South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others (CC) (unreported case no CCT 172/16, 23-2-2017) (Jafta J) (Nkabinde ACJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J concurring)

By Yashin Bridgemohan

Section 35(9) of the Restitution of Land Rights Act 22 of 1994 (the Act) provides:

‘Any state-owned land which is held under a lease or similar arrangement shall be deemed to be in the possession of the State for the purposes of subsection (1)(a): Provided that, if the Court orders the restoration of a right in such land, the lawful occupier thereof shall be entitled to just and equitable compensation determined either by agreement or by the Court.’

Section 35(11) of the Act provides:

‘The Court may, upon application by any person affected thereby and subject to the rules made under section 32, rescind or vary any order or judgment granted by it –

(a) in the absence of the person against whom that order or judgment was granted;

(b) which was void from its inception or was obtained by fraud or mistake common to the parties;

(c) in respect of which no appeal lies; or

(d) in the circumstances contemplated in section 11(5):

Provided that where an appeal is pending in respect of such order, or where such order was made on appeal, the application shall be made to the Constitutional Court or the Appellate Division of the Supreme Court, as the case may be.’

Facts

The applicant in this case, has been occupying Erf 142 Constantia owned by the state, under a lease for 34 years. In terms of the amended order of the Land Claims Court (LCC) it was directed that the property be transferred to the second and third respondent (the Sadiens) as compensation for the land they lost as a result of discriminatory practices of the past Apartheid order.

The claim for restoration was determined by the LCC in December 2012. The LCC ordered the transfer of Erf 1783 Constantia to the second respondent, a descendant of the owner of whom the land was dispossessed of. However, this erf was smaller than the dispossessed piece of land. The LCC then varied its order to replace the smaller land with Erf 142 Constantia on 8 February 2013.

The variation was, however, made without the knowledge of the applicant who had allegedly made improvements valued at R 7, 5 million during its tenancy. In addition no offer was made by any party to compensate the applicant and the LCC had not made an order on the issue of compensation.

Dissatisfied, the applicant made application to the LCC for leave to intervene. In addition, the applicant applied for rescission of the amended order in terms of s 35(11) of the Act. It sought to have the varied order set aside, including the order made on 7 December 2012, in terms of which, the smaller land was awarded to the Sadiens.

The LCC held that the applicant had no direct and substantial interest in the relief sought by the Sadiens. The LCC concluded that on the facts the applicant had no interest in the subject-matter of the case, which was the restoration of land to the Sadiens.

The applicant then sought relief from the Constitutional Court (CC).

CC’s judgment

Jafta J noted that an application for intervention must meet the direct and substantial interest test in order to be successful. What makes up a direct and substantial interest is the legal interest in the subject-matter of the case, which could be prejudicially affected by an order of court. This requires that an applicant must display that it has a right adversely affected or likely to be affected by the order sought. However, the applicant does not have to satisfy the court at the stage of intervention that it will succeed. It is enough for an applicant to make allegations, which, if proved, would warrant relief.

Jafta J further noted that if an applicant shows that it has some right, which is affected by the order issued, permission to intervene needs to be granted. This is due to the fact that it is a fundamental principle of our law that no order should be granted against a party without giving said party a pre-decision hearing.

The CC held that it was clear from the papers that the applicant misconceived the length of its interest and sought the rescission of the varied order. It had no legal interest in the transfer of the land. As such the LCC was correct in deciding that the applicant had no direct and substantial interest in the property. However, the LCC erred by overlooking the statutory right to compensation conferred on a lawful occupier and that the transfer of the property was subject to the determination of just and equitable compensation. In light of this it was not necessary to rescind the varied order. What was needed was to allow the applicant to intervene only for the purpose of determining compensation.

The CC further held the fact that a final order had already been issued at the time of the application for intervention was not material. Once it was proved that the applicant was a lawful occupier of Erf 142, the LCC should have granted it leave to intervene for purposes of considering the issue of compensation only.

The CC accordingly upheld the applicant’s appeal and set aside the order made by the LCC. The CC further ordered the matter be remitted to the LCC for determination of compensation payable to the applicant.

Conclusion

This judgment is important as it highlights that lawful occupiers of state land – as envisaged in terms of s 35(9) of the Act – are entitled to just and equitable compensation when said land is to be transferred to a claimant for restitution of land rights. Where a lawful occupier is left out of proceedings application can be made to intervene solely based on the occupier’s statutory right to just and equitable compensation.

Yashin Bridgemohan LLB (UKZN) PG DIP Labour Law (NWU) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.

This article was first published in De Rebus in 2017 (June) DR 52.