Torlage N.O and Another v Minister of Agriculture, Land Reform and Rural Development and Others and Rural Develpoment (LCC161/2018B) [2022] ZALCC 8 (29 March 2022)

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 >> 2022 >> [2022] ZALCC 8 | Noteup | LawCite sino index ## Torlage N.O and Another v Minister of Agriculture, Land Reform and Rural Development and Others and Rural Develpoment (LCC161/2018B) [2022] ZALCC 8 (29 March 2022) Torlage N.O and Another v Minister of Agriculture, Land Reform and Rural Development and Others and Rural Develpoment (LCC161/2018B) [2022] ZALCC 8 (29 March 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2022_8.html sino date 29 March 2022 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG Case Number: LCC161/2018B REPORTABLE: YES OF INTEREST TO OTHER JUDGES: YES REVISED: NO Before: The Honourable Acting Judge President Meer Heard on:     7 March 2022 Delivered on: 29 March 2022 In the matter between: COENRAAD FREDERICK TORLAGE N.O First Applicant BERGTUIN (PTY) LTD Second Applicant and THE MINISTER OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT First Respondent THE CHIEF LAND CLAIMS COMMISSIONER Second Respondent THE REGIONAL LAND CLAIMS COMMISSIONER Third Respondent THE UTRECHT TOWNLAND COMMUNITY Fourth Respondent JUDGMENT MEER AJP Introduction [1] The Applicants seek an order in the following terms: “ 1. That the decision by the Second Respondent to publish in Government Gazette No 24116 of 6 December 2002, per notice 3063/2002, the immovable properties described as portions 2, 4 and 6 of the farm Waterval No 51 (the Applicants’ farms) be and is hereby reviewed and set aside. 2. That a declaratory order be granted that the referral of the Applicants’ farms to this Honourable Court for adjudication in terms of section 14(1) of the Restitution of Land Rights Act No 22 of 1994 constitutes an illegality and be set aside, deleted or removed from the Referral of the claim to this Court. 3. That the First, Second and Third Respondents be ordered and directed to publish a notice in the Government Gazette in terms of which the Applicants’ farms are removed from Government Notice 3063/2002 appearing in Government Gazette No 24116 of 6 December 2002. 4. That the First, Second and Third Respondents be ordered, jointly and severally to pay the Applicants’ costs, on the scale between attorney and client, such to include the costs of two counsel. 5. That further or alternative relief be granted to the Applicants”. [2] The Estate of the late H R Shawe, represented by its executor, the First Applicant, is the owner of portion 1 of the farm Waterval No 51 held by deed of transfer No T10450/1976. The Second Applicant is the owner of portions 4 and 6 of the farm Waterval No 51 held by deeds of transfer No T16336/1988. The First and Second Respondents are cited in their official capacities. The Third Respondent (“the RLCC”) published a Notice in the Government Gazette that a land claim had been lodged against inter alia the Applicants’ properties and thereafter referred the claim to this Court for adjudication. The Government Gazette Notice records the Fourth Respondent as the claimant in respect of the various properties in the Utrecht area, KwaZulu-Natal, which are listed in the Notice. The Respondents oppose the application. Background facts [3]           Three claims for restitution of rights in land in the Utrecht area were lodged at the offices of the RLCC: KZN before 31 December 1998, being the cut-off date for lodging of claims in terms of section 2(1)(e) of the Restitution of Land Rights Act, 22 of 1994 (“Restitution Act)”: 3.1    Mr Sipho Osborn Makhoba lodged a claim on 3 December 1998. Paragraph 1.1 of his claim form describes the land as “remainder of subdivision B of Waterval No 148 situated in district of Utrecht”. Paragraph 1.2 of the claim form in response to the question “if it is urban, the street address and erf number which appears on the deeds description”, stated “B of Waterval No 148 transfer No 1983/1907. Notarial deed of personal 140/1939”. The founding affidavit of the First Applicant notes that the claim form explicitly and with cadastral description identified the claimed land. This averment is not disputed by any of the Respondents in their answering affidavits. 3.2    Mr Christopher Johnson lodged a claim on 8 May 1995 on behalf of the Utrecht Townlands Community. The claim form gives a property description of the land at paragraph 1.1 as “Bergzicht or Townlands in Utrecht”. The founding affidavit avers that the claim form explicitly described the claimed land and this is not denied by any of the Respondents in answering affidavits. 3.3    Mr Samson Mthabela lodged a claim in his personal capacity on 22 December 1998. His claim form describes the property as “Utrecht location house No 72 Townlands”. The founding affidavit avers also in respect of this claim that the claim form explicitly described the claimed land and once again this is not denied in the answering affidavits. [4]           It is clear from the above that none of the land claim forms described the claimed land as Portions 1, 4 and 6 of the farm Waterval No 51, being the property owned by the Applicants. This is common cause. [5] The three claims were accepted and, despite pertaining to three separate properties, were consolidated by the RLCC into a single claim. The consolidated claim referred to the claimant as “Utrecht Townlands Community”, represented by Mr Christopher Johnson. The Third Respondent caused the aforementioned publication to appear in Government Gazette No 24116 on 6 December 2002 per Notice 3063 of 2002, which listed the claimed properties as follows: NO PROPERTY DESCRIPTION EXTENT CURRENT TITLE DEED NO. CURRENT OWNER 1 Remainder of the Townlands of Utrecht No. 266 253, 9361 ha GUT6075/1904 Utrecht Transitional Local Council 2 Portion 1 of the farm Waterval No. 51 90, 2935 ha T10450/1976 Bergtuin CC 3 Portion 2 of the farm Waterval No. 51 353, 5969 ha T1984/1970 Jacobus Johannes Grobler 4 Portion 3 of the farm Waterval No. 51 353, 5969 ha T9445/1958 Welgedacht Exploration Co. Ltd 5 Portion 4 of the farm Waterval No. 51 353, 5969 ha T16336/1988 Hubert Ronald Shawe 6 Portion 5 of the farm Waterval No. 51 353, 5969 ha T9445/1958 Welgedacht Exploration Co. Ltd 7 Portion 6 of the farm Waterval No. 51 353, 5969 ha T16336/1988 Hubert Ronald Shawe 8 Portion 7 of the farm Waterval No. 51 353, 5972 ha T9445/1958 Welgedacht Exploration Co. Ltd 9 Portion 8 of the farm Waterval No. 51 353,5969 ha T9445/1958 Welgedacht Exploration Co. Ltd Of the listed properties, it is only Properties No 2, 5 and 7 which belong to the Applicants. [6] The Government Gazette Notice invited any party who has an interest in the claimed land to submit within 60 days from publication of the notice any comments/information. A report dated 28 February 2017 by the RLCC on the status of the land claim, compiled in terms of a direction by the Court, records that on 23 April 2003 the First Applicant’s erstwhile attorneys made representations in a letter to the RLCC contesting the validity of the claim in respect of his properties. The letter states that the First Applicant’s property never formed part of Townlands. In a further letter dated 10 September 2003, the validity of the claim was again contested. The Applicant’s current attorney, Mr Hans Moolman, in a supporting affidavit states that these representations were made in terms of section 11A(1) of the Restitution Act [1] with the intention of persuading the Third Respondent to withdraw the claim. [7] The referral report pertaining to the claim was filed at Court on 1 October 2018. It referred one claim to this Court in terms of section 14(1) of the Restitution Act, being the consolidated claim. The founding affidavit notes that the consolidation of the claims of Mr Mthabela and Mr Makhoba with the Utrecht Townland Community’s claim is impermissible. This is conceded by the Third Respondents, who characterizes the consolidation as incorrect in law and states that if the consolidation is deemed irregular these claims will be removed from the referral. The Applicants note that notwithstanding the alleged consolidation, neither of the two claims have been published in the Government Gazette nor referred to Court. [8]           The referral report appears not to have been served on the late Mr Shawe. A letter of 6 February 2019 by his erstwhile attorneys states that the referral report was returned to the Sheriff. On 26 January 2021, the Claimants instituted an application compelling the State Attorney to serve a copy of the referral on the “late Mr Shawe.” The referral report was served on the Second Applicant on 5 February 2019. [9]           The referral report was served on the Applicants’ current attorneys on 7 July 2021 only. [10]        The founding affidavit states that the referral report was incomplete as it did not include various important documents referred to in the report. On 11 August 2021, the Applicants’ attorney had to issue a notice in terms of Rule 28(2) of the Rules of this Court read with Rule 35(14) of the Uniform Rules of Court requesting the RLCC to produce various documents including the claim forms pertaining to the claims that were lodged. I note that the RLCC’s bare denial that the referral report was incomplete is contradicted by its own admission that the State Attorney on 17 August 2021, on its behalf, requested an extension to deliver the documents requested. The bare denial unsubstantiated by proof of service of the referral with the claim forms and other outstanding documents annexed thereto, does not of course create a real dispute of fact that the incomplete referral was served on the Applicants. See Plascon Evans Paints v Van Riebeeck Paints [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at 634H-635C and Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6 ; 2008 (3) SA 371 (SCA) at para 13. The averment in the affidavit of Mr Rohrs, a director of the Second Applicant, to the effect that the referral did not contain the claim forms is neither responded to nor denied by any of the Respondents. The categorical recordal in the supporting affidavit of the Applicants’ attorney that the first time the claim forms were made available was on 18 August 2021 is similarly neither responded to nor denied. [11]        On 18 August 2021 only certain documents requested by the Applicants, including the claim forms, were made available to their attorneys. On scrutinizing the claims form and documents obtained from the Deeds Office, the Applicants ascertained that another farm, Waterval No 148, situated in the Utrecht District, was referred to in the claim form of Mr Makhoba, and that their properties were not listed as land that was claimed on any of the claim forms. It became apparent that no reference to the farm Waterval No 51 appeared on any of the claim forms. [12] A deeds search conducted by the Applicants in respect of the subdivision B of Waterval No 148 revealed that subdivision B of Waterval No 148 (or portion 2) is now registered in the name of the Amatungwa Development Trust and has been subdivided into portions 4, 5 and 6. Portions 4 and 6 are presently registered in the name of the Republic of South Africa. The Applicants note that the claim form of Mr Makhoba refers clearly to subdivision B of Waterval No 148 and records “transfer no. 1983/1907”, which corresponds with the inscription on the land register reflecting subdivision B of Waterval No 148 and the title deed of that farm. The Applicants note further that it is abundantly clear that the claimant Mr Makhoba had in his possession cadastral information of the claimed land when the claim was lodged, being subdivision B of Waterval No 148. [13] As a result of their discovery, the Applicants filed an amended response to the referral report dated 17 September 2021 wherein they stated inter alia that Waterval No 51 was wrongly included in the Government Gazette, and contested the validity of the claim. Thereafter the current application was instituted on 3 November 2021. Lis pendens [14] As a point in limine , the First to Third Respondents (“the State Respondents”) raised the defence of lis alibi pendens . In this regard they aver that there is a pending referral set down for determination before this Court between the same parties based on the same cause of action in respect of the same subject matter. There is no merit in this submission. The current application for the review and setting aside of the gazetting of the Applicants’ property does not have the same cause of action as the referral, which seeks restitution of rights in land and pertains to the validity of a restitution claim which is not restricted to the Applicants’ properties. Was the review brought timeously? [15] The Fourth Respondent in their answering affidavit contends that the delay in launching the review is unreasonable and unacceptable and in this regard refers to the Government Gazette notice which invited comments within 60 days from the publication of the notice. In his heads of argument, Mr Mofokeng on behalf of the Fourth Respondent contended further that the review application is out of time as it was not instituted within 180 days of the Applicants becoming aware of the decision to gazette their properties, being the time limit prescribed in section 7(1)(b) of the Promotion of Administrative Justice Act No 3 of 2000 (“PAJA”). The Applicants, it is contended, were aware in 2003, as stated in their erstwhile attorney’s aforementioned letter of April 2003 to the Commission, that their properties never formed part of Townlands, and that their farms were wrongly included in the Government Gazette. The review should have been launched in 2003 instead of twenty years later, he contended, pointing out also that there was no agreement between the parties for an extension of the 180 day period in terms of section 9(1) of PAJA. In his answering affidavit on behalf of the State Respondents, Mr Maphuta made no reference whatsoever to the review being out of time, yet in her heads of argument Ms Manicum sought to pursue this argument. [16] Whilst the Government Gazette notice published in terms of section 11(1) of the Restitution Act invited parties to submit comments and information within 60 days, the relevant section pertaining thereto, section 11A(1) [2] of that Act, does not prescribe a time limit for representations. I am inclined to agree with the Applicants that the period of 60 days referred to in the Government Gazette was unilaterally determined and that representations were made on behalf of the Applicants within a reasonable time on 22 April 2003 in terms of section 11A(1). [17] At the time these representations were made, the Applicants did not have the claim forms but were responding to the Government Gazette notice. That publication neither referred to the claim forms nor disclosed an accurate description of the properties as contained in the claim form. On the face of it, the publication disclosed no irregularity. The representation of the Applicants’ attorney of April 2003 pursuant thereto to the effect that their properties never formed part of Townlands, cannot therefore be construed to evidence knowledge on their part of an irregularity warranting a review in 2003. It evidences at best the Applicants’ opposition to the claim. The Applicants accordingly cannot be faulted for not bringing a review in 2003. [18] In Bouvest 2173 CC and Others v Commission on Restitution of Land Rights and Others [2007] ZALCC 7 (“ Bouvest ”) at paragraph 44 it was acknowledged that section 11A of the Restitution Act provides an internal remedy. It is so that section 7(2) of PAJA precludes the institution of review proceedings until an internal remedy has been concluded. Mr Roberts for the Applicants submitted that on 7 July 2021, when the referral report was received by the Applicants, it became apparent that the RLCC had made a decision pertaining to the internal remedy they pursued in their representation that their properties did not form part of the claimed land. This, he submitted, is so if regard is had to the contents of the referral report. I am inclined to agree. The inclusion of the Applicants’ properties in the claimed land did not favour their representations in terms of section 11A(1). [19] It was however only once the claim forms were received, on 18 August 2021, that actual knowledge was obtained by the Applicants that the farm Waterval No 51 had not been claimed by any of the three claimants. They then realized that the publication in the Government Gazette that Waterval No 51 had been claimed was wrong, and that it was the farm Waterval No 148, a separate farm in the Utrecht district, which had been claimed. The review application was brought within 180 days of both 18 August 2021, the date of actual knowledge of the irregularity, and also within 180 days of 7 July 2021, the date of receipt of the referral. In the circumstances, the review application was not brought out of the 180-day time prescribed at section 7 of PAJA. [20] In Mostert N.O. v Registrar of Pensions Funds and Others 2018 (2) SA 53 (SCA) at para 45, the approach of the court a quo pertaining to the onus of an administrator was endorsed as follows: “ Van Der Linde J approached the matter on the basis that an applicant for review should place evidence before the court of the date on which he acquired actual knowledge of the administrative action and the reasons for it. He also held that if the administrator wants to rely on an earlier date, namely one by which the applicant might reasonably have been expected to have become aware of the action and the reasons, then the administrator should place the relevant evidence before the court”. (own emphasis) No evidence has been provided by the Third Respondent, the administrator, that the Applicants could have been expected to have become aware earlier of the administrative action and the reasons therefor. Was the gazetting and subsequent referral of Applicants’ farms for adjudication in terms of section 14(1) of the Restitution Act an illegality? [21] An explanation as to how the farm Waterval came to be gazetted and referred to the Court in terms of section 14(1) of the Restitution Act is provided in the answering affidavit of Mr Maphuta on behalf of the Third Respondent. He states that a mapping exercise was conducted during which Waterval No 51 was pointed out. This, he says, occurred on about 3 April 2001 when Mr Henstock, a professional land surveyor appointed to map out the boundaries of the claimed properties, did so accompanied by officials and/or researchers employed by the RLCC, and members of the claimant community pointed out the boundaries of the claimed land. The claimed properties were mapped by Mr Henstock, who then provided the necessary cadastral descriptions together with further details relating to the history of ownership. A report compiled by Mr Henstock included portions 1 to 8 of the farm Watervel No 51 and the Townlands of Utrecht. [22]        Mr Maphuta however concedes that the exercise of pointing out and mapping is subject to various inaccuracies and shortcoming and that observations may be imprecise. Further research conducted by gathering oral historical evidence from elders in the Fourth Respondent’s community and further desktop research resulted in the properties listed in the published notice, and in the referral report. On this basis he submits that the gazetting of the portions of the farm Waterval 51 was rationally connected to the information the RLCC had at the time. He avers that any discrepancies and errors that occurred during the pointing out of the boundaries of the claimed properties can be resolved during an inspection in loco during the adjudication of the matter. [23] In his answering affidavit, Mr Maphuta denies that no claim was lodged for Waterval No 51 and moreover denies that the farm Waterval No 51 was wrongly included in the Government Gazette. [24] The Fourth Respondent echoes the call by the State Respondents for an inspection in loco as part of the adjudication of this matter, contending that such an inspection will clarify the boundaries of the claimed land. [25] It is apparent to me that on the papers it is not disputed that the claim forms correctly identified and described the properties claimed. In fact, as aforementioned, the Respondents admitted that the properties were explicitly and clearly defined on the claim forms. There are no allegations by the Respondents in their answering affidavits that there was confusion as to what was claimed or that the claim forms did not properly describe the land that was claimed. The claim forms describe the properties claimed in particularity and clear descriptions are recorded. This includes a cadastral description which tallies with Waterval farm No 148. There is no evidence to indicate that the persons completing the claims forms did not understand the instruction at paragraph 1 of the form to record the portions, name and number of the farm and the district in which the land is situated. There is no evidence that there was any misunderstanding of what was requested of those who completed the forms. [26] There is thus no room for argument that the claim forms were deficient in any way or that the descriptions of the properties were vague as contended by the State Respondents. In Nyavana Traditional Authority v MEC for Limpopo Department of Agriculture and Others [2020] ZALCC 12 , the Applicant asserted a mistake in naming the area identified in the claim form and sought an order to this effect. Paragraph 32 of that judgment acknowledged that where a claimant does not adequately describe the land the RLCC can arrange a physical inspection and pointing out by the claimants. That was not the situation in this matter – it is not disputed that the claim forms adequately described the land claimed. It ill behooved the RLCC in the circumstances to include additional land from a pointing out. [27] Section 2(1)(e) of the Restitution Act entitles a person to restitution of a right in land if the claim for restitution is lodged not later than 31 December 1998. The claim forms in question did not claim restitution of rights in land in respect of farm Waterval No 51. Put simply, no claim for restitution rights in land was lodged in respect of the farm Waterval No 51 by 31 December 1998 and therefore a claim for restitution in respect of such farm is precluded by section 2(1)(e) of the Restitution Act. In Bouvest at paragraph 35 it was stated – “ in terms of section 11(1)(b) of the Restitution Act, the second respondent may not publish a claim in the Government Gazette if it is precluded by the provisions of section 2. A person is not entitled to claim restitution of a right in land of which he was not dispossessed, or which he did not claim by 31 December 1998.... The acceptance and publication of such restitution claims are not authorized under section 11(1) read with section 2(1) of the Restitution Act, and is therefore subject to judicial review under section 6(2)(f)(i) of PAJA”. It was further held at paragraph 36 that the decision to accept a land claim for publication “was not rationally connected to the information available…Insofar as that decision affects the Applicants’ farms, the applicants are entitled to have it judicially reviewed under section 6(2)(f)(ii)(cc) and (dd) of PAJA”. [28] These words resonate in the instant case. As no claim was lodged before 31 December 1998 in respect of the farm Waterval No 51, the farm should not have been included in the Government Gazette and the referral thereof for adjudication should not have occurred. Here too the Applicants are entitled to review the decision to gazette and refer the claim in respect of its land. I note that in the event of the lodging of new claims being permitted at some future date, a claim in respect of Waterval No 51 may be lodged. [29] There is a line of cases which state that the notice in terms of section 11(1) of the Restitution Act published in the Government Gazette must accurately identify the land subject to a claim. In Makhuva-Mathebula Community v Regional Land Claims Commissioner, Limpopo & another [2019] ZASCA 157 , the Supreme Court of Appeal upheld the decision of the RLCC to publish a claim on the basis of the information contained in paragraph 1.1 of the claim form, not on the basis of the maps attached to the claim form. The Court said at paragraph 49 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”. [30] In Minaar N.O. v Regional Land Claims Commissioner for Mpumalanga and Others [2006] ZALCC 12 , the claimant claimed only portion D of the farm Daisy Kopje. Based on further investigations of the claim the RLCC published a notice in the gazette in respect of all subdivisions of the said farm and not just portion D. The decision of the RLCC not to confine the publication to portion D was set aside on review. The Court pointed out at paragraph 19 that– “ no claim as required by section 2(1)(e) was lodged in respect of the other portions. The first respondent has no power to include unclaimed portions of Daisy Kopje in the claimed land”. It went on to state at paragraph 23 that– “ even if [the claimant] had an intention to include the other land, that subjective intention alone cannot expand a claim which ex facie the claim form is limited to portion D, to also include other subdivisions of Daisy Kopje”. [31] Similarly, in Bouvest , this Court dealt with four claim forms that identified thirteen farms by farm name, number and registration division. The RLCC however gave notice in the Gazette that the four claims were in respect of twenty farms, ascribing the additional seven farms “to rezoning, restructuring and change of farm name…ignorance of the claimants in that regard and as to the real names of the farms.” No evidence of farm name changes or the like was adduced. This Court held that the decision to include the seven additional farms was not justifiable in relation to the information that was before the RLCC. The decision and publication was set aside in so far as they pertained to the seven additional farms. [32] As a claim in respect of the Applicants’ farms was not lodged in terms of section 2(1)(e) of the Restitution Act, such claim ought not to have been gazetted or referred to the Court in terms of section 14(1) of the Restitution Act. The fact that the Third Respondent contends that during a mapping exercise that Waterval No 51 was pointed out does not detract from the fact that no claim was lodged in term of such farm. The pointing out was in any event not warranted given that the land claimed was accurately identified on the claim forms. I note in passing that even if a pointing out had been warranted, it is doubtful if hearsay evidence of pointing out, unsubstantiated by facts or documents would be admissible in terms of the hearsay provisions in section 30(1) and 30(2)(a) of the Restitution Act. Whilst this Court is entitled to admit hearsay evidence it does not do so indiscriminately. Such evidence must be sifted, weighed and evaluated in light of all other evidence. See Ash and Others v Department of Land Affairs [2000] ZALCC 54 at paragraph 15; see also Salem Party Club and Others v The Salem Community and Others [2016] ZASCA 203. [33] In light of all of the above, I find that the RLCC did not apply their mind as to what was claimed and included land that was not claimed in the Government Gazette Notice. As is contended by the Applicants, section 2(1) of the Restitution Act is couched in peremptory terms, as is section 11(1). No provision in the Act empowered the Third Respondent to include land that had not been claimed and to refer such land to the Court in terms of section 14(1). The decision to include further properties is moreover not rationally connected to the information that was before the RLCC. Such conduct falls foul of section 6(2)(f)(cc) of PAJA. [34] The Applicants are accordingly entitled to an order reviewing and setting aside the publication in the Government Gazette of Portions 1,4 and 6 of the farm Waterval No 51 and an order declaring that the referral to the Court in terms of section 14 of the Restitution Act of these farms constituted an illegality. Costs [35] The Applicants seek the costs of two counsel on the attorney and client scale against the State Respondents, and in so doing submit: 35.1 The Third Respondent did not act diligently in ensuring that the Applicants were served with the Government Gazette and Referral Report; 35.2 The Claimants were obliged to bring an application to this effect; 35.3 The claim forms were only obtained after a notice in terms of Rule 35(14) read with Rule 28(2) was served, and the Third Respondent even disregarded directions to comply with that notice; 35.4 The Third Respondent disregarded directions pertaining to the filing of an answering affidavit and heads of argument and thereby placed the Applicant under pressure to file a replying affidavit and heads of argument to ensure that the matter is heard on the allocated date; 35.5 The Third Respondent persisted in averring that the two claim forms had been annexed to the referral report, which was not the case; and 35.6 The Third Respondent ought to have known from previous authority that there is no merit in opposing the relief sought and that property not specifically claimed cannot find its way into the Government Gazette or a referral report. There is merit in these submissions which illustrate the lack of diligence on the part of the Third Respondent. [36] To this litany I add my personal displeasure at the discourtesy displayed by the Respondents in totally disregarding the Court’s directions and timetable for filing. The First to Third Respondents’ signed answering affidavit was filed only on the morning of the hearing, and Ms Manicum’s heads of argument were emailed to my Registrar after the hearing had commenced. Mr Mofokeng’s heads of argument were emailed a day before. It goes without saying that such conduct is unbecoming. I am satisfied that the circumstances warrant the cost order that is sought. [37] I accordingly order as follows: 1. The decision by the Second Respondent to publish in Government Gazette No 24116 of 6 December 2002, per Notice 3063/2002, the immovable properties described as Portion 2, 4 and 6 of the farm Waterval No 51 (the Applicants’ farms) is reviewed and set aside. 2. It is declared that the referral of the Applicants’ farms to this Honourable Court for adjudication in terms of section 14(1) of the Restitution of Land Rights Act No 22 of 1994 constitutes an illegality and is set aside and deleted from the referral of the claim to this Court. 3. The First, Second and Third Respondents are ordered and directed to publish a notice in the Government Gazette in terms of which the Applicants’ farms are removed from the Government Notice 3063/2002 appearing in Government Gazette No 24116 of 6 December 2002. 4. The First, Second and Third Respondents are ordered, jointly and severally to pay the Applicants’ costs, on the scale between attorney and client, such to include the costs of two counsel. Y S MEER Acting Judge President Land Claims Court APPEARANCES For the Applicants: Adv M G Roberts SC Adv E Roberts Instructed by: Moolman & Pienaar Attorneys For First to Third Respondents:     Adv T Manicum Instructed by: State Attorney, KwaZulu-Natal For Fourth Respondent:                  Adv X Mofokeng Instructed by: Motanya Madiba Attorneys [1] Section 11A(1) states: “Any person affected by the publication of the notice of a claim in terms of section 11(1) may make representations to the regional land claims commissioner having jurisdiction for the withdrawal or amendment of that notice”. [2] See n1 above. sino noindex make_database footer start