The Nkunzana Communal Property Trust v The Minister of Rural Development and Land Reform and Others

The Nkunzana Community, represented by the Nkunzana Communal Property Trust, lodged a land restitution claim on 10 December 1998 in terms of the Restitution of Land Rights Act 22 of 1994. The claim was validated, gazetted in 2005, and approved through a section 42D process in 2007, resulting in an award of approximately 12 725 hectares of land to benefit 472 households. The relevant properties were purchased by the State and transferred to the Department of Rural Development and Land Reform. Despite a formal handover ceremony in July 2008 and written confirmation in July 2009 that a conveyancer would be appointed to transfer the land to the Trust, no transfer occurred. The respondents resisted the application for transfer on the basis that there was an alleged competing claim by the Usuthu Tribal Authority, which they argued constituted an obstacle to transfer.

The application was granted. The respondents were ordered, jointly and severally, to pay the costs of the application on an attorney-and-client scale, as well as the costs occasioned by appearances on 10 September 2010 on a party-and-party scale.

This case underscores the obligation of the State to give effect to approved land restitution awards without undue delay. It affirms that unsubstantiated allegations of competing claims cannot be used to frustrate or postpone the transfer of land to successful claimants. The judgment also reinforces the principle that courts may grant punitive costs orders against the State where communities are forced to litigate to enforce their constitutional and statutory land restitution rights.