South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others

The South African Riding for the Disabled Association (Association) had occupied Erf 142 Constantia, Cape Town, under a lease on state-owned land for 34 years. The Sadiens had claimed restoration of land they lost due to apartheid-era discriminatory practices. In December 2012, the Land Claims Court ordered transfer of Erf 1783 Constantia to Mr Sedick Sadien, but this erf proved smaller than the dispossessed land. On 8 February 2013, the Court varied its order to award Erf 142 Constantia instead. This variation was made without the Association's knowledge and without determining compensation for the Association, which had allegedly made improvements valued at R7.5 million on the property. The Association applied to intervene and sought rescission of the amended order. The Land Claims Court dismissed the intervention application with costs, holding that the Association had no direct and substantial interest in the remedy sought by the Sadiens.

• Whether the Association had a direct and substantial interest in the proceedings to entitle it to intervene
• Whether section 35(9) of the Restitution of Land Rights Act conferred a right on the Association as a lawful occupier to just and equitable compensation
• Whether the Land Claims Court was obliged to determine compensation to a lawful occupier before ordering transfer of state land to a restitution claimant
• The proper interpretation and application of section 35(9) of the Restitution of Land Rights Act

1. Leave to appeal was granted. 2. The appeal was upheld. 3. The order of the Land Claims Court was set aside. 4. The Association was allowed to intervene for the purpose of determining compensation payable to it. 5. The matter was remitted to the Land Claims Court for determination of compensation payable to the Association. 6. The Regional Land Claims Commissioner was ordered to pay costs in both the Land Claims Court and the Constitutional Court.

A lawful occupier of state land has a direct and substantial interest entitling it to intervene in land restitution proceedings for the limited purpose of determining compensation under section 35(9) of the Restitution of Land Rights Act. Section 35(9) confers a statutory right to just and equitable compensation on lawful occupiers when the Land Claims Court orders restoration of rights in state land they occupy. The determination of just and equitable compensation is a pre-condition for authorizing transfer of state land to a restitution claimant where that land is lawfully occupied. Once an applicant for intervention shows a direct and substantial interest in the subject-matter of the case—meaning a legal right adversely affected or likely to be affected by the order sought—the court must grant leave to intervene. The intervention right is limited to enforcing the right to compensation and does not extend to challenging whether the land should be transferred to the restitution claimant.

The Court observed that the Association had misconceived the extent of its interest by seeking rescission of the varied order, when what was actually required was intervention solely for determining compensation. The Court noted that the fact that a final order had already been issued at the time of the application for intervention is immaterial to the right to intervene. The Court also commented on costs, noting it would be unfair to order the Sadiens to pay costs as they had conceded the Association's right to compensation and their interest was merely to defend the transfer order, whereas the Commissioner had advanced an incorrect argument that the Association only had a financial interest.

This case is significant for clarifying the rights of lawful occupiers of state land under section 35(9) of the Restitution of Land Rights Act. It establishes that lawful occupiers have a statutory entitlement to just and equitable compensation when land they occupy is transferred to land restitution claimants, and this right gives them standing to intervene in restitution proceedings for the limited purpose of determining compensation. The judgment reinforces the principle that no order should be granted against a party without affording that party a pre-decision hearing, even in the context of land restitution. It balances the constitutional right to land restitution under section 25(7) with the protection of lawful occupiers' interests. The case also provides important guidance on the test for intervention, clarifying that applicants must show a legal interest in the subject-matter that could be prejudicially affected by the court's order.