Minister of Agriculture, Land Reform and Rural Development and Others vs. Ndumo (obo Emdwebu Community)

South Africa

19.10.2023

Civil

Claimant must indicate the capacity in which the claim is lodged, that is whether the claim is for an individual, or in a representative capacity for a family, community, or a trust

Present appeal arises from a mandamus application, by way of urgency in the Land Claims Court, Randburg (LCC), to compel the Land Claims Commission (Commission) officials to sign the accepted offer of settlement of a land restitution claim. The crisp issue in present appeal is whether it is legally permissible for a claim for restitution of rights in land, lodged by a person or family, to be converted into a community claim by the Commission.

Section 10 of the Restitution of Land Rights Act, 1994provides for the details required to be filled on the prescribed form, at the time the claim for restitution of rights in land, is lodged. Most importantly, it requires the claimant to indicate the capacity in which the claim is lodged, that is whether the claim is for an individual, or in a representative capacity for a family, community, or a trust.

Mr. Ndumo completed a claim form on 31 December 1998, claiming the restitution of land rights belonging to his late father, Nokhenke Ndumo. Furthermore, it found that some questions in the claim form were not responded to, and that he (Mr. Ndumo) only mentioned ‘Emdwebu’ in item 1.1 of the form in response to the request for location or description of the property he claimed for. Present Court could not find any reference at all to the ‘Emdwebu Community’ in the claim form. Section 10(3) of the Act explicitly provided: ‘if a claim was lodged on behalf of a community the basis on which it was contended that the person submitting the form represented such community, shall be declared in full’.

The LCC should have considered Mr. Ndumo’s affidavit of 2013, which conveyed that the idea to include the community only came to him in 2013.Therefore, the Regional Land Claims Commissioner’s (RLCC) decision to accept and gazette the Ndumo family claim as a community claim was not authorised by the Act. There was no rational connection between the contradictory information made available to the RLCC, and the administrative act he performed in terms of Section 11(1) of the Act. Thus, on the facts of present case, the conversion of a family claim to a community claim after the cut-off date, could not have been effected through condonation in terms of Section 11(2). Appeal succeeds.

Tags : Restitution Rights Land

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