SCA overturns R92m land restitution settlement offer

Land restitution claimants who were close to receiving R92m in compensation, had their offer set partially aside after red flags were raised with the original claim from 1998.

The Supreme Court of Appeal (SCA) overturned a land claims court judgment in the claimants’ favour.

Background

Restitution of land is part of the SA land reform project, designed to restore land to previously dispossessed groups.

Bongani Ndumo lodged a claim for land restitution in KwaZulu-Natal in 1988. The Commission on Restitution of Land Rights, which regulates all claims in SA recently estimated it would take 30 years and R170bn to settle the current backlogs of claims.

To be able claim land, a claimant must show that they were, for example, unable to own land a result of past discriminatory laws. Following the lodgement of a claim, this kickstarts a range of complicated processes overseen by governmental departments and officials.  

Ndumo, in lodging the claim, said in recent court papers that he represented the Emdwebu Community in KwaZulu-Natal, which has 289 members. It was only in 2019, almost 20 years later, that the KwaZulu-Natal land claims commissioner’s office signed off on the claim as a community claim.

In 2020, the commission made an unsigned settlement offer of R92m in total, which included monetary compensation for each of the 289 members. The community signed the offer. The commission had yet to sign to make it a binding document. It didn’t sign because an internal audit raised red flags with the claim after the offer had already been sent to the Emdwebu Community.

The audit revealed that Ndumo’s original 1998 claim did not make any reference to it being a community claim. It was lodged in as a family claim after Ndumo’s father was forcibly removed by apartheid officials.

Noting the “oversight” on the commission’s part, the chief commissioner told Ndumo that, by law, the commission was bound to what the original claim form said. The commission could not substitute the claim for Ndumo’s family with an entire community, because that is not Ndumo’s original claim.

The commission then took this matter to the Land Claims Court to adjudicate the issue.

Ndumo urgently asked the Land Claims Court instead to make an order compelling the Commission to sign the offer, anyway.

In 2021, the Land Claims Court ruled in Ndumo’s favour, noting there were plenty of times government officials dealt with Ndumo as the head of a community, not family. The Land Claims Court also said no one was prejudiced by dealing with the claim in this manner and Ndumo had complied with all the processes.

The government officials, particularly the commission, appealed to the SCA.

In the SCA

Writing for a unanimous court, SCA judge Selewe Mothle agreed with the Commission on Restitution of Land Rights and overturned the Land Claims Court order. The court “erred”, he said, in its findings as a result of “inherent contradictions” in Ndumo’s case.

After noting the various phases that land restitution claims must go through, Mothle noted that Ndumo’s claim “was not dealt with in accordance with the sequence of [these] phases”. He noted the “inordinate delay” of 22 years.

Mothle, citing the original 1998 claim, notes Ndumo made it in his capacity as the son of the late Nokhenke Ndumo, his father, who lost the land through apartheid forced removal. He was not acting as the leader of any community.

Mothle also pointed to documents showing that Ndumo had the idea to change the claim to a community one only in 2013. This “contradicts”, says Mothle, that the basis for the claim was as his father’s forced removal, “not the community”.

Noting these “inherent contradictions”, the land claims court “erred” in finding in Ndumo’s favour. Mothle noted Ndumo’s idea to give land to a wider community as “benevolent”, but this “was not authorised by [law]”. The land claims court could not, therefore, order the commission to sign off on unlawful conduct.

As a result, the commission’s appeal against the land claims court succeeded. Given the nature of proceedings, there was no order as to costs.

moosat@businesslive.co.za