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IN THE LAND CLAIMS COURT OF SOUTH AFRICA CASE NO. LCC 74 / 06 Held at MALELANE on 21 -23 November 2007 Before Meer J and Padayachi (assessor) Decided on: 4 December 2007 In the matter between: NKOMAZI MUNICIPALITY Applicant and NGOMANE OF LUGEDLANE COMMUNITY First Respondent NGOMANE OF SIBOSHWA COMMUNITY Second Respondent NGOMANE OF HOYI Third Respondent MKHATSHWA OF MBAMBISO COMMUNITY Fourth Respondent MAWEWE TRIBAL AUTHORITY Fifth Respondent MATSAMO TRIBAL AUTHORITY Sixth Respondent MAHLALELA COMMUNTY Seventh Respondent MINISTER OF AGRUCULTURE AND LAND AFFAIRS Eighth Respondent REGIONAL LAND CLAIMS COMMISSIONER: MPUMALANGA Ninth Respondent MANUEL ROCHA Tenth Respondent JUDGMENT 2 MEER, J Introduction [1] This is an application in terms of Section 34 of the Restitution of Land Rights Act No 22 of 1994 (“the Act”) in which the Applicant, a local government body, the Nkomazi Municipality seeks an order in terms of Section 34(5) (b) of the Act, that when the land claims lodged by the First to Seventh Respondents in respect of land within Applicant’s jurisdiction is finally determined, certain land shall not be restored to any claimant. The land sought to be excluded from restoration is that which falls within the delineated urban edges of the towns of Malelane, Hectorspruit, Komatipoort and Marloth Park (hereinafter “the land within the four towns”), in the province of Mpumalanga. It is the Applicant’s contention that, as specified at Section 34 (6)(a) of the Act, it is in the public interest that the land in question should not be restored and that, as per section 34 (6) (b), the public will suffer substantial prejudice unless an order is made in terms of Section 34 (5) (b) before the final determination of Respondents’ claims. Of the seven Respondents who have lodged land claims in the area, it is only the First, Second and Third Respondents who oppose this application. I shall refer to them as the Opposing Respondents. Parties [2] The Applicant is a Local Government as contemplated in section 151 read with section 155 of the Constitution of the Republic of South Africa Act 106 of 1996, with municipal offices at the Civic Centre, Malelane. The land within the four towns falls within the Applicant’s jurisdiction, which covers a large and productive area. Large portions of the area are affected by 3 competing and overlapping restitution claims by several communities including the first to seventh Respondents and various individuals. Exactly what is claimed by whom, as well as the validity of the claims, is still in dispute and will form part of the disputes to be determined in the main land claim, (“the main action”). A resolution by Applicant’s full council mandated its Municipal Manager, Mr Shabangu, to bring the current application and ratified all steps taken by him in that regard. The Respondents [3] The First to Seventh Respondents represented by the Greater Tenbosch Land Claims Committee, lodged claims for restitution of rights in land, with the Ninth Respondent in the main application, claiming physical restoration of over 30 000 hectares of land within the Applicant’s jurisdiction. [4] The Eighth Respondent is the Minister of Land Affairs who is cited in her official capacity as responsible Minister in terms of the Restitution of Land Rights Act No 22 of 1994, as she may have an interest in the relief claimed. [5] The Ninth Respondent, the Regional Land Claims Commissioner, Mpumalanga, is the representative of the Commission on Restitution of Land Rights, a Commission established in terms of section 4 of the Restitution Act. The referral report by the Ninth Respondent, referring the 4 claims to this Court in the main application, has accepted the claims lodged by Respondents as being valid for the purposes of the Restitution Act. For the purposes of the present application in terms of Section 34 of the Act, the Ninth Respondent has filed a report as it is required to do in terms of Section 34 (2), in which it expresses support for this application. The report favours financial compensation to Respondents as an alternative to restoration to them of land, within the four towns. [6] The Tenth Respondent is an entrepreneur and director of companies and has an interest in 30 properties in Komatipoort. He was joined as a Respondent at the hearing as is permitted at Rule 12 (5) of the Land Claims Court Rules Legislative framework [7] The relief sought by Applicant in terms of Section 34 of the Act is not available to private individuals but only to a national, provincial or local government body, and in respect of land which is owned by it or falls within its area of jurisdiction. The relevant subsections provide as follows: “34. Ruling by Court on restoration before final determination of claim.--- (1) Any National, Provincial or Local Government Body may, in respect of land which is owned by it or falls within its area of jurisdiction, make application to the Court for an order that the land in question or any rights in it shall not be restored to any claimant or prospective claimant. (2) …………. (3) ………….. 5 (4) ………….. (5) After hearing an application contemplated in subsection (1), the Court may – (a) dismiss the application; (b) order that when any claim in respect of the land in question is finally determined , the rights in the land in question, or in part of the land, or certain rights in the , shall not be restored to any claimant; (c) make any other order it deems fit (6) The Court shall not make an order in terms of subsection (5)(b) unless it is satisfied that- (a) it is in the public interest that the rights in question should not be restored to any claimant; and (b) the public or any substantial part thereof will suffer substantial prejudice unless an order is made in terms of subsection (5)(b) before the final determination of any claim.” [8] Section 34 vests the Court with extraordinary powers to order in advance under Section 34 (5) (b) that, when a claim for restitution of a right in land is finally determined, the remedy afforded to the claimants will not include restoration of the land itself. It is clear from Section 34 that two threshold or jurisdictional requirements that have to be present before an ante omnia ruling on restoration in terms of Section 34(5)(b) is made, are those set out at Section 34 (6) (a) and (b)1. [9] In Khosis Community, Lohatla & Another v Minister of Defence & Others 2004(5) SA 494 (SCA) in which the majority decision of the Land 1 See Khosis Community , Lohatla v Minister of Defence 2004 (5) 494 SCA at para 6; The Minister of Defence and Another v Khosis Communitey at Lohatla and Others LCC 16/97 paragraph 3: 6 Claims Court to grant a Section 34 order was upheld, the SCA enunciated the following principles pertaining to Section 34 Applications: 9.1 Once the Court is satisfied that the two jurisdictional requirements have been met, the Court does not have a further overriding discretion in terms of Section 34(5) not to grant an order; 9.2 Both threshold requirements involve the exercise of a value- judgment based on the proven facts. The Court is entitled to have regard to a number of disparate and incommensurable features in coming to a decision, exercising a wide descretion2. 9.3 In reaching a decision in respect of the threshold requirements, the Court has to take into account the factors listed in Section 33 of the Restitution Act. Not all of them are necessarily applicable in any given case3. Factors such as the feasibility of restoration (Section 33(c)A), social upheaval (Section 33(d)) and the current use of the land are closely related to the public interest considerations in Section 34(6)(a)4. What is involved in determining the question of public interest, is a weighing or balancing of private interests on the one hand and public interests on the other.5 2 Khosis SCA judgment paragraph 8. 3 ibid paragraph 30. 4 ibid 33. 5 For a discussion on the meaning of the term “public interest” see Khosis LCC judgment paragraph 38, Ex parte North Central and South Central Metropolitan Substructure Councels of the Durban Metropolitan area & Another 1998(1) SA 78 LCC; Dr W de Plessis 1987 THRHR 292- “‘n Regsteoretiese ondersoek na die begrip ‘openbare belang’”. 7 9.4 It is not in the public interest to have trials on issues without any realistic prospects of success6. Background to the Application [10] It is common cause that the area within the Applicant’s jurisdiction is extremely rich in natural resources, has some of the most valuable agricultural land in the Republic and consists of intensive and large scale farming activities which make a significant contribution to the economy of the region and the agricultural requirements of the whole country. Fresh produce is distributed to all major centres in the country as well as the export market. In addition the area makes a large contribution to the tourism industry in the region and in the Republic because of its unique location adjacent to the Kruger National Park. Within the urban edges of the four towns are built up areas. [11] The four towns have a large number of tourist facilities catering to the national and international market. The N4 Highway to Mozambique runs through the towns of Malelane, Hectorspruit and Komatipoort. It is an extremely important and busy route. Marloth Park is a holiday town. The four towns contain the necessary infrastructure to sustain these important activities.

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