Makhukhuza Community Claimants (Land Restitution Claim)

The Makhukhuza Community lodged a land restitution claim in December 1998 under section 2 of the Restitution of Land Rights Act 22 of 1994, seeking restoration of a large number of farms in the Thukela district of KwaZulu-Natal. The Regional Land Claims Commissioner (RLCC) accepted, gazetted, investigated and ultimately referred the claim to the Land Claims Court as a community claim. The investigation reports, however, indicated that at the time of dispossession the affected persons held individual rights as labour tenants on privately owned farms, not communal rights derived from shared rules. The claim remained unresolved for several years, during which the defendant landowners’ properties were encumbered. On 19 November 2010 the main restitution dispute was settled: the community accepted restoration of 996 hectares to be acquired by the State under section 42A of the Act. The only unresolved issue before the Court was costs, with the defendants seeking punitive costs against the RLCC on the basis of an inadequate and erroneous investigation and referral.

The Land Claims Commission was ordered to pay the defendants’ costs on a party-and-party scale, including the wasted costs of the first day of trial and extensive costs related to counsel, attorneys, experts, inspections in loco, witnesses, and preparation of trial bundles. Attorney-and-client (punitive) costs were refused.

The judgment reinforces the duty of the Regional Land Claims Commissioner to properly investigate and correctly characterise restitution claims before referral to court. It affirms that labour tenancy generally gives rise to individual, not communal, restitution claims, in line with Goedgelegen. The case is also significant for its application of the Biowatch principle to land restitution litigation, confirming that organs of state may be ordered to pay costs where their conduct unjustifiably prejudices private landowners.