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 (plaintiffs) sought declaratory relief concerning membership of the NCPA and entitlement to share in the benefits of the MalaMala land, purchased by the State for approximately R1.1 billion for restoration to land claimants. The dispute arose because the NCPA Constitution provided for benefits not only to members of the Mhlanganisweni Community but also to members of the Mavhuraka Community (ninth defendant). The plaintiffs contended that the Mavhuraka Community did not lodge claims for the MalaMala land and were not entitled to benefit from the settlement. The NCPA claimed to have authorized litigation at a meeting on 9 March 2019, but this meeting was attended only by verified members of the Mhlanganisweni Community, excluding members of the Mavhuraka Community. The fourteenth defendant was admitted to the proceedings and raised preliminary points, including that the NCPA had not duly resolved to authorize the main action. The Land Court found in August 2023 that the 9 March 2019 meeting was not properly constituted as it excluded Mavhuraka Community members, and declared that the NCPA had not duly authorized the litigation.

• Whether the Land Court failed to afford the plaintiffs a fair hearing (audi alteram partem) before making its decision
• Whether the Land Court's interpretation of the NCPA Constitution was correct
• Whether a special meeting of the NCPA composed only of verified Mhlanganisweni Community members could validly authorize litigation on behalf of the NCPA when the Constitution contemplated membership from both the Mhlanganisweni and Mavhuraka Communities
• Whether the issue decided by the Court was properly pleaded and raised on the papers
• Whether the application for leave to appeal met the statutory test of reasonable prospects of success

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 concerning interpretation of the NCPA Constitution). The application for leave to appeal on other grounds (the audi alteram partem point) was dismissed. No order as to costs was made. 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 an application for leave to appeal to succeed under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, the applicant must demonstrate reasonable prospects of success, meaning there must be a sound rational basis to conclude that a court of appeal could reasonably arrive at a different conclusion from the trial court. A mere possibility of success or an arguable case is insufficient. Where a party has been afforded a fair and reasonable opportunity to adduce evidence and make submissions on issues properly raised on the pleadings and argued by opposing parties, and where the party was represented by counsel with adequate resources and opportunity to respond, there is no breach of audi alteram partem even if the court's ultimate interpretation was not the party's preferred position. Issues are properly before the court when they are raised on the pleadings (including affidavits where those constitute the pleadings by agreement), canvassed in evidence, and argued by the parties.

The Court noted with concern the protracted history of the matter and the fact that settlement negotiations had failed on two occasions after matters were postponed, with parties giving only one day's notice to the Court. The Court also observed the troubling feature that the fourteenth defendant was no longer represented by attorneys on record, with apparent confusion on the part of their witness/leader about the status of the proceedings and whether settlement had been achieved. The Court expressed that costs are only granted by the Land Court in special circumstances, and there were none present in this case. The Court noted that because leave to appeal was granted on the merits, the plaintiffs would have another opportunity to develop their arguments before the Supreme Court of Appeal.

This case addresses important issues concerning the proper constitution of meetings and decision-making authority within Communal Property Associations established under land reform legislation. It highlights the constitutional and procedural requirements for CPAs to authorize litigation, particularly where disputes exist about membership entitlements. The case also demonstrates the application of the test for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act, requiring reasonable prospects of success rather than mere arguability. The matter involves significant economic interests (land worth R1.1 billion) and touches on the rights of land reform beneficiaries. It also illustrates the importance of procedural fairness while clarifying that parties must actively engage with issues raised on the pleadings and in argument.