THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
In the matter between :
NICHOLAAS HLOYIWE MAHLANGU NO
Appellant
and
MINISTER OF LAND AFFAIRS
First Respondent
THE PREMIER OF GAUTENG
Second Respondent
THE COMMISSION ON RESTITUTION OF LAND RIGHTS
Third Respondent
THE REGISTRAR OF DEEDS
Fourth Respondent
THE PREMIER OF THE NORTHERN PROVINCE
Fifth Respondent
MANALA TRIBAL AUTHORITY
Sixth Respondent
THE VUKU ZENZELE GROUP
Seventh Respondent
BANTWANE TRIBE
Eight Respondent
ISCOR LIMITED
Ninth Respondent
THE MINISTER OF AGRICULTURE
Tenth Respondent
______________________________________________________________________________
Before:
MPATI DP, CAMERON, MTHIYANE, NUGENT JJA & JAFTA AJA
Heard:
27 AUGUST 2004
Delivered:
14 SEPTEMBER 2004
Summary:
Restitution of Land Rights Act 22 of 1994 – direct access to Land Claims
Court – when permitted.
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
NUGENT  JA

NUGENT JA:
[1] The Restitution of Land Rights Act 22 of 1994 creates the means for
restitution to be made to persons or communities who were dispossessed of
rights in land pursuant to racially discriminatory laws or practices. The
principal institutions that are created to manage the process are the
Commission on Restitution of Land Rights ('the commission') and the Land
Claims Court (the 'LCC'). The function of the commission, broadly
speaking, is to receive and to investigate claims for restitution and to
attempt to resolve them through mediation and negotiation. If a claim
cannot be resolved by those means it must be referred by the commission to
the LCC for the LCC to exercise its wide powers of adjudication. The LCC
may, amongst other things, order the restitution of land or a right in land to
the claimant, or order the state to grant the claimant an appropriate right in
alternative state-owned land, or order the state to pay compensation to the
claimant, or order the state to include the claimant as a beneficiary of a
state support programme for housing or the allocation and development of
rural land, or it may grant the claimant alternative relief (s 35).
[2] A community is entitled to restitution if it was dispossessed of a right
in land after 19 June 1913 as a result of past racially discriminatory laws or
practices without payment of just and equitable compensation or other just
and equitable consideration (s 2(1)(d) read with s 22(2)).

[3] The process for claiming restitution is initiated by the claimant
lodging a claim with the commission in the prescribed form (s 10). If the
relevant regional land claims commissioner who receives the claim is
satisfied that it is in the prescribed form, and that the claim is not precluded
by the provisions of s 2, and that it is not frivolous or vexatious, he or she is
required to cause notice of the claim to be published and to be made known
in the district in which the land is situated (s 11), after which the
commission proceeds to investigate the claim and to perform its ordinary
functions.
[4] The commission also has advisory functions and it is authorised by
s 6(2)(b) to 'make recommendations or give advice to the Minister
regarding the most appropriate form of alternative relief, if any, for those
claimants who do not qualify for the restitution of rights in land in terms of
this Act'.
[5] In certain circumstances a claimant may pursue a claim by
approaching the LCC directly in terms of s 38B of the Act, which reads as
follows:
'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.'
[6] Where a claim has been pursued directly in terms of this section the
regional land claims commissioner who is dealing with the matter is
entitled to suspend his or her investigation of the claim and the LCC may
order that all claims that have been lodged in respect of the land in question
be transferred to it. After considering the application the LCC is authorised
to make any of the various orders allowed for by s 35, or it may dismiss the
application, or it may transfer all the claims before it to the regional claims
commissioner, or it may decline to make any order but permit the claimant
to supplement and renew the application.
[7] Access to the LCC in terms of s 38B (1) requires its prior leave in the
circumstances specified in subsections (a) and (b). We are concerned in this
appeal only with subsection (b), which precludes an application to the LCC
without its leave when a notice has been published in terms of s 12(4) of
the Act and the period specified in the said notice has expired. The notice
referred to in that section is one that the Chief Land Claims Commissioner
may cause to be published if at any stage during the investigation of a
claim he or she is of the opinion that the resources of the commission or the
LCC would be more effectively utilized if all claims for restitution in
respect of the land in question were to be investigated simultaneously. The

notice serves to advise potential claimants of that decision and to invite
them to lodge claims within a specified time.
[8] The present appeal arises from an application that was made by the
Litho Ndzundza community (represented by the appellant, its chief) for the
LCC's leave to pursue a claim for restitution as provided for in s 38B.
Leave was required because a notice had been published as contemplated
by s 38B(1)(b). The LCC refused the application and the appellant now
appeals against that decision with the leave of the LCC.
[9] The claim relates to approximately 35 000 hectares of state farmland
situated about 80 km north of Pretoria. The Litho Ndzundza community
alleges that it was dispossessed of the land in approximately 1917 as a
result of past racially discriminatory laws and practices and that it received
no compensation or other consideration for the loss of its rights. The land is
also subject to claims by other communities with the result that the
disposition of the land has been the subject of considerable controversy for
many years. The Chief Land Claims Commissioner formed the opinion that
the resources of the commission or the LCC would be more effectively
utilized if all claims in respect of the land in question were to be
investigated simultaneously, and on 13 October 1995 a notice was
published in the Gazette inviting potential claimants, other than those who
had already lodged claims, to lodge any claims that they might have within
a period of sixty days.

[10] The Litho Ndzundza community lodged its claim with the
commission on about 9 November 1995. (It seems that the claim was
mislaid and that a duplicate was lodged on 13 June 1996). The relevant
regional land claims commissioner declined to cause notice of the claim to
be given as provided for in s 11(1) because he or she was of the view, after
investigating the matter, that the community had not been dispossessed of
the land and that the claim was accordingly 'precluded by section 2' of the
Act. Apparently the commission itself was similarly of the view that the
Litho Ndzundza community did not qualify for restitution because it
recommended to the Minister in terms of s 6(2)(b) that their needs instead
be addressed through a land redistribution scheme. The community was
initially content with that recommendation but when no progress was made
in its implementation and the state expressed its intention to alienate part of
the land – it seems to the SA Jeep Club – the community had a change of
heart and the present proceedings were commenced.
[11] In these proceedings the community sought leave from the LCC to
pursue its claim directly as provided for in s 38B, and it also sought a
temporary interdict restraining the state from alienating any portion of the
land. The interdict is no longer being sought and I need say no more about
it. Ten respondents were cited in the proceedings: the Ministers of Land
Affairs and Agriculture, the Premiers of Gauteng and Northern Province
(now Limpopo), the commission, the registrar of deeds, Iscor (which has an

interest in the mineral rights) and the three competing claimants. The
Minister of Land Affairs and the commission opposed the application but
they have not opposed this appeal.
[12] The LCC concluded that the commission's decision to recommend to
the Minister that the community be included in a redistribution scheme,
which must have been preceded by a finding by the commission that the
community was not entitled to restitution, precluded a claim for restitution
being made in terms of s 38B, and that until that decision was set aside in
review proceedings the community's claim was premature.
[13] The LCC pointed out in Farjas (Pty) Ltd v Regional Land Claims
Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC) para 41 that it is
not the function of a regional commissioner – and that applies also to the
commission – to adjudicate upon the merits of a claim for restitution. While
s 11(1) of the Act requires a regional commissioner to be satisfied that a
claim 'is not precluded by the provisions of section 2' before the process is
set in motion, Dodson J held that a claimant need exhibit only 'an arguable
case' (924C). In my view even that threshold might be too high but it is not
necessary in this appeal to decide that question. It is sufficient to say that
on the material that is before us it is doubtful that the commission was
entitled to decline to consider the present claim and instead to make
alternative recommendations. If that is correct, the community would of
course have been entitled to have the commission's finding and

recommendation set aside on review. But there is nothing in the Act that
precludes the LCC from entertaining proceedings in terms of s 38B while
that finding and recommendation remain extant. On the contrary, s 38B
provides expressly that the LCC may entertain such proceedings
'[n]otwithstanding anything to the contrary contained in the Act'.
[14] In my view the LCC misdirected itself by finding that the existence
of the commission's recommendation precluded the claim being pursued in
terms of s 38B, with the consequence that it failed to exercise the discretion
that is conferred on it by the Act.
[15] Bearing in mind that none of the respondents have opposed this
appeal no purpose is served by referring the matter back to the LCC to
enable it to exercise its discretion. No grounds have been advanced for that
discretion to be exercised against the community and I see none. On the
contrary, given the history of this matter, in my view there is every reason
why the claim (and I express no opinion on its merits) should be considered
by the LCC and brought to finality.
[16] In his notice of appeal the appellant sought no order for costs either
in this court or in the LCC. In the absence of such notice to the respondents
it would thus be inappropriate to make any order in relation to costs.
The appeal is upheld. The order of the LCC is set aside and the following
orders are substituted:

'1.
The appellant is granted leave to lodge an application for the
restitution of rights in land to which the Litho Ndzundza community
claims to be entitled.
2.
The appellant is directed to lodge the application within thirty days
of this order or within such further period as the court may allow.'
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R W NUGENT
JUDGE OF APPEAL
MPATI DP)
CAMERON JA)
MTHIYANE JA)
CONCUR
JAFTA AJA)