Farao, Christoffel v The Regional Land Claims Commissioner and Others

Mr. Farao (first applicant) lodged land claims in April 2016 pursuant to the Restitution of Land Rights Amendment Act 15 of 2014, including a claim concerning Meideberg farm in Ceres district. Farao alleged he lodged claims on behalf of the Hanse Familie Grondeis Kommittee (second applicant). The Amendment Act was subsequently declared constitutionally invalid in Land Access Movement of South Africa v Chairperson of the National Council of Provinces (LAMOSA.1) due to inadequate public participation. The Constitutional Court interdicted processing of claims lodged from 1 July 2014 until old claims (lodged by 31 December 1998) were finalized, though claims could still be receipted and acknowledged. Parliament did not remedy the defect within the two-year period granted. Johanna Mankopan, allegedly a member of the Hanse family claimants, had entered into a deed of settlement on 17 February 2019 in case LCC 19/2018 with the owners of Meideberg (CeresKaroo Farm Trust), agreeing to reduce livestock to no more than seven by 30 November 2019. Applicants alleged this settlement was concluded in bad faith, through unfair procedure, and that Mankopan signed under duress. An interim interdict staying implementation of the settlement was granted on 25 November 2019.

• Whether the applicants had locus standi to challenge a deed of settlement to which they were not parties
• Whether an interdicted land claim (under LAMOSA orders) could ground protection similar to section 11(7) of the Restitution of Land Rights Act against eviction or interference with land use
• Whether the deed of settlement concluded by Mankopan should be set aside on grounds of bad faith, unfair procedure, or duress
• Whether oral evidence should be heard on the issue of duress
• The legal status and rights of claimants who lodged claims under the constitutionally invalid Amendment Act

1. The interim ex parte order granted on 25 November 2019 staying implementation of the Deed of Settlement (made an order of court on 17 February 2019 under case LCC 19/2018) was set aside and the rule discharged. 2. The applicants were ordered to pay costs jointly and severally on a party and party scale, including all reserved costs.

A claimant under an 'interdicted claim' (lodged under the invalid Amendment Act) who seeks to rely on section 11(7) protection against eviction or interference with land use must demonstrate that, but for the declaration of invalidity, the claim would have been gazetted under section 11(1). This requires alleging facts showing the requirements of section 11(1) would have been satisfied. Where a party to a land restitution claim enters into a properly negotiated settlement agreement with legal representation, non-parties (even those claiming to represent the same community) lack standing to set aside that settlement absent evidence of bad faith, procedural unfairness, or duress. Bare allegations of duress unsupported by credible evidence and contradicted by the circumstances (including legal representation by attorney and counsel, departmental funding, and substantive settlement terms protecting the claimant's subsistence rights) are insufficient to warrant setting aside a settlement agreement made an order of court.

The court expressed concern about the lack of clarity regarding the identity of the land claimants, noting that the Regional Land Claims Commissioner acknowledged the claim only in Farao's name, yet Farao alleged he was claiming on behalf of a family/community. The court questioned why Farao was claiming the individual farm and why Mankopan had not claimed it in her own right, and noted these issues may arise in future cases. The court also considered (without deciding) whether section 11(7)'s prohibition on 'eviction' should be interpreted broadly to preserve not only improvements but also the utilisation of land by a claimant, thus giving the term a wider meaning. The court suggested the objective of the application may have been to gain time rather than to genuinely protect a position, given its timing and the failure to secure legal representation despite earlier undertakings.

This case demonstrates the practical limitations faced by claimants who lodged land restitution claims under the constitutionally invalid Restitution of Land Rights Amendment Act 15 of 2014. It clarifies that such 'interdicted claims' cannot be used to collaterally attack properly concluded settlement agreements, even where the claimant alleges to represent the same community interest. The judgment highlights the tension between the Constitutional Court's preservation of interdicted claims in LAMOSA (preventing their complete invalidation) and their practical enforceability before Parliament re-enacts valid legislation. It underscores the importance of clarity in identifying whether a land claim is individual or community-based, and the limited circumstances in which non-parties can challenge settlement agreements. The case also demonstrates the court's willingness to be flexible with procedural requirements for unrepresented litigants, but only to the extent that the substantive claim has merit.