Appeal on ‘expanded’ claims allowed

The Land Claims Court has granted the Mpumalanga Land Claims Commission leave to appeal its judgment that officials have no right to expand a land claim to include properties not listed in an original claim form.
Issue Date: 23 March 2007

The Land Claims Court has granted the Mpumalanga Land Claims Commission leave to appeal its judgment that officials have no right to expand a land claim to include properties not listed in an original claim form.

The case concerns a claim on the farm Daisy Kopje near Barberton. The claimant, Nkosi Rainslee, originally claimed one portion of the farm on behalf of the family, but the commission gazetted all 12 portions on behalf of the entire Kopje community.

Last year Judge Antonie Gildenhuys ruled the commission had no right to expand the claim or substitute the claimant family with a community. The commission applied for leave to appeal on the grounds that Rainslee had intended to claim the entire farm for the whole community, and the court’s strict interpretation of the original claim form was an “oversight” that did not take the claimant’s intention into account. I n granting leave to appeal last month, Gildenhuys reiterated that there was no arguable case for the commission believing this was Rainslee’s intention, but conceded it was possible another court could come to a different conclusion. “The question at issue in this case is an important one,” said Gildenhuys in his judgment. “There are other pending review applications where claims have been accepted and notice thereof published in the Government Gazette, notwithstanding that the claims as published are not consistent with the contents of the claim forms.”

The outcome of the appeal could prove an important test case for hundreds of similar claims throughout where landowners allege gazetted claims have included numerous properties not listed on claim forms. A t issue is a clause in the Restitution Act, Section 11 (2), which stipulates the regional land claims commissioner may “on such conditions as he or she may determine, condone the fact that a claim has not been lodged in the prescribed manner”. If upheld, Gildenhuys’s judgment would require land claims commissioners to justify any interpretations they make about a claim which are not supported by the details supplied on the claim form. – Stephan Hofstätter