THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 116/2014

Not Reportable

In the matter between

CHRISTOPHER CHARLES DE MOWBRAY
APPELLANT
NIEHAUS

and

THE REGIONAL LAND CLAIMS
FIRST RESPONDENT
COMMISSIONER

THE CHIEF LAND CLAIMS

SECOND RESPONDENT
COMMISSIONER

THE MINISTER OF RURAL

THIRD RESPONDENT
DEVELOPMENT & LAND REFORM

MOSIMA COMMUNITY

FOURTH RESPONDENT

MAJADIBODU COMMUNITY

FIFTH RESPONDENT

MABULA-MOSIMA COMMUNITY
SIXTH RESPONDENT

Neutral citation: Niehaus v The Regional Land Claims Commissioner
& others (116/2014) [2015] ZASCA 51 (27 March
2015)

Coram:
Mpati P, Maya, Cachalia and Bosielo JJA and Van der
Merwe AJA

Heard:
12 March 2015

Delivered: 27 March 2015

Summary: Restitution of Land Rights Act 22 of 1994 – registered
owner of two farms seeking a declarator that there are no
land claims lodged with the Land Claims Commissioner in
respect thereof – court a quo ordering the Commissioner to
publish a notice in terms of s 11(1) of the Act – whether
court competent to make such an order.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Land Claims Court, Randburg (Loots AJ sitting as
court of first instance):

The appeal is upheld with costs which shall include the costs of
two counsel.
Paragraphs 1 and 3 of the order of the court below are set aside.
2.1
The notice, published pursuant to paragraph 3 of the order of the
court below, under Government Notice 1044, on 25 October 2013
in Government Gazette in respect of the appellant‟s properties Star
567 LR and Onschuld 568 LR, forming part of Onschuld 551 LR
(“the properties”) is declared invalid.
The matter is referred back to the Land Claims Court for it:
3.1
to afford all the respondents an opportunity to address the
court on the question of whether or not the fifth respondent
(or any other person) had, prior to 31 December 1998,
lodged any valid claims in terms of s 10 of the Restitution of
Land Rights Act 22 of 1994 against the properties;
3.2
and consider any other issues properly raised in the papers
before court;
The first and second respondents are ordered to pay the costs of the
hearing on 25 April 2013.

__________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Mpati P, Maya, Cachalia JJA and Van der Merwe AJA
concurring):

[1] This is an appeal against a judgment by Loots AJ in the Land
Claims Court, Randburg granted on 6 September 2013. The appeal is
with the leave of the court below. The order of judgment which is the
subject of this appeal reads:
„1. The application is dismissed.
2. The notice published by the first respondent in terms of s 11A(4) [the Restitution of
Land Rights Act 22 of 1994 (Restitution)], being Government Notice No. 343 in
Government Gazette 36307 dated 5 April 2013, is hereby set aside.
3. The first respondent is ordered to publish, within 30 days of the date of this order,
notice in terms of s 11(1) of the Restitution of Land Rights Act 22 of 1994 of the fifth
respondent‟s claim in respect of the applicant‟s two farms and to give notice that
Government Notice No. 343 in Government Gazette 36307 dated 5 April 2013 has
been set aside by this court.
4. No order is made as to costs.‟

[2] This matter has had a long and chequered history, depicting a sad
picture of administrative ineptitude on the part of first respondent. The
background facts which led to this protracted litigation can be broadly set
out as follows. The appellant is the registered owner of two farms, to wit,
Star 567 LR and Onschuld 551 LR, a consolidation of Portion 3 of
Eyzerbeen 553 LR and Onschuld 568 LR as disputed on consolidated title
deed number T146587/02. He conducts game farming on the two farms in
Limpopo (the properties).

[3] During or about February 2006, the appellant obtained a copy of
Notice 411 of 2005, published in GG 27352, 11 March 2005 to the effect
that the Majadibodu Community (the fifth respondent) had lodged land

claims over certain property in Limpopo. The properties did not appear in
that notice. As the appellant had received an unconfirmed report that
there may be land claims over the properties he instructed a firm of
attorneys to seek confirmation in writing from the Regional Land Claims
Commissioner. But despite repeated requests, no reply was forthcoming.
As a result, the appellant served a request for information on the
Commissioner in terms of the Promotion of Access to Information Act 2
of 2000 (PAIA) on 10 August 2006. The Commissioner responded on 1
November 2006 saying that „… we have checked our land-base and there
is currently no information regarding any land claims on these two
farms.‟

[4] Furthermore, an undertaking was made that in the event that new
information suggesting that there were any claims in respect of the
properties, the appellant would be notified. As no information was
forthcoming from the commissioner, the appellant assumed that there
were no claims in respect of the properties and abandoned his
investigations.

[5] To his utter astonishment, the appellant received notification
during December 2009 that restitution claims had been lodged against the
properties by the fifth respondent. So, the appellant again instructed his
lawyers to investigate this matter further with the Commissioner. When
the Commissioner failed to give any meaningful reply, the appellant‟s
attorneys filed another formal request for information under PAIA at
appellant‟s request. In response to many repeated reminders, a bundle of
documents were delivered to appellant‟s attorneys on 1 April 2010, but

none of the documents furnished contained any information pertaining to
the properties.

[6] Despite this, the commissioner maintained that there were claims in
respect of the properties on its computer database. Faced with this
situation, the appellant demanded that the properties be removed from the
Regional Land Claims Commissioner‟s database. Except for an
acknowledgment of receipt, there was no substantive response to this
demand, and the appellant was not able to find any acceptable proof that
legitimate claims existed over either of his properties.

[7] The appellant therefore had no alternative but to institute
proceedings in the Land Claims Court (LCC) primarily for an order
declaring that there were no valid claims, as defined in s 1 of the
Restitution Act, which had been lodged against his properties including
any claims by the Mosima Community, the Majadibodu Community and
the Mabula – Mosima Community, together with some ancillary relief.

[8] The first and second respondents filed opposing papers. They
answered through Mr Tele Alfred Maphoto (Maphoto), who described
himself as the Acting Chief Land Claims Commissioner, Chief Director
for Land Restitution Support in Limpopo, and the former Regional Land
Claims Commissioner for Limpopo. Maphoto responded by a letter as
follows:
„We still do not know how and why the farms appear on the systems but we cannot
rule out the possibility of a supporting document until the restitution process has been
finalised.‟
He proceeded to state that:

„Having regard to the proximity of the two farms to the other farm claimed by the
Majadibodu Community, it may be that the Fifth Respondent may have claimed them.
This aspect can only be decided once the Majadibodu claim has been finalised.‟

[9] When the matter came before Gildenhuys J he ordered the
Commissioner to report on whether it was possible and feasible to
identify from its records if any land claims had been lodged over the
properties. Maphoto responded that the first respondent‟s office had
checked all their records and found in its hard copy files relating to the
three communities no evidence of claims having been lodged in respect of
the properties. However, its electronic database showed that they were
affected by the claims. Curiously, his report then concluded:
„It would seem that the farms were erroneously or fraudulently captured on the
electronic land claim database as they do not appear anywhere in the hard copies and
therefore our office will take the corrective measures by removing the farms from the
database.‟
However, the first respondent never removed the properties from the
database.

[10] The matter came before Loots AJ on 4 December 2012. She issued
an order by consent of the parties in terms of which the first to third
respondents were, amongst others, required to deliver a status report in
respect of the claims lodged by fifth respondent in the Waterberg area by
15 February 2013.

[11] In response hereto, a status report was delivered by the State
Attorney. The applicant‟s properties appeared last in a schedule attached
to the status report with the caveat „farms still to be researched‟. There
was a further explanatory note that the properties had not been researched

and gazetted as they did not appear on the Commission‟s database at the
time of the research. The note ended that they would be researched in the
2013/2014 financial year.

[12] In its attempt to comply with the further order by Loots AJ to
publish notice of the claims in respect of the properties in terms of s 11(1)
of the Restitution Act by not later than 31 March 2013, the first
respondent published a notice purporting to amend the notice of 11
March 2013 by adding the applicant‟s two forms. This was published in
terms of s 11(A)(4) as Government Notice 343, GG 36307, 5 April 2013.

[13] The appellant attacked both the status report and the notice
published in the Government Gazette. Regarding the status report, it was
contended that as the report reflected that no investigations had been
made in respect of the properties, it did not comply with the court order.
But the court a quo found, correctly in my view, that the attack was
without merit as the court order did not go so far as to instruct the
respondents to undertake any investigation.

[14] However, regarding the notice, the court below found that it was
not in accordance with the court order as it was issued in terms of
s 11A(4) instead of s 11(1) of the Restitution Act. Accordingly, it set the
notice aside. The court below then ordered the first respondent to publish
within 30 days of the date of the order, a notice in terms of s 11(1) of the
Restitution Act of the fifth respondent‟s claim in respect of the properties
and to give notice that Government Notice No 343 had been set aside by
the Court.

[15] Regarding the main claim, the court below found that it could not
grant an order declaring that there are no claims lodged against the
properties as one of the communities had come forward asserting that it
had lodged a claim and providing evidence thereof. As the court found
this to be an insuperable obstacle to the relief claimed it dismissed the
application.

[16] Before us the appellant submitted that, as the fifth respondent, the
community asserting a claim in respect of the properties, did not
participate in the proceedings, it was premature and impermissible for the
court below to have dismissed the application on the papers. It was
submitted further that as no evidence has been tendered as proof that a
claim has been registered properly in terms of s 11(1) in respect of the
properties, the appropriate order was for the matter to be remitted to the
court below for further hearing, in particular to afford the respondents the
opportunity to address the court on the question of whether or not the
fifth respondent (or any other person) had, prior to 31 December 1998,
lodged any valid claims in terms of s 10 of the Restitution Act against the
two properties. I agree.

[17] Regarding the order to publish a notice in terms of s 11(1), it was
contended that it was not competent for the court below to make such an
order as, first, none of the parties had sought such a relief and, secondly,
there was no evidence that the first and second respondents had met the
jurisdictional requirements in s 11(1).

[18] It is clear that the question whether any claim has been registered
in terms of s 11(1) against the appellant‟s two properties is still not

answered. The respondents have not been able to give a clear and
unequivocal response to the appellant‟s numerous enquiries. This is
notwithstanding the undisputed fact that the appellant‟s enquiries span a
period of not less than 10 years. What is worse is that the respondents
have proffered contradictory versions on the status of the claim. The
appellant‟s position has been compounded by the un-cooperative attitude
and unexplained failures by the respondents to respond to his concerted
enquiries. Regrettably, this uncertainty is still persisting to date.

[19] There should be no doubt that this uncertainty over the properties
has caused the appellant anxiety. For instance, in terms of s 11(7) of the
Restitution Act, once a notice has been published in respect of any land,
no person may deal with that land either by way of sale, exchange,
donation, lease, subdivision or development, without having given the
regional land claims commissioner one month‟s written notice of his or
her intention to do so. Furthermore s 11(7)(b) and (c) also place onerous
restrictions on the owner and other persons to deal with his or her
property. The prejudice suffered by the appellant is, in my view, self-
evident as he is at present effectively hamstrung. Any further delays in
finalising this matter will exacerbate his prejudice.

[20] Counsel for the respondents conceded, correctly in my view, that
the notice issued in terms of s 11(A) was improper and was correctly set
aside by the court below. Furthermore, he accepted that the new notice in
terms of s 11(1) which was issued whilst this appeal was still pending,
was improperly issued and conceded its invalidity. This concession was
properly made. Regarding the dismissal of the declarator, counsel for the
respondents capitulated and accepted that no acceptable proof had been

presented to date that there are claims which have been properly lodged
in terms of s 11 in respect of the properties. In order to cure this defect, he
agreed that the matter be referred back to the Land Claims Court and that
the Commissioner be afforded a period of 1 calendar month to enable him
to publish a proper notice in terms of s 11(1) of the Restitution Act.

[21] I interpose to state that the history of this case proves that the
appellant has done everything humanly possible to investigate this matter
to get acceptable proof that his properties are subject to valid claims. This
he did because the lodging of claims in terms of s 11(1) against the
properties has serious legal consequences. Quite correctly, he sought the
assistance of first respondent as the person responsible for the receipt and
processing of the claims. Regrettably, the first respondent was more
obstructive than helpful.

[22] Section 11(1) places the following obligations on the first
respondent: once a claim has been lodged, the first respondent must
satisfy himself first, that it is lodged in a prescribed manner – s 11(1)(a);
that the claim is not precluded by the provisions of s 2 – s 11(1)(b) and
further that the claim is not frivolous or vexatious – s 11(1)(c) he or she
shall cause a notice of the claim to be published in a Government Gazette.
The first respondent has failed to do that.

[23] Furthermore, the section directs that the first respondent shall take
steps to make it known in the district in which the land in question is
situated that such a claim has been lodged and published. Importantly, s
11(6) requires the first respondent, immediately after publication of the
s 11(1) notice in the Government Gazette, to advise the owner of the land

and any other party which in his or her opinion might have an interest in
the claim in writing of the publication of the notice, and to refer the
owner and such other party to the provisions of s 7. To date there has
been no proof of a valid s 11(1) notice, nor a copy of the claim form
allegedly lodged by fifth respondent. Furthermore, there is no evidence
that the owner has been notified in writing of any claim as is required by
s 11(6).

[24] Given the uncertainty regarding the correct status of the properties,
I have no doubt that it is in the best interests of the appellant as well as
the fifth respondent or any other interested persons that the question
whether there is a valid claim lodged by fifth respondent in respect of the
properties be expeditiously and finally determined. The potential
prejudice caused to both parties by this uncertainty is self-evident.

[25] The conduct of the first respondent warrants comment and censure.
It is important to emphasise the duties, responsibilities and obligations of
the first respondent. Undoubtedly, the first respondent is pivotal to the
entire process that is, the lodgement of claims to land, their registration,
the issuing of notices, publications of claims in the Government Gazette,
including informing the land owner in respect of whose property a claim
has been lodged and any other party which might have an interest in the
property. This includes investigations of claims lodged culminating in
their finalisation, which might be through mediation or referral to the
Land Claims Court, in appropriate circumstances. Self-evidently claims
to land can never be properly processed without the co-operation and
assistance of the first respondent.

[26] Sadly, this case demonstrates that the first respondent did not
appreciate the crucial role which he is expected to play in processing land
claims. So far he has succeeded to stymie persistent efforts by the
appellant since May 2006 to get clarity regarding the status of the claim
in respect of his properties. What exacerbates the situation is that even
after the court order of 6 September 2013 by Loots AJ, the first
respondent has still not produced any proof of the lodgement of any
claims against the properties. Evidently this conduct is unacceptable.

[27] In the circumstances, I make the following order:
The appeal is upheld with costs which shall include the costs of
two counsel.
Paragraphs 1 and 3 of the order of the court below are set aside.
2.1
The notice, published pursuant to paragraph 3 of the order of
the court below, under Government Notice 1044, on 25
October 2013 in Government Gazette in respect of the
appellant‟s properties Star 567 LR and Onschuld 568 LR,
forming part of Onschuld 551 LR (“the properties”) declared
invalid.
The matter is referred back to the Land Claims Court for it:
3.1
to afford all the respondents an opportunity to address the
court on the question of whether or not the fifth respondent
(or any other person) had, prior to 31 December 1998,
lodged any valid claims in terms of s 10 of the Restitution of
Land Rights Act 22 of 1994 against the properties;
3.2
and consider any other issues properly raised in the papers
before court;

The first and second respondents are ordered to pay the costs of the
hearing on 25 April 2013.

_________________

L O BOSIELO

JUDGE OF APPEAL

Appearances:
For the Appellant :
BE Leech SC (with him AC Botha)

Instructed by:
Werksmans Attorneys, Johannesburg

Symington & De Kok, Bloemfontein

For the 1-3rd Respondents: P Nonyane (with him G Mothibi)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For the 5th Respondent: Mr Makhambeni

Instructed by:

M Magigaba Inc., Durban

Matsepes Inc., Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27 March 2015

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.

NIEHAUS V THE REGIONAL LAND CLAIMS COMMISSIONER (116/14) [2015] ZASCA 51
(27 March 2015)

[1] The SCA today upheld with costs an appeal by Mr Niehaus against a judgment of the
Land Claims Court.

[2] In his application in the Land Claims Court, the appellant had sought a declarator that
there are no valid claims lodged against his two farms to wit Star 576LR and Onschuld 568LR
both forming part of Onschuld 551LR, Limpopo. in terms of s 11(1) of the Restitution of the
Land Rights Act 22 of 1994, and further that the Regional Land Claims Commissioner and the
Chief Land Claims Commissioner amend their data records to reflect this, including the order
that a notice published by the Land Claims Commissioner in terms of s 11(A)(4), being
Government Notice No 343 in Government Gazette 36307 dated 5 April 2013 be set aside,
and ordering the Regional Land Claims Commissioner to publish within 30 days of the order,
and in terms of s 11(1) a notice of the fifth respondent’s claim against the appellant’s two
farms, and to give notice that Government Notice No 343 in Government Gazette 36307
dated 5 April 2013 against his two farms to wit Star 567LR and Onschuld 568LR forming part
of Onschuld 551LR in Limpopo, has been set aside by the court.

[3] The SCA expressed serious concern about the manner in which the Regional Land
Claims Commissioner handled this matter. It found this matter to be interspersed by long and
unexplained delays by the Regional Land Claims Commissioner. This was exacerbated by
the Regional Land Claims Commissioner giving the appellant two conflicting explanations
regarding the question whether the two farms were the subject of any valid land claims. The

Regional Land Claims Commissioner’s ineptitude left the appellant in limbo for close to 7
years. The SCA found such conduct to have been unprofessional and subversive of the
duties and responsibilities of the Regional Land Claims Commissioner.

[4] Furthermore, the SCA found that this uncertainty still persists to date. It found this
state of affairs to be unfair to both the appellant and the fifth respondent who claimed to have
lodged claims against the two farms as far back as 31 May 1995, 27 October 1996 and on 30
October 1996 respectively.

[5] In the result, the SCA upheld the appeal with costs and referred the matter to the
Land Claims Court with certain directives.

--- End ---