Member Article

InMinister of Department of Rural & Land Reform and Others v Thamsanqa Davis Bisset, the Supreme Court of Appeal (“the SCA”) upheld an appeal against a High Court order setting aside a settlement agreement in terms of section 42D of the Restitution of Land Rights Act 22 of 1994 (“the Act”) and dismissed the application that served before the High Court.

Background

The Bisset family was dispossessed of their land as a result of past discriminatory laws and as such, the family lodged a claim for the restitution of their land rights in terms of the Act. In 2008, Mr Bisset was visited by Ms Daniels, the Regional Land Claims Commissioner (“the Commissioner”) and he signed a document titled “Settlement Agreement in terms of section 42D of the Act”.

In 2021, Mr Bisset brought an application to declare the agreement invalid and to have the agreement reviewed and set aside by the High Court as he believed that the claim had not been lawfully settled. The argument was that the agreement reflected the value of the land but did not place any value on the emotional suffering of the Bisset family and that these relevant factors ought to have been considered.

Mr Bisset sought an extension of the 180-day period in terms of section 9(1) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and contended that it would be in the interests of justice to condone the delay.

Undisputed facts

Following Mr Bisset’s signature in 2008, he informed the Commissioner that the agreement was no longer accepted. The Commissioner did not sign the agreement. Although there was an agreement between the overall community and the Commissioner, an individual agreement had to be concluded with the Bisset family. The Department never paid compensation to the Bisset family as stipulated in the agreement signed by Mr Bisset.

High Court’s findings

The argument in terms of PAJA was upheld. Additionally, the High Court found that the Commissioner failed to account for non-financial factors in determining the value of the settlement. This is required in terms of section 33 of the Act. As a result of the failure to account for these factors, the court reviewed and set aside the agreement.

SCAs findings

From the undisputed facts, there could only be one conclusion – no binding agreement was concluded. Although Mr Bisset signed the agreement, the Commissioner did not sign the agreement. No compensation was ever paid in terms of the agreement nor was there any indication from the Department that it considered the agreement to be binding. All that existed was a document that contained the terms upon which a settlement was proposed.

Conclusion

The SCA upheld the Department’s appeal and overturned the findings of the High Court. The SCA found that the High Court had no power to review and set aside a document that was not a binding settlement agreement. The High Court could not review and set aside something that was not yet a decision on the part of the Commissioner, which amounted to administrative action.

 

Aslam Moosajee

Executive Dispute Resolution

[email protected]

 

Zameer Omar

Candidate Legal Practitioner Dispute Resolution

[email protected]

 

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