THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 577/2022

In the matter between:

MINISTER OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT
FIRST APPELLANT

CHIEF LAND CLAIMS COMMISSIONER

SECOND APPELLANT

DIRECTOR-GENERAL OF THE
DEPARTMENT OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT
THIRD APPELLANT

REGIONAL CLAIMS COMMISSIONER:
KWAZULU-NATAL                                                         FOURTH APPELLANT

and

BONGANI CYPRIAN NDUMO

(obo EMDWEBU COMMUNITY)
RESPONDENT

Neutral Citation:
Minister
of
Agriculture,
Land
Reform
and
Rural
Development and Others v Ndumo (obo Emdwebu
Community) (Case no 577/2022) [2023] ZASCA 136
(19 October 2023)
Coram:
ZONDI, CARELSE, MOTHLE and MATOJANE JJA and

SIWENDU AJA
Heard:

15 August 2023
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives via e-mail, publication on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand-down is
deemed to be 19 October 2023 at 11h00.
Summary:
Land claim – Restitution of Land Rights Act 22 of 1994 – whether
family or community claim – whether the second and fourth respondents
impliedly granted condonation to receive the claim form as a community claim
and whether they by law can do so.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Land Claims Court, Randburg, (Potterill J sitting as court of
first instance).

The appeal succeeds with no order as to costs.
The order of the Land Claims Court dated 8 February 2021 is set aside
and substituted by the following:
‘The application is dismissed with no order as to costs.’

JUDGMENT

Mothle JA (Zondi, Carelse and Matojane JJA and Siwendu AJA):

[1] This
appeal
arises
from
a
mandamus1
application,
heard
on
29 March 2021, by way of urgency in the Land Claims Court, Randburg (LCC),
to compel the Land Claims Commission (Commission) officials to sign the
accepted offer of settlement of a land restitution claim. The crisp issue in this
appeal is whether it is legally permissible for a claim for restitution of rights in
land, lodged by a person or family, to be converted into a community claim by
the Commission.

[2] The respondent, Mr Bongani Cyprian Ndumo (Mr Ndumo), acting as
chairperson of the Emdwebu Community, sought a mandamus and
consequential relief in the LCC, against the first appellant, Minister of
Agriculture, Land Reform and Rural Development (the Minister); the second
appellant, the Chief Land Claims Commissioner (the Chief Commissioner); the
third appellant, the Director-General of the Department of Agriculture, Land

1 A mandamus is a form of relief seeking to compel an official to perform certain obligations.

Reform and Rural Development (the DG of the Department) and the fourth
appellant, the Regional Land Claims Commissioner: KwaZulu-Natal (RLCC).
The appellants, mainly the second and fourth appellants will collectively be
referred to as the Commission, in this judgment.

[3] The mandamus sought by Mr Ndumo was for a court order compelling the
appellants to ‘settle the Applicants’ claim for monetary compensation within
14 days of the granting of the order’. The LCC granted the order as per the
notice of motion. The appellants, aggrieved by the decision of the LCC,
successfully applied for leave to appeal. In granting leave to appeal to this
Court, the LCC formulated the grounds of appeal, limiting the issue on appeal
as follows:
‘1. Leave granted to the SCA on compelling reasons as to whether the second and
fourth respondents with their actions granted condonation to receive the claim form as
a community claim and whether they by law can do so.
2. Costs of the Application is costs in the appeal.’

[4] The background facts are that on 31 December 1998, Mr Bongani Cyprian
Ndumo (Mr Ndumo) lodged a claim for restitution of rights in land, in respect of
‘Emdwebu-Ntabamhlophe, Estcourt Ukhahlamba’ in the province of KwaZulu-
Natal. The claim was lodged with the RLCC in terms of the Restitution of Land
Rights Act 22 of 1994 (the Act). In his founding affidavit deposed to on
27 November 2020, and filed in support of the application before the LCC,
Mr Ndumo avers that he duly represents the Emdwebu Community (the
community), having been appointed chairperson of the community on
5 June 2017.

[5] In 2017, the Project Manager in the RLCC’s office, after investigating the
land claim in terms of s 12 of the Act, read with Rule 5 of the LCC Rules
(Rule 5 report), submitted a Rule 5 report which described Mr Ndumo’s claim
as ‘a community claim for the Emdwebu Community’. The RLCC signed the
Rule 5 report as a community claim on 13 October 2019. The following year the
RLCC
published
a
notice
in
the
Government
Gazette
43015
of

14 February 2020 (the gazette), describing the claimant as ‘Bongani Cyprian
Ndumo, on behalf of the Emdwebu Community (the community).’

[6] After publication of the gazette, the Commission made an unsigned
settlement offer for monetary compensation to the community. On
6 March 2020, 289 members of the community signed the offer for payment,
with each member of the community to receive R321 140, as monetary
compensation for restitution of land rights. The Commission was yet to sign. I
digress to state that during the hearing of the appeal, counsel for Mr Ndumo
made a submission that he had in his possession a copy of ‘a settlement
agreement’, signed by the Commission, including the Minister. He undertook to
submit the said document to the Court, within two days. I will revert to this
aspect later in this judgment.

[7] The Commission avers that when the memorandum recommending
settlement and a total payment of R92 million in terms of s 42D of the Act,2 was
being prepared for submission to the LCC, it was subjected to an audit by the
Legal Unit and Quality Assurance (Legal Unit). The audit revealed that the
information on the claim form lodged by Mr Ndumo in 1998, did not make any
reference to the claim being lodged as ‘a community claim on behalf of the
Emdwebu
Community’.
Consequently,
on
June
2020,
the
Chief
Commissioner issued a letter to Mr Ndumo, which reads as follows:
‘I wish to advise that it has been an oversight on my office to convert your individual
family claim to a community claim. In terms of the case law, I am bound by the claim
form that was submitted and I don’t have an authority to substitute one claim for
another or expand on the claim form.’
Having reached that conclusion, the Commission informed Mr Ndumo that the
matter would be referred to the LCC in terms of s 14(1)(b) of the Act.
Section 14(1)(b) authorises a regional land claims commissioner to issue a

2 Section 42D of the Restitution of Land Rights Act 22 of 1994, allows the Minister to enter into
an agreement of settlement with the claimants for a suitable form of restitution, including
alternative land, payment of compensation award or both.

certificate that ‘it is not feasible to resolve any dispute arising from such claim
by mediation and negotiation’ and then refer the matter to court.3 On
6 October 2020, the LCC’s Registrar received a notice of referral of the claim to
the LCC in terms of s 14(1)(b), but the hearing was overtaken by the urgent
application which resulted in this appeal.

[8] The LCC in the urgent application dealt with the questions, first, whether
the claim was a family claim or a community claim. Second, whether the
referral notice in terms of s 14(1)(b) of the Act was appropriate in this case.
Since the appeal is limited to the first question, the referral in terms of
s 14(1)(b) will not be dealt with in this judgment, save to state that the
appropriate referral to court should have been in terms of either s 14(3A) or a
review in terms of s 33 of the Act. In the latter case, the Commission would
have to set out the grounds supporting a review of its own decision. However,
the Commission raised the invalidity of the gazette as a collateral challenge in
defence of the urgent application before the LCC.4

[9] At the hearing, the LCC found and concluded in para 26, thus:
‘Twice the authority to act on behalf of the community was requested by the
Respondents and received. Requesting the authority to act from Ndumo has only one
inference: the Respondents needed the authority for the claim that they were
processing as a community claim. It is gazetted as a community claim, it is settled as a
community claim and there are lists setting out who is to receive monetary
compensation. There is no prejudice to any party, there are no competing rights, it is
not the wrong land or “new claimants” “piggybacking” on the claim. Most importantly,
all the acceptance criteria in the Act and Rules were complied with. This application
must be granted.’

[10] Before dealing with the question posed in this appeal, it is apposite to
return to the issue of the ‘settlement agreement’ I intimated earlier in this

3 The LCC correctly found that s 14(1) was not applicable in this case. No dispute had arisen
between the parties. The RLCC had erred in converting a family claim into a community claim.
4 Merafong City Local Municipality v AngloGold Ashanti Limited (CCT106/15) [2016] ZACC 35;
2017 (2) SA 211 (CC); 2017 (2) BCLR 182 (CC) para 22 et seq.

judgment. During the hearing of the appeal, counsel for Mr Ndumo submitted
that he had in his possession a settlement agreement that had been concluded
and signed by both parties. However, he was unable there and then to produce
it. He could only do so two days after the hearing of the appeal. The submission
concerning the existence of a ‘settlement agreement’ ignited a spectre of
mootness, looming large over the fate of the appeal.

[11] The document which counsel for Mr Ndumo referred to as a ‘settlement
agreement’, turned out to be a copy of a signed route form, with an internal
memorandum attached thereto. The route form, we were informed by the
Commission, is a means of internally circulating a document to a hierarchy of
officials of the Department and the Commission, in this instance including the
Minister and her Deputy for approval or disapproval. The explanation from the
Commission is that these were confidential internal documents, which were
leaked by a former member of the Commission staff, who had since resigned.

[12] It appears from the reading of the document that it is an internal
recommendation to the hierarchy of officials, ending with the Minister, and duly
signed by all officials, to authorise the RLCC to conclude and sign the
settlement offered to Mr Ndumo and the Emdwebu Community. It further
recommends to the Minister to make funds available to pay the compensation,
after the settlement has been submitted to the LCC in terms of s 42D of the Act.
In addition, that it should authorise the RLCC to sign the settlement offer. The
Commission’s Legal Unit in conducting an audit, objected to the implementation
of the recommendation to settle, which objection resulted in the RLCC not
signing the settlement offer. Consequently, the community instituted the
mandamus application. For the purpose of this appeal, it became clear that the
matter is not settled as no agreement was concluded in terms of s 42D of the
Act . The appeal is therefore not moot.

[13] Returning to the issue in this appeal, in Gamevest (Pty) Ltd v Regional
Land Claims Commissioner: Mpumalanga and Others5 (Gamevest), this Court
identified four procedural phases in the processing of claims for restitution of
land rights. Stated in sequence, each phase refers to the applicable sections of
the Act. Briefly stated, these phases are: the first phase, which deals with the
lodgement of a claim for restitution of land rights (completion of the claim form,
in terms of s 10, on a form prescribed in terms of s 16 of the Act; the second
phase deals with acceptance and publication of the claim in the gazette by the
RLCC in terms of s 11(1) applying the jurisdictional requirements stated in s 2
of the Act; the third phase involves the investigation of the claim and filing the
report in terms of ss 11(6), (7), (8), 11A, 12 and 13; and the fourth phase
involves the referral of the claim to court in terms of s 14 and s 42D.

[14] The claim filed by Mr Ndumo was not dealt with in accordance with the
sequence of the four phases identified in Gamevest. After the claim was lodged
in December 1998, there was an inordinate delay of 22 years, before the RLCC
accepted and published it in the gazette in 2020 as envisaged in phase two.
During this period of delay, the claim was researched and investigated prior to it
being gazetted. This process did not follow the sequence as outlined above.
Thereafter the Project Officer filed a Rule 5 report. Therefore, in exercising his
powers in terms of s 11(1) of the Act as in phase two, the RLCC had the benefit
of the phase three Rule 5 report at his disposal. Significantly, during the period
of delay, in 2014 an amendment to the Act was effected, allowing new claims to
be lodged between 2014 and 2019, while Mr Ndumo’s claim was pending. The
community did not lodge a separate claim.

[15] Three sections of the Act are relevant in determining whether
Mr Ndumo’s claim for restitution of land rights could be converted into a
community claim through condonation. These are ss 2, 10 and 11 of the Act.

5 Gamevest (Pty) Ltd v Regional Land Claims Commissioner: Mpumalanga and Others 2003
(1) SA 373 (SCA) at 374D-H.

Section 2(1) which deals with the jurisdictional requirements for ‘Entitlement to
restitution’, provides:
‘A person shall be entitled to restitution of a right in land if-
(a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result
of past racially discriminatory laws or practices; or
(b)…
(c)…
(d)…
(e) the claim for such restitution is lodged not later than 30 June 2019.’
In the original version of the Act, the cut-off date for lodgement of claims was
31 December 1998. In 2014, Parliament provided for a new cut-off date, being
30 June 2019, through an amendment in terms of s 1 of Act 15 of 2014. A
distinction should be drawn between the old claims (1998) and the new claims
(2019). (Own emphasis.)

[16] Section 10 of the Act provides for the details required to be filled on the
prescribed form, at the time the claim for restitution of rights in land, is lodged.
Most importantly, it requires the claimant to indicate the capacity in which the
claim is lodged, that is whether the claim is for an individual, or in a
representative capacity for a family, community, or a trust. In particular, s 10(3)
of the Act provides:
‘If a claim is lodged on behalf of a community the basis on which it is contended that
the person submitting the form represents such community, shall be declared in full
and any appropriate resolution or document supporting such contention shall
accompany the form at the time of the lodgement: Provided that the regional land
claims commissioner having jurisdiction in respect of the land in question may permit
such resolution or document to be lodged at a later stage.’

[17] Section 11(1), which provides for the procedure after lodgement of the
claim, reads:
‘(1) If the regional land claims commissioner having jurisdiction is satisfied that-
(a) the claim has been lodged in the prescribed manner;
(b) the claim is not precluded by the provisions of section 2; and
(c) the claim is not frivolous or vexatious;

He or she shall cause notice of the claim to be published in the Gazette . . .and shall
take steps to make it known in the district in which the land in question is situated.’

[18] Mr Ndumo completed a claim form on 31 December 1998, claiming the
restitution of his rights in land, belonging to his late father, Nokhenke Ndumo.
The information contained in the claim form is at the centre of this appeal. For
that reason, it is necessary to refer to the relevant parts of the claim form as
they appear in the original text, a copy of which was attached to Mr Ndumo’s
founding affidavit. The answers Mr Ndumo provided in the claim form are stated
in this judgment in italics, and itemized titles of the claim form in bold, as
follows:
‘1. Property description: Rural/Urban (Delete which is not applicable)
1.1 If it is rural land, the portion(s), name(s) and number(s) of the farm and
district in which it is situated
EMDWEBU-NTABAMHLOPHE, ESCOURT UKHAHLAMBA
…
2.3 Was any land/housing allocated as compensation R60.00 Rand
Remarks (additional information) Buildings only.
The land was last through land act (1924),
Under the chieftan of “Chief Faku Mabaso
Though the land was lost but was still
developed by generation until 1964 whereby
“forced removals/relocations applied”

3. Full particulars of person who lost the right in land:
-Name/Community/Trust: NOKHENKE NDUMO
-ID number of individual claimant:
-Male/Female (Delete which is not applicable)

4. Full particulars of applicant, if not the person who lost the right in land:
Name/Community/Trust
BONGANI CYPRIAN NDUMO
Male/Female (Delete which is not applicable)
If you are acting on behalf of a community/Trust, please give your:
Name: BONGANI CYPRIAN NDUMO
ID Number: 5208125791081

Male/Female Delete which is not applicable)
In what capacity are you acting?
DESCENDANT (SON) OF THE LATE NOKHENKE NDUMO

5. Do you know about any other family member that might have an interest or
Claim on the land? YES
5.1 If so, please give details
MR MICHAEL ISRAEL NDUMO
50 EUGENE-MARAIS STREET
PIETERMARITZBURG
3200
TEL: (033) 452841’

[19] Apart from the fact that some questions in the claim form, such as those
requiring an indication whether the claimant is male or female were not
responded to, Mr Ndumo only mentioned ‘Emdwebu’ in item 1.1 in response to
the request for location or description of the property he claimed. There is no
reference at all to the ‘Emdwebu Community’ in the claim form. The language
of s 10(3) of the Act is explicit. ‘If a claim is lodged on behalf of a community the
basis on which it is contended that the person submitting the form represents
such community, shall be declared in full…’. In response to item 4 of the claim
form, Mr Ndumo stated that he is acting in his capacity as a ‘Descendant (son) of
the Late Nokhenke Ndumo’, significantly, not as a representative of the
‘Emdwebu Community’.

[20] Attached to the Rule 5 report of investigation, as Annexure D is a letter
from Mr Ndumo to the Commission dated 7 August 2013, in which he allegedly
told Ms Mfeka of the Commission in 2012, that the claim must be called
Emdwebu Community Land Claim instead of Ndumo claim. Also attached in
Annexure D is a copy of a hand-written affidavit, deposed to by Mr Ndumo in
2013, before a member of the South African Police Service, with an illegible
date stamp. In the affidavit Mr Ndumo stated thus:
‘I made a land claim in 1998 December for compensation on forceful removal by
Apartheid Government. Since we suffered damages and a loss of cattle during

removal for [Ma]khenke Ndumo my late father. And it was called “Ndumo Land Claim”.
Now it should be “Emdwebu Claim.”
In 2013 I thought it was to include all people [A] Emdwebu who also suffered forceful[l]
removal. As a result it should not only for ‘Ndumo Claim’ I should be called “Emdwebu
Land Claim” so that all people of Emdwebu should be compensated.’ (Own
emphasis.).

[21] The documents attached in Annexure D support the Rule 5 investigation
report, which recommended to the RLCC to condone the conversion of the
Ndumo Land Claim to Emdwebu Community Land Claim. Section 11(2) of the
Act empowers or authorises the RLCC thus:
‘The regional land claims commissioner concerned may, on such conditions as he or
she may determine, condone the fact that a claim has not been lodged in the
prescribed manner.’

[22] In considering whether he was satisfied that the claim meets with the
jurisdictional factors in s 11(1) of the Act, the RLCC had before him
Mr Ndumo’s claim form lodged in December 1998 and the Rule 5 report. On the
face of it, the claim for Mr Ndumo, apart from not providing a clearer description
of the location of his late father’s farm, was lodged as a family claim in the
prescribed manner.

[23] In the present case, the LCC held that it was permissible for the RLCC
acting in terms of s 11(2) of the Act, to condone the conversion of the claim.
However, in Minaar N.O. v The Regional Land Claims Commissioner:
Mpumalanga (Minaar) which was confirmed by a line of similar cases in the
LCC,6 the LCC held that it was not permissible to condone a conversion of a
claim. What transpired in Minaar is that the claimant, Mr Nkosi Menzani

6 Minaar N.O v Regional Land Claims Commissioner, Mpumalanga (LCC 42/2006) [2006]
ZALCC 12 (8 December 2006); Bouvest 2173 CC & Others v Commission on Restitution of
Land Rights and Others (LCC 68/2006) [2007] ZALCC (7 May 2007); and Shongwe N.O &
Others v Regional Land Claims Commissioner, Mpumalanga (LCC 46/2009), an unreported
case where judgment was delivered on 27 July 2012 by Meer AJP; Illovo Sugar Ltd and
Another v Regional Land Claims Commissioner and Others (LCC 122/2014) para 18 and 21:
Mahlangu Family v Minister of Rural Development and land reform and Others (LCC 48 /2011)
para 27.

Rainslee, had completed a claim form in which he indicated that he was acting
in his capacity as a family representative. A project officer had prepared a
report for the RLCC in which he stated that the claimant had lodged a claim on
behalf of the Community of Daisy Kopje. The reason advanced was that he
found evidence of the graves of the claimant’s relatives ‘scattered’ in the area.
He therefore recommended that that claim be published in the Gazette as a
community claim. The RLCC accepted the recommendation and stated in the
gazette that the claim had been lodged by ‘Mr Nkosi Menzani Rainslee …
acting in his capacity as a Chairperson of Daisy Kopje Community’.

[24] The applicants (owners of the property) in that case objected to the
report which conveyed a wrong statement that the claim covered a wider area.
The applicants further contended that the graves referred to, were confined to a
Portion of the land referred to in the report. After all internal representations
were unsuccessful, the matter was taken on review. The LCC in paras 27 and
28 stated thus:
‘As I have indicated, there is no rational connection between the information available
to the first respondent (the RLCC) and the administrative act he performed by
concluding that the restitution claim is a claim for the entire farm Daisy Kopje, and that
it is a claim made by the fourth respondent (the Community) ….’
…In the present case, the first respondent (the RLCC) was not authorised under the
Act to add additional subdivisions of Daisy Kopje to the single subdivision claimed, nor
to replace the third respondent (Nkosi family) by the fourth respondent (the
Community).’

[25] The facts in Minaar strikingly resemble those in the present case.
Mr Ndumo’s claim form remained as it was completed on 31 December 1998,
even though 15 years later he requested by letter and affidavit that it be
changed from ‘Ndumo claim’ to ‘Emdwebu Community’ claim. This request
found favour with the researcher and Project Officer, who in the report,
requested the RLCC to condone the manner in which the claim was lodged.
The reason advanced for the condonation, arose from an allegation by the
Project Officer that there were documents missing in the file, including a Rule 5
report that was approved in 2015 and followed by a name verification report in

2018. The Project Officer recommended that in that regard, the claim be
condoned as a community claim. The RLCC accepted the claim as
recommended by the Project Officer and published the claim as a community
claim in the Gazette in 2020, 22 years after it was lodged. The Gazette stated
that the claim was lodged by ‘Bongani Cyprian Ndumo on behalf of Emdwebu
Community,’ which does not appear in the claim form.

[26] The allegation in the report that there are documents in the file which
went missing, is not satisfactorily explained. The Project Officer writes in the
last two sentences of para 2.3 of the Rule 5 report thus: ‘Upon reading the
records of the Regional Land Claims Commission it appeared that the claim is
called Ndumo Claim instead of Emdwebu claim. Hence it was regarded as a
family claim although he had submitted an affidavit with the claim form (see
Annexure 2)’. Such ‘Annexure 2’ is not referred to in, nor attached to, the claim
form. It is also not attached to the Rule 5 report. The only affidavit attached to
the Rule 5 report is the one deposed to by Mr Ndumo in 2013. It could not have
been attached to the claim form in December 1998.

[27] The LCC erred in finding that at the time Mr Ndumo lodged the claim
in 1998, he intended it to be a community claim. The LCC failed to consider
Mr Ndumo’s affidavit of 2013, which conveys that the idea to include
the community only came to him in 2013. Further, Mr Ndumo claims that in
item 1.1 of the claim form, reference to ‘Emdwebu-Ntabamhlophe, Estcourt,
Ukahlamba’ as the location of the land that is claimed is proof that it was for the
community. If indeed it is so, this statement is contradicted by the response to
para 3 of the claim form, where Mr Ndumo states that the person who lost the
right in land is Nokhenke Ndumo, his father, and not the community. His late
father could not have owned the community land described in the claim form.

[28] These inherent contradictions are at the heart of the RLCC’s contention
that the gazetting of the claim as a community claim was not in terms of s 11(1)
of the Act. The conversion of the claim occurred in 2013. On Mr Ndumo’s
version, 15 years after lodging a Ndumo family claim, a rather noble
manifestation of intent, belatedly came to him to include people of Emdwebu

Community in the claim. The benevolent idea of converting a family claim to a
community claim was for all intents a belated inclusion of people who had not
met the cut-off date, in the Ndumo family claim. In Re Former Highlands
Residents7, the LCC held thus:
‘The Restitution Act limits the benefit of restitution to persons who have lodged their
claims with the Commission by 31 December 1998. The intervening claimants
endeavoured to ride home on the fact that other claimants have timeously lodged
claims with the Commission in respect of the same property. I fail to appreciate how
the fortuitous circumstances of other claimants in respect of the same property can
relieve the intervening claimants from complying with the threshold requirements of the
Restitution Act. Late demands cannot gain validity just because other lodged timely
claims for restitution in respect of the same property. I conclude that the intervening
claimants do not have a right to restitution and that their statement of claim must be
struck out.’

[29] The RLCC’s decision to accept and gazette the Ndumo family claim as a
community claim was not authorised by the Act. That is so because there was
no rational connection between the contradictory information made available to
the RLCC, and the administrative act he performed in terms of s 11(1) of the
Act. Thus, on the facts of this case, the conversion of a family claim to a
community claim after the cut-off date, could not have been effected through
condonation in terms of s 11(2). The appeal must therefore succeed, with no
order as to costs.

7 In RE: Former Highlands Residents (LCC116/98) 2000 (1) SA 489 LCC at para 11.

[30] In the result, I make the following order:

The appeal succeeds with no order as to costs.
The order of the Land Claims Court dated 8 February 2021 is set aside
and substituted by the following:

‘The application is dismissed with no order as to costs.’

__________________________
SP MOTHLE
JUDGE OF APPEAL

APPEARANCES:
For appellant:

MS Khan SC and GZ Gumede

Instructed by:
State Attorney, Durban
State Attorney, Bloemfontein.

For respondent:

WS Gabela
Instructed by:

Gabela Wilson & Associates, Westville

Ponoane Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

19 October 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Minister of Agriculture, Land Reform and Rural Development and Others v Ndumo (obo Emdwebu
Community) (Case no 577/2022) [2023] ZASCA 136 (19 October 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with no order as to costs
an appeal against the decision of the Land Claims Court, Randburg (the LCC).
The respondent, Mr Bongani Cyprian Ndumo (Mr Ndumo), acting as chairperson of the Emdwebu
Community, sought an order against the Land Claims Commission (the Commission) in the LCC,
compelling the appellants to finalise what he referred to as ‘a community claim’ for restitution of land
rights, in terms of the Restitution of Land Rights Act 22 of 1994 (the Act). Mr Ndumo and the community
had accepted monetary compensation, within 14 days of the granting of the order’. The LCC granted
the order.
The Commission, aggrieved by the decision of the LCC, successfully applied for leave to appeal. In
granting the Commission leave to appeal to this Court, the LCC formulated the grounds of appeal,
limiting the issue on appeal as follows:
‘Whether the second and fourth respondents (the Commission) with their actions granted condonation
to receive the claim form as a community claim and whether they by law could do so.’
The Commission contended that when the memorandum recommending settlement and payment was
being prepared for submission to the LCC in terms of s 42D, it was subjected to an audit by the Legal
Unit and Quality Assurance (Legal Unit). The audit revealed that the information on the claim form
lodged by Mr Ndumo in 1998, did not make any reference to the claim being lodged as ‘a community
claim on behalf of the Emdwebu Community’. Mr Ndumo was then informed through a letter from the
Chief Commissioner that there was an oversight regarding the conversion of his individual family claim
to a community claim. The Chief Commissioner further explained that, by law he was bound to the form
that was originally submitted by Mr Ndumo and was not authorised to substitute one claim for another
or expand on the claim form.
The SCA held that Mr Ndumo completed a claim form on 31 December 1998, claiming the restitution
of land rights belonging to his late father, Nokhenke Ndumo. Furthermore, it found that some questions
in the claim form were not responded to, and that he (Mr Ndumo) only mentioned ‘Emdwebu’ in item 1.1
of the form in response to the request for location or description of the property he claimed for. The
SCA could not find any reference at all to the ‘Emdwebu Community’ in the claim form. Section 10(3)
of the Act explicitly provided: ‘if a claim was lodged on behalf of a community the basis on which it was
contended that the person submitting the form represented such community, shall be declared in full’.
Additionally, in response to item 4 of the claim form, Mr Ndumo stated that he was acting in his capacity
as a ‘Descendant (son) of the Late Nokhenke Ndumo’, significantly, not as a representative of the
‘Emdwebu Community’. The Court further found that on the face of it, Mr Ndumo’s claim for restitution
of land rights, apart from not providing a clearer de scription of the location of his late father’s farm, was
lodged as a family claim in the prescribed manner. In Minaar N.O v Regional Land Claims

Commissioner, Mpumalanga (LCC 42/2006) [2006] ZALCC 12 (8 December 2006) (Minaar), the LCC
in that matter held that it was not permissible to condone a conversion of a claim. The SCA concluded
that the facts of this case resembled those of Minaar, and therefore that the LCC erred in its findings
that at the time Mr Ndumo lodged the claim in 1998, he in fact intended it to be a community claim. The
SCA also held that the LCC should have considered Mr Ndumo’s affidavit of 2013, which conveyed that
the idea to include the community only came to him in 2013.Therefore, the Regional Land Claims
Commissioner’s (RLCC) decision to accept and gazette the Ndumo family claim as a community claim
was not authorised by the Act. That was so because there was no rational connection between the
contradictory information made available to the RLCC, and the administrative act he performed in terms
of s 11(1) of the Act. Thus, on the facts of this case, the conversion of a family claim to a community
claim after the cut-off date, could not have been effected through condonation in terms of s 11(2). The
appeal must therefore succeed, with no order as to costs.

~~~~ends~~~~