Nelutshindwi Community and Another v Nwanedi Communal Property Association and Others (LCC 175/2020) [2025] ZALCC 48 (20 November 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2025 >> [2025] ZALCC 48 | Noteup | LawCite sino index ## Nelutshindwi Community and Another v Nwanedi Communal Property Association and Others (LCC 175/2020) [2025] ZALCC 48 (20 November 2025) Nelutshindwi Community and Another v Nwanedi Communal Property Association and Others (LCC 175/2020) [2025] ZALCC 48 (20 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2025_48.html sino date 20 November 2025 IN THE LAND COURT OF SOUTH AFRICA HELD AT RANDBURG REPORTABLE CASE NO. LCC 175/2020 In the matter between: NELUTSHINDWI COMMUNITY First Plaintiff NELUTSHINDWI ROYAL FAMILY Second Plaintiff and NWANEDI COMMUNAL PROPERTY ASSOCIATION First Defendant NEFOLOVHODWE COMMUNITY Second Defendant THE MINISTER OF RURAL DEVELOPMENT AND LAND REFORM Third Defendant THE COMMISSION ON RESTITUTION OF LAND RIGHTS Fourth Defendant THE REGIONAL LAND CLAIMS COMMISSION LIMPOPO PROVINCE Fifth Defendant OFFICE OF DEEDS REGISTRY LIMPOPO PROVINCE Sixth Defendant DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM Seventh Defendant NEMALELE COMMUNITY Eighth Defendant RAMBUDA COMMUNITY c/o  RAMBUDA TERRITORIAL COUNCIL Ninth Defendant NETSHIUNGANI COMMUNITY Tenth Defendant Coram:  Cowen DJP and Majozi AJ Heard on:   25 August 2025 Delivered on: 20 November 2025 SUMMARY: Restitution of Land Rights Act 22 of 1994 ; effect of settlement in terms of section 42D and whether the applicants may avoid an agreement to consolidate claims without reviewing and setting aside the administrative decisions underlying the settlement; exercise of Court’s inquisitorial powers in the interests of justice. ORDER 1. It is declared that the relief sought in the plaintiff’s Statement of Claim dated 22 January 2025 is incompetent in the absence of a review of the decision to administratively settle the merged land claims in terms of section 42D of the Restitution Act taken by the then Minister on 25 August 2006; 2. The plaintiffs are, if so advised, directed to amend their Statement of Claim, within twenty (20) days of this Order. 3. There is no order as to costs. JUDGMENT MAJOZI AJ, Introduction [1]             The genesis of the dispute before us is an action instituted by the first and second plaintiffs, respectively, the Nelutshindwi Community and the Nelutshindwi Royal Family on 12 November 2020. In this action the plaintiffs seek to extract the first plaintiff from a decision of the then Minister of Land Affairs and Agriculture (“the Minister”) taken on 25 August 2006. [2]             They further seek to have the first defendant’s ownership of the farm known as Portions 1, 2, 3 and 4 of the farm Cross 117 MT , situated in the Greater Musina District Municipality in Limpopo (“the subject farm”) to be effectively rescinded and have the farm registered in the name of the first plaintiff’s legal entity, to be created in due course. [3]             The subject farm forms part of various immovable properties that are registered under and are owned by the first defendant, the Nwanedi Communal Property Association. These farms were transferred to the first defendant as a result of an administrative finalisation of the restitution of land rights process relating to land claims lodged by the  ninth defendant, the Rambuda Community. [4] The decision to settle the ninth defendant’s land claim in terms of Section 42D of the Restitution of Land Rights Act, No. 22 of 1994 (“ the Restitution Act ”) and restore inter alia the subject property to the first defendant (“ the Decision ”), was taken by the then Minister on 25 August 2006 [5] The precursor to the Decision was an agreement concluded on 29 May 2004 by the first plaintiff, the second defendant (the Nefolovhodwe Community), the eighth defendant (the Nemalele Community) and tenth defendant (the Netshiungani Community) that their land claims be merged / consolidated  into a single land claim, under the name of the ninth defendant [1] [6] The acceptance criteria memorandum (dated 25 June 2004) which led to the publication of the land claim in terms of section 11 (1) of the Restitution Act, similarly records that the first plaintiff, the second defendant as well as the eighth defendant and tenth defendants (who represented the Nephambani and Nelutshindwi communities) agreed on 29 May 2004 to merge their claims into one Community land claim under the name of the ninth defendant. [7] Pursuant to this 29 May 2004 agreement, the recommendation made to the fifth defendant, the Regional Land Claims Commissioner, Limpopo, was that the land claim of the Rambuda Territorial Council (the ninth defendant) be accepted as prima facie valid and be published in the Government Gazette.  The Section 42D memorandum that led to the Decision, records that the land claim was in terms of section 11 (1) of the Restitution Act, published  in the Government Gazette on 2 July 2005 and 23 September 2005 respectively. [8] The relief that the plaintiffs now seek is to resile from the agreement and its effects as well as the consequences of the Decision. They in effect seek to “ unscramble the egg” that is the settlement of the ninth defendant’s merged land claim. They want to have the subject property for themselves and for it to be registered in a different communal property association. [9] The first defendant, which currently owns the subject property, was borne of the Decision. It was established in terms of section 2B of the Communal Property Associations Act, 28 of 1996 , with the object of holding land subject to conditions set out in its Constitution and the Communal Property Associations Act. [10 ] The first defendant’s Constitution states that the Nemalale (eighth defendant), Nefolovhodwe (second defendant), Nelutshindwi (first plaintiff), Netshiungani (tenth defendant) and Rasigidi are communities that were removed from, inter alia , the subject farm as a result of past racially discriminatory laws and practices. [11] The first defendant’s Constitution further records that the Community, are “ all members and bona fide members of the households who are entitled to live on the land”. It further records that the “ Community  was successful with their land claim under the Restitution of Land Rights Act” and that it is the Community’s objective that farms which include the subject farm be transferred to the first defendant. [12] The Constitution of the first defendant further states that if successful with the application for the restitution of land rights (“ the land claim ”) they shall be granted, inter alia , the subject property and that, in terms of clause 5 of the Constitution, the objectives of the first defendant are to hold, manage, develop and administer the land on behalf of the Community, amongst others. THE RELIEF SOUGHT BY THE PLAINTIFFS [13] Initially, and prior to a Court directed joinder of the eighth to tenth defendants, the plaintiffs had sought the following relief: “ (1)       that the plaintiffs are entitled to restoration of Portion 1, 2, 3 and 4 farm Cross 117 in terms of the Restitution of Land Rights Act, No. 22 of 1992 (sic) (as amended); (2)        that the plaintiff secede from the Nwanedi Communal Property Association (first Defendant) with Portion 1, 2, 3 and 4 farm Cross 117 (sic); (3)        that the third, fourth, fifth and seventh defendants be ordered to facilitate all the necessary processes of formation of the new CPA for the plaintiffs and amendment of the first defendant’s section 42D and settling of the new section 42D with the plaintiffs in respect of Portion 1, 2, 3 and 4 farm Cross 117 M.T within 180 days from the date of the Court Order (sic); (4)        that the fourth, fifth and seventh defendants be ordered to take the necessary steps for determination of the boundaries of Portion 1, 2, 3 and 4 farm Cross 117 M.T and withdrawal of the first defendant’s Gazette and gazetting of the new Gazette for plaintiffs claim in respect of Portion 1, 2, 3 and 4 farm Cross 117 MT within 180 days from date of the Court Order (sic); (5)        the first defendant be ordered to sign all necessary transfer documents of Portion 1, 2, 3 and 4 farm Cross 117 MT into the names of the plaintiffs’ new CPA within 10 days from the date in which the transferring attorneys requested them to do so, failing which the Sheriff with jurisdiction be authorised to sign the transferring documents on behalf of the first defendant; (6)        that the sixth defendant be ordered to transfer Portion 1, 2, 3 and 4 farm Cross 117 MT into the names of the Defendant’s (sic) new CPA within 30 days from the date of receipt of transferring documents from transferring attorneys; (7)        Costs of suit including the costs of two counsels; (8)        Further and/or alternative relief.” [14] The second defendant opposed the action, delivered  a plea wherein they raise a special plea of non-joinder of the eighth defendant and alleging that the Rambuda Community also had an interest.  The second defendant also dealt with the merits of the plaintiffs’ Statement of Claim, effectively opposing the relief sought by the plaintiffs. [15] On 2 March 2023, the plaintiffs delivered a replication wherein they denied that the Nemalele and Rambuda Communities have a direct and substantial interest in the matter, and in effect sought that the second defendant’s second plea of non-joinder be dismissed. THE CASE MANAGEMENT AND PRELIMINARY ISSUES [16] From about 20 July 2022, the matter was case-managed in an attempt to have it ready for a hearing. Ultimately at a pre-trial conference held on 8 August 2024, the trial readiness of the matter was discussed and the trial was set down for 25 November 2024 to 6 December 2024. [17] Pursuant to the parties’ compliance with the Directives of this Court, in relation to the certification of this matter as ripe for hearing,  the matter was in October 2024 certified trial-ready and the latter dates were confirmed for set down. [18] In the course of preparation for trial, the Court identified preliminary technical issues that required prior determination before the matter got immersed into a costly full blown trial for two weeks.  This led to the Court directing correspondence to the parties on 23 November 2024. This correspondence alerted the parties to the Courts’ concerns about the preliminary technical issues. [19] The Court issued Directives on Monday, 25 November 2024 on the further conduct of the matter. [20] The issued Directives set down two issues for determination. The first was the questions of the Special Plea of non-joinder raised by the second defendant. The second but more primary issue was whether the plaintiffs’ relief is competent. The second issue was raised by the Court mero motu. [21] The question that relates to the second issue was whether all or any of the relief sought by the plaintiffs was precluded by the plaintiffs’ failure to review the Decision. This issue was then set down for argument on Wednesday, 27 November 2024. [22] The parties, including the State Defendants, were further invited to address the Court by way of written and oral argument on the non-joinder of the Nemalele Community and/or any other Community that has an interest in the subject farm. [23] On 27 November 2024, with the parties’ acquiescence , the matter was converted to a pre-trial conference in line with the provisions of section 25(1) read with section 35 of the Land Court Act, 6 of 2023 and Rule 30 of the Rules of the Land Court. [24] In the interests of justice the Court also invoked its inquisitorial powers on the relief sought by the plaintiffs and their Statement of Claim [2] .  The Court explained that the conversion of the hearing into a pre-trial conference, was for purposes of simplification of the issues for determination and a consideration of whether the relief sought by the plaintiffs was competent in the light of the administrative decisions taken by the third to fifth defendants in terms of the Restitution Act. It was further explained that the Court’s prima facie view was that without an attack on the administrative decisions that led to the settlement of the land claim, those administrative decisions, including the Decision,  are valid and extant until set aside. [25] A further issue discussed at this pre-trial conference was whether there was a need for the  joinder of other interested and affected parties. [26] It was agreed by the parties and directed by the Court that: a. the eighth defendant was joined to the proceedings as a defendant; b. The trial set down for 25 November 2024 to 6 December 2024 in Mathale Magistrates' Court would be postponed sine die . c. The second defendant was directed to consult with members of the first defendant and file an affidavit by no later than 13 December 2024– i. confirming whether there are communities that have been subsumed under the second defendant and, if so, identify such subsumed communities; ii. indicate whether there are communities that have lodged land claims on the subject property amongst others but are not part of the second defendant; iii. provide confirmatory affidavits from any other representative of the subsumed communities. [27] The plaintiffs were also granted leave to amend their pleadings by no later than 24 January 2025 and deliver their amended pleadings on all interested and affected parties. [28] A pre-trial conference was to be held on 7 March 2025 at 09:00 to consider the further conduct of the matter. This pre-trial conference was eventually held on 18 March 2025. [29] Significantly, the plaintiffs amended their pleadings on 22 January 2025 and the second defendant delivered the affidavit identifying other communities. This affidavit led to the joinder of the eight to tenth defendants who were identified as parties who have a direct and substantial interest in this matter. THE PLAINTIFFS’ AMENDED STATEMENT OF CLAIM [30] The plaintiffs’ amended Statement of Claim pertinently does not seek to review and set aside any administrative decisions including the Decision. The consequence of failing to do so now arises for consideration, in circumstances where the plaintiffs seeking to detach themselves from the binding consequences of both the merger and settlement of the land claim. [31] Put differently, notwithstanding the opportunity to amend its pleadings, have the plaintiffs fallen short of pleading a proper case that can be adjudicated so as to resolve the dispute between the parties? This issue was again discussed at the pre-trial conference held on 18 March 2024 where further Directives were issued on the further conduct of the matter. [32] At the 18 March 2025 pre-trial conference the Court reflected on the amended Statement of Claim and noted that the plaintiffs had still not sought to review and set aside the third defendant’s Decision.  The plaintiffs’ stance inter alia was that it remained open to it to review the Decision, to the extent necessary, in the event that it was successful in its action. [33] The effect of the settlement of the land claim in terms of the Decision was again explained to the parties and the parties were then invited to file written submissions dealing with the following issues – a. whether or not the relief sought by the plaintiffs is competent in the light of the authorities listed in the Directive; and b. whether it would be fair to the third defendant and convenient for the Court and parties to seek a review and setting aside of the Decision only if the plaintiffs succeeded in its action. [34] The authorities that the parties were referred to included – a. Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (3) All SA 1 (SCA); b. MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC) c. Minister of Land Reform and Others v Thamsanqa Davis Bisset (982/2023) [2024 ZASCA 164 (2 December 2024); and d. Concerned Land Claimants Organisation of PE v PE Land and Community Restoration and Others [2006] ZACC 14 ; 2007 (2) SA 531 (CC). [35] The parties were further directed to deliver written argument on this issue and secondly whether or not it would be fair to the Minister and convenient for the Court and parties to seek to review and set aside of the Decision only if the plaintiffs succeed in the action . A hearing was thereafter scheduled for 25 August 2025. THE HEARING OF 25 AUGUST 2025 [36] With the plaintiffs having elected to not impugn the Decision, amongst other administrative decisions of the fifth defendant, the hearing proceeded on 25 August 2025, with the plaintiffs and the second defendant having delivered written argument. [37] At the hearing, and pursuant to the Court engaging in a debate on the nature of the decisions taken by the third to fifth defendants, the plaintiffs’ Counsel Adv Mulaudzi accepted that: a. the decision to publish a land claim in terms of section 11 of the Restitution Act is a decision which had been taken by the fifth defendant which constitutes administrative action; and, b. that the Decision in terms of section 42D of the Restitution Act is administrative action. [38] In relation to the failure to review the Decision, the plaintiffs contended that the Cout may mero motu review and set aside administrative action that stands in the way of the relief they seek. [39] The plaintiffs further contended that the Court may dissolve the first defendant and vary the section 42D Settlement Agreement. This, we were told, could be done in terms of the Court’s inherent powers. [40] Adv Mulaudzi also submitted that the decision to review and set aside the Decision in the manner suggested by the plaintiffs, would not be prejudicial to any party. [41] Even though he failed to deliver written argument as directed, the Court permitted Mr Mathebula on behalf of the State defendants to make oral submissions. Mr Mathebula argued that a significant part of this matter is the constitutional promise of section 25(7) of the Constitution, being that land must be restored to those who lost land rights in terms of racially discriminatory practices or laws of yore. [42] He further argued that there was no need to revisit the issue of the administrative decisions that were taken by the third to fifth defendants. He however submitted that insofar as the State defendants were concerned, the land claim had been finalised. [43] Mr Mathebula then referred this Court to the matter of Tshakuma Community Trust and Another v Regional Land Claims Commissioner for Province of Limpopo and Others (LCC 194/2013 [2023] ZALCC 20 (11 July 2023).  In Tshakuma Community Trust , this Court per Ncube J held that the acceptance, approval and subsequent publication of a land claim of the Dombo Community in terms of Section 11 of the Restitution Act was irregular and was liable to be set aside on review. [44] In terms of paragraph 2 of the Order granted at paragraph 19 of the Judgment, Ncube J reviewed and set aside the acceptance and publication the Dombo Community land claim. [45] Considered in context, the judgment of Ncube J in Tshakuma Community Trust accentuates the concerns that this Court raised in this matter.   The learned Judge found that the decision to accept the claim and publish it in a Government Gazette in terms of section 11 of the Restitution Act was a reviewable decision and, in the circumstances of that case, went on to review it and set it aside. [46] On behalf of the second defendant, the submissions by Adv Ngwana were that the Directive of this Court given on 2 May 2025 was clear and the plaintiffs had failed to deal therewith.  The second defendant contended that the plaintiffs’ failure to impugn the Decision as well as the failure to review and set aside administrative decisions that led to it were fatal to the application.  The effect of the relief that the plaintiffs sought is that the Court would, if it granted it, be creating an untenable situation of creating two Communal Property Associations that would have ownership of the subject property. [47] Mr Ngwana further submitted that the plaintiffs’ Statement of Claim defines the case that second defendant was called upon to meet. He argued that the plaintiffs had not pleaded a case supporting the submission that the Court could mero motu review the Decision and other administrative decisions. [48] The competent order, according to the second defendant would be to declare the plaintiffs’ Statement of Claim to be incompetent for failure to impugn the foundational decisions that led to the settlement of the land claim. [49] It is clear, on trite authorities including the Oudekraal judgment, that administrative decisions stand and are valid until reviewed and set aside by a competent court. We have also searched in vain for authority supporting the proposition that a court may mero motu review and set aside decisions of an organ of state. [50] This means that but for the joinder of interested and affected parties, the substantive issues have not been progressed, and the pleadings are in practically in the same position as they were in, when the pre-trial conference of 27 November 2024 was held. THE RELIEF SOUGHT IS INCOMPETENT [51] The issue of land and restorative justice which is what the land restitution programme is about is an emotive one and central to the transformative ideals of the Constitution. This is why matters that are before this Court and pivot on constitutional rights ought not be approached with tabulated legalism.  Approaching matters such as this one with the legal rigidity of a commercial dispute would stultify restorative justice and be antithetical to the interests of justice.  This consideration and tenet, informs the inquisitorial approach we have taken in this matter. [52] Had the matter run its ordinary, course, the Court would have proceeded to hear evidence over a potentially extended period, at great cost to the parties and expenditure of judicial resources, only to conclude at that stage that an amendment to the pleadings was necessary for the relief to be competent or that the action should be dismissed. The interests of justice in a land restitution setting, dictate that we should have a more considered approach. [53] This Court has inquisitorial powers that have to be invoked in the interests of justice. Albeit opaquely pleaded, this court cannot be oblivious to the substantive issues averred in the plaintiffs’ Statement of Claim which summon judicial intervention. There are many judgments of this Court that dealt with the fourth defendant’s unlawful merging or “piggy-backing” of land restitution claims [3] .  Justice demands that the averments pertaining to an unlawful merger of land claims be ventilated. [54] Instead of dismissing the plaintiffs’ actions, the interest of justice directs us to ensure that the plaintiffs are not precluded from ventilating their case. This is also done in terms of this Court’s inquisitorial powers and our obligation to ensure that there is a just and equitable outcome to the dispute. [55] The relief sought by the plaintiffs in the amended Statement of Claim is incompetent in the absence of a review of the decision to Gazette the merged claim and the Decision, and the Court does not have an inherent power to mero motu review and set aside administrative or statutory decisions. This inhibits us from presiding over the matter at a protracted trial when it is clear that the plaintiffs’ pleading is fatally defective, as currently framed. Doing that would be a misuse of strained judicial resources. [56] Due to the fact that the issue relating to the decision to publish the ninth defendant’s land claim in terms of section 11(1) of the Restitution Act was not directly raised in the directives we issued, we do not make an order relating to it. However, the issue was ventilated in the hearing and it is apposite to state that the same considerations would apply to that decision, which would accordingly also have to be reviewed and set aside. Had we raised it in the Directives, we would have been in a position to direct that the same approach be adopted by the Plaintiffs in relation to the amendment of their Statement of Claim. [57] The approach we take in this matter is analogous to a High Court finding that a pleading is in terms of Uniform Rule 23 of the Rules of the High Court, excipiable. This we do in the interest of justice and in the exercise of our inquisitorial powers. [58] The order we hand down directs the plaintiffs, if so advised, to amend their Statement of Claim to ensure that the Decision is impugned in their Statement of Claim and the prayers they seek. This amendment must be effected with 20 days of this order.  Should they fail to do so, the defendants will be at liberty to approach this Court and seek the dismissal of the plaintiffs’ claim. [59] In the premises the following order is granted: 1.         It is declared that the relief sought in the plaintiff’s Statement of Claim dated 22 January 2025 is incompetent in the absence of a review of the decision to administratively settle the merged land claims in terms of section 42D of the Restitution Act taken by the then Minister on 25 August 2006; 2.         The plaintiffs are, if so advised, directed to amend their Statement of Claim, within twenty (20) days of this Order. 3.         There is no order as to costs MAJOZI AJ COWEN DJP For the Plaintiffs: Adv MR Mulaudzi Instructed by Mabuku Mangena Attorneys Inc For the Second Defendant: Adv TI Ngwana Instructed by Denga Attorneys For the Third to Fifth Defendants: Mr. S Mathebula State Attorney, Pretoria [1] These Communities had lodged land claims through Ndwakhulu Alfred Nefolovhodwe and Thifhulufheli Muvhango Phineas Nelutshindu. [2] Mlifi v Klingenberg 1999 (2) SA 674 (LCC) para 110 and 111 [3] Shongwe No and 3 Others v The Regional Land Claims Commissioner: Mpumalanga and 18 Others (Unreported judgment) ZALCC 1 (12 April 2012) and Mdumane Community Trust and Others v Land Claims Commission and Others [2015] ZALCC 1 (19 November 2015) sino noindex make_database footer start