CCT55/12

CCT52/12

[2013] ZACC 6

2013 (5) BCLR 531 (CC)

2013 (6) SA 193 (CC)

Moseneke DCJ

28 March 2013

http://hdl.handle.net/20.500.12144/3680

Application for leave to appeal against a judgment and order of the SCA: King Sabata Dalindyebo Municipality and Others v KwaLindile Community and Others (537/2011) [2012] ZASCA 96; [2012] 3 All SA 479 (SCA) (1 June 2012). See earlier judgment of the Land Claims Court: King Sabata Dalindyebo Municipality v Kwalindile Community and Others (LCC147/08) [2010] ZALCC 33 (14 December 2010).

Application for leave to appeal to set aside the judgment of the Land Claims Court, subject to certain qualifications; confirmed by the Supreme Court of Appeal, in which both courts granted the order sought by King Sabata Dalindyebo Municipality to immunise the land claimed by the applicant communities from restoration. The Court held that a non-restoration order is invasive of the constitutional right of a claimant to possible restoration. Therefore, the order must be made with sufficient particularity to ensure that the possible redress that would result where a claim is successful is not unduly curtailed. The Court found that nothing justified the conclusion that it is in the public interest for rights on vacant and undeveloped land not to be restored, or that the public would suffer substantial prejudice simply because vacant and undeveloped land on the fringes of the town may be restored to the applicants. It, however, found that it would not be in the public interest and would be substantially prejudicial to the public to order restoration of land on which a commercial developer, Whirlprops 46 (Pty) Ltd, already had a registered long lease. As a result, the Court upheld the applicants’ appeal and set aside the orders of both the Supreme Court of Appeal and the Land Claims Court. It further ordered the Municipality to pay the costs of the applicant communities as well as Whirlprops in all the courts. Judgment: Moseneke DCJ (unanimous).