The N'Wandlamhari Communal Property Association and Another v Millington Zamani Mathebula and Others

The N'Wandlamhari Communal Property Association (NCPA) and the Mhlanganisweni Community sought declaratory relief concerning membership entitlement of the NCPA and entitlement to share in the benefits of land it owns, known as the MalaMala land, which was purchased by the State for approximately R1.1 billion to be restored to land claimants. The dispute arose because not only members of the Mhlanganisweni Community but also members of the Mavhuraka Community (the ninth defendant) were entitled to receive benefits under the NCPA Constitution. The plaintiffs contended that the Mavhuraka Community did not lodge claims in respect of the MalaMala land and were not entitled to benefit from the settlement. In preliminary proceedings, the fourteenth defendant successfully challenged the authority of the NCPA to institute the litigation, arguing that a meeting held on 9 March 2019 to authorize the litigation was not properly constituted as it excluded Mavhuraka Community members. The Court found in an August 2023 judgment that the meeting was improperly constituted because it excluded Mavhuraka Community members, and declared that the NCPA had not duly resolved to authorize the main action. The plaintiffs sought leave to appeal against this decision.

• Whether the plaintiffs were afforded a fair hearing (audi alteram partem) before the Court arrived at its decision regarding the validity of the 9 March 2019 resolution
• Whether the issue decided by the Court was properly pleaded and raised on the papers
• Whether the Court's interpretation of the NCPA Constitution regarding membership requirements and who could participate in the special meeting was correct
• Whether a special meeting of the NCPA could validly be convened with only verified members of the Mhlanganisweni Community to the exclusion of Mavhuraka Community members
• Whether leave to appeal should be granted under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013

Leave to appeal to the Supreme Court of Appeal was granted on the grounds pleaded in paragraphs 11 to 17 of the application for leave to appeal (the merits point). The application for leave to appeal on other grounds (the audi point) was dismissed. There was no order as to costs. The Registrar was directed to deliver a copy of the judgment to all parties who participated in the initial proceedings and to Legal Aid South Africa.

For purposes of this application for leave to appeal: (1) The test for granting leave to appeal under section 17(1)(a)(i) of the Superior Courts Act requires that the judge be of the opinion that the appeal would have a reasonable prospect of success, meaning there must be a sound rational basis to conclude that a court of appeal could reasonably arrive at a different conclusion; (2) An issue is properly before the court if it is raised on the pleadings (which in this case were constituted by the affidavits in the intervention application), canvassed in evidence, and addressed in submissions; (3) The audi alteram partem principle requires that parties be afforded a fair and reasonable opportunity to state their case, including the opportunity to lead evidence and make submissions on issues properly raised on the pleadings; (4) Where parties are represented by counsel, have ample opportunity to lead evidence and make written and oral submissions, including post-hearing submissions, and the issue is squarely raised on the pleadings and addressed by opposing parties, there is no violation of audi alteram partem even if a party does not extensively develop arguments on a particular point.

The Court observed that this case has a protracted history and troubling features, including the fact that the fourteenth defendant was no longer represented by attorneys on record at the time of the leave to appeal application, with the reasons and circumstances unknown. The Court noted its concern regarding the administration of justice in this context. The Court also noted that while it did not abandon the point, the plaintiffs' counsel did not press the evidential point concerning the membership register at the final hearing. The Court remarked that the plaintiffs and their legal team had always treated it as self-evidently the case that only verified members of the Mhlanganisweni Community could be regarded as members of the NCPA under the Constitution, and that this stance was a central element of the deep conflict between the parties. The Court observed that the Land Court only grants costs in special circumstances, and there were none present in this case.

This case addresses important issues concerning communal property associations established under land restitution claims, particularly regarding membership requirements and proper constitution of decision-making bodies within such associations. It illustrates the complexities that arise in land reform matters where multiple communities may have competing or overlapping interests in restituted land. The case also demonstrates the application of procedural fairness requirements in the Land Court and the test for granting leave to appeal under the Superior Courts Act. The matter highlights tensions within land reform beneficiary communities and the legal requirements for valid decision-making in communal property associations, particularly where high-value land (valued at R1.1 billion) is involved. The direction to the Registrar to inform Legal Aid South Africa reflects concern about access to justice for unrepresented parties in complex land reform disputes.