THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no. 361/2011

Not Reportable
In the matter between

MANGANGENI EMMAUS WESTMEAD RETURNERS
COMMUNITY TRUST

First Appellant
MUNTOZWAYO SOLOMON PHEWA

Second Appellant
BOBO ANTHANASIUS MGOBHOZI

Third Appellant
THEMBI ANNACLETTAH MBILI

Fourth Appellant
HENRY SANDILE HLENGWA

Fifth Appellant
SIZAKELE PAULINA MOLEFE

Sixth Appellant

and

MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM

First Respondent
KWAZULU NATAL REGIONAL LAND
CLAIMS COMMISSIONER

Second Respondent
ITHALA LIMITED

Third Respondent

Neutral citation:
Mangangeni Emmaus Westmead Returners Community Trust v
The Minister of Rural Development and Land Reform (361/2011)
[2012] ZASCA 89 (31 May 2012)
Coram:
FARLAM, NAVSA et MAJIEDT JJA, SOUTHWOOD et
PETSE AJJA
Heard:

14 May 2012
Delivered:

31 May 2012

Summary:
Settlement of land claim in terms of Restitution of Land Rights Act 22 of
1994 – agreements to regulate holding and control of funds paid pursuant to
settlement – claimants’ trust’s entitlement to payment of funds not unqualified.

____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
Kwazulu Natal High Court (Durban) (Cele J sitting as court of first
instance):
1. The application to amend the notice of motion is refused;
2. The appeal is upheld only insofar as it relates to the decision to uphold the
point in limine on jurisdiction;
3. The orders of the court a quo are set aside and replaced with the following
orders:
‘a.  The two points in limine are dismissed:
b.  The application is dismissed with costs, such costs to be paid by the
second, third, fourth, fifth and sixth applicants in their official capacities.’
4. The second, third, fourth, fifth and sixth appellants in their official capacities are
ordered to pay the costs of this appeal.
____________________________________________________________________
JUDGMENT
____________________________________________________________________
SOUTHWOOD AJA (FARLAM, NAVSA, MAJIEDT JJA and PETSE AJA
concurring)
[1] This appeal is concerned with the right to control two amounts (R5 445 468 for
the restitution capital award and R732 865.75 for the restitution discretionary award)
paid by the first respondent to the third respondent pursuant to a s 42D settlement
agreement (the s 42D agreement) entered into in terms of the Restitution of Land
Rights Act 22 of 1994 (the Act) and three transfer of funds agreements. The first issue
to be decided is whether the court a quo had jurisdiction in respect of the appellants’
claims for:
(a) a declarator that two transfer of funds agreements were invalid or had lapsed;
(b) a declarator that it is in the interests of the first appellant and its members that the
first appellant takes control and management of the funds held by the third
respondent;
(c) an order that the third respondent pay to the first appellant the sums of
R5 925 624.91 (the balance of the restitution capital award) and R397 428.39 (the
balance of the restitution discretionary award); and

(d) an order that on the date of making payment, the third respondent provide a full
account of all funds received by it and interest earned on investments.
The second issue to be decided is whether, if the court a quo had jurisdiction, it
should have granted the appellants the relief which they sought. The parties agree
that if the court a quo had jurisdiction this court should decide the merits. The
appellants’ application for leave to amplify the record by placing a second, signed s
42D agreement before this court was not opposed.

[2] Only the first and second respondents (the respondents) opposed the
application in the court a quo. Apart from opposing the grant of the relief sought the
respondents raised two points in limine: the first was that the second appellant did not
have authority to bring the application and the second was that the court a quo did not
have jurisdiction to decide the claims. The court a quo dismissed the first point but
upheld the second and (wrongly)1dismissed the application (it should have removed
the matter from the roll).2 The appellants appeal with the leave of this court. They seek
to overturn the court a quo’s finding on jurisdiction and the grant of the relief sought in
the notice of motion.

[3] The Act provides that a person entitled to claim restitution of a right in land may
lodge a claim (s 10 (1)) and that if the regional land claims commissioner is satisfied
that the claim has been lodged in the prescribed manner, that it is not precluded by s 2
and that it is not frivolous or vexatious, he or she shall give notice of the claim in the
Government Gazette (s 11 (1)). Thereafter the Commission may investigate the claim
(s 12) and the claim may be referred to mediation and negotiation (s 13 (1)) or to court
(s 14(1)). During the investigation by the Commission the interested parties may enter
into a written agreement as to how the claim should be finalized and the regional land

1 In this context jurisdiction means ‘the power of the court by law to adjudicate upon, determine and
dispose of a matter’ (Ewing McDonald & Co Limited v M & M Products Co 1991 (1) SA 252 (A) at 256G)
and the crucial time for determining  whether a court has jurisdiction is the time when proceedings are
commenced: once established jurisdiction continues to exist until the end of the proceedings even
though the ground upon which it was established ceased to exist (Thermo Radiant Oven Sales (Pty) Ltd
v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 310D). Consequently once the court had found
that it did not have jurisdiction it had no power to dismiss the application and should have merely
recorded that it upheld the special plea on jurisdiction (Communication Workers Union v Telkom SA Ltd
1999 (2) SA 586 (T) at 599B-C.)
2 The judgment/order of a court on the merits of a matter when the court does not have jurisdiction is a
nullity (Lewis & Marks v Middel 1904 TS 291 at 303; Suid-AfrikaanseSentrale Ko-operatiewe
Graanmaatskappy Bpk v Shifren and others and the Taxing Master 1964 (1) SA 162 (O) at 164 g-h;
Communications Workers Union v Telkom SA Ltd 1999 (2) SA 586 (T) at 593 G-H).

claims commissioner may certify in writing that he or she is satisfied with the
agreement and that it ought not to be referred to the court (s 14 (3)). The Minister may
also enter into an agreement with the parties (s 42D).
The relevant provisions of s 42D provide as follows:
‘(1)
If the Minister is satisfied that a claimant is entitled to restitution of a right in land in
terms of section 2, and that the claim for such restitution was lodged not later than 31
December 1998 he or she may enter into an agreement with the parties who are interested in
the claim providing for one of more of the following:
(a) The award to the claimant of land, a portion of land or any other right in
land: Provided that the claimant shall not be awarded land, a portion of land
or a right in land dispossessed from another claimant or the latter’s
ascendant, unless –
(i) such  other claimant is or has been granted restitution of a right in land
or has waived his or her right to restoration of the right in land in
question; or
(ii) the Minister is satisfied that satisfactory  arrangements have been or will
be made to grant such other claimant restitution of a right in land;
(b) the payment of compensation to such claimant;
(c) both an award and payment of compensation to such claimant;
(d) … (deleted);
(e) the manner in which the rights awarded are to be held or the compensation
is to be paid or held; or
(f) such other terms and conditions as the Minster considers appropriate.
(2)
If the claimant contemplated in subsection (1) is a community, the agreement must
provide for all the members of the dispossessed community to have access to the land or the
compensation in question, on a basis which is fair and non-discriminatory towards any person,
including a tenant, and which ensures the accountability of the person who holds the land or
compensation on behalf of such community to the members of the community.
(3)
The Minister may delegate any power conferred upon him or her by subsection (1) …
to the Director-General of Land Affairs or any other officer of the State or to a regional land
claims commissioner.’

[4] The court referred to is the Land Claims Court established by s 22, the relevant
provisions of which read as follows:

‘(1)
There shall be a court of law to be known as the Land Claims Court which shall have
the power, to the exclusion of any court contemplated in s 166(c), (d) or (e) of the
Constitution–
(cC) to determine any matter involving the interpretation or application of this Act …
(d) to determine all other matters which require to be determined in terms of this Act.’
It is clear from the provisions of s 22 read with s 23, which provides for the
qualifications of judges of the court, that the court is a specialized court,3and that it has
exclusive jurisdiction in respect of the matters referred to: i.e. the jurisdiction of the
high court in respect of all the matters referred to is clearly excluded4.

[5] The first question which arises in this appeal is whether the determination of the
disputes between the parties involves the interpretation or application of the Act (s
22(1) (cC)) or is a matter which requires to be determined in terms of the Act (s 22(1)
(d)). These issues necessitate an analysis of the facts which must be taken into
account in accordance with the Plascon-Evans principles.5 There is no suggestion that
the respondents’ version or any part of it should be rejected on the papers6 but it is
clear that in at least one important respect the respondents did not properly engage
with the facts alleged by the appellants and did not create a bona fide dispute of fact.
Where this happens the court is entitled to accept the correctness of the facts averred
by the appellants.7

[6] The relevant facts are as follows: the appellants are the Mangangeni Emmaus
Westmead Returners Community Trust (the Trust), which was established to act on
behalf of the claimants under the Act, and the Trust’s five trustees. The first
respondent is the Minister of Rural Development and Land Reform who is charged
with the administration of the Act. The second respondent is the Kwazulu Natal
Regional Lands Claims Commissioner and the third respondent is a Durban-based
investment bank.

3 Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and Community
Restoration Association and others 2007(2) SA 531 (CC) para 19
4De Bruin v Director of Education 1934 AD 252 at 256 and 258; Lenz Township Co (Pty) Ltd v Lorentz
NO en andere 1961 (2) SA 450 (A) at 455B – C.
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634D – 635C and
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 26
6 National Director of Public Prosections v Zuma supra para 26
7 Wightman v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) paras 12 and 13

[7] On 14 August 1995 about seven hundred people calling themselves the
Mangangeni Emmaus Westmead Returners Committee lodged a claim under the Act
in respect of portions of the farm Zeekoegat No 973 owned by the Marianhill Mission
Institute and the farms Salt River, Stockville and Richmond. On 25 April 1997, acting
in terms of s 11(1) of the Act, the second respondent published a notice of the claim in
the Government Gazette.

[8] After the claim was published in the Government Gazette, representatives of
the claimants and the second respondent met on a number of occasions with a view to
reaching agreement on the restitution award and the purchase of the property from the
Marianhill Mission Institute. Eventually the second respondent prepared a draft
agreement which provided that –
(a) the first respondent would pay a restitution award of R6 770 500 to the
claimants;
(d) a portion of the award would be used to pay the Marianhill Mission
Institute for the land to be purchased by the claimants;
(c) the claimants would establish a trust (i.e. the first appellant) to represent
two hundred and fifty claimants;
(d) the first respondent would pay the balance of the restitution award to the
Trust after the purchase price of the property had been paid.
The claimants agreed with these proposals and it was agreed that they would be
incorporated in a s 42D agreement.

[9] Thereafter
there
were
numerous
meetings
between
the
claimants’
representatives and the second respondent’s representatives during which the parties
attempted to reach agreement as to how the funds should be managed to ensure that
all the claimants would benefit equally. This seemed to be an insurmountable problem.

[10] Eventually, in July 2003, the first appellant and the respondents entered into a s
42D agreement in terms of which:

(a) it was agreed that the total value of the 250 claims was R6 770 500;
(b) the State agreed to restore to the claimants, portions of the remainder of
portion 79 of the farm Zeekoegat 937 and portion 8 of erf 6388 Pinetown
registration division FT, Province of Kwazulu Natal (‘the land’);

(c) it was agreed that the sum of R1 333 885 would be deducted from the total
value of the claims and would be utilised by the State to purchase the land
from the registered owners;
(d) the remainder of the total value of the claims after purchase of the land
(R5 436 618) would be held by the first appellant in an interest-bearing
account;
(e) the land would be transferred from the registered owners to the first
appellant for the purpose of developing the land on behalf of the 250
claimants so that each claimant would receive a residential sub-division in
the township and a share in the development of the remaining land in
accordance with the Emmaus Development Concept dated 29 October
2001;
(f) the first appellant and the Department would enter into an agreement
containing the terms and conditions pertaining to the transfer of funds to the
first appellant in terms of the concept plan. This agreement would outline
the first appellant’s and the State’s continuing obligations to set up proper
controls and risk management systems to ensure that the benefits of the
agreement reached the individual claimants;
(g) the first appellant was obliged to allocate to each claimant a single
residential site within the development of the land;
(h) the claimants would apply to the State for development assistance or
subsidies and the State  would assist the claimants in the  application by
paying a restitution discretionary grant of R3000 per claimant;
(i) prior to or simultaneously with the transfer of the land to the first appellant
the State would pay to the first appellant the balance of the total claim
together with the restitution discretionary grant of R3000 per claimant and
the first appellant would hold these amounts in an interest-bearing account
for the benefit of the claimants and such amount would together with the
interest thereon be utilized by the first appellant in accordance with the
provisions of the agreement.
(The respondents’ denial that they signed the agreement and the implication that the
agreement was not entered into is, to say the least, disingenuous. One of the second
respondent’s letters refers to the signed agreement and does not dispute that the
agreement was entered into. Two later agreements refer to the fact that the land claim

was settled in terms of an agreement which is annexed to these agreements as an
annexure and the respondents paid over to the third respondent, for the benefit of the
first appellant and the claimants, the restitution capital award and the restitution
discretionary award. The respondents have not produced any other document which
would support such payments.)

[11] In about June 2003 the National Department of Land Affairs, the Commission
on the Restitution of Land Rights Kwazulu Natal, the Ithala Development Finance
Corporation Limited (third respondent) and the first appellant entered into a written
agreement for the transfer of the restitution capital award and the restitution
discretionary award to the third respondent for the benefit of the Mangangeni Emmaus
Westmead Land claimants. After referring in the extensive preamble to (a) the s 42D
agreement (attached as an annexure); (b) the parties’ wish to transfer, receive and
ensure the proper management of the funds to enable the claimants’ trust (i.e. first
appellant) to implement the various projects; (c) the amounts to be transferred to the
first appellant (restitution capital award of R5 511 879 and restitution discretionary
award of R750 000); (d) that payment would be effected to the first appellant’s trust
account with the third respondent; (e) that the funds would remain in the third
respondent’s account until full expenditure and reconciliation; (f) that the third
respondent would be responsible for the management and disbursement of the funds
and (g) that the first appellant and the Commission would set up and adhere to a fair,
transparent and equitable system for the disbursement of the funds by the first
appellant, the parties agreed on the terms and conditions applicable to the funds to be
paid over to the first appellant. These terms and conditions provide that the funds
would be received, managed and disbursed by the third respondent in accordance
with the agreement, which required the approval and consent of the second
respondent and compliance with the procedures prescribed by the agreement.

[12] On 2 September 2003 the first appellant and the Marianhill Mission Institute
entered into a written agreement in terms of which the first appellant purchased from
the Institute for a purchase price of R1 315 032 portion 326 of the farm Zeekoegat and
portion 8 of erf 6388 Pinetown. Transfer of the land to the first appellant was delayed
because of the second respondent’s concerns about the way the Trust was being

managed and neither the restitution capital award nor the restitution discretionary
award was paid to the first appellant.

[13] On 8 February 2006 the Director-General of the Department accepted the
recommendations of the regional land claims commissioner, inter alia, that the
Director-General approve the transfer of the restitution discretionary award (R750 000)
and the restitution capital award (R5 455 468) to the third respondent and that the
Director-General sign the transfer of funds agreement between the Department and
third respondent. On the same day the Director-General signed agreements for the
transfer from the Department to the third respondent of the restitution capital award
and the restitution discretionary award which had already been signed by the Regional
Land Claims Commissioner and the third respondent. The agreements, which are in
identical terms, record that the parties wish to ensure the proper management of the
funds to enable the first appellant to implement the relevant programme and that the
funds would be paid over to the first appellant but would be managed by the third
respondent which would invest, manage and make payments strictly for the purposes
and in terms of the conditions set out in the agreement. The agreements also stipulate
that the Department would remain responsible for the utilization of the funds and that
the Department appointed the third respondent to act on its behalf in receiving,
managing and administering the funds.

[14] On 28 February 2006 the Department paid the sum of R5 455 468 (the capital
award of R6 770 500 less the sum of R1 315 032 for the purchase of the land) into the
third respondent’s bank account No 7911670 and on 6 March 2006 the Department
paid the sum of R732 865.75 (the discretionary grant of R750 000 less rates of
R17 134 for 2003/4 and 2004/5) into the third respondent’s bank account No
79212157.

[15] On 5 December 2007 the Marianhill Mission Institute transferred the land into
the name of the first appellant which since then has paid property rates totalling
R524 800. The respondents state that these rates will be refunded as the municipality
has exempted land reform beneficiaries from paying rates.

[16] Since receiving the funds the third respondent has continued to hold them in
the two accounts and has disbursed funds from time to time to or on behalf of the first
appellant, but only with the approval of the respondents. The respondents have raised
concerns about the appellants’ management of the Trust and there have been
allegations, all hearsay and unsubstantiated, that the second to sixth appellants have
been removed as Trustees. The affidavits show that none of the Trustees has been
removed and that no steps have been taken to remove any of them.

Locus Standi
[17] Although the respondents contended in their heads of argument that the court a
quo should have upheld the first point in limine, in oral argument before this court the
respondents disavowed any reliance on the point raised. Accordingly it requires no
further consideration.

Jurisdiction
[18] The court a quo upheld the respondents’ point in limine that the high court has
no jurisdiction to decide the matters raised in the affidavits on the simple basis that the
respondents had not signed the s 42D agreement and by implication had not entered
into such an agreement. This finding was contrary to the respondents’ concession in
their heads of argument (i.e. that it was common cause that the first appellant and the
respondents had entered into the s 42D agreement annexed to the founding affidavit
as MSP12) and the other undisputed facts. Briefly, these were that a claim had been
lodged under the Act; that the claim had been settled and a discretionary award
tendered; that the two amounts were paid by the respondents to the third respondent
pursuant to the settlement and tender and no basis for the payment other than the
s 42D agreement was canvassed in the affidavits. The special plea on jurisdiction
should therefore not have been decided on the basis that no s 42D agreement had
been entered into.

[19] It was clear that agreement had been reached that the restitution capital award
and the restitution discretionary award would be paid and the court had to decide
whether the two transfer of funds agreements entered into on 8 February 2006
(MSP27 and KR3) were invalid or, if valid, had lapsed, and whether in the light of the
s 42D agreement and the three transfer of funds agreements the first appellant was

entitled to payment of the balances owing in the two accounts managed and controlled
by the third respondent. The answer to these questions depends upon the law of
contract and the interpretation of the agreements concerned. They clearly do not
involve the application or interpretation of the Act (s 22(1) (cC)) and are not matters
which require to be determined in terms of the Act (s 22(1) (d). The point in limine
regarding jurisdiction should therefore have been dismissed.

The relief sought
[20] In their founding papers the appellants sought a declarator that the transfer of
funds agreement in respect of the restitution discretionary award (MSP27) was invalid
or had lapsed but clearly the appellants had to seek the same relief in respect of the
transfer of funds agreement pertaining to the restitution capital award (KR3). The
appellants did not seek any relief in respect of the agreement for the transfer of the
restitution capital award and the restitution discretionary award entered into in June
2003 to which the first appellant was a party (KR4). The appellants alleged in their
founding affidavit that the transfer of funds agreement (MSP27) was ‘in violation of the
settlement agreement’ and that it is unconstitutional, invalid and of no force and effect.
The appellants further alleged that even if the agreement was valid it had lapsed and
the respondents were no longer entitled to control and manage the funds pursuant to
the agreement. In their heads of argument the appellants conceded (correctly) that the
transfer of funds agreements give the respondents, particularly the third respondent,
the power to manage and control the first appellant’s funds. The appellants argued
simply that because the transfer of funds agreements were concluded without the
consent of the appellants they were invalid and of no force and effect. No other
grounds of invalidity were referred to. The appellants made no submissions regarding
the agreement for the transfer of the restitution capital award and the restitution
discretionary award entered into in June 2003 (KR4). Without making submissions
regarding the relief sought the appellants asked for the relief claimed in the notice of
motion. In oral argument the appellants’ counsel (who did not prepare the heads of
argument) contended that the transfer of funds agreements (MSP27 and KR4) were
no longer in force because they were only intended to operate for a period of 24
months from 8 February 2006. This was alleged in the founding affidavit and was
denied by the respondents, who did not pertinently allege that the Department or the
parties had agreed that the agreements should continue to operate after that time.

[21] It has not been shown that the two transfer of funds agreements (MSP27 and
KR3) are invalid. The mere fact that the agreements were entered into without the
appellants’ consent would not render them invalid. Neither would the mere fact that
the agreements appear to be in conflict with another agreement between different
parties render them invalid. But, in any event, the transfer of funds agreements are
consistent with the provisions of clause 1.2.5 of the s 42D agreement which require
that the funds be safeguarded once they are transferred to the first appellant.

[22] It has also not been shown that the two transfer of funds agreements have
lapsed with the effluxion of time. The respondents pertinently deny this and when read
in context this denial clearly indicates that (as provided in the agreements) the
Department had decided or the Department and the third respondent had agreed that
the third respondent would continue to manage and control the funds in accordance
with the agreements. There is no other explanation for the third respondent’s
continued management and control of the funds.

[23] The appellants have not even attempted to explain the status of the transfer of
funds agreement entered into in June 2003 (KR4). There is no allegation that it was
invalid or that it was terminated and the appellants correctly say this agreement left
the first appellant with no powers whatsoever regarding the use and disbursement of
the funds. The agreement clearly provides for the third respondent to invest, manage
and disburse the funds in accordance with the agreement and instructions from the
regional lands claims commissioner.

[24] The appellants have therefore not shown that they are entitled to any of the
declarators claimed in the notice of motion.

[25] For the same reasons it cannot be found that the appellants are entitled to an
order that the third respondent pay to the first appellant the two amounts in the
accounts controlled by the third respondent. Section 42D empowers the Minister (and
his delegates) to agree on the manner in which the rights awarded are to be held or
the compensation is to be paid or held or any other terms and conditions which he
considers appropriate. The s 42D agreement provides in clause 1.2.5 for agreement to

be reached on the transfer and management of the funds awarded. The first transfer
of funds agreement, to which the first appellant was a party (KR4) clearly gives effect
to this clause. The transfer of funds agreements entered into in 2006 (MSP27 and
KR3) have the same object. The three transfer of funds agreements plainly provide for
the third respondent to act on behalf of the respondents in managing and controlling
the funds and the appellants have not demonstrated any right to payment free from
such control.

[26] During oral argument the appellants’ counsel applied, informally, for the notice
of motion to be amended to include a prayer for ‘an order authorising the first
appellant to have free and unfettered control of and access to the funds held on its
behalf by the third respondent’. The respondents objected to this amendment because
it would change the whole complexion of the application. I agree and the application
for an amendment will be refused.

[27] The appellants have therefore not shown that they are entitled to any of the
other relief sought in the notice of motion.

[28] It remains to mention the failure of both sides’ counsel to provide the court with
a chronology as required by rule 10(3) (d). One purpose of a chronology is to facilitate
the reading and understanding of the record which in this case does not follow a clear
and logical sequence. The absence of the chronology has substantially increased the
burden of preparing for this appeal. Practitioners should note that such failures to
comply with the rules can result in an order disallowing their fees.8

[29] The following order is made:
1 The application to amend the notice of motion is refused;
2. The appeal is upheld only insofar as it relates to the finding on jurisdiction;
3. The orders of the court a quo are set aside and replaced with the
following orders:
‘a. The two points in limine are dismissed;

8 See Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1988 (3) SA 938
(SCA) ([1998] 3 All SA 175) para 36; Premier Free State and Others v Firechem Free State (Pty) Ltd
2000 (4) SA 413 (SCA) paras 45 and 48; Van Aardt v Galway 2012 (2) SA 312 (SCA) para 34

b. The application is dismissed with costs, such costs to be paid by the second,
third, fourth, fifth and sixth applicants in their official capacities.’
4. The second, third, fourth, fifth and sixth appellants in the official capacities are
ordered to pay the costs of this appeal.

_________________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANTS:
V I Gajoo SC
Instructed by:

M.E. Mbhele & Co, Pinetown;

Phalatsi & Partners, Bloemfontein.

FOR RESPONDENT:
T V Norman SC (with her C M Nqala)
Instructed by:

State Attorney, Durban;

State Attorney, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2012
Status:
Immediate

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

MANGANGENI EMMAUS WESTMEAD RETURNERS COMMUNITY TRUST v
MINISTER OF RURAL DEVELOPMENT

The Supreme Court of Appeal today held that that the Trust formed by the 250 successful
claimants in a claim under the Restitution of Land Rights Act 22 of 1994 (to receive and hold
the land and funds awarded on behalf of the successful claimants) had no right to receive and
disburse the amounts awarded where the amounts had been paid to a third party ( a bank)  to
invest, manage and disburse in accordance with the provisions of agreements providing for
such control to be exercised by the bank. The Supreme Court of Appeal upheld the appeal
against the finding of the KwaZulu-Natal High Court that the High Court did not have
jurisdiction to hear the application and after considering the merits of the trust’s claims
dismissed the application.

The claimants had successfully claimed in terms of the Act and had formed a trust to receive
and manage the land and the funds awarded. The Department and the regional land claims
commissioner wished to safeguard the land and the funds to ensure that all of the claimants
benefitted equally. The Department, the regional land claims commissioner, the bank (the
third respondent) and the trust entered into an agreement in terms of which the funds would
be paid over to the bank to invest, manage and disburse in accordance with the agreement and
the Department’s and regional land claims commissioner’s instructions. Later, when the
funds were to be paid, the Department and regional land claims commissioner and the bank

entered into two further agreements containing the same terms. These agreements provided
that the bank would receive the amounts awarded and invest, manage and disburse the funds
in accordance with the agreements and subject to the instructions of the Department and the
regional land claims commissioner. The appellants sought orders declaring that the last two
agreements were invalid or, if valid, had lapsed and an order for payment of the funds
received by the third respondent. The KwaZulu-Natal High Court upheld a point that the
High Court did not have jurisdiction to hear the application because the High Court’s
jurisdiction was excluded.

The Supreme Court of Appeal found that the High Court did have jurisdiction because the
issues were not covered by the provisions of s22 of the Act which confers exclusive
jurisdiction on the Land Claims Court. Nevertheless the Supreme Court of Appeal found that
the agreements governing the management of the funds were still binding and the appellants
were not entitled to the relief which they claimed.