The Regional Land Claims Commissioner and the Chief Land Claims Commissioner, Gauteng Province v Amandebele Akwa-Manala Community

The Amandebele Akwa-Manala Community lodged a land restitution claim under the Restitution of Land Rights Act 22 of 1994 in respect of various properties, including portions of the farm Downbern 594JR in Gauteng. A section 42D settlement agreement was concluded between the Community and the Land Claims Commission in respect of certain specified portions of Downbern only, while negotiations regarding other portions were still ongoing and some claims were dismissed as non-compliant with section 2 of the Act. Despite this, the Community instituted proceedings in October 2021 to compel the transfer of what it alleged were the remaining twenty portions of Downbern. The Commission instructed the State Attorney to oppose the application, but due to administrative failures and the resignation of the allocated attorney, the matter was not opposed. On 28 February 2022, the Land Court granted an unopposed order compelling transfer of twenty portions. The Commission later became aware of the order and applied for its rescission, contending that it was granted in their absence, without wilful default, and that there were substantive defences on the merits.

The order granted on 28 February 2022 compelling the transfer of twenty portions of Downbern Farm 594JR was rescinded. No order as to costs was made.

The case reaffirms the Land Court’s approach to rescission of orders granted in default under section 35(11) of the Restitution of Land Rights Act. It underscores the importance of proper joinder of affected landowners in restitution proceedings and clarifies that section 42D settlement agreements cannot be relied upon to compel transfer of land not expressly covered by them. The judgment also illustrates the Court’s discretion to prioritise substantive justice over procedural default.