Thamsanqa Davis Bisset v Minister of the Department of Rural Development and Land Reform and Others

The applicant was a descendant of Bhutana and Mickey Bisset who owned Erf 477, Veeplaas (later Bethelsdorp) in Port Elizabeth, measuring 2.1414 hectares. The Bisset family was dispossessed of the property in 1972 due to racially discriminatory laws. Nzimeni Dennis Bisset (deceased) lodged a land claim on behalf of the Bisset family before 31 December 1998 (claim reference 6/2/3/D/51/792/974/4), which was gazetted on 17 November 2006. In 2008, Ms Vanessa Daniels from the Regional Land Claims Commissioner's office visited the applicant and had him sign a settlement agreement valuing the property at R78,702.56 as restitution. The applicant alleged the content was never explained to him and he never received payment. In late 2008, he informed Ms Daniels the family no longer wished to settle as they were not involved in determining the property value or just and equitable compensation. The applicant's attorneys later discovered a valuation report by Saratoga Trading CC valuing the property at R157,405.00 (2006 CPI-adjusted). Meetings occurred in February 2019 with the Valuer General regarding the rejected offer. The applicant instituted review proceedings approximately 13 years after signing the settlement agreement.

• Whether the applicant's failure to file a notice of appearance by the third and fourth respondents invalidated their participation in proceedings
• Whether the applicant's delay of approximately 13 years in instituting review proceedings should be condoned under section 9 of PAJA
• Whether the settlement agreement should be reviewed and set aside on the basis that the Commissioner failed to consider relevant factors, specifically the history of dispossession and hardship caused, as required by section 33 of the Restitution of Land Rights Act 22 of 1994
• Whether compensation for land restitution must include consideration of non-financial factors beyond market value adjusted for inflation (CPI)

The Court made the following order: (1) The Commissioner's non-compliance with the rules was condoned; (2) The applicant's institution of review proceedings outside the 180-day period in PAJA was condoned and the period extended under section 9 of PAJA; (3) The settlement agreement signed by the applicant on 18 April 2008 was declared invalid, reviewed and set aside; (4) The matter was remitted to the fourth respondent (Regional Land Claims Commissioner: Eastern Cape Province) for reconsideration within 30 days, with a direction to take into account (a) the history of the dispossession and (b) the hardship caused by the dispossession when determining compensation; (5) The fourth respondent was ordered to pay the costs of the application.

When determining compensation in land restitution claims under the Restitution of Land Rights Act 22 of 1994, decision-makers must consider both the financial and non-financial factors listed in section 33 of the Act. This includes mandatory consideration of section 33(eB) factors: the history of the dispossession and the hardship caused by the dispossession. A failure to consider these relevant factors constitutes reviewable administrative action under section 6(2)(e)(iii) of PAJA. The consumer price index (CPI) is an appropriate measure for the monetary element of compensation (section 33(eC)), but compensation is not limited to this financial calculation alone. Settlement agreements entered into without proper consideration of the section 33 factors, particularly history of dispossession and hardship, are invalid and subject to judicial review. Material mistake of fact and failure to consider relevant considerations render administrative decisions reviewable on the basis of lawfulness.

The Court made several important observations: (1) The Land Claims Court has exceptionally broad procedural powers under Rule 28(4)(a), going beyond the inherent jurisdictional powers of High Courts, which is justified by the complexities associated with land claims and the need for expeditious, economic and effective disposal; (2) In condonation applications under PAJA section 9(2), while extremity of delay and paucity of explanation may justify refusal, these factors are not necessarily dispositive if other factors favor granting condonation and tilt the interests of justice accordingly; (3) Strong prospects of success may compensate for a tenuous explanation of delay in condonation applications; (4) Land claimants are inherently vulnerable by their nature as people who have suffered dispossession and victimization, which may mean they face significant barriers in accessing courts - this is a relevant consideration in the interests of justice analysis; (5) The Court noted that only a party who has delivered a notice of appearance becomes a "participating party" under the Land Claims Court Rules, and one respondent cannot deliver a notice of appearance on behalf of another respondent; (6) The Court observed that denials in answering affidavits based on documentary records rather than personal knowledge, without confirmatory affidavits, have limited evidential weight.

This judgment is significant in South African land restitution law because it clarifies the mandatory consideration of non-financial factors when determining compensation under the Restitution of Land Rights Act. It confirms that section 33 of the Act requires consideration of both financial factors (such as changes in the value of money using CPI) and non-financial factors (particularly the history of dispossession and hardship caused). The judgment distinguishes and contextualizes the Constitutional Court's decision in Florence v Government of RSA, which some had interpreted as limiting compensation to purely financial CPI-adjusted calculations. The case reinforces that land restitution claims are sui generis, with a reparatory and restitutionary character that goes beyond mere financial loss calculations. It also demonstrates the Land Claims Court's willingness to apply PAJA's condonation provisions flexibly in land restitution matters, recognizing the vulnerable position of land claimants and the constitutional imperatives underlying land reform. The judgment provides important guidance on the substantive requirements for valid settlement agreements in land claims and the procedural flexibilities available in the Land Claims Court.