In the land claims court of south africa

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Held at RANDBURG on 29 January 2003 CASE NUMBER: 33/01

Before: GILDENHUYS J and MOLOTO J
Decided on: 14 February 2003
In the case between:
THE TRANSVAAL AGRICULTURAL UNION Applicant
and
THE MINISTER OF AGRICULTURE AND LAND AFFAIRS First Respondent

THE CHIEF LAND CLAIMS COMMISSIONER, N.O. Second Respondent

THE REGIONAL LAND CLAIMS COMMISSIONER FOR

MPUMALANGA AND NORTHERN (NOW “LIMPOPO’)

PROVINCE N.O. Third Respondent

THE REGIONAL LAND CLAIMS COMMISSIONER FOR

THE PROVINCE OF NORTH WEST AND GAUTENG Fourth Respondent
THE MINISTER OF FINANCE, N.O. Fifth Respondent

THE AUDITOR GENERAL OF THE REPUBLIC OF

SOUTH AFRICA, N.O. Sixth Respondent
NATIONAL LAND COMMITTEE Amicus Curiae
___________________________________________________________________________

JUDGMENT

___________________________________________________________________________

GILDENHUYS J

[1] In this matter, we dismissed with costs an application by the applicant for certain declaratory orders against the respondents. The applicant elected to apply for leave to appeal against the dismissal. The application for leave to appeal was delivered out of time. The applicant applied for condonation, and for an order that the time period for the delivery of the application for leave to appeal be extended up to the date on which it was actually delivered.

[2] Before dealing with the condonation application, I will consider the merits of the application for leave to appeal. The counsel who represented the applicant in the application for leave to appeal are not the same counsel as those who represented the applicant at the original hearing. Several new points, which were not raised at the original hearing, were put to us during argument in the application for leave to appeal. Although a court of appeal will not necessarily allow a new point to be introduced on appeal,¹ it might do so, and the prospects of success of a new point must be taken into account by us when considering whether or not to grant leave to appeal.
[3] The declaratory orders prayed for concern certain functions of Land Claims Commissioners under the Restitution of Land Rights Act² (the “Restitution Act”). According to the heads of argument filed by the counsel who originally appeared for the applicant, the applicant sought the orders under section 22(1)(cA) of the Restitution Act. Section 22(1)(cA) allows this Court “to grant a declaratry order on a question of law”.
[4] Mr Olivier, who appeared with Mr Danzfuss for the applicant, stated that the applicant will, on appeal, rely not only on section 22(1)(cA) of the Restitution Act but also on section 38 of the Constitution³ for its locus standi to apply for the declaratory orders. He submitted that we erred by not taking section 38 into account.
[5] Section 38 of the Constitution contains an extensive list of persons who have the right to approach a competent Court for relief where a right in the Bill of Rights has been infringed or threatened. The persons are:
“(a) anyone acting in their own interest;

2. 
   anyone acting on behalf of another person who cannot act in their own name;
   
3. 
   anyone acting as a member of, or in the interest of, a group or class of persons;
   
4. 
   anyone acting in the public interest; and
   
5. 
   an association acting in the interest of its members.”
   

The applicant in this matter is an association, and it brought the application in the interest of its members. There could be some doubt, however, as to whether the relief applied for relates to an infringement of or a threat to a right in the Bill of Rights.

[6] It has been held that litigants who rely on a constitutional right must do so expressly in their papers. See for example de Villiers en ‘n Ander v Stadsraad van Mamelodi en ‘n Ander;⁴ Maluleke v MEC Health and Welfare, Northern Province;⁵ National Director of Public Prosecutions v Phillips;⁶ Manqele v Durban Transitional Metropolitan Council.⁷ No reliance was placed on a specific constitutional right during the original hearing of the present case. The above decisions will, in my opinion, not prevent a court of appeal from allowing a belated reliance on a specific constitutional right, if the interests of justice so require.
[7] One of the reasons why we dismissed the application was that, in our view, the applicant had no legal interest in the relief sought, and lacked the necessary locus standi to bring the application. This accords with the narrow content given to standing under the common law. This narrow content is not a feature of standing under section 38 of the Constitution.⁸ Section 38 must be interpreted generously and expansively, to ensure that rights in the Constitution are fully protected.⁹
[8] The relief claimed by the applicant is of considerable importance to those members of the applicant who face land restitution claims against their farms. If the Supreme Court of Appeal treats the relief claimed as a constitutional matter and allows the applicant to rely on section 38 of the Constitution,¹⁰ albeit for the first time on appeal, the ordinary rules of standing might be relaxed¹¹ and the reasons why we dismissed the application might no longer apply.
[9] Mr Olivier submitted that the requirement in my judgment that a declaratory order will only be given if the order would be binding on interested parties on the basis of res judicata, is wrong. He relied on Ex parte Prokureur-Generaal, Transvaal,¹² a case which I found to have been incorrectly decided.¹³ In the original hearing before us, no reliance was placed on that case. Mr Olivier pointed out that Ex parte Prokureur-Generaal, Transvaal was referred to by Chaskalson P in Ferreira v Levin NO and Others,¹⁴ without any indication that it could be wrong. The reference to Ex parte Prokureur-Generaal, Transvaal occurs in a footnote, inserted in support of the Court’s finding that all the requirements ordinarily set by a court for the exercise of its jurisdiction to issue a declaratory order, were present in that case. It did not deal with the question of whether a declaratory order can only be given if there are sufficient interested parties on whom the order would be binding.
[10] Mr Olivier submitted that, should this Court give a declaratory order on specific powers and duties of Land Claims Commissioners, such an order would be res judicata against the Commissioners. That, according to Mr Olivier, would be sufficient to establish jurisdiction. In my view, the order also has to be res judicata against other persons who have a legal interest in the particular powers and duties, and those persons should be parties in the action, or at least have associated themselves with the action.¹⁵ I might be wrong in this view, and a different Court might adopt the contrary approach followed in Ex parte Prokureur-Generaal, Transvaal.

[11] I accept Mr Olivier’s submission that an existing dispute is not necessary before a declaratory order can be granted. An uncertainty will be sufficient. It was, however, held by Didcott J in JT Publishing (Pty) Ltd v Minister of Safety and Security ¹⁶ that:

“. . . a declaratory order is a discretionary remedy, in the sense that the claim lodged by an interested party for such an order does not in itself oblige the Court handling the matter to respond to the question which it poses, even when that looks like being capable of a ready answer. A corollary is the judicial policy governing the discretion thus vested in the Courts, a well-established and uniformly observed policy which directs them not to exercise it in favour of deciding points that are merely abstract, academic or hypothetical ones.”¹⁷
Didcott J adopted this approach also for constitutional matters, but stated that exceptions can be made in special circumstances.¹⁸
[12] I indicated in my judgment¹⁹ that, even if the applicant had the requisite locus standi to apply for the declaratory orders, we would have exercised our discretion against granting such orders. To the extent that the orders sought are case-specific, the parties involved in the cases are not before the Court. To the extent that they are worded in general terms, they are “merely abstract” or even “hypothetical”. To the extent that they deal with past events, they are “academic”. The wording of some of the orders which the applicant seeks underline these difficulties. For example, the applicants asked for an order that landowners are entitled to “participate” in the decision-making process of whether or not a restitution claim ought to be accepted by a regional land claims commissioner and gazetted. As I have pointed out in my judgment,²⁰ it is not clear what is meant by “participate”. Mr Olivier conceded that the choice of that term is unfortunate. He suggested that some better formulation could be devised on appeal, under the claim for “alternative relief”.

[13] As was pointed out by Didcott J in the JT Publishing case,²¹ the usual requirements for declaratory orders will not necessarily apply in constitutional matters. Exceptions can be made. It is possible, if the Supreme Court of Appeal treats the relief claimed as a constitutional matter involving rights in the Constitution,²² that it might relax some of the restrictions and excercise its discretion in favour of granting some or all of the declaratory orders prayed for.

[14] It follows from what is stated above that we should grant leave to appeal. I ought to add, however, that I consider it unlikely that another court will differ from the conclusion to which I have come in my judgment (viz that the application must be dismissed) if the ordinary common law rules relating to declaratory orders are applied and if the new points now raised for the first time are not taken into account.
[15] I now come to the application for condonation and for extention of time within which to appeal. The delay in lodging the appeal was properly explained, and we are satisfied that the applicant at all relevant times had the intention to lodge and prosecute the appeal. Bearing in mind our view that there are merits in the application for leave to appeal, the condonation application must be granted.
[16] In conclusion, I must say something about an abortive sitting of this Court when convened to hear the condonation application and the application for leave to appeal on 10 December 2002. The registrar notified the parties by facsimile transmission of the allocated hearing date. The registrar’s facsimile transmission slip indicated that it was successfully transmitted. The electronic printouts of the applicant’s facsimile machine indicated that the notification was never received. The attorneys acting for the respondents and for the amicus curiae received their notices, and were present in Court. Due to the absence of the applicant, the hearing had to be postponed. Costs were reserved. Because the applicant’s absence was due to the non-receipt of the notification sent out by the registrar, I will make no cost order in respect of the hearing on 10 December 2002.

[17] For the reasons set out above, it is ordered as follows:

(a) Leave to appeal to the Supreme Court of Appeal against the judgment and order made on 18 October 2002 is hereby granted;
(b) Costs of the application for leave to appeal (excluding the costs of the hearing on 10 December 2002) will be costs in the appeal, but must be paid by the applicant if the appeal is not prosecuted; and
(c) The applicant must pay the costs of the application for condonation and for extending the time period for delivering the application for leave to appeal, excluding any costs incurred by the respondents in opposing the application.

_______________________

JUDGE A GILDENHUYS
I agree

_____________________

JUDGE JBM MOLOTO

For the applicant:

Adv W.H. Olivier SC with him Adv FWA Danzfuss instructed by Phillip du Toit Incorporated, Centurion.
For the respondents:

Adv B Spilg SC with him Adv G Shakoane instructed by State Attorney, Johannesburg.
Amicus Curiae:

Adv M Hathorn instructed by Legal Resources Centre, Johannesburg.

1 Donelly v Barclays National Bank Ltd 1990 (1) SA 375 (W), at 380H – 381A.

2 Act 22 of 1994, as amended.

3 Act 108 of 1996.

4 1995 (4) SA 347 (T) at 354 B-D.

5 1999 (4) SA 367 (T) at 373I-J.

6 2002 (4) SA 60 (W) at para [35] and [37].

7 2002 (6) SA 423 (D) at 427G-I.

8 Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002 (6) SA 66 (T) at para [13].

9 See the majority judgment in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at para [165].

10 Compare Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC) at para [24] – [31].

11 See Beukes v Krugersdorp Tansitional Local Council and Another 1996 (3) SA 467 (W) at 474 H and New National Party of South Africa v Government of the RSA 1999 (3) SA 191 (CC) at 232 H – 233 A.

12 1978 (4) SA 15 (T).

13 Para [14] of my judgment.

14 N9 above at para [164], footnote 7.

15 My opinion that they must have associated themselves with the action finds support in the case of Highveldridge Residents Concerned Party v Highveldridge TLC, n8 above at 83A–C, but may run contrary to views expressed in the Beukes judgment, n11 above at 474G-H.

16 1997 (3) SA 514 (CC).

17 At para [15].

18 At para [15].

19 Para [17] of my judgment.

20 At para [21] of my judgment.

21 At n16 above.

22 Particularly the right to restitution in section 25(7) and the right to just administrative action in section 33.