Neela Rajbunsee v Regional Land Claims Commissioner Kwazulu-Natal and Others

The applicant's deceased husband lodged a land claim on 27 May 1997. Extensive correspondence passed between the applicant's attorney and the Regional Land Claims Commissioner (RLCC) from 30 April 2004 to 12 April 2006, consisting of 11 letters and one telephone call, culminating in an offer of financial compensation. On 12 April 2006, the applicant rejected the compensation offer and requested restoration instead. Further correspondence followed from 2006 to 2007 (twelve letters and a telephonic reminder). The RLCC raised the issue of another spouse which was addressed and did not present an obstacle. The application was launched in November 2008 seeking a review of the RLCC's failure to refer the land claim to the Land Claims Court in terms of Section 14 of the Restitution of Land Rights Act No 22 of 1994. The first respondent opposed the relief until the hearing date, when they indicated no objection to the referral order. The RLCC attributed delays to lack of resources and the applicant's objection to the third respondent dealing with the matter.

• Whether the RLCC's failure to refer the land claim to the Land Claims Court should be reviewed
• Whether the RLCC should be ordered to certify and refer the claim in terms of section 14(1)(b) or 14(1)(d) of the Restitution of Land Rights Act
• Whether costs should be awarded on an attorney and client scale or party and party scale
• Whether extraordinary circumstances existed to justify a punitive costs order

1. The first respondent was ordered to certify the claim in terms of section 14(1)(b) or 14(1)(d) of the Restitution of Land Rights Act 22 of 1994 and refer it to the Land Claims Court within 60 ordinary days (granted by consent on 10 May 2010). 2. The first respondent was ordered to pay the costs of the application on a party and party scale.

1. The Regional Land Claims Commissioner has a statutory duty under section 14 of the Restitution of Land Rights Act No 22 of 1994 to refer land claims to the Land Claims Court where appropriate, and failure to do so is reviewable. 2. Lack of resources and staffing issues do not absolve the RLCC from its statutory obligations to process claims and make referrals within a reasonable time. 3. In land restitution matters, costs follow the general principle that they should follow the event, meaning the successful party is entitled to costs to indemnify them for expenses incurred. 4. Attorney and client costs require extraordinary circumstances beyond administrative delays and late capitulation by the respondent; where the applicant could have mitigated costs by seeking earlier referral rather than launching an application, party and party costs are appropriate.

The court noted that where an applicant in a land restitution claim opts for restoration and this is not possible, and no agreement is reached despite mediation attempts, the parties have recourse to the Land Claims Court either by way of referral or by way of review. The court observed that the RLCC's suggestion that the applicant was bound by an initial choice of compensation and could not change to restoration at a late stage did not take into account the delay caused by the RLCC itself. The court also noted, without making a binding determination, that it was widely known that the RLCC Kwazulu-Natal experienced a lack of resources, though this was mentioned in the context of not excusing the delays rather than as an established legal principle.

This case illustrates the Land Claims Court's approach to dealing with administrative delays by the Regional Land Claims Commissioner in processing land restitution claims. It demonstrates the court's willingness to review failures to refer claims and to enforce the obligations of the RLCC under the Restitution of Land Rights Act. The judgment reinforces that while the RLCC's lack of resources may explain delays, it does not excuse them from their statutory obligations. The case also provides guidance on the exercise of the court's discretion regarding costs in land restitution matters, balancing the conduct of the RLCC against the applicant's failure to mitigate costs by seeking earlier referral. It confirms that the general principle that costs follow the event applies in land restitution proceedings, but that attorney and client costs require exceptional circumstances beyond mere delay or lack of opposition at the hearing stage.