July to September 2015 - Amazon Web Servicespmg-assets.s3-website-eu-west-1.amazonaws.com/160302Q2_2015_… · Livestock dispute – 5% Burial rights dispute – 2% Other – 10%

July to September 2015

960 55

As at 30 September 2015 1 July – 30 Sept2015

African – 62%

Coloured – 12%

Indian – 16%

White – 10%

Female – 29%

Male – 71%

49%

12%

R77, 286,023

39%

R19, 009,563

R62, 050,748

Threatened eviction – 30%

Illegal eviction – 6%

Eviction – 47%

Livestock dispute – 5%

Burial rights dispute – 2%

Other – 10%

NEW

MATTERS CLOSED

MATTERS PENDING TOTALS

Land Tenure 41 110 687

Mediation 2 3 39

Restitution 9 5 170

CPIs 3 8 64

LAND TENURE

687 41

Pending Matters as at 30 September 2015

1 July – 30 September 2015

88%

79%

85%

83%

85%

92%

Burial Rights Eviction IllegalEviction

LivestockDispute

Other ThreatenedEviction

199

450

375

261 276

168

201

153

2008 2009 2010 2011 2012 2013 2014 2015

08 09 10 11 12 13 14 15

LAND RIGHTS MANAGEMENT FACIL ITY

QUARTERLY REPORT | 1 Ju l y to 30 Sep tember 2015 Page 1 of 32

TABLE OF CONTENTS

GLOSSARY OF TERMS ........................................................................................................................... 2

INTRODUCTION ....................................................................................................................................... 3

1. Background ......................................................................................................................................... 3

2. Objectives of the LRMF ....................................................................................................................... 3

3. Key deliverables .................................................................................................................................. 3

4. Project focus areas .............................................................................................................................. 4

KEY DEVELOPMENTS............................................................................................................................. 4

5. Provincial reviews ................................................................................................................................ 4

6. DRDLR / CTH meetings ...................................................................................................................... 5

7. Education, training and skills transfer ................................................................................................. 5

CASE TRENDS AND ANALYSIS ............................................................................................................. 8

8. LAND TENURE LEGAL ...................................................................................................................... 9

8.1. Land tenure case status ...................................................................................................................... 9

8.2. Case categories................................................................................................................................. 10

8.3. Forums .............................................................................................................................................. 11

8.4. Municipal hot spots ............................................................................................................................ 12

8.5. Case outcomes and impact ............................................................................................................... 13

8.6. Other key developments ................................................................................................................... 14

8.7. Closure of matters ............................................................................................................................. 15

9. MEDIATION ....................................................................................................................................... 15

9.1 Mediation case status (Restitution, land tenure and CPIs) ............................................................... 15

9.2 Case categories................................................................................................................................. 17

10. Communal Property Institutions ........................................................................................................ 17

10.1. CPAs ....................................................................................................................................... 18

10.1.1. Categories of CPA matters ..................................................................................................... 18

10.1.2. New referrals ........................................................................................................................... 19

10.1.3. Regularised Matters ................................................................................................................ 19

10.1.4. Closed matters ........................................................................................................................ 19

10.1.5. CPA beneficiaries .................................................................................................................... 19

10.1.6. Bi-monthly meeting with DRDLR ............................................................................................ 20

10.1.7. Meeting with panellists ............................................................................................................ 21

10.1.8. CPA provincial review meetings ............................................................................................. 22

10.1.9. CPA training ............................................................................................................................ 23

10.1.10. Key priorities for next quarter .................................................................................................. 23



10.2 Recent relevant case law ........................................................................................................ 23

10.3 TRUSTS .................................................................................................................................. 24

10.3.1 Significant trust matters ........................................................................................................... 25

11 RESTITUTION ................................................................................................................................... 26

11.2 Restitution referral volume and distribution ............................................................................. 26

11.3 Case forums ............................................................................................................................ 26

11.4 Significant case outcomes ...................................................................................................... 27

11.5 Recent relevant case law ........................................................................................................ 27

11.6 Key developments ................................................................................................................... 29

11.7 Quarterly restitution meeting ................................................................................................... 29

11.8 Key priorities for the next quarter ............................................................................................ 29

PROJECT FINANCES .............................................................................................................................. 30

12 Legal and mediation panel funds ...................................................................................................... 30

13 Monthly breakdown of funds disbursed ............................................................................................. 30

14 Financial trends and analysis ............................................................................................................ 31

15 Fund expenditure projection .............................................................................................................. 31

16 Contingent liability assessment ......................................................................................................... 32

GLOSSARY OF TERMS

Commission Commission on Restitution of Land Rights

CPA Communal property association

CPA Act Communal Property Associations Act 28 of 1996

CPI Communal property institution

DRDLR Department of Rural Development and Land Reform

ESTA Extension of Security of Tenure Act 62 of 1997

LRMF Land Rights Management Facility

LTA Land Reform (Labour Tenants) Act 3 of 1996

MIS Management information system

RLRA Restitution of Land Rights Act 22 of 1994



INTRODUCTION

1. Background

Cheadle Thompson & Haysom Inc. (CTH) was appointed by the Department of Rural Development and

Land Reform (the Department) under Bid No RDLR-0038 (2012/2013) to manage the Land Rights

Management Facility (LRMF) established to provide legal and mediation services to labour tenants, farm

dwellers, communal property institutions, restitution claimants and other land reform beneficiaries in 9

provinces for a period of three years. The contract period is from January 2013 to December 2015. This

report covers the period July to September 2015.

The LRMF was initially established by the DRDLR in 2008, motivated by the need to remedy evictions,

threats of eviction and human rights abuses in rural areas. The establishment, management and co-

ordination of the LRMF represented an innovative and concrete strategy by the Department to improve

access to justice in rural areas. The key rationale of the Department was to provide dedicated state-

funded panels of specialist land rights lawyers and mediators in order to provide legal and mediation

services to poor, marginalised and indigent people in rural farming areas, to support land tenure reform

and to contribute to stabilising and improving social relations in rural farming communities.

2. Objectives of the LRMF

The objectives of the LRMF are:

2.1 to facilitate the provision of specialised legal and mediation services to individuals and

communities who are faced with the violation of their rights and livelihoods;

2.2 to regularise and support dysfunctional CPIs;

2.3 to administer legal and mediation assistance approved by the Chief Land Claims

Commissioner in terms of the Restitution of Land Rights Act 22 of 1994;

2.4 to build a network of human rights lawyers and mediators who specialise in the field of land

rights; and

2.5 to promote the rule of law and strengthen democracy.

3. Key deliverables

Key deliverables of the project include:

3.1 Maintaining and updating the panels of lawyers and mediators;

3.2 Receiving legal and mediation case referrals from the Department;

3.3 Receiving legal representation and mediation matter referrals contemplated in sections 9, 13

and 29(4) of the Restitution of Land Rights Act from the Chief Land Claims Commissioner;

3.4 Referring cases and matters to members of the legal and mediation panels on the instructions

of the Department;

3.5 Monitoring the progress of cases referred, the performance of panel members and the

outcome of cases in relation to the objective of providing adequate legal and mediation

services to indigent land reform beneficiaries;

3.6 Administering the panel funds provided by the Department for this purpose and assessing and

paying the accounts of members of the panels on behalf of the Department;



3.7 Designing and conducting an appropriate training programme to educate panel members to

improve their skills and capacity and an appropriate skills transfer programme for officials of

the Department;

3.8 Providing legal opinions as requested by the Department or Commission on matters relating to

the LRMF.

4. Project focus areas

KEY DEVELOPMENTS

5. Provincial reviews

CTH held a series of provincial review meetings during this quarter. The review meetings provide a

useful platform for panellists and officials to discuss matters, raise areas of concern and share

experiences and best practices.

Provincial reviews

LSP

Free State

provincial

review

The Free State provincial review meeting took place in Bloemfontein on

14 July 2015. 6 panellists and 15 officials attended the meeting.

Eastern Cape

provincial

review

The Eastern Cape provincial review meeting took place at the DRDLR

office in East London on 24 July 2015. 5 panellists and 11 officials

attended the review meeting.

Mpumalanga

provincial

review

The Mpumalanga provincial review meeting took place at the RLCC

boardroom in Witbank on 3 September 2015. 9 panellists and 9 officials


Gauteng

provincial

review

The Gauteng provincial review meeting took place at the Protea Hotel, OR

Tambo Airport on 18 September 2015. 8 panellists and 12 officials


CPIs

Kwazulu Natal

provincial

review

The Kwazulu Natal review meeting was held in Durban on 30 September

and 1 October 2015. On 30 September there were 9 attendees and on 1

October there were 10 attendees including the panellists, the DRDLR

officials and CTH.

Project focus areas

4.1 Land tenure

The core work of the LRMF involves the provision of legal and mediation services to

vulnerable farm workers and farm dwellers, providing critical access to justice in order to

protect and promote their land tenure security.

4.2 Communal property institutions (CPIs)

This focus area concentrates on the provision of assistance to dysfunctional communal

property institutions (communal property associations and land reform trusts) to become

legally compliant and sustainable.

4.3 Restitution

The restitution focus area is directed at administering legal and mediation services

approved by the Chief Land Claims Commissioner regarding restitution of land rights.



CPIs

North West

provincial

review

The North West provincial review meeting was held in Mahikeng on 17

September 2015. There were 18 attendees including panelists, the

DRDLR officials and CTH.

Limpopo and

Gauteng

provincial

review

The Limpopo and Gauteng provincial review meetings were combined and

held in Polokwane on 9 and 10 September 2015. On 9 September there

were 11 attendees and on 10 September there were 13 attendees

including the panellists, the DRDLR officials and CTH.

Eastern Cape

provincial

review

The Eastern Cape provincial review meeting was held in East London on

25 August 2015. There were 14 attendees including panelists, the DRDLR

officials and CTH.

Western Cape

provincial

review

The Western Cape provincial review meeting was held in Cape Town on

11 and 12 August 2015. On 11 August 2015 there were 6 attendees and

on 12 August 2015 there were 8 attendees including the panellists, the

DRDLR officials and CTH.

6. DRDLR / CTH meetings

DRDLR / CTH meetings

Restitution Restitution quarterly

meeting

The third quarterly restitution meeting was to be held on 17

September 2015 but was postponed to 30 September 2015. The

fourth quarterly restitution meeting is scheduled for 3 December

2015.

CPA CPA bi-monthly

meeting

The CPA bi-monthly meeting between CTH and the DRDLR was

held on 16 July 2015. The meeting discussed CPA progress,

specific CPA matters, case trends and analysis, and strategic

issues related to CPA management, agreement on the closure of

provisional CPAs, categories of CPA matters as well as pending

matters that needed further instructions.

Executive

Committee

Quarterly Exco

meeting

The quarterly EXCO meeting was held on 14 August 2015 at the

DRDLR offices in Pretoria. CTH presented the key developments

from the previous quarter, case trends and analysis, project

finances and strategic issues regarding the LRMF.

7. Education, training and skills transfer

Two training courses were held this quarter. The training courses were arranged by CTH in conjunction

with the Law Society of South Africa (LSSA) LEAD programme. Retired Judge Ismail Hussain, who for

the past 10 years served as a Judge of the High Court, Judge of the Competition Appeal Court and

Judge of the Court of Military Appeals, was the key presenter.

7.1 ESTA and labour tenancy training

ESTA and labour tenancy training for DRDLR staff took place on 7 September 2015 at the Aviator

Airport Hotel, Kempton Park. The training was attended by 49 DRDLR officials. A summary of the topics

dealt with at the ESTA and labour tenancy training is set out below:

The legislative framework

Interpretation of legislation

The Restitution of Land Rights Act (RLRA)

The Commission on Restitution of Land Rights

The Land Reform (Labour Tenants) Act (LTA)



The Extension of Security of Tenure Act (ESTA)

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)

Dispute resolution

Case management

Recent developments

Dispute resolution techniques

The pre-trial conference and case conferences

Rules of the Land Claims Court

Urgent applications

Interdicts

Each participant was issued with a legal education and development certificate of attendance for the

course. The certificates were jointly issued by the Law Society of South Africa (LSSA) LEAD

programme and CTH.

Based on the evaluation forms completed by participants, the training achieved its objectives and was a

success with an overall course rating of 4.8 (out of a possible 5). The outcome of participant evaluation

is set out below:

Figure 1: ESTA and labour tenancy training evaluation

7.2 CPA training

CPA training for DRDLR staff took place from 8 to 10 July 2015 at the Birchwood Hotel in Boksburg. The

training was attended by 62 officials from the Commission for Land Restitution and the DRDLR CPA unit

and relevant CTH staff.

The course dealt with the following topics:

The CPA Act;

The CPA Amendment Bill;

Dispute resolution techniques;

Drafting of CPA constitutions; and

Report writing skills.

4.9 4.9 4.9 4.8 5.0

4.8

1

2

3

4

5

Information presented was relevant and useful - 4.9

Presenter captivated the audience - 4.9

Presenter handled the questions with good responses and confidence - 4.9

Course material was clear and well written - 4.8

Course met my expectations - 5

Overall course rating - 4.8

Poor

Average

Below Average

Good

Excellent



The training was designed to provide a general overview of the CPA legal framework, drafting CPA

constitutions and handling CPA compliance issues. Discussion and training activities included dispute

resolution and report writing techniques. Participants were very responsive to the training content and

process.

Each participant was issued with a legal education and development certificate of attendance for the 3

day Communal Property Associations course. The certificates were jointly issued by the Law Society of

South Africa (LSSA) LEAD programme and CTH.

Based on the evaluation forms completed by participants, the training achieved its objectives and was a

success with an overall course rating of 4, 7 (out of a possible 5). The outcome of participant evaluation

is set out below:

Figure 2: CPA training evaluation

4.8 4.9 4.8 4.8 4.8 4.7

1

2

3

4

5

Information presented was relevant and useful - 4.8

Presenter captivated the audience - 4.9

Presenter handled the questions with good responses and confidence - 4.8

Course material was clear and well written - 4.8

Course met my expectations - 4.8

Overall course rating - 4.7

Poor

Average

Below Average

Good

Excellent



CASE TRENDS AND ANALYSIS

There are currently 960 pending matters across all focus areas.

Figure 3: LRMF case distribution by focus area and province

During the quarter 55 new referrals were received across all focus areas.

Figure 4: New LRMF referrals by province



During the quarter 126 matters were finalised across all focus areas.

Figure 5: LRMF finalised matters by focus area and province

8. LAND TENURE LEGAL

8.1. Land tenure case status

There are currently 687 pending legal service matters administered under the LRMF. 41 new cases

were referred to the LRMF during the period July to September 2015. We are in the process of

closing 110 matters. 11 matters were re-opened over the period, where further instructions were

given.



Figure 6: Land tenure case distribution - pending matters

8.2. Case categories

Figure 7: Land tenure case categories – pending matters

Burial Rights Dispute

2%

Evictions 50%

Illegal Eviction 3%

Labour Tenancy Claim 25%

Livestock Dispute 6%

Other 5%

Threatened Eviction

9%



The provincial distribution of the 687 pending matters per case category is presented below.

Figure 8: Land tenure case categories – pending matters per province

8.3. Forums

The forums in which LRMF legal service matters are currently located are set out below.

Figure 9: Land tenure case forums

3 6

67

1

319

239

52

ConstitutionalCourt

Supreme Court ofAppeal

High Court Labour Court Land ClaimsCourt

Magistrates’ Court

No proceedingslodged yet



Figure 10: Land tenure case forums per province

8.4. Municipal hot spots

We continue to analyse trends within the key municipal dispute hotspots. The map below indicates a

colour coded distribution of pending tenure security matters per municipality in municipalities with 10

or more pending matters.

Figure 11: Municipal hotspots



The municipalities with 10 or more pending land tenure disputes are set out below:

Province Municipality Land Tenure

Kwazulu-Natal Newcastle Local Municipality

58

Free State Dihlabeng Local Municipality

51

Kwazulu-Natal Emadlangeni Local Municipality

40

Kwazulu-Natal uMngeni Local Municipality

28

Western Cape Breede Valley Local Municipality ↓ 24

Kwazulu-Natal Emnambithi/Ladysmith Local Municipality

22

Gauteng Mogale City Local Municipality ↓ 20

Gauteng City of Tshwane Metropolitan Municipality

19

Mpumalanga Mkhondo Local Municipality

19

Mpumalanga Emakhazeni Local Municipality

17

Western Cape Langeberg Local Municipality

17

Kwazulu-Natal Okhahlamba Local Municipality

17

Kwazulu-Natal Abaqulusi Local Municipality

15

Western Cape Drakenstein Local Municipality

15

Mpumalanga Lekwa Local Municipality

14

Mpumalanga Steve Tshwete Local Municipality

13

Kwazulu-Natal eDumbe Local Municipality

12

Mpumalanga Pixley ka Seme Local Municipality

12

Western Cape Cederberg Local Municipality

10

Western Cape City of Cape Town Metropolitan Municipality

10

Kwazulu-Natal Endumeni Local Municipality

10

Free State Maluti a Phofung Local Municipality

10

* Municipalities that feature for the first time in the hotspot list;

↑ Municipalities that have moved up the list with more pending tenure security matters in this

quarter as compared to the previous quarter;

↓ Municipalities that have moved down the list with less pending tenure security matters in this

quarter as compared to the previous quarter.

8.5. Case outcomes and impact

Set out below is an illustrative selection of case outcomes relating to land tenure matters finalised

during the period July to September 2015.

SOME SIGNIFICANT MATTERS

LSP 11060 -

Universal Islamic

& Cultural Trust /

Anwar Abdul

Eviction The trustees instituted eviction proceedings against the

Respondent following dismissal from employment. The

Respondent refused to vacate the farm, threatened

trustees, rented out the property of the trust and ran his

private business on the farm. The LCC found that there

was a breakdown in the relationship between the parties

and confirmed the eviction. The Court granted the

Respondent 6 months to vacate the farm.



LSP 50547 - Jan

Adriaan Maritz /

Piet Moeleso &

Dickson Moeleso

Eviction and

tacit consent

The farm owner instituted eviction proceedings against the

occupiers who had lived on the farm for 11 years after their

father’s death. On automatic review, in respect of the first

Respondent, the Court set aside the eviction based on the

fact that the first Respondent continued to reside on the

land for 11 years after his father’s death. The Court relied

on the provisions of sections 3(4) & (5) of ESTA and

concluded that there was consent to stay. In respect of the

Second Respondent the Court requested further

submissions on the actual dates on which the occupiers

started staying on the farm and for how long.

LSP 50353 -

Joostenberg V

Brummer

Eviction of

long term

occupiers

The client is a long term occupier who was evicted by an

order granted in the Montague Magistrate’s Court. The

matter went on appeal to the LCC. The grounds for appeal

were that the farm owner failed to comply with the

provisions of sections (92) (a) read with section (894) of the

Extension of Security of Tenure Act. Section 8 (40) of

ESTA provides that an occupier who is above the age of 60

years and who had stayed on the farm for longer than 10

years may only be evicted if he has committed a material

breach. Such an eviction may only happen if there is

proper notice in terms of section 9. The appeal was upheld

by the LCC. The parties entered into settlement

negotiations in terms of which the farm owner paid the

occupiers R95, 000 to vacate the farm.

LSP50854 -Status

Trading (Pty) LTD

v Geelbooi

Sibanyoni and 113

others

Eviction for

material

breach

The farm owner instituted eviction proceedings against the

occupiers following various allegations of material breach in

that the occupiers amongst others: grazed on the farm

owner’s camp, opened the fence, kept livestock without

permission and erected an unlawful structure. In dismissing

the application for eviction the judge held that the grounds

for eviction were not serious enough to warrant an eviction.

The Court went on to state that in order for an eviction to be

granted for material breach, the improper conduct

complained of must be of such a serious nature that it is not

practically possible to repair the relationship and to expect

residency to continue.

8.6. Other key developments

8.6.1. ESTA and labour tenancy training

ESTA and labour tenancy training for DRDLR staff took place on 7 September 2015 at the Aviator

Airport Hotel, Kempton Park. The training was attended by 49 DRDLR officials. The course was

arranged by CTH in conjunction with the Law Society of South Africa (LSSA) LEAD programme.

Based on the evaluation forms completed by participants the overall course was rated as excellent

with a score of 4.8 (out of a possible 5).



8.6.2. Meeting with the DRDLR

The ESTA network meeting was held on 11 June 2015. The next meeting is scheduled to take place

on 8 October 2015.

8.6.3. Provincial reviews

The Land tenure focus area held a series of provincial review meetings this quarter. These review

meetings provide a useful platform for panellists and officials to discuss matters, raise areas of

concern, agree on further conduct of matters and share experiences and best practices.

The Free State provincial review meeting took place in Bloemfontein on 14 July 2015. 6

panellists and 15 officials attended the meeting.

The Eastern Cape provincial review meeting took place at the DRDLR office in East London on

24 July 2015. 5 panellists and 11 officials attended the review meeting.

The Mpumalanga provincial review meeting took place at the RLCC boardroom in Witbank on 3

September 2015. 9 panellists and 9 officials attended the review meeting.

The Gauteng provincial review meeting took place at the Protea Hotel, OR Tambo Airport on 18

September 2015. 8 panellists and 12 officials attended the review meeting.

8.7. Closure of matters

During the last quarter, 110 matters were finalised and are in the process of being closed. The

LRMF is in communication with the Department and panellists regarding these files. These matters

relate to the following case categories:

Figure 12: Land tenure case categories – matters to be closed

9. MEDIATION

9.1 Mediation case status (Restitution, land tenure and CPIs)

As reported in the previous quarter, the LRMF has streamlined reporting on mediation matters to

report per focus area: namely land tenure mediation, restitution mediation and CPI mediation. This

allows for the transition from mediation to litigation or regularization to be easily monitored.

Labour Tenancy Claim

4%

Eviction 60%

Illegal Eviction 11%

Threatened Eviction

7%

Livestock Dispute 9%

Burial Rights Dispute

4%

Other 5%



During the period July to September 2015 there were 2 new land tenure mediation referrals. 3 land

tenure mediations were finalised during this quarter. Confirmation of closure has been sent to the

relevant officials in the provinces. This leaves 39 active mediation matters at the end of September

2015.

New Matters Closed Matters Pending Matters

Land tenure 2 3 29

Restitution 0 0 3

CPI 0 0 7

2 3 39

Figure 13: Mediation case distribution - pending matters



9.2 Case categories

Figure 14: Mediation case categories – pending matters

10. Communal Property Institutions

Figure 15: CPI case distribution

Burial Rights 5

14%

Evictions 5

14%

Illegal Eviction 10

28%

Internal Dispute 7

19%

Livestock Dispute 7

19%

Threatened Eviction

2 6%



10.1. CPAs

There are 60 pending matters as at the end of the quarter. 7 matters were closed during the quarter

and 2 new CPA matters were referred. The provincial distribution of the 60 pending matters is as

follows:

Figure 16: CPA provincial distribution

10.1.1. Categories of CPA matters

We have categorised the 60 pending matters in the graph below:

Figure 17: CPA categories

45

4

2

3

3

3

Regularisation efforts are ongoing

Regularised awaiting POE

Phase 1 - Fact Finding

Land Rights Inquiry

CPA Litigation

Administration / Regularisation



10.1.2. New referrals

2 new CPA referrals were received during July and September 2015.

No File Ref. Province CPA Name Status

1 CPA50161 Kwazulu-Natal Ekuthuleni CPA LRMF assisting with regularisation.

2 CPA50162 Western Cape Slangrivier Commonage Committee

LRMF assisting with regularisation.

10.1.3. Regularised Matters

No File Reference Number

Province Matter Name Category Finalised Date

1 CPA50021 Free State Nikelo Regularised 1/9/2015

2 CPA50107 Mpumalanga Mndawe Regularised 05/09/2015

3 CPA50101 Mpumalanga Morwalemong Regularised 30/7/2015

10.1.4. Closed matters

The 7 finalised matters are categorised below.

Figure 18: CPA closed matters

10.1.5. CPA beneficiaries

Beneficiary data for the CPAs managed by the LRMF was obtained from the DRDLR’s CPA files,

DRDLR officials and LRMF panellists but is not available for all CPAs dealt with by the LRMF under

the pilot project. In this regard, reliable data is not available for 12 CPAs.

Land rights Inquiry 1

Regularization appears not feasible with pre-

recommendation liaison with DRDLR

3

Regularised 3



Figure 19: CPA beneficiaries

10.1.6. Bi-monthly meeting with DRDLR

The bi-monthly CPI meeting between CTH and the DRDLR took place at the national office of the

DRDLR on 16 July 2015.The meeting discussed key developments on CPA matters and trends from

April to June 2015 as well as pending matters that needed further instructions. Key issues

discussed included –

Approval of the Mamre CPA budget to employ part-time staff, to pay stipends to the community

assistants and to pay for an office for five months. The sheer volume of membership requires

additional capacity to assist with the onerous task of communicating with the 7000 member

community in the build up to elections and AGM;

Approval of the advance payment for the Komani San Farm Manager;

Agreement on the closure of provisional CPAs;

The classification of CPA matters as detailed below

Fact finding

Regularisation efforts are ongoing

Regularised

Regularised – awaiting portfolio of evidence

CPA litigation

Land Rights inquiry

Administration/Regularisation

The next bi-monthly meeting was to be held on 27 August 2015 but was cancelled by the DRDLR

due to other pressing engagements. The next meeting is scheduled for 29 October 2015.



10.1.7. Meeting with panellists

Meeting with panellist Mr Georghiades – 16 July 2015

The meeting was held on 16 July 2015 at the DRDLR national office. The DRDLR officials and

the LRMF CPA team were in attendance. The purpose of the meeting was to discuss the

challenges encountered in regularising the Shamile CPA (CPA50049). The meeting resolved

that the panellist and the DRDLR official Mr Sam Nkosi draft a memorandum that will be sent to

the Director-General then to the Minister, setting out the issues in dispute and the process that

will be followed to regularise the matter.

Meeting with Mr Present – 17 July 2015

The meeting was held on 17 July at the CTH offices in Braamfontein. The purpose of the

meeting was to discuss the Klein Cwaing CPA (CPA50110) matter. The CPA alleges

misconduct on the part of that the previous panellist Mr Neville Kgadiete, who is no longer on the

LRMF panel. We are awaiting a full report from the current panellist on the outcome of the

investigation.

Meeting with panellist Mr Mtati - 26 August 2015

The Masikhuphuke Youth 4H (CPA50096) matter had been stagnant with no progress made on

regularisation since the fact finding and mediation was completed. The panellist undertook to

ensure completion within the next 3-4 months.

Meeting in Port Elizabeth / Colchester CPA (CPA50155) - 27 August 2015

DRDLR officials, CTH and the panellist met to discuss the Colchester CPA (CPA50155) and the

fact finding report. Mr. Fife has been appointed to conduct a further 3rd

party fact finding aspect

and to continue with regularization.

Meeting with Rick De Satge - CPA50019 Hazeldean – 4 September 2015

On 4 September 2015 all concerned parties (the panellist, CPA EXCO, CTH, DRDLR officials,

representatives from the city of Cape Town and from uTshani Fund) met. The purpose of the

meeting was to discuss how best to:

ensure individual home and plot owners at Hazeldean receive title deeds to their

property;

enable uTshani Fund to exit and obtain legitimate access to the funds allocated for the

purchase of land;

determine the future ownership and development options for the balance of the land;

resolve the dispute over the Dereck Hanekom Centre by negotiation or legal action.

The meeting agreed that:

the CPA had made it clear that they want vacant occupation of the land;

the CPA wanted to obtain this vacant occupation through negotiations rather than

conflict;

the uTshani Fund is to engage directly with the occupiers from Victoria Mxenge

settlement to try and achieve this;

to hold off on any decision about part funding and transfer until further engagement with

the occupiers;

the parties would report back on progress.



Meeting with Ms Mogale (CPA50154) – 11 September 2015 A meeting took place on 11 September 2015 between the panellist, DRDLR officials and CTH.

The meeting agreed that the panellist will continue as administrator of the Barolong Boora Tlou

Boo Seitshiro CPA (CPA50154) on behalf of the DRDLR. The panellist has since submitted a

more detailed costed workplan for approval.

10.1.8. CPA provincial review meetings

CTH convened a series of provincial review meetings during this quarter. The first day of each

meeting involved the responsible officials and the purpose thereof was to discuss the status of

matters, overall CPA trends, portfolios of evidence, to agree on the further action to be taken on

matters and to discuss challenges. The panellists joined the review on the second day to provide an

update on their matters and to discuss challenges experienced. The memorandum on the limited

mandate was discussed and feedback on the further conduct of matters was provided to panellists.

These review meetings provide a useful opportunity for panellists and officials to share experiences

and explore new approaches to challenges.

Provincial review meeting Limpopo and Gauteng: 9-10 September 2015

The Limpopo and Gauteng provincial review meetings were combined and held in Polokwane

on 9 and 10 September 2015. On 9 September there were 11 attendees and on 10 September

there were 13 attendees including the panellists, the DRDLR officials and CTH.

The meeting originally included the Mpumalanga province but this was changed by the DRDLR

at late notice; and no officials from Mpumalanga attended. The date for the Mpumalanga review

meeting is yet to be confirmed.

Provincial review meeting North West: 17 September 2015

The North West provincial review meeting was held in Mahikeng on 17 September 2015.

There were 18 attendees including panellists, the DRDLR officials and CTH.

Eastern Cape provincial review meeting: 25 August 2015

The Eastern Cape provincial review meeting was held in East London on 25 August 2015.

There were 14 attendees including panellists, the DRDLR officials and CTH.

Western Cape provincial review meeting: 11-12 August 2015

The Western Cape provincial review meeting was held in Cape Town on 11 and 12 August

2015. On 11 August 2015 there were 6 attendees and on 12 August 2015 there were 8

attendees including the panellists, the DRDLR officials and CTH.

Kwazulu Natal provincial review meeting: 30 September and 1 October

The Kwazulu-Natal review meeting was held in Durban on 30 September and 1 October 2015.

On 30 September there were 9 attendees and on 1 October there were 10 attendees including

the panellists, the DRDLR officials and CTH.

The Northern Cape review meeting is scheduled for 21 and 22 October 2015. The date for the

Mpumalanga review meeting is yet to be confirmed.



10.1.9. CPA training

The CPA training for officials took place from 8 to 10 July 2015 2015 at the Birchwood Hotel in

Boksburg. It was attended by 62 officials from the Commission on Land Restitution and the CPA unit

and relevant CTH staff. The course was arranged by CTH in conjunction with the Law Society of

South Africa (LSSA) LEAD programme. Based on the evaluation forms completed by participants the

overall course was rated as excellent with a score of 4.7 (out of 5).

10.1.10. Key priorities for next quarter

The CPA provincial review meeting scheduled for Mpumalanga had to be postponed.

Suggested new dates for the review meeting are to be confirmed.

To follow up with the panellists who have not provided up to date reports on matters or the

required portfolios of evidence.

10.2 Recent relevant case law

Constitutional Court judgment backs democratic control of land in traditional areas Rand Daily Mail News Wire | 20 August 2015 The Constitutional Court on Thursday issued a “resounding and unanimous judgment in support of democratic control of land in traditional areas”‚ the Centre for Law and Society (CLS) said. The court also said that the wishes of traditional leaders should not trump the decisions of a majority of a community. The society said the ruling “establishes important precedents in the approach to community rights in areas controlled by traditional leaders according to distorted versions of customary law codified under colonial and apartheid rule”. Finding in favour of the Bakgatla-Ba-Kgafela Communal Property Association‚ the court set aside a 2014 decision of the Supreme Court of Appeal and ordered immediate implementation of an earlier ruling in the Land Claims Court that the communal property association (CPA) existed and should own and administer land won in a restitution claim. The order will allow the permanent registration of the Bakgatla-Ba-Kgafela Communal Property Association and for it to take ownership of land around Moruleng in North West Province‚ which was returned to the community in 2006 in terms of the Restitution of Land Rights Act. The land was taken from the community under apartheid and part of it was used in the creation of the Pilanesberg National Park. “The ruling undercuts the Department of Rural Development and Land Affairs recent position that communal property associations should be discouraged in areas under the control of traditional leaders‚” the CLS said in a statement. Writing for the whole court‚ Judge Christopher Jafta said: “The creation of an association introduces participatory democracy in the affairs of traditional communities. All members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community.” Calling the Communal Property Association Act “a visionary piece of legislation passed to restore the dignity of traditional communities”‚ Justice Jafta said it ensured‚ amongst other things‚ that unmarried women had equal rights on communal land. “The act seeks to transform customary law and bring it in line with the Constitution. At the same time‚ the act extends the fruits of democracy to traditional communities that are still subject to customary law‚” he wrote.



The Constitutional Court’s endorsement of the Communal Property Association Act in areas under traditional leadership is in contrast to the August 2014 draft of the Department of Rural Development and Land Reform’s Communal Land Tenure Policy which proposes that new CPAs be permitted only in areas where no traditional authorities exist. The policy seeks to limit CPAs to land outside the former Bantustans. Dr Aninka Claassens‚ acting director of the CLS‚ said‚ “The judgment comes down firmly on the side of people having the right to choose the form of land-holding they prefer‚ instead of government dictating 'tribal ownership' as the only option in former Bantustan areas. “The judgment sends a clear message that current policy‚ which proposes to transfer title deeds of land in the former homelands to traditional councils cannot fly constitutionally. The judgment shows that the minister and director-general failed to uphold the law by elevating the interests of traditional leaders over their duty to support the choice of the community and to fulfil the provisions of the CPA Act‚” she said. The Bakgatla-Ba-Kgafela community resolved after their land claim was granted‚ that they would form a CPA to own and administer it. They elected a committee and adopted a constitution for their association. But when they applied to have the CPA registered‚ the local traditional leader‚ Kgosi Nyalala Pilane‚ objected. He wanted the land to be held by a trust‚ which would be controlled by the Bakgatla-Ba-Kgalefa Traditional Council. When the Bakgatla-Ba-Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012‚ the traditional council argued that the CPA no longer existed because its provisional registration in 2008 had never been confirmed and made permanent. The Land Claims Court backed the CPA‚ but the Supreme Court of Appeal overturned the ruling on the grounds that the provisional CPA had never been made permanent and declared the land effectively without ownership. The Constitutional Court lambasted the department for failing to help the community to register the CPA properly and to gain control over its land. “It is clear from the scheme of the act that once a traditional community expresses a desire to form an association‚ the director-general must do everything permissible to assist the community to accomplish its goal. She is required to make certain that every obstacle in the way of registration of an association is removed‚” Justice Jafta wrote. The court said the department did not help the community as required‚ but “adopted a wholly inappropriate response to the community’s legitimate request for registration”. The court said the wishes of traditional leaders should not trump the decisions of a majority of a community. The court rejected a suggestion by the Traditional Council and the government that the case should be submitted for mediation: “The fact that a traditional leader or some members of the traditional community prefer a different entity to the association is not a justification for withholding registration and imposing mediation on parties.”

10.3 TRUSTS

During the period July to September 2015 there was 1 new Trust referral. 1 matter was finalised

during this quarter. Confirmation of closure has been sent to the relevant official in the province.

This leaves 4 active Trust matters at the end of September 2015.



Figure 20: Provincial distribution of Trusts

10.3.1 Significant trust matters

Mhlongo Family & Former Doornkloof Farm Occupiers / Land Affairs, Mpofana Municipality, Neighboring Farmers & Occupiers MSPM0188 The matter was referred to a panellist to conduct a scoping investigation on the contents of a

letter written to the Public Protector on 4 September 2014. In essence the writer made

allegations of mismanagement of a claim by the DRDLR and complained of the subsequent

involvement of the Mpofana Municipality and Human Settlements Department in relation to the

low cost housing development on Doornkloof farm. The panellist recommended that:

The letters of authority (four of five trustees) must be investigated by the DRDLR national

office as the panellist could not access this information. The letters of authority impacts on

the trustee’s status as beneficiaries and the associated allegations of the manipulation of the

beneficiary list.

Why and under what conditions did the DRDLR buy the Manana peach farm and the

Doornkloof farm from Clifford & Worrall in 2012. It appears that the purchase of Doornkloof

occurred for the housing development; the understanding is that Clifford & Worrall were

obligated in terms of tenure rights to relocate these families at their own expenses. The

DRDLR national office must investigate further.

Following the scoping exercise, the panellist mandate was extended to conduct further

investigations with regard to the letters of authority and the tenure rights relating to the

relocation of the Mhlongo family and former Doornkloof farm occupiers.



11 RESTITUTION

11.2 Restitution referral volume and distribution

There are currently 170 pending restitution matters administered under the LRMF. There were 9

new matters referred to the LRMF during the period July to September 2015 and 5 matters were

finalised.

Figure 21: Provincial distribution of pending restitution matters

11.3 Case forums

The courts in which LRMF restitution matters are currently located are set out below.

Figure 22: Case forums – restitution matters

1 1 1

166

1

Constitutional Court Supreme Court ofAppeal

High Court Land Claims Court Magistrates Court



11.4 Significant case outcomes

Set out below are significant case outcomes relating to restitution matters during the period July

and September 2015.

SIGNIFICANT RESTITUTION MATTERS

RES50159: Macassar Land Claim

The Macassar Community is seeking restoration of certain rights in the farm Zandvliet. Maccsand

CC is the holder of mining rights required in terms of the Minerals and Petroleum Resources

Development Act 28 of 2002 on the same farm. On 30 September 2015, Judge Mpshe dismissed

the two special pleas raised by the community Judge Mpshe held that the court does not have

jurisdiction to order the expropriation of the property nor to expropriate the mining rights, already

granted in favour of Maccsand CC and accordingly the special pleas were dismissed. The

claimants intend appealing the decision and have submitted an application for funding in this

regard.

RES50061: Salem Community Claim

The Judgment upholding the claim of 378 households in this matter was delivered in their favour in

September 2014. Subsequently the farm owners’ application for leave to appeal to the Supreme

Court of Appeal was granted. The Salem community successfully applied for funding in terms of

section 29(4). The parties have delivered Heads of Argument and are awaiting a Supreme Court

of Appeal date for the hearing of the appeal.

RES50126: Nhlanhleni Community Land

The land claim of the Nhlanhleni Community was heard between 13 October 2014 and 24 October

2014. The matter was settled and the claimants accepted compensation of R7.9m as well as

restoration of portion 75 of the land which is valued at R3.4m. Discussions are currently underway

to discuss the extension of a lease agreement on the claimant’s portion of the land.

11.5 Recent relevant case law

RES 50134: The Daantjie Community & others v Crocodile Valley Citrus Company &

another - LCC 75/2008 (Judgment delivered 28 July 2015)

This matter concerns an application for leave to appeal against the judgment of the LCC

dismissing an application for rescission of a default judgment granted against the applicants on

20 November 2008.

In the application the applicants made the following contentions:

That the court erred in not finding that there is a complete absence of evidence of an actual

presence of permanent white settlement in the area claimed, prior to 1920.

That the default judgment of 20 November 2008 was an extraordinary and unprecedented

exercise of the court’s power, and therefore not justified in the context of community land

claims where there are clear historic links between the community and the land.

That the finality of the court’s judgment means that the Daantjie Community can never

again claim the 3000 ha of land under the Restitution of Land Rights Act 22 of 1994.



The court held that the principle to be adopted in applications for leave to appeal has been

codified in section 17(1) of the Superior Courts Act 10 of 2013 (“the new Act”) and is, inter alia,

‘whether the appeal would have a reasonable prospect of success’. The court considered that

Bertelsmann J in The Mont Chevaux Trust (IT 2012/28) v Tine Goosen & 18 others

LCC14R/2014 case (an unreported judgment), in considering whether leave to appeal ought to

be granted in that matter, held that the threshold for granting leave to appeal had been raised in

the new Act. Bertelsmann J found that the use of the word “would” in the new Act indicated a

measure of certainty that another court will differ from the court whose judgment is sought to be

appealed against. Consequently, the bar set in the previous test, which required “a reasonable

prospects that another court might come to a different conclusion” has been raised by the new

Act. This then is the test to be applied to this matter.

The court held that the applicant’s contention that the court erred in not finding that there is a

complete absence of evidence of an actual presence of permanent white settlement in the area

claimed, prior to 1920 is of no relevance given that there is no evidence of the claimant

community being in occupation of the land in question and being dispossessed thereof.

The court further held that the applicant’s argument that the default judgment of 20 November

2008 was an extraordinary and unprecedented exercise of the court’s power, and therefore not

justified in the context of community land claims where there are clear historic links between the

community and the land was not sustainable as the two experts’ reports do not support the

argued “clear historic link” between the claimant community and the land at the relevant time.

The court also held that the judgment does not deny the claimant community from ever again

claiming the land under the Restitution Act. It is open to the applicants to petition the SCA.

The court dismissed the application for leave to appeal.

Port Elizabeth Land Community Restoration Association v The Regional Land Claims Commissioner Eastern Cape - LCC 136/2014 (Judgment delivered on 11 September 2015) This matter concerns a claim lodged on behalf of 104 claimants in terms of section 2 of the Restitution of Land Rights Act 22 of 1994. The respondent (the Commissioner) failed to process the claims as required by the Restitution of Land Rights Act or to respond to letters demanding action. As a result of the respondent’s failure as aforesaid, the applicant brought this application, seeking an order in the following terms:

That the respondent confirm the acceptance of the claim of the claimants identified in annexure “NJ1” within 10 days from date of order;

That following confirmation of the acceptance of the claims, the respondent investigates and finalises such claims within 60 days from confirmation of the acceptance of such claims; and

That the respondent pays the costs occasioned by this application. At the hearing of the matter on 26 August 2015, the parties reached agreement on the merits of the application and agreed on a draft order which incorporates features contained in clause 3.1 and 3.2 above, to be made an order of court. However the parties were unable to reach agreement on the question of costs. In considering the issue of costs, the court considered the fact that the applicant was forced to

approach the court due to the respondent’s failure to process the claims as required by the

Restitution of Land Rights Act and that, but for the respondent’s failure to respond to the



applicant’s letters which required that the respondent undertake that it will process the individual

claims, the applicant would not have had to come to court for relief.

The court held that the information pertaining to the claims was in the possession of the respondent and the respondent could have easily investigated the claims. The respondent had failed to provide the requested information notwithstanding that section 6(1) of the Restitution Act obliges it to take reasonable steps to ensure that claimants are assisted in the preparation and submission of claims; advise claimants of the progress of their claims at regular intervals and upon reasonable request; and investigate the merits of the claims lodged with or transferred to it. The Court referred to the case of Quinella Trading v Minister of Rural Development and Land Reform 2010 (4) SA 308 (LCC) where the court said that it should not have been necessary for the applicants to come to court to force the respondent to comply with its statutory obligations. The court further held that its power to make a cost order, including against the State and the Commission, is derived from section 35(2)(g) of the Restitution of Land Rights Act. The court ordered the respondent to pay the costs of the application on a scale as between party and party, such costs to include costs consequent upon the employment of senior counsel, plus costs of the attorneys of record.

11.6 Key developments

A written settlement agreement awarding 7000 hectares at a cost of R279 million to the Embo,

Nkhumbuleni, Masibuyelemakhaya and Embo-Thimuni Communities was entered into. A new

rule 29(4) referral was received from the CLCC for representation of a claimant community who

has lodged a new claim. This community’s claim competes and overlaps with the claims of the

abovementioned claimant communities. The court issued a rule nisi, calling upon the affected

communities to show cause why the settlement agreement should not be made an order of

Court.

11.7 Quarterly restitution meeting

The third quarterly restitution meeting was to be held on 17 September 2015 but was postponed

to 30 September 2015. The fourth quarterly restitution meeting is scheduled for 3 December

2015.

11.8 Key priorities for the next quarter

To attend to the monitoring and evaluation of matters where there has been little or no

progress.

To follow up with the panellists who have not provided up to date reports on matters.



PROJECT FINANCES

12 Legal and mediation panel funds

A statement of income and expenditure with respect to the legal and mediation panel funds for the

period December 2012 to September 2015 is set out below:

Income and expenditure items December 2012 to

September 2015

Opening balance 1,140,552

Income 194,188,109

DRDLR fund transfers 189,958,837

Interest received 4,229,272

Expenditure 162,214,231

Expenditure from legal and mediation panel funds 158,346,334

Interest paid to DRDLR 3,867,897

Balance at 30 September 2015 33,114,431

Fund portion 32,753,056

Interest portion 361,375

13 Monthly breakdown of funds disbursed

A monthly breakdown of funds disbursed over the contract period is provided below. The amount

of R683.153 for December 2012 and R457.400 of the January 2013 payment involve the balance

of funds from the previous contract. R3.834.543.00 from the January 2013 payment and the

balance of the payments to December 2012 involve new contract funds.

Figure 23: Breakdown of funds disbursed per month

683,153

4,291,943

3,937,629

3,530,896

4,287,498

3,425,495

4,797,045

2,865,337

3,738,055

3,743,718

4,919,698

2,468,113

4,449,495

2,896,811

4,177,121

4,904,872

4,015,741

4,989,396

5,012,636

3,369,585

5,620,720

3,371,176

9,011,059

6,630,853

5,093,428

1,708,811

6,566,588

5,644,350

4,432,225

9,986,850

4,438,367

7,010,400

4,401,305

7,925,963



14 Financial trends and analysis

Since commencement of the new contract period, 46% of funds were disbursed with respect to

land tenure legal services (R73 108 882); 3% in relation to land tenure mediation services (R4

177140); 12% (R19 009 563) was disbursed in relation to communal property institutions; and 39%

(R62 050 748) in relation to restitution matters.

Figure 24: Disbursements per focus area

15 Fund expenditure projection

We set out below two alternative legal and mediation fund expenditure projections. The first is

based on the average monthly disbursement of funds from February 2015 to September 2015. On

this basis, the legal and mediation fund balance as at 30 December 2015 is projected as set out

below:

Date Land tenure CPI Restitution Fund expenditure

Fund balance

Balance as at 31/09/2015

77,286,023 19,009,563 62,050,748 158,346,334 32,753,056

31/10/2015 3,135,885 313,630 2,851,241 6,300,756 26,452,300

30/11/2015 3,135,885 313,630 2,851,241 6,300,756 20,151,544

31/12/2015 3,135,885 313,630 2,851,241 6,300,756 13,850,788

Total 86,693,678 19,950,455 70,604,469 177,248,601 13,850,788

The second projection is based on the anticipated increase in the volume of invoices over the last

quarter (based on our experience under the previous contract). We have accordingly based the

projection below on the average monthly disbursement of funds from February 2015 to September

2015 plus an additional 50% of the previous month’s disbursement.

Date Land tenure CPI Restitution Fund expenditure

Fund balance

Balance as at 31/09/2015

77,286,023 19,009,563 62,050,748 158,346,334 32,753,056

31/10/2015 5,019,659 410,900 4,842,698 10,273,257 22,479,799

30/11/2015 5,019,659 410,900 4,842,698 10,273,257 12,206,542

31/12/2015 5,019,659 410,900 4,842,698 10,273,257 1,933,286

Total 92,344,999 20,242,264 76,578,841 189,166,104 1,933,286

Land Tenure 77,286,023

49%

CPI 19,009,563

12%

Restitution 62,050,748

39%



16 Contingent liability assessment

The contingent liability assessment with respect to pending matters as at 30 September 2015 is set

out below:

Contingent Liability Assessment: 30 September 2015

Land tenure R64,101,885

CPI matters R5,354,591

Restitution matters R46,895,389

Total R116,351,866

A revised assessment will be provided at the end of the next quarter.

Documents

July to September 2015 - Amazon Web Servicespmg-assets.s3-website-eu-west-1.amazonaws.com/160302Q2_2015_… · Livestock dispute – 5% Burial rights dispute – 2% Other – 10%