The Nkunzana Communal Property Trust v The Minister of Rural Development and Land Reform and Others

The Nkunzana Community, represented by T.M. Nzuza, lodged a land claim on 10 December 1998 in compliance with section 2 of the Restitution of Land Rights Act 22 of 1994. The claim was gazetted on 12 August 2005. On 18 April 2007, the Regional Land Claims Commissioner (RLCC) for KwaZulu-Natal submitted a memorandum in terms of section 42D of the Act, which was supported by the Chief Land Claims Commissioner on 31 May 2007 and approved by the Minister on 30 July 2007. The award related to land of 12,725.6022 hectares valued at R182,459,000 for the benefit of 472 households comprising 15 separate properties. The properties were transferred to the Department of Rural Development and Land Reform (then Department of Land Affairs) in terms of section 42A of the Act. A handover ceremony was held on 14 July 2008. On 14 July 2009, the RLCC's legal unit wrote to the applicant's representative confirming that a conveyancer would be appointed to transfer the properties to the Nkunzana Communal Property Trust IT529/2008/PMB. However, no transfer occurred. The respondents defended the matter on the basis of an alleged competing claim by the Usuthu Tribal Authority, allegedly lodged on 31 December 1998. The applicant denied this competing claim, stating that individual members of the Nkunzana Community were subjects of the Usuthu Traditional Authority but occupied the land in their own right as labour tenants, not on behalf of the King or the Traditional Authority.

• Whether the respondents were obliged to transfer ownership of the awarded properties to the applicant
• Whether there was a valid competing claim by the Usuthu Tribal Authority that constituted an obstacle to transfer
• Whether the applicant was entitled to costs on an attorney and client scale

The court granted the application and ordered: (a) Application is granted; (b) Respondents jointly and severally to pay costs of the application on attorney and client scale; (c) Respondents to pay costs occasioned by the appearances on 10 September 2010 on party to party scale.

Where a land restitution claim has been properly validated, gazetted, and awarded by the Minister in terms of the Restitution of Land Rights Act 22 of 1994, and the properties have been acquired by the state, the state organs responsible for implementing the award have a legal obligation to effect transfer of the properties to the beneficiary community or trust. An alleged competing claim will not constitute a valid defence to delaying or refusing transfer where: (1) there is no credible evidence that such a competing claim exists; (2) the alleged competing claimant has not confirmed the existence of the claim; (3) no steps have been taken to investigate or resolve the alleged competing claim; and (4) the original claimant has provided evidence contradicting the existence of such a claim. The state may be ordered to pay costs on an attorney and client scale where beneficiaries of land restitution are forced to approach the courts to enforce the state's contractual and statutory obligations to effect transfer of awarded land.

The court observed that the distinction between occupation of land by individuals who are subjects of a traditional authority and occupation on behalf of the traditional authority itself is an important one in land restitution matters. The fact that individual claimants are subjects of a traditional authority does not mean that their personal rights to land restitution vest in the traditional authority. The court also expressed concern about the conduct of the respondents in raising unsubstantiated defences and failing to take any meaningful steps to resolve the alleged dispute, despite representing that mediation was taking place. The court's remarks suggest that such conduct by state organs in land restitution matters may be viewed as obstruction of constitutional rights and will attract adverse costs consequences.

This case is significant in South African land restitution law as it reinforces the principle that once a land claim has been properly validated, gazetted, and awarded by the Minister in terms of the Restitution of Land Rights Act, the state has an obligation to effect transfer of the land to the beneficiary community. The judgment demonstrates the courts' willingness to enforce the state's obligations in land restitution matters and hold the state accountable for unreasonable delays. The case also establishes that unsubstantiated allegations of competing claims will not be accepted as a defence to delaying transfer, particularly where the alleged competing claimant has not even confirmed the existence of such a claim. The award of attorney and client costs against the state reflects the courts' intolerance of unjustified delays in land reform matters, particularly where claimant communities are forced to litigate to enforce their constitutional rights to restitution.