THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 220/13

Reportable
In the matter between

THE MANOK FAMILY TRUST
APPELLANT

and

BLUE HORISON INVESTMENT 10 (PTY) LIMITED             FIRST RESPONDENT

CRANBROOK PROPERTY PROJECTS                         SECOND RESPONDENT

THE REGIONAL LAND CLAIMS COMMISSIONER,
MPUMALANGA                                                                    THIRD RESPONDENT

THE REGIONAL LAND CLAIMS COMMISSIONER,
LIMPOPO                                                                         FOURTH RESPONDENT

THE COMMISSION ON RESTITUTION OF
LAND CLAIMS

FIFTH RESPONDENT

THE MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM                                                           SIXTH RESPONDENT

Neutral citation: The Manok Family Trust v Blue Horison Investments 10 (Pty) Ltd
(220/13) [2014] ZASCA 92 (13 June 2014)

Coram:
Mpati P, Maya, Bosielo and Leach JJA and Mocumie AJA

Heard:
06 March 2014

Delivered:
13 June 2014

Summary: Land – Land reform – Restitution of Land Rights Act 22 of 1994 – land
claim – regional commissioner deciding claim precluded by provisions of section 2
– whether decision final and regional commissioner thereafter functus officio.

._________________________________________________________________

ORDER
_________________________________________________________________

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

The appeal is dismissed. No order is made as to costs.
_________________________________________________________________

JUDGMENT
_________________________________________________________________
MPATI P (MAYA, BOSIELO and LEACH JJA and MOCUMIE AJA concurring):

[1] Section 2 of the Restitution of Land Rights Act 22 of 1994 (the Act) entitles
a person or community dispossessed of a right in land after 19 June 1913 as a
result of past racially discriminatory laws and practices, to restoration of that right.
A claim for restitution is directed to the Commission on Restitution of Land Rights
(commission), which is required, among other things, to investigate its merits and
make a determination as to whether it is not precluded by the provisions of section
2 of the Act1 and whether it is not frivolous or vexatious (s 11(1)). Where it is
satisfied that a claim has been lodged in the prescribed manner; is not precluded
by the provisions of s 2 and is not frivolous or vexatious, the commission, through
the
Regional
Land
Claims
Commissioner
having
jurisdiction
(regional
commissioner), will „accept‟ the claim and, thereafter, „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‟ (s 11(1)). The claim is then investigated
further (s 12) and either mediated, with a view to reaching a settlement (s 13), or
referred to the Land Claims Court (LCC) for adjudication (s 14).

1 Where there was no dispossession there can be no restitution.  Section 2(2) reads:
„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.‟

[2] In terms of s 11A of the Act a regional commissioner may reconsider his or
her decision to „accept‟ a claim and may withdraw the notice published in the
Gazette on the strength of representations made for the withdrawal or amendment
of that notice. This appeal concerns the question whether a regional
commissioner, having determined that a claim for restitution is precluded by the
provisions of s 2 because there had been no dispossession of the land in issue,
may subsequently reconsider that decision and re-open the investigation into the
claim.

[3] On 17 December 1998 Kgoshi Mafemane Hendrik Manok (Kgoshi Manok)
lodged a land claim with the regional commissioner for the Northern Province (now
Limpopo) and Mpumalanga, claiming restitution of the right of the descendants of
one Jacobus Manok to the farm Aapiesdoorndraai 258 KT, situated in the
Lydenburg district, Mpumalanga (the farm). Kgoshi Manok describes himself in the
prescribed land claim form as a descendant of Jacobus Manok and „representative
of the Manok clan‟. He states that he is „also operating as a tribal chief for the
Manok Tribal Authority‟.
[4]    It appears that in 1915 Jacobus Manok owned a three-eighths undivided
share in the farm. The rest was owned by Messrs H J Neethling and R Schurink.
In November 1912 the farm had been surveyed by a government land surveyor,
on behalf of the three owners. It was sub-divided into three parts in 1915,
apparently with the consent of the three owners, and Jacobus Manok received title
to a portion of the farm. He died in 1920. In a letter dated 14 June 2000 the
regional commissioner, after setting out the history of the farm as revealed in the
course of research conducted through his office, advised Kgoshi Manok that „it is
clear that neither [Jacobus] Manok, nor his descendants, were ever dispossessed
of any rights in the farm as a result of past racial laws or practices‟. The
penultimate paragraph of the letter reads:
„You are advised, therefore, that your land claim has been precluded in terms of the
Restitution of Land Rights Act.‟

[5] Following a letter received from the acting regional commissioner,
Mpumalanga dated 6 June 2005 confirming that the commission had no record of
land claims against the farm, the first and second respondents in this appeal
embarked on a process of consultation with the relevant stakeholders in and
around the farm, including Kgoshi Manok and his community, on the proposed
development of residential and industrial erven within the townships of the nearby
town of Burgersfort.2 Kgoshi Manok died on 2 June 2008. The first respondent
purchased two portions of the farm for a purchase price of R40 million and,
together with the second respondent, proceeded with development projects at a
risk and cost in excess of R400 million. But, from the contents of a letter
addressed to a Mr Moses Modise of the office of the regional commissioner dated
14 June 2005, it appears that the author, Mr Tumi Moleke, had held a meeting with
Mr Modise on 11 June 2005, where findings of a further research on the farm and
its history were discussed. According to the letter, Mr Moleke was acting „on behalf
of the Manok family‟. It was stated in the letter that the decision of the commission
„to dismiss the original claim submitted by the Manok Family‟ had been noted. The
second paragraph of the letter reads:
„In the light of the meeting and the findings of our research we hereby request the
commission to reopen the investigation into our claim. We reiterate our willingness and
availability to cooperate with the commission on this matter.‟
I shall assume, for purposes of this judgment, that Mr Moleke was duly authorised
by the appellant and the Manok family to pursue the land claim even though it
would appear that Kgoshi Manok and his community had accepted the decision of
the regional commissioner. Mr Moleke, it must be mentioned, did not lodge a new
claim, but in effect revived the claim that was lodged by Kgoshi Manok.

[6] The Department of Agriculture and Land Administration of the Mpumalanga

2 The townships had been established on two portions of the farm.

Provincial Government somehow became involved in the matter and, on 23
February 2007, the regional commissioner wrote to certain stakeholders, including
the Manoke Family Trust (referred to as the Manok Family Trust in this appeal)
represented by Mr Moleke. Inter alia, the following was conveyed to the
addressees;
„The lodged land claim by the Manoke Family over the whole farm, described as
[Aapiesdoorndraai] 298 KT, has been dismissed by the [regional commission] but due to
[Department of Agriculture and Land Administration] MEC‟s intervention the [regional
commissioner] did reverse such decisions and commenced a review process of this case
in its totality.‟
The addressees were further advised in the letter that the Manok Family Trust
claim „is valid in terms of [the Act] as amended, and processes towards claims
settlement options are underway‟. On 26 October 2008 the regional commissioner
gave instructions to „proceed to gazette‟ and the land claim was accordingly
published in the Gazette on 19 September 2008. This meant that the regional
commissioner was now satisfied that the land claim was not precluded by the
provisions of s 2 of the Act as he had previously concluded.

[7] On 10 December 2008 representations were made to the regional
commissioner, on behalf of the first respondent, in terms of s 11A, in which it was
submitted that certain facts placed before the commission relating to the history of
the farm were false. The regional commissioner was accordingly requested to
withdraw the notice gazetted on 19 September 2008, alternatively to amend it „so
as to make it clear that the claimant‟s claim is . . . limited to “equitable redress”‟.
When these representations did not yield the desired result, the first and second
respondents launched an application in the LCC seeking, inter alia, an order
setting aside the decision of the regional commissioner „to reconsider and/or to
accept and/or to reinstate the Manok Land Claim in respect of [the farm] previously
dismissed by him‟ as well as the publication of the claim. Although seventeen
respondents were cited in the notice of motion, the order sought would implicate

only the regional commissioner (cited as first respondent) and those who would
benefit from the land claim, if successful. These were Kgoshi Koos Manok, the son
of the deceased Kgoshi Manok; the appellant in this appeal and the Manok
Community Trust (cited as the second to fourth respondents).

[8] The court below mentions in its judgment that „the [regional] commissioner
filed a notice of opposition to this application but subsequently withdrew it and
decided to abide the decision of [the court]‟. Although the court also stated that the
sixth to ninth and the twelfth respondents did not oppose the application, it
appears from the opposing papers that only the appellant opposed it. In addition,
the appellant brought a conditional counter-application, seeking the following order
(contained in a document deposed to by Mr Moleke, which served both as an
answering affidavit and a founding affidavit in respect of the counter-application):
„4.1 Declaring that the correspondence dated 14 June 2000, purporting to be signed on
behalf of the first respondent, does not constitute a decision in terms of the [Act], read with
the regulations made in terms thereof.
4.2 In the event that it is decided that the communication dated 14 June 2000 does
constitute a lawful decision in terms of the [Act], an order declaring that such decision did
not in law preclude a later decision to the contrary made by the first respondent on 26
October 2008, accepting such land claim.
4.3 In the further event that it is also found that the decision of 14 June 2000 constitutes a
final decision not subject to mero motu review, then reviewing and setting aside that
decision, and ordering the first respondent to take all necessary steps to accept the land
claim filed by the descendants of Jacobus Manok in respect of Aapiesdoorndraai 298 KT.
. . . .‟

[9] The court below, in an amended order, set aside the decision of the
regional commissioner „to publish the notice in the Government Gazette on 19

September 2008 that the claim has been lodged in terms of the [Act] by [Kgoshi
Manok] on behalf of the Manok Community, save insofar as it relates to portions 2
and 3 of the [farm]‟ and directed the regional commissioner to withdraw the notice
„save insofar as it relates to portions 2 and 3 of the [farm]‟. The court also ordered
the appellant to pay the costs of the application. It dismissed the counter –
application, with costs. This appeal is with the leave of this court, the court below
having refused leave to appeal.

[10] The third to sixth respondents have taken no part in this appeal. I shall
accordingly refer to the first and second respondents, collectively, as „the
respondents‟. The basis upon which the court below reached its decision was that
the regional commissioner, „[h]aving made the decision to reject the claim on 14
June 2000, . . . was indeed functus officio’ and, consequently, could not reverse
his first decision. In this court counsel for the appellant submitted that the court
below perpetuated the confusion between a preclusion of a claim in terms of s
11(1)(b)3 and a dismissal in terms of s 11(3), which provides that a „frivolous or
vexatious claim may be dismissed by the regional land claims commissioner‟. He
contended that the court incorrectly interpreted the provisions of the Act and failed
to appreciate the true nature of the regional commissioner‟s decision of 14 June
2000; that it failed to appreciate the investigative nature and function of the
regional commissioner; that it would be overly burdensome for investigative
bodies, wherever they may find themselves within the broader state
administration, to have to approach a court every time they believe a previous
decision was incorrect and that, for the sake of efficacy and justice, such
investigative bodies should be at liberty to change their stance should other facts
come to their attention.

3 Section 11(1) reads: „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.‟

[11] It is not surprising that counsel did not refer to any authority for the
propositions he advanced. Section 11(4) of the Act provides that „[i]f the regional
land claims commissioner decides that the criteria set out in paragraphs (a), (b)
and (c) of subsection (1) have not been met, he or she shall advise the claimant
accordingly, and of the reasons for such decision‟.4 Counsel correctly accepted in
his heads of argument, and before us, that the regional commissioner‟s decision -
to the effect that the criteria set out in subsec 1 of s 11 had not been met, ie that
there had been no dispossession of the claimed land, which decision was
conveyed to Kgoshi Manok in the letter of 14 June 2000 - constituted
administrative action (See Gamevest v Regional Land Claims Commissioner 2003
(1) SA 373 (SCA) para 7), capable of being reviewed. In Oudekraal Estates (Pty)
Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA) a case which concerned
the question whether, or in what circumstances, an unlawful administrative act
might simply be ignored, this court said the following:
„Until the Administrator‟s approval (and thus also the consequences of the approval) is set
aside by a court in proceedings for judicial review it exists in fact and it has legal
consequences that cannot simply be overlooked. The proper functioning of a modern
State would be considerably compromised if all administrative acts could be given effect
to or ignored depending upon the view the subject takes of the validity of the act in
question. No doubt it is for this reason that our law has always been that even an unlawful
administrative act is capable of producing legally valid consequences for so long as the
unlawful act is not set aside.‟5
When deciding to re-open the process upon the revival of the land claim brought
by Mr Moleke on behalf of the appellant, the regional commissioner simply ignored
his previous decision to not process it for the reason given by him.

4 For the criteria referred to see fn 3 above.
5 Para 26.

[12] The Act makes provision for the withdrawal or amendment of a notice of
claim that had been published in the Gazette in terms of s 11(1). This the regional
commissioner is empowered to do where, following investigations conducted upon
receiving representations from a person affected by the publication, he or she „has
reason to believe that any of the criteria set out in paragraphs (a), (b) and (c) of
section 11(1) have not been met‟ (s 11A). The regional commissioner thus has the
power, conferred by the Act, to change his or her original decision that the criteria
set out in s 11(1) had been met. But the Act makes no provision for a reversal by
the regional commissioner of a decision, taken in terms of s 11(4), that the criteria
set out in paragraphs (a), (b) and (c) of s11(1) have not been met, thereby, in
effect, declining to process the claim any further.

[13] It has been held that the exercise of all public power must comply with the
Constitution, which is the supreme law, and the doctrine of legality, which is part of
that law.6 In Affordable Medicines Trust and others v Minister of Health & others
2006 (3) SA 247 (CC) Ngcobo J, writing for a unanimous court, said:
„The doctrine of legality, which is an incident of the rule of law, is one of the constitutional
controls through which the exercise of pubic power is regulated by the Constitution. It
entails that both the Legislature and the Executive “are constrained by the principle that
they may exercise no power and perform no function beyond that conferred upon them by
law”. In this sense the Constitution entrenches the principle of legality and provides the
foundation for the control of public power.‟7 (Footnotes omitted)
As I have mentioned above, the Act does not contain any provision that empowers
a regional commissioner to reverse a decision made in terms of s 11(4). It follows
that in the present matter the regional commissioner, in reversing his initial
decision - and deciding to re-open investigations into the land claim at the instance
of Mr Moleke and the interference of the MEC: Department of Agriculture Land

6 Pharmaceutical Manufacturers Association of SA & another: In re Ex Parte President of the
Republic of South Africa & others 2000 (2) SA 674 (CC) para 20.
7 Para 49.

Administration, Mpumalanga – acted in a manner that is inconsistent with the
Constitution and his conduct was invalid (see Affordable Medicines, supra, para
50).

[14] The absence, in the Act, of a provision that empowers a regional
commissioner to reverse a decision made in terms of s 11(4), ineluctably leads
one to the conclusion that that decision, though not a dismissal of a claim, is final.
Of course finality „is a point arrived at when the decision is published, announced
or otherwise conveyed to those affected by it‟,8 and a decision is revocable before
it becomes final.9 In the present matter the decision of the regional commissioner
that the land claim lodged by Kgoshi Manok on behalf of the Manok clan „has been
precluded in terms of the [Act]‟ was conveyed to the claimant as required by s
11(4) by way of the letter dated 14 June 2000. All indications are that Kgoshi
Manok and his community became aware of the decision. There is no suggestion
to the contrary. That that is so is also clear from the letter from Mr Moleke
addressed to the Mpumalanga Land Claims Commissioner for the attention of Mr
Modise, the first sentence of which reads:
„We had noted the decision by the commission to dismiss the original claim submitted by
the Manok Family.‟
The regional commissioner‟s decision therefore became final when it was
conveyed to Kgoshi Manok.

[15] About the reversal of administrative decisions Baxter says the following:
„Indeed, effective daily administration is inconceivable without the continuous exercise and
re-exercise of statutory powers and the reversal of decisions previously made. On the

8 Cora Hoexter Administrative Law in South Africa (2nd ed) (2012) at 278, referred to with approval
in MEC for Health, Eastern Cape, & another v Kirkland Investments (Pty) Ltd t/a Eye and Laser
Institute 2014 (3) SA 219 (SCA) para 15.
9 Compare President of the Republic of South Africa & others v South African Rugby Football
Union & others 2000 (1) SA 1 (CC) para 44.

other hand, where the interests of private individuals are affected we are entitled to rely
upon decisions of public authorities and intolerable uncertainty would result if these could
be reversed at any moment. Thus when an administrative official has made a decision
which bears directly upon an individual‟s interests, it is said that the decision-maker has
discharged his office or is functus officio.‟10
In Kirkland Investments,11 one of the issues this court had to consider was the
validity of two administrative decisions taken by the superintendent-general of the
Department of Health in the Eastern Cape to revoke approvals granted to Kirkland
Investments to establish two private hospitals which were given during his
absence from office by the person who acted in his stead, Plasket AJA said:
„I therefore conclude that Boya could not validly take the view that because the decisions
taken by Diliza were invalid, he could treat them as nullities and formally revoke them. For
as long as the decisions taken by Diliza had not been set aside on review they existed in
fact and had legal consequences. As Boya had no authority arising from the empowering
legislation to revoke final decisions already taken – much less in the absence of a hearing
being granted to Kirkland Investments – he was, in relation to the decisions taken by
Diliza in her capacity as acting superintendent-general, functus officio.‟12
[16]   One of the grounds of review validly raised for the review and setting aside
of the regional commissioner‟s later decision to publish the land claim was that
that decision was procedurally unfair as is contemplated in s 6(2)(c) of the
Promotion of Administrative Justice Act 3 of 2000. It was alleged, in the founding
affidavit, that „[a]fter having dismissed the Manok Land Claim on 14 June 2000 . . .
and with the knowledge that the developers had embarked upon the various
development projects, the [claim] was unlawfully resurrected to the prejudice of the
developers and without affording them an opportunity to be heard on this matter‟.
The allegation was not denied in the opposing papers.

10 Lawrence Baxter Administrative Law (1984) at 372.
11 Reference at fn 8 above.
12 At para 22.

[17] I have mentioned above that a regional commissioner has no power,
sourced from the Act, to reverse a decision made in terms of s 11(4) and that his
decision to preclude Kgoshi Manok‟s land claim was final. He was therefore
functus officio and could not reverse or ignore the decision he had already made.
Until set aside by a court in proceedings for judicial review, which could have been
instituted by the regional commissioner himself (see Municipal Manager: Qaukeni
Local Municipality & another v FV General Trading CC 2010 (1) SA 356 (SCA)
para 23 and the cases there cited) the decision exists in fact and has legal
consequences. It could not simply be overlooked or reversed (Oudekraal, supra,
para 26). It follows that the regional commissioner‟s subsequent decision to
publish the notice of the land claim in the Gazette on 19 September 2008 was
invalid and fell to be set aside.

[18] As to the conditional counter-application, although a number of so-called
review grounds were set out in the opposing papers, there were only three
grounds upon which leave to appeal against its dismissal was sought and granted.
The first was that „the decision of 14 June 2000 was made without affording the
claimants any opportunity to bring facts to the attention of the [regional
commissioner] which they may have believed to be relevant‟. This was never part
of the appellant‟s case in its combined answering and founding affidavit in respect
of the counter-application. Nothing further needs be said on this point. The second
ground, which was alluded to in the combined affidavit, was that the regional
commissioner was „not competent to decide to reject a claim on the basis that it
was “precluded”‟ and that on a proper interpretation of s 2 of the Act „this would
only be relevant in a case where the claim was lodged before the cut-off date or
where the claimant had received just and equitable compensation‟. Apart from the
fact that no argument was advanced in this court in respect of this ground, the
decision made by the regional commissioner in terms of s 11(4) of the Act does
not amount to a dismissal or rejection of the Manok family‟s land claim. A regional
commissioner is empowered to dismiss a claim only if it is frivolous or vexatious (s

11(3)). A decision that a land claim is precluded by the provisions of s 2 simply
means that the regional commissioner was not satisfied that the criteria set out in
paragraphs (a), (b) and (c) of subsec (1) of s 11 have been met, and that the claim
would not be published in the Gazette, investigated further and either mediated or
referred to the LCC for adjudication.

[19] But the decision of a regional commissioner in terms of s 11(4) does not
necessarily mean that a claimant has reached the end of the road. A claimant
may, in certain circumstances, pursue a claim by approaching the LCC directly in
terms of s 38B of the Act13 (see Mahlangu NO v Minister of Land Affairs & others
2005 (1) SA 451 (SCA) para 5). Whether or not the appellant would qualify to
approach the LCC in terms of s 38B is not an issue for this court to consider.
[20] The third ground was that the land claim „had sufficient merits to pass the
low threshold for acceptance‟ and that the fact that Jacobus Manok „re-arranged
his ownership  at the same time as when the 1913 Native Land Act came into
force, must raise warning lights by itself‟. The alleged re-arrangement of his
ownership by Jacobus Manok relates to the 1915 sub-division of the farm by
agreement between its three owners at the time. We were not directed, nor was
there any reference made in the heads of argument, to any evidence in the papers
substantiating the submission that the land claim had sufficient merits to pass the
low threshold for acceptance by the regional commissioner. The only contention in
the heads of argument, which was not really pursued in argument in this court, is
that if it is found that the decision to publish the notice of the land claim on 19
September 2008 „was invalid for some or other reason, and stands to be set aside,

13 Section 38B(1)reads: „Notwithstanding anything to the contrary contained in this Act, any person
who or the representative of any community which is entitled to claim restitution of a right in land
and has lodged a claim not later than 31 December 1998 may apply to the Court for restitution of
such right: Provided that leave of the Court to lodge such application shall first be obtained if –
(a) an order has been made by the Court in terms of section 35 in respect of a right relating to that
land; or
(b) a notice has been published in the Gazette in terms of section 12 (4) or 38D (1) in respect of
that land and the period specified in the said notice has expired.‟

then it is similarly submitted that the decision of 14 June 2000 should also be set
aside, as the land claim was clearly not precluded by [s 2] of the Act‟. Preclusion,
so the contention went, cannot relate to a scrutiny of the merits. There is no merit
in this submission. The Act requires a regional commissioner to be satisfied that
the threshold is passed and if he or she is not so satisfied, the Act maps out the
course he or she must take in relation to the land claim. That is what the regional
commissioner did in this case.

[19] In the result, the following order is made:

The appeal is dismissed. No order is made as to costs.

______________________

L MPATI

PRESIDENT

APPEARANCES

For appellant

C R Jansen (with him M A Dewrance)
Instructed by:

Ledwaba Mazwai Attorneys, Pretoria

Webbers Attorneys, Bloemfontein

For First and Second Respondents
H S Havenga S C (with him J A Venter)
Instructed by:

Snyman De Jager Attorneys, Pretoria
Symington & De Kok, Bloemfontein