The Regional Land Claims Commissioner and Another v Amandebele Akwa-Manala Community

The Amandebele Akwa-Manala Community lodged a claim under the Restitution of Land Rights Act 22 of 1994 in respect of numerous properties, including Downbern Farm 594JR, Gauteng. The Commission settled claims for certain portions of Downbern under a section 42D agreement (specifically Portions 0 (R/E), 1, 3, 5 (R/E), 6, 7, 8, 9, 10, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 32, 34, 35 and 40), while claims for seventeen other portions remained unsettled as negotiations with landowners were ongoing. The Commission dismissed the remainder of claims as non-compliant with section 2 of the Restitution Act. In October 2021, the Amandebele Community instituted proceedings to compel transfer of twenty portions allegedly agreed under the section 42D agreement. The Commission received notification on 12 November 2021 and instructed the State Attorney to oppose. A notice of intention to oppose was filed on 17 November 2021. The matter was allocated to attorney Ms M Nduli who confirmed appointment and briefed counsel on 14 December 2021. Ms Nduli resigned in December 2021 with effect end January 2022, and her position remained vacant. On 28 February 2022, the matter came before Judge Ncube on the unopposed roll and an order was granted compelling transfer of twenty properties. The Commission only learned of this order on 18 March 2022 and applied to rescind it.

• Whether the Commission's default was willful and whether a reasonable and acceptable explanation for the default was provided
• Whether the application for rescission was made bona fide
• Whether the Commission had a bona fide defence with prospects of success on the merits
• Whether the order was erroneously sought and granted where the properties were owned by persons not joined to the proceedings
• Whether the section 42D agreement covered all twenty portions subject to the transfer order
• The proper interpretation and application of section 35(11) of the Restitution of Land Rights Act and Rules 58(6) and (7) governing rescission applications

The order of the Land Court dated 28 February 2022 under case number LCC 160/2021 was rescinded. There was no order as to costs.

The binding legal principles established are: (1) Under section 35(11) of the Restitution of Land Rights Act read with Rules 58(6) and (7), rescission requires a reasonable and acceptable explanation for default, that the application be made bona fide, and that there be a bona fide defence with prospects of success on the merits. (2) Where an order for transfer of properties is sought and granted, and those properties are owned by persons not joined to the proceedings who had no notice thereof, this constitutes grounds for rescission as those owners have a direct and substantial interest in the relief sought. (3) An applicant in land restitution proceedings has a duty to disclose to the Court material facts about property ownership, particularly where properties are owned by non-parties, and this duty extends to legal representatives. (4) The Court retains a discretion in rescission applications which must be exercised after proper consideration of all relevant circumstances.

The Court made several non-binding observations: (1) It noted that it was unnecessary to decide whether the order was 'erroneously' sought as contemplated in Rule 42 of the Uniform Rules of Court, given the conclusion on other grounds, and that it would be imprudent to do so given different views on the import of the section 42D agreement. (2) The Court noted no argument was addressed on the differences in wording between section 35(11) of the Restitution Act and Rule 42, particularly the absence of express reference in section 35(11) to a requirement that an order be erroneously sought or granted. (3) The Court observed that whether joinder is ultimately necessary should the proceedings continue may depend on whether the respondent can persuade the Court to dismiss the application based on its submissions regarding the import of the section 42D agreement. (4) The Court noted that the identities of property owners may not be known to the Amandebele Community whereas they would be known to the Commission. (5) The Court affirmed the general principle that the Land Court does not ordinarily grant costs, save in special circumstances.

This case is significant for establishing important procedural safeguards in land restitution matters, particularly regarding: (1) the duty of applicants to disclose material facts about property ownership and the rights of non-parties in unopposed applications; (2) the application of rescission principles under the Restitution of Land Rights Act in circumstances where an order is granted in the absence of a party due to administrative failures within the State Attorney's office; (3) the importance of joining property owners who have a direct and substantial interest in land transfer proceedings; and (4) the need for careful interpretation of section 42D settlement agreements to determine which properties are actually covered by such agreements. The case reinforces that even in land restitution matters aimed at redressing historical injustices, procedural fairness and proper joinder of affected parties remain essential requirements.