Bisset v Minister of the Department of Rural Development and Land Reform and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Muvangua AJ
• Judgment Date: 31 March 2023
• Docket Number: LCC171/2021
• Hearing Date: 18 November 2022
• Court: Land Claims Court

Muvangua AJ:

Introduction:

[1]

The main issue before this Court concerns the reviewing and setting aside of a settlement agreement that was signed by the applicant, [1] ostensibly in terms of section 42D of the Restitution of Land Rights Act 22 of 1994 ("Act"). That provision empowers the first respondent ("Minister") to enter into agreements with claimants whose claims were lodged by 30 June 2019, if she is satisfied that a claimant is entitled to restitution of a right in land in terms of section 2 of the Act.

[2]

There are, however, two preliminary issues that I must also deal with. The one relates to condonation. The application is brought in terms of the in terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). Section 7(1) of PAJA requires judicial review proceedings to be instituted within 180 days from the date on which the applicant became aware of the decision. The agreement that is at the heart of these proceedings was entered into on 18 April 2008. Under PAJA, the applicant had 180 from that date to institute review proceedings. He instituted review proceedings some 13 ½ years out of time. The applicant thus prays for an order condoning the late institution of these proceedings.

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[3]

The other preliminary issue raised by the applicant concerns an alleged non-compliance with the rules of this Court by the fourth respondent ("Commissioner").

[4]

For the review, the applicant prays for an order remitting the matter to Commissioner for reconsideration within 30 days, taking into consideration: (a) the history of the land dispossession; and (b) the hardship that the dispossession caused. In the alternative, the applicant prays for an order compelling the Commissioner to refer the matter to this Court, in terms of sections 14(3A) and (4) of the Act.

4.1

In the further alternative, the applicant prays for an order directing the respondents to deliver a revised offer to the applicant's attorneys of record within 20 days from the date of this Court's decision. The idea of a revised offer was suggested to the applicant by the Commission, through a letter dated 11 July 2019.

[5]

I commence first with some background facts.

BACKGROUND:

The applicant's case

[6]

The applicant is a descendant of Bhutana and Mickey Bisset who owned land in Port Elizabeth (Gqeberha). The said land was situated at Erf 477, Veeplaas (now known as Erf 477, Bethelsdorp) and measured 2,1414 hectares. The Bisset family was dispossessed of the right of ownership of property in 1972, as a result of racially discriminatory laws and practices in the country at the time.

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[7]

On or before 31 December 1998, one Nzimeni Dennis Bisset (deceased) duly lodged a land claim in respect of Erf 477, Bethelsdorp on behalf of the Bisset family. The Bisset family claim was captured under claim reference number 6/2/3/D/51/792/974/4. It was gazetted some 9 years from the date of claim – on 17 November 2006.

[8]

According to the applicant, he was paid a visit in 2008 by a representative from the Commissioner's office – one Ms Vanessa Daniels, who made him sign what purported to be a settlement agreement in respect of the land claim. Clause 4.3 of the agreement reads:

"The value of the claimed property viz. ERF 477 Veeplaas is R78 702.56 which constitutes the Restitution Award to the Bisset family . . ."

[9]

The applicant alleges that the content of the document was never explained to him. The answering affidavit on behalf of the Commissioner is deposed to by one Lebjane Harry Maphutha ("Mr Maphutha"). Mr Maphutha denies that Ms Daniels did not explain the content of the agreement to the applicant.

[10]

The difficulty with Mr Maphutha's denial is this: he does not allege that he was present during the relevant periods and/or meetings. He alleges authority to depose to the answering affidavit by virtue of the position that he holds (he is the Regional Commissioner). He alleges that the facts to which he deposes are within his personal knowledge but does not say on what basis. Where information is not within his personal knowledge, the allegation is that he acquired knowledge of it from documents within in control. There are no confirmatory affidavits provided. It is therefore difficult to conceive of the basis for denying what the applicant describes as an in-person interaction between himself and Ms Daniels.

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[11]

The applicant also alleges that he has never received the settlement payment. This allegation is not denied. In late 2008, he communicated to Ms Daniels by telephone that the Bisset family no longer wished to settle their claim, because the family was not involved in the determination of the property value, or in the determination of what a just and equitable compensation would be for them. Ms Daniels undertook to revert to the applicant about further process, but never did. These allegations are also not denied by the Commissioner.

[12]

The applicant instructed his present attorneys of record when it became apparent that the Commissioner's office was not getting back to him (and his family). Once instructed, the attorneys came upon a valuation report by Saratoga Trading CC ("Saratoga Report"), which placed the value of the property at R157 405.00, taking into account the consumer price index for the 2006 year. At any rate, the applicant's attitude is that Saratoga Trading is not authorized (by the Act) to recommend restitution compensation.

[13]

The applicant does not say when he instructed lawyers to act for him, but he narrates that his attorneys were invited by Mrs Laetitia Jansen of the from the Commissioner's office on 21 and 22 February 2019. The purpose of the invitation was for them to meet with the then Valuer General, Mr Christopher Gavor regarding the rejected offer. The meeting took place on 25 February 2019. At that meeting, the applicant's legal representatives were tasked by the Valuer General to propose an offer that took into account the loss suffered as a direct result of the dispossession. In turn, and on 8 March 2019, the applicant's attorney requested the Commissioner's office to appoint a professional who is better skilled and placed to undertake that task. This request was again made to the Commissioner's legal representatives on 2 April 2019.

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Respondent's case

[14]

The Commissioner's office filed an answering affidavit which raises two defences:

14.1

The first is that the Commissioner is not required by law to take into account the history of the dispossession and the hardship caused by the dispossession when determining an amount to offer as financial compensation.

14.2

The second is that the applicant was at all times aware of how the valuation process was conducted and how the compensation would be implemented. The kernel of this averment is that the applicant agreed with full knowledge of what the settlement entailed. I have observed above that the deponent does not say that he was directly involved with the process of settling with the applicant. The applicant's version is that Ms Daniels did not explain the agreement to him. It might be so that the applicant did not communicate to Ms Daniels that he did not know what he was being made to sign. But that takes the matter nowhere.

[15]

On this basis, the Commissioner contends that the applicant's review application is without merit and must be dismissed.

[16]

I turn now to deal in turn with the issues raised in this application.

NON-COMPLIANCE WITH THE RULES

[17]

The applicant alleges that the Commissioner did not complied with the rules of this Court that would allow them to participate in the proceedings. He states that the Commissioner did not comply with rule 25, in that he filed an

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answering affidavit without having filed a notice of appearance. This, according to the applicant, is a violation of rule 26(2), because only a participating party is entitled to deliver or file documents.

[18]

Rule 25(1) does indeed provide as follows:

"Any party that wants to participate in a case must, within 10 days after service on him or her of the process by which the case is initiated, file a notice of appearance based on form 10 of Schedule 1 and furnish a similar notice to the applicant or plaintiff, or if there is more than one, to the first applicant or plaintiff."

[19]

Rule 25(1) makes use of the peremptory "must". It follows that the filing of a notice of appearance is a prerequisite to participation in a matter before this Court. Rule 26(1) establishes that a party that has filed a notice of appearance is a "participating party" – a broad concept that allows for the involvement of interested parties who need not be cited. This is in contrast to the narrower approach of Rule 12 of the Uniform Rules of Court. [2]

[20]

Rule 26(2) sets out the powers that such a party has:

"Only a participating party in a case is entitled to—

(a)

deliver or file documents;

(b)

have documents delivered to him or her;

(c)

participate in any procedures before the hearing;

(d)

participate in or be represented at the hearing; and

(e)

apply for leave to appeal or participate in any appeal against any order of the Court, unless the Court orders otherwise."

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[21]

What I discern from these rules is that the delivery of a notice of appearance is a requirement if a party wishes to deliver or file documents. There is no indication that one respondent would be able to deliver a notice of appearance on behalf of another. Only the party who has delivered such a notice becomes a "participating party", and only a participating party can deliver documents. It was therefore irregular for notices of appearance to be delivered by...