Henning and Others v Baloyi and Others (LCC179/2021) [2022] ZALCC 25 (6 May 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 25 | Noteup | LawCite sino index ## Henning and Others v Baloyi and Others (LCC179/2021) [2022] ZALCC 25 (6 May 2022) Henning and Others v Baloyi and Others (LCC179/2021) [2022] ZALCC 25 (6 May 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2022_25.html sino date 6 May 2022 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG CASE NUMBER: LCC179/2021 REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED: In the matter between: CARL ARTHUR HENNING 1 st Applicant THE MODDERVLEI COMMUNITY 2 nd Applicant EXPECTRA 615 (PTY) LTD T/A MUNUNZWU NEWCO 3 rd Applicant and AMELIA BALOYI 1 st Respondent THE MINISTER OF AGRICULTURE, RURAL DEVELOPMENT & LAND REFORM 2 nd Respondent THE REGIONAL LAND CLAIMS COMMISSIONER: FOR LIMPOPO PROVINCE 3 rd Respondent RAMARU COMMUNITY 4 th Respondent MBANGAMBANGA COMMUNITY 5 th Respondent JUDGMENT COWEN J Introduction 1. This is a semi-urgent application. It concerns the lawfulness of a plantation that Mr Amelia Baloyi, the First Respondent, has established near his residence on land in Limpopo Province in respect of which the Applicants have lodged restitution claims. The plantation is established near his village known to its residents as Vari. 2. The Applicants contend that Mr Baloyi has unlawfully established part of the plantation on property known as the Remaining Extent of the Farm Moddervlei 44 LT (Moddervlei R/E). They say he has done so in breach of section 11(7) of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) and the common law proscriptions on spoliation. They seek various interdicts to protect their rights and interests in Moddervlei R/E and related relief. 3. Mr Baloyi resides and his residence is on a property known as Portion 1 of the Farm Moddervlei 44 LT (Moddervlei Portion 1) which is immediately adjacent to Moddervlei R/E on the latter’s north-eastern boundary. Both are state-owned property and, together with Moddervlei Portion 2, are the constituent parts of a ‘mother property’ referred to as Farm 44 LT, Moddervlei. These properties and their cadastral boundaries are depicted on the attached Annexure “A”. [1] 4. The First Applicant is Mr Carl Arthur Henning. Mr Henning has been in possession of Moddervlei R/E over many years together with the Third Applicant, of which, as appears below, he is a director and shareholder. He resides with his family in the farmhouse on the property and he manages its day to day farming operations. Mr Henning also asserts rights by virtue of a restitution claim lodged by his late father, Mr Arthur Henning Smith, in respect of Moddervlei R/E under section 2 of the Restitution Act. 5. Mr Henning’s grandfather purchased Moddervlei R/E in 1912: it was registered in his name in 1913. Over time, the Henning family developed the farm, farming mango, citrus, avocados, macadamias and other produce. In 1980, Mr Henning’s late father was allegedly dispossessed of Moddervlei R/E (which he then owned) in circumstances where it was incorporated into former Venda. The property was at that time acquired by and transferred into the ownership of the South African Development Trust (SADT) and registered in its name. However, Mr Henning’s late father remained on the farm, initially as a lessee and, from 1983, as a manager under a management agreement concluded with a state entity called STK, and subsequently with the Agricultural and Rural Development Corporation (ARDC). [2] 6. The Commission for the Restitution of Land Rights (the Commission) rejected Mr Henning’s late father’s restitution claim. However, it has been referred to this Court as a direct referral and is pending under case number LCC07/2005. Mr Henning asserts rights in his father’s stead. [3] 7. The Second Applicant is the Moddervlei Community, represented by Mr Mpho Thomas Mudai, who alleges that he is its current Chairperson. The Moddervlei Community also lodged a restitution claim in terms of section 2 of the Restitution Act and for purposes of these proceedings, and on the affidavits, I accept that the claim is in respect of at least Moddervlei R/E. [4] The Commission accepted the Second Applicant’s claim and it has been published in the Government Gazette in terms of section 11(1) of the Restitution Act and referred to this Court. It is now pending before this Court, under case number LCC 22/2005. By virtue of the publication of the Second Applicant’s claim, and others that I deal with below, the restrictions contemplated by section 11(7) of the Restitution Act are operational in respect of the affected property. [5] 8. The Third Applicant is Expectra 615 (Pty) Ltd trading as Mununzwu NewCo. The Third Applicant is in physical possession of the Moddervlei property R/E and allegedly manages it pursuant to a management agreement concluded initially in 2003 between the Third Applicant, an entity known as Mununzwu Estate (Pty) Ltd and the ARDC.  Mr Henning is a director and shareholder of the Third Applicant, and with Third Applicant, is in physical possession of the property. The status of the management agreement is a matter of contention, and I return to it below. However, it is common cause that the First and Third Applicants, with their employees, are in physical possession of the property and that, as a matter of fact, Moddervlei R/E is managed day to day by the First and Third Applicants. At present, it appears that some 170 hectares are farmed as macadamia orchards and 130 hectares as avocado orchards. There are some 230 permanent employees. The farm has a packing facility which allegedly complies with international standards with the majority of both macadamia and avocado (60%) produced being exported. Some 100 cattle are run on the property. 9. When the proceedings were instituted, the Respondents were Mr Baloyi (First Respondent), the Minister of Agriculture, Rural Development and Land Reform (Second Respondent or the Minister) and the Regional Land Claims Commissioner for the Limpopo Province (Third Respondent or the Regional Commissioner). I subsequently joined the Fourth and Fifth Respondents, the Ramaru Community and the Mbangambanga Community, as I explain below. 10. According to the Applicants, the events that triggered the institution of this application are these. The Applicants explain that, on 11 September 2021, Mr Henning entered upon the eastern portion of Moddervlei R/E and established that Mr Baloyi had entered the farm with a bulldozer, driven by an unknown contractor, and was in the process of clearing some 6 hectares of land. On 14 September 2021, the First Respondent allegedly informed Mr Henning and Mr Mudau that an official of the Regional Commissioner, a Mr Mulaudzi, had given him permission to occupy the land but on request, he was unable to produce any proof thereof. Mr Henning and Mr Mudau requested him to cease his actions but this did not occur. On the same day, Mr Henning wrote to the Third Respondent’s Acting Chief Director, Mr Milton Tshililo, but did not receive a response. Also on that day, the Second Applicant addressed a letter to Mr Baloyi requesting that the conduct cease. On 27 September 2021, the Applicants allegedly sought to construct a fence on the eastern boundary by sinking holes filled with concrete to support corner posts. They allege that Mr Baloyi arrived on the scene and an altercation followed: Mr Baloyi allegedly drove over the corner posts with his vehicle thereby destroying them. A further altercation ensued that afternoon between Mr Baloyi and Mr Henning. The application was instituted on 1 October 2021. 11. In the notice of motion, the Applicants sought an interdict against the First Respondent and any or all persons associated with him or acting on his instructions, prohibiting the following: 1.         Entering upon Moddervlei R/E. 2.         In any way utilising bulldozers or any other heavy machinery for purposes of pushover land clearing of any portion of Moddervlei R/E. 3.         In any way damaging, disturbing or committing any unlawful acts on or in respect of the Farm Moddervlei or any of the improvements thereon, including any fences erected thereon or any crops or orchards existing thereon. 4.         In any way intimidating, assaulting, injuring, threating or committing any unlawful acts towards any of the Applicants, their employees or any other persons associated with the Applicants, or the Applicants’ properties or assets. 5.         Committing any act which contravene the provisions of section 11(7) of the Restitution Act. 6.         Making any direct or indirect threats to the Applicants or employees of malicious damage to property belonging or being managed by the Applicants. 12. The Applicants ultimately sought a prohibitory interdict operating against the First Respondent and others acting on his instructions, pending the finalisation of the litigation under LCC07/2005 and LCC22/2005B (the Applicants’ land claims) in the following terms: [6] 1. Prohibiting entering R/E Moddervlei save with the prior written consent of the First and Third Applicants or their attorney acting on their instructions. [7] 2.         Prohibiting conducting any farming or other activity on any portion of R/E Moddervlei including the planting of any further crops of any nature including macadamia trees, clearing the area for the planting of any further crops including macadamia trees, digging any holes for the planting of further macadamia trees of any other crop; 3.         Prohibiting effecting any improvements including erecting any fences, on any portion of R/E Moddervlei; 4.         Prohibiting interfering with the activities of the First, Second and Third Applicants on R/E Moddervlei. 5.         Prohibiting the intimidation, assault or injury of the First Applicant, the Second Applicant working on or resident on R/E Moddervlei or any director or employee of the Third Applicant or threatening them with assault or injury. 6.         Prohibiting damaging any improvements on R/E Moddervlei and prohibiting contravening section 11(7)(a), (c) or (d) of the Restitution Act, including effecting any development of the said property, removing or causing to be removed, destroying or causing to be destroyed, damaged or causing to damage any improvements on the said land without the written authority of the Chief Land Claims Commissioner or enter upon and occupy such property without the permission of the First and Third Applicants. 13. The relief ultimately sought was foreshadowed in a notice of amendment and it was, in the final result, restricted to relief pending the resolution of the land claims. The First Respondent objected to the proposed amendment on the basis, inter alia, that it sought to introduce a new cause of action. No formal application to amend followed. I have nevertheless drawn on the amended prayers in casting appropriate and effective relief to the extent that the proposed amended prayers constitute lesser relief to what was already foreshadowed in the notice of motion and founding affidavits or would provide certainty. Where they introduce any new cause of action or the relief is not duly foreshadowed by the pleadings, I disregard them. 14. On 1 October 2021, the urgent court issued directives regulating the further conduct of the proceedings. The matter was set down for hearing on 20 October 2021, when it came before me. Mr Havenga SC appeared for the Applicants and Mr Ravele appeared for the First Respondent. Mr Seneke appeared for the Minister and the Regional Commissioner. 15. Mr Baloyi has filed an answering affidavit. It is not in dispute that Mr Baloyi has established the disputed plantation. The plantation is close to his home, which is on Stand 40B in Vari. But Mr Baloyi disputes that the plantation, which he says is some 21 hectares in size, is unlawful. He says that the traditional leader for the area, Mr Ndishavhelafhi Herry Mutepe, allocated the land to him for use as far back as 1997. Mr Mutepe confirms this in a confirmatory affidavit. Mr Baloyi explains that he has spent some R1.85 million establishing the plantation and he has some 15 employees working for him. Moreover, Mr Baloyi contends that the relief sought in the application affects numerous others who live in Vari. Vari comprises some 1350 households and include families who keep cattle and cultivate the surrounding land. Cattle farmers in Vari have established a non-profit organisation called the Vari Cattle Farmers Association to represent their interests. Mr Baloyi is a member and he says other residents and cattle farmers are affected as they too reside on and use the affected property. Mr Baloyi also deals in his affidavit with the alleged circumstances which triggered the application, which I deal with, to the extent necessary, below. 16. The Minister and Regional Commissioner have filed an affidavit styled as an explanatory affidavit in which they raise a number of preliminary points and provide the Court with certain information about extant land claims on the affected property and their status. Materially, there are two further land claims of potential relevance to the application. The first is a claim the Ramaru community lodged in respect of Portion 1. The Ramaru community did not lodge a claim in respect of the Moddervlei R/E. The second is a claim which the Mbangambanga Community lodged in respect of a portion of Moddervlei R/E called ‘Tenda’. [8] The Mbangambanga claim was lodged by a Mr Mulungwa, now deceased, who was a teacher at an erstwhile school in Tenda, where he resided.  The Commission accepted both the Ramaru and Mbangambanga claims and notice of these claims has also been published in the Government Gazette in terms of section 11 of the Restitution Act. 17. The claims of the Second Applicant and the Ramaru and Mbangambanga communities were published in terms of section 11 of the Restitution Act in the same Government Gazette as so-called “merged claims”. This was on 5 December 2003. [9] The General Notice referred to the fact that ‘a claim’ had been lodged on the farm Moddervlei 44LT. It proceeds to explain: “Mr Hlangeni Mack Nkuna, Mbangambanga John Mulungwa and Maanda Alpheus Ramaru lodged separate claims on the [sic] on November 1998, 10 th and 30th December 1998 respectively on behalf of Moddervlei, Mbangambanga and Ramaru Communities respectively. These communities took a resolution to merge their claims into Moddervlei Community Land Claim vide resolution dated 15 th October 2003.” The property is then described more fully as including both the Remaining Extent held under Title Deed T18808/1980VN and measuring 19989541 hectares, and Portion 1 held under Title Deed T20521/1979VN and measuring 285 5914 hectares. 18. I deal further with the affidavit filed on behalf of the Minister and the Regional Commissioner below. For present purposes I note that while styled an explanatory affidavit, the deponent to the affidavit explicitly seeks the dismissal of the application on various grounds. Moreover, and troublingly, the affidavit contains materially incomplete information about the status of the pending land claims and the dispute between the parties, and in the result, its deponent makes incorrect contentions. 19. The Applicants replied to both sets of affidavits. 20. When this Court first issued directions on 1 October 2021, an interim interdict was granted pending the hearing of the matter. Interim relief was granted in terms of prayers 2.2 to 2.6 of the notice of motion. [10] On the date of the hearing I extended the interim interdict pending decision in this matter. 21. After considering the information supplied to me, I decided to join the Ramaru Community and the Mbangambanga Community. On 16 November 2021, I made an order to that effect, joining them as Fourth and Fifth Respondents respectively and affording them an opportunity file papers. At the same time, I dismissed an objection that had been raised by the First Respondent in terms of Rule 7 of the Rules of this Court against the authority of the Second Applicant. Further, and in the exercise of my inquisitorial powers, I requested the parties to supply the Court with further information to clarify facts in the application, including the specific location of the disputed plantation. I provide my reasons for these decisions in this judgment. The order I made contemplated a further hearing of the matter. On 3 March 2022, a pre-hearing conference was, however, convened and outstanding queries were addressed in this forum. By that stage, Mr Matloga represented the Fourth and Fifth Respondents. Both filed answering affidavits: neither objects to the relief the Applicants seek and both abide the Court’s decision (subject to a proviso in respect of Fifth Respondent I refer to below). 22. I deal with the following issues in turn: 1.         Urgency 2.         Rule 7 3.         Jurisdiction 4.         Standing 5.         Joinder 6.         Entitlement to relief 7.         Order. The affected property and the location of the plantation 23. Before turning to the above issues, some clarity is warranted regarding the scope of the property affected by this application and the location of the disputed plantation. Unfortunately, the affidavits initially supplied were not models of clarity in this regard and contained error. However, these difficulties were cured following receipt of the information I requested as I explain. [11] 24. To facilitate understanding, it is necessary to describe certain features of the relevant properties with reference to their cadastral boundaries. As mentioned, the mother farm Moddervlei 44LT is in three parts: Moddervlei R/E; Moddervlei Portion 1 and Portion 2, depicted on Annexure A. Unfortunately, the parties do not refer to the properties using the same language which introduces a level of confusion and both the Applicants and Mr Baloyi introduced error. Moreover, the precise location of the north eastern boundary of Moddervlei R/E was not dealt with accurately in the founding papers, which, similarly introduced unfortunate confusion.  To facilitate understanding of these issues, two areas on the north eastern boundary of Moddervlei R/E need to be identified, both with reference to the Nongani River, which is depicted in blue. I have marked these two areas on Annexure A with an X and Y respectively. The area marked X lies in the far north east of the property between the Nongani River and the cadastral boundary of Moddervlei Portion 1 to its east. The area marked Y is a relatively small area and lies further south between the Nongani River and the cadastral boundary of Moddervlei Portion 1 to its west. Area Y lies within the cadastral boundaries of Moddervlei Portion 1. 25. Three points must be highlighted. 26. Firstly, the Applicants stated that they only seek relief in respect of Moddervlei R/E. No relief is sought in respect of Portion 1. This is important for various reasons. One is that (save perhaps for the area marked Y) the bulk of Portion 1 is residential land and part of the village known as Vari. Mr Baloyi himself resides on Portion 1. Notably, however, Mr Baloyi, in his answering affidavit, does not distinguish between Moddervlei R/E and Moddervlei Portion 1. He refers, rather, to the Farm Moddervlei 44LT, thereby apparently referring to the whole area of the mother farm Moddervlei 44LT or at least both Moddervlei R/E and Moddervlei Portion 1. This approach informs a number of Mr Baloyi’s preliminary points and defences and introduces a level of factual error. 27. Secondly, this application does not concern the area I have marked X, in other words the part of Moddervlei R/E that lies between its cadastral boundary and the Nongani river. In this regard, it is the Applicants who have introduced a level of factual error and resultant confusion. Although Mr Henning asserts in the founding affidavit that the eastern boundary of Moddervlei R/E lies at the Nongani River, this is not factually accurate. The correct position, clarified in the replying affidavits, is that the eastern cadastral boundary of Moddervlei R/E does not run along the Nongani River but extends well beyond it to include the area I have marked X. This too is important as the area marked X is also part of the village Vari. 28. Mr Henning explains in a replying affidavit that this area is to be excised from Moddervlei R/E. In this regard, in about 2002, his late father apparently reached an “agreement with the government” that the area (approximately 70 hectares) would be so excised from Moddervlei R/E and incorporated into Portion 1, for purposes of housing for the residents of the settlement called Elim. [12] However, at least to date, there has been no formal alteration to the cadastral boundaries of the two properties. [13] That this was the intention – at least of some involved – is nevertheless confirmed (also in reply) by a Mr Thenga Nkhangweni Ezael who previously did consulting work for the ARDC and who has knowledge of the events. Mr Ezael explains that the intention was that where those who had settled to the east of the Nongani River should be permitted to reside there unhindered but should not cross over onto the commercial farming operation on the other side of the river. He supplies a diagram depicting the proposed new eastern boundary line for the properties, being the Nongani River. In view of the information now received, it is unnecessary to focus further on that history at this stage. 29. These issues were not traversed in the founding affidavits, which is unfortunate and it can be accepted that at least some measure of confusion about the property affected by the application was probably introduced as a result. However, during argument, Mr Havenga confirmed what is said in the replying affidavits namely that notwithstanding the terms of the notice of motion – which refers to the whole property and indeed its cadastral boundaries – relief is sought only in respect of that part of Moddervlei R/E that falls to the west of the Nongani River. 30. Thirdly, for purposes of these proceedings, the precise location of the disputed plantation is highly material. The Applicants’ complaints in the founding affidavit are clear in that it is alleged that Mr Baloyi had entered onto Moddervlei R/E to clear land and plant macadamias. In the founding affidavit, Mr Henning clearly understands the boundary in question to be the Nongani River and Mr Havenga argued the application on that basis.  But when careful consideration is given to the annexures to the replying affidavits, it appears that the area in question is partly on the area I have marked Y on Annexures A. Importantly, in the area marked Y, the Nongani River traverses Moddervlei Portion 1 and not Moddervlei R/E. 31. The precise location of the disputed plantation is best depicted in Annexures W1 and W2 to Mr Henning’s replying affidavit to Mr Baloyi’s answering affidavit. These are google aerial maps, one dated 2016 and one dated 2021 which are attached to the replying affidavit to show that in 2016 the area had not been cleared – as Mr Baloyi had alleged in answer - whereas it had been in 2021. The plantation is depicted in a red square in Annexure W2. A careful study of these annexures reveals two things, the first favourable to Mr Baloyi and the second favourable to the Applicants. The first is that the plantation includes at least part of the area I refer to as Y and thus is in part on Portion 1. While it might form part of the area that Mr Ezael and his colleagues recommended be included as the new boundary, but this cannot assist the Applicants on the papers before me. Second, it shows that Mr Baloyi’s plantation and activity extends in at least substantial measure onto Moddervlei R/E. That is quite clear from Annexure W2. 32. As indicated above, on 16 November 2021, I directed certain enquiries to the parties requesting clarification of certain facts including regarding the precise location of the First Respondent’s plantation with reference to the cadastral boundaries of Moddervlei R/E. I did so in the exercise of this Court’s inquisitorial powers to further the interests of the justice, specifically ensuring the orderly use of land pending the resolution of extant land claims. In doing so I was mindful that error had been introduced by both the Applicants and the First Respondent and that both parties’ interests would be served by clarification and certainty. During the conference of 3 March 2022, the parties’ representatives confirmed that the information supplied had been collated with the co-operation of the relevant parties and that I could accept it as correct. 33. The information supplied is in the form of site survey and assessment conducted by MCB Surveys dated November 2021. The report confirms the extent of the planted, fenced and cleared area including such portions as are on Moddervlei R/E and such portions as are on Portion 1. The areas that are relevant to R/E Moddervlei total 21.8 hectares of land and are best depicted on the documents I attach as Annexure B and Annexure C which form part of the report, as follows: 1.         A planted macadamia area being 6.9861 hectares indicated on Annexure B and C within the area bordered in green (the macadamia plantation) 2.         A larger area that is cleared and fenced depicted within the black border on Annexure B and the white border on Annexure C comprising a total of 14.8335 hectares (the cleared and / or fenced area). This includes a 1.1171 hectare plantation on the boundary itself and a larger cleared and / or fenced area of 13.716 hectares. 34. It must be emphasised that these proceedings ultimately concern the activities on these areas, to which I refer hereafter as the 6.98 hectare macadamia plantation and the 14.83 hectare cleared and / or fenced area. 35. I now turn to deal with the issues identified. Urgency 36. At the outset, Mr Ravele submitted that the application should be dismissed for want of urgency. In this regard, he relied on what he contended is a long history of use of Moddervlei 44 LT by those living in the village of Vari, including for purposes of cultivation and grazing. However, this contention relies on the premise (disavowed by the Applicants as explained above) that relief is sought also in respect of the land marked X. Moreover, Mr Havenga made it clear in oral argument that no relief is sought that affects grazing matters noting, as alleged in the replying affidavit, that disputes about cattle grazing have arisen in the past and do arise, but are and will in future be dealt with separately. In turn, nothing in this judgment should be understood as affecting cattle and grazing rights not least in respect of the area marked X. 37. Mr Ravele submitted further that the application is similarly not urgent as the disputed macadamia plantation was, according to Mr Baloyi, established a long time ago to the Applicants’ knowledge. The Applicants, on the other hand, claim that they only learnt of the plantation in September 2021. They justify their absence of prior knowledge on the basis that the area is surrounded by dense bush and is inaccessible due to the absence of road infrastructure.  Mr Baloyi’s difficulty is that his claims regarding when the plantation was established are inconsistent – in one place he says he bulldozed the area in 1997, in another in 2016 and in another in 2017. Moreover, Mr Henning has demonstrated clearly, through Annexure W1, that the affected part of Moddervlei R/E had not been cleared in 2016. While Mr Henning accepts that clearing and planting must have commenced before September 2021 as trees are not newly planted, I accept the Applicants’ allegations that they learnt of the plantation only in September 2021. [14] In my view, this suffices to establish urgency in circumstances, moreover, where Mr Baloyi continues to assert rights to the disputed area notwithstanding that material parts of the plantation are located on Moddervlei R/E and that further fencing and clearing have since ensued. Indeed, the 6.9861 hectare macadamia plantation is the smaller part of the total 21.8196 hectares that have been fenced and / or cleared. Objection in terms of Rule 7 38. The Rule 7 objection was raised by the First Respondent and as indicated above, I previously dismissed the objection. Centrally, the objection was framed as a complaint that Mr Mudau has no authority to act on behalf of the Moddervlei Communal Property Association (CPA) which, he says, is the owner of the affected property. But the contention raised is based on incorrect facts. Firstly, the Second Applicant does not purport to be the Moddervlei CPA and second, the affected properties have not been transferred to the Moddervlei CPA. 39. During argument, however, Mr Ravele submitted that properly construed the Rule 7 complaint extends to a complaint that there is no resolution of the Executive Committee of the Second Applicant authorising the litigation. While doubtful, I assume that the complaint extends to this, but I am satisfied that the necessary authority has been established in that the Second Applicant has supplied a resolution signed by its secretary dated 29 September 2021 confirming that the litigation is authorised and that Mr Mudai, its current Chairperson, is authorised to appoint its current attorneys to act for it. That power of attorney is also supplied. 40. There are other allegations made on affidavit, though pertinently not raised in the Rule 7 notice to the effect that Mr Mudau has no place in the Moddervlei Community. But the First Respondent not only does not pertinently raise this, but the allegations are not substantiated. Indeed, on the limited information before me, Mr Mudau was elected Chairperson of the Second Applicant on 5 December 2004. I emphasise, however, that in dismissing the Rule 7 objection, I have made no factual or legal findings on the due composition or representation of the Second Applicant, which, it has since transpired is a matter of some controversy. [15] Moreover, in an order dated 5 March 2008 of Judge Meer (as she then was), the Regional Commissioner was directed to convene a meeting of the Second Applicant in terms of section 10(4) of the Restitution Act to establish who may legally represent them. [16] That order has apparently not been complied with to date, for reasons this Court is not yet apprised, but the order is now the subject of a case management process I refer to below. Jurisdiction 41. The First Respondent contends that this Court does not have jurisdiction to entertain the application. In oral argument, the objection, in essence, was that the case has nothing to do with the restitution process. [17] I do not agree that this Court lacks jurisdiction to entertain the matter. In material part, the case entails an assertion of rights in terms of section 11(7) of the Restitution Act. This clearly confers jurisdiction. To the extent that there are incidental issues arising, this Court has jurisdiction arising from section 22(2)(c) of the Restitution Act. [18] Moreover, the rights sought to be protected are ultimately sought by way of interdict pending the resolution of both the First and Second Applicant’s land claims and thus jurisdiction arises also in terms of section 22(2)(b) of the Restitution Act. [19] The Applicants rely not only on section 22, but also on section 35 and section 38E but it is not necessary for me to deal with these contentions as I am satisfied that section 22 clearly confers jurisdiction. Standing 42. Both Mr Baloyi and the State Respondents (Second and Third Respondents) raise an objection to the standing of the First and Third Applicants. I deal in this judgment with the contention that they have no standing as their occupation of the property is unlawful because, they say, the management agreement has lapsed. As mentioned it is common cause that the First and Third Applicants are in fact managing the property and in possession of it. On that basis alone, they have standing for purposes of any relief premised on spoliation. 43. I am, furthermore, not persuaded that the contention that their occupation is unlawful because the management agreement has lapsed has any merit. Rather, on the information before me, their lawful occupation is established and a management agreement remains in place, and the challenge to it, as pleaded, has no merit. It is pertinently alleged by Mr Henning that the management agreement is in full force and effect. A written agreement is attached, referred to as an initial agreement dated 2 June 2003 and it is then stated that the initial agreement was extended a number of times and is currently still in force and effect until such time that the restitution claims lodged in respect of Moddervlei R/E have been finalised. An extension agreement dated 30 September 2004 is supplied which records a 12- month extension as an interim measure subject to the finalisation of the land claim and on the same terms and conditions of the prior management agreement. The termination clause (Clause 5) records that the extension will be terminated in one of three circumstances, the material one being “by the effluxion of time, subject to any other agreement reached between the parties.” In these circumstances, the respondents cannot merely rely on the termination clause, as they seek to do to assert unlawful occupation and to contend that the agreement has lapsed, as any other agreement may have been reached between the parties. [20] In the replying affidavit, Mr Henning refers to the ongoing relationship over the years including re-imbursement in 2009 by the ARDC of an invoice in respect of infrastructure and developments costs incurred by the Third Applicant in the amount of in excess of R2.8 million. In these circumstances, there is no basis for not accepting the averments made by Mr Henning that the management agreement remains in full force, at least for purposes of these proceedings. Joinder 44. The First Respondent contends that the members of the Vari community must be joined as they are continuously making improvements on the affected property. This argument is based on the incorrect premise that the relief sought affects property on which the property occupied by the Vari community is situate. As explained above, no relief is sought or granted in respect of that party of Moddervlei R/E, pertinently the area marked X on Annexure A. The First Respondent contends further that the members of the Vari Cattle Farmers Association are also necessary parties. However, this is not explained in the answering affidavit and any dispute that may arise regarding grazing rights can be dealt with should it arise. 45. The Second and Third Respondents contended further that the Ramaru Community and the Mbangambanga Community should be joined. The contention flows from the fact that the land claims were apparently “merged” and notified in the Government Gazette as a merged claim. Unfortunately, the contention was advanced on the further factual claim that the land claim has been settled and that the Applicants are seeking specifically to derail the settlement of the claim and sideline the broader interests of the merged community. This submission tells less than the full story as not only is the purported merger and settlement the subject of review proceedings, but the settlement has been suspended by the 2008 Court order of Judge Meer. 46. Nevertheless, the review proceedings to set the merger aside are still pending. Mr Havenga submitted that this notwithstanding, neither the Ramaru nor the Mbangambanga Community have a legal interest in the subject matter of the case because neither have lodged a land claim in respect of the portion of R/E Moddervlei affected by these proceedings. But even if this is correct, and it is not necessary for me to decide that, I was of the view that they should be joined. In respect of the Ramaru Community, the relief sought directly affects development on a boundary of R/E Moddervlei and Portion 1, which boundary is disputed, and, furthermore, the claim form supplied to me did not clearly indicate the affected land under its claim as the relevant Annexure was omitted. In respect of the Mbangambanga Community, I was similarly not in a position to conclude conclusively what portion of R/E Moddervlei was in issue in respect of its claim and thus the extent to which there are competing claims: Mr Havenga accepted that competing claimants would be entitled to be joined. 47. As matters transpired, both communities filed answering affidavits and both communities abide the decision of the Court. The Ramaru Community qualified its stance by indicating that to the extent that the Court should find in favour of the First Respondent that he was given the land by the traditional leader of the Vari Community and can continue clearing the land and cultivating it, he should be confined to the Northern side of Moddervlei Portion 1 where there is human settlement. The concern expressed is that he should not clear and cultivate the Southern part of the farm as the Ramaru community seeks restoration of that portion of land. This application is, however concerned with activity on R/E Moddervlei and not Portion 1. Should the Ramaru Community wish to approach this Court for relief against Mr Baloyi in respect of activity on Portion 1 that would require further proceedings. To facilitate the orderly resolution of the land claims and the efficient, effective and economical resolution of disputes in this Court, I make provision in this order for any party to approach this Court for further relief against Mr Baloi on the same papers, duly supplemented. The Applicants’ entitlement to relief 48. In substance, the relief ultimately sought is cast as being in the nature of an interim interdict pending the finalisation of the land claims, which is lesser relief, or relief of shorter duration, than initially sought. However, the First Respondent is not a party to the land claims, and in those circumstances, I have approached the matter by asking whether the Applicants have made out a case for final relief of temporary duration. In my view, the requirements for final interdictory relief are met insofar as the Applicants seek to protect Moddervlei R/E from unlawful incursion by the First Respondent for clearing and planting. The requirements for a final interdict are a clear right, a reasonable apprehension of irreparable harm and no alternative satisfactory remedy.  I only deal in this judgment with the Applicants’ entitlement to the relief I grant. Where I do not grant relief, it is either because the relief ultimately sought was not adequately foreshadowed in the notice of motion, the Applicants’ have not made out a case for the relief sought, or Mr Baloyi has raised disputes of fact that cannot be resolved on the papers. In this regard, the boundary errors made in the founding papers have a material impact. A clear right 49. In my view, the Applicants have established a clear right in terms of section 11(7) of the Restitution Act as on the papers before me, the First Respondent has developed part of Moddervlei R/E in non-compliance with section 11(7)(aA) and (d). In this regard, the First Respondent has failed to demonstrate that he gave the Regional Commissioner one month’s written notice of his intention to clear and plant any part of land or, crucially, that he has the permission to enter the land either from the owner or the lawful occupier for any purpose let alone clearing and planting a portion of it. It is moreover established that the First Respondent has no legal right to clear or plant on Moddervlei R/E as he has. Although the First Respondent asserts that he has the consent of the traditional leadership in the area to use the property, I am unable to conclude on the papers before me the traditional leaders have the power to confer that right in respect the part of Moddervlei R/E where there is clearing and planting. I emphasise that the Applicants accept that no relief can be granted in these proceedings that would be tantamount to an eviction and the Court is not being asked to order the removal of the 6.98 hectare macadamia plantation at this stage. On the information before me, Mr Baloyi resides on Portion 1 and Mr Havenga accepted during argument that he should have ongoing access to the existing plantation for purposes of its maintenance in the absence of any order for its removal. Reasonable apprehension of irreparable harm 50. In my view, the Applicants have met this requirement in circumstances where property under land claim is being cleared and planted by a third party without notice to the Regional Commissioner or consent from those authorised to give it. The harm is suffered by both the claimants and the persons in lawful occupation, who say that save for the uncertainty arising from the claims themselves, they would plant the land. That the threatened harm is ongoing is manifest from the First Respondent’s ongoing assertion that he considers himself entitled to continue to use the land and has now cleared an extensive area. No alternative remedy 51. In my view, an interdict is the suitable remedy to preserve the Applicants’ rights in respect of Moddervlei R/E. Mr Baloyi mooted a need for dialogue. This should be encouraged, but I do not consider this a suitable alternative remedy that would bar the Applicants from obtaining relief. Costs 52. In my view this is not a case where I should make any costs order as between the Applicants and the First Respondent as I am not satisfied that there are special circumstances. In any event, the Applicants are, in material part, responsible for the factual confusion that arose in and protracted the proceedings. 53. Different considerations, however apply to the costs incurred in connection with the Second and Third Respondents’ explanatory affidavit. It is of course appropriate that State respondents assist the Court to determine matters that come before it and this will include providing germane background information. But in this case, the affidavit contained incomplete and in some measure resultant inaccurate information. This arose pertinently from a failure to deal with the impact of proceedings that ensued before Judge Meer (as she then was) during 2008. In turn, this resulted in the introduction of unhelpful acrimony in the proceedings. Moreover, certain baseless contentions and criticisms were advanced, with attendant waste of both the parties’ time and court time in resolving the difficulties. As mentioned, while styled as an explanatory abiding affidavit, these parties’ stance on affidavit, in substance, amounted to opposition. While Mr Seneke’s approach during the hearing served helpfully to limit the impact, the costs associated with the affidavit had been incurred. Mr Seneke indicated that the circumstances had arisen where these Respondents were under time pressure. This may explain Mr Seneke’s personal position, but it does not excuse the conduct of these parties. If more time was reasonably required, this ought to have been requested. The directives of the Court made it clear, as is customary, that any party seeking an extension of the time should request it. No request was made. Moreover, and at the very least, once the errors came to light, criticisms advanced on incorrect facts should have been withdrawn and facts correct, where necessary, on affidavit and otherwise by filing a note. I am mindful that the affidavit did provide some useful information and facilitated the joinder of the Fourth and Fifth Respondents but this could have been achieved simply and without error and acrimony. In the result I am of the view that the Second and Third Respondents should pay 70% of the costs incurred arising from the Second and Third Respondents’ affidavit on a party and party scale. Order and case management of the land claims 54. This dispute brings into stark perspective the impact of the delays in finalising long outstanding land claims on state owned land. Had the land claims been finalised, there would be certainty about the status of Moddervlei R/E and whether it must be restored to dispossessed persons. If not, the state would be in a position to determine whether secure rights can be conferred on persons in the position of Mr Baloyi, and indeed others who live in Vari. In circumstances where land justice remains aspirational for many and demand for land is immediate and acute, it is perhaps unsurprising that tensions of the sort that have manifested in this application emerge when land claims remain unresolved after many many years. The case thus stands as a stark reminder of how delays resolving land claims can impede both restitution for past dispossession and equitable access to land more broadly, as envisaged by the Constitution. 55. In light of these considerations, and during the course of these proceedings, the land claims have been placed under judicial case management which has already commenced. 56. I make the following order: 1. Non-compliance with the rules prescribed for ordinary applications is condoned. 2. For purposes of this order, Moddervlei R/E means the property known as Remaining Extent Moddervlei 44LT the cadastral boundaries of which are depicted on Annexure A and which excludes Portion 1 and Portion 2. 3. This order operates pending the determination of the Applicants’ restitution claims in respect of Moddervlei R/E in terms of the Restitution Act. 4. The First Respondent is interdicted from entering upon Moddervlei R/E without the prior written consent of the First and Third Applicants or their attorney acting on their instructions, save as set out in a) and b) below (the exemptions): a) The area on Moddervlei R/E marked X on Annexure A, being the area in the north-eastern part of Moddervlei R/E to the east of the Nongani River; and b) The area marked on Annexures B and C as the 6.9 hectare macadamia plantation and solely for purposes of maintaining existing macadamia trees. 5. Subject to the exemptions in 4 a) and b), the First Respondent and any persons acting on his instructions are prohibited from conducting any clearing or planting on Moddervlei R/E and interfering with the Applicants’ possession of Moddervlei R/E, including but not limited to the 14.83 hectare cleared and / or fenced area depicted in Annexures B and C. 6. The Second and Third Respondents are ordered to pay 70% of the Applicants’ costs arising from the explanatory affidavit dated 11 October 2021 on a party and party scale. Save as aforesaid, each party is to pay its own costs. 7. Any party is granted leave to approach this Court on supplemented papers for further relief. COWEN J Land Claims Court Date of first hearing: 20 October 2021 Date of conference addressing further documents supplied and queries: 3 March 2022 Date of judgment: 5 May 2022 Appearances: Applicants                                          Mr Havenga SC instructed by P Grobbelaar Attorneys First respondent                               Mr Ravele of S O Ravele Attorneys, Louis Trichardt Second and third respondents         Mr Seneke instructed by the State Attorney, Pretoria Fourth and fifth respondents            Mr Matloga of Matloga Attorneys, Pretoria [1] This map is Annexure T3 to the First Applicant’s replying affidavit to the First Respondent’s answering affidavit, found at p 187 of the record. [2] The ARDC is now succeeded by the Limpopo Department of Agriculture and Rural Development. [3] In terms of section 2(3) of the Restitution Act. [4] Specifically, the claim was lodged in respect of “Rural Moddervlei 44 LT (Eastern Part, Soutpansberg, Northern Province)”. In the founding affidavit, reference is made to the claim being in respect of Moddervlei R/E (defined therein as ‘farm Moddervlei’). [5] Section 11 is titled: Procedure after lodgement of claim. Section 11 (7) provides as follows: Once a notice has been published in respect of any land - (a) no person may in an improper manner obstruct the passage of the claim; (aA) no person may sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the regional land claims commissioner one month’s written notice of his or her intention to do so, and, where such notice was not given in respect of - (i) any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision or rezoning or grant any other order it deems fit; (ii) any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order it deems fit; (b) no claimant who occupied the land in question at the date of commencement of this Act may be evicted from the said land without the written authority of the Chief Land Claims Commissioner; (c) no person shall in any manner whatsoever remove or cause to be removed, destroy or cause to be destroyed or damage or cause to be damaged, any improvements upon the land without the written authority of the Chief Land Claims Commissioner; (d) no claimant or other person may enter upon and occupy the land without the permission of the owner or lawful occupier. [6] LCC 07/2005 is the case number under which the Henning family land claim is being adjudicated. LCC22/2005B is the case number under which the Moddervlei Commuinity land claim is being adjudicated. These claims are due to be consolidated pursuant to a court order once pleadings are closed. [7] This relief is sought specifically against the First Respondent. [8] The claim form refers to “Tenda – Portion within Moddervlei 44 LT, …. and portions of two other properties. [9] By General Notice 3379 of 2003. [10] These are the prayers summarised in paragraphs 11.2 to 11.6 above. [11] The (somewhat cumbersome) history is relevant to explain my reasons in exercising my inquisitorial powers, to understand some of the defences raised, for costs purposes and to ensure certainty in the order I grant. [12] This is dealt with in the replying affidavit in response to allegations concerning non-joinder of those living there. As mentioned the first respondents refers to this village as Vari. [13] I do not deal with the status or import of this alleged agreement. Mr Henning supplies the Court with a copy of a letter from Geoland Surveys which was tasked to determine the new boundary. A sketch is attached marked M but is not readily legible. [14] Applying the test in Plascon-Evans Paints v Van Riebeeck Paints 1984(3) 623 (A) at 634H-635C read with Wightman t/a JW Construction v Headfour (Pty) Ltd and ano 2008(3) SA 371 (SCA), para 13. In arriving at this conclusion, I have considered contentions raised by Mr Ravele in argument and not pleaded on affidavit regarding the dating of correspondence, which, on the affidavits before me appear to be typographical errors. [15] This is referred to in part in a separate judgment dealing with an application to intervene by Mr Nkuna (who submitted the Moddervlei Community claim) and others who say they are the Moddervlei land claimants, and is the subject of case management of the land claims which commenced under my direction on 3 May 2022. [16] Paragraph 7 of the order reads as follows: “The second respondent is directed to convene a meeting of the Moddervlei community on behalf of which the claim with reference number KRP 1846 was lodged within 6 weeks from the date hereof in terms of section 10(4) in order to establish who may legally represent the Moddervlei Community. The meeting shall be fully recorded by the commission, chaired by the Acting Chief Land Claims Commissioner, and all parties shall be entitled to be legally represented at such meeting and to make their own recordings of such meeting. The election should be conducted preferably under the auspices of the IEC; or a similar body.” [17] The issue was pleaded somewhat differently in the founding affidavit, on the basis that the Moddervlei property has not been awarded to the first applicant. However, I address the broader argument raised in oral argument: this Court is a creature of statute and its powers, and jurisdiction, derive from statute. [18] Section 22(2)(c) provides that this Court shall have “the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it in the interests of justice to do so.” [19] Section 22(2)(b) provides that this Court shall have “all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts.” [20] Second and Third Respondents make this contention in paragraph 17 of the answering affidavit, and a substantially similar contention is made by Mr Baloyi in paragraph 52 of his answering affidavit. sino noindex make_database footer start