- The dispute involves two properties formerly owned by Alishap Allie, who was dispossessed under discriminatory laws between 1950 and 1962.
- His will bequeathed the properties to his elder brother, Gozyn Allie Snr, whose children are now challenging the restitution process.
- Judge Flatela dismissed the appeal application, finding no reasonable prospect that another court would reach a different conclusion.
Six family members are fighting to protect their inheritance claim to two Hout Bay properties after discovering a will in which their late uncle’s brother was named as the beneficiary. They are challenging a restitution process that could see more than R8.6 million paid to another branch of the family.
Alishap Allie owned the two properties, erven 1457 and 1458 in Hout Bay, Western Cape, commonly known as Green Gables Farm. He was dispossessed of the properties between 1950 and 1962 as a result of discriminatory laws or practices.
He died on 11 February 1960, leaving a will bequeathing the properties to his elder brother, Gozyn Allie Snr. Gozyn died in 1970 without leaving a will. The six applicants are his children, while the second respondent is one of Alishap’s children.
The dispute arose when Alishap’s widow, Asa Allie, lodged restitution claims for the two properties in March 1996 and November 1998, relying on her position as his intestate heir.
In June 2013, Gozyn’s children discovered Alishap’s will and notified the Regional Land Claims Commissioner. They requested to be included as co-claimants or co-beneficiaries, arguing that their interests derived from their late father, who had inherited the properties under the will.
When the period for lodging new restitution claims reopened in 2014, they also lodged their own claim concerning the properties. The Regional Land Claims Commissioner accepted the second respondent’s family’s claims in 2016, classifying them as descendant claims under Section 2(1)(c) of the Restitution of Land Rights Act 22 of 1994.
The Office of the Valuer-General completed historical valuations in March 2019. In 2020, the State offered the second respondent’s family R1 320 853.33 for erf 1458 and R7.32 million for erf 1457. The applicants approached the Land Court in October 2019 to prevent payment of the compensation. An interdict was granted, and the dispute was referred to mediation.
In June 2023, the parties concluded a consent order preventing the State from paying compensation or restoring land rights to the second respondent’s family until the review proceedings were finalised, unless the parties agreed otherwise in writing.
The applicants subsequently launched review proceedings seeking to set aside the commissioner’s decisions to offer compensation and have the claims investigated afresh. They argued that the commissioner had failed to consider Alishap’s will when investigating the restitution claims.
The State respondents and the second respondent opposed the review application, arguing that the Land Court lacked jurisdiction to hear it.
Why the appeal application was dismissed
On 11 June 2026, Judge L Flatela dismissed the respondents’ preliminary objection that the Land Court lacked jurisdiction to hear the review application. The respondents subsequently applied for leave to appeal that decision.
They argued that the Constitutional Court’s judgment in Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others, commonly known as LAMOSA II, prevented the applicants from pursuing the review proceedings.
They also relied on the Land Claims Court’s judgment in Re Amaqamu Community Claim (Land Access Movement South Africa and Others as Amici Curiae), contending that new restitution claimants could not use proceedings involving older claims to advance competing interests in the same land.
Judge Flatela rejected this interpretation, distinguishing between an application to have a new restitution claim processed and a review challenging administrative decisions made during the investigation of an existing claim.
The judge said the applicants were not asking the commission to process their new claim. Instead, they were challenging the decisions concerning the second respondent’s claims because the commissioner had allegedly failed to consider the will when exercising its statutory functions.
Judge Flatela found that the will could contribute to establishing or rejecting the second respondent’s older claims. Whether it established a competing claim or an interdicted new claim was irrelevant to the review proceedings.
The judge also rejected the argument that the applicants had to wait until the second respondent’s claim was referred to the Land Court before raising their concerns.
Referring to established administrative justice principles, Judge Flatela emphasised that people whose property rights or interests may be prejudicially affected by administrative decisions are generally entitled to be heard.
The judgment also referred to the Constitutional Court’s decision in President of the Republic of South Africa and Others v South African Rugby Football Union and Others, which affirmed the requirements of lawful, procedurally fair and justifiable administrative action.
Judge Flatela concluded that there was no reasonable prospect that another court would reach a different conclusion and found no other compelling reason to grant leave to appeal. The application for leave to appeal was dismissed, with no order as to costs.
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