Crystal Holdings (Pty) Ltd v The Regional Land Claims Commissioner - KwaZulu-Natal The Premier

• Jurisdiction: South Africa
• Judge: Madondo J
• Judgment Date: 02 November 2007
• Docket Number: 7150/2005
• Hearing Date: 28 August 2007
• Court: Natal Provincial Division

Madondo J:

INTRODUCTION

[1]

On 29 November 2005 the Applicants by way of an urgent application sought and obtained an order in the following terms:-

"1.

That a rule nisi do issue calling upon the Respondents to show cause, if any, on the 6th day of February 2006 at 9:30 am or so soon there after as the matter be heard why an order should not be granted in the following terms:-

(a)

That a declarator do issue that the shareholders agreement entered into between the Gayede Community Trust and Crystal Holdings (Pty)Ltd in respect of Arcfin Trading 58 (Pty) Ltd on 21 September 2005 was validly concluded and is of full force and effects;

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(b)

That a declarator do issue that the shareholders agreement entered into between the AmaNgcolosi Community Trust and Crystal Holdings(Pty) Ltd in respect of Arcfin Trading 59 (Pty) Ltd on 21 September 2005 was validly concluded and is of full force and effect;

(c)

That the First to Fourth Respondents are interdicted and restrained from unlawful interfering with or preventing the fulfilment of the terms or performance of either of the shareholders agreements referred to in paragraph (a) or (b) above;

(d)

That the First to Fourth Respondents are interdicted and restrained from:

i)

In any way unlawfully preventing the First Applicant or Arcfin Trading 58(Pty) Ltd or Arcfin trading 59 (Pty)Ltd from managing the businesses in any of the farms which appear in the schedules annexed hereto, marked "A" and "B";

ii)

Instructing or inciting any person to unlawful interfere with or prevent the fulfilment of the terms or performance of either of the shareholders agreements referred to in paragraphs (a) and (b) above;

iii)

Defaming the First Applicant or any trustee of either the Gayede Community Trust or the AmaNgcolosi Community Trust;

iv)

Causing or inciting any employee on any of the farms which appear in the schedules annexed hereto marked "A" "B" to unlawfully stop work or to become involved in any unlawful strike or protest;

v)

Holding out or representing to any person that the shareholders agreements referred to in paragraphs (a) and (b) above are not duly concluded, valid and binding save for the purpose of opposing the main application and pursuing the counter application;

(e)

That the First Respondent be and is hereby ordered to pay the costs of this application, in the event of it being unopposed and that the costs of this application be paid by any Respondent which unsuccessfully opposes the application in the event of it being opposed."

[2]

Only the First, Second, Third and Fifteenth Respondents opposed the application and in the counter thereto, they have lodged an application in which they seek an order in the following terms:-

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"(a)

First Applicant is interdicted and restrained from implementing any terms of the shareholders Agreements, between itself and AmaNgcolosi Community Trust and Gayede Community Trust ("the trusts"), over the land restored to the trusts by the First, Second and Fifteenth Respondents in terms of the Restitution of Land Rights Act no. 22 of 1994, as amended.

(b)

The First Applicant is interdicted and restrained from harvesting any sugar or timber on the properties owned by the trust.

(c)

The First Applicant is interdicted and restrained from taking any proceeds of any sugarcane or timber, belonging to the trusts, supplied to the mills, namely UCL, Noordsburg, Ushukela, Darnall and NCT.

(d)

That the Shareholders Agreements signed and concluded between the trusts and the First Applicant at Kranskop on 21 and 25th September 2005 or thereafter be declared null and void.

(e)

The First Applicant is ordered to pay costs of this Application."

For the sake of clarity I would refer to the parties as the Applicants and Respondents respectively, as cited in the main application.

[3]

The First Applicant is Crystal Holdings (Pty) Ltd, a duly registered and incorporated company which had its principal place of business at No.3 Anerly Road, Parktown, Johannesburg.

[4]

The Second Applicant is Jabulani Muntukaboni Dlomo an adult male Inkosi residing in Kranskop District, KwaZulu-Natal.

[5]

The Third, Fourth, Fifth, Seventh and Ninth Applicants are adult male persons residing in the Kranskop District, KwaZulu-Natal.

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[6]

The Sixth, Eighth and Eleventh Applicants are adult female persons residing in Kranskop, KwaZulu-Natal.

[7]

The Second to Tenth Applicants are cited in their personal capacities as members of the Amakhabela Claimant Community as well as in their capacities as individual trustees of the Gayede Community Trust, a trust duly registered by the Master of the High Court Pietermaritzburg, under member IT997/04, which has its chosen and registered domicilium at execution at 271 Prince Alfred Street, Pietermaritzburg.

[8]

The Eleventh Applicant is Bhekuyise Antony Goge, an adult male Inkosi residing in Kranskop District, KwaZulu-Natal.

[9]

The Twelfth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Nineteenth, Twentieth and Twenty First Applicants, are adult male persons residing in Kranskop District KwaZulu-Natal.

[10]

The Thirteenth, Eighteenth and Twenty Second Applicants, are adult female persons residing in Kranskop District KwaZulu-Natal.

[11]

The Eleventh to Twenty Second Applicants are cited herein in their personal capacities as members of the Ngcolosi / Mtunjambili Claimant Community as well

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as in their capacities as individual trustees of the AmaNgcolosi Community Trust, a trust duly registered by the Master of the High Court (Pietermaritzburg) under number IT1099/04, which has its chosen and registered domicilium citandi et executandi at 271 Prince Alfred Street, Pietermaritzburg.

[12]

The First Respondent is the Regional Land Claims Commissioner KwaZulu-Natal, a Regional Land Claims Commissioner appointed in terms of Section 4 of the Restitution of Land Rights Act N0. 22 of 1994, who has her offices at 2nd Floor, African Life Building, 200 Church Street, Pietermaritzburg.

[13]

The Second Respondent is Thabatha Shange an adult female who is employed by the Department of Land Affairs as the Regional Land Claims Commissioner for KwaZulu-Natal at 2nd Floor, African Life Building, 200 Church Street, Pietermaritzburg, cited herein in her personal capacity.

[14]

The Third Respondent is the Chief Land Claims Commissioner appointed in terms of the Restitution Act whose offices are at 13th Floor, 184 Jacob Marë Street, Tshwane, Gauteng.

[15]

The Fourth Respondent is Matho Nene, an adult lawyer who is employed at the offices of the Richmond Local Municipality, Richmond, KwaZulu-Natal.

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[16]

The Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Thirteenth, and Fourteenth Respondents, are adult male persons residing in Kranskop District, KwaZulu-Natal.

[17]

The twelfth Respondent, Euginia Lungile Dube, is an adult female person residing in Kranskop District, KwaZulu-Natal.

[18]

The Fifteenth Respondent is the National Minister of Agriculture and Land Affairs, cited herein in her official capacity as a Government Minister whose offices are at Old Building, Jacob Marë Street, Tshwane, Gauteng.

[19]

The Sixteenth Respondent is MEC for Housing, Local Government and Traditional Affairs, KwaZulu-Natal, cited herein in his official capacity as a Provincial MEC, whose offices are at Tokram House, 2 Aliwal Street, Durban.

[20]

The Thirteenth to Sixteenth Respondents are cited as interested parties against whom no relief is sought.

[21]

The Amakhabela and Ngcolosi / Ntunjambili Communities have both successfully claimed land in terms of the Restitution of Land Rights Act 22 of 1994 as amended(the Restitution Act). The land claimed by the Amakhabela Community is described in annexure "A" and the land claimed by the Ngcolosi / Ntunjambili Community is

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described in annexure "B" to the papers.

THE BACKGROUND

The facts of this case are common cause and they can be stated in simple terms.

[22]

On 21 January and 14 October 1998, the Ninth Respondent, Vusumuzi Eugene Mbatha and one Catherine Thandi Ngubane acting on behalf of the AmaNgcolosi Community and Amakhabela Communities (Claimant Communities) lodged claims for the restitution of land rights in respect of certain farms in the Kranskop area under the Restitution Act.

[23]

On receipt of the claims, the First Respondent and Second Respondents respectively, investigated and registered them on 7 March 2003. Since the claims met the minimum criteria set out in Section 2 of the Restitution Act the First Respondent accepted them.

[24]

During May 2004 the AmaNgcolosi and Gayede Trusts (the trusts) were established as the vehicles to acquire rights in the restituted land and immovable property, hold, develop or improve such land in common for the benefit of and on behalf of the Claimant Communities. The Master of the High Court of Natal Provincial Division, acting in terms of Section 6(1) of the Trust Property Control Act No. 57 of 1988 (Trust Property Control Act) issued letters of authority to the trusts on 23 September

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2004 respectively. Copies of such letters are annexures "C2" and "D2" respectively to the Applicants' papers.

[25]

After negotiations with the landowners, the State purchased certain properties on behalf of the Claimant Communities and transferred them to the trusts. The purchased properties were commercially viable timber and sugar cane farms. The properties in question appear in annexures "A" and "B" to the Applicants' paper respectively.

[26]

Given the commercial value of the properties and the unsophisticated communities to which land had been...