THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no: 091/03
In the matter between:

TRANSVAAL AGRICULTURAL UNION
Appellant

and

THE MINISTER OF AGRICULTURE AND
1ST Respondent
LAND AFFAIRS

THE CHIEF LAND CLAIMS COMMISSIONER
2nd Respondent
NO

THE REGIONAL LAND CLAIMS COMMISSIONER
3rd Respondent
FOR MPUMALANGA AND NORTHERN (NOW
‘LIMPOPO’) PROVINCE NO

THE REGIONAL LAND CLAIMS COMMISSIONER
4th Respondent
FOR THE PROVINCES OF NORTH WEST AND
GAUTENG

THE MINISTER OF FINANCE NO
5th Respondent

THE AUDITOR GENERAL OF THE REPUBLIC
6th Respondent
OF SOUTH AFRICA NO

THE NATIONAL LAND COMMITTEE
Amicus Curiae
______________________________________________________________________

Coram:
Scott, Zulman, Navsa, Mthiyane et Van Heerden JJA

Date of hearing:
25 February 2005
Date of delivery:
23 March 2005
Summary:
Restitution of Land Rights Act ─  appellant alleged irregular exercise of statutory
powers by first four respondents ─ non-joinder of essential parties ─appellants seeking guidance
in general terms and in isolation and in the face of disputed facts ─ held that in circumstances of
case court correctly refused to grant declaratory orders.

________________________________________________________________
JUDGMENT
________________________________________________________________

NAVSA JA:

[1] This is an appeal against a judgment of the Land Claims Court
(the LCC), whereby an application by the appellant for a number of
declaratory orders relating to the interpretation and application of the
Restitution of Land Rights Act 22 of 1994 (the Act) was dismissed
with costs by Gildenhuys AJ (Moloto AJ concurring). Leave to appeal
was granted by that court.

[2] The appellant is the Transvaal Agricultural Union (TAU), a
voluntary association of farmers, with its head office in Silverton,
Pretoria. TAU claimed that it brought the application in the LCC
pursuant to a mandate received from its more than 5000 members,
acting either directly or through their affiliated farmers associations
and district agricultural unions.

[3] Before turning to deal with the basis of the application in the
LCC, I set out in the paragraphs that follow a brief description of the
respondents.

[4] The first respondent is the Minister of Agriculture (the Minister),
the responsible Minister referred to in the Act, whose role in the
present case will become clear as the relevant facts unfold.

[5] The
second
respondent
is
the
Chief
Land
Claims
Commissioner (the CLCC) appointed in terms of s 4(3) of the Act and
who directs the work of the Commission on Restitution of Land Rights
(the Commission), established in terms of s 4(1) of the Act. In terms
of s 7 the CLCC may delegate any of his or her powers (inter alia) to
a regional land claims commissioner.

[6] The third respondent is referred to as the Regional Land Claims
Commissioner for Mpumalanga and the former Northern Province
(now Limpopo), two relevant geographical areas. I will for the sake of
convenience refer to the latter province by its former name. Whereas
there was formerly one regional commissioner for both geographical
areas, there is presently a regional commissioner for each.

[7] The
fourth
respondent
is
the
Regional
Land
Claims
Commissioner for the North-West and Gauteng Provinces, two other
relevant geographical areas.

[8] When I refer to the first to fourth respondents collectively
hereafter, I will, for the sake of convenience, describe them as the
respondents.

[9] The fifth and sixth respondents are the Minister of Finance and
the Auditor General of the Republic of South Africa, cited as
respondents because of the allegations by TAU that, in exercising
their powers improperly, the first, second, third and fourth
respondents were financially irresponsible. No orders were sought
against the fifth and sixth respondents. They chose to abide the
decision of the court below and adopt the same position in respect of
the present appeal.

[10] The National Land Committee (NLC) was admitted to the
proceedings in the court below as amicus curiae. It continued in that
role in this Court.

[11] TAU initially sought more than 20 declaratory orders in the
LCC. This was finally reduced to five. Before us TAU conceded that it
was unable to persist (because of the provisions of the Act) in arguing
any entitlement to the fifth declaratory order sought in the LCC. Thus,
the appeal is limited to a consideration of TAU’s entitlement to the

first four of the five declaratory orders sought in the LCC, which are
as follows:
‘1.
That the right to possess and inhabit State land forms part of just and

equitable compensation as intended by Section 2(2) of Act 22 of 1994

where such right of possession and inhabitation was historically granted to

claimants as compensation for dispossession of the rights to land claimed

in terms of Section 2(1) of Act 22 of 1994.
2.
That Second, Third and Fourth Respondents are obliged by Section 11 of

Act 22 of 1994 and the Rules to:

2.1
Investigate and determine which subdivisions of land or farms are

subject to restoration claims, prior to publishing a notice in terms of

Section 11(1) of Act 22 of 1994; and

2.2
Specify clearly in such notice in terms of Section 11(1) which

subdivisions are subject to a land claim, and which claimant claims

which subdivisions.
3.
That owners of land which is subject to land restoration claims are entitled

to participate in investigation of such claims prior to publishing of notice in

terms of Section 11(1) of Act 22 of 1994, and are entitled to access to

such information relating to such claim as may come into possession of

the Second, Third and Fourth Respondents.
4.
That owners of land which is subject to land restoration claims are entitled

to make representations to the Land Claims Commissioner prior to

publication of the land Claim.’

[12] In its founding affidavit TAU set out the basis on which it
purported to represent its members’ interests in seeking these orders.
TAU commenced by stating that the large majority of its members
were knowledgeable only in farming operations and did not have the
individual financial resources, the specialised knowledge or the time
to undertake wide-ranging investigations to deal with land claims
affecting them and therefore relied on its assistance. TAU submitted
that in dealing with numerous current disputes in relation to claims for
the restoration of rights in land, in respect of which their members
have an interest, the Commission and the respondents misconstrued
their statutory powers and duties and this led to uncertainty. The
orders sought, if granted, would allegedly facilitate the work of the
institutions established by the Act to deal with claims for the
restoration of rights in land and promote certainty as regards the
rights and obligations of all parties to land disputes.

[13] In support of these contentions TAU presented five examples of
claims for the restoration of rights in land involving the respondents
and which it submitted, illustrated the need for the orders sought. I
will deal with these examples in due course.

[14] In opposing the application the respondents accepted that, in
the discharge of their functions in terms of the Act, they were bound
by the Constitution, the common law and judicial precedent.

[15] At the outset, however, the respondents contended that TAU
lacked locus standi to seek the relief in question. They submitted that
TAU had no interest in its own right which might be affected by the
outcome of the litigation, but that it was rather TAU’s members in
their individual capacities that had a real or potential interest in such
litigation.

[16] The respondents also took the view that the failure to join
essential parties was fatal to TAU’s case. They referred to the five
examples used as by TAU as a springboard for the application in the
LCC and submitted that a wide range of allegations had been made
involving disputants who were not joined as parties to the suit.
Claimants, farmers and/or owners all had a direct and substantial
interest in the subject matter and outcome of the litigation and should
have been cited. Furthermore, they pointed out that one of the
examples on which TAU relied was a part-heard matter in the LCC
and submitted that it was therefore inappropriate for relief to be

sought in separate litigation. In addition, the respondents denied the
essential facts on which TAU relied (in the examples provided) to
demonstrate that they had exercised their statutory powers
improperly.

[17] Gildenhuys AJ found that TAU had no direct and real interest in
the outcome of the application and that it was up to its members to
engage in litigation. The learned judge was dismissive of TAU’s
submission that it was entitled to litigate on behalf of its members,
stating that, apart from its bare allegation of a mandate on behalf of
its members, it had failed to establish that it had any specific authority
to litigate on behalf of those members who themselves might qualify
as interested parties. Neither those members nor other affected
parties would in the event of an order given against TAU be bound by
the terms of that order. Thus he held that TAU lacked locus standi.

[18] In dealing with the question of locus standi the learned judge
did not consider whether s 38 of the Constitution operated in favour of
TAU. For reasons that will become apparent it is also not necessary
for us to consider that question.

[19] Gildenhuys AJ stated that it is not the court’s function to give
legal advice in the form of declaratory orders. He held that the
questions of law in respect of which the LCC was entitled to make an
order must involve a case in which rights and obligations must be
decided and interested parties must be cited. In the present case all
the persons who had a direct and substantial interest in the outcome
of the litigation were not cited and that was reason enough to dismiss
the application. Considering all the circumstances of the case the
learned judge was, in any event, loath to exercise his discretionary
power to grant any of the declaratory orders in favour of TAU.

[20] I turn to consider the gist of the examples provided by TAU and
the respondents’ answers to TAU’s allegations in this regard.

[21] The first relates to the farm Levubu 15 LT (Levubu) in the
Northern Province, which has approximately 400 subdivisions with
well-developed settlements and facilities such as shops, churches
and schools. A number of claimant communities had lodged claims in
respect of Levubu. A claim by the Ravele community in respect of
117 subdivisions, mainly on the western side of Levubu, had been

published in the Government Gazette of 7 April 2000 (Government
Notice 1528/2000).

[22] According to TAU, the third respondent had thereafter made
limited information available to owners and farmers from which it had
not been possible to determine precisely who was claiming what in
respect of each subdivision. It was therefore difficult to clarify the
exact nature and extent of claims affecting each individual current
landowner or farmer. TAU alleged that there was insufficient
information about possible competing and further claims, which might
be published later in the Government Gazette.

[23] In the information imparted to TAU reference was made to two
communities who had called on the Commission to expedite their
claims. I interpose to state that in terms of s 6(2) the Commission is
charged with ensuring that priority is given to claims that affect a
substantial number of persons. According to TAU there was no
further elaboration on the status of these two communities as
claimants to parts of Levubu. In the information supplied there was
reference to a Sotho community and to other communities who had
been dispossessed of land without any details having been provided.

[24] The information provided to TAU relating to Levubu referred to
compensatory land, allegedly without any further detail. Furthermore,
TAU alleged that the third respondent ignored or declined its requests
for further information made to enable its members to prepare for and
deal with this and other land claims affecting their interests.

[25] TAU alleged that claims relating to Levubu and those in the
further examples alluded to were not being properly investigated and
assessed against the criteria set out in s 2(1) of the Act (which
provides the basis of entitlement to restitution of rights in land).

[26] In terms of the scheme of the Act, no person is entitled to
restoration of a right in land if just and equitable compensation was
received at the time of dispossession. TAU contended that ss 2(2),
22(cB) and 33(eA) of the Act and Rule 5(e) of the Commission,
relating to the consideration of compensation awarded at the time of
dispossession of the rights in land, were as a matter of policy being
ignored by the Commission. It alleged that this applied to the claims
relating to Levubu and to other claims for the restitution of rights in
land.

[27] Furthermore, according to TAU, the third respondent had not
considered, in cases where restitution was not feasible, making
recommendations to the Minister, in terms of s 6(2)(b) of the Act,
concerning appropriate alternative relief. In this regard TAU
contended that it could never be feasible to expropriate hundreds of
subdivisions on Levubu on which farmers had invested heavily and
that doing so would have an astronomical negative impact on the
entire economic lifeblood of the region.

[28] TAU submitted that the third respondent was intent on
processing claims in relation to Levubu in a piecemeal fashion and
was set on ignoring the provisions of s 12(4) of the Act which
provides:
‘If at any stage during the course of an investigation by the Commission, the
Chief Land Claims Commissioner is of the opinion that the resources of the
Commission or the Court would be more effectively utilised if all claims for
restitution in respect of the land, or area or township in question, were to be
investigated at the same time, he or she shall cause to be published in the
Gazette and in such other manner as he or she deems appropriate, a notice
advising potential claimants of his or her decision and inviting them, subject to
the provisions of section 2, to lodge claims within a period specified in such
notice.’

[29] The next example involves the farm Biesjiesvallei 149
Registration Division IO (Biesjiesvallei) in the district of Lichtenburg,
North West Province, which comprises 104 subdivisions. TAU had a
number of complaints regarding the manner in which claims were
processed. First, it complained that the Commission had not given
notice to owners of the publication of claims in the Government
Gazette. Second, that the initial notice published in the Government
Gazette was erroneous and, even though later amended, was never
withdrawn. Third, that the acceptance criteria for claims, referred to in
s 11(1) of the Act, were not applied. Fourth, that claims were not
being properly investigated. This was allegedly demonstrated by the
fact that even a cursory examination of Deeds Office data revealed
that portion 34 of Biesjiesvallei had never been owned by anyone
connected to the claimant. TAU alleged that no investigation of any
sort had been conducted in respect of portion 35. Further complaints
were made which for present purposes it is not necessary to explore.

[30] The following example concerns claims within the third
respondent’s jurisdiction relating to the farm Brakfontein 187
Registration Division JS (Brakfontein), in the district of Groblersdal.
The claims by the Matsepe and Mampuru communities in relation to

Brakfontein are presently the subject of litigation in the LCC.  TAU
claimed that both communities had received compensatory land but
that this relevant fact (which in terms of the Act must be taken into
account in assessing whether just and equitable consideration had
been received) had not been investigated in terms of the Act.
According to TAU the claimants had received just and equitable
consideration and their claims were thus disqualified in terms of
s 2(2) of the Act. TAU alleged that the trial had been postponed for
this issue to be considered.

[31] According to TAU this example illustrated that it was the third
respondent’s policy, contrary to the provisions of the Act, not to
investigate the historic circumstances of the dispossession of rights in
land. TAU stated that it was the Commission’s policy to accept,
without investigation, that claimant communities had not received fair
and equitable compensation at the time of dispossession and that
they could retain compensatory land over and above having their
prior rights restored. TAU repeated its complaint referred to in para
[28] above that s 12(4) of the Act was not being complied with by the
Commission.

[32] In respect of the farm Venetia 103 Registration Division MS
Northern Province (Venetia), TAU complained that pursuant to the
promulgation of the regulations in terms of the Promotion of Access
to Information Act 2 of 2000 (PAIA), interested and affected
landowners applied, without success, for access to the records of the
third respondent in relation to claims not yet gazetted in terms of s 11
of the Act. The third respondent adopted the attitude that the
information would only be supplied after the claims were gazetted.
TAU submitted that the third respondent’s policy in this regard is in
violation of their rights to access to information and to fair
administrative action.

[33] The last example is that of the case of intended expropriation of
property currently owned by one of TAU’s members, Mr Willem
Pretorius, namely, Portions 1, 2, 3 and 4 of the farm Boomplaats No
29 Registration Division JT (Boomplaats) in the district of Lydenburg,
Mpumalanga. TAU alleged that, here too, the claimant community
had received compensatory land at the time of dispossession. TAU
complained that, despite this, the Minister had entered into an
agreement with the claimant community that provided for restoration
of rights in land and developmental assistance and that the

agreement excluded Mr Pretorius. According to TAU Mr Pretorius had
applied to the LCC to have the expropriation notice issued by the
Minister in respect of the farm set aside. The Minister subsequently
withdrew the notice.

[34] According to TAU the Minister’s policy is to assume, to the
exclusion of the LCC, the right to decide whether s 2 of the Act had
been complied with. The Minister wrongly, so it was contended,
entered into agreements with claimants providing for an award by her
of rights in land, agreeing, without reference to current owners or
current holders to rights in land, to acquire or expropriate land.
Furthermore, TAU was of the view that, in reaching settlement
agreements with claimant communities, the Minister wrongly
contracted for open-ended State liability and that this was financially
reckless.

[35] TAU alleged that it was the Commission’s policy not to properly
draw a distinction between restoration and equitable redress and to
ignore or minimise farmers’ rights. TAU submitted that, in acting as
they did and as they continue to do, the respondents are usurping the

function of the LCC, excluding it from its rightful and unique role in the
adjudication of land claims disputes.

[36] An excessive number of pages in the founding affidavit on
behalf of TAU simply repeated the complaints referred to in the
preceding paragraphs. Contrary to the practice directions this Court’s
attention was not drawn to those repetitive parts and to other parts of
the record not relevant to the appeal.

[37] In the paragraphs that follow I deal briefly with the respondents’
answer to TAU’s allegations and submissions.

[38] In respect of TAU’s contention that some of its members lacked
the resources or knowledge to address the entire field of disputes
applicable to them, necessitating the application for the declaratory
orders, the respondents referred to the obligation imposed on the
Commission and its officials to investigate each claim so as to ensure
that disputes were fully and properly ventilated in the appropriate
forum. They pointed out that s 29(4) of the Act provides that, where a
party is unable to afford legal representation the Commissioner may
take steps to arrange such representation, either through the State

legal aid system, or at the expense of the Commissioner ─ TAU’s
members therefore had access to the necessary resources.

[39] The respondents explained that disputes concerning land
claims often differ fundamentally, both in relation to the factual
background and legal issues. A vast number of claims were lodged in
terms of the Act. Each claim, whether for restitution or equitable
redress, required individual consideration. The position of each
claimant, whether an individual or community, frequently differed ─
often markedly so ─ in relation to the circumstances of the alleged
dispossession and its consequences, the availability and suitability of
alternative State-owned land as well as the extent of compensation, if
any, which would be appropriate. The respondents submitted that
these factors, which are not exhaustive, should not be decided in the
abstract, divorced from the factual specifics against which claims
were made and resisted. The respondents contended that to do so
would be unfair to all affected parties. They were of the view that the
relief sought by TAU would have that effect.

[40] The respondents pointed out that the Commission was
frequently faced with a range of competing interests which required

investigation. In claims involving communities there might very well
be competing interests within those communities. On occasion more
than one person or community laid claim to a particular tract of land,
requiring an investigation of the merits of each claim.

[41] The respondents stated that there were numerous examples of
claims to land comprising many subdivisions and that identifying
specific tracts of land was sometimes difficult. In some instances
dispossession had taken place in the distant past at a time when the
land in question had not necessarily been subdivided. Claimants
were often unable to identify the tracts of land to which they laid claim
with any precision. Where there were difficulties in locating
boundaries
and
subdivisions,
particularly
where
there
were
uncertainties, all affected parties were afforded adequate opportunity
to advance evidence in support of their contentions. This had been
the case with the parties referred to in the examples provided. The
scheme of the Act provided mechanisms for the mediation and
negotiation of disputes and ultimate adjudication by the LCC. These
were applied in appropriate circumstances. If however, upon
investigation, a claim was found to be entirely without substance, a

referral to the LCC was uncalled for and the claim could be rejected
summarily.

[42] The respondents pointed out that if, as claimed by TAU,
irregular claims had been lodged with the Commission, parties
affected thereby had the right in terms of s 11(A) of the Act to
approach the relevant regional land claims commissioner to withdraw
or amend a notice published in the Government Gazette. The
Commissioner, in investigating a claim, could, if there was reason to
believe that the criteria for claims as set out in s 11 had not been met,
publish in the Government Gazette and send by registered post to the
parties involved, a notice stating that if, within a specified period,
cause to the contrary was not shown, the notice of the claim
previously published would be withdrawn. This was yet another
mechanism that an aggrieved party had at its disposal.

[43] In relation to TAU’s complaint about the respondents’ refusal or
failure to provide information, the respondents submitted that TAU’s
demands had been extravagant. They pointed out that TAU’s
attorney had retained an investigator who had been charged with the
task of obtaining access to relevant information contained in

government archives. Furthermore, in appropriate circumstances,
affected persons requiring information had the right to invoke the
remedies provided for in PAIA.

[44] The respondents stated that relevant information in their
possession was always made available on request, subject only to
any lawful reason to withhold it. On one occasion TAU’s attorneys
had been invited to inspect the relevant files in possession of the
respondents. Information sought by TAU falling outside the contents
of the files was not in the Commission’s possession. Information in
the possession of other State departments or institutions of State
should have been sought where they resided.

[45] In respect of the complaint by TAU, particularly in respect of
Venetia, that the respondents had a rigid and inflexible policy in terms
of which they refused to make information available to interested and
affected parties before the publication of a notice of a claim in the
Government Gazette, the respondents replied as follows. In general
the Commission did take the view that claims that had not yet been
published in the Government Gazette were not open to opposition ─
it may well transpire that the claim had no validity in which event the

exercise would have been futile. However, this view was not cast in
stone. Each case was individually considered and, in appropriate
circumstances, this general view may well be changed. The
respondents pointed, once again, to the dangers of a generalised or
abstract approach divorced from the facts of a particular case.

[46] The respondents submitted that meetings held with TAU’s
representatives, coupled with the invitation to TAU to inspect the
relevant files and the procedures available in terms of the Act
negated TAU’s claim that they were intent on not observing the audi
alteram partem rule. Furthermore, it was pointed out that in litigation
before the LCC a party has available all the procedural rights that the
adversarial system provides.

[47] In
respect
of
TAU’s
complaint
that
the
question
of
compensatory land was ignored when the Commission investigated
claims, the respondents stated that, in respect of the examples
provided, State land had never been given to any claimant
community as compensation for their dispossession. The statements
ascribed by TAU to officials of the Commission, which the former

alleged demonstrated that compensation was not investigated, were
strenuously denied by the relevant actors.

[48] In respect of the allegations by TAU concerning the feasibility of
restoration of rights, the second and third respondents alleged that
they were busy investigating models for sustaining the agricultural
viability of the areas concerned and that their investigation was not
complete. According to the respondents all options would be
explored, having regard to the nature of existing activities being
conducted in the area, including the nature and scale of existing
investments. No final decisions had been taken and all legitimate
objections would be taken into account and considered. In the event
that no amicable settlement could be reached, the matters would be
resolved, if necessary, by adjudication before the LCC.

[49] In respect of Levubu the respondents pointed out that 23
farmers, who own approximately one third of the land in question,
were cooperating with the Commission and had indicated that they
were prepared to sell their farms to resolve the disputes.

[50] In response to TAU’s allegations concerning Biesjiesvallei, the
respondents stated that not all the farmers could be served with

notices because many do not reside on their farms ─ only two
farmers were found living on farms. Enquiries were made but no
success was achieved. The best and most convenient form of
notifying farmers was by putting up notices at the nearest post office,
police station and business complexes. This had been done and the
notice was consequently brought to the intention of TAU and its
members.

[51] The mistake made in the notice published in the Government
Gazette, in respect of Biesjiesvallei, was admitted. The respondents
stated however, that the claims were published anew under the rubric
‘Amendments’ in the relevant Government Gazette.

[52] In answer to TAU’s complaint that a particular claimant had no
historical title to the part of Biesjiesvallei claimed by him, the
respondents stated that sufficient evidence had been placed before
the Commission to substantiate the claim. If TAU or any of its
members disputed the claimant’s rights, that question should rightly
be addressed upon the referral of the claim to the LCC. In any event,
the respondents referred to a letter by TAU to the second and fourth

respondents in which TAU itself alleged that the claimant had owned
the land in question and had sold it to a member of TAU.

[53] The respondents pointed out that it was fallacious to refer to the
status of investigations conducted by the Commission’s officials as
final. It was open to an interested party, at the appropriate time and in
the appropriate forum, to submit evidence for purposes of the
adjudication of a dispute. When a claimant presented evidence of an
entitlement and the Commission’s preliminary investigations pointed
to the validity of the claim, it was accepted subject to the right of other
parties to present countervailing evidence for consideration by the
Commission. The call by the Commission for countervailing evidence
referred to by TAU had been mistaken by the latter as a reversal of
the legal burden of proof ─ in context it should have been seen as an
invitation to make submissions and to submit evidence to the
Commission.

[54] In respect of Brakfontein, the dispute, as stated earlier, is
pending before the LCC. The respondents took the view that it was
an abuse of the process of court for TAU to have embarked on the
present litigation. The respondents challenged TAU’s assertion that

the claimant communities had received compensatory land. They
pointed out that the land on which these communities presently found
themselves was a place to which they had been moved and which
they share with other communities. Their claim was in respect of land
from which they had been removed.

[55] In respect of the withdrawal by the Minister of an expropriation
notice in relation to Boomplaats the respondents stated that land-
owners had not disputed the merits of the claims but that problems
arose concerning the price at which the land was to be acquired by
the State. When negotiations with Mr Pretorius concerning the price
stalled, the Commission and the Department of Land Affairs
considered expropriation the appropriate next step. This led to the
prospect of protracted litigation. It was then considered necessary to
withdraw the notice. Thereafter Mr Pretorius substantially reduced his
asking price and concluded a written settlement agreement with the
Minister.

[56] In respect of TAU’s assertion that the respondents sought to
exclude the LCC, the respondents replied that, should the
interpretation and application of the Act arise in any particular case,

the LCC would, if a case was properly set down before it, be the
appropriate authority to decide the matter.

[57] The respondents insisted that all claims for the restoration of
rights in land were being processed in accordance with the
requirements of the Act and denied the policies attributed to them by
TAU which the latter alleged involved non-observance or breaches of
the provisions of the Act, other legislation, or any other law.
According to the respondents it was apparent that TAU had artificially
created disputes where none existed.

[58] In Transvaal Agricultural Union v Minister of Land Affairs and
Another 1997 (2) SA 621 CC at para [33] the underpinning of the Act
(in relation to the interim Constitution) and the competing rights of
owners and claimants were described as follows:
‘The Restitution of Land Rights Act recognises that certain persons and
communities have a legitimate claim to the restitution of land rights which were
lost as a result of past discriminatory laws. Legislation to provide for this is
specifically sanctioned, and indeed required, by the provisions of ss 121 to 123 of
the Constitution. It is clear from these provisions that existing rights of ownership
do not have precedence over claims for restitution. The conflicting interests of
claimants and current registered owners are to be resolved on a basis that is just

and equitable, “taking into account all relevant factors, including the history of the
dispossession, the hardship caused, the use to which the property is being put,
the history of its acquisition by the owner, the interests of the owner and others
affected by any expropriation, and the interests of the dispossessed.” ’

[59] At para [36] of the Transvaal Agricultural Union case the
Constitutional Court said the following:
‘The restitution of land rights is a complex process in which the rights of
registered owners and other persons with an interest in the land must be
balanced against the constitutional injunctions to ensure that restitution be made
where this is just and equitable. Parliament is given a discretion by the
Constitution to decide how this process is to be carried out. Provisions in such
legislation that are designed to protect claimants and maintain the status quo
pending determination of a claim serve a legitimate purpose.’
(Emphasis added.)

[60] In Mahlangu NO v Minister of Land Affairs and Others 2005 (1)
SA 451 (SCA) at para [1] this Court set out in broad terms a
description of the institutions created by the Act to manage the
restitution process:
‘. . . The principal institutions that are created to manage the process are the
Commission on Restitution of Land Rights (the commission) and the Land Claims
Court (the LCC). The function of the commission, broadly speaking, is to receive

and to investigate claims for restitution and to attempt to resolve them through
mediation and negotiation. If a claim cannot be resolved by those means it must
be referred by the commission to the LCC for the LCC to exercise its wide
powers of adjudication. The LCC may, amongst other things, order the restitution
of land or a right in land to the claimant, or order the State to grant the claimant
an appropriate right in alternative State-owned land, or order the State to pay
compensation to the claimant, or order the State to include the claimant as a
beneficiary of a State support programme for housing or the allocation and
development of rural land, or it may grant the claimant alternative relief (s 35).’

Paragraphs [3] to [7] of the judgment are, with respect, useful in their
description of the process for initiating a claim for restitution, the
advisory functions of the Commission and the instances in which a
direct claim to the LCC is possible.

[61] It is against that background that the LCC’s power to grant
declaratory orders, as set out in s 22(1)(cA) of the Act should be
seen. It provides that the LCC shall have the power, to the exclusion
of any court contemplated in s 166(c), (d) or (e) of the Constitution:
’(cA) at the instance of any interested person and in its discretion, to grant a
declaratory order on a question of law relating to section 25(7) of the Constitution
or to this Act or to any other law or matter in respect of which the Court has

jurisdiction, notwithstanding that such person might not be able to claim any relief
consequential upon the granting of such order.’

Section 25(7) of the Constitution provides that persons or
communities dispossessed of property after 19 June 1913 as a result
of past racially discriminatory laws or practices are entitled, to the
extent provided by an Act of Parliament, either to restitution of the
property or to equitable redress. The Act was promulgated to that
end.

[62]  In para [8] of his judgment, Gildenhuys AJ correctly stated that
the LCC’s power to grant declaratory orders was subject to the
restrictions described hereafter. First, the party seeking the order
must have locus standi. Second, all persons whom the order seeks to
bind must be cited as parties to the suit. Third, the court had a
discretion and must be satisfied that it is desirable to grant the order.
As stated earlier, on each of these issues he found against TAU.

[63] TAU’s application in the LCC was ill-conceived and badly
structured. The orders sought by TAU seem to have been considered
by it to be the solution to a myriad of problems ─ the equivalent to
the retail slogan: ‘one size fits all’. Even if the locus standi and non-

joinder questions were decided in TAU’s favour, it would still face an
insuperable obstacle namely, the critical facts on which it relied are,
as demonstrated in earlier paragraphs, denied with substantiation. I
record that no replying affidavit was filed in response to the
answering affidavit by the respondents.

[64]  In Amalgamated Engineering Union v Minister of Labour 1949
(3) SA 637 (A) this court said the following (at 659):
‘Indeed it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a direct and substantial
interest without either having that party joined in the suit or, if the circumstances
of the case admit of such a course, taking other adequate steps to ensure that its
judgment will not prejudicially affect that party’s interests.’

[65] Towards the end of the Amalgamated judgment (at 663) Fagan
AJA said the following:
‘It is clear to me that the Council should have been cited as a party in the first
instance. The difficulty is to know what to do now that the matter has reached the
appeal stage. One wishes to avoid, as far as it may be at all possible, the
necessity of causing the parties unnecessary trouble, expense and delay. The
furthest, however, that I think we are able to go to meet the parties is to let the
final judgment in this matter stand over so as to give them an opportunity of
ascertaining from the Council whether it is to prepared to file . . . a consent to be

bound by our judgment notwithstanding the fact that it has not been cited as a
party. If . . . no such consent is filed . . . we shall give directions as to the course
the proceedings will then have to take.’

It was not suggested that such a direction could be given in the
present circumstances. In my view, it is in any event impractical to do
so.

[66] In Herbstein & Van Winsen’s The Civil Practice of the Supreme
Court of South Africa (4th ed) by Van Winsen, Cilliers and Loots
(edited by Dendy), the learned authors, at page 172, supply a useful
summary of the approach of this Court in the Amalgamated
Engineering case in determining, by way of two tests, whether a third
party had a direct and substantial interest in the outcome of litigation.
Concerning the two tests the learned authors state as follows:
‘The first was to consider whether the third party would have locus standi to claim
relief concerning the same subject matter. The second was to examine whether a
situation could arise in which, because the third party had not been joined, any
order the court might make would not be res judicata against him, entitling him to
approach the courts again concerning the same subject matter and possibly
obtain an order irreconcilable with the order made in the first instance.’

[67] No claimants and no owners of land or farmers affected by the
claims in the examples provided by TAU were joined in the
proceedings before the LCC. TAU had challenged claimants’ title to
land from which they were allegedly dispossessed. It alleged that
even those who may have had title had lodged defective claims. It
alleged that claimants had been preferentially treated by the
Commission and had received compensation not due to them.
According to TAU claimants were parties to agreements with the
Minister that were irregularly concluded. The factual matrix against
which TAU sought the relief claimed is replete with allegations
involving the rights of claimants and farmers and/or owners. It is
claimed that the latter were treated unequally and that they were
prejudiced. There is no question that farmers and/or owners and
particularly claimants had a direct and substantial interest in the
subject matter and outcome of the application by TAU and should
have been joined. More importantly, their involvement in the litigation
might have provided a proper factual basis upon which a decision
could be made. We might very well have had the benefit of their
submissions on some of the legal issues raised.

[68] It was suggested on behalf of TAU that the order sought would
serve as a guideline to all parties involved in land disputes. In Radio
Pretoria v Chairman, Independent Communications Authority of
South Africa, and Another 2005 (1) SA 47 (SCA)1 this Court said the
following at para [41]:
‘Courts of appeal often have to deal with congested court rolls. They do not give
advice gratuitously. They decide real disputes and do not speculate or
theorise…Furthermore, statutory enactments are to be applied to or interpreted
against particular facts and disputes and not in isolation.’
The same is true for courts of first instance.

[69] In respect of the declaratory orders sought it was submitted
before us that TAU’s entire case was premised on the third
declaratory order set out in para [11]. It was submitted that owners of
land subject to claims have the right to participate in the investigation
of claims prior to the publication of a notice in terms of s 11(1) of the
Act and are entitled to access to all information relating to the claim in
the hands of the respondents at that stage. So, it was contended, the
right claimed in the fourth declaratory order, namely the right to make

1 The approach adopted by this Court was confirmed in an as yet unreported judgment of the
Constitutional Court refusing leave to appeal to it. See Radio Pretoria v Chairperson of the
Independent Communications Authority of SA and Another ─ Constitutional Court case 38/04 ─
judgment delivered on 8 December 2004.

representations to the Commission prior to publication of a notice in
terms of s 11(1) of the Act, would have meaning only if information
was imparted beforehand. It was conceded by TAU that, should it be
held that it was not entitled to the third declaratory order, its
entitlement to the other orders sought would be diluted, if not nullified.

[70] It is clear from the complaints and submissions recorded in the
founding affidavit on behalf of TAU that they are aggrieved mainly
about events preceding publication of the notice in terms of s 11 of
the Act. They appear to regard the actions and decisions by the
Commission before that occurrence as being final or binding.

[71] Section 10 of the Act deals with the lodgement of claims with
the Commission. The procedure for the handling of claims is set out
in s 11. Section 11A refers to circumstances under which a claim may
be withdrawn or amended. Section 12 deals with the Commission’s
power of investigation and the process through which it may acquire
information. Section 13 deals with mediation. Section 14 deals with
the referral of the claim to the LCC in circumstances where it is ripe
for a hearing. None of the procedural steps which might culminate in
a hearing before the LCC is clothed with absolute finality.

[72] Under the heading Audi alteram partem the Constitutional Court
in the Transvaal Agricultural Union case, supra, at para [27] stated
that the Act contemplates that regional land claims commissioners
will scrutinise claims lodged with them to satisfy themselves that they
comply with the formal requirements of the Act, and are not frivolous
or vexatious. At para [28] of that judgment the court stated that the
registration of a claim in the deeds registry in terms of s 11(6)(b) of
the Act does not in itself detract from the rights of the land owner or
other persons interested in the property. Registration is no more than
notice to the world at large that the land in question is subject to a
claim, which is information that a land owner would in any event have
been obliged to disclose to any potential buyer or mortgager.

[73] It should be borne in mind that any party aggrieved by any act
or decision of the Minister, Commission or any functionary acting or
purportedly acting in terms of the Act may, in terms of s 36 of the Act,
have such act or decision reviewed by the LCC.

[74] It is clear that TAU mistakenly viewed the steps taken at an
early stage by the Commission as adjudicative rather than
investigative. That it is the latter rather than the former is clear from

the provisions of the Act (see inter alia para [71] above], the
Transvaal Agricultural Union case and the decisions of this Court in
Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern
Province and Mpumalanga, and Others 2003 (1) SA 373 (SCA) and
the Mahlangu case, supra.

[75] At para [30] of the Transvaal Agricultural Union case the
Constitutional Court said the following:
‘In deciding whether the constitutional requirement that there be procedurally fair
administrative action requires notice to be given by regional land claims
commissioners to the landowners before issuing a s 11(1) notice, or whether
their interests are sufficiently protected by notice given to them after such claims
have been accepted, various matters would have to be considered by the Court.
Without attempting to lay down what will be involved in such an enquiry, it seems
clear that a Court would have to weigh up the interests of the claimants against
those of the landowners, and consideration would have to be given to issues
such as the temporary nature of the impediment; the purpose served by the
status quo provision of s 11(7); whether there is a need for expedition in securing
that purpose once a claim has been lodged; the harm done to landowners by the
impediments placed upon them by s 11(7) and (8); the vulnerability of the
claimants and the harm that might be suffered by them if the status quo is not
preserved; and the fact that there is an unrestricted right to approach a different
official, the Chief Land Claims Commissioner, for authority to evict a claimant or

interfere with improvements on the land. It might also be necessary to consider
whether the Act reasonably requires claims to be processed expeditiously.’

[76] In the present case the explanation by the respondents as to
why, in general, they consider it necessary to withhold information
before publication of the notice in terms of s 11 is persuasive. They
provided detailed explanations of the painstaking steps taken by
officials of the Commission to process and expedite claims against a
background of attendant complexities. The phase before the
publication of the notice is investigative and not adjudicative. There is
thereafter a further investigative stage in which interested and
affected parties are entitled to participate. TAU submitted in support
of the proposed fourth declaratory order that, if supplied with
information prior to the publication its members might seek to make
representations to prevent publication. I agree with the NLC’s
contention that this approach would require an ‘infinite regression’
along the following lines:
1.
In order to be able to publish a section 11 notice of a claim, a
hearing must be given;

2.
in order to be able to give parties a pre-section 11 hearing, a
notice must be issued inviting interested parties to identify
themselves and make representations;
3.
because a pre-section 11 notice will itself cause prejudice, in
order to be able to publish that notice, a pre-section 11 hearing must
be given;
4.
in order to give that pre-section 11 hearing, a notice must be
published . . .2

[77] As pointed out in para [30] of the Transvaal Agricultural Union
case, in order to decide whether in any specific case procedurally fair
administrative action requires notice to be given by regional land
claims commissioners to land owners before the publication of a
s 11(1) notice, various factors might have to be taken into account. In
the present case the respondents disavow an inflexible policy in
respect of making information available prior to publication of the
notice. They accept that there may be circumstances in which it is
necessary to make such information available. In the absence of

2 Gildenhuys AJ referred with approval to this formulation of an infinite regression by Mr
Budlender representing the NLC in the court below.

common cause or undisputed facts this Court cannot, in isolation,
make the order sought.

[78] If one were to have regard to the first declaratory order sought it
is clear that, in order to arrive at a just decision, one would have to
consider the historical context of the habitation and possession of
State land and consider whether it qualified as just and equitable
compensation in terms of the Act. The respondents alleged that, in
respect of the examples provided, State land had not been provided
as compensation for dispossession. In one instance the State
explained that the State land on which the community found itself was
land to which it had been moved and that it shared with other
communities. It is clear that claimants require to be heard on this
aspect and that a general decision cannot be made in isolation. In
respect of the second declaratory order sought the respondents were
adamant that they endeavoured as best they could to investigate and
determine which subdivisions of land are subject to restoration claims
and that their best efforts were directed at determining the perimeters
and boundaries of land in respect of which claims had been lodged.
This was done with the participation of all affected and interested
parties. Aside from the problem of claimants and farmers not being

heard on this aspect, I fail to see how the applicants can succeed in
obtaining this order against what is alleged by the respondents and
what an order in the terms sought would achieve.

[79] In my view, for the reasons stated in preceding paragraphs,
Gildenhuys AJ was, in the final analysis, correct in refusing the
application.

[80] There was an application by TAU for condonation for the late
filing of heads of argument. The respondents did not persist in their
initial opposition to the application and we accordingly granted the
application.

[81] The following order is made:

The appeal is dismissed with costs including the costs of the

application for condonation.

_________________
MS NAVSA
JUDGE OF APPEAL
CONCUR:

SCOTT

JA
ZULMAN

JA
MTHIYANE

JA
VAN HEERDEN
JA