THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1106/2018

In the matter between:

MAKHUVA-MATHEBULA COMMUNITY

APPELLANT

and

REGIONAL LAND CLAIMS COMMISSIONER,
LIMPOPO

FIRST RESPONDENT

CHIEF LAND CLAIMS COMMISSIONER

SECOND RESPONDENT
Neutral citation:
Makhuva-Mathebula Community v Regional Land Claims
Commissioner, Limpopo & another (1106/2018) [2019] ZASCA 157 (28 November
2019)

Coram:
Navsa, Ponnan, Swain, Zondi and Plasket JJA

Heard:
13 November 2019

Delivered:
28 November 2019

Summary:  Restitution of Land Rights Act 22 of 1994 – claim for restitution of land
rights – review of Regional Land Claims Commissioner’s decision to publish claim as
described in claim form – applicant alleging claim depicted in map attached to claim
form – no reviewable irregularity established.

ORDER

On appeal from: Land Claims Court (Ncube AJ sitting as court of first instance).

The appeal is dismissed.

JUDGMENT

Plasket JA (Navsa, Ponnan, Swain and Zondi JJA concurring)

[1] Section 25(7) of the Constitution provides that persons or communities who
were ‘dispossessed of property after 13 June 1913 as a result of past racially
discriminatory laws or practices’ are entitled, ‘to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress’. The Act of
Parliament referred to is the Restitution of Land Rights Act 22 of 1994 (the Restitution
Act).1 It provides, inter alia, for the administrative machinery and processes for land
claims contemplated by s 25(7) of the Constitution.

[2] The appellant, the Makhuva-Mathebula Community (the community), lodged a
land claim in terms of the Restitution Act with the first respondent, the Regional Land
Claims Commissioner, Limpopo (the RLCC), who later published the claim in the

1 The Restitution Act was required to be enacted by s 121 of the interim Constitution of 1993, which set
the parameters for land restitution. It provided:
‘(1) An Act of Parliament shall provide for matters relating to the restitution of land rights, as envisaged
in this section and in sections 122 and 123.
(2) A person or a community shall be entitled to claim restitution of a right in land from the state if –
(a) such person or community was dispossessed of such right at any time after a date to be fixed by
the Act referred to in subsection (1); and
(b) such dispossession was effected under or for the purposes of furthering the object of a law which
would have been inconsistent with the prohibition of racial discrimination contained in section 8(2) [of
the interim Constitution], had that section been in operation at the time of the dispossession.
(3) The date fixed by virtue of subsection 2(a) shall not be a date earlier than 19 June 1913.’

Government Gazette (the Gazette). The community was of the view that the claim that
was published did not correspond to the claim that it made. It took the RLCC’s decision
to publish the claim on review. The Land Claims Court dismissed that application. It
also dismissed an application for leave to appeal, but leave was granted by this court
on petition.

The legislation

[3] In order to fulfil its mandate of providing for the restitution of land rights or the
granting of equitable other redress in the circumstances contemplated by s 25(7) of
the Constitution, the Restitution Act created an administrative body, the Commission
on Restitution of Land Rights (the Commission).2 It is headed by the Chief Land Claims
Commissioner, and regional offices are run by regional land claims commissioners.3

[4] The general functions of the Commission are set out in s 6 of the Restitution
Act. Those functions include: receiving and acknowledging receipt of claims; the taking
of reasonable steps to ensure that claimants are assisted in the preparation and
submission of their claims; advising claimants of the progress of their claims; and
investigating the merits of claims that have been submitted.4

[5] Section 2(1) and (2) of the Restitution Act set out the parameters of claims for
restitution. It provides:
‘(1)
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) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result
of past racially discriminatory laws or practices; or
(c) he or she is the direct descendant of a person referred to in paragraph (a) who has
died without lodging a claim and has no ascendant who –
(i)
is a direct descendant of a person referred to in paragraph (a); and
(ii)
has lodged a claim for the restitution of a right in land; or

2 Section 4(1). See generally, Mahlangu NO v Minister of Land Affairs & others 2005 (1) SA 451 (SCA)
paras 1-5. See too Budlender, Latsky and Roux Juta’s New Land Law at 3A-24 to 3A-25.
3 Section 4(3).
4 Section 6(1).

(d) it is a community or part of a community dispossessed of a right in land after 19 June
1913 as a result of past racially discriminatory laws or practices; and
(e) the claim for such restitution is lodged not later than 30 June 2019.’
(2)
No person shall be entitled to restitution of a right in land if –
(a) just and equitable compensation as contemplated in section 25(3) of the Constitution;
or
(b) any other consideration which is just and equitable,
calculated at the time of any dispossession of such right, was received in respect of such
dispossession.’

[6] Section 10 deals with the lodgment of claims. Its first three subsections provide:
‘(1) Any person who or the representative of any community which is entitled to claim
restitution of a right in land, may lodge such claim which shall include a description of the land
in question, the nature of the right in land of which he, she or such community was
dispossessed and the nature of the right or equitable redress being claimed, on the form
prescribed for this purpose by the Chief Land Claims Commissioner under section 16.
(2) The Commission shall make claim forms available at all its offices.
(3) 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 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.’

[7] It is evident from s 10(1) that a claim must be lodged on a form prescribed for
that purpose. Section 16 empowers the Chief Land Claims Commissioner to make
rules regarding, inter alia, ‘any matter which, in terms of this Chapter, is required or
permitted to be prescribed’.5 Rule 2(1)(a) of the Rules Regarding Procedure of Land
Claims6 provides that a claimant ‘shall lodge a claim in writing on a duly completed
claim form, as prescribed by the Commission in terms of section 10 of the Act,
substantially in the form of Annexure A, together with such additional documents as
are relevant to substantiate the claim, with the regional office of the Commission

5 Section 16(1)(a).
6 Promulgated in Government Notice R703, Government Gazette 16407 of 12 May 1995.

having jurisdiction over the land in respect of which such claim is instituted’. The claim
in this case was lodged on a claim form as envisaged by Annexure A to the rules.

[8] Once a claim has been lodged, the relevant RLCC must satisfy himself or
herself of three things – that the claim was lodged in the prescribed manner, that it is
not precluded by s 2 and that it is not frivolous or vexatious. Once he or she is satisfied
that these requirements have been met, he or she is then required to cause notice of
the claim to be published in the Gazette as well as in ‘the media circulating nationally
and in the relevant province’. He or she is also required to ‘take steps to make it known
in the district in which the land in question is situated’.7

[9] In terms of s 12, the Commission has the power to investigate claims. At the
end of an investigation, a RLCC may refer a claim to the Land Claims Court, a superior
specialized court created by s 22 of the Restitution Act.

[10] Section 36 of the Restitution Act vests review jurisdiction in the Land Claims
Court. It provides:
‘(1) Any party aggrieved by any act or decision of the Minister, Commission or any functionary
acting or purportedly acting in terms of this Act may apply to have such act or decision
reviewed by the Court.
(2) The Court shall exercise all of the Supreme Court's powers of review with regard to such
matters, to the exclusion of the provincial and local divisions thereof.’

The background

[11] On 19 December 1997, Mr Fifteen John Makhuva, the chairperson of the Royal
Council of Makhuva, lodged a land claim with the RLCC on an unsigned and undated
claim form. He did so on behalf of the community.

[12] In the appropriate place in the claim form, Mr Makhuva identified the land that
was claimed as being ‘Letaba Rest Camp, Lulekani, Zebra, Gemog, Pompet, all under

7 Section 11(1).

the District of Phalaborwa’.8 In addition, the name of Quagga was written onto the
claim form in what appears to be a different hand to that of the person who completed
the claim form.

[13] In paragraph 9 of the claim form, which bears the heading ‘Any other
information you would like to bring to the commission’s attention’, Mr Makhuva referred
to two annexures. They were an affidavit signed by him, but which does not appear to
have been commissioned, and what was described as a ‘map of the area being
claimed’. In fact, two maps were attached.9

[14] In the affidavit, Mr Makhuva said:
‘The places presently called Majeje, Lulekani, Zebra, Gemog, Pompey and Letaba Rest Camp
were under the Makhuva Indunas of the likes of Xakamani, Nkundleni, Malopani and Hoyihoyi.’

[15] In paragraph 11 of the claim form, the community’s contact address was given
as care of Conrad Kruger Attorneys. It can thus be accepted that it was represented
by attorneys when the claim was lodged. It can also be accepted from the annexures
to the founding papers in the review application in particular, to which I shall refer
below, that although its attorneys may have changed from time to time over the 22
years that the claim has meandered through the RLCC’s bureaucratic maze, the
community has always been legally represented.

[16] Receipt of the claim was acknowledged by the RLCC on 21 April 1998. In the
letter acknowledging receipt of the claim, the land that was the subject of the claim
was confirmed as being ‘Letaba Rest Camp LU, Quagga 21, Zebra 19, Genoeg 15
and Pompey 16 LU’.

[17] Annexures to the founding papers indicate that some communication took place
between attorneys acting for the community and the RLCC during the period between

8 The correct name for the property named as Gemog is Genoeg and the correct name for the property
named as Pompet is Pompey.
9 The names of properties can at least be made out on the first map, albeit with some difficulty. They
cannot be made out on the second, different, map. In the founding affidavit in the review application,
however, it is said that the RLCC ought to have ‘determined the geographical borders of the land claim
by reference to this map, or should have ascertained how this map fits into the actual land claim of the
Applicant community’.

the lodging of the claim and the first publication of the claim on 8 June 2007. As the
review was not brought in terms of rule 53 of the uniform rules, one must assume that
the community has attached to its founding papers everything that it considered
relevant as a record of the decision.  As rule 53 is primarily intended to assist
applicants to bring review proceedings, the community’s option not to use rule 53 in
order to obtain a full and complete record and reasons was taken at its own risk.10

[18] On 14 July 2000 and 21 July 2000 a claim to land inside the Kruger National
Park, lodged by four Ba-Phalaborwa tribes, was published in the Gazette. The
properties claimed included Letaba Ranch. In a letter dated 21 September 2000, the
community’s attorney requested the RLCC to amend the notice that he had published,
in terms of s 14A(4) of the Restitution Act, ‘to include our clients as parties with a
vested interest’. Attached to the letter was a report compiled by an anthropologist
concerning Letaba Ranch and Genoeg and the Makhuva tribe’s connection to these
properties.

[19] The attorney did not state in the letter that the community had claimed Letaba
Ranch. Strangely, she also said nothing about the community having claimed Genoeg.
Attached to the letter was a document, also dated 21 September 2000, signed by the
same attorney and headed ‘LODGEMENT OF CLAIM’. With reference to the claim
lodged by the community on 19 December 1997, she stated that two ‘technical errors’
had been made in the claim form: the ‘reference to Letaba Rest Camp was meant to
read Letaba Ranch and the reference to Gemog should have read Genoeg’. She
asked that these errors be overlooked and that the community be included ‘as an
interested party in the claims process’.

[20] In the following month, however, the same attorney, in answer to a number of
questions posed by an attorney acting for the Ba-Phalaborwa tribes confirmed that
‘our clients are in fact claiming Letaba Rest Camp’.

10 See Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 660D-661J; SACCAWU & others
v President, Industrial Tribunal & others 2001 (2) SA 277 (SCA) para 7; Liberty Life Association of Africa
v Kachelhoffer NO & others 2001 (3) SA 1094 (C) at 1114E-1115A.

[21] In a letter dated 9 January 2007, the community’s attorney wrote to the RLCC
to clarify aspects of its claim. First, the attorney said that Letaba Ranch had not been
claimed and that this had been an error. Genoeg had, however, been claimed. The
attorney tried, unconvincingly, it must be said, to persuade the RLCC that because
Genoeg had been claimed, and it was part of Letaba Ranch, that constituted a claim
to Letaba Ranch. Secondly, the attorney stated that it could be seen from the claim
form that Lulekani had been claimed, and that what was claimed was the whole
Lulekani district, which included Letaba Ranch. The attorney appears to have been on
firmer ground in this respect.

[22] Prior to this, it had not been clear to the RLCC whether the community had
claimed the township of Lulekani or the entire district of that name. In the Gazette
dated 8 June 2007, notice of the claim in respect of Genoeg, Letaba Rest Camp,
Pompey and Zebra was published. Lulekani was left out because the extent of the
claim to Lulekani still had to be investigated by the RLCC. Why the claim to Quagga
was not published has not been explained.

[23] When the RLCC completed his investigation into what precisely made up the
Lulekani district, notice of this part of the claim was published in the Gazette on 22
May 2015. The land that made up this district included Letaba Ranch. The claim to
Quagga was published at this stage. The result was that by 22 May 2015, the claim to
all of the land referred to in paragraph 1.1 of the claim form had been published. (This
publication occurred about 18 months after the review application had been launched.)

The review application

[24] By notice of motion dated 30 September 2013, the community initiated an
application in which it sought a declarator that the publication of its claim in the Gazette
of 8 June 2007 was incomplete; an order reviewing the decision of the RLCC ‘to
publish only those portions of the Applicant’s restitution claim as set out in the
aforesaid Gazette, and ordering the First Respondent to publish an additional
amended Gazette containing all cadastral portions of the farms listed in Annexure “A”
hereto, as well as the unsurveyed state land referred to herein’. The costs of the
application were also sought.

[25] Annexure A to the notice of motion contains a list of 48 properties as well as
land described as ‘[c]ertain un-proclaimed areas of the Kruger National Park, between
the Olifants and Letaba Rivers’ and Letaba Ranch.

[26] It is apparent that the land listed in annexure A is far more extensive than that
claimed in paragraph 1.1 of the claim form. The basis of the community’s case is that
its claim is embodied in the map attached to the claim form, and not in paragraph 1.1
of the claim form – and that what it claims is every property depicted on the map.

[27] The community’s case appears, largely, to be embodied in paragraph 14 of the
founding affidavit deposed to by Mr Mishack Mathebula. It reads:
‘From a proper reading of the land claim form, it is respectfully clear that the community
claimed the area which they regarded as their traditional lands over which they held
indigenous title. In short, this is the unsurveyed state land within the Kruger National Park
situated between the confluence of the Olifants River and the Letaba River as well as the
surveyed farms to the West of the Kruger National Park which continues up to a line that
traverses more or less North to South as indicated on a map which I annex hereto as Annexure
“MM4”. The surveyed farms are those listed in Annexure “A” to the Notice of Motion.’
Annexure ‘MM4’ is a third map, different to the two maps attached to the land claim
form. It is illegible, for the most part. It is impossible to make out the names of individual
properties.

[28] In addition, the community’s complaint is that it appeared from the publication
in the Gazette of 8 June 2007 that the RLCC, in considering the publication of the
claim, ‘simply looked at paragraph 1.1 of the Land Claim Form and to nothing else’,
but even then omitted Quagga from the publication. From a reading of the ‘claim form
and its annexures as a whole’, the community alleged, it was clear that the RLCC ‘did
not properly apply his mind to determining the exact extent of the applicant’s land
claim’ and he ‘obviously did not investigate the rest of the claim form, nor its
annexures’. It was also contended that the ‘determination of the area of the claim by
reference only to paragraph 1.1 of the land claim form was clearly an error and should
be set aside and corrected’.

[29] Ms Kholofelo Peace Machete, a project co-ordinator in the office of the RLCC,
deposed to the answering affidavit. She set out details of the RLCC’s engagement
with the community’s legal representatives over the years, and explained the process
that eventually led to the publication of the claim to the various components of the
Lulekani district, including Letaba Ranch. She attached a copy of the publication of
this aspect of the claim. From this, it appears that the claim to Quagga was also
published.

[30] The crux of the RLCC’s case is encapsulated in the last four paragraphs of the
answering affidavit. I quote them in full:
’29
It is becoming apparent that the Applicant wants to lay more claims on land which it
did not claim in its claim form. The claim form is unambiguous as to what the Makhuva-
Mathebula Community is laying claim to. The land on which they are laying claim is Letaba
Rest Camp, Lulekani, Zebra, Genoeg and Pompey.
The land in respect of which the Makhuva-Mathebula Community has made claims
has been gazetted in 2007 and 2015.
The Makhuva-Mathebula community are seeking to make more claims using the back
door in circumstances where it has not lodged land claims as required by the Restitution of
Land Rights Act. The Makhuva-Mathebula Community seem to be adding more land as and
when it suits them. For example the letter of 5 June 2015 is a clear example that they would
keep on claiming more land than is contained in their land claim.
The process of claiming land has been reopened and they are welcome to lodge new
claims. However their claim in terms of the claim form of 1998 does not extend to the additional
land that they seek to add in the letter of 5 June 2015 and the memorandum of the late Ms
Durkje Gilfillan.’

The issues

Delay

[31] The taking of the impugned decision by the RLCC was an administrative action
as defined in the Promotion of Administrative Justice Act 3 of 2000 (the PAJA).11 That

11 See the PAJA, s 1 for the definition of administrative action. See too Gamevest (Pty) Ltd v Regional
Land Claims Commissioner, Northern Province and Mpumalanga & others 2003 (1) SA 373 (SCA)
paras 10-12; Dukuduku Community v Regional Land Claims Commissioner, KwaZulu-Natal & another
2006 (3) SA 508 (LCC) paras 8-9.

being so, the community had no choice but to bring the review in terms of the PAJA.12
Section 7(1) required it to do so without undue delay and within 180 days of becoming
aware of the decision. A failure to apply timeously may be condoned in two
circumstances – either by agreement between the parties or by the court granting an
application for condonation.13

[32] In this case, the community launched its application on 30 September 2013 to
review a decision of the RLCC that was published on 8 June 2007, more than six years
before. The papers contain no mention of the PAJA at all, and no application for
condonation for the long delay has been made.

[33] One must assume that the RLCC was aware of the PAJA’s application and of
its provisions. He was, at all material times, legally represented. In these
circumstances, and from his failure to raise the delay, I am prepared to find that he
has agreed tacitly to condone the delay in terms of s 9(1) of the PAJA. The court below
accordingly had jurisdiction to hear the review.

The merits of the review

[34] An applicant for review is required to identify the grounds of review upon which
he or she relies. This is necessary because the onus lies on an applicant to establish
a reviewable irregularity and to enable the decision-maker to defend his or her
decision.

[35] It is important to bear in mind the distinction between review and appeal. Wade
and Forsyth explain the difference as follows:14
‘The system of judicial review is radically different from the system of appeals. When hearing
an appeal the court is concerned with the merits of a decision: is it correct? When subjecting
some administrative act or order to judicial review, the court is concerned with its legality: is it

12 Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment Action
Campaign & another as amici curiae) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC)
paras 95-97.
13 The PAJA, s 9(1).
14 Wade and Forsyth Administrative Law (10 ed) at 28-29.

within the limits of the powers granted? On an appeal the question is “right or wrong”? On
review, the question is “lawful or unlawful”?

[36] In the founding papers in this matter, the jurisdictional basis for the review – the
PAJA – is not referred to, and not one of the grounds of review listed in the PAJA is
mentioned. It is so that the community makes a broad and unspecific assertion that
the RLCC did not apply his mind properly. It also alleged that he made an error. From
a reading of the founding affidavit as a whole, it appears that the community has
approached the matter more as an appeal against the RLCC’s decision to publish only
the properties listed in paragraph 1.1 of the claim form, rather than as a review of that
decision.

[37] It is sometimes said, not entirely accurately, that in the case of review, the
court’s focus is on the decision-making process, rather than on the decision itself.15
Essentially, a court will consider whether the decision was lawful, in the sense that the
administrator who took it was properly authorized to take it,16 whether he or she acted
in a procedurally fair manner17 and whether he or she acted reasonably by not abusing
his or her discretion.18

[38] In this case, it seems to me that the lawfulness of the RLCC’s decision is not in
issue: he was authorized to take the decision to publish the claim and did so. Likewise,
the rules of procedural fairness do not appear to have been violated by him. By
suggesting that he failed to apply his mind properly, the community, it seems to me,
asserts that he acted unreasonably by abusing his discretion in some way.

[39] I say this because a failure to apply the mind is not a discrete ground of review
but a ‘general rubric which refers not only to abdications of discretion but also to all
forms of abuse of discretion . . .’.19 In Northwest Townships (Pty) Ltd v Administrator,

15 The effect of the decision may be the primary focus in review when, for instance, it produces absurd
results, or has harsh or unjust consequences and is thus disproportional. See for example, Medirite
(Pty) Ltd v South African Pharmacy Council [2015] ZASCA 27 paras 20-22.
16 The PAJA, ss 6(2)(a)(i) and (ii), s 6(2)(b), s 6(2)(d) and s 6(2)(f)(i).
17 The PAJA, s 6(2)(a)(iii) and s 6(2)(c) read with ss 3 and 4.
18 The PAJA, s 6(2)(e), s 6(2)(f)(ii) and s 6(2)(h).
19 Baxter Administrative Law at 476-477.

Transvaal & others,20 Colman J explained that the term ‘has been held, in English and
South African cases, to include capriciousness, a failure, on the part of the person
enjoined to make the decision, to appreciate the nature and limits of the discretion to
be exercised, a failure to direct his thoughts to the relevant data or the relevant
principles, reliance on irrelevant considerations, an arbitrary approach, and an
application of wrong principles’. All of these grounds have been codified in s 6(2) of
the PAJA (although not necessarily in the terms expressed by Colman J).

[40] In Pharmaceutical Manufacturers Association of SA & another: in re ex parte
President of the Republic of South Africa & others,21 Chaskalson P held that more was
required of those exercising public power than that they act in good faith and apply
their minds.22 In addition, the rule of law requires them to act rationally.23 Irrationality
is a ground of review listed in s 6(2)(f)(ii) of the PAJA.

[41] I turn now to the facts in order to determine whether the community has
established that when the RLCC decided to publish the claim on 8 June 2007, he failed
to apply his mind. (For purposes of this analysis, I disregard the RLCC’s failure to
publish the claims to Lulekani, which was still being investigated, and to Quagga,
which appears to have been an omission which was later rectified.)

[42] The RLCC had before him a claim form prescribed by the legislation that had
been completed by Mr Makhuva, a person who was legally represented. Paragraph 1
of the claim form required Mr Makhuva to indicate whether the land that he claimed
was rural or urban land and then paragraph 1.1 provided:
‘If it is rural land, the portion(s), name(s) and number(s) of the farm and district in which it is
situated.’
Mr Makhuva responded to this by listing the names of six properties, namely Letaba
Rest Camp, Lulekani, Zebra, Genoeg, Pompey and Quagga.

20 Northwest Townships (Pty) Ltd v Administrator, Transvaal & others 1975 (4) SA 1 (T) at 8F-G. See
too Johannesburg Stock Exchange v Witwatersrand Nigel Ltd & another 1988 (3) SA 132 (A) at 152A-
E.
21 Pharmaceutical Manufacturers Association of SA & another: in re ex parte President of the Republic
of South Africa & others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
22 Para 83.
23 Para 85.

[43] In addition to naming the properties, he also stated that the land was not urban
land and that it had been acquired by ‘Government Department: Provincial Affairs and
Environmental Affairs’ in 1921. In response to the question in paragraph 2.2 of the
claim form, which asked about the amount of compensation paid he indicated that this
was not applicable both in relation to the properties and improvements. In answer to
the question in paragraph 2.3 as to whether any land or housing had been allocated
as compensation, he again indicated that this was not applicable. Mr Makhuva thus
completed paragraphs 1 and 2 of the claim form in full. He identified in it the land that
the community claimed and furnished other details concerning that land.

[44] In paragraph 6 of the claim form, Mr Makhuva set out the basis for the claim by
stating:
‘Our ruins, graves and other ancestral [beliefs] are attached to these places and we need
arable land for our Community. The main reason is that the land is belonging to the Mathebula
Tribal Authority and the generation of today want to utilize the area economical[ly] for the
benefit of the nation at all.’
When Mr Makhuva referred to ‘these places’ that could only have been a reference to
the places listed in paragraph 1.1.

[45] In paragraph 7, headed ‘other evidence to substantiate your claim’, he stated:
‘Please find the attached affidavit of the chairperson of the Mathebula Royal Council.’
And then, in paragraph 9, headed ‘Any other information you would like to bring to the
commission’s attention’, he referred again to the affidavit and the ‘map of the area
being claimed’.

[46] At this stage then, the RLCC had before him a claim form that was clear as to
the land that was claimed, stated expressly in the appropriate part of the claim form.
The documents that were attached were other evidence to substantiate the claim (in
paragraph 7 of the claim form) and other information that Mr Makhuva wished to bring
to the attention of the Commission (in paragraph 9 of the claim form). He gave no hint
that the map, the relevance of which was not explained, was in fact the claim – with
the consequence that what was stated in paragraph 1.1 was not the claim, and was to
be ignored. Without being told that the community had opted to make their claim in
this utterly bizarre, irrational and non-sensical way, the RLCC would have had no way

of knowing that, in considering the land claimed to have been that mentioned expressly
in paragraph 1.1, he was barking up the wrong tree. Added to this is the fact that no
explanation has ever been given by anyone as to why, if the claim was made for more
than what was listed in paragraph 1.1 of the claim form, the additional land was not
listed in that paragraph.

[47] Furthermore, during the period from the lodging of the claim until its partial
publication on 8 June 2007, there was also no suggestion from the community’s legal
representatives, in their dealings with the RLCC, that the claim was not that contained
in paragraph 1.1 of the claim form but every property that appears on the first map.
Instead, the legal representatives spoke of ‘technical errors’ in paragraph 1.1 of the
claim form and their confusion concerning Letaba Ranch and Letaba Rest Camp.

[48] By the time that the RLCC took the impugned decision, he had a claim form
that was clear and unambiguous and which claimed a set of listed properties, as well
as the make weight of a map which ostensibly showed the area in which those
properties lay. The community’s legal representatives, in their dealings with him, never
told him that the map and not paragraph 1.1 of the claim form embodied the claim. He
had no way of knowing, or of ascertaining, that the map and not paragraph 1.1 of the
claim form embodied the claim, if indeed that was the bona fide belief of the
community. In not arriving, somehow, at this illogical and irrational outcome, the RLCC
cannot be faulted.

[49] I am of the view that in publishing the claim on the face value understanding
that the properties claimed were those listed in paragraph 1.1 of the claim form, the
RLCC applied his mind in accordance with the behests of the Restitution Act and acted
rationally in so doing. That being so, the community failed to establish a ground of
review upon which the decision under challenge could have been set aside. It follows
that the Land Claims Court dismissed the community’s application correctly, and this
appeal cannot succeed. The RLCC did not seek costs.

Order

[50] The appeal is dismissed.

________________________
C Plasket
Judge of Appeal

Appearances:

For the Appellant:

A de Vos SC

Instructed by:

Gilfillan Du Plessis Inc, Pretoria

Webbers, Bloemfontein

For the First and Second
Respondents:

T Seneke

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein