THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not-Reportable
Case no: 900/2019
In the matter between:
SILWANE COMMUNITY DEVELOPMENT
TRUST

APPELLANT

and

REGIONAL LAND CLAIMS COMMISSIONER,
KWAZULU-NATAL

FIRST RESPONDENT
COMMISSION ON RESTITUTION
OF LAND RIGHTS

SECOND RESPONDENT
MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM

THIRD RESPONDENT
DIRECTOR GENERAL OF THE
DEPARTMENT OF RURAL

DEVELOPMENT AND
LAND REFORM

FOURTH RESPONDENT
THE CHARL SENEKAL SUIKER TRUST
IT 855/1984

FIFTH RESPONDENT

MBONGENI ZULU

SIXTH RESPONDENT
NOMUSA MATHE

SEVENTH RESPONDENT
NTOMBIFUTHI MATHABELA

EIGHTH RESPONDENT
NDABA GUMBI

NINTH RESPONDENT
MUSWENKOSI MATHABELA

TENTH RESPONDENT
REGISTRAR OF DEEDS,
KWAZULU-NATAL

ELEVENTH RESPONDENT

Neutral citation: Silwane Community Development Trust v Regional Land
Claims Commissioner, Kwazulu-Natal and Others (900/2019 [2021] ZASCA
02 (6 January 2021)

Coram:
PETSE DP, MBHA, DAMBUZA and NICHOLLS JJA

and MATOJANE AJA
Heard:
18 November 2020
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives via e-mail, publication on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand-down
are deemed to be delivered on 7 January 2021.

Summary: Restitution of Land Rights Act 22 of 1994 – claim for restitution
of land rights – review of Regional Land Claims Commissioner’s decision to
publish claim as described in claim form – appellant alleging that additional
properties depicted in map wrongfully omitted – no reviewable irregularity
established.

ORDER

On appeal from: The Land Claims Court, Randburg (Kollapen J sitting as
court of first instance):
The appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.

JUDGMENT

Matojane AJA (Petse DP, Mbha, Dambuza and Nicholls JJA
concurring):
[1] This is an appeal against the judgment of the Land Claims Court,
Randburg (LCC) dismissing a review application in respect of a decision of
the Regional Land Claims Commissioner (the RLCC) to publish a notice in
the government gazette in terms of section 11(1) of the Restitution of Land
Rights Act 22 of 1994 (the Restitution Act) without including a number of
farms that the appellant contends ought to have been included.

[2] The application has its origin in two restitution of land claims that were
lodged by the late Inkosi Silwane Ernest Myeni (Inkosi Myeni) with the
RLCC on 4 February 1997. The claims were submitted on behalf of the
community by virtue of the provisions of the Restitution Act, for the
restitution of the land to the community. They were published in the
Government Gazette Notice 1586 of 26 August 2005.

[3] After the death of Inkosi Myeni, the appellant trust was formed to
pursue the claims on behalf of the community.  In a letter dated 24 October
2016, the appellant took issue with the land description as set out in the
Government Gazette publication by the first respondent in terms of s 11(1) of
the Restitution Act. The applicant contended that the RLCC had wrongly
excluded 28 other farms not expressly referred to in the two claim forms in
the gazette notice. The RLCC, on the other hand, took the view that the claim
forms lodged by Inkosi Myeni were clear and precise as to the claimed farm
portions and that it acted procedurally fair before publishing the notice.

[4] With the impasse having arisen, the appellant applied to the LCC for an
order reviewing and setting aside the decision of the RLCC to publish the
Government Gazette Notice. It also sought an order directing the RLCC to
withdraw the said notice and publish a new notice in the Gazette containing
the additional properties that were not published in Government Gazette
Notice 1586 of 26 August 2005.

[5] The application was unsuccessful. On 24 July 2019, Kollapen J granted
limited leave to the appellant to appeal to this Court in relation to the manner
and process in which the state respondents dealt with the matter once there
was the identification of additional properties.

[6] A right to restitution of rights in land was created by s 8(3)(b) of the
Interim Constitution of the Republic of South Africa Act, 200 of 1993 and
was entrenched in the final Constitution of the Republic of South Africa Act

108 of 1996.1 Section 25(7) of the Constitution provides for the restitution of
rights in the land as follows:
‘A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress’.

[7] The Restitution Act is the Act envisaged in s 25(7) of the Constitution.
The object of the Restitution Act is, amongst others, to give effect to the
constitutionally entrenched rights of individuals and communities who had
been dispossessed of land rights and disadvantaged as a result of past racially
discriminatory laws and practices. The restitution process is a finite one with
a limitation placed on the period within which claims may be lodged. Section
2(1) and (2) of the Restitution Act deals with entitlement to restitution and
provides:
'(1)
A person shall be entitled to restitution of a right in land if -
(a)
he or she is a person dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices; or
(b)
it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result
of past racially discriminatory laws or practices; or
(c)
he or she is the direct descendant of a person referred to in paragraph (a) who has
died without lodging a claim and has no ascendant who -
(i)
is a direct descendant of a person referred to in paragraph (a); and
(ii)
has lodged a claim for the restitution of a right in land; or
(d)
it is a community or part of a community dispossessed of a right in land after
19 June 1913 as a result of past racially discriminatory laws or practices; and
(e)
the claim for such restitution is lodged not later than 31 December 1998.’

1 Gamevest (Pty) Ltd v Regional Land Claims Commissioner for Northern Province and Mpumalanga and
Others [2002] ZASCA 117; 2003 (1) SA 373 (SCA) paras 3 and 4.

[8] Section 6 of the Restitution Act sets out the general functions of the
Commission. Those functions include, amongst others, receiving and
acknowledging receipt of claims, the taking of reasonable steps to ensure that
claimants are assisted in the preparation and submission of the claims,
advising claimants of the progress of their claims and investigating the merits
of claims that have been submitted, and mediating and settling disputes arising
from such claims.2

[9] Section 10 of the Restitution Act sets out the requirements for lodging
a valid claim. s 10 (1) provides:
‘(1) Any person who or the representative of any community which is entitled to claim
restitution of a right in land, may lodge such claim, which shall include a description of the
land in question, the nature of the right in land of which he, she or such community was
dispossessed and the nature of the right or equitable redress being claimed, on the form
prescribed for this purpose by the Chief Land Claims Commissioner under section 16.’
(My emphasis.)

[10] Section 11(1) obliges the RLCC having jurisdiction to cause a notice to
be published in the Gazette and make it known in the district in which the land
in question is situated if he or she is satisfied that:
‘(a)
the claim has been lodged in the prescribed manner;
(b)
the claim is not precluded by the provisions of section 2; and
(c)
the claim is not frivolous or vexatious.’

[11] In terms of s 11(2) the RLCC may, on such conditions as he or she may
determine, condone the fact that a claim has not been lodged in the prescribed
manner.

2 Section 6(1)(cA) and (cB) of the Restitution of Land Rights Act as amended.

[12] Section 16 empowers the Chief Land Claims Commissioner to make
rules regarding, among others, any matter which is required or permitted to be
prescribed. Section 16(1)(b) confers the power to make rules in regard to the
filing of claims. Rule 2(1) of the Rules Regarding Procedure of the Land
Claims Court3 provides that a claimant:
‘. . . shall lodge a claim in writing on a duly completed claim form, as prescribed by the
Commission in terms of section 10 of the Act, substantially in the form of Annexure A
together with such additional documents as are relevant to substantiate the claim, with the
regional office of the Commission having jurisdiction over the land in respect of which
such a claim is instituted.’

[13] In the present matter, Inkosi Myeni was able to identify the claimed
properties in the claim forms with precision. He completed the claim forms
with meticulous care. In paragraph 1.1, the standard form requires the person
completing the form to provide ‘the portion(s), name(s) and number(s) of the
farm and district in which it is situated’. He provided the correct portions and
farm names in the first claim form as follows:
‘MORGENSTOND. NO. 599 A-B AND
AVONSTOND MP. 581 B-C. STRAIGHT TO PONGOLA
UBOMBO DISTRICT’

[14] In the second claim form, he provided the accurate name, portion and
district in which portions of the farm Overwin lay. He described the property
as follow:
‘OVERWIN NO. 163 A & B - UBOMBO DISTRICT.’

3 Promulgated in Government Gazette 16407 of 12 May 1995.

[15] In paragraph 15 of the review application, the appellant explained that
the land described in the claim forms and claimed by the Myeni community
encompasses the following properties:
‘The land described in the said claim forms and accompanying description by the Inkosi
and the applicant community includes land which stretches from the Mkuze River, i.e. from
Overwin Farm to Pongola River and all the farms which are on the Myeni land including
the land on which the Inkosi of the applicant community lived during the material period
and continues to live. In support of this description of the subject land, I annex hereto
marked “C” a copy of the document entitled Meeting of the Myeni Ntsinde [Tribal]
Authority in connection with the restitution of land.’

[16] In the review application the appellant also relied on a transcription of
the minutes of the Myeni Ntsinde Tribal Authority held on 14 January 1997,
in which the land sought to be claimed was described as stretching from:
‘Mkuze river i.e. Overwin farm to Pongola River, and all the farms which are there are on
the Myeni’s land . . .
The other land is Makhathini on the Eastern part which is now used as a development area,
that is Myeni land. We therefore refer the Commission to the District Code which states
everything and the Old Maps with the boundary beacons, this land also stretches from
Pongola river Nyawashana where the old wagon road was to Mkuze river where the
Delukufa area is. There is now a great dispute of land in this area amongst three Amakhosis
ie J.Z. Gumede, M. Qebe and the Myeni.’

[17] The difficulty with the description contended for by the appellant is that
it is inconsistent with the description in the claim forms. Secondly, the last
paragraph of the resolution of the Myeni Ntsinde Tribal Authority on which
appellant relies records that the claim to this very broad area of land is
disputed. It is recorded that ‘there is now a great dispute of land in this area
amongst three Amakhosis, i.e. JZ Gumede, M Qebe and the Myeni.’

18]
After receipt of the claim forms, the RLCC appointed Khuhlaza
Management Consultants CC to investigate the claims. The consultants
produced three validation reports dated 3 December 2001. The validation
reports record the historical name of the area where people were removed as
Nkonkoni Farm (current name Avonstond No 581), Mooi Plaats (current
name Morgenstond No 598) and Overwin (current name Overwin 163(A) and
Overwin 163(B)).

[19] The RLCC also assigned Ms Xolisa Shembe, the Project Officer of the
RLCC, to investigate the merits of the claims. She interviewed Inkosi Myeni
and the claimant community and compiled an investigation case report. Her
report states that there were two different removals from the three farms, the
first being from Farm Overwin No 163 A & B in the late 30s and the second,
from the farms Morgenstond No 598 A & B and Avonstond no 581 B.  This
report is in respect of only the land claimed in the claim forms and not the
farms listed in the amended notice of motion.

[20] As part of the investigation process, a mapping exercise of the areas
from which the community was alleged to have been removed was undertaken
by officials of the Commission. Members of the claimant community and an
official from the Surveyor-General’s office took part in the mapping exercise.
A map of the areas pointed out by the appellant community was produced by
the office of the Surveyor-General. The map depicts properties extending over
a total area of 72 082 740 hectares stretching between the Mkhuze River in
the South and the Pongolapoortdam in the North.

[21] Following the mapping exercise, the Commission discovered that a
large number of the land portions that were pointed out in relation to the
appellant’s land claim during the mapping exercise had not been claimed by
the appellant. Instead they were the subject of a land claim of the Gumbi
Community who had also lodged a claim for restitution with the Commission.

[22] As a result of the competing claims, the RLCC convened a meeting of
the representatives of the two communities on 2 March 2005 to discuss the
conflicting claims, more particularly with reference to the farm Avonstond.

[23] The recorded minutes of the meeting have, in item 3 thereof, a heading
‘Introductory remarks’, under which the following is recorded:
‘Walter pointed out that a claim was lodged by Myeni and Gumbi
-Properties claimed and restituted are those stated in the claim form only
-Once a claim is mapped and gazetted there are no additions allowed
-He then asked the Commissioner to take over.’

[24] The minutes continued:
‘Apart from Avonstond, there are properties mapped by Myeni which are not on the claim
form. Ms Shange asked the committee members to comment on what she had just pointed
out.
Mr Myeni responded by saying that they understand how restitution works, they are
prepared to leave out properties, not on the claim form.’

[25] In relation to this minute, Mr Walter Silaule, the deponent to the
answering affidavit on behalf of the first to fourth respondents, who was
present at the meeting states that he recalls what Mr Myeni said and meant.
He states that the Myeni community accepted that the properties not

specifically identified in the claim form, but identified in the mapping
exercise, could not legitimately be claimed. The claimant community denies
that it relinquished any land it claimed as alleged by Mr Silaule.

[26] The RLCC was satisfied that the claim was lodged in the prescribed
manner and that the requirements of s 2 of the Restitution Act had been
satisfied. The properties listed in the claim form were published in
Government Gazette Notice 1586 of 26 August 2005.

[27] An applicant who seeks final relief on motion must, in the event of a
dispute of fact arising,  recognise that final relief may be granted only if the
facts averred in the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,  justify such an
order. However, where the court is of the opinion that the respondent's denials
do not raise a real, genuine or bona fide dispute of fact or are so far-fetched
or clearly untenable that the court would be justified in rejecting them merely
on the papers, it may grant final relief.4

[28] The version of Mr Silaule is supported by the minutes of the meeting
which show that representatives of the community were made aware, and
accepted that only the farms identified in the claim forms and not farms
identified in the mapping exercise would be included in the Government
Gazette. This version is not contradicted by any witness. The belated
allegations by Ms Shembe in her confirmatory affidavit put up in reply that

4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 62 3 (A) at
634E -635C. Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3)
SA 371 (SCA) at paragraph 13

she informed Mr Silaule that certain information in the respondents’
answering affidavit was incorrect are inconsistent with the minutes of the
relevant meeting and was not made in the founding papers where they would
have been subjected to scrutiny in the answering papers.

[29] The appellant alleges that Mr Silaule omitted to annex the third page of
the minutes of the meeting of 2 March 2005, which allegedly, indicates that
no resolution was taken. From the context of the minutes it appears that after
dealing with the matter of the properties omitted from the claim, the
discussion reverted to the purpose of the meeting, namely, the conflicting
claims between the Gumbi and the Myeni communities concerning the Farm
Avonstond. It is to this farm that Mr Myeni suggested a field visit so that both
communities could point out beacons to resolve the conflict.

[30] It follows that the allegations raised by the respondents have not, on
genuine and bona fide grounds, been disputed and must thus carry the day.

[31] The appellant claims that it became aware of the publication of its claim
in the Government Gazette by chance only on 8 September 2016 when its
attorney overheard a conversation about the transfer of the Farm Gumbi 2.
This assertion is not credible because its attorney was already at that time
acting for the community and was well-versed with the facts of the claim at
that time.

[32] In any event, the appellant would have become aware of the gazetting
of the properties when its other claim concerning the Overwin No 163 was
negotiated and finalised on 24 January 2007. The appellant was made to

understand that the part-settlement of their claim was phase 1 and that phase
2 dealing with the remaining two properties mentioned in the claim form,
Avonstond and Morgenstond, would be dealt with later as the owner had
objected to the claim.

[33] In Makhuva-Mathebula Community v Regional Land Claims
Commissioner, Limpopo and Another5 a review of the RLCC’s decision was
brought on the basis that the RLCC did not include the more extensive land
described in the map attached to the claim form but published the claim on
the basis of information contained in paragraph 1.1 of the claim form. The
issue was determined by reference to whether the RLCC had failed to apply
his mind when refusing to add these farms to the claim. This Court concluded
that in publishing the claim on the face value understanding that the properties
claimed were those listed in paragraph 1.1 of the claim form, the RLCC
applied his mind in accordance with the Restitution Act and acted rationally
in so doing.

[34]  In Minaar NO v Regional Land Claims Commissioner for
Mpumalanga and Others,6 the decision of the RLCC to publish a notice in the
Gazette in respect of all subdivisions of Daisy Kopje farm and not confine the
publication to Portion D only was set aside on review. The LCC held that as
no claim as required by s 2(1)(e) was lodged in respect of the other portions,
the RLCC had no power to include unclaimed portions of Daisy Kopje as part
of the claimed land.

5 Makhuva-Mathebula Community v Regional Land Claims Commissioner, Limpopo and Another [2019]
ZASCA 157.
6 Minaar NO v Regional Land Claims Commissioner for Mpumalanga and Others [2006] ZALCC 12.

[35] In the present case, the RLCC relied on the accurate property
descriptions in paragraph 1.1 of the claim forms, which is a primary source of
information which is required to gazette a claim. Inkosi Myeni well knew the
area of land his community occupied when they were dispossessed. He did
not mention the additional 28 disputed properties listed in the amended notice
of motion when he completed the claim form.

[36] The RLCC applied her mind to the precise location and extent of the
land identified in the claim form as appears from the various validation reports
and the case reports which are a result of investigations regarding the history
of the communities' residence and forced removal from the land. The
appellant was afforded a procedurally fair opportunity to respond before the
publication of the notice as appears from the minutes of the meeting of 2
March 2005. The RLCC acted as a reasonable decision-maker.7

[37] That being so, the appellant has failed to establish a legally cognisable
ground of review upon which the decision under challenge could have been
set aside. It follows that the LCC correctly dismissed the community’s
application, and therefore, this appeal cannot succeed.

Order
[38] In the result the following order is made:
The appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.

7 Batho Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4)
SA 490 (CC) para 44.

________________________
K MATOJANE
ACTING JUDGE OF APPEAL

Appearances
For appellant:

M Naidoo SC
Instructed by:

Maseko Mbatha Inc., Durban
Phatshoane Henney Attorney, Bloemfontein

For respondents:
A Dodson SC (with him P Naidu)
Instructed by:

State Attorney, Durban
State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
6 January 2021
Status:
Immediate
Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Silwane Community Development Trust v Regional Land Claims Commissioner,
Kwazulu-Natal and Others (900/2019 [2020] ZASCA 02 (6 January 2021).

The SCA today dismissed an appeal against the judgment of the Land Claims
Court, Randburg (LCC) dismissing a review application in respect of a decision
of the Regional Land Claims Commissioner (the RLCC) to publish a notice in
the government gazette in terms of s 11(1) of the Restitution of Land Rights Act
22 of 1994 (the Restitution Act) without including a number of farms that the
appellant contends ought to have been included.

The late Inkosi Silwane Ernest Myeni (Inkosi Myeni) lodged two restitution of
land claims for three specifically named farms with the RLCC on 4 February
1997 on behalf of the community. Notices of the claims were published in the
Government Gazette Notice 1586 of 26 August 2005.

A review of the RLCC’s decision was brought on the basis that she had wrongly
excluded 28 other farms not expressly referred to in the two claim forms in the
gazette notice. The RLCC, on the other hand, took the view that the claim forms
lodged by Inkosi Myeni were clear and precise as to the claimed farm portions
and that she acted procedurally fair before publishing the notice.

The SCA held that the RLCC had acted fairly in publishing the claims on the
basis on the information contained in the claim forms as she understood that the
properties claimed were those listed on paragraph 1.1 of the claim form. The
court found that no reviewable irregularity was established.

In the result, the appeal was dismissed with costs including the costs consequent
upon the employment of two counsel.

-END-