THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:       655/2010
In the matter between:

EMFULENI RESORTS (PTY) LTD                       FIRST APPELLANT

SUN INTERNATIONAL (CISKEI)
LIMITED
SECOND APPELLANT
and

MAZIZINI COMMUNITY                                    FIRST RESPONDENT

MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM                                      SECOND RESPONDENT

REGIONAL LAND CLAIMS
COMMISSIONER, EASTERN CAPE                THIRD RESPONDENT

and

PRUDHOE COMMUNITY                      INTERVENING APPLICANT

Neutral citation: Emfuleni Resorts v Mazizini Community (655/2010)
[2011] ZASCA 139 (23 September 2011)

Coram:
Harms AP, Mthiyane, Snyders, Bosielo JJA and Petse
AJA

Heard:
31 August 2011
Delivered:
23 September 2011

Summary: Application for postponement of an Appeal ─ Governing principles
discussed and application refused.
Competing land claim not brought to attention of the Land Claims Court ─ Order
granted by it rescinded and matter remitted for consideration of competing claim.
Regional Land Claims Commissioner ordered to pay costs.

_____________________________________________________________________

ORDER

On appeal from: Land Claims Court, Randburg (Bam JP sitting as court
of first instance):

1.
The third respondent‟s (the RLCC) application for postponement
of the appeal is dismissed with costs.
2.
The application by the Prudhoe Community for the rescission of
the judgment under case no LCC 23/07 is upheld with costs.
(a)
The appeal is struck from the roll.
(b)
The costs of the appeal are to be paid by the third respondent
(the RLCC).
4.
The third respondent is directed to pay the costs relating to the
proceedings in the LCC in case 23/07.
___________________________________________________________

JUDGMENT

MTHIYANE JA (HARMS AP, SNYDERS, BOSIEO JJA and
PETSE AJA CONCURRING)

Introduction
[1] The appeal arose from the decision of the Land Claims Court (Bam
JP) in which Mazizini Community (the first respondent) was, in terms of
s 35(1) of the Restitution of Land Rights Act 22 of 1994 (the Act),
awarded land comprising the Fish River Sun Hotel Complex. The court
made an order in the following terms:
„1.
The Mazizini Community is entitled to the restoration of the land which
comprises the Fish River Sun Complex being presently a hotel and golf resort which

borders the Eastern Bank of the Fish River in the Eastern Cape and the Indian Ocean
in terms of „the Act‟ in settlement of the claim.
2.
The claimant community is hereby granted leave through its representatives to
obtain transfer of ownership of the above property to itself or to such other entity as
its constitution allows.
3.
The third respondent is to include the claimant community as a beneficiary of
a State support programme for development.
4.
There is no order as to costs.‟

[2] The current owners of the land, the first and second appellants,
were granted leave by the court a quo to appeal to this court. Their attack
on the court‟s judgment was confined to the question of whether the order
granted was appropriate. In their appeal the appellants contend for a
compensatory award. The appeal was set down for hearing on 31 August
2011.

[3] Prior to the hearing of the appeal another community, the Prudhoe
Community, who were not involved in the proceedings in the court a quo,
lodged an application to this court on 19 May 2011 seeking an order in
the following terms:
„1.
Rescinding the order of the Land Claims Court made by the Honourable Mr
Justice Bam under case number LCC 23/07 on 12 March 2010 awarding restoration of
Farm 242, Farm 243 and Farm 235 in the Peddie district to the first respondent;
2.
Directing the third respondent within 3 months of the date of this order, to
refer the applicant‟s land claim along with any other competing land claims in respect
of the land claimed by the applicant, to the Land Claims Court for adjudication;
3.
Remitting the land claim of the Mazizini Community to the Land Claims
Court for adjudication simultaneously with, or taking into account, competing claims
in respect of the land claimed by the Mazizini Community;
4.
Granting further or alternative relief;
5.
Directing that the second and third respondents pay the costs of the
application.‟

The application for a postponement of the appeal and the rescission
application.
[4] Before the commencement of argument on the application for
rescission and remittal lodged by the Prudhoe Community, an application
for a postponement of the appeal and the rescission application were
made by the third respondent. The reason given for the indulgence sought
was that the third respondent needed time to determine the validity of the
claim by the Prudhoe Community. Mr Gladman Tom (Mr Tom), a
representative who deposed to an affidavit on behalf of the Prudhoe
Community, lodged a claim with the office of the third respondent on 10
December 1998, before the deadline which was set at 31 December 1998.
The Mazizini Community‟s land claim was lodged at more or less the
same time. The third respondent proceeded to investigate and pursue the
claim of the Mazizini Community, the first respondent, and did nothing
about the claim of the Prudhoe Community apart from publishing a notice
in the Government Gazette in terms of s11 of the Act.

[5] The office of the Regional Land Claims Commissioner has now
changed hands. The previous commissioner was Ms Linda Faleni. Her
successor is Mr Sanjay Singh, the deponent for the third respondent.
Neither of them are able to proffer any explanation why nothing was done
about the claim of the Prudhoe Community. What Mr Singh says in his
affidavit in support of the application for a postponement is that he needs
time „to enable [him] to verify the information in the file, interview the
relevant officials previously involved in processing the matter and [to]
determine the status of the claim lodged by Mr Tom in December 1998
and how it impacts on the land that is the subject of the appeal.‟ He is
therefore in no position to explain why the claim of the Prudhoe
Community (for a period of some twelve or thirteen years) was not

processed or the failure of that office to respond to the ongoing
correspondence which it had received from the Legal Resources Centre.
Nor is he in a position to explain why the court a quo and the other
interested parties were not appraised of the existence or potential of a
competing claim.

[6] Instead of explaining the delay the third respondent devoted much
of his time in argument before us, attempting to impugn the validity of
the Prudhoe Community‟s claim. The primary attack was premised on the
assertion that the Community‟s claim was not validly lodged, in that Mr
Tom, had submitted an incomplete claim form. Counsel for the third
respondent was hard pressed to explain why this point was not raised at
the time when the form was handed over to the third responded in 1998 ─
why only now ─ some 13 years later.

[7] When counsel was pressed on why Mr Tom was not assisted with
the completion of the blank form, if this was considered to be a problem,
no explanation was forthcoming. In terms of the Act the third respondent
is obliged to assist claimant communities. In terms of s 6(1)(b) of the Act
the third respondent is required to „take reasonable steps to ensure that
claimants are assisted in the preparation and submission of claims‟. The
third respondent was unable to say what steps, if any, were taken to assist
Mr Tom with the lodgement of the claim as required by s 6(1)(b) of the
Act. Having failed to render such assistance, I do not think it lies in the
mouth of the third respondent to argue that the Prudhoe Community
claim was not validly lodged. It is clear from the preamble to the
Restitution of Land Rights Act that it is national legislation which was
designed to give effect to the Constitutional obligation to provide „for
restitution of property or equitable redress to a person or community

dispossessed of property . . . as a result of past racially discriminatory
laws or practices.‟ The third respondent‟s reliance on the incomplete form
is an opportunistic and futile attempt to cover up for the dereliction of
duty by the officials concerned, as the claim in respect of one farm, 203,
was accepted and published in the Government Gazette.

[8] The application for a postponement was opposed by the appellants
and the Prudhoe community. They submit that it was based upon an
incorrect premise. They argued further that it is not for this court to, at
this stage, debate the validity or otherwise of the Prudhoe Community‟s
claim. Nor is it the function of the Regional Land Claims Commissioner
to adjudicate upon the merits of claims for restitution. According to the
appellants what is required, is for a claimant to put up an arguable case.1
This, they submit, the Prudhoe Community has done and are therefore
entitled to have their claim considered by the Land Claims Court. I agree.

[9] It has also not been shown what purpose the postponement of the
application would serve other than to delay the finalisation of the matter
that has dragged on for more than a decade. Public interest requires that
there should be an end to litigation.2 More importantly the third
respondent has failed to show that there is any justification for the
postponement. The principles governing the granting or refusal of a
postponement were summarized by the Constitutional Court in National
Police Service Union & others v Minister of Safety and Security & others
2000 (4) SA 1110 (CC) para 4 where it was said:
„The postponement of a matter set down for hearing on a particular date cannot be
claimed as of right. An applicant for a postponement seeks an indulgence from the

1 Mahlangu NO v Minister of Land Affairs & others 2005 (1) SA 451 (SCA) para 13.
2 McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) para 28.

Court. Such postponement will not be granted unless this Court is satisfied that it is in
the interests of justice to do so. In this respect the applicant must show that there is
good cause for the postponement. In order to satisfy the Court that good cause does
exist, it will be necessary to furnish a full and satisfactory explanation of the
circumstances that give rise to the application. Whether a postponement will be
granted is therefore in the discretion of the Court and cannot be secured by mere
agreement between the parties. In exercising that discretion, this Court will take into
account a number of factors, including (but not limited to) : whether the application
has been timeously made, whether the explanation given by the applicant for
postponement  is full and satisfactory, whether there is prejudice to any of the parties
and whether the application is opposed.‟ (Emphasis added.)

[10] The threshold requirement that an applicant for a postponement has
to meet was put even more strongly in McCarthy Retail Ltd v
Shortdistance Carriers CC 2001 (3) SA 482 (SCA) para 28 where Schutz
JA said:
„. . . [I]n order for an applicant for a postponement to succeed, he [or she] must show
a “good and strong reason” for the grant of such relief.‟

[11] In my view the third respondent has not made out a case for the
granting of a postponement and has failed to meet any of the threshold
requirements laid down for the granting of such relief.

Application for rescission and remittal
[12] Turning to the Prudhoe Community‟s application for the rescission
and remittal of the matter, the application is not opposed by the
appellants. They consider the relief sought as being the most appropriate
in the circumstances. The appellants argue that had the third respondent
properly investigated the matter from the outset, the parties would not be
in the position in which they find themselves now – a fact which has a
bearing on the question of costs.

[13] As expected the Prudhoe Community‟s rescission and remittal
application is opposed by the third respondent. The third respondent‟s
primary submission is that the Prudhoe Community failed to show that a
valid claim was lodged. It was submitted that validity or otherwise of the
claim is a necessary pre-condition for the granting of the rescission
application. I disagree. It is not for this court at this stage to determine the
validity of the Prudhoe Community‟s claim. Disputes as to the validity of
claims is a matter ultimately for the Land Claims Court to decide.3 On the
papers before us it is clear that the Prudhoe Community has at the very
least a potential claim on the very land in respect of which the court a quo
granted a restoration order.

[14] An application for rescission may be brought under either s 11(5)
and (5A) or s 35(11), although the application form ex facie complies
with s 11, it is not necessary to decide the issue because it clearly satisfies
the provisions of s 35(11).The relevant portion of which reads as follows:
„(11) The Court may, upon application by any person affected thereby and subject
to the rules made under section 32, rescind or vary any order or judgment granted by
it
(a)
. . .
(b)
which was void from its inception or was obtained by fraud or mistake
common to the parties;
. . .
. . .
Provided that where an appeal is pending in respect of such order, or where such order
was made on appeal, the application shall be made to the Constitutional Court or the
Appellate Division of the Supreme Court, as the case may be.‟

3 Afriblaze Leisure (Pty) Ltd and others v Commission on Restitution of Land Rights [2010] 3 All SA
559 (LCC) at 560.

[15] On the facts it is clear that neither the judge a quo nor the parties
involved in the matter in the Land Claims Court were appraised of the
Prudhoe Community‟s competing claim or their potential claim. It is the
third respondent who should have done that. As a result of this non-
disclosure all the other interested parties including the court a quo
laboured under the mistaken belief that the Mazizini Community were the
sole claimants of the land in question. There can be no doubt that the
Prudhoe Community have shown that they are „affected‟ by the order
made by the Land Claims Court as provided for in s 35(11) of the Act.

Conclusion
[16] In sum it is not in the interests of justice to postpone the appeal. On
the contrary it would be in the interests of all the parties concerned in this
matter if the order of the court a quo were set aside and to have the matter
remitted to the court a quo for reconsideration.

Costs
[17] I turn briefly to the question of costs. It is clear that had the RLCC
performed its statutory duties properly the appeal would have proceeded
and the matter would not have had to be remitted to the LCC. Therefore
the RLCC itself would not be seeking a postponement of the appeal. The
blame for the striking off of the appeal from the roll, the rescission and
remittal of the matter and the costs incurred as a result of all of this must
inevitably fall squarely on the shoulders of the RLCC. So also is its
failure to bring the competing or potential claim to the attention of Judge
President Bam, the presiding officer in the court below. It follows that all
the costs incurred in this matter should be borne by the RLCC.

Order
[18] In the result the following order is made:
1.
The third respondent‟s (the RLCC) application for postponement
of the appeal is dismissed with costs.
2.
The application by the Prudhoe Community for the rescission of
the judgment under case no LCC 23/07 is upheld with costs.
(a)
The appeal is struck from the roll.
(b)
The costs of the appeal are to be paid by the third respondent
(the RLCC).
4.
The third respondent is directed to pay the costs relating to the
proceedings in the LCC in case 23/07.

___________________

K K MTHIYANE

JUDGE OF APPEAL

APPEARANCES
For Appellant:
RG Buchanan SC
AD Dodson (for Prudhoe Community)
JR Brickhill
Instructed by:
Boqwana Loon & Connellan, Port Elizabeth
Webbers, Bloemfontein

For 1st Respondent:
XS Nyangiwe
Instructed by:
Makhanya Inc, East London
Matsepes Inc, Bloemfontein

For 3rd Respondent:
SM Mbenenge SC

Instructed by:

The Office of the State Attorney, Mthatha
The Office of the State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
23 September 2011

STATUS: Immediate

EMFULENI RESORTS V MAZIZINI COMMUNITY (655/2010) [2011]
ZASCA 139 (23 September 2011)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) struck from the roll an appeal by the appellants
and remitted the matter to the Land Claims Court for adjudication. The SCA also dismissed,
with costs, an application by the Regional Land Claims Commissioner (the third respondent)
to have the appeal postponed.

The salient issues before the SCA were whether the award granted to the first respondent
(the Mazizini Community) in the Land Claims Court (LCC) were appropriate, in light of a
competing claim by another community (the Prudhoe Community), and secondly whether
the third respondent was entitled to a postponement of the appeal.

The first and second appellants owned land which comprised the Fish River Sun Hotel
Complex. The first respondent brought an application in the LCC for the restoration of the
disputed land, which the LCC granted. The appellants thereafter appealed to the SCA for a
compensatory award to be made in their favour. Prior to the hearing of this appeal the
Prudhoe Community, not party to the proceedings in the LCC, lodged an application to the
SCA, praying for the rescission of the order of the LCC; the remittal of the matter of both
parties to the LCC for re-adjudication and an order directing the second and third
respondents to pay the costs of the application. Prior to the commencement of argument,
the third respondent brought an application for the postponement of the appeal and the
rescission application. The reason tendered by the third respondent was that it needed time
to determine the validity of the application by the Prudhoe Community. The claims of both
the Mazizini and Prudhoe communities were lodged more or less at the same time with the
third respondent. The third respondent only attended to the claim of the Mazizini
Community, completely disregarding that of the Prudhoe Community. The representatives of
the third respondent were unable to provide any plausible explanation for their neglect of the
Prudhoe Community’s claim some 13 years ago.

In arriving at their decision, the SCA stated that the Restitution of Land Rights Act 22 of
1994, makes provision for the third respondent to take reasonable steps to ensure that
claimants are assisted in the preparation and submission of claims. The third respondent
failed to adhere to this provision and as a result the claim of the Prudhoe Community was
neglected. The third respondent, in addition, failed to establish valid grounds for the
warranting or justification of a postponement.

The appellants contended that the Prudhoe Community had made out an arguable case and
as such were entitled to have their claim duly considered by the Land Claims Court. The
SCA was in agreement. The appellants did not oppose the Prudhoe Community’s
application for the rescission and remittal of the matter and considered the relief sought
appropriate in light of the circumstances. The appellants argued that had the third
respondent properly investigated initially, the parties would not have found themselves in
this position. The application by the Prudhoe Community was opposed by the third
respondent who maintained that their claim was not validly lodged. The SCA found that it
was not for them to make a determination regarding the validity of the claim; this was a
matter for the LCC to decide. The SCA held that the Prudhoe Community has at the very
least a potential claim on the very land in respect of which the LCC granted a restoration
order. Neither the LCC, the appellants nor the respondents were appraised of the competing
claim of the Prudhoe Community, it was the responsibility of the third respondent to bring
this to their attention, which it failed to do.

The SCA in striking the appeal from the roll, stated that it was not in the interests of justice
to have the appeal postponed. It held that it would be in the interests of all parties concerned
to have the order of the LCC set aside and remitted to the LCC for reconsideration. The
SCA further held that the application by the Prudhoe Community for the rescission of the
judgment of the LCC, be upheld and ordered the costs of the appeal and the proceedings
before the LCC be paid by the third respondent as it neglected to perform its statutory duties
appropriately.