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

The Bisset family owned land in Gqeberha and was dispossessed of their ownership in 1972 as a result of past racially discriminatory laws. The Bisset family lodged a claim for the restitution of their rights in land under the Restitution of Land Rights Act 22 of 1994. In 2008, Mr Bisset (representing the Bisset family) was visited by Ms Vanessa Daniels, an official of the Regional Land Claims Commissioner, Eastern Cape Province. On 18 April 2008, Mr Bisset signed a document headed 'Settlement Agreement in terms of s 42D of the Restitution of Land Rights Act 22 of 1994'. Later in 2008, Mr Bisset informed Ms Daniels that the settlement agreement was no longer accepted. The document was never signed by the Commissioner on behalf of the Department. No compensation was ever paid to Mr Bisset pursuant to this document. In early 2019, Mr Bisset's attorney engaged in further negotiations with the Commissioner's representatives concerning appropriate compensation. No agreement was reached. In September 2021, Mr Bisset brought review proceedings to declare the settlement agreement invalid and to have it reviewed and set aside.

• Whether there was a valid settlement agreement concluded between Mr Bisset and the Minister in terms of s 42D of the Restitution of Land Rights Act 22 of 1994
• Whether, in the absence of a binding settlement agreement, there was any administrative action that could be subject to judicial review
• Whether the high court had the power to review and set aside a document that was not a binding settlement agreement

The appeal succeeded. The order of the high court was set aside and replaced with an order dismissing the application. No order as to costs was made.

A settlement agreement in terms of s 42D of the Restitution of Land Rights Act 22 of 1994 requires concurrence by both parties to be valid and binding. Where a document purporting to be a settlement agreement has been signed by only one party, and the other party has not evidenced concurrence through signature or conduct, and where the party who signed has subsequently disavowed the agreement, and no actions have been taken pursuant to the alleged agreement (such as payment of compensation), no binding settlement agreement has been concluded. In the absence of a binding settlement agreement or administrative action, a court has no power to exercise its review jurisdiction to declare invalid, review and set aside such a document.

The Court observed that since Mr Bisset is not bound by any settlement agreement, he and the Commissioner are at liberty to continue their negotiations to reach an agreement. If they cannot reach agreement, Mr Bisset may seek other recourse to pursue his land restitution claim. The Court also noted that the appellants, given the nature of the case, did not seek costs from Mr Bisset either in respect of the appeal or the proceedings before the high court, and the Court did not make any costs order.

This case clarifies the requirements for a valid settlement agreement under s 42D of the Restitution of Land Rights Act 22 of 1994, particularly the necessity of concurrence by both parties. It demonstrates that mere signature by one party on a proposed settlement document does not create a binding agreement in the absence of acceptance by the other party. The case also affirms important principles regarding the scope of judicial review powers, confirming that courts cannot review and set aside documents that do not constitute binding agreements or administrative action. The judgment protects parties from being bound by agreements they have not fully concluded and ensures that land restitution claimants are not prejudiced by procedural irregularities. It allows Mr Bisset and the Commissioner to continue negotiations toward a proper settlement.