About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 99
|

|

The Baphiring Community and Others v Tshwaranani Projects CC and Others (806/12) [2013] ZASCA 99; [2013] 4 All SA 292 (SCA); 2014 (1) SA 330 (SCA) (6 September 2013)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 806/12
Reportable
In the matter between:
THE BAPHIRING
COMMUNITY
...........................................................
FIRST
APPELLANT
THE REGIONAL LAND
CLAIMS COMMISSIONER:
GAUTENG AND NORTH WEST
PROVINCES
................................
SECOND
APPELLANT
THE MINISTER FOR RURAL
DEVELOPMENT AND
LAND REFORM [Formerly
THE MINISTER OF
LAND AFFAIRS]
..................................................................................
THIRD
APPELLANT
and
TSHWARANANI PROJECTS
CC
[Formerly MATTHYS
JOHANNES UYS]
.........................................
FIRST
RESPONDENT
JAN HENDRIK LIEBENBERG
SECOND RESPONDENT
WESSELS CORNELIUS
CRONJé OOSTHUIZEN THIRD RESPONDENT
SAREL JOHANNES
BUITENDAG FOURTH RESPONDENT
FRANCOIS JOHANNES
JOUBERT FIFTH RESPONDENT
WOUTER BEKKER SIXTH
RESPONDENT
HENDRIK BALTES NIEMAND
SEVENTH RESPONDENT
ANTOINETTE PRINSLOO
EIGHTH RESPONDENT
THE MINISTER FOR
PUBLIC WORKS NINTH RESPONDENT
THE MINISTER FOR
MINERALS AND ENERGY AFFAIRS TENTH RESPONDENT
THE REGISTRAR OF
DEEDS, PRETORIA ELEVENTH RESPONDENT
LAND AGRICULATURAL
BANK OF SOUTH AFRICA TWELFTH RESPONDENT
FIRST NATIONAL BANK OF
SOUTH AFRICA LTD THIRTEENTH RESPONDENT
J C LIEBENBERG
FOURTEENTH RESPONDENT
H KRUGER FIFTEENTH
RESPONDENT
SENWES LIMITED
SIXTEENTH RESPONDENT
N W K LIMITED
SEVENTEENTH RESPONDENT
P J LIEBENBERG
EIGHTEENTH RESPONDENT
J C C CILLIERS
NINETEENTH RESPONDENT
Neutral citation:
The
Baphiring Community v Tshwaranani Projects CC
(806/12)
[2013]
ZASCA 99
(6 September 2013)
Coram
: Cachalia,
Shongwe, Majiedt JJA, Van der Merwe and Mbha AJJA
Heard: 2 May2013
Delivered: 6
September2013
Summary:
Restoration of land under
Restitution of Land Rights Act 22 of 1994
.
State obliged to lead evidence regarding cost of restoration. Failure
of Land Claims Court to call for such evidence constitutes
a material
irregularity that vitiates a non-restoration order.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
Land
Claims Court (Mia AJ sitting as court of first instance):
‘
1.
The appeal is upheld.
2. The order of the Land
Claims Court dated 19 January 2010 is set aside.
3. The matter is remitted
to the Land Claims Court to consider and determine anew the
feasibility of restoring portions 1 (excluding
the portion of portion
1 which was previously known as portion 14 of the farm Syferfontein
451 JP), 5
, 6, 7, 8, 9, 10, 12 and 13 of the farm Syferfontein 451 JP
and the remaining extent of the farm Rosmincol 442 JP, district
Koster
to the first appellant.
4. In making the
determination as set out in paragraph 3 above, the Land Claims Court
shall consider the following:
4.1. The nature of the
land and the surrounding environment at the time of dispossession,
and any changes that have taken place
on the land itself and in the
surrounding areas since dispossession.
4.2. Official land use
planning measures governing the land concerned.
4.3. The cost of
expropriating the land, including the costs of any mineral rights if
compensable in law.
4.4. The institutional
and financial support to be made available for the resettlement.
4.5. The extent of the
compensation that shall be payable to the current owners of the land.
4.6.
The numbers of the current occupants of the land, including boththe
current landowners and their families as well as any employee
farm
workers and their families. Furthermore, the extent of social
disruption – including possible loss of employment –
to
these current occupants should they be compelled to vacate the land
concerned.
4.7. The number of
individuals and families who are expected to resettle. Moreover, to
the extent that the entire community does
not wish to resettle, the
form and extent of restoration and/or restitution.
4.8. The extent to which
the land, in its current state, can support those community members
wishing to resettle both physically
and financially.
4.9. The envisaged land
usage should the land be restored, and the resultant extent –
if any – of the loss of food production
and any impact thereof
on the local economy should farming activities not be continued at
current levels.
4.10. Should the land be
restored to the first appellant, the extent of ‘overcompensation’,
if any, and how the problem
of ‘overcompensation’, if it
should occur, will be avoided.
5. Any other issue that
has a bearing on the determination of the feasibility of restoring
the land or any part thereof to the first
appellant.
6. There is no order as
to costs.’
_____________________________________________________________________
JUDGMENT
______________________________________________________________________
CACHALIA JA (SHONGWE,
MAJIEDT JJA, VAN DER MERWE AND MBHA AJJA CONCURRING):
[1] This appeal, from the
Land Claims Court(LCC), concerns a ‘land claim’under the
Restitution of Land Rights Act 22
of 1994 (the Act). The
land,colloquially known as ‘old Mabaalstad’, is situated
in the North West Province, and is
now referred to as the farm
Rosmincol. It was expropriatedthrough racially discriminatory laws
from a community known, under its
tribal affiliation, as the
Baphiring in 1971.The community was relocated to compensatory land,
now known as the ‘new Mabaalstad’,
some 80 km north of
the expropriated land.
[2] The claimants seek
restoration of the land to a communal property association that was
created for this purpose. Their claim
relates to portions 1(excluding
that portion of portion 1 previously known as portion 14 of the farm
Syferfontein
451 JP), 5
,6,7,8,9,10,12,13 and the remaining extent of
the farm Rosmincol 442 JP, and is opposed by most of the current land
owners. The
Regional Land Claims Commissioner: Gauteng and North West
Provinces and the Minister of Rural Development and Land Reform, the
second and third appellants, support the claim. It shall be
convenient to refer to them together, where appropriate, as the
state.
[3] Like most other land
claims this one has had a protracted history. Lodged in 1998, it has
been the subject of three decisions
of the LCC. The first, on 29
January 2002, involved several issues separated for prior
adjudication.
1
These
included the competence of the communal property association to bring
the claim, the nature of the ‘rights in land’
lost and
the extent of compensation received. The court upheld the
association’s competence to institute the claim, confirmed
that
the dispossessed right was of ownership of the land – which
included mineral rights– and found that the compensation

received by the tribal authorities, and also of its individual
members,amounted to R181 million (rounded off).
2
[4] The second decision,
on 5 December 2003, involved anotherseparated issue: whether the
compensation was ‘just and equitable’within
the meaning
of s 2(2) of the Act, and thereby had the effect of precluding the
claim.
3
The
court found the compensation insufficient and the compensatory land
unsuitable for the successful relocation of the community.
It thus
held that the community had not received fair recompense.
4
So s 2(2) did not bar the
claim for restitution.
5
[5] The third decision,
which is the subject of this appeal, involves yet another separated
issue: whether it is feasible, as envisaged
by s 33(
cA
)
of the Act, to restore the land to the community. The LCC (Mia AJ,
Gildenhuys J and M Wiechers(assessor) concurring) held that
it was
not, and so the community was entitled only to equitable redress.
6
[6] The claimants appeal
this decision with leave of the LCC. They are supported in their
appeal by the Regional Land Claims Commissioner:
Gauteng and North
West Provinces and the Minister for Rural Development and Land
Reform, who are the second and third appellants.
The Commissioner and
the Minister are represented by the same counsel. The Nkuzi
Development Association and the Association for
Rural Advancement
were admitted as amici curiae by order of this court on 6 December
2012. They too support the case of the claimants.
[7] There are eight
landownerswho own portions of Rosmincol. Five of them were
represented by Mr Grobbelaar, an attorney,during
the ‘feasibility
hearing’ in the LCC. They are Tshwaranani Projects CC (formerly
Mr Matthys Johannes Uys),Mr Jan Hendrik
Liebenberg, Mr Francois
Johannes Joubert, Mr HendrikBaltesNiemand and Ms Antoinette Prinsloo
– the first,second, fifth, seventh
and eighth respondents
respectively. Mr Grobbelaar informed us before the hearing that his
clients did not have the financial means
to be represented in the
appeal, but persist in their opposition to the relief claimed. Mr
Grobbelaar was not able to participate
in the second hearing –‘the
compensation hearing’ – for the same reason.
[8] Mr Wessels Cornelius
CronjéOosthuizen, the third respondent, has not participated
in any of the preceding hearings. His
attitude to the litigation is
not known. Mr Sarel Johannes Buitendag, the fourth respondent, has
represented himself throughout
this dispute. We have no indication of
his stanceinthis appeal. Mr WouterBekker, the sixth respondent,
opposed the claim during
the first hearing, but was not legally
represented. His attitude to these proceedings is also unknown. That
accounts for the eight
landowners.The remaining respondents are cited
by virtue of their interest in this matter.None are represented or
have shown any
interest in the outcome of these proceedings.
[9] In the view I take of
this matter, it is not necessary to set out the facts or the evidence
that was led in this matter. They
are dealt with adequately in the
reported judgment of the LCC
7
and are not material to
the main issue in this appeal, namely whether the court ought to have
made a non-restoration order in the
absence of material evidence from
the state regarding the issue of feasibility.
[10] It is now well
established that a claimant for restitution of a land right is
entitled to have the land lost through dispossession
restored
whenever feasible.A court must therefore restore the actual land to a
claimant unless inimical to the public interest.
8
Other forms of equitable
redress in the form of a grant of alternative state land or payment
of compensation may only be consideredthereafter.I
turn to consider
how the issue of feasibility ought to be addressed.
[11] Before the Act was
amended to give the courts the authority to decide feasibility, the
Minister of Land Affairs had this responsibility.
9
The LCCwas
initiallyreluctant to consider the cost of restoration as a factor
relevant to feasibilitybecause of its institutional
aversion to
assessing questions of social and economic viability, and also for
fear that such an enquiry would greatly narrow the
prospects of
restoration awards being made.
10
So
it confined its consideration of feasibility to an investigation of
whether or not the claimant’s intended use was out
of kilter
with recent developments of the land itself or in the surrounding
area.
11
In
this regard in the
Kranspoort
Community
case,
Dodson J laid down a test to be applied by the court in determining
whether restoration was feasible, considering the following
factors
to be relevant:
‘
(1) the
nature of the land and the surrounding environment at the time of the
dispossession;
(2) the nature of the claimant’s
use at the time of the dispossession;
(3) the changes which have taken place
on the land itself and in the surrounding area since the
dispossession;
(4) any physical or inherent defects
in the land;
(5) official land use planning
measures relating to the area;
(6) the general nature of the
claimant’s intended use of the land concerned.’
12
[12] In
Mazizini
Community v Emfuleni Resorts
13
the
LCC, in a similar vein,rejected a submission by counsel for the state
that limited funds was a factor to be considered when
deciding
whether to restore the land to the claimant community. The court
stated its view thus:
‘
[T]he courts
are not in a position to deny claimants their primary right to
restitution merely because they cannot determine what
is affordable
to the state and what is not in a given case. Nor are they in a
position to determine in advance what projects will
be viable and
those that will not be viable before granting restoration.’
[13] In the instant case
the LCC changed tack. It explicitly took the lack of financial
assistance from the state into account in
deciding that the
restoration was not feasible.
14
It
did so after hearingextensive expert evidenceof the failure of other
resettlement projects where the state had not provided adequate

institutional and financial support for the restoration. This
evidence was adduced on behalf of the claimants and confirmed by
the
evidence of the single witness called by the state. The court also
took into account the huge cost that would result from the
state
having to restore the land to the claimants. Also of significance is
that it regarded this fact as closely related to the
public interest.
Put differently it considered that it would not be in the public
interest, and therefore not feasible, to restore
the land to the
claimants having regard to the prohibitive cost to the state.
15
And
finally in
Mhlanganisweni
Community v The Minister of Rural Development and Land Reform
&others
16
the
LCC accepted that if the claimed land had to be expropriated ‘at
huge and prohibitive financial cost to the state’
and restored
to the claimants who were dispossessed of rural land, the claimants
would be substantially overcompensated at public
expense, which would
be a relevant factor in determining whether or not restoration is
feasible. This is an issue of central importance
in this case.
17
[14] The LCC was, in my
view, correct to consider the cost implications of the restoration
because this lies at the heart of a proper
assessment of feasibility.
These costs would includethe cost of expropriating the land from the
current landowners, resettling
the claimants on this land and
supporting a sustainable development plan for the resettled
community.The problem in this case was
that the evidence presented by
the stateon these aspects was at best completely inadequate, which
meant that the court was hamstrung
in making this assessment.
[15] The Constitutional
Court recently said that before a court makes a non-restoration
order, it must be satisfied that this ‘is
justified by the
applicable legal principles and facts’.
18
It went on to state that
a public body seeking a non-restoration order must place the
necessary facts before the court to enable
it to make this finding.
It follows that a non-restoration order granted in the absence of
such evidence constitutes a material
irregularity that vitiates the
order.
19
[16] It must be borne in
mind that a claim for the restoration of land is a claim against the
state; it is not a claim against the
current landowners. The state
cannot therefore adopt a supine stance, as it did in this case, when
such a claim is made. The Act
imposes a duty on the Commission to
assist claimants in the preparation and submission of their claims,
to advise them on the progress
of their claims, investigate the
merits of the claim, mediate and settle disputes arising from such
claims, define issues that
may be in dispute between claimants and
other interested parties, and of particular importance, draw up
reports on unsettled claims
for submission as evidence to the court
and present any relevant evidence to the court.
20
This
means that when the question of feasibility arises, the
Commissionmust take the lead in placing all the relevant facts before

the court. And to the extent that there are budgetary issues, which
the Commission is not able to assist the court with, that
responsibility to place evidence before the court falls on the
shoulders of the responsible Minister.
[17] In my view the
state’s approach to the litigation in this matter amounted to a
dereliction of its duty to the parties
and to the court. At the
commencement of the hearing on feasibility it adopted the stance that
the restoration of the land was
feasible. But the evidence of the
regional land claims commissioner –the only witness for the
state –was of little
assistance to the court. Importantly, he
was not able to say whether or not the state had budgeted for the
resettlement of the
community. And there was no evidence that the
state had conducted a feasibility study regarding this claim.
Unsurprisingly after
the state closed its case counsel, who appeared
on its behalf, conceded in argument that the restoration was not
feasible because
the state could not afford it.And, on the available
evidence, the LCC could hardly be faulted for also having come to
this conclusion.
[18] What should have
happened in this case is that the state ought to have conducted a
feasibility study into the restoration of
the land. That study should
at the very least have takeninto account the number of families who
are expected to be resettled, the
institutional and financial support
for the resettlement and the envisaged land usage if the land is
restored. In addition the
following evidence should have been placed
before the court: the cost of expropriating the land from the current
land owners; the
extent of the loss of food production to the local
community should farming activities not be continued at current
levels; the
extent of social disruption of the current landowners and
their families should they be required to physically leave their
farms;
the number of farm workers who are dependent upon their
incomes from their employment on the farms and the extent and impact
of
social disruption, including the loss of employment, to them; and
finally should the land be restored how the problem of
‘overcompensation’
of the claimants will be avoided.
[19] The evidence on all
of these aspects was either absent or inadequate. The court was
therefore not in a position to determine
the issue of feasibility
conclusively and ought to have ordered the state to lead evidence on
these and any other issues it considered
relevant. The failure to
call for such evidence constituted a material irregularity and
vitiates the order of non-restoration.
I therefore consider it
appropriate to remit the matter to the LCC for the purposes of
considering further evidence on these and
any other issues it
considers relevant to a determination of this issue.
[20] This matter was
heard on 2 May 2013. At the conclusion of the hearing before us the
claimants and the state agreed that the
matter ought to be remitted
to the LCC to receive further evidence to determine the feasibility
issue, and agreed to submit a draft
order for this purpose by 2
August 2013. Counsel for the state also undertook to obtain
instructions from his clients on the parameter
of the order.
[21] The draft submitted
covers the factors mentioned in para [18] above, butalso purports to
separate the factors thatare relevant
to the issue of ‘feasibility’
from the ‘practical’ issues that will arise as part of
the ‘sustainable
resettlement plan’.
21
Thatapproach, in my view,
is conceptually flawed. The evidence before the LCC demonstrated
conclusively that where restoration of
the land has included
resettlement, the absence of adequate financial and institutional
support from the state has resulted in
the restoration failing.And as
I have said earlier the question of cost, including the cost of a
sustainable resettlement plan,
if the land is to be restored on this
basis, must be considered as part of the court’s assessment of
feasibility.
[22] This does not mean
that a court will second guess an assertion by the state that it is
unable to fund the cost of the restoration.
But it does mean that it
will be required to place credible evidence before the court to
justify this assertion.
The following order is
made:
1. The appeal is upheld.
2. The order of the Land
Claims Court dated 19 January 2010 is set aside.
3. The matter is remitted
to the Land Claims Court to consider and determine anew the
feasibility of restoring portions 1 (excluding
the portion of portion
1 which was previously known as portion 14 of the farm Syferfontein
451 JP), 5
, 6, 7, 8, 9, 10, 12 and 13 of the farm Syferfontein 451 JP
and the remaining extent of the farm Rosmincol 442 JP, district
Koster
to the first appellant.
4. In making the
determination as set out in paragraph 3 above, the Land Claims Court
shall consider the following:
4.1. The nature of the
land and the surrounding environment at the time of dispossession,
and any changes that have taken place
on the land itself and in the
surrounding areas since dispossession.
4.2. Official land use
planning measures governing the land concerned.
4.3. The cost of
expropriating the land, including the costs of any mineral rights if
compensable in law.
4.4 The institutional and
financial supportto be made available for the resettlement.
4.5 The extent of the
compensation that shall be payable to the current owners of the land.
4.6. The numbers of the
current occupants of the land, including boththe current landowners
and their families as well as any employee
farm workers and their
families. Furthermore, the extent of social disruption –
including possible loss of employment –
to these current
occupants should they be compelled to vacate the land concerned.
4.7. The number of
individuals and families who are expected to resettle. Moreover, to
the extent that the entire community does
not wish to resettle, the
form and extent of restoration and/or restitution.
4.8. The extent to which
the land, in its current state, can support those community members
wishing to resettle both physically
and financially.
4.9. The envisaged land
usage should the land be restored, and the resultant extent –
if any – of the loss of food production
and any impact thereof
on the local economy should farming activities not be continued at
current levels.
4.10. Should the land be
restored to the first appellant, the extent of ‘overcompensation’,
if any, and how the problem
of ‘overcompensation’, if it
should occur, will be avoided.
5. Any other issue that
has a bearing on the determination of the feasibility of restoring
the land or any part thereof to the first
appellant.
6. There is no order as
to costs.
_________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
For first Appellant: C R
Jansen (with him M MMajozi)
Instructed by:
Gilfillan Du Plessis
Attorneys, Pretoria
Webbers Attorneys,
Bloemfontein
For second and
thirdAppellant: M Naidoo SC (with him G Shakoane)
Instructed by:
The State Attorney,
Pretoria
The State Attorney,
Bloemfontein
Amicus Curiae: T
Ngcukaitobi (with him M Bishop)
For Respondents: No
appearance
1
BaphiringCommunity
v Uys& others
2007 (5) SA 585 (LCC)para 3.
2
Ibid
para 4; See also
Baphiring Community v Uys&others
(Unreported) (LCC 64/98)
[2002] ZALCC 4
(29 January 2002)para
36.
3
‘
Entitlement
to restitution
(2) No person shall be
entitled to restitution of a right in land if-
(a)
just and equitable
compensation as contemplated in section 25 (3) of the Constitution;
or
(b)
any other consideration
which is just and equitable,
calculated
at the time of any dispossession of such right, was received in
respect of such dispossession.’
4
Baphiring
n1
para 22.
5
Ibid
para 24.
6
Baphiring
Community v Uys
2010 (3) SA 130 (LCC)para 29.
7
Baphiring
Community v Uys
2010 (3) SA 130
(LCC).
8
Khosis
Community, Lohatla v Minister of Defence
2004 (5) SA 494
(SCA)
para 30.
9
Mhlanganisweni
Community v Minister of Rural Development and Land Reform
[2012]
3 All SA 563
(LCC) para 18.
10
In
reKranspoort Community
2000 (2) SA 124
(LCC) para 92.
11
Ibid
para 91.
12
Ibid
para 92.
13
Mazizini
Community v Emfuleni Resorts (Pty) Ltd &others
[2010] JOL
25378
(LCC) para 38.
14
Baphiring
n6paras
25-29.
15
See
in this regard
Mhlanganisweni Community v Minister of Rural
Development and Land Reform
[2012] 3 All SA 563
(LCC) para 22.
16
Ibidpara
23;See also
HaakdoornbultBoerderyCC &others v Mphela&others
2007 (5) SA 596
(SCA) para 58.
17
Mhlanganisweni
Community v Minister of Rural Development and Land Reform
(above
n16) paras 22- 23.
18
Kwalindile
Community v King SabataDalindyebo Municipality&others
(Unreported) (Case 52/12)
[2013] ZACC 6
(28 March 2013) para43.
19
Ibidpara
51.
20
Section
6.
21
The
draft reads as follows:
‘
1.
The appeal is upheld.
2. The order of the Land
Claims Court dated 19 January 2010 is set aside.
3. The matter is
remitted to the Land Claims Court which is to consider and determine
anew the feasibility of restoring portions
1 (excluding the portion
of portion 1 which was previously known as portion 14 of the Farm
Syferfontein
451 JP), 5
, 6, 7, 8, 9, 10, 12, 13 of the Farm
Syferfontein 451JP and the remaining extent of the farm Rosmincol
442 JP, District Koster
(hereinafter referred to as ‘the
land’) to the first appellant.
4. In making the
determination as set out in para 3 above, the Land Claims Court
shall consider the following:
4.1 The nature of the
land and the surrounding environment at the time of dispossession.
4.2 The changes which
have taken place on the land itself and in the surrounding areas
since the dispossession.
4.3 Any physical or
inherent defects in the land.
4.4 Official land use
planning measures relating to the area.
4.5 Any other issue that
has a bearing on the determination of the feasibility of restoring
the land or part thereof to the first
appellant.
5. In order to ensure
that a restoration order, if granted, will fairly be implemented and
will bring about a workable and practical
result, the Land Claims
Court shall further consider the following issues as part of a
sustainable resettlement plan for those
members of the first
appellant who wish to relocate:
5.1 The number of
individuals and families who are expected to be resettled.
5.2 To the extent that
the entire community does not wish to resettle, the form and extent
of restoration and/or restitution.
5.3 The institutional
and financial support available or to be made available for the
resettlement.
5.4 The envisaged land
usage should the land be restored.
5.5 The cost of
expropriating the land, including the costs of any mineral rights if
same be found to be compensable in law.
5.6 The extent of the
compensation that shall be payable to the current owners of the
land.
5.7 The extent of the
loss of food production to the local economy should farming
activities not be continued at current levels.
5.8 The extent of social
disruption of the current landowners and their families should they
be required to physically leave their
farms.
5.9 The number of farm
workers and families who are dependent upon the incomes from their
employment on the farms and the extent
and impact of social
disruption, including possible loss of employment, to them.
5.10 Should the land be
restored to the first appellant, the extent of ‘overcompensation’,
if any, and how the problem
of ‘overcompensation’, if it
should occur, will be avoided.
6. There is no order as
to costs.’