Tshakuma Community Trust and another v Regional Land Claims Commissioner for the Province of Limpopo and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Ncube J |
| Judgment Date | 11 July 2023 |
| Citation | 2023 JDR 2532 (LCC) |
| Hearing Date | 04 May 2023 |
| Docket Number | LCC194/2013 |
| Court | Land Claims Court |
Ncube J:
Introduction
This is an application for a review. The applicants seek a review and setting aside of the decision of the Regional Land Claims Commissioner, (“RLCC”) Limpopo, to accept and approve the land claim lodged by the fourth respondent (“the Dombo Community”). The fourth, fifth and sixth respondents oppose the application. The RLCC and other two Government respondents do not oppose the application and did not file answering affidavits, but they filed Heads of Argument. Mr Seneke, Counsel for Government respondents made submissions which were largely in support of the Dombo Community.
Background Facts
On 31 May 1995, Mr Butshiba Daniel Dombo, lodged a claim with the RLCC for the restitution of land rights under the Restitution of Land Rights Act, Act No 22 of
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1994 (“the Act”). The claim was lodged on behalf of the Dombo Community. The claimed land was described in the claim form as the “Luvubu Dandani Ha Dombo Zoutpansberg District”. On 06 January 1998, Paramount Chief Andries Mashungu Madzivhandila, lodged a claim for the restitution of land rights with the RLCC on behalf of the Tshakuma Community (“the Tshakuma Community”). The land claimed by the Tshakuma Community was described in the Addendum to the land claim form as follows: -
“BAROTTA 17-1 Lt
TSAKOMA 18-Lt
VALETTA 16-Lt
PORTIONS OF LEVUBU 15 Lt
PORTIONS OF LAATSGEVONDEN 19 + 20 Lt
PORTIONS OF ENTABENI 251 Mt”
The Tshakuma Community Claim was investigated by the RLCC and found complaint with the Act. [1] The Tshakuma Community Claim was approved by the RLCC and published in the Government Gazette. [2] The same land claimed by the Tshakuma Community was also claimed by the Dombo Community. Clearly the RLCC was dealing with competing claims. Some of the properties claimed by the Dombo Community were already restored to Tshakuma Community. Consequently, the RLCC facilitated agreement between the two communities to solve the problem as provided for in the Act. [3] The agreement was reached between the two communities. The
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agreement was to merge the two claims into one claim under the Tshakuma Community land claim.
Pursuant to the merger, the Tshakuma Community established and registered a Trust (“Tshakuma Community Trust”) which was going to acquire and administer the restored land. The trustees were elected from both Tshakuma and Dombo Communities. According to the letter of authority, there were going to be twelve (12) trustees, eight (8) from Tshakuma Community and four (4) from Dombo Community. Trust funds were later misappropriated and as a result, two of the trustees from the Dombo Community were suspended. Subsequent to the suspension of the trustees belonging to the Dombo Community, the Trust received a letter from the Dombo Community wherein all the Dombo representatives in the Tshakuma Community Trust were withdrawing from the merger agreement. The RLCC appointed a mediator to resolve the problem. The mediation process failed. The Dombo Community revived its original land claim.
The RLCC investigated the Dombo Community Claim and found it to be compliant. The Dombo Community Claim was researched by Gloria Ratishitanga, (“Miss Ratshitanga”) who was RLCC’s project co-ordinator. Miss Ratitshanga recommended to the RLCC to accept and approve the Dombo Community Claim. She further recommended that the Dombo Community be awarded portions of the farm Levubu 15 LT and that the RLCC had to negotiate with the Dombo Claimants with regard to those portions already restored to Tshakuma Community. Finally, Miss Ratitshanga recommended to the RLCC to approve the amendment of Gazette No 21074 of 2000, so as to include the Dombo Community and “withdraw those which
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were gazetted to Tshakuma erroneously.” I think she meant those portions which she says were erroneously gazetted to Tshakuma. The recommendation is dated 14 September 2012.
The RLCC, Mr Lebjane Maphutha, took a decision to accept and approve Miss Ratitshanga’s recommendations and he published the Dombo Community Claim in Notice No 899 of 2012, published in Government Gazette No 35831 dated 2 November 2012. In that publication, it is indicated that fifteen (15) properties are currently owned by the Tshakuma Community Trust. Those properties have already been restored to the Tshakuma Community. These are the properties which Miss Ratitshanga recommended that they be taken away from Tshakuma Community since, according to her, they were erroneously restored to the Tshakuma Community.
Issues
The main issue for the determination is whether the decision by the RLCC to accept and approve the recommendation of Miss Ratitshanga is reviewable. If the decision is found to be reviewable, whether the decision was valid, rational and in accordance with the prescripts and the law. The final and in my view, the most important issue is the status of the settlement agreement to merge the claim of the Dombo Community with that of the Tshakuma Community and other competing claimants. Mr Whittington, Counsel for the Dombo Community, is of the view that the decision of the RLCC is not reviewable since it was an internal process. That view is shared by Mr Seneke who insists that the applicants should have attacked the publication of the Dombo Community Claim and not Miss Ratitshanga’s report which is the internal process.
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I agree with Mr Matumba, Counsel for the Tshakuma Community, that the publication of the Dombo Community Claim was, an ultimate manifestation of the decision to accept and approve Miss Ratitshanga’s recommendation. Based on the recommendation by Miss...
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