The Makhukhuza Community lodged a land restitution claim on 11 December 1998 in respect of several farms in the Thukela District, KwaZulu-Natal. The claim was gazetted in July 2002 and referred to the Land Claims Court in January 2009 after the Regional Land Claims Commissioner (RLCC) could not settle it. The RLCC's referral report characterized this as a community claim for physical restoration based on forced removals allegedly occurring around 1967 (though different dates ranging from 1920s-1990s were mentioned in various documents). The Defendants (landowners) disputed the validity of the claim. A settlement was reached on 19 November 2010 whereby the Plaintiff accepted 996 hectares (far less than the 31,000 hectares originally claimed) in full and final settlement. The only unresolved issue was costs. Title deeds showed the claimed land had been privately owned since 1852, passing through generations of farming families. The RLCC's investigation report indicated that at the time of dispossession, persons removed were labour tenants with individual rights, not a community with shared communal rights.
1. The Land Claims Commission ordered to pay the Defendants' costs on a party-party scale, taxed. 2. Costs to include: employment of two counsel and attorney for all trial dates; costs of pre-trial conferences, consultations and inspections in loco; travelling expenses; witness expenses; expert witness fees for historian, agricultural expert, mapping expert, and conveyancers; costs of aerial photographs; costs of compiling and paginating bundles; and reserved costs of the Section 14(1) application. 3. All amounts payable within 30 days of taxation.
1. A claim cannot be characterized as a community claim under the Restitution of Land Rights Act unless the claimants' rights in land were derived from shared rules determining access to land held in common by the group. 2. Labour tenancy involves individualized contractual relationships between landowner and tenant requiring specific performance, and does not constitute communal rights - following Department of Land Affairs v Goedgelegen Tropical Fruits. 3. The RLCC has a statutory duty under Section 6(1)(cA) to adequately investigate the merits of claims, which requires more than a superficial or cursory investigation. 4. Where the State or an organ of state loses in constitutional litigation (including land restitution matters), it should ordinarily pay costs to successful private litigants, following Biowatch Trust v Registrar, Genetic Resources. 5. Inadequate investigation and presentation of claims by the RLCC that manifestly cannot succeed in the form referred justifies a costs order against the Commission.
The Court noted with displeasure that the Plaintiff ignored a court directive to file witness summaries by 25 October. The Court observed that it was the Defendants, not the Plaintiff, who indexed and paginated court files and arranged maps. The Court commented that had the claim been lodged on behalf of individual labour tenants rather than as a community claim, the situation would have been different, though converting a community claim into numerous individual claims "might not be achievable under the Restitution Act and which will cause considerable costs and delays" (citing Kusile). The Court noted that the fact the State owned 3,723 hectares of the claimed land but did not restore any of it to the Plaintiff indicated the State itself did not believe there was merit in the claim. While the investigation was inadequate, the Court found no willful neglect, and the claim was not pursued to harass defendants, thus not warranting punitive attorney-client costs.
This case is significant for establishing standards of investigation required of the Regional Land Claims Commissioner under the Restitution of Land Rights Act. It reinforces the distinction between community claims (based on shared communal rights) and individual claims (such as labour tenant rights), following the Constitutional Court's precedent in Goedgelegen. The judgment emphasizes that organs of state must adequately investigate claims before referring them to court and cannot burden private landowners with meritless claims. It applies the Biowatch principle that the State ordinarily pays costs when losing to private parties asserting constitutional rights, including land restitution rights. The case demonstrates judicial oversight of administrative functions in the land restitution process and the consequences of inadequate investigation by state organs.
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