About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 173
|
|
Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa and Others, Rainy Days Farms (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa and Others (753/11) [2012] ZASCA 173; [2013] 1 All SA 381 (SCA); 2013 (3) SA 263 (SCA) (29 November 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 753/11
In the matter
between:
FARJAS
(PROPRIETARY) LIMITED
..................................................
Appellant
and
MINISTER OF
AGRICULTURE AND LAND AFFAIRS
FOR THE REPUBLIC
OF SOUTH AFRICA
.........................
First
Respondent
REGIONAL LAND
CLAIMS COMMISSIONER
...............
Second
Respondent
CHIEF LAND CLAIMS
COMMISSIONER
..........................
Third
Respondent
AND
In the matter
between:
RAINY
DAYS FARMS (PROPRIETARY) LIMITED
..................................
Appellant
and
MINISTER
OF AGRICULTURE AND LAND AFFAIRS
FOR
THE REPUBLIC OF SOUTH AFRICA
.................................
First
Respondent
REGIONAL
LAND CLAIMS COMMISSIONER
...................
Second
Respondent
CHIEF LAND CLAIMS
COMMISSIONER
..........................
Third Respondent
Neutral citation
:
Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs for
RSA
(753/11)
[2012] ZASCA 173
(29 November 2012)
Coram:
LEWIS, PONNAN,
MHLANTLA and SHONGWE JJA and ERASMUS AJA
Heard:
2
November 2012
Delivered:
29
November 2012
Summary:
Restitution of Land Rights Act 22 of 1994
– land claims –
determination of proper compensation for expropriation of properties
– application of the Consumer
Price Index – adequate
indicator of the change in value of money over time.
___________________________________________________________________
ORDER
_____________________________________________________________________________________
On appeal from:
Land Claims
Court
(
Mia AJ sitting
with an assessor as court of first instance):
The appeal is
dismissed save for paragraph 4 of the order of the court below which
is set aside and substituted with the following:
‘
4
The plaintiffs are entitled to costs herein on a party and party
scale including the costs of two counsel where so employed.’
The appellants are
ordered to pay the costs of the appeal.
JUDGMENT
MHLANTLA JA
(LEWIS, PONNAN and SHONGWE JJA and ERASMUS AJA concurring):
[1] Farjas (Pty) Ltd
and Rainy Days Farms (Pty) Ltd (the appellants) are two companies,
(the sole director of each being Mr
F Jasat)
which owned immovable properties on the Farm
Whispers, Pietermaritzburg. The appellants had purchased the
properties for the purpose
of developing a township thereon. The
properties were rezoned and the plans were drafted for that purpose.
On 24 June 1991, both
properties were expropriated by the Minister of
Housing (House of Delegates) in terms of the Expropriation Act 63 of
1975. The
appellants received compensation as follows: Farjas, an
amount of R260 000 and Rainy Days, a sum of R280 000. They were
promised
an amount of R10 000 each as
solatia
but this was
never paid.
[2] The appellants
were not satisfied with the compensation paid. As a result, they
instituted proceedings in the Natal Provincial
Division in terms of
the Expropriation Act for increased compensation. They subsequently
aborted these legal proceedings when the
Restitution of Land Rights
Act 22 of 1994
came into operation and lodged claims with the
Regional Land Claims Commissioner, KwaZulu-Natal (the second
respondent) for the
restoration of the properties in terms of the
Restitution Act. The second respondent rejected the claims but the
decision was set
aside by the Land Claims Court in review proceedings
instituted by the appellants.
1
[3] Subsequent to
the review proceedings, the appellants abandoned their claims for the
restoration of the properties and sought
payment of the
solatia
promised as well as equitable redress in the form of financial
compensation. The respondents sought an opinion from Nicholas Maritz,
a land valuer. Mr Maritz concluded that the compensation paid to the
appellants was not just and equitable and that they had been
under-compensated in the sum of R 656 000 made up as follows: Farjas
in the sum of R380 000 and Rainy Days Farms in the sum of
R276 000.
The parties agreed on the amounts proposed by Maritz. The
respondents, however,
did
not accept his other recommendations. There was a dispute about the
payment of
solatia
. The appellants sought compensation with
interest contending that the amounts had remained unpaid for a period
of more than 19
years. The methods for adjusting the
amounts of
under-compensation proposed by various experts were rejected by the
respondents.
[4]
Before dealing with
the issues on appeal, it is apposite at this stage to outline the
statutory scheme. The Restitution Act was
enacted to give effect to
section 25(7) of the Constitution. This section provides that ‘[a]
person or community dispossessed
of property after 19 June 1913 as a
result of past racially discriminatory laws or practices is entitled,
to the extent provided
by an Act of Parliament, either to restitution
of that property or to equitable redress’.
[5]
In
Alexkor
Ltd & another v The Richtersveld Community & others
,
2
the Constitutional
Court stated the purpose of the Restitution Act as follows:
‘
[A]lthough
it is clear that a primary purpose of the Act was to undo some of the
damage wreaked by decades of spatial apartheid,
and that this
constitutes an important purpose relevant to the interpretation of
the Act, the Act has a broader scope. In particular,
its purpose is
to provide redress to those individuals and communities who were
dispossessed of their land rights by the Government
because of the
Government’s racially discriminatory policies in respect of
those very land rights.’
[
6]
In
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty)
Ltd
,
3
a case involving a
claim for restoration of land under the Restitution Act,
Moseneke DCJ stated
that the declared purpose of the Restitution Act ‘is to provide
restitution and equitable redress to as
many victims of racial
dispossession of land rights after 1913 as possible’.
[7]
It has to be borne
in mind that the Land Claims Court is a specialist court which
functions in a specialised area of the law. The
Legislature enacted
the Restitution Act and left it to that court to interpret the Act.
In
Goedgelegen
,
4
the learned Deputy
Chief Justice said:
‘
Section
35
5
of
the Restitution Act confers vast remedial powers on the Land Claims
Court. They range from restoration of land claimed or any
other right
in land to paying the claimant compensation or granting any
alternative relief. It would not be appropriate to venture
into
formulating a remedy beyond a declaratory order and costs. We have
heard no evidence on the possible variants of remedies
to be
preferred. In any event, it would not be desirable to be a court of
first and last instance on a matter best left to the
Department or a
specialist court, which the Land Claims Court is.’
[8]
The Land Claims Court is primarily charged to administer
and interpret the Restitution Act. It has wide remedial powers as set
out
in section 35. In considering its decision on the appropriate
order to be made, the court is obliged to consider various factors
and these are set out in section 33 as follows:
“
Factors
to be taken into account by Court–
In considering its
decision in any particular matter the Court shall have regard to the
following factors:
‘
(a)
the
desirability of providing for restitution of rights in land to any
person or community dispossessed as a result of past racially
discriminatory laws or practices;
(b)
the desirability of remedying past violations of human
rights;
(c)
the requirements of equity and justice;
(c
A
)
if restoration of a right in land is claimed, the
feasibility of such restoration;
(d)
the desirability of avoiding major social disruption;
(e)
any provision which already exists, in respect of the
land in question in any matter, for that land to be dealt with in a
manner
which is designed to protect and advance persons, or
categories of persons, disadvantaged by unfair discrimination in
order to
promote the achievement of equality and redress the results
of past racial discrimination;
(e
A
)
the amount of compensation or any other consideration
received in respect of the dispossession, and the circumstances
prevailing
at the time of the dispossession;
(e
B
)
the history of the dispossession, the hardship caused,
the current use of the land and the history of the acquisition and
use of
the land;
(e
C
)
in the case of an order for equitable redress in the
form of financial compensation,
changes over
time in the value of money
;
(f)
any other factor which the Court may consider relevant
and consistent with the spirit and objects of the Constitution and in
particular
the provisions of section 9 of the Constitution.’
(my emphasis).
[9]
The appellants in their statements of claim sought an order against
the respondents
for payment of the amounts that would, in
terms of section 33
(e
C
)
, make provision for the
changes over time in the value of money. They claimed first the
amounts that would be achieved by applying
the ABSA House Price
Index.
In the alternative, they
sought an order adjusting the amounts by applying for compensation in
terms of section 12(3) of the Expropriation
Act and in the further
alternative the Consumer Price Index (CPI). The matter
came
before the Land Claims Court (Mia AJ sitting with an assessor). The
appellants adduced the evidence of Mr Jasat and four experts.
Mr
Ramballi, formerly a consultant researcher to the Commission on
Restitution of Land Rights, testified on behalf of the respondents.
[10]
The appellants contended for a range of alternatives and in this
regard they relied on the evidence of three actuaries,
namely
Mr Mickey
Lowther, Mr Phillip Hellig and Mr Gerard Jacobson
as well as Mr Richard Pardy, a valuer. The testimony of the
experts related to the method to be applied to adjust the amounts of
under-compensation. All the witnesses focused on the returns the
appellants would have made had they received the amounts in 1991
and
invested them. They were opposed to the application of the CPI
stating that most investors would expect a return in excess
of that
provided by the CPI. They were
each
critical
of the methods proposed by
the others
and had different views on the issue. Mr Hellig
preferred the use of building society rates. Mr Jacobson, on the
other hand, was
of the view that the ABSA House Price and Land Value
Indices would be appropriate. Mr Lowther recommended the addition of
compound
interest whilst Mr Pardy proposed a township development
approach
. Not one of them
considered that the CPI was
the appropriate measure of value of money over time
to
compensate a developer of property for loss of growth on an
investment.
[
11]
Mr Jasat’s testimony related to the acquisition of the
properties. He did not testify about any hardship the appellants
experienced as a result of the expropriation. He sought compound
interest as it would provide the maximum amount of compensation.
[12]
Mr Ramballi in his testimony, dealt with the massive nature of the
land reform process that had been established. He also related
the
administrative and financial hurdles experienced by the Commission
and the complex questions of policy and compensation they
had to deal
with. He explained that the Commission, after conducting some
research, accepted that the CPI was the best method
of
assessing the
value
of money over time
. According to Ramballi, the Commission
received 72 000 land claims nationwide. It had applied the CPI
in settling other claims
and there had been no opposition to the use
of that method. Regarding
solatium
, he testified that it is
not provided for in the Restitution Act.
[13]
Mia AJ concluded
that the CPI adequately catered for changes over time in the value of
money. The judge rejected the methods relied
upon by the appellants.
She held that section 33
(e
C
)
of the Restitution
Act did not envisage an application of compound interest rates and
housing and land indices to determine changes
over time in the value
of money and that commercial instances had to be distinguished from
claims for restitution under the Restitution
Act. The judge
thereafter applied the CPI to adjust the amounts of
under-compensation and awarded Farjas an amount of R1 053 376
and Rainy Days R1 454 192.
6
She did not make any
order with regard to the appellants’ claims for
solatia
.
The appellants appeal against this order with leave of the Land
Claims Court contending that it erred in applying the CPI and
in
failing to award them the s
olatia
they were promised.
[14]
The appeal turns on three issues. Firstly, whether the court below
erred in applying the CPI and rejecting the methods proposed
by the
appellants. Put differently, the question is whether the court below
misdirected itself in the exercise of its discretion.
Secondly,
whether the appellants are entitled to payment of
solatia
under the Restitution Act. And thirdly, whether the respondents
should have been ordered to pay the costs of the matter on a punitive
scale.
[
15
]
When
the
appeal
was heard
, we invited counsel to address us on whether an
appeal did in fact avail the appellants in the circumstances of this
case. It will
be recalled that CPI was one of the alternative claims
advanced on behalf of the appellants before the Land Claims Court.
Judgment
was entered in their favour in respect of that claim. Having
successfully obtained judgment in respect of one of the alternative
claims advanced by them, one could not help wondering why an appeal
would lie in those circumstances. Counsel sought to contend
that by
the time the matter had come to be argued before the Land Claims
Court there had, by implication, been an abandonment by
the
appellants of any reliance on CPI and that it was no longer open to
the Land Claims Court to enter judgment in their favour
on that
alternative claim. A perusal of the record, however, does not support
that contention. Counsel sought – and was granted
– an
opportunity to file additional written argument on this point. That
has been done. Those written submissions conclude:
‘Appellants
cannot find authority precisely on the issue raised at the appeal’.
Given the apparent novelty of the matter
and also the conclusion to
which I come on the other issues that call for a decision in this
appeal, I shall assume (without deciding)
in favour of the appellants
that an appeal does indeed avail them.
[
16]
The Land Claims
Court exercised a discretion when it applied the CPI. The discretion
is a strict one. In
Mphela
& others v Haakdoornbult Boerdery
CC
&
others
,
7
Mpati AJ said the
following in relation to the exercise of the discretion by the lower
courts in restitution cases:
‘
(I)n
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.’
It follows that this
court may only interfere with the order of the Land Claims Court if
the appellants can show that the court
below did not exercise its
discretion judicially.
[
17]
Where the order to
be made is in the form of financial compensation, the Legislature did
not prescribe the method to be applied
to determine ‘changes
over time in the value of money’. The Legislature left it to
the Department and the Land Claims
Court to consider all the options
available and determine an appropriate method having regard to the
relevant provisions of the
Restitution Act. In this regard
section
25(3) of the Constitution requires that the amount of compensation be
just and equitable.
8
This section
requires an equitable balance to be struck between the public
interest and the interests of the appellants. In
National
Coalition for Gay and Lesbian Equality & another v Minister of
Justice & others,
9
Ackerman
J said that ‘justice and equity must also be evaluated from the
perspective of the State and the broad interests
of society
generally’.
[1
8
]
In
Haakdoornbult
Boerdery CC & others v Mphela & others,
10
Harms ADP said:
‘
(C)ompensation,
to be fair… must recompense. The purpose of giving fair
compensation is to put the dispossessed, insofar
as money can do it,
in the same position as if the land had not been taken. Fair
compensation is not always the same as the market
value of the
property taken; it is but one of the items which must be taken into
account when determining what would be fair compensation.
Because of important
structural and politico-cultural reasons indigenous people suffer
disproportionately when displaced and Western
concepts of
expropriation and compensation are not always suitable when dealing
with community held tribal land. A wider range
of socially relevant
factors should
consequently be taken into account, such as resettlement costs and,
in appropriate
circumstances,
solace for emotional distress.’
[1
9
]
A claim for compensation under the Restitution Act is a claim
sui
generis
. As
Moseneke
DCJ said in
Goedgelegen
:
11
‘
(N)either
liability nor culpability in the conventional sense is a feature of
the restoration scheme envisaged by s 25(7) of the
Constitution and
the Restitution Act. Entitlement to redress under the Restitution Act
does not hinge on any form of blameworthy
conduct such as intention
or negligence or a duty of care. Equally important is that the
operative legislation does not hold liable
any party for historical
dispossession, whatever the motive of the dispossessor. It merely
sets conditions that entitle a claimant
to restitution . . ..
The claim is against
the State. It has a reparative and restitutionary character. It is
neither punitive in the criminal law sense
nor compensatory in the
civil law sense. Rather, it advances a major public purpose and uses
public resources in a manifestly equitable
way to deal with egregious
and identifiable forms of historic hurt.’
I turn now to
consider the issues raised on appeal.
[
20]
Regarding the claim for compound interest, counsel for
the appellants argued that the Land Claims Court erred in rejecting
the expert
evidence on behalf of the appellants. He informed us that
the appellants persist in their claim for compound interest and were
no longer interested in
the
other alternatives advanced
. A revised
schedule of calculation prepared by Mr Lowther was handed in. In
support of this contention, counsel called in aid the
decisions in
Davehill (Pty) Ltd & others v Community
Development Board
,
12
Crookes Brothers Ltd v Regional Land Claims
Commission for the Province of Mpumalanga & others
13
and
Mokala Beleggings &
another v Minister of Rural Development and Land Reform &
others
,
14
which re-affirmed the principle that ‘interest is
the life-blood of finance’.
[21]
These cases do not assist the appellants as they involved commercial
transactions and interest in terms of the Expropriation Act.
Both
Crookes
and
Mokala
dealt with
mora
interest. The
parties in these cases had concluded contracts of sale of immovable
properties subject to certain conditions. Both
properties were
subject to land claims under the Restitution Act. The sellers claimed
mora
interest as a result of the purchasers’ failure to
pay the purchase price within the stipulated period. This court
substituted
the orders of the courts below which had dismissed the
sellers’ claims for interest. Similarly reliance on
Davehill
is misplaced as that case dealt with section 12(3) of the
Expropriation Act, which provided for interest to be paid by the
expropriating
authority. There is no mention of interest in the
Restitution Act.
[
22
]
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
section 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.
[23]
In my view, an application of compound interest will
defeat the purpose of the Restitution Act. It will result in the
over-compensation
of the appellants. Furthermore, this method is not
contemplated in the provisions of the Restitution Act. In
Hoffmann
v South African Airways,
15
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 utilized.
[
24]
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
Gazzette
. 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. It is
apposite at this stage to have
regard to instances where the courts
have recognised the CPI as an adequate indicator of the change over
time in the value of money
and endorsed its application.
[
25
]
The first of these examples is
National
Director of Public Prosecutions
v
Gardener & another,
16
where this court applied the CPI to adjust the amounts
by which the respondents had benefited from their criminal activities
so
as to deprive them of the full extent of the benefit they had
received from the commission of the offences. In
Minister
of Safety and Security
v
Seymour
,
17
this court applied the CPI to update an earlier award
for wrongful arrest. Similarly in
Ex Parte
Sidelsky
,
18
the court changed the terms of a bequest in a will to
increase it by the application of the CPI to cater for inflation and
the change
in the value of money. It follows that the reasoning and
conclusion of the court below with regard to the application of the
CPI
cannot be faulted.
[
26]
This brings me to the claims for
solatia
.
As stated earlier, Mia AJ made no order on the appellants’
claims for
solatia
. It
may be accepted that she dismissed
those claims. The
appellants persist in their claims. It became clear during the
hearing
of this appeal that
the appellants’ claims were based on promises made to them in
1991. In this regard
counsel for the appellants referred us to notices issued in terms of
the Expropriation
Act. No reliance can be placed on these notices as the appellants’
claims
are now governed by the provisions of the Restitution Act. A claimant
has a duty in terms of the Restitution Act to adduce
evidence to
prove any entitlement to
solatium
.
In
Hermanus
v
Department of Land Affairs
:
In
re
Erven 3535
and
3536, Goodwood
,
19
Gildenhuys AJ said that
solatium
awards are by no means automatic. The appellants, in the
instant case, had to tender evidence of the hardship caused by the
expropriation
to justify payment of
solatia
.
They failed to do so. Their claims were accordingly correctly
rejected.
[27
]
It needs to be emphasised that given the nature of the discretion
exercised by the Land Claims Court appellate interference is
permissible on restricted grounds only. Here it has not been
suggested that the Land Claims Court exercised its discretion
capriciously
or upon a wrong principle or failed to bring an unbiased
judgment to bear on the matter. In the result the appellants have
failed
to establish that the Land Claims Court misdirected itself in
the exercise of its discretion. They also failed to establish any
entitlement to
solatia
. There is
accordingly no basis for this court to interfere with the order of
the court below. In the result the appeal must fail.
[28
]
The final issue is costs. Counsel for the appellants contended that
the respondents caused the delays in bringing the matter to
finality.
He sought a punitive costs order against the respondents,
alternatively, a costs order which would include the qualifying
fees
of the appellants’ experts.
[29]
It seems to me that both parties were responsible for the delays.
There was no malice on the part of the Commission. Counsel for
the
respondents, correctly, conceded that the evidence points to
incompetence on the part of the staff of the Commission. It is
evident from the record that offers were made to the appellants but
these were rejected by their representative, Mr Jasat. Both
parties
stuck to their positions. In so far as the qualifying fees of the
experts are concerned, it has to be borne in mind that
these experts
were called by the appellants to advance their case. Their
conflicting evidence did not assist the court below and
was correctly
rejected. It follows that there is no basis to interfere with the
discretion of the court below when it ordered the
respondents to pay
the appellants’ costs on a party and party scale.
[30]
Finally, the court below requested the parties to submit a report
relating to international trends on compensation in restitution
matters. The appellants engaged a second counsel to assist with the
research and production of such a report, which was handed
into
court. The costs associated with the production of the report were
excluded in the ultimate order issued by the court. In
my view the
court below erred in this regard as it had expressly asked for this
report. In the result the employment of the second
counsel for this
purpose was justified. The appellants are accordingly entitled to
these costs.
[
31]
In the result, the following order is made:
1 The appeal is
dismissed save for paragraph 4 of the order of the court below which
is set aside and substituted with the following:
‘
4 The
plaintiffs are entitled to costs herein on a party and party scale
including the costs of two counsel where so employed.’
The appellants are
ordered to pay the costs of the appeal.
_____________________
NZ MHLANTLA
JUDGE OF APPEAL
APPEARANCES
For Appellant: A J
Dickson SC
Instructed by: Cajee
Setsubi Chetty Inc, Pietermaritzburg
Lovius-Block,
Bloemfontein
For Respondent: A A
Gabriel SC
Instructed by: The
State Attorney, Durban
The State Attorney,
Bloemfontein
1
See
Farjas (Pty) Ltd &
another v Regional Land Claims Commissioner, KwaZulu-Natal
1998 (2) SA 900
(LCC).
2
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004
(5) SA 460
(CC) para 98.
3
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) para 42.
4
Para
84. See also
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490(CC)
para 48.
5
Section
35(1) provides:
‘
(1)
The Court may order–
(a)
the restoration of land, a
portion of land or any right in land in respect of which the claim
or any other claim is made to the
claimant or award any land, a
portion of or a right in land to the claimant in full or in partial
settlement of the claim and,
where necessary, the prior acquisition
or expropriation of the land, portion of land or right in land:
Provided that the claimant
shall not be awarded land, a portion of
land or a right in land dispossessed from another claimant or the
latter’s ascendant,
unless−
(i) such other
claimant is or has been granted restitution of a right in land or
has waived his or her right to restoration of
the right in land
concerned; or
(ii) the Court is
satisfied that satisfactory arrangements have been or will be made
to grant such other claimant restitution
of a right in land;
(b)
the State to grant the claimant
an appropriate right in alternative state-owned land and, where
necessary, order the State to
designate it;
(c)
the State to pay the claimant
compensation;
(d)
the State to include the
claimant as a beneficiary of a State support programme for housing
or the allocation and development
of rural land;
(e)
the grant to the claimant of any
alternative relief.’
6
In
its judgment, the Land Claims Court made a mistake and stated that
Farjas was under-compensated by R276 000 and provides
that
Rainy Days was under-compensated by R380 000. This mistake was
carried through in its award of the adjusted amounts. In
fact Farjas
was entitled to the higher amount. Nothing turns on this as the
appellants are related companies
.
7
Mphela
& others v Haakdoornbult Boerdery CC & others
[2008] ZACC 5
;
2008 (4) SA
488
(CC) paras 25 and 26.
8
Section
25(3) provides:
‘
The
amount of the compensation and the time and manner of payment must
be just and equitable, reflecting an equitable balance
between the
public interest and the interests of those affected, having regard
to all relevant circumstances, including–
(a)
the
current use of the property;
(b)
the
history of the acquisition and use of the property;
(c)
the
market value of the property;
(d)
the
extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
(e)
the
purpose of the expropriation.’
9
National
Coalition for Gay and Lesbian Equality & another v Minister of
Justice
& others
1999 (1) SA 6
(CC) para 94.
10
Haakdoornbult
Boerdery CC & others v Mphela & others
2007 (5) SA 596
(SCA) para 48.
11
Paras
67 and 68.
12
Davehill
(Pty) Ltd & others v Community Development Board
1988 (1) SA
290
(A).
13
Crookes
Brothers Ltd v Regional Land Claims Commission for the Province of
Mpumalanga & others
[2012] ZASCA 128.
14
Mokala
Beleggings & another v Minister of Rural Development and Land
Reform & others
2012 (4) SA 22
(SCA).
15
Hoffmann
v South African Airways
2001
(1) SA 1
(CC) para 43.
16
National
Director of Public Prosecutions v Gardener & another
2011
(4) SA 102
(SCA) para 32.
17
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 16.
18
Ex
Parte Sidelsky
1983 (4) SA 598
(C) at 603F-604A.
19
Hermanus
v Department of Land Affairs:In re Erven 3535 and 3536, Goodwood
2001 (1) SA 1030
(LCC) para 24.