Reportable
Case No 665/2002

In the matter between:

THE KHOSIS COMMUNITY AT LOHATLA
First Appellant
THE GATLHOSE COMMUNITY

Second Appellant
THE MAREMANE COMMUNITY

Third Appellant

and

THE MINISTER OF DEFENCE

First Respondent
THE PREMIER OF THE NORTHERN
CAPE PROVINCE

Second Respondent
THE MINISTER OF AGRICULTURE
AND LAND AFFAIRS

Third Respondent
THE MINISTER OF PUBLIC WORKS                     Fourth Respondent
REGIONAL LAND CLAIMS COMMISSIONER
NORTHERN CAPE PROVINCE

Fifth Respondent

Coram:
HARMS,
FARLAM,
MTHIYANE,
BRAND
JJA
and
PONNAN AJA

Heard:
23 FEBRUARY 2004
Delivered: 18 MARCH 2004
Subject:
Restitution of Land Rights Act 22 of 1994 – application under s
34 declaring in advance that communities not entitled to
restoration of land

J U D G M E N T

HARMS JA/

HARMS JA:
Introduction
[1] The Lohatla Army Battle School of the SA National Defence Force
(‘SANDF’) lies in the Northern Cape, more or less within a triangle formed
by the towns Postmasburg, Danielskuil and Kathu. It is an oblong piece of
land, belonging to the state and about 50 km long and 35 km wide, with a
perimeter of 211 km and covering 1580 sq km. The north-western portion of
the battle school, some 62 000 ha, is the subject of land claims (in terms of
the Restitution of Land Rights Act 22 of 1994) by the Gatlhose, Maremane
and Khosis communities. However, the claim of the Khosis is not a separate
claim since it overlaps with the other claims.
[2] In the ordinary course of events a party’s entitlement to restitution of a
right in land (taking into account the factors set out in s 33) and the
determination of the nature of the restitution (which may consist of, inter
alia, restoration of the land itself or part of it, the grant of a right in the land,
alternative state-owned land, or compensation)1 are decided at the same
time. The reason is that these matters are interlinked and it is difficult to
decide the issues piecemeal. Contrary to this general scheme, s 34 provides
for, in effect, a declaratory order: On application by a national, provincial or
local government body, and before the final determination of a claim under
the Act, the Land Claims Court (‘the LCC’) may rule ‘that the land in

1 S 35.

question or any rights in it shall not be restored to any claimant or
prospective claimant’ in the final adjudication of the claim (s 34(1)).
[3] Pursuant to this provision, the Minister of Defence2 and the Premier of
the Northern Cape Province3 applied to the LCC for an order declaring that
no part of the battle school area will eventually be restored to any of the
communities. The Minister of Land Affairs, who is the minister responsible
for the administration of the Act, as well as the Regional Land Claims
Commissioner, supported the application.4 In spite of vigorous opposition by
the Khosis community,5 joined somewhat faint-heartedly by the other two
communities, the LCC granted an order substantially as prayed. With its
leave the appeal is before us.
[4] The Act has its genesis in s 25(7) of the Constitution which provides
that –
‘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.’
Persons and communities who are entitled to restitution of a right in land are
defined (s 2) and ‘restitution of a right in land’ is said to mean either (a) the
restoration of a right in land, or (b) equitable redress (s 1).

2 The minister, who was the first applicant, does not accept that the Khosis have any valid land claim but
for present purposes it has to be assumed that they do.
3 As second applicant.
4 They were joined as respondents in the application. The formal requirements of s 34(2)-(4) have been
complied with.
5 The appellants, in the opposing affidavit, agreed that the issue should be disposed of by means of this
application and they sought, by means of a counter-application, a declaratory order with a converse effect.

[5] According to the jurisprudence of the LCC6 there is no substantive
right to any particular form of restitution, whether restoration, alternative
land, compensation or some other form of relief. A claimant has no specific
right to a particular form of relief, even in respect of the property originally
dispossessed. The interim and final Constitutions and the Act merely provide
for a right to 'claim' or 'enforce' restitution. A substantive right to a particular
form of restitution only comes into existence when a court makes a
restitution order.
[6] The Act spells out two threshold or jurisdictional requirements that
have to be present before an ante omnia ruling on restoration of the land
may be made. Section 34(6) provides namely as follows:
‘The Court shall not make an order in terms of subsection (5)(b) unless it is
satisfied that –

(a)
it is in the public interest that the rights in question should not be
restored to any claimant; and

(b)
the public or any substantial part thereof will suffer substantial
prejudice unless an order is made in terms of subsection (5)(b) before the final
determination of any claim.’
Subsection (5), in turn, states:
‘After hearing an application contemplated in subsection (1), the Court may-

(a)
dismiss the application;

6 In re Kranspoort Community 2000 (2) SA 124 (LCC) para 82.

(b)
order that when any claim in respect of the land in question is
finally determined, the rights in the land in question, or in part of the land, or certain
rights in the land, shall not be restored to any claimant;

(c)
make any other order it deems fit.’
[7] The communities argued, and the LCC held, that the use of the word
‘may’ in s 34(5) gives the court a discretion to dismiss the application even
if the jurisdictional requirements of s 34(6) have been met. I do not agree
that there is such an overriding discretion. Apart from the fact that it would
not make sense to provide for such a discretion in the light of the stringent
threshold requirements, the word ‘may’ in this context does not indicate the
presence of any discretion. It simply defines the possible orders, depending
on the court’s findings. In other words, it performs a purely predicative
function.7
[8] As far as the ‘public interest’ aspect of the threshold requirements is
concerned, the majority judgment of the LCC stated that it is ‘essentially a
discretion, requiring the court to exercise a value judgment.’ Both the public
interest requirement and the issue of substantial prejudice involve the
exercise of a value judgement based on the proven facts but the use of the
word ‘discretion’ in this regard may give rise to misunderstanding. If it is
used in the wide sense, namely that the court ‘is entitled to have regard to a
number of disparate and incommensurable features in coming to a decision’

7 Cf Minister of Environmental Affairs & Tourism and others v Pepper Bay Fishing (Pty) Ltd 2004 (1) SA
308 (SCA) para 34.

there can be no quarrel with its use.8 The distinction between a narrow and a
wide discretion is important, especially on appeal. A court of appeal, subject
to its ‘due deference’ obligation to a value judgment of a lower court has
less constraints when hearing an appeal involving a value judgment (wide
discretion) than in the case of an appeal against the exercise of a narrow
discretion.9
The proceedings in the LCC
[9] The LCC has, to the exclusion of other courts, the exclusive
jurisdiction to decide as court of first instance matters such as the present (s
22). Its quorum consists of a single judge unless the president of the court
decides otherwise. Two judges were allocated to this case, namely Bam AJP
and Meer AJ. In a contested case under s 34, at least one assessor has to
assist the court; it was Mr A Zybrands. Such an assessor is a full member of
the court and the decision or finding of the majority of the members of the
court is its decision or finding.10 Meer AJ, in a judgment concurred in by the
assessor, found for the applicants while Bam AJP disagreed.
[10] A few initial remarks about Bam AJP’s judgment would not be out of
place. He held that the order sought was not competent. The appellants did
not seek to support this finding presumably because the order sought and

8 Media Workers Association of SA and others v Perskor 1992 (4) SA 791 (A); Knox D’Arcy Ltd and others
v Jamieson and others 1996 (4) SA 348 (A) 361H-I.
9 Eg Ex parte Neethling 1951 (4) SA 331 (A); Vassen v Law Society of the Cape of Good Hope 1998 (4)
SA 532 (SCA) 537D-G.
10 This does not apply to matters that constitute questions of law, none of which arose in the court below.

given followed the wording of s 34(5)(b). Moreover, he expressed a dislike
for application proceedings and would have preferred to hear oral evidence.
In particular, he would have liked a ‘countervailing expert report to form a
balanced view’. However, the Act prescribes application proceedings. The
communities, who had the right to apply for a reference to oral evidence or
cross-examination, never did so. They did not suggest that the report was not
balanced or that a countervailing report could be obtained, on the contrary,
they relied on the report in support of their case and accepted that they
cannot dispute its contents.
[11] As far as the majority judgment is concerned, reference has already
been made to the deference due by a higher court to the findings of a lower
court. That obligation is particularly strong where the lower court is a
specialist court which is called upon to make value judgments, as in the
present instance.11 Although we are entitled and obliged to revisit the issues,
the question remains whether it can be said that the lower court was wrong
and not merely that there is some scope for disagreement. Quite noticeable
was the fact that the appellants did not once during the course of argument
point to an instance where the majority in the LCC had erred, and its ratio on
the second threshold was not even alluded to.
The land in issue

11 Cf the deference towards assessments of damages for pain and suffering by the trial court: Sandler v
Wholesale Coal Suppliers Ltd 1941 AD 194 at 199-200.

[12] This map may be of some assistance in understanding the description
that follows.

[13] As mentioned, the land claimed by the three communities involves the
north-western portion of the battle school and consists of what was known as
the Maremane and Gatlhose native reserves. The eastern and southern parts
of the battle school consist of land expropriated from white farmers to which
there is not any land claim. It is larger than the two reserves taken together.
The Gatlhose reserve (BCDEF) lies to the north of the Maremane reserve
(ABFG) and is much bigger. In the middle of the battle school is a portion of
land indicated in black, between 8 500 and 9 400 ha in extent, which is the

subject of the Khosis claim.12 This land, on the eastern border of the
Maremane reserve and substantially on the eastern border of the Gatlhose
reserve, is part of the reserves.13 Adjacent to the southern border of the battle
school is Jenn Haven, an area of more than 14 000 ha (indicated in black
below the line LK), which was allocated to the Khosis in exchange for the
land claimed, and to which the majority moved during 1992 after all the
infrastructure and improvements had been created at state cost.
The history of the occupation of the reserves
[14] In the absence of anything to the contrary, the evidence of Mr Joseph
Free, who on the face of it does not appear to be specially qualified  to deal
with the history, has to be relied upon. He is the leader of the Khosis at
Lohatla, the first appellant, and his group is referred to as the ‘Free group’.
His tale begins with the occupation of the reserves by the Griqua nation
during the first half of the nineteenth century. They came in contact with
Tswana people, more particularly the Batlharo tribe under the leadership of
Chief Molete and his son Chief Holele, whose direct descendants are still the
chiefs of the tribe. The reserve area was first allocated by the Griqua chief,
Nicholas Waterboer, to Batlharo chiefs who had married Griqua women.
[15] Under British rule the reserves, which formed part of British
Bechuanaland, were allocated in 1885 to the Batlharo tribe. In 1895, the area

12 It was initially believed that the land was 14 000 ha.
13 A small portion straddles the expropriated land but that fact is not of any consequence at this stage.

was incorporated into the Cape Colony, which became part of the Union of
South Africa in 1910. The Natives Land Act 27 of 1913 had no effect on the
rights of the inhabitants but by virtue of the Native Trust and Land Act 18 of
1936 the land vested in the SA Native Trust as ‘scheduled native areas’. The
effect of this was that the land had to be held for the exclusive use and
benefit of the ‘natives’. The state, however, had a right to resume such land
for public purposes, subject to certain formalities and the payment of
compensation (s 18(1)).
[16] According to the evidence of Mr Free, the people who lived on the
reserves regarded themselves as members of one community. Then came the
Population Registration Act 30 of 1950 which artificially divided the
community for purposes of racial classification into ‘blacks’ (primarily
Tswanas) and ‘coloureds’ (those of predominantly Griqua extraction).
Although the impact of classification became increasingly evident
throughout the 1960’s and 1970’s, says Mr Free, it did not prior to 1977
result in a clear division of the community along racial lines.
[17] The creeping impact of racial divisions as a result of the doctrine of
apartheid became more apparent as time went on. The reserves were
identified as ‘black spots’ and were excised from the trust and transferred to
the state during 1969 by way of proclamation. For the community it was a
time of uncertainty and anxiety which culminated with the removal of the

‘blacks’, some 12 000 persons, during 1976-1977. They were relocated to
Bophuthatswana, about 200 km to the north. It is said that this land, although
larger than the reserves, is inferior and not sufficient to sustain the
communities. The community was thereby split in two with the ‘coloureds’
remaining in occupation.
[18] The defence force obtained approval during January 1978 for the
reservation of the former reserves for its purposes.14 The already described
Khosis area, water rich and fertile, was temporarily reserved for the
‘coloureds’. As a result, those who had not been living within the newly
prescribed area had to re-establish themselves with the consequent
dislocation, financial and otherwise. In due course the Khosis area became
encircled by the battle school and the movement of the community and its
livestock was severely restricted. During military exercises they were placed
under curfew. Their movement in and out of the reserve (they are 14 km
from the main road)15 was controlled. Tension built up between the army
and the community and, it seems, also amongst members of the community
who, bereft of their traditional leadership, split into two groups: those who
were prepared to be accommodating towards the defence force’s demands
and those who were not. Since the community members were not classified

14 The appellants’ submission that the purpose of the 1977 dispossession was to establish the battle school
is based on surmise.
15 The distance from the Khosis area to the eastern border of the school is 11 km.

as ‘black’, the state, during this period, had limited power to act against
them  on the ground of racially based legislation, and chose to negotiate.
[19] These negotiations, according to the minister, culminated in a
properly advertised public meeting of the Khosis community in 1990, where
it agreed by an overwhelming majority to be relocated to Jenn Haven. The
appellants argue that the minister, who was obviously not present, has no
firsthand knowledge of the facts.16 The appellants, for their version, also rely
on hearsay evidence, namely that of Mr Free, who likewise was not present.
The fact of the matter is that there was a meeting, it had been advertised,
there was disagreement within the community and the overwhelming
majority chose to relocate. The Free group refused to budge although land
and houses had been reserved for its members. (The Free group consists of
127 persons, including children.)17 Mr Free says the majority moved because
it felt intimidated but there is not a single member of that group of which we
are aware who joined in the land claim on behalf of the Khosis. Mr Free,
when he stated that they (‘we’) always knew that they could be compelled
‘like the blacks’ to move someday and that they were afraid of going to jail,
exaggerated somewhat. The Khosis were able to resist the state for 17 years
prior to 1994 and their political and legal position was not during that period
entirely comparable to that of ‘blacks’.

16 The ordinary rules of evidence do not apply in the LCC: s 30.
17 That was when this application was launched. There were 45 adults in 1993 and 38 families in 1997.

The battle lines
[20] The case of the minister is that it is in the public interest the SANDF
should be entitled to the exclusive use of the whole of the Lohatla area. In
this regard the minister is intractable. The Free group insists, as first prize,
that the reserves should be restored to the three communities and, in the
alternative, also intractably, that the Khosis area should be allocated to the
communities. The parties have been at loggerheads since 1993 when the
defence force applied for the eviction of the Free group from the Khosis
area.18 The respective stances of these parties have not been affected by the
reference of the land claim to the LCC or the numerous attempts to settle the
matter.19
[21] The attitude of the Gatlhose and Maremane communities has been
different. The state has offered the communities monetary compensation
equal to the land value of the reserves, ignoring the ‘compensatory’ land
which they already possess.20 It is not necessary to deal with the whole
history of the negotiations save to refer to two events. The minutes of the
pre-trial meeting held with the LCC judges on 21 January 2000, record that
these communities and a part of the Khosis community were prepared to

18 The application is pending the outcome of the land claim.
19 The Khosis at Jenn Haven are not involved in the dispute. They are not a party to the present proceedings
and non-joinder has not been alleged. Mr Free admits that he has no mandate on behalf of the people of
Jenn Haven.
20 The amount offered was R24m for the approximately 62 000 ha. The land value of the reserves is R400
per ha.

accept monetary compensation for purposes of purchasing alternative land.21
The following day a public meeting was held with the Gathlose and
Maremane communities and, according to the minutes, the principle of
financial compensation for the purchase of alternative land in lieu of
restitution was unanimously accepted.
[22] Although these two communities, on the papers, have joined the Free
group in opposing the relief sought, that appears to be a tactical move. The
settlement suggested came to nought because, says the minister, of the
refusal of the Free group to accede to the proposal whereas the communities
say it is because alternative land has not been identified. Whichever side is
correct, the fact of the matter is as mentioned that the Free group is not
prepared to settle except, at the very least, on the basis that the Khosis area
be allocated to the group unconditionally.
[23] That the opposition of the Gatlhose and Maremane communities was
for tactical purposes appears from the fact that Mr Trengove, for the
appellants, at the outset of his argument accepted that on the available
evidence – there is no indication that there might be other evidence – the
battle school will have to stay and he never even suggested that the reserves
(excluding the Khosis area) could be restored to the communities. That is

21 From other documentation it would appear that questions such as access to ancestral graves still have to
be negotiated. More about this later.

why he posed two questions: (i) why does the SANDF claim the whole area
and (ii) why does it want the issue to be decided ante omnia?
The battle school
[24] The main infrastructure of the school is on the Maremane reserve and
the replacement value is in excess of R800m, ie, 32 times the land value of
the reserves.22 The remainder of the land is used for training exercises. It
cannot be disputed that the school is a national asset and essential for the
SANDF, not only for its own training purposes but also for that of
international forces in joint training exercises. It is not in contention that the
size of the battle school is hardly large enough to enable the SANDF to
engage in realistic war training with live ammunition; nor is it in issue that
there is no alternative land available in this country which could be used to
replace the school.
[25] The battle school plays an important role in the economy of the
Northern Cape Province – one of the poorer provinces – in general and,
more particularly, in the immediate vicinity. Permanent personnel amount to
2400; 500 are civilians. In surrounding towns 423 state owned houses are
occupied by staff. Official spending involves the formal business sector,
including industry, farming and the Regional Services Council. Staff

22 This is an estimate by the minister. His ability to give this evidence has been questioned but the actual
value is not really an issue.

spending widely supports the informal sector. A large number of towns and
villages, as far away as Kimberley and Upington, are financially affected.
[26] Although established during the pre-1994 era, its value has not been
diminished. Reasonable persons may differ on the role of a defence force in
a democracy and may differ as to whether, especially in South Africa, a fully
prepared and operational defence force is needed. History teaches that many
well meaning leaders have miscalculated the readiness, the need for and the
size of a defence force – sometimes too big, sometimes too small. However,
the Constitution23 requires a disciplined military force, not only to defend
and protect the Republic, its territorial integrity and its people; it may also be
deployed in fulfilment of international obligations or in co-operation with
the police. An insufficiently trained defence force is unable to fulfil its
constitutional duty and is a danger to itself and to others. The SANDF has a
duty towards its soldiers to provide them with proper training in order to
limit the danger to life and limb.
[27] The battle school area is heavily contaminated with unexploded
ordnance and is as such not fit for human or animal use. It cannot be cleared
cost effectively. An estimate of the clearing costs, in 1996, was £7,9m. This
represents many times the value of the land. These facts are fully set out in
expert reports which form part of the communities’ papers. Mr Trengove,
probably in consequence, did not argue that the return of the reserves

23 S 200 and 201.

(excluding the Khosis area) was a feasible option and this is the principal
reason the Gathlose and Maremane communities are prepared to settle for
monetary compensation.
[28] There is land within Lohatla that can be made safe for human
habitation. Some of it falls outside the reserves and does not affect the
outcome of this case save to mention that the SANDF had offered part of it
to the Free group during the settlement negotiations.24 A few families were
initially prepared to accept the offer but they have since changed their mind.
The Khosis area itself may also be made safe at a cost of between R300 and
R350 per ha, which is not much less than the value of the land of R400 per
ha.
The first threshold requirement: public interest
[29] The first issue then is to decide whether it is in the public interest that
the reserves should not be restored (s 34(6)(a)).25 It has been stated that the
finding of the LCC that it is in the public interest that the reserves should not
be restored to the Gathlose and Maremane communities was not attacked on
appeal for the reasons given. What remains for consideration is the Khosis
area.

24 The area is the south-eastern part, some 10 000 ha, and, presumably, adjoins Jenn Haven.
25 For a discussion of the meaning of ‘public interest’: Dr Willemien du Plessis 1987 THRHR 292; Ex parte
North and South Central Metro Substructure Councils of the Durban Metropolitan Area and another 1998
(1) SA 78 (LCC).

[30] In considering its decision in this regard a court has to take into
account the factors listed in s 33. All of them are not necessarily applicable
in any given case. However, in a case such as the present the general
approach ought to be that the dispossessed community is entitled to
restoration of the land unless restoration is trumped by public interest
considerations.
[31] Undeniably, the umbilical cord that joins any particular community
and its ancestral land is strong and it has a highly emotional element that has
to be respected. That does not, however, mean that all other public interest
considerations should be ignored. Land is finite and there are millions out
there who also wish to have their share. All claims and aspirations cannot be
satisfied. A balance must be struck and the limited resources of the country
must be considered.
[32] The appellants stressed the desirability of remedying past human
rights violations (para (b)), the history of the dispossession, and the hardship
caused to the community (para (eC)). With the history and hardship I have
already dealt. Without wishing to denigrate the position of the Khosis, there
is a slight sleight of hand in their case. Those who have borne the brunt of
the dispossession were the Gathlose and Maremane. They, who number
many thousands, are prepared to relinquish their claim to restoration. Here
we are really concerned with the position of the smaller balance of the

Khosis, 127 souls in all, who have always been and still are in possession of
the Khosis area.
[33] Section 33 also requires of a court to give consideration to the
feasibility of restoration of rights in land (para (cA)), social upheaval (para
(d)), and the current use of the land (para (eB)). These factors are closely
related to the public interest considerations of s 34(6)(a). The public interest
in maintaining the battle school has already been dealt with and it has been
pointed out that the appellants’ counsel did not attack the findings of the
LCC in this regard. What remains is whether the Khosis area, right in the
middle of the school, can be excised from the battle school and whether it is
in the public interest that a small community should live within the midst of
the school.
[34] The evidence establishes that the SANDF requires for training
purposes the whole area, including the Khosis area. Otherwise training at
brigade level is impossible. Certain manoeuvres, which are essential for
training, are impossible to execute. Soldiers, who have to be prepared to
expect the unexpected, know that – because of the limitation on the use of
the Khosis area – attacks cannot come from the east or west. New weapons
systems cannot be tested fully. The range and rate of fire of modern weapons
demand safety arcs. The Khosis area falls within the danger zone. The
access road traverses the battle area. Exercises can only be conducted by

crossing the area and that is the reason why the area has not been fenced.
During exercises access and egress have to be restricted.
[35] The counter offered by the appellants is a passage in the report from
which the preceding information was taken in which the expert witness, Mr
Heitman, stated:
‘The only alternative to full use of the “Free Area” would be to acquire additional land
adjacent to the Army Battle School to give the space needed for realistic training. That
land would have to be larger than the “Free Area”, to allow adequate safety distances
during mechanised operations training. Merely adding an equivalent area would not give
sufficient depth to allow safe training.’
Why then not acquire more land to the north and leave the Khosis area, ask
the appellants?  First, as the report states, it is not simply a case of adding
another 10 000 ha to the north. Second, there is no evidence of any available
or suitable land.26 In any event, the SANDF will practically be deprived of
the use of the land to the south, east and west of the Khosis area.27 More
land in an area where land appears to be a scarce commodity, taking into
account the different claims to it, has to be contaminated and made useless
for future generations. (Mention has already been made of the fact that
contaminated land cannot be recovered.) And, as the LCC found, this
alternative, which, it may be added, is not based on any fact and does not do

26 The minister said in reply that there is none.
27 The land south of the northern point of the Khosis area represents about 75% of the Battle School.

justice to the Heitman report read as a whole, does not present a long-term
solution and will force the SANDF to expand in an inefficient manner.
[36] The appellants submit, if I understand the argument, that during a
meeting with President Mandela and (among others) the Minister of Defence
the latter effectively conceded that the whole area is not required by the
battle school. This meeting took place on 27 November 1996. It is quite
clear from the minutes that proposals were made which were called
‘decisions and recommendations’. The main one was that the Gathlose and
Maremane (the Khosis were not included) be acknowledged as the rightful
owners and that the SANDF should enter into a lease agreement with the
communities on an indefinite basis. (There is no suggestion that this
proposal was acceptable to anyone.) Then followed the pregnant paragraph:
‘Alternative land for the resettlement of the communities, to include the Khosis, be
purchased/acquired at state expense, adjacent to Lohatla.’
This, on my reading, simply means that the Khosis, in due course, had to
leave Lohatla. The allocation of the south eastern part of the battle school to
the communities was also mooted but, as mentioned, the Free group later
rejected this proposal.
[37] Another factor relating to public interest is that the Khosis area cannot
simply be allocated to the Free group. The other communities have as much
a claim to the area as have the Khosis because the Gathlose and Maremane
according to Mr Free (who, originally, does not hail from the Khosis area)

also lived on that land. They cannot return to this relatively small piece of
land which is too small for even the Free group.
[38] It follows from the aforegoing that the appellants have not presented
any convincing argument which indicates that the LCC erred when it found
that it is not in the public interest to restore the Free area. That conclusion
then leads to the second threshold requirement. It should, however, be borne
in mind that the same facts may be relevant to both inquiries.
The second threshold requirement: substantial prejudice
[39] The main thrust of the appellants was directed at this leg of the case,
namely whether the applicants have established that the public or any
substantial part thereof will suffer substantial prejudice unless the order is
made ante omnia (s 34(6)(b)). As counsel asked: ‘Why now?’ The
occupation of the Khosis has been in contention since the late 1970’s and
that the battle school has all along been able to operate. To answer the
question it is convenient once again to consider the situation of the Khosis
apart from that of the Gathlose and Maremane.
[40] Before doing so, reference should be made to one of the minister’s
motives in launching the application. The minister’s interest in the outcome
of the claim is limited to the restoration question. Equitable redress is for the
account of the Department of Land Affairs. An early decision in his favour
on the s 34 application will release the minister from the proceedings. That

will lead to a savings of costs. The limitation of the issues at the trial will
also lead to a saving of legal costs to the fisc. Although the minister has
submitted that legal costs, even those of the communities, are a kind of
prejudice a court should have regard to, I believe that cost considerations can
at best be a makeweight.
[41] Early settlement of the land claims is probable as soon as the
restoration aspect has been resolved. In itself it is also not a compelling
reason for an ante omnia order. However, in the case of the Gathlose and
Maremane it is not a self standing consideration. These communities,
consisting of many thousands of people who cannot return to the land,
remain in limbo. They live on land that is insufficient for their needs. A
large amount of money has been set aside by the state to enable them to
purchase additional land. That cannot happen because the small Free group
refuses to accept the inevitable. Every delay in finalising their claim must,
by the very nature of their displacement, amount to substantial prejudice. If
one asks the converse question, namely what do they stand to gain by
delaying the matter, the answer is clearly nothing. Maybe the trite statement
that justice delayed is justice denied has special application in their situation.
[42] Inevitably the spotlight reverts to the Free group. The appellants
submit that it is inappropriate to break the deadlock at this stage because it
will deprive the Free group of any hope that the land would be restored to

them and it will deprive them of the ‘dignity’ of a trial.28 The short answer is
that the Act specifically created a mechanism to break deadlocks, that the
finding on the first leg is that they can have no reasonable expectation that
they will be able to retain the land, and it is not in the public interest to have
trials on issues without any realistic prospects of success. In this regard the
premier of the province, who, it will be recalled, is also an applicant, made a
compelling case of substantial prejudice being suffered by, surprisingly, the
Free group through the delay. Apart from the danger to the community
posed by their presence in the middle of a battle school, something to which
I shall return, he points to the fact that the province is not able to comply
with its constitutional duty to provide this isolated community with proper
education, health facilities, infrastructure and other amenities. As far as
schools are concerned, the existing facility is dilapidated and unsuitable.
There are 27 learners spread across seven grades and quality education
cannot be provided. It is not feasible to upgrade the facilities especially, one
could well imagine, while the dispute keeps simmering. Concerning health,
the premier points out that the community is isolated, there is an absence of
potable water and sanitation, and that the living conditions of the Free
community pose serious health risks. He finally mentions that housing and
other infrastructure cannot be provided economically and that the provision

28 Strictly, counsel used this argument in relation to the ‘ultimate discretion’ point but it is equally
applicable here.

of services would not be sustainable to such a small isolated community.
Neither in evidence nor in argument were any of these matters, which were
foundational to the judgment of the LCC, addressed by the appellants – most
probably because they are unanswerable.
[43] The safety of the Free group is a concern of both the minister and the
premier. According to the minister, although the Khosis area is the least
contaminated, it is a total anachronism to maintain a totally isolated small
civilian population in the middle of a battle school. The danger to life where
live ammunition is used during training is obvious. Mistakes are bound to
happen. He mentioned that it is well documented that a number of civilians,
including children, living in the Free area have been killed in explosions
during their attempts illegally to recover parts of unexploded ammunition.
Livestock roams over the whole of Lohatla, adding to the danger to life of
herders and animals. Last, but not least, during exercises the basic right of
free movement of the community is restricted to an extent that is
unacceptable to the Free group.
[44]  The first response of the appellants is that there is a factual dispute
about civilian deaths. Mr Free stated namely in his answering affidavit that
no accidents have occurred within or near the Khosis area. In this regard he
was less than frank because in a previous affidavit he admitted that in the
past 20 years there have been ‘only’ some 5 to 6 fatal accidents due to

unexploded munitions among members of the ‘local community’ within the
battle school. This he considers an acceptable risk factor. As Meer AJ
correctly said, one death is one too many. His other suggestion is that a fund
must be established along the lines of the compensation fund for
occupational injuries and diseases. Then he proposes that the area be fenced
but as the minister points out, this is not at all feasible because it is not
possible to conduct exercises without traversing the Khosis area since, even
if no actual exercises take place there, observation and controlling teams
have to traverse the area and use high points in it.
[45] The LCC found, and I agree, that the Free community suffers
substantial prejudice because of the absence of education, health, social
services and personal security. Mr Free’s response is that the minister is
‘paternalistic’ because he and his followers know what is best for them. His
decision on behalf of children and others that their health, education and
lives are of lesser importance than the land claim is not only paternalistic; it
is reckless and wholly unacceptable.
[46] This, I believe, makes it unnecessary to consider in any detail whether
the SANDF (and through it the South African public as a whole) will suffer
substantial prejudice unless the ante omnia order issues. It also answers
counsel’s ‘why now’ question. The Free group should have left Lohatla

before those persons died and before social conditions deteriorated to an
extent where children have to suffer because of the ideals of their parents.
Alternative relief
[47] The notice of motion sought an order declaring that ‘no part of the
land in question shall be restored to any claimant’ and the LCC made an
order in those terms. The LCC’s understanding of the matter was that the
issue related to the question (in the words of Meer AJ) of physical
restoration or (according to Bam AJP) the right to occupy. If due regard is
had to the history of the dispute and to the formulation of the issues in both
the founding affidavit and the answering affidavit (which also served as the
counter-application) that approach was correct.
[48] Bam AJP, in spite of the clearly defined issue, held that since s 34 is
not limited to the non-restoration of land but extends to the non-restoration
of any ‘rights’ in it, the applicants had to satisfy the court that none of these
rights should not be restored. The term ‘rights’, in terms of the definition,
includes customary law interests and what the learned judge had in mind
was a bundle of customary law interests such as servitudes (which he did not
attempt to circumscribe), the right to extract water and minerals from the
land, to plough, to graze, and to gather wood and soil. As Meer AJ pointed
out in her judgment dealing with the application for leave to appeal, this was
not an issue at all. She is correct. In any event, the rights that Bam AJP had

in mind are inconsistent with the right to exclusive occupation which the
SANDF on the evidence requires. How, for instance, can water be hauled
over a distance of about 14 km from the Khosis area (where the fountains
are) to the main road and, if it is there, where could it be utilised? How does
one extract minerals from the ground in the battle school without occupying
the land? And then one is ignoring the fact that no one suggested that the
communities had ever recovered minerals. How does one plough or graze
land in the midst of a battle school if the evidence establishes that it is
dangerous for humans and animals to use the land?
[49] Alluded to in prior discussions but not raised on the papers as issues
were the access to graves and the possibility of erecting a memorial for the
communities but these are not excluded by the terms of the order and may be
considered in determining the scope of equitable redress. Last, as stated
before, at the meeting with Mr Mandela the option of recognising the bare
dominium of the claimants and letting the land on an indefinite basis to the
SANDF was mooted but this option was apparently not acceptable. The idea
was not resurrected in any of the affidavits and whether or not it was a viable
option was not discussed and must consequently be discounted.

Order
[50] No order for costs was asked for by the respondents and none will be
made. The appeal is dismissed.

___________________
L T C  HARMS
JUDGE OF APPEAL

AGREE:

FARLAM JA
MTHIYANE JA
BRAND JA
PONNAN AJA