Kwalindile Community v King Sabata Dalindyebo Municipality; Zimbane Community v King Sabata Dalindyebo Municipality

Two traditional communities, the Kwalindile Community and the Zimbane Community, lodged land restitution claims in 1998 under the Restitution of Land Rights Act 22 of 1994 for land in and around the City of Mthatha, including parts of the Remainder of Erf 912. The land, historically municipal commonage, had vested in the state and was later donated to the King Sabata Dalindyebo Municipality subject to conditions protecting existing land rights. Before the validity of the restitution claims was finally determined, the Municipality entered into long-term leases and development agreements with private developers over portions of the claimed land. Concerned that restoration would disrupt urban development, the Municipality applied to the Land Claims Court in terms of section 34 of the Restitution Act for an order that the land should not be restored to any successful claimant. The Land Claims Court granted a non-restoration order with conditions; on appeal, the Supreme Court of Appeal removed the conditions and issued a broad non-restoration order covering land in the town of Mthatha, including the Remainder of Erf 912. The two communities sought leave to appeal to the Constitutional Court.

Leave to appeal was granted. The appeal was upheld. The order of the Supreme Court of Appeal was set aside, and the Municipality’s application for a non-restoration order under section 34 was dismissed.

The case clarifies and restricts the use of section 34 of the Restitution of Land Rights Act, confirming that non-restoration orders are exceptional and must be justified by concrete evidence of public interest and substantial prejudice. It reinforces restoration as the primary remedy in land restitution and prevents premature or blanket exclusion of restoration, particularly in urban contexts. The judgment strengthens the protection of claimants’ rights pending final determination of restitution claims.