Majadibodu Community v Commission on Restitution of Land Rights and Others

The Majadibodu Community lodged a land restitution claim in 1998 under the Restitution of Land Rights Act 22 of 1994. The claim was accepted for investigation and gazetted in terms of section 11, with additional farms later added under section 11A. The claim had not yet been referred to court. The fourth respondent, owner of two farms (Star 567 LR and Onschuld 551 LR), brought a main application seeking a declaratory order that there were no valid land claims over those farms. During pre-trial proceedings, the Commission indicated that the Majadibodu Community, among others, might have an interest in the land, leading to their joinder in the main application. After joinder, the applicant sought state-funded legal representation under section 29(4) of the Act to oppose the declaratory application. The Commission refused funding, stating that investigations showed the applicant had no valid claim and therefore no prospects of success. The applicant brought an interlocutory review application challenging the refusal of funding.

The decision refusing to arrange legal representation for the applicant was set aside. The first respondent was directed to fund the applicant’s legal representation in the main declaratory application, backdated to the date on which the main application was served. The first respondent was ordered to pay the applicant’s costs in the interlocutory review, including wasted costs of postponed hearings, on a party-and-party scale.

This case is significant for clarifying the obligations of the Commission on Restitution of Land Rights when considering requests for state-funded legal representation. It affirms that funding decisions are administrative actions subject to PAJA review, must be taken by the correct authority, and must comply with procedural fairness and rationality. The judgment also underscores the importance of funding vulnerable claimant communities to protect potentially valid land claims from being extinguished by declaratory relief sought by landowners.