Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others

• Jurisdiction: South Africa
• Judge: Scott JA, Brand JA, Cloete JA, Heher JA and Hurt AJA
• Judgment Date: 28 November 2007
• Citation: 2008 (2) SA 184 (SCA)
• Docket Number: 171/06
• Hearing Date: 01 November 2007
• Counsel: BS Spilg SC (with G Shakoane) for the applicants NM Davis for the respondents
• Court: Supreme Court of Appeal

Cloete JA:

Introduction

[1] On 26 July 2005 Gildenhuys J presiding in the Land Claims Court granted an order in terms of the Restitution of Land Rights Act 22 of 1994 (the Act). The order directed the Minister of Land Affairs and Agriculture (the first applicant before this court and the first E respondent in the court a quo), the Director-General, Land Affairs (the second applicant before this court and the second respondent in the court a quo) and the Department of Land Affairs (the fourth applicant before this court and the fourth respondent in the court a quo) to pay, upon registration of transfer, the agreed purchase prices of properties. The properties had been purchased by the F department from the D & F Wevell Trust (the first respondent before this court and the first applicant in the court a quo) and from Mr JF Clarke, Mrs Rosemary Clarke and Ntsingani Farms CC (respectively the second to fourth respondents in this court and the applicants in the court a quo). No order was made against the Chief Land Claims G Commissioner (the third applicant before this court and the third respondent in the court a quo). It would be convenient to refer to the parties as in the court below or by name.

[2] On 6 December 2005 the learned judge dismissed an applica- tion for condonation for the late delivery of the respondents' application for leave to appeal and on 3 March H 2006 he dismissed the application for leave to appeal against that latter decision. The respondents applied for leave to appeal to this court. That application was also out of time. The respondents' application for condonation in this regard was ultimately not opposed. This court directed on 28 August 2006 that the application for leave to appeal the order of the Land Claims Court of 6 December 2005 (refusing condonation) be referred for oral I argument; [1] and that

Cloete JA

should the application succeed, the parties should be ready to argue whether this court could A deal with the appeal on the merits [2] and, if so, the merits of the appeal.

[3] The first question is therefore whether this court should grant the respondents leave to appeal against the order of the Land Claims Court given on 6 December 2005, in terms of which it dismissed the respondents' application for condonation for the B late delivery of their application for leave to appeal against the order given on 26 July 2005. In order to consider this question, it is necessary to set out the relevant facts that led to the order of 26 July which the respondents wish to have set aside, and the reasons for the delay in the application for leave to appeal that C resulted in a preliminary hurdle being placed in their path. It will also be necessary to consider the respondents' prospects of success in an appeal against the order of 26 July 2005, in the context of the application for condonation.

The contracts

[4] On 14 October 2003 the Wevell Trust entered into a written D agreement with the Department of Land Affairs. On 30 September 2003 the other applicants - Mr and Mrs Clarke, and their son who represented the close corporation in which he held a 100% interest, to all of whom it will be convenient to refer as 'the Clarkes' - also entered into an agreement E containing identical provisions to the Wevell Trust agreement. In terms of the agreements the applicants sold certain farms situated in the Badplaas area to the department for an agreed price which was payable on the date of registration of transfer of the properties into the name of the department's nominee, the Ndwandwa Community Trust. F Registration of transfer had to take place as soon as possible once the department had undertaken to pay the full purchase price; a letter of intent to this effect had been issued and other defined amounts had been paid. The letter of intent had to be issued within 30 days of the approval of the agreement by the Minister of Agriculture and Land Affairs. Pending registration of transfer, the applicants were liable for payment of the following: G

(a)

all rates, taxes and levies (if any) in respect of the property;

(b)

electricity and service rates, including levies to the town council, in respect of the property; and H

(c)

premiums for the insurance of the property.

Delay in performance of the contracts

[5] The minister's approval was necessary in terms of s 42D of the Act, the relevant part of which provides: I

(1)

If the Minister is satisfied that the claimant is entitled to restitution of a right in land in terms of section 2, and that the claim for such restitution was lodged not later than 31 December 1998, he or she

Cloete JA

may enter into an agreement with the parties who are interested in the claim providing for one or more of the following: A

(a)

The award to the claimant of land . . . .

. . .

(f)

such other terms and conditions as the Minister considers appropriate.

Such approval was given, in the case of the Wevell Trust, in terms of a letter dated 21 April 2004 and the price fixed was R3 362 B 700; and in the case of the Clarkes, in terms of a letter dated 1 April 2004, and the purchase price (which was ultimately fixed after further negotiation) was R10 192 800. [3] Each letter of approval, signed by the Regional Land Claims Commissioner: Mpumalanga, contained the statement: C

Kindly advise your conveyancers to proceed with preparation of transfer documents.

The letters of intent were issued.

[6] The conveyancer in each case was the applicants' attorney, Ms Wellmanns. In the Wevell Trust matter, on 10 September 2004 - the day before registration was to have taken D place - the attorney received a letter from the office of the Chief Land Claims Commissioner, stating:

We hereby request your office to withdraw the transfer from the Deeds Office. An investigation is currently in process and the outcome will be within three weeks. E

The attorney received an identical letter on the same date in respect of the Clarke matter; there, documents had also been lodged in the Deeds Office and were 'on preparation', which means that registration was about to take place. These transfer documents were also withdrawn from the Deeds Office by the attorney. Correspondence followed. F

[7] On 5 November 2004 the applicants' attorney pointed out in letters addressed to the minister, the Director-General, Land Affairs and the Chief Land Claims Commissioner that the three-week period had long since expired and that nothing had in the interim been communicated to her or her clients. She said: G

In the circumstances my client is left with no alternative but to advise that should you not give me written notification that I can arrange to re-lodge within 14 days of the receipt of this letter, my client will institute proceedings in the Land Claims Court . . . for an order compelling you to do so and thereafter to pay the purchase price together with costs & interest a tempore morae. H

It is regretted by my client that this step has had to be taken, but the delay is prejudicing him severely, as well as causing considerable prejudice to the Community which has been allocated the farms.

[8] The replies by the Chief Land Claims Commissioner dated 15 November 2004 said: I

We refer to your letters of 5th November 2004 and would like to advise as follows:

Cloete JA

(1)

We confirm that the Chief Land Claims Commissioner: Mr Tozi A Gwanya has informed you that he would let you know within 3 weeks of the outcome of the investigation.

(2)

Since the letter to yourselves by the Chief Land Claims Commissioner, it has transpired that the investigations will take longer than it was initially anticipated.

(3)

Unfortunately we are unable to give definitive dates by which B the investigations would be expected to be completed, suffice to say that we would like the process to be thorough and satisfactory.

(4)

We regret the inconvenience which is being caused to the stakeholders in this claim including your clients, however we believe that for the process to be beyond reproach we are required to undertake C proper investigations which we are currently undertaking.

(5)

We are accordingly requesting you to exercise patience until the process is completed.

[9] Faced with the delay the applicants' attorney wrote on 22 November 2004: D

My clients and the community are being severely prejudiced by the protracted delays.

My clients would therefore be willing, since you are unable to confirm a date by which your investigations would be complete, to accept your written undertaking that your Department would pay to my clients on registration of transfer, interest on the sum of [the E purchase price] at bank overdraft rates from 20th September 2004 [in the Wevell Trust matter; 13 September 2004 in the Clarke matter] (the date by which transfer could have been registered had you not instructed me to withdraw the documents from the Deeds Office), to date of payment, both days inclusive. F

However, my client hereby nonetheless without prejudice, reserves his rights to institute proceedings in the Land Claims Court within 14 days from 9th November 2004, as set out in the penultimate paragraph of my letter to you of 5th November 2004.

The suggestion made by the applicants' attorney seems to me to have G been perfectly reasonable. It was ignored.

The applications

[10] Applications on notice of motion dated 9 December 2004 were brought in both matters. The relief sought in each matter was an order H directing the respondents:

(1)

Within seven days of the order to authorise and instruct the applicants' attorney to lodge all the required documents with the office of the Registrar of Deeds, Pretoria, for the registration of the farms into the name of the Ndwandwa Community Trust; I

(2)

'forthwith on or after the date of...