EASTERN CAPE PROGRESS REPORT ON NQANCULE CPA Presentation to the Portfolio Committee on Rural Development and Land Reform 17 April 2018 1

Background to the dispute Nqancule CPA registered on 1 June 2004 with 13 members as a result of the acquisition of the farm commonly known as Mountain Cliff being the Remainder of portion 1 (Subbrook) of the farm Mountain Cliff No, 21 measuring 120, 5956 ha, portion 2 (Middelpunt) of the farm Mountain Cliff No. 21 measuring 410, 2378 ha, remaining extent of the farm Mountain cliff No. 21 measuring 339, 3603 ha in the Division of Elliot (Sakhisizwe Municipality), Province of the Eastern Cape. Farm was transferred to Nqancule CPA in 2004. Matter reported to the Department in 2009 (three previous law firms filed withdrawal notices, currently handled by the fourth law firm – NT Vuba attorneys). 2

Background to the dispute cont. Matter is two-fold, i.e. eviction (opposition thereto) pending at the Elliot Magistrate’s Court and Invalidation of Deed of Transfer (yet to be filed at the Grahamstown High Court); CPA chairperson fraudulently sold CPA farm (Mountain Cliff) without the knowledge of a majority of CPA members (forged other members’ signatures on manufactured CPA resolutions), and thereafter shared the proceeds of sale amongst his family members. New “owner”, Jane Dowd, has taken steps to evict the remaining CPA members, in particular, Tshubungu Ndzutha and those actively farming on the land. 3

Background to the dispute cont. Matter marred by a series of appeals; cross-appeals and review applications with the last remitting the matter back to the Elliot Magistrate’s Court for a hearing de novo. Papers responding to the eviction action have since been filed at the Elliot Magistrate’s Court. No date has been set yet for a hearing. Senior Counsel (Adv Ntsaluba SC) briefed to attend to the deed of transfer invalidation. 4

Background to the dispute cont. Consulted with clients and discovered, inter alia, that – Many of the CPA members whose signatures appear on the CPA resolutions approving the sale of the farm have no knowledge of those resolutions nor the meetings where these were taken and have disputed that the signatures were theirs; Three of the CPA members whose signatures appear on these resolutions were deceased on the alleged dates of the meetings where these resolutions were taken –two of three copies of death certificates available as proof. 5

The status of CPA as a legal entity CPA not compliant with the CPA Act and its constitution. No annual reports submitted. The Department has brought this to the attention of the CPA members and also explained the need for the CPA to be compliant with the CPA Act and the process of regularisation of the CPA. The CPA members requested the Department to firstly assist them with getting their property and thereafter consider regularisation of the CPA. 6

Property ownership and dynamics Property currently owned by Jane Dowd under Deed of Transfer T122281/2008. Ownership was transferred in terms of a power of attorney provided by the then Chairperson of the CPA. Jane Dowd on 13 February 2009 launched eviction proceedings in terms of Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 in the Elliot Magistrate’s Court under case number 10/2009 against the CPA members and a ruling handed down on 3 June 2009 granted the eviction. 7

Property ownership and dynamics cont. The Department appointed a lawyer for the CPA members (Mr Nongogo through the Land Rights Management Facility) to represent the CPA members on this matter and through that intervention the order was successfully set aside with costs. Jane Dowd reinstated the eviction proceedings, however, she failed to join the Municipality as a party and it resulted in the matter being removed from the roll on 21 February 2013. Mr Nongogo later withdrew from the Land Rights Management Facility and the matter was re-allocated to another panellist Mr Maswazi on 21 August 2015. 8

Property ownership and dynamics cont. Jane Dowd subsequently brought a review application in the Grahamstown High Court under case number 2405/2013 with the Court ordering on 26 November 2015 that the ruling of 21 February 2013 be set aside with costs and that the matter be remitted back to the Elliot Magistrate’s Court to be heard by a new Magistrate. The CPA had to be assisted with an application to declare the alienation of the farm to Jane Dowd as unlawful and invalid. In 2016 the CPA members had a challenge with their livestock which was impounded compelling them to pay for their release. 9

Property ownership and dynamics cont. The CPA members reported the matter to their lawyer (the panellist) but he did not seem to understand the urgency of the matter. The Department engaged the panellist and indeed it was confirmed that the panellist does not see the urgency of the matter. This resulted in the Department recommending to the Land Rights Management Facility the reallocation of this matter to another panellist. The matter was reallocated to another Panellist (Mr Majebe) on 17 November 2016. Mr Majebe’s first assignment on the matter was to apply for the release of the livestock from the pound and he succeeded in getting the livestock released even though the CPA members lost 1 cow in the process. 10

Property ownership and dynamics cont. On 25 November 2016 Mr Majebe reported that the eviction matter was postponed indefinitely and he is busy liaising with the former panellist (Mr Maswazi) for purposes of obtaining the finalised application to declare the alienation of the farm void. Mr Majebe met with the members of the CPA in April 2017 and consulted on the issue of the farm being sold without their permission. He then advised them on the judgment of the Grahamstown High Court, in terms of which the eviction application has to be heard anew. 11

Property ownership and dynamics cont. The CPA members advised Mr Majebe that the farm owner had been removing their livestock from the farm. Mr Majebe proceeded with applying for an interdict, which was granted and made a final order on 23 June 2017. The matter was set down for 15 September 2017 however it was postponed to 20 September 2017. Mr Majebe proceeded to argue the matter on 20 September 2017 and the court postponed the matter indefinitely. The court further ordered that the parties submit written statements and oral evidence will be dealt with during trial. 12

Property ownership and dynamics cont. Whilst Mr Majebe was compiling written statements he resigned as a Panellist on 18 October 2017. The matter was then re-allocated to Mr Vuba. The new panellist consulted with the CPA members on 18 December 2017 to prepare for court. The CPA members no longer reside in one area, majority of them have moved to Cape Town. Mr Vuba has delivered (see attached court papers) a response to the Plaintiff’s declaration in the eviction action at the Elliot Magistrates Court and has been served with a Request for Further Particulars in Preparation for trial, from another firm of attorneys (McCullum Attorneys) without the first firm (Leon Keyter Attorneys) formally withdrawing as attorneys of record. 13

Sale of property and mechanisms to recoup the finances or any other possible redress cont. CPA PostBank account documents secured, following discoveries found: Chairperson did not only forge CPA resolutions for the sale of the farm but also CPA resolutions changing the CPA account signatories thus giving himself and his friends sole control of the CPA account; Proceeds of the fraudulent sale have been squandered to almost NIL – 14

Sale of property and mechanisms to recoup the finances or any other possible redress cont. farm sold for R500, 000 in 2008 with the CPA chairperson and one CPA member having appointed themselves as signatories to the CPA account – fraudulently removed the initial signatories. Clear evidence of fraud; forgery and theft. Majority of the original CPA members have no knowledge of these resolutions and many have disputed that it is their signatures that appear on these resolutions. 15

Sale of property and mechanisms to recoup the finances or any other possible redress cont. CPA Constitution requires the majority of the CPA members to take a decision – important in our approach to prove that the decision to sell the farm was not taken by a majority of the CPA members as their signatures were forged – the chairperson and his relatives do not constitute a majority of the CPA membership. 16

Successes The general meeting took place on 31 March 2018 and confirmation received in that meeting is that 3 people that signed the resolution had died long before the resolution that signed so it is clear that the signatures were forged. Death certificates for two deceased people have been received as confirmation and the panellist is awaiting a certificate for the third one. Even the 4 other CPA members who are cited as having signed deny that they signed any documents supporting the sale. The CPA constitution provides that decision taken by the CPA must be by the majority of CPA members. CPA has 13 members; the chairperson did not have the majority when the decision to sell was taken. 17

Challenges Time lapsed since the CPA members became aware of the repugned sale; Risk of not attaining the majority of the CPA members in support of the invalidation of the deed of transfer – indications are that this does not seem likely – the CPA General Meeting of 31 March 2018 have since allayed these fears as 7 members, out of a total 13 members (with 3 already deceased at the time of the sale), constitute a majority of the CPA membership. 18

Future plans The panellist is busy drafting papers to invalidate the sale, needs the death certificate of the third person. The panellist also needs access to police records to establish steps taken by the police in dealing with the matter when it was reported to them in 2008. The Panellist has requested a report from the Investigative officer. All these will be submitted in court. 19

Future plans cont. The matter will be referred to asset forfeiture unit to recoup the money and the sale of the farm be reversed as it was done fraudulently. 20

Progress to date A written submission, per Court’s directive, has been submitted to the Elliot Magistrate’s Court in respect of the eviction matter under Case No. 10/2009; Currently in the process of responding to the Plaintiff’s Request for Further Particulars for purposes of trial; Process of drafting papers regarding the invalidation of the deed of transfer under way; The CPA general meeting was held on 31 March 2018 wherein each member signed a declaration distancing themselves from the repugned resolutions – a majority of the CPA members are distancing themselves from the sale and are in support of measures to cancel the sale agreement. 21

Recommendations Criminal charges be brought against the CPA chairperson – this will bolster the envisaged application to invalidate the deed of transfer; CPA regularisation exercise be embarked upon after the granting of the invalidation application. 22

THANK YOU 23