Bhana v Gihwala and Others

The dispute concerned Erf 394, Marabastad, Pretoria, historically part of the Asiatic Bazaar where racially discriminatory laws prevented Asian residents from owning land. The Bhana family held leasehold rights since the 1930s. Mr and Mrs Chunilal Bhana were dispossessed of their right of residence under the Group Areas Act in 1976 but retained trading rights. After Mr Bhana’s death, Mrs Jelli Bhana lodged a restitution claim in 1998. Before her death, she sold her leasehold rights and ceded her restitution claim to her grandson, Dipak Gihwala, but both the sale and cession were later cancelled and the purchase price repaid. Despite this, in 2011 the Land Claims Commission and City of Tshwane facilitated transfer of the property to Dipak Gihwala without consideration. Bharat Kumar Bhana, as executor and sole heir under Mrs Bhana’s will, applied to review and set aside the transfer and sought restitution of the property to himself under the Restitution of Land Rights Act.

The court reviewed and set aside the decisions and administrative actions that resulted in the transfer of Erf 394 to the first respondent; ordered cancellation of the deed of transfer; substituted the first applicant as claimant under section 2(3)(a) of the RLRA; and directed the relevant state respondents to take steps to restore and transfer the property to the first applicant, adjusting the right to full ownership.

The case clarifies the interpretation of section 2(3) of the RLRA, confirming that a general bequest of an estate includes restitution rights. It also reinforces principles on when the PAJA review period commences, emphasising that only final administrative action with direct legal effect triggers the 180-day period. The judgment underscores careful administrative handling of restitution claims and transfers.