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[2013] ZASCA 104
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Florence v The Government of the Republic of South Africa (550/12) [2013] ZASCA 104 (13 September 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no
:
550/12
NOT-REPORTABLE
In the matter between:
ISABEL JOYCE FLORENCE
..........................................................................
APPELLANT
and
THE GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA
.................................................................
RESPONDENT
Neutral citation:
Florence v
The Government of the RSA
(550/12)
[2013] ZASCA 104
(13 September2012)
Coram:
Nugent, Malan and Tshiqi
JJA
Heard: 27 August 2013
Delivered: 13September 2013
Summary: Section 33(
e
C) –
appropriate method to cater for changes overtime in the value of
money – CPI adequate indicator – LCC exercised
discretion
judicially.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Land Claims
Court, Western Cape(Carelse J sitting as court of first instance):
1. The appeal against para 1 of the
order of the LCC is dismissed.
2. The appeal against paragraph 2 of
the order of the LCC is upheld. That paragraph is set aside and
substituted with the following:
‘
The second
defendant is ordered to pay to the plaintiff the cost incurred in
erecting a memorial plaque on the building, limited
to the sum of
R50 000.’
3. Para 3 of the order of the LCC is
altered to read:
‘
The
respondent is to pay the costs of the plaintiff insofar as they have
not been met by the Land Claims Commission.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TSHIQI JA (NUGENT AND MALAN JJA
CONCURRING):
The facts in this appeal are largely
common cause. They are contained in a statement of agreed
factssignedby the partiesprior
to the trial in the Land Claims Court
(the LCC). This appeal is with the leave of that court (per Carelse
J).
The appellant’s late husband,
Mr Lionel Florence, and his brothers purchased the property known as
Sunny Croft in 1957 from
its owner, Dr Yeller, in terms of a written
instalment sale agreement. Sunny Croft was never transferred into
the name of the
Florence brothers as a result of racially
discriminatory legislation which prohibited the transfer of land to
disqualified persons.
In 1970 the Florence brothers were compelled
to cancel the sale agreement, sell the property back to Dr Yeller
and to vacate
it following threats to do so from inspectors who were
acting in terms of the Group Areas Amendment Act 77 of 1957.The
refund
they got from Dr Yeller was not market related and did not
constitute just and equitable compensation for the dispossession of
their rightsin the land.
Mr Lionel Florence launched a claim
in December 1995 in terms of the Restitution of Land Rights Act 22
of 1994 (the Restitution
Act) in his own right and in a
representative capacity on behalf of his brothers. After his death
the appellant was substituted
as a representative of the Florence
family. In light of the fact that the property is presently
developed and privately owned,
the claim for restoration was
abandoned, save to the extent that in addition to compensation, the
appellant seeks restoration
in the form of the erection of a
memorial plaque on the property symbolising the historical fact of
the dispossession. The present
owner of the property has consented
to the erection of the plaque. What remains is the cost of erecting
the plaque, which the
appellant seeks from the state.
The LCC has wide remedial powers
under s 35 of the Restitution Act. As pointed out in
Mphela
v HaakdoornbultBoerdery CC
,
1
when exercising those powers the LCC
exercises a discretion. In that case, on appeal from the LCC, this
court found that the LCC
had not properly exercised its discretion,
and proceeded to substitute its own decision. In doing so this court
was similarly
exercising a discretion, in substitution for that of
the LCC. Of the nature of that discretion the Constitutional Court
(CC)said
the following:
'…
In coming to its decision on whether or not to order the
return of the whole of the land claimed the Supreme Court of Appeal
exercised
a discretion.
The question whether
leave should be granted will therefore require a consideration
of the circumstances in which this court
will interfere with the
exercise by the Supreme Court of Appeal of its discretion.
The
discretion exercised by the Supreme Court of Appeal in this matter is
one in the strict sense, or as was said in
S
v Basson
, a “strong” discretion
or “true” discretion, in the sense that a range of
options was available to
it.As such this court, exercising appellate
jurisdiction, will not set aside the decision of the Supreme Court of
Appeal merely
because it would itself, on the facts of the matter
before the Supreme Court of Appeal, have come to a different
conclusion. It
will only interfere where it is shown that the
Supreme Court of Appeal had not exercised its discretion
judicially, or
that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in
the
result could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles.’
Section 33 sets out various factors
the LCC must take account of when considering its decision, which
include, when making an
order for equitable redress in the form of
compensation, ‘changes over time in the value of money’.
2
In this case the LCC was required to
determine:
The amount of compensation to be
awarded to the Florence family as a result of the dispossession in
1970,including solatiumin
respect of the hardship and suffering they
experienced as a result of the dispossession.
The appropriate method to be used
when converting the 1970 loss to cater for ‘changes over time
in the value of money’.
Whether the state should be ordered
to pay the costs of erecting the memorial plaque on the Sunny Croft
site.
Relying upon the earlier decision of
the LCC
3
,
confirmed by this court in
Farjas
(Pty) Ltd v Minister of Agriculture and Land Affairs,
4
the
LCC applied the CPI for the purpose of determining changes over time
in the value of money. The sole question on this part
of the appeal
is whether that was the appropriate means of determining the issue,
the appellant contending that the LCC ought
properly to have made
its assessment with reference to the present value of the money had
it been invested.
That was similarly the argument
advanced in
Farjas,
in which the facts were materially
indistinguishable. In that case the appellants were investors whose
properties had been expropriated
in terms of the Expropriation Act
63 of 1975. They were under compensated and the solatia they
were promised was never paid.
They approached the LCC seeking
equitable redress in the form of financial compensationas well as
payment of the solatia they
were promised. In support of their claim
they led the evidence of expert witnesses who focused mainly on the
returns the appellants
would have made had they received the amounts
in 1991 and invested them. They were all opposed to the application
of the CPI,emphasising
that most investors expect more returns from
their investments than those provided by the CPI. The only witness
in favour of
the CPI was an employee of the Land Claims
Commission.He explained to the LCC that the Commission, after
conducting research,
accepted the CPI as the best method for
assessing value of money over time and utilised it to settle all the
claims. The LCC
accepted the evidence of the Commission and
concluded that the CPI adequately catered for changes over time in
the value of money
and applied it to adjust the amounts of the
under-compensation. It made no order for payment of solatia.
On appeal this courtwas called upon
to determine,amongst other things, whether the LCC erred in usingthe
CPI for purposes of translating
the 1991 loss.This court dismissed
the appeal and stated:
‘
Having
regard to the facts of this matter, the judge considered and
evaluated all the evidence. She was faced with conflicting expert
evidence and had to determine what would constitute just and
equitable compensation, having regard to an equitable balance between
the public interest and the interests of the claimants. The evidence
of the experts reveals that they prepared their reports from
an
investor's point of view, whereas restitution has nothing to do
with commercial transactions, but with redressing massive
social and
historical injustice. The experts asserted that the CPI was not
appropriate; however, that is not the test. A court,
when considering
a claim under the Restitution Act, has to determine what is just and
equitable, having regard to the factors set
out in s 33 of the
Restitution Act. The judge analysed the evidence of the experts
and, in my view, correctly chose not to
accept it. The appellants
have not demonstrated that the application of the CPI is
inappropriate, or perhaps, more accurately,
would on the facts of
this case lead to an unjust or inequitable result. None of the
experts demonstrated that resort to the CPI
would have the effect
that the compensation would be unjust and inequitable.
…
In
Hoffmann
v South African Airways*
5
the
Constitutional Court stated that “(f)airness requires a
consideration of the interests of all those who might be affected
by
the order”. It follows that the compensation awarded must be
just and equitable not only to the appellants, but also to
the
members of society who have an interest in the manner in which public
resources are utilised.
Counsel
for the appellants submitted that the court below erred in applying
the CPI without any acceptable evidence being produced
to support it.
This argument is without merit. The CPI is an official government
statistic and published monthly in the
Government
Gazette
. There
was no need for expert evidence in that regard and the court below
was entitled to take judicial notice thereof. Furthermore,
the courts
have for a long time applied the CPI to adjust amounts of financial
compensation… .’
6
The record of the proceedings in the
present case runs to 16 volumes comprising mainly the evidence of
experts expressing their
opinions on the appropriate method to be
used to convert the loss into present day monetary value. In view of
the finding made
in
Farjas
most of that evidence is irrelevant
for the purposes of this appeal. It has already been found in
Farjas
that the LCC is entitled to rely upon the CPI to determine changes
in the value of money, and we are bound by that decision.
In those
circumstances it cannot be said that the LCC misdirected itself in
adopting the same approach.
Regarding the claim for the erection
of the memorial plaque, an agreement had been arrived at between the
Florence family and
the present owner of the property, allowing the
family to erect a plaque. The LCC concluded that because the
settlement agreement
was a private matter between the land owner and
the Florence family it had no jurisdiction to order the state to pay
the costs
of erecting the plaque. I can see no basis for that
conclusion. By concluding the agreement the family did not purport
to waive
any rights it might have had against the state for the
recovery of the cost.
Section 35 of the Restitution Act
confers on the LCC remedial powers
7
that
include the payment of ‘any alternative relief’.
8
The
memorial plaque is of a symbolic and spiritual importance and its
erection will acknowledge the hurt, indignity and injustice
suffered
by the Florence family and the other families in the area.It was
submitted on behalf of the state that to order the
payment of the
costs it would be usurping the functions of other state institutions
that are concerned with the erection of monuments.
We are not
concerned in this case with state monuments, but with a plaque to
recognise the private hurt and indignity to which
the erstwhile
members of the family were subjected. I can see no reason why a
plaque designed to fulfil that purpose should not
fall within the
solatium to which the family is entitled.
As for the costs of the appeal, it
concerned two limited issues – whether the LCC was entitled in
the exercise of its discretion
to apply the CPI, and whether the
family should be recompensed for the erection of a plaque. Those
limited issues did not call
for a filing of the entire record of the
proceedings in the court below. Even if we had reached the
conclusion that the court
below did not properly exercise its
discretion, and we had considered the matter afresh on its merits
rather than the remitting
it to the LCC, a large portion of the
record would not have been required.
When parties appeal to this court
they may not indiscriminately dump before it the entire record in
the court below. Not only
does that increase the cost of litigation
without warrant, but it also prejudicesthe proper functioning of
this court. That an
appellant must exercise judgment when filing a
record is expressly provided for in Rule 8(9) of the Rules of this
court as follows:
‘
(9)
(a)
Whenever
the
decision
of
an appeal is likely to hinge exclusively on part of the
record in
the
court
a
quo
,
the appellant shall, within 10 days of the noting of the appeal
,
request
the respondent's consent to omit the unnecessary parts from the
record
,
failing which
the
respondent shall, within 10 days thereafter, make a similar request
to the appellant
.
(b)
The respondent or the
appellant, as the case may
be, shall within 10 days agree
thereto or state
the reasons for
not agreeing to the
request.
(c)
The
request
and
the respondent's
response shall form part
of
the
record.
(d)
The
Court may make a
special order
of costs if no
request was made or if either ofthe
parties was unreasonable
in this regard.
(e)
If
the
parties agree to
limit the
record, only those
parts
of the
record
of
the
proceedings in
the
court
a quo
as are agreed upon shall be contained
in
the
record lodged with
the
registrar: Provided that
the
Court may call for
the full
record and may order full argument
of
the
whole case.’
The parties agreed upon the omission
of selected parts of the record. Many of those documents were
required to be omitted in the
first place, under Rule 8(6)(
j
).
But what remained after documents had been excised was far in excess
of what was required for the disposal of the appeal.
We would have given consideration to
disallowing the costs of part of the record, but in view of the
order we make it is not necessary
to do so.
The award of
costs is a matter which is within the discretion of the court
considering the issue of costs. It is a discretion
that must be
exercised judicially having regard to all the relevant
considerations. The ultimate goal is to do that which is
just having
regard to the facts and circumstances of the case. In
Biowatch
Trust v Registrar, Genetic Resources and others
9
,
the
CC stated:
‘…
In
litigation between the government and a private party seeking to
assert a constitutional right,
Affordable
Medicines
established
the principle that ordinarily, if the government loses, it should pay
the costs of the other side, and if the government
wins, each party
should bear its own costs… At the same time, however, the
general approach of this Court to costs in litigation
between private
parties and the State, is not unqualified. If an application is
frivolous or vexatious, or in any other way manifestly
inappropriate,
the applicant should not expect that the worthiness of its cause will
immunise it against an adverse costs award.Nevertheless,
for the
reasons given above, courts should not lightly turn their backs on
the general approach of not awarding costs against an
unsuccessful
litigant in proceedings against the State, where matters of genuine
constitutional import arise. Similarly, particularly
powerful reasons
must exist for a court not to award costs against the State in favour
of a private litigant who achieves substantial
success in proceedings
brought against it.’
The appellant did not achieve success
in the appeal on the principal issue, but was nonetheless obliged to
appeal to this court
in order to reverse the finding regarding the
costs of the plaque. In those circumstances I think it is fair and
just that each
party pay its own costs. In the court below the
government submitted that there was no need for an order of costs
because the
commission was funding the litigation in terms of
s 29(4) of the Restitution Act. To avoid any uncertainty, I
intend making
an order that the commission pays such costs in the
court below to the extent they are not paid.
In the result I make the following
order:
1. The appeal against paragraph 1 of
the order of the LCC is dismissed.
2. The appeal against paragraph 2 of
the order of the LCC is upheld. That paragraph is set aside and
substituted with the following:
‘
The second
defendant is ordered to pay to the plaintiff the cost incurred in
erecting a memorial plaque on the building, limited
to the sum of
R50 000.’
3. Para 3 of the order of the LCC is
altered to read:
‘
The
respondent is to pay the costs of the plaintiff insofar as they have
not been met by the Land Claims Commission.’
_____________________________
ZLL TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: P Hathorn (with him: F
Jakoct and S Harvey)
Instructed by: Legal Resources Centre,
Cape Town
Webbers, Bloemfontein
For Respondent: B Joseph
Instructed by:
The State Attorney, Cape Town
The State Attorney, Bloemfontein
1
Mphela
v HaakdoornbultBoerdery CC
2008(4) SA 488 (CC) para 15.
2
Section
33 (
eC
).
3
Farjas
(Pty)
Ltd v Minister of Agriculture and Land Affairs & others and
another case
[2012] JOL 28584
(LCC).
4
Farjas
(Pty) Ltd v Minister of Agriculture and Land Affairs & other and
another case
[2013] 1 All SA 381
(SCA) para 16.
5
Hoffmann
v South African Airways
2001 (1) SA 1
(CC)para
[43].
6
Farjas
(Pty) Ltd v Minister of Agriculture and Land Affairs
paras[22] –
[24].
7
Department
of Land Affairs and others v Goedgelegen Tropical Fruits (Pty) Ltd
2007 (6) SA 191
(CC).
8
Section
35(1)(
e
) of the Restitution Act.
9
Biowatch
Trust v Registrar, Genetic Resources and others
2009 (6) SA 232
(CC)paras [22] – [23].