Seshego Land Claim Committee v Minister of Agriculture, Land Reform and Rural Development and Another (4740/2021) [2023] ZALMPPHC 76 (24 April 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

CASE No: 4740/2021

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

Date: 24 April 2023

In the matter between: SESHEGO LAND CLAIM COMMITTEE APPLICANT V MINISTER OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT 1st RESPONDENT LIMPOPO PROVINCIAL OFFICE OF THE DEPARTMENT RURAL DEVELOPMENT AND LAND REFORM 2nd RESPONDENT

Heard: 6 February 2023

Delivered: 24 April 2023 by circulation to the parties’ legal representatives

Coram: PILLAY AJ

JUDGMENT

INTRODUCTION

[1] The Applicant before Court seeks a mandatory interdict compelling the 1st and 2nd Respondents to act on their undertaking and or agreement made to the Applicant that they would acquire additional land for the remaining beneficiaries of the Seshego Land Claim Committee. Further the Applicant seeks an order to compel the Respondents to appoint a consultant for the rezoning of the property.

[2] The application is opposed by the Respondents on the basis that there was no obligation constitutionally or contractually to acquire additional land for the Applicant or any of its members. Moreover, the Court is not competent to order the Respondents to acquire the said land whilst the application of the Applicant's members is still pending before the Land Claims Commission. That this Court is not competent to compel the Respondents to appoint a consultant for the rezoning of the property on account of the principle of separation of power.

Prior to proceeding the parties agreed that the issue of the merits needed ventilation and by agreement requested that the Court condone the non­ compliance in respect of timeframes by both parties. This was condoned and both parties argued the merits of the application.

BRIEF BACKGROUND

[3] During the period 1968 to 1982 approximately 265 families were

forcefully removed from their homes in the areas New Look, New Look Extension and Old Location townships in the Magisterial District of Petersburg. With the advent of Democracy land restitution and reform legislation was enacted to restore the previously dispossessed Communities of their land. 265 families successfully lodged their land claims within the required period, and have appointed the Applicant to facilitate and coordinate their claims.

[4] The Respondents acquired portion 20 and 21 of the farm Jansenpark

1136 which was to be rezoned from agricultural to residential for the purposes of relocating the Applicants. To date that has not

materialised.

[5] The Applicants allege that the 2nd Respondent on 17 August 2017 at a meeting held with them undertook to purchase additional land to complete the claim that was partially fulfilled. Today same has not been fulfilled. The Applicant seeks the Court's intervention by way of a mandatory order to compel the Respondents to comply with their undertaking to purchase further land for the benefit of the Seshego community and to compel the Respondents to appoint a consultant for the rezoning of the properties for the purposes of the resettlement of the beneficiaries and the Applicant sought costs of the said application.

[6] The Respondents indicated that PLAS (Proactive Land Acquisition

Strategy) was utilised by the Minister in acquiring Portion 20 and 21 of Jansenpark 1136, in terms of Section 10(a) of the Land Reform Provision of Land and Assistance Act 129 of 1993 (Land Reform Act). The land is owned by the State and leased to the beneficiaries for the purpose of subsistence farming by the beneficiaries, for their financial benefit and growth.

[7] The Respondents were made aware of the plights of certain families

within Seshego who missed the 1998 land claims deadline and undertook to make land available for leasing through PLAS. Subsequently portion 20 and 21 of Jansenpark were acquired by the Respondents. When the land claims process was reopened in June 2014, the Respondents sent a letter to the Applicant reminding it of the Respondent's undertaking concerning Jansenpark and encouraging the Applicant to lodge their claims during the reopened window for land claims which were not yet submitted by the members of the Applicant.

[8] The Respondents did not factually and could not legally,

undertake to acquire land for the ownership of the various claimants, the property acquired was as previously indicated under PLAS and is owned by the State and to be leased under PLAS.

[9] The Respondents denied any undertaking or agreement to acquire land for the ownership of the Applicant, its members or in fulfilment of the Applicant's or its member's Land Claims. The Land Claim process needed to be ventilated in the correct forums being the Land Claim Commission and or Land Claim Court. The acquisition of portion 20 and 21 of Jansenpark was not in fulfilment of the land claim process.

[10] On the 14 May 2019 the properties portion 20 and 21 Jansenpark were donated to the Polokwane Municipality for community resettlement of the members of the Applicant. It was then that the number of families increased from 2315 to 4000 and requests were made by the Applicant for additional land to be acquired. While the Respondent was engaging

the Applicant, other stakeholders and the Municipality in respect of the resettlement process, the Applicant refused to cooperate and instead some of the Applicant's members invaded portion 20 and 21 of Jansenpark and started to erect shacks on the land. This frustrated the entire process causing the Municipality to seek eviction orders and finally after intervention same were stopped.

[11] The Respondents allege that the Applicant and its member were the course of the unreasonable delay in respect of the transfer and

donation of the property to the Municipality and ultimately the beneficiaries. The Applicant's averments concerning further land was denied by the Respondents as there was never any undertaking to acquire more land on behalf of the beneficiaries of the Applicant.

[12] The Respondents claimed that they tried on several occasions to interact with the Applicant to reach finality in respect of the issues pertaining to Jansenpark, but it was fruitless due to various misunderstandings with Mr Mogano representing the Applicant. The Respondents however, were still desirous to finalise this process in respect of Jansenpark. Therefore, the Applicant has failed to make out a case for the prayers sought and the application must be dismissed with costs.

LEGAL PRINCIPLES

[13] The Applicant seeks a final mandatory interdict in the form of a mandamus. The Court is called to order the Respondents to comply with the directions as contained in the notice of motion. The well-known requirements for a final interdict as set out in Setlogelo v Setlogelo[1] and Free State Gold Areas Ltd v Merriespruit Gold Mining Co[2] are:-

1. A clear right on the part of the applicant.

2. An injury actually committed or reasonably apprehended, and

3. The absence of any other satisfactory remedy available to the applicant.

[14] The Respondents argue a material bona-fide dispute of facts exist and that the Applicant failed to prove the requirements for the final interdict that was sought in respect of the various prayers contained in the notice of motion.

[15] The Applicant relied on the principles enshrined in the Constitution to afford the Applicant the necessary protection to compel the Respondents to comply with the undertaking promised to the Applicant in respect of making land available for the rest of the members of the Applicant and to compel the Respondents to appoint a consultant for the rezoning of the farms.

[16] Interdicts are concerned with the protection and enforcement of rights. It follows that the first prerequisite for the granting of an interdict is the existence of a right accruing to the person who seeks to enforce the interdict. The Applicant must make out a case establishing this clear right. In Diepsloot Residents &Landowners Association v Administrator,Tvl [3] the Court noted:

"to determine whether the applicant has a clear right is a matter of substantive law and whether the right is clear is a matter of evidence. The applicant has to prove on a balance of probabilities where necessary and required, facts which in terms of substantive law established the right relied upon."

[17] To determine if the right in question is a 'clear right', unlike a 'prima facie right', involves two steps:

17.1. Firstly, its necessary to verify that the right exists in law. The right to be protected or enforced needs to be identified. In this case according to the Applicant the right is created by the constitutional protection afforded the Applicant, and or the rights are created by contractual undertakings by the Respondents and or the legitimate expectation created by the Respondent's conduct. Whether or not the Applicant has, a right is therefore a matter of substantive law, meaning that the right is one that is recognised by law.

17.2. Secondly, the Applicant is required to prove the existence of this right in fact. Merely alleging its existence is insufficient to make it a 'clear right'. Evidence must be led to prove its existence. To establish a clear right, the Applicant must prove the existence of the right on a balance of probabilities. A clear right may be either a real or a personal right, in other words, a right in rem or a right in personam.

[18] Since these proceedings are by way of motion, and final relief is sought by the Applicant, same can only be granted if the Applicant has made out a case for such relief on the averments of the Respondents and those of the Applicant which the Respondents admit. Where there is a bona fide dispute of fact in motion proceedings, a final interdict can only be granted by the Court where the facts stated by the Respondent, together with the admitted facts contained in the Applicant's affidavits, justify such an order (Plascon-Evans Paints Ltd v Riebeeck Paints (Pty) Ltd).[4]

[19] In National Director of Public Prosecutions v Zuma[5] at para [26]

"Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma's) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.[6] The court below did not have regard to these propositions and instead decided the case on probabilities without rejecting the NDPP's

version."[7]

[20] The allegations pertaining to the undertaking by the Respondents concerning the securing of further land for the Applicant is found on paragraphs 5.16

"On or about 17 August 2017, the Applicant and the 2nd Respondent held a meeting wherein the 2nd Respondent undertook to purchase the additional land to complete the claim which was partly fulfilled." The Applicant attached document SEM 8.

Further in 5.17

"During the said meeting, the 2nd Respondent undertook to approach the Commission on Restitution of Land Rights to make money available to purchase remaining land for the acquisition by the Applicant"

[21] The Applicant relies on these specific averments to motivate their argument concerning the commitment by the Respondents to acquire more land to meet the need as the land acquired was insufficient.

[22] In response to these allegations the Respondent at paragraph 77 indicate, ad paragraph 5.16 and 5.17:

"The allegations herein are denied, the document attached as 'SEM8' is not a minute of a meeting held between the Applicant and the Respondents; it is rather a letter which acknowledges receipt of another letter from the Applicant, dated 13 October 2014, with the subject line "Purchase of additional land for the Seshego Land Claim Committee"

The letter brings to the attention of the Applicant that as a general proposition, the acquisition of land is through PLAS, where the State purchases the land and the Applicant is afforded an opportunity to lease it for agricultural development purposes. It must be noted again that the purpose of PLAS is for agricultural development and not land claims restitution.

The Applicant was reminded that portions 20 and 21 of Jansenpark were purchased due to the community's inability to lodge the land claims in a previous lodgement period and the community was reminded to take advantage of the re-opening of the land claims process in June 2014 and finally;

At no stage does this letter "SEM 8" contain an undertaking to purchase additional land to complete the claim as alleged by the Applicant. The Respondent denied any undertaking to secure any further land as claimed by the Applicant."

DISCUSSION:

[23] It is common cause that portion 20 and 21 of Jansenpark were assigned to the Municipality, to allocate same to the Applicant for purposes of resettlement by the members of the Applicant. The parties before

Court were in disagreement as to whether this was done as per PLAS which is the Respondent's version or as per redistribution in terms of the Constitution on account of the Applicant being previously deprived of their property which was the version of the Applicant.

[25] I am satisfied that in as much as the parties needed to ventilate this issue and the process involved, the Court is not required to adjudicate on same, as the fact remains that this land has been made available for purposes of resettlement of the members of the Applicant, thus at this stage and for purposes of this Judgment, it is immaterial how this decision was reached. The salient feature is that portion 20 and 21 of Jansenpark is available for the resettlement of the members of the Applicant.

[26] The question of whether further land was to be made available to the Applicant for the other members, would require a Court to have insight into the allegations made by the Applicant on this issue with the relevant supporting proof of same. This would establish whether a clear right as sought by the Applicant compelling the Respondents to obtain further property for these members of the Applicant exists and needs enforcement. The Applicant relying on the allegation of redistribution in terms of the Constitution on account of the Applicant being previously deprived of their property argued that the land acquired was insufficient for the number of people needing to be housed and that the Respondent is obliged to provide further land in fulfilment of that undertaking. The Applicant relies on "SEM 8" as proof of such undertaking.

[27] As highlighted the document "SEM 8" is the alleged basis for this undertaking which the Applicant relies upon to provide the Court with the relevant authority to order the Respondents to comply

and secure more land for the Applicant.

[28] The Respondents denied that there was a meeting with the Applicant as contained in the founding affidavit wherein this undertaking to secure further land was made. "SEM8" was self -explanatory and was a letter written in reply to the Applicant's letter seeking further land for the Seshego community. There was no mention of

undertaking to secure further land. Moreover, the Applicant was directed to take advantage of the further opportunity available for its members to institute land claims with the relevant authority, as they had till 30 June 2019 to submit their land claims. The Respondents went further to reaffirm that this land was only acquired for the benefit of the Applicant due to the Applicant's members not submitting claims timeously in the 1998 period. The process for the securing of this land was through PLAS and not through any other obligation Constitutionally or otherwise.

[29] The Applicant relied upon an undertaking which according to the Respondents were to accommodate approximately 2000 people yet at the time of allocating the land it now appeared as over 4000 people were expected to be accommodated. This was not the original number and that was part of the reason for the delay in finalising the allocation of Jansenpark because the recipients who were entitled to the allocated land needed to be verified so as to avoid there being an incorrect allocation.

[30] The Applicant in reply and in argument sought the Court to order the proceedings to be heard by way of oral evidence alternatively by way of Trial. This was in light of the fact that the Respondents relied on a dispute of fact existing on paper concerning the issue of the alleged further allocation of land. The Applicant argued that in

light of this alleged dispute which could not be determined on paper, instead of the Court dismissing the application on that basis, that rather the Court order the matter proceed with oral evidence and witness testimony or trial to ventilate the dispute.

[31] The Applicant motivated its argument on account of the fact that the Respondents created a legitimate expectation by their conduct that further land would be obtained for its members. It was the reason why the dispute as raised by the Respondents could only be adjudicated and ventilated by witness testimony and cross examination on this

issue. It was alleged by the Applicant that there were verbal undertakings and that witness testimony, could be provided to corroborate the allegations. The Applicant indicated that the suffering of the current residents of Seshego who were forced out of their homes during the dark days of apartheid, and their Constitutional right to land was such that it warranted that the Court should refer the matter for oral evidence or Trial.

[32] In response the Respondents disputed that the issue was so complex that it was not able to be ventilated on the documents before Court. The Respondents relied on the fact that the securing of the land for

the Applicant was through PLAS and not through their land claim. The alleged undertaking which was relied upon by the Applicant was disputed on the basis that the Respondents had no authority to make more land available. The Respondents were not the relevant forum as the Applicant had recourse to the Land Claim Commission where their claims were to be lodged and considered. The Respondents had no control over the Land Claim Commission to instruct them to do anything as that was a separate branch of Government and could not be prescribed to by the Respondents. The land acquired was secured through a totally different process.

[33] In as much as the Applicant tried to argue differently, relying on the Respondents securing Portion 20 and 21 of Jansenpark as proof of the role and ability of the Respondents to make further land available for the Applicant, clearly on the Respondents version this was an exceptional circumstance. This circumstance was created by the Applicant failing to have submitted their land claim timeously and on appreciating the strife of the Seshego communities dire need for occupation that triggered the intervention by the Respondents. This was an exceptional circumstance, which was to benefit the Applicant. The scenario as portrayed by the Respondents was strengthened by the contents of "SEM8".

[34] The Respondents further argued that the Applicant elected to proceed by way of motion wherein the Applicant made out its case. This new development of the need for evidence to be led concerning the availability of oral evidence to verify the said undertakings only surfaced in reply and was not part of the founding affidavit in respect of the application itself. Moreover, these allegations and evidence surfaced at the late stage in the proceedings without the Respondents being afforded the opportunity to respond and the Court was obliged to ignore these allegations which was new information, without any merit and submitted without the Respondents being afforded the chance to have responded thereto.

[35] The Applicant failed to establish a clear right in respect of the so called undertaking that was alleged to have been made by the Respondents. The document relied upon by the Applicant is correspondence and nowhere is it containing any proof to support the allegation that further land was going to be made available. The allegation of this meeting where the undertaking was made was also not supported by any corroborative affidavits with specific reference to the meeting and verbal undertaking.

The request for the matter to be referred for evidence or trial will not alter the fact that the evidence relied upon does not prove direct or indirect commitment by the Respondents to secure more land.

The current evidence on paper does not satisfy the allegation that an expectation was created by the Respondents that the Respondents would secure more land as such allegations were not proven on the papers and had this evidence been available it would have been part of the founding affidavit pertaining to the so called verbal undertakings.

[36] It is not disputed that the Applicant is still awaiting the outcome by the Land Claims Commission in respect of the claims by the other members of the Applicant. The Respondents averment of not being in a position to usurp the authority of the Land Claims Commissioner or Land Claims Court is valid as the Respondents have no authority over Land Claims.

[37] The Applicant failed to prove the allegation of the undertaking by the Respondents for the acquiring of further land. From the evidence submitted and the annexures, there is no proof of the allegation of the Respondents implying, that they were going to acquire more land to meet the needs of the members of the Applicant, as the land acquired was insufficient. Instead it appeared that the number of people seeking to be accommodated had increased since the initial amount was indicated to almost double and that in itself puts doubt on the allegation by the Applicant that the Respondents had failed to fulfil the undertaking made.

[38] There is no evidence to corroborate the allegation of this clear right as sought by the Applicant. The other requirements as set out above need not be mentioned in light of the Applicant failing to establish the clear right for the mandamus to be granted. The Respondents in answer grappled with the merits of the allegations clearly addressing where the land had been obtained from, how and why this land was acquired and made available to assist the Applicant. There is no basis to compel the Respondents to secure further land as this was not undertaken by the Respondents directly or indirectly and

in as much as the Applicant argues that all the different sections of Government are one and that the Respondents are shifting the buck, so to speak, on the other arm of Government, I must disagree with that submission. The separate branches of Government are independent of the other and cannot be said to have power or influence over the other. The Applicant's members need to ventilate their land claims for the required further land from the Land Claim Commission where such application could be appropriately adjudicated.

[39] The Second issue is that the Applicant seeks an order from Court to compel the Respondents to appoint a consultant for the rezoning of the portion 20 and 21 of Jansenpark. This issue was also ventilated

in the Respondent's answering affidavit highlighting the progress so far in having the land donated to the Polokwane Municipality and the attempts to have the Applicant and the other stakeholders meet. The unlawful land invasion by certain members of the community caused delays and eviction orders had to be sought. It was alleged that the Applicant was not cooperating with the Respondents to provide the confirmation of the identity of the prospective land beneficiaries. The Respondents attached communication from the Mr Magano refusing to meet with the Respondents.

[40] In response the Applicant raised the issue that the letter was addressed to Mr Magano personally instead of being sent to the Applicant. At the time of the communication with Mr Magano the attorneys for the Applicant were on record and the Respondents were obliged to communicate with the attorney firm and that was what caused the misunderstanding as it made no sense for the Respondents to contact Mr Magano directly. The Applicant alleged that this again was another delay tactic by the Respondents not to fulfil their obligation which was outstanding for an unreasonable number of years

and that even Mr Magano passed away without seeing this process being finalised.

[41] It is clear that this process has been ongoing from 2013 till now and as much as the parties had serious communication breakdowns to the extent that the Municipality had to seek eviction orders for the persons involved in the land grabbing, both sides were desirous to have this issues resolved and the correct beneficiaries identified and awarded their property, so that those citizens can be restored their Constitutional right to dignity, respect and accommodation.

[42] In light of aforesaid I am of the view that it is not necessary for the Court to order what is already being done and as correctly highlighted by the Respondents, it is not the role of the Court to usurp the Executive powers, especially where the persons involved appear to be executing exactly what is being sought by the Applicant.

[43] The Court does take cognisance of the lengthy period involved in this entire process till now. It is imperative that both parties become vigilant in ensuring that these issues are urgently resolved, so that

the Seshego beneficiaries be awarded occupation on the land portion 20 and 21 Jansenpark as a priority, without any further delaying on the part of both sides. Both parties are reminded by this Court of their role and responsibility to help the beneficiaries find closure to this decade long issue of accommodation, which is a right protected in the Constitution and one that till now is still

outstanding for the members of the Applicant.

COSTS

[44] Costs usually follow the successful litigant. There is no reason to order differently in respect of Costs.

ORDER

1. Condonation is granted to both parties in respect of non- compliance with the relevant timeframes applicable to the Application.

2. The Application is dismissed.

3. The Applicant is ordered to pay the costs of the Application.

K.L. PILLAY

Acting Judge of the High Court

Limpopo Division, Polokwane

APPEARANCES: HEARD ON 6 February 2023 JUDGMENT DELIVERED ON 24 APRIL 2023 . This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand-down of the judgment is deemed to be 24 April 2023 at 15:00 FOR THE APPLICANT Adv. P Mthombeni INSTRUCTED BY Maboku Magena Attorneys INC FOR THE RESPONDENT Adv. E.N. Gaisa INSTRUCTED BY State Attorney Polokwane

[1] 1914 AD 221

[2] 1961 (2) SA 505 (W)

[3] 1993(3)SA 49(T)

[4] 1984(3)SA623(A) at 634E -635C

[5] [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para [26]

[6] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634-5; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 55; Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions [2008] ZACC 13; 2008 (2) SACR 421 (CC) para 8-10.

[7] Sewmungal NNO v Regent Cinema 1977 (1) SA 814 (N); Trust Bank van Afrika Bpk v Western Bank Bpk NNO 1978 (4) SA 281 (A).