Minister of Department of Rural Development and Land Reform and Others v David Thadiephaswa Selahle and Others

The applicants became aware in August 2022 that the respondents, including some land claimants, were unlawfully dividing, sub-dividing, demarcating, fencing and erecting temporary structures on Farm Thionville 305KT, held under Title Deed T20236/1975PTA in Limpopo Province, which is owned by the Government of the Republic of South Africa. This was done without written notice to the Commissioner as required by Section 11(7)(aA) of the Restitution of Land Rights Act 22 of 1994. Three competing land claims had been lodged over the farm: by the Mashego family (lodged 8 August 1996, gazetted 20 September 2019); by the Selahle community, Bareng-Ba-Kgoete and Morena tribe (lodged 10 February 1998, gazetted 30 September 2005); and by the Bakone-BA-Mashining (lodged 3 September 1998, still under investigation). The respondents admitted their conduct was unlawful but alleged they occupied to prevent other illegal occupiers from hijacking the farm.

• Whether the Land Claims Court has jurisdiction to grant an interdict against unlawful occupation, demarcation, fencing and subdivision of land subject to competing restitution claims
• Whether the requirements of Section 6(3) of the Restitution of Land Rights Act were met for granting an interdict
• Whether the respondents' failure to give written notice under Section 11(7)(aA) of the Restitution Act entitled the court to grant relief
• Whether the Land Claims Court has jurisdiction to evict unlawful occupiers under PIE
• What relief the court could grant under Sections 6(3) and 11(7) of the Restitution Act

The court granted an interdict prohibiting the first to ninth respondents from demarcating, fencing, subdividing, rezoning or developing the farm pending finalization of the land claims. The respondents were ordered to remove all fences and demarcations within one month. Should they fail to comply, the Sheriff (with SAPS assistance) was authorized to remove such structures within 10 days thereafter. The applicants were granted leave to serve the order by affixing copies on structures and erecting boards at the four corners of the farm. There was no order as to costs.

Where land is subject to restitution claims under the Restitution of Land Rights Act and persons (including claimants themselves) unlawfully occupy, demarcate, fence or subdivide such land without giving the required written notice under Section 11(7)(aA), and such conduct is not in good faith, the Land Claims Court has jurisdiction under Section 11(7) to grant an interdict against future conduct and to set aside activities already undertaken. Section 11(7) empowers the court to grant relief for both past and future conduct, unlike Section 6(3) which is limited to interdicting future activities. The failure to give required notice coupled with admitted unlawful conduct constitutes bad faith. However, the Land Claims Court lacks jurisdiction under PIE to evict unlawful occupiers, which must be pursued in appropriate forums.

The court noted that by the time land claims are finalized, it might not be possible to restore land to lawful beneficiaries if it has been developed and occupied, and the rate of division and speed of erection of structures would make restoration difficult. The court observed that it would be practically impossible to evict people who unlawfully occupied the farm. The court rejected submissions made by counsel from the bar that were unsubstantiated by affidavit evidence, including allegations that occupation was on advice of the Commission's representative and that the deponent was appointed as caretaker by the applicants. The court distinguished between removal of fencing/demarcations and eviction of dwellings, noting the order was confined to the former.

This case clarifies the Land Claims Court's powers under Sections 6(3) and 11(7) of the Restitution of Land Rights Act to grant interdicts and set aside unlawful activities on land subject to restitution claims. It confirms that the Land Claims Court lacks jurisdiction to evict unlawful occupiers under PIE, which must be pursued in appropriate forums. The case demonstrates the court's protective jurisdiction to preserve land pending finalization of claims, even where some respondents are themselves claimants. It reinforces the mandatory nature of the written notice requirement under Section 11(7)(aA) and confirms that unlawful occupation by claimants themselves can constitute bad faith that defeats the objects of the Restitution Act.