondents or defendant and/or defendants in that litigation in an amount and form to be determined by the Registrar.

65.2 The costs of both applications shall be paid by the first respondent, Mr. Christo Frantz on the scale of attorney and own client.

__________________________

MP Canca

Acting Judge, Land Claims Court

Appearances:

For the Sanlucar Applicants: Adv. C.G van der Walt

Instructed by: Cox and Partners, Vryheid.

For the RLCC: Adv. M. Combrink

Instructed by: The State Attorney, Cape town.

Mr. Christo Frantz represented himself and the Saron Forum.

[1] Presumably this is a reference to the 24 Rivers Mission Station Traditional Authority.

[2] Section 10(4) provides as follows: “If there is any dispute as to who legitimately represents a community for the purposes of any claim under this Act, the regional land claims commissioner having jurisdiction may in the manner prescribed in the rules made by the Chief Land Claims Commissioner in terms of section 16, in order to a person or persons elected to represent the community – (a) Take steps for drawing up a list of the names of the members of the community; (b) Direct that a meeting of such community be convened and an election be held at that meeting; (c) Take such other steps as may be reasonably necessary for the election.”

[2] Section 10(4) provides as follows: “If there is any dispute as to who legitimately represents a community for the purposes of any claim under this Act, the regional land claims commissioner having jurisdiction may in the manner prescribed in the rules made by the Chief Land Claims Commissioner in terms of section 16, in order to a person or persons elected to represent the community –

(a) Take steps for drawing up a list of the names of the members of the community;

(b) Direct that a meeting of such community be convened and an election be held at that meeting;

(c) Take such other steps as may be reasonably necessary for the election.”