Wildbeeesfontein Evation Community Claimants v Regional Land Claims Commissioner Gauteng and North West Province and Others (LCC124/2013) [2021] ZALCC 17 (4 August 2021)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC124/2013

DELETE WHICHEVER IS NOT APPLICABLE

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED: YES/NO

Heard on: 21 June 2021

Delivered on: 04 August 2021

In the matter between:

WILDBEESFONTEIN EVATON COMMUNITY

APPLICANT

CLAIMANTS

and

REGIONAL LAND CLAIMS COMMISIONER

GAUTENG AND NORTH WEST PROVINCE 1st RESPONDENT

OLD MUTUAL (PTY) LIMITED 2nd RESPONDENT

COSMOPOLITAN PROJECTS JOHANNESBURG

(PTY) LIMITED 3rd RESPONDENT

MHLAMO BONGANI 4th RESPONDENT

THE HONOURABLE MR EDWIN KELE

(MMC: HUMAN SETTLEMENT-EMFULENI LOCAL

MUNICIPALITY) 5th RESPONDENT

THE HONOURABLE MR LEBOGANG MAILE

(MEC: HUMAN SETTLEMENT-GAUTENG PROVINCE) 6th RESPONDENT

JUDGMENT

CANCA AJ

INTRODUCTION

[1] This is an application for leave to appeal to the Supreme Court of Appeal against the whole of the order granted by me on 29 July 2020 and the reasons therefore, set out in the judgment dated 22 October 2020. I ordered the dismissal of the applicant’s application, brought on an urgent basis, and discharged the rule nisi originally put in place.

[2] The application is opposed by the third respondent, Cosmopolitan Projects Johannesburg (Pty) Limited (“Cosmopolitan Projects”) and the first respondent, the Regional Land Claims Commissioner: Gauteng & North West Province (“the RLCC”).

[3] The second, fourth and fifth respondents, Old Mutual (Pty) Limited (“Old Mutual”), Mhlambo Bongani (“Mr. Mhlambo”) and Mr. Lebogang Maile, respectively, have not signaled their stance on the leave to appeal application but had opposed the urgent application. None have filed a Notice to Oppose or one to abide the Court’s

decision.

[4] The relief sought in the urgent application was for an interdict against Old Mutual, Cosmopoliton Projects and Mr. Mhlambo, prohibiting them from selling or building on land described as “Portion of Wildebeesfontain Farm No. 536, Registration Division IQ, district of Vereeniging, Gauteng Province”, which land “includes the whole of Vereeniging, Vanderbijlpark, Meyerton, De Deur as well as townships and/or suburban areas thereon built”, pending the finalization of a land restitution claim lodged by the applicant in terms of the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act)”.

[5] Following directives issued by the Court and a tele-conference with the legal representatives of the parties, heads of argument were duly filed. It was only after Mr. Hamman, for Cosmopolitan Projects, raised, in his heads of argument, the fact that the applicant had not filed a formal application seeking condonation for the late filing of the application for leave to appeal, did the applicant, belatedly, approximately a week thereafter, do so.

[6] There are 37 grounds upon which the applicant relies on for bringing the application for leave to appeal. The Notice for Leave to Appeal (“the Notice”), in part, reads as follows:

“FINDINGS OF FACT AND ISSUES OF LAW IN WHICH IT IS CONTENDED THAT THE HONOURABLE COURT (“THE COURT”) ERRED

1. The Court erred in dismissing the application and in discharging the Rulenisi of 17 July 2020.

2. The court erred in handing down judgment prior to the Applicant having

filed Heads of Argument as was originally directed in the order of 17 July

2020, which directed the Applicant to file Heads of Argument by no

later than 12 noon on Thursday, 30 July 2020.

3. The timeframes set out in the 17 July 2020 directions were not adhered

to by the Presiding Judge.

4. The parties’ Heads of Argument were not filed in accordance with the

directions of 17 July 2020 or in terms of tele-conference held on 23 July

2020.

5. The Court erred in finding that the Respondents’ property did not form

part of the property that is subject to the Land Claim.

6. The Court erred in not granting the interim or final interdict in its

discretion.

7. The Court erred in finding that the Applicant had, on the papers, failed to

prove that the Respondents had transgressed the right of possession to

the property under claim of the Applicant and the claimant community.

8. The Court erred in finding that the requirements for an interim interdict

has not been met by the Applicant, which were that there was a

reasonable apprehension of irreparable harm.

9. The Court erred in not placing sufficient weight to the Applicant’s case

for an interdict because the Applicant contends that the farm known as

Wildebeesfontein was purchased by the then Colonel of the British Army,

Colonel Adams, in 1899.

10. The Court erred in not considering that the Applicant community is

made up of people who are direct descendants of the farm workers and

residents of the Wildebeesfontein Farm.

11. The Court did not take into account the fact that the Applicant’s claim

and right to an interdict was based on the fact that a portion of the

Wildebeesfontein farm, prior to the death of Colonel Adams, and in the

early 1940’s was donated to Adams’ adopted child, Eva Adams, portion

of which was referred to as ‘’Eva’s Township’’, currently known as

Evaton.

12. In 1986 a Government Gazette notice was published by the then

Government in terms of which Evaton was not expropriated, but instead

given to its residents.

13. In 1998 the Applicant community instituted a land restitution

claim, which is pending.

14. The Court erred in not noting and placing sufficient weight on the

Applicant’s claim for interdict that the Applicant relied on Section 11(7)

of the Restitution of Land Rights Act for the success of the application.

15. The Court erred in finding that there was no proof that the Regional

Land Claims Commissioner: Gauteng & North West Province, Old

Mutual (Pty) Limited, Cosmopolitan Projects Johannesburg (Pty)

Limited, Mhlamo Bongani or the State Respondents had or was selling

the land forming part of the Wildebeesfontein Farm.

16. The Court erred in not placing further weight on the Applicant’s case

against the Respondents’ claim which is that the Applicant claimed in

support of the conduct of the Respondents, some meetings with the

members of the Applicant community were held and that they were

given misleading and false information about the Applicant’s pending

Land Restitution claim.

17. The Court erred in finding that there was no evidence to prove that the

Applicant community had been despoiled by the conduct of the

Respondents and that these actions are depreciating both the value

and extent of the land under its claim and this has direct adverse value

on its Land Restitution claim.

18. The Court erred in finding that the Applicant failed to make out a case

for the reasons set out above.

19. The Court erred in not taking account that the Applicant community

had demonstrated with the relevant annexures set out in the papers

that it had proved dispossession and deprivation of land by some of the

Respondents without due process, pending the outcome of the Land

Claims Court claim.

20. The Court erred in not taking into account fully that the Applicant

community had undisputedly alleged and proved that the land claim they relied upon is pending and is not yet finalized.

21. The Court erred in not taking into consideration that the land referred

to in ‘’COS38’’ is portion of Wildebeesfontein farm and dates back to

1967.

This therefore means that some members of the Applicant community were in possession of that piece of land since 1967.

22. The Court erred in not considering that possession as a requirement of

the law of spoliation had been approved.

23. The Court erred in not considering the documents attached by the Third

Respondent, being a January 1986 Government Gazette, which

demonstrates that the prevailing Government had decided not to

expropriate Evaton and to give freehold rights to all property owners in

Evaton and the Oranje Vaal Development Board was unequivocally

prevented from expropriating properties in that township (Evaton).

24. The Court erred in not considering that the January 1986 Government

Gazette gave possession of Evaton land to its residents and in not

considering the January 1986 Government Gazette prohibited

expropriation of Evaton land.

25. The Court erred in not taking into account that no evidence had been

forthcoming from the Third Respondent and/or the Emfuleni Local

Municipality (Emfuleni Local Municipality is the successor-in –tile of the

Oranje Vaal Development Board) in terms of which due process to

dispossess the Applicant community had ever been followed and/or

that a Government Gazette had been published in terms of which

Evaton was expropriated anytime from January 1986 to date hereof.

26. The Court erred in not considering that the Third Respondent, in its

Answering Affidavit, had conceded that the Applicant’s land restitution

claim was pending and not yet finalized. On this basis alone, the

Applicant community is entitled to an Order in terms of Section 11(7) of

the Land Restitution Act that the land must be preserved and the

finalization of its application for restitution filed in December 1998.

27. The Court did not take into account that the Applicant community and

all its members have been in possession of the property at least since

1986 and probably since 1889 and in lawful possession of Evaton

township and Beverley Hills is undoubtedly part of the Evaton

township, which is part of the greater Wildebeesfontein farm, which farm is under claim.

28. The Honourable Court erred in not considering that the Third

Respondent had become the owner of the properties when it

purchased the properties in April 2006 from First National Bank when

First National Bank had knowledge of all of the facts pertaining to the

land restitution claim.

29. The Court erred in not considering the Third Respondent’s statement

when it advised that it was at liberty to develop its land as it pleases,

notwithstanding the Applicant’s claim in the Land Claims Court.

30. The Honourable Court erred in not considering that, notwithstanding

the publication in the Government Gazette and that First National Bank

was a party to the Land Claims Court proceedings under Case

No:580/1998 it went ahead and sold and transferred a portion of the

land. The Respondents and First National Bank refused to sign a Land

Availability Agreement because of the pending land claim.

31. The Court erred in not considering that the Third Respondent had, on

its own version, alleged that it had come into possession of documents

dealing with the current pending land claim since July 2019 and yet it

still persisted knowing thereof, in sub-dividing, selling and registering

the land in question, notwithstanding the pending Land Claims Court

claim.

32. The Honourable Court erred in not dealing the fact that the Respondent

itself did not deny having contravened Section 11 (7) of the Land

Restitution Act.

33. The Court erred in not finding that it had been made out clearly that the

law had been transgressed by some of the Respondents with regard to

illegal conduct and the failure to sign the Land Availability Agreement

and the fact that First National Bank had sold the land to the Third

Respondent, well-knowing of the pending land without any

authorization either from the above Honourable Court or the Emfuleni

Municipality.

34. The Court erred in not considering that the Applicant’s land been

spoliated by the Respondents.

35. The Court erred in not finding that the Third Respondent had displayed

an attitude that it is not concerned with the Applicant’s land claim and

that it did not require any approval from the First Respondent and/or

authorization from the above Honourable Court prior to proceeding

with its conduct on the land.

36. The Court erred in not considering that the deprivation of the

Applicant’s land which is subject to a claim had not been done lawfully

and was not carried out in terms of a legitimate and valid court order.

37. The court should have granted an interdict because the Applicants will

suffer irreparable harm if an interdict is not granted.

CONDONATION

38. The Applicant require condonation for the late filing of this application. The Judgment of His Lordship Mr. Acting Justice Canca of 22 October 2020 in this matter only came to their attention on 11 December 2020 when they went to the Land Claims Court to obtain it.

39. The Applicant’s previous attorney did not make the Applicant aware of the Judgment of 22 October 2020.

40. The Applicant was obliged to raise funds to deal with the matter.”

As can be seen from the Notice quoted above, 3 (three) paragraphs which, ostensibly, constitute an application for condonation, are also included in the Notice.

[7] Before considering the application’s prospects of success on appeal, based on the

abovementioned grounds of appeal, it is convenient to first consider whether the application for condonation has any merit, given that its success might be the gateway to the possible grant of leave to appeal to the Supreme Court of Appeal.

CONDONATION APPLICATION

[8] As stated in paragraph [5] above, the application for condonation of the late filing of the application for leave to appeal was only filed after Mr. Hamman had raised the irregular nature of the condonation sought in the Notice.

[9] The applicant, as can be gleaned from paragraphs 38 to 40 of the Condonation section in the Notice, set out in paragraph [6] above, essentially, relies on 3 (three) grounds for condonation.

[10] One of the grounds is the allegation that its previous attorney of record failed to bring the contents of the judgment setting out the reasons for the order dismissing the urgent application and discharging the rule nisi then in place to their attention.

[11] The deponent to the founding affidavits in the applicant’s various applications is Mr. Molipi, who describes himself as the Secretary General of the applicant. As stated in paragraph [1] above, the order was granted on 29 July 2020 and the reasons are out in the judgment handed down on 22 October 2020.

[12] Mr. Molipi avers that:

“We had not heard anything from our previous attorney, E.G. Baloyi, in this matter for some time and therefore I went to the Land Claims Court, together with Nonhlanhla Zungu during December 2020 and I was able to obtain a copy of the Judgment on 11 December 2020.”

And he goes on to state that:

“I have been advised that an application for leave to appeal should have been brought within 15 days after the Order was made. However, we only became aware of the Order on 11 December 2020 and I therefore respectfully submit that the Application should have been brought within 15 days of 11 December 2020. However, the period 24 December 2020 to 02 January 2021 is not included as a day in terms of the Act. Therefore, the Application for Leave to Appeal should have been brought by 08 January 2021.”

[13] The Notice, in terms of Rule 69(1)(b) of the Rules of this Court, has to be delivered within fifteen days after the order or the date on which the full reasons were given. As previously stated, judgment was delivered on 22 October 2020. Mr. Molifi’s stated reason for only becoming aware of the judgment is that “We had not heard anything from our previous attorney, E.G. Baloyi, in this matter for some time…” which then prompted him, in the company of a Ms. Nonhlanhla Zungu, to come to this Court on 11 December 2020, where they obtained a copy of the judgment. Hence, so it is averred, the applicant only became aware of the order only on that date.

[14] Mr. Molifi does not explain why the applicant did not hear from its previous attorney. He also does not state why, instead of going to the offices of the previous attorney or call the attorney, to enquire as to the outcome of the application or, if he knew the contents of the order granted on 29 July 2020, what the reasons were as set out in the judgment. Rather than do what would have been the easier and more direct route, namely, a telephone call to the previous attorney, Mr. Molifi and a colleague, Ms. Zungu, chose to travel to Randburg, where the Court is seated. The reason why Mr. Molifi and Ms. Zungu took approximately thirty days to determine the outcome of the urgent application, is also not apparent from his affidavit and her supporting one.

[15] The reason for the delay in taking speedier action to ascertain the contents of the judgment is, in my view, contrived and wholly unconvincing. If the matter was that important to the applicant that it required an urgent application, common sense dictates that an aggrieved party would have done his or her utmost to learn the outcome of the litigation. Blaming the attorney for not informing a client of the outcome of a particular case is not sufficient an excuse for someone who had the means or wherewithal to take the necessary steps to make the requisite enquiries from his/her legal representative. The Court takes judicial notice of the fact that access to or the possession of a cellphone is no longer the preserve of the affluent but that ever some of the very humble of the citizenry, nowadays, possess or has access to one. Also, there is no evidence that Mr. Molifi or any of his fellow members of the applicant did not possesses a cellphone.

[16] The second reason advanced by Mr. Molifi for the delay in bringing the application is the allegation that

“… it was necessary for me to consult with the Executive Committee, of which there are 12 members and there are more than 500 000 members of the community itself. Because of Covid it was impossible to raise funds and to have public meetings and discuss the matter and to come to a proper decision as to what course of action should take place.”

[17] Ms. Mouton, for the applicant, was, however, hard pressed to give coherent responses, when asked by me: (1) whether the Executive Committee had not been mandated, when the decision was taken to launch the urgent application, to see the matter through to its conclusion; (2) why the sort after consultation with the Executive Committee could not take place virtually or via telephonic conference, if the fear of contracting the Covid virus was top of mind, particularly as Mr. Molifi had indicated that, following legal advice, he knew the time limits within which to file a leave to appeal application were tight and (3) how, given the aforementioned alleged obstacles, Mr. Molifi was, eventually, able to obtain the instructions and a mandate from the community (of some 500 000 people) and the rest of his fellow Executive Committee members in March 2021.

[18] The only riposte from Ms. Mouton to the above, was that “one should not look at the matter from an ivory tower” or words to that effect. A response I considered both disdainful and a non sequitur to the questions posed to her.

[19] Regarding the allegations that the applicant took approximately the whole of March 2021 to: (1) obtain instructions; (2) find a suitable attorney to assist it in this matter;(3) consult with its current attorney of record and (4) place that attorney in funds “towards the end of March 2021.”, Mr. Seneke, for the RLCC, furnished the Court with valuable information from the Bar. First, the Court was informed that the applicant, who, as alluded to above, is already a litigant in a land rights claim pending in this Court, is being funded by the State through its Land Rights Management Facility. Consequently, there was, according to Mr. Seneke, no need for the applicant to seek funding from third parties for this application. Second, the Court was also informed that the applicant had already changed attorneys approximately three times during the course of the prosecution of its land claim.

[20] Ms. Mouton did not contest this information or object to it being given from the Bar, despite the practice that, generally speaking, counsel should not present facts to the Court which should have been submitted in sworn testimony.

[21] Then, finally, Mr. Molifi avers that the applicant’s members are poor, many have lost their employment due to Covid and that it was very difficult for them

“… to make an informed decision as to what to do, as to whether to proceed with the Appeal or the Application for Leave to Appeal and to engage attorneys”

and that

“The Applicant will be prejudiced if condonation is not granted in these circumstances and particularly where the community is extremely poor and the Covid pandemic has severely impacted on our ability to deal with the matter timeously.”

[22] The dictum of Holmes JA, in United Plant Hire (Pty) Ltd v Hills, 1976 (1) SA 717 (A) at 720 E-G, is instructive in deciding matters of this nature. The learned Judge states the following:

“It is well settled that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations

may include the degree of non-compliance with the Rules, the explanation therefore, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice.”

[23] Also see Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 at [33] where the Court held that

“Prospects of success pale into insignificance where, as here, there is an inordinate delay coupled with the absence of a reasonable explanation for the delay.”

[24] I have, in paragraph [8] above, referred to the fact that the applicant attempted to seek condonation but did so in the Notice, clearly not following the Rules. No Notice of Motion or affidavit explaining the lengthy delay was filed before or in conjunction with the application for leave to appeal.

[25] When the condonation application was eventually filed, the reasons for the delay set out in the Notice were not satisfactorily expanded upon as is apparent from the above.

[26] I find that the reasons submitted for the delay unconvincing and, in the circumstances, unreasonable. Those, however, are not the only factors to be considered in deciding a condonation application, as set out in United Plant Hire above.

Prospects of success on appeal

[27] I now intend to consider the grounds of appeal that are arguable and, not necessarily, in the order listed in the Notice.

[28] The applicant starts off its attack on the judgment by raising what it contends were procedural errors on the part of the Court. These are listed as grounds numbers 2 – 4 quoted in paragraph [6] above. The procedural aspect raised is misplaced as the initial timeframes were changed and a new framework was put in place within which the matter was dealt with. The parties had sufficient time to present their case.

[29] It is further contended that the Court erred in finding that (1) the respondents’ property did not form part of the property that is subject to the land claim and (2) the requirements for an interim interdict had not been met despite the applicant having had a reasonable apprehension of irreparable harm. The Court should have granted the interim or final interdict “in its discretion”, so the contention continued.

[30] The kernel of the applicant’s urgent application was that, should the second to fourth respondents not be interdicted from continuing the sub-division, sale and building on the erven, amongst other things, on the claimed land, their rights thereto would be gravely diminished in the event that they succeeded in their claim.

[31] The first attack on the contentions, referred to above, launched by Cosmopolitan Projects, is that its land does not form part of the land claimed by the applicant in its land claim and is not listed in the relevant Government Gazettes, namely Government Gazette of 15 May 2015 and 17 July 2015. Old Mutual, as appears below, states that it does not even own land which is either part of the claimed land or situated in its vicinity.

[32] The deponent to Cosmopolitan Project’s answering affidavit avers that it does not own any portion of the impugned land and, that all it was doing on its land, was to consolidate and subdivide the original 22 erven into 27 erven and that no sale was taking place. There could, therefore, be no diminution of the claimed land, so the averment continued.

[33] The statements by the two respondents referred to in paragraph [31] above were confirmed by the RLCC in an explanatory affidavit. Mr. Seneke, in his heads of argument, also states that

“The first Respondent did not even send the two Government Gazette[s] to Second and Third Respondents as their properties were not affected by the land claims brought by September and Qupe.”

No prima facie or clear right to the land was proved by the applicant, a cardinal requirement for the grant of an interdict.

[34] The Government Gazette is subject to the parol evidence rule. The document itself is the only source that indicates which properties are gazette in terms of it or not. None of Cosmopolitan Projects or Old Mutual’s land is referenced in the Government Gazette. It is also worth mentioning that, even if, land is subject to a land claim, there is no absolute prohibition to selling such land. Section 11(7)(Aa) of the Restitution Act provides that such land can be sold by giving the RLCC 30 days’ notice of an intention to do so. Also, see Koedoesrivier Boerdery and Others v Commission on Restitution of Land Rights and Others, LCC 123/2014, an unreported judgment by Mpshe, AJ, where the Court held that even in the absence of a notice to the RLCC, the sale of land subject to a land claim would still not be void, since the Court has a discretion to set such a transaction aside in instances of mala fides. As no mala fides were alluded to on the part of the respondents by the applicant, Koedoesrivier Boerdery above, is not relevant in this matter.

[35] Moreover, the mere fact that a land claim is published in the Government Gazette, is no indication of the merits of the claim. A land claim only has to pass a very low threshold to qualify to be published. It is this Court that decides on the merits of a land claim. Mahlangu NO v Minister of Land Affairs and Others 2005 (1) SA 451 (SCA) par 13. Illovo Sugar Ltd v The Regional Land Claims Commissioner KwaZulu-Natal, 2017 JDR 12667 (LCC) par 108.

[36] The judgment against which the applicant seeks leave to appeal sets out the reasons for dismissing the urgent application and discharging the rule nisi from paragraphs 16 to 20 thereof. The essence thereof is that the applicant had failed to prove a prima facie right which required protection or a reasonable apprehension of suffering irreparable harm should the interim interdict not be

granted.[1] Consequently, there is no reason for me to repeat same in this judgment.

[37] I do not consider it necessary to deal with the rest of the grounds for leave to appeal because they are irrelevant to the application for leave to appeal and are patently unstainable. There are no prospects of success on appeal, in my view.

[38] In the light of all of the above, the application for condonation stands to be dismissed.

COSTS

[39] It is now settled that this Court only awards costs against an unsuccessful party where there are special circumstances. I find that there are special circumstances in this matter which warrants a departure from the general rule.

[40] The applicant was informed by Cosmopolitan Projects in its answering affidavit, that it was not selling its land at the time but was merely subdividing its land into erven and the RLCC, in an explanatory affidavit, states that the impugned land does not form part of the claimed land.

[41] Moreover, a Windeed search report conducted on behalf of Old Mutual and mentioned in its heads of argument in the urgent application, shows that it was never reflected as a title holder, registered owner or any rights or title holder in Wildebeestfontein Farm or any part thereof. This is sufficient evidence that the applicant launched the urgent application with undue haste and failed to conduct any or sufficient due diligence in bringing that application, furthermore, notwithstanding the obvious flaws in the urgent application, the applicant recklessly, in my view, sought this leave to appeal, causing Cosmopolitan Projects and the State, in the person of the RLCC, to incur further unnecessary legal costs.

[42] In the result, I order as follows:

42.1 APPLICATION FOR CONDONATION

1. The application, by the applicant, for condonation of the late filing of the application by for leave to appeal is dismissed.

2. The costs of the application for condonation shall be paid by the applicant’s members, the one paying, the others to be absolved.

42.2 THE APPLICATION FOR LEAVE TO APPEAL

1. The application for leave to appeal to the Supreme Court of Appeal by the applicant against the whole of the order dated 29 July 2020 and the judgment dated 22 October 2020 is struck from the roll, with costs.

_________________________

MP Canca

Acting Judge: Land Claims Court

APPEARANCES

For the Applicant: Advocate Mouton Instructed by: Michael Krawitz & Co. Dunkeld West.

For the First Respondent: Advocate Seneke Instructed by: The State Attorney, Pretoria

For the Second Respondent: Advocate Hamman Instructed by: JDB Attorneys, Hatfield, Pretoria.

[1] See Setlogelo v Setlogelo 1914 AD 221-227 which sets out the threshold requirements for the grant an interim interdict.