Mpofana Community Land Claimants and another v Regional Land Claims Commissioner Kwazulu-Natal Province and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cowen J
• Judgment Date: 21 July 2023
• Citation: 2023 JDR 3078 (LCC)
• Hearing Date: 15 June 2023
• Docket Number: LCC 164/2021B

Cowen J:

1.

The applicants seek to compel compliance with an order made by this Court, per Justice Ncube, on 29 November 2021 (the 2021 order). They apply in terms of Rule 32(5)(b)(iv) of the Rules of this Court.

2.

The primary import of the 2021 order was to require the first respondent, the Regional Land Claims Commissioner (KwaZulu-Natal) to publish the first

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applicant’s land claim in the Government Gazette in terms of section 11(1) of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). [1]

3.

The application came before me on 15 June 2023. On 21 June 2023, I made an order in the matter, foreshadowed during the hearing. I also indicated during the hearing that I would subsequently provide my reasons. [2] My order was in the following terms:

‘1.

The first respondent is directed to comply with the order of this Court dated 29 November 2021 within ten (10) days of the date of this order by:

1.1

Causing notice of the claim lodged by the first applicant to be published in the Government Gazette;

1.2

Within 5 (five) days of its publication, advising the owners of the land claimed by the first applicant or any other party which the first respondent is of the opinion might be interested in the claim, that the land claimed by the first applicant has been published in the Gazette.

1.3

By making available the following information to the applicants;

1.3.1

The Gazette Notices;

1.3.2

The Research Reports;

1.3.3

The Validation Report;

1.3.4

The Verification Report.

1.4

This order must be complied with irrespective of any decision of the first respondent taken or communicated in terms of section 11(3) of the Restitution of Land Rights Act 22 of 1994.

1.5

The first respondent shall pay the applicants’ costs on a party and party scale.

1.6

The applicants are granted leave to apply to the Court on the same papers duly supplemented for further relief in the event that the order of this Court is not complied with.’

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4.

The effect of my order is to require compliance with paragraphs 5 to 8 of the 2021 order. It should be noted that an unusual feature of the 2021 order is that the prayers found in paragraphs 5 to 8 were granted ‘in the alternative’ to paragraphs 1 to 4. During the hearing, I heard the parties regarding the resultant import of the order. There is no dispute that paragraphs 5 to 8 were immediately enforceable, and were so understood by the parties.

5.

It is also common cause that the first respondent has not complied with paragraphs 5 to 8 of the 2021 order. The reason given is that after the 2021 order was made, the first respondent caused the first applicant’s land claim to be researched and investigated and after receipt of the research report, the first respondent decided that the claim should be dismissed in terms of section 11(3) of the Restitution Act. Section 11(3) provides: ‘A frivolous or vexatious claim may be dismissed by the regional land claims commissioner concerned.’ In the result, it was contended that there is no claim to publish.

6.

I concluded that the applicants were entitled to the relief they sought for three related reasons.

7.

First, on the affidavit before me, at the time the matter was heard, the first respondent had not communicated any decision to dismiss the claim to the claimants. Indeed, on the papers before me, it is not clear whether the decision has been formally taken. [3] It is established that a decision is not final until

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communicated to the affected party. [4] In Manok Family Trust, the SCA dealt with this issue and held, ‘[o]f course finality “is a point arrived at when the decision is published, announced or otherwise conveyed to those affected by it,” and a decision is revocable before it becomes final.’ [5] In that case, the regional commissioner had declined to accept a claim in terms of section 11(1) of the Restitution Act and that decision was communicated to the affected claimants thereby becoming final and irrevocable. In this case there had been no such communication of any decision. In the result, there is no reason why the first respondent should not comply with the court order.

8.

Secondly, it was not open to the first respondent merely to decline to comply with the 2021 order for over a year while an investigation into the claim ensued. As the Constitutional Court has recently re-emphasised, court orders must be complied with unless properly set aside: [6]

‘It cannot be gainsaid that orders of court bind all to whom they apply. In fact, all orders of court, whether correctly or incorrectly granted, have to be obeyed unless they are properly set aside. This, in addition to typifying common sense, the Constitution itself enjoins.’

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