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[2017] ZASCA 1
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Minister of Rural Development and Land Reform and Another v Phillips (52/2016) [2017] ZASCA 1; [2017] 2 All SA 33 (SCA) (22 February 2017)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
52/2016
In
the matter between:
MINISTER
OF RURAL DEVELOPMENT
AND
LAND REFORM
FIRST
APPELLANT
THE
REGIONAL LAND CLAIMS
COMMISSIONER,
EASTERN
CAPE
SECOND
APPELLANT
and
IVOR
LEROY
PHILLIPS RESPONDENT
Neutral
citation:
Minister
of Rural Development and Land Reform v Phillips
(52/2016)
[2017] ZASCA 1
(22 February 2017)
Coram:
Leach,
Tshiqi and Zondi JJA and Makgoka and Schippers AJJA
Heard:
21
November 2016
Delivered:
22
February 2017
Summary:
Award
of financial compensation made to redress a dispossession of a right
in land under the
Restitution of Land Rights Act 22 of 1994
:
principles applicable to the determination of redress : no reasonable
prospect of another court finding the Land Claims Court
had erred in
its determination.
ORDER
On
appeal from:
Land
Claims Court of South Africa, Randburg (Meer AJP and assessor sitting
as court of first instance):
1 The application for condonation
of the late filing of the record of the proceedings in the court a
quo and reinstatement of the
appeal is dismissed, and the appeal is
struck from the roll.
2 The applicants are to pay the
respondent’s costs, such costs to include the costs of two
counsel.
JUDGMENT
Leach
JA (Tshiqi and Zondi JJA and Makgoka and Schippers AJJA concurring)
[1]
The applicants sought and obtained leave to appeal to this Court
against an order made by the Land Claims Court that the respondent
be
paid R14 785 000 under the Restitution of Land Rights Act
22 of 1994 (the Restitution Act) pursuant to his having
been
dispossessed of certain farming properties in the Eastern Cape under
a past racial law for which he had not received just
and equitable
compensation. They also sought to appeal against an order that they
pay costs on the scale as between attorney and
client.
[2]
The applicants, however, allowed their appeal to lapse by failing to
file the record timeously, and on 27 October 2015 the Registrar
of
this Court addressed a letter to that effect to the parties.
[1]
As a result, the respondent served a letter on the applicants
(respectively on 30 November and 1 December, 2015) demanding
satisfaction of the judgment. The same letter was served on the State
Attorney, Mthatha on 15 January 2016. This eventually appears
to have
provoked a reaction as, on 22 January 2016, the applicants launched
the present application seeking an order condoning
their failure to
lodge the appeal record timeously and re-instating their appeal. The
primary exculpatory factor they relied upon
was a professed
difficulty in obtaining a record from the company charged with its
transcription.
[3]
This relief was opposed by the respondent. In doing so he drew
attention to various correspondence that had passed, as well
as an
affidavit from the transcribers, in support of an argument that there
had been dilatoriness on the part of the applicants
and the State
Attorney. That may well have been the case but this matter may be
determined without any decision on that issue.
Indeed the matter was
argued essentially on the merits of the proposed appeal, it being the
respondent’s contention that
there was no reasonable prospect
of success in the appeal and, consequently, on that ground alone the
application ought to be dismissed.
In this way, the merits of the
appeal were ventilated in this Court in order to determine whether
the appeal, which had been provisionally
enrolled, should be heard or
struck from the roll.
[4]
I therefore turn to deal with the merits of the respondent’s
claim that was upheld in the court a quo.
It
was based on an allegation that he had been dispossessed of his
rights in land as a result of a past racial law, namely, the
Development Trust and Land Act 18 of 1936 (the Development Act). The
land in question
were
the farms Thibet Park 346, Otterford 347, Portion 1 of Keys Poort 149
and the remainder of Keys Poort 149, situate in the division
of
Queenstown and Tarkastad, in the Eastern Cape. Although registered as
four separate entities, the first two were historically
treated as
the farm Thibet Park whilst the latter two were known as the farm
Keys Poort. They were referred to collectively by
the court a quo as
‘the subject properties’ and, for convenience, I intend
to use this collective nomenclature as well.
[5]
The subject properties were farmed as if they were a single unit, the
respondent having stated in a memorandum of 29 April 1977
that ‘there
is not even a fence on the boundary between my said two farms’
and that this had been the position for
several generations. Indeed,
the Otterford portion was acquired by an ancestor of the respondent
in November 1891 while the remainder
of Thibet Park and Keys Poort
were purchased by the respondent’s father in 1955. They were
held in the respondent’s
name by way of a Deed of Transfer No
19325 of 1971.
[6]
It was the respondent’s case that in 1977 he had sold the
subject properties under duress to the South African Development
Trust for R475 000, a sum which he contended did not constitute
just and equitable compensation as envisaged in s 2 of the
Restitution Act. The farms were acquired from him for subsequent
incorporation into the so-called ‘Republic of Ciskei’
after the area in which they were situated had been declared to be a
‘released area’ for occupation solely by black
persons
under the terms of the Development Act. They were indeed later
incorporated into Ciskei and, today, form part of what is
known as
the Tsolwana Game Reserve.
[7]
The respondent
claimed that he had sold under duress and that, in all the
circumstances, he had been dispossessed of the subject
properties. He
therefore
lodged
a claim under the provisions of s 2 of the Restitution Act on 28
December 1998, seeking
equitable
redress in the form of
financial
compensation for this dispossession. This was the beginning of a long
and drawn-out process which eventually culminated
in the order of the
court a quo against which the applicants seek to appeal.
[8]
A period of almost six years elapsed before the second applicant, in
a letter dated 16 August 2004, accepted the respondent’s
claim
as valid. On 8 November 2006, negotiations between the second
applicant and the respondent resulted in an offer to pay the
respondent R6,9 million. This was rejected and no further progress
was made until 18 August 2010, when the Land Claims Court granted
a
mandamus compelling the second applicant to refer the respondent’s
claim for adjudication. It was only pursuant to this
that, on 13
November 2010, the second applicant referred the claim to the Land
Claims Court under the provisions of s 14(1) of
the Restitution Act.
In doing so, the second applicant disputed that a valid claim had
been lodged under s 2 of that Act. The basis
for it doing so was its
contention that the compensation the respondent had received at the
time of his dispossession constituted
just and equitable compensation
as contemplated under s 2(2). However, the merits of the claim,
namely, that the respondent had
suffered a dispossession when he had
sold the farms under duress, remained undisputed.
[9]
The matter was set down for trial on 6 May 2013. As appears from what
I have said, at that stage the sole issue was whether
the respondent
had received just and equitable compensation at the time of his
dispossession, such dispossession being at that
stage common cause.
Shortly before the trial, however, the second applicant delivered a
notice of amendment seeking to withdraw
the admissions contained in
the referral; in particular, the admission that the respondent had
been dispossessed. After a pre-trial
conference, the respondent
agreed to the amendment and to the trial proceeding solely on the
question of whether there had been
a dispossession of his rights in
land when he sold the subject properties in 1977.
[10]
Accordingly, the Land Claims Court then proceeded to decide as a
separate issue whether there had been a dispossession as envisaged
by
the Restitution Act. After hearing evidence, it held in favour of the
respondent and, on 9 May 2013, granted an order declaring
that the
respondent had indeed been dispossessed of rights in land in respect
of the subject properties. Subsequently, on 30 July
2013, the Land
Claims Court dismissed an application for leave to appeal against
that order.
[11]
The applicants, however, persisted in disputing that the respondent
had been dispossessed, and petitioned this court for leave
to appeal.
In doing so they contended, inter alia, that the respondent, as a
white person, did not fall within the category of
those who are
entitled to restitution under the Restitution Act and that the Land
Claims Court had erred in finding to the contrary.
They went on to
allege that even if the respondent was within the class of persons
entitled to restitution, he had not been dispossessed
of rights in
land in that the sale under coercion or duress could not be regarded
as a dispossession. All of this flew in the face
of a long list of
judgments, unnecessary to mention in this judgment, but which the
applicants argued were merely obiter.
[12]
In any event, the application for leave to appeal to this court was
refused, as was a subsequent application for leave addressed
to the
Constitutional Court. That brought finality in the respondent’s
favour on the issue of whether there had been a dispossession.
Accordingly only the issue of compensation remained to be determined.
In this convoluted way the matter returned to the court a
quo, in
mid-June 2014, for it to determine what compensation the respondent
should be paid as
equitable
redress.
[13]
In determining what redress would be appropriate, the court a quo
undertook as its starting point an assessment of the financial
loss
suffered by the respondent at the time of the dispossession. This was
in accordance with the decision of the Constitutional
Court in
Florence.
[2]
Consequently the primary issue between the parties in the court a quo
was the value of the subject properties in 1977, and whether
the
respondent had been under-compensated when he sold them.
[14]
Turning to the question of value, it should be recorded that the
subject properties are situated to the north of the Winterberg
range.
They are blessed with sweetveld grazing which remains palatable and
nutritious throughout the year and provides a relatively
low cost,
but high quality, food source for livestock. Together with that of
the Smaldeel (a region I shall mention later) the
subject properties
fall within an area generally regarded as being one of the best
livestock areas in the country, known to be
tick-free and,
importantly, largely disease-free. They also enjoy a high average
rainfall of 450-500mm per annum, falling mainly
during the summer and
autumn. Moreover, unlike most of the properties nearby where water is
not perennial, the subject properties
are transected by the Swart Kei
River which runs through them. Not only is the river perennial but it
is additionally fed by the
Limietskloof and Thrift irrigation dams.
Their soils are inherently fertile, there being deep, irrigable soils
straddling the Swart
Kei. As a result, drought, that constant enemy
of South African farmers, was not as serious a problem for the
respondent as it
was to many others, not only as there was water for
stock but fodder was produced from irrigated lands to provide feed.
[15]
By reason of the way the argument developed in this Court, it is not
necessary to deal in any further detail with the improvements
on the
subject properties or the benefits Mother Nature had bestowed upon
them. Suffice it to say that they formed an integral
part of the
assets used by the respondent and his three brothers with whom he
farmed in partnership. The partnership conducted
a flourishing
enterprise. It ran in excess of 1 000 cattle and 10 000 sheep. It had
both a race horse stud and a Dorper sheep stud
as well as a dairy
herd of some 560 Jersey cows. Three hundred hectares of lands, more
than a third of which which were located
on the subject properties,
were under irrigation and provided mainly lucerne at a yield of some
15 tons per hectare per annum.
The subject properties were thus
magnificent farms of considerable value.
[16]
The respondent was paid R475 700 for the subject properties in
1977, being R321 500 in respect of the farm Thibet
Park and
R154 100 in respect of the Keys Poort. These were the amounts
reflected in a valuation report prepared by a valuer
employed by the
State at the time, a Mr Prinsloo. Neither side relied upon his
valuation which was justifiably and stringently
criticised by the
court a quo. However, despite the glaring inconsistencies that it
contained, and Mr Prinsloo’s apparent
failure to
appreciate the value of the abundance of water on the subject
properties (factors which the court a quo found justified
the
rejection of his valuation), both the applicants and the valuers who
testified on their behalf steadfastly maintained during
evidence that
the amount the respondent had been paid had amounted to adequate
compensation.
[17] However during the course of
argument the applicants changed their stance, and the court a quo
recorded:
‘
Whilst
the [appellants’] valuers and their counsel maintained
throughout that the [respondent] had been adequately compensated,
surprisingly in their heads of argument they advocated that the sum
of R3,209,000 be determined as just and equitable compensation.
I
shall attempt to explain the calculation leading up to this as was
explained to me. Mr Notshe said that they had arrived at this
figure
by adding a
solatium
of R28,375 calculated in accordance with s 12 of the Expropriation
Act No 63 of 1975 to the market value of R467,500 as of date
of
dispossession determined by them, resulting in a shortfall of R20,175
adjusted to a present value of R605,250. They then arrived
at a
shortfall of 3 to 5 million rand between the current value of
R467,500 which they estimated to be R14,025,000, and the sum
of
R17 million, to R19 million which they estimated (without any
explanation or motivation) to be the value of the subject
properties,
had they remained in the plaintiff’s possession. They
thereafter estimated (once again without explanation) that
R2,6
million would be just and equitable compensation, and added R605,250
to this figure to arrive at R3,209,000 as a final just
and equitable
compensation figure. It is of grave concern that the [applicants] saw
fit to provide such random and unmotivated
figures unsupported by
evidence only at the stage of argument.’
[18]
The applicants changed their stance again in this Court. They
reverted to contending that the amount paid to the respondent
at the
date of dispossession had been adequate and that no further redress
under the Restitution Act was justified. But as is apparent
from what
is set out below, the basis of this contention changed from that
adopted during the trial and in respect of which leave
to appeal to
this court had been granted – namely that the respondent had in
fact been paid more than the subject properties
were worth – to
an argument that even if there had been a substantial under-payment,
no further financial compensation should
be paid to the respondent.
[19]
In advancing his case that he had been paid substantially less than
he ought to have been, the respondent relied upon the expert
testimony of professional associated valuers, Mr Henderson and Prof
Tainton, the latter being a professor emeritus at the University
of
KwaZulu-Natal. In their valuations of the subject properties, they
relied upon what has become known as ‘the Smaldeel
norms’
for land values. Produced by a committee of agricultural and property
experts, these norms were based on the market
value of a broad
spectrum of agricultural properties in the so-called ‘Smaldeel’.
This is a high rainfall area
situated between the Keiskamma and Kat
rivers, south of Alice and in the vicinity of Fort Beaufort, and
renowned for the high quality
of its livestock grazing. The Smaldeel
norms were designed to achieve a measure of uniformity of land values
in the area as the
government of the day was determined to
incorporate a number of farms in the Smaldeel region into Ciskei, and
needed an empirical
basis to assess compensation for the farmers
whose land was to be acquired for this purpose. This led to the
appointment of a committee
of experts in the field of pastoral
science and agriculture who were mandated to determine an acceptable
set of norms which could
be used to value these properties. Although
these norms were only finally agreed upon in 1981, a few years after
the respondent
had been dispossessed of the subject properties, they
were regarded by Mr Henderson and Prof Tainton to be appropriate for
use
in the present case. This was as they took into account market
transactions that had occurred at a similar time and as the grazing
and rainfall of the Smaldeel are similar to that of the subject
properties.
[20]
Whilst the court a quo did not slavishly follow the evidence of
the respondent’s valuers, it did accept the
use of the Smaldeel
norms as a means to determine market value. On the other hand, it
rejected the evidence given by the valuers
who testified for the
applicants, Messrs Voges and Taylor, who had relied for their
valuation of the subject properties upon a
list of sales provided by
a firm of accountants as possible comparable transactions, and had
then merely done a so-called ‘desktop’
valuation without
even inspecting the various properties. The only relevance of the 12
transactions they had relied upon came from
a similarity of veld
types and did not take account of any of the other important features
of the subject properties.
[21] In dealing with this
evidence, the court a quo stated, quite correctly, that ‘it is
trite that a comparable transaction
which has not been properly
investigated affords little assistance and that our courts have
rejected valuations on the grounds
that valuers have not investigated
sufficiently the transactions on which they have relied’. It
went on to say:
‘
The
fact that the defendants’ valuations of the subject properties
and the 12 transactions were compiled on a desktop basis
without
visiting the properties led to inaccuracies in the recordings of the
extent and nature of the irrigation on both the subject
properties
and the 12 transactions. Crucially in respect of the subject property
the defendants’ reports largely ignored
the existence of 110
hectares of irrigated land. It is difficult to comprehend how the
defendants’ valuers could have considered
that a desktop
valuation could suffice for the purposes of the determination of
value in a complex restitution claim. It is disquieting
that they saw
fit to rely on this method especially in a disputed claim. A desktop
valuation is a procedure which flies in the
face of accepted
valuation practice requiring proper investigation.
Then
too in respect of the alleged comparable properties the defendants’
initial report contains no reference to arable, irrigable
or
irrigated land. In the table subsequently filed irrigated land is
indicated on some of the properties, but without explanation.
The
discrepancies between the desktop valuation and the schedule is a
cause for criticism, as is the failure to provide the requested
supporting maps, photographs, collateral evidence and the failure to
access relevant historical documents. Simply to have based
the
valuation and analysis of the subject properties on the deeds of
transfer, topo-cadastral maps and aerial photographs was conduct
unbefitting of a diligent valuer. So too, the failure to do their own
research and the acceptance without more of the instruction
not to
inspect the subject properties. All things considered, the basic data
that the defendants’ valuers had was insufficient
to do a
reliable valuation based on the comparable sales method or to
determine if the sales were arm’s length transactions.’
[22]
In the light of these findings, the court a quo rejected the
valuations of the applicants’ experts. Guided by certain
of the
evidence of the respondent’s experts, it donned its mantle of
‘super valuator’
[3]
and, after
having closely analysed various other sales of properties which it
held were comparable in various respects with the
subject properties,
concluded that when dispossessed in 1977, the respondent had been
under-compensated by an amount of R568 909
(being R315 653
in respect of Thibet Park and R253 256 in respect of Keys
Poort).
[23] That sum, when transposed in
terms of an agreed index to the current value of money under s
33(e
C
)
of the Restitution Act, is equivalent to an amount of R16 427 889.
To that figure the court a quo made a downward adjustment,
following
the approach laid down by Moseneke ACJ in the majority judgment in
Florence
where it was said:
‘
[124]
Equitable redress must be sufficient to make up for what was taken
away at the time of dispossession. The amount of
compensation has to
be just and equitable reflecting a fair balance between public
interest and the interest of those affected
after considering
relevant circumstances listed in s 33 of the Restitution Act. For
instance, a history of hardship caused by the
dispossession may
entitle a claimant to a higher compensation award in order to assuage
past disrespect and indignity.
[125]
But compensation within the scheme of the Restitution Act is neither
punitive nor retributive. It is not to be likened to
a delictual
claim aimed at awarding damages that are capable of precise
computation of loss on a “but-for” basis. It
is a
constitutionalised scheme paid out of public funds in order to find
equitable redress to a tragic past. Ultimately, what is
just and
equitable must be evaluated not only from the perspective of the
claimant but also of the State as the custodian of the
national
fiscus and the broad interests of society, as well as all those who
might be affected by the order made.’
[24]
In the light of this dictum, the court a quo felt that the
requirements of justice and equity dictated that a downward
adjustment
of 10% would be equitable to take account not only of the
respondent’s perception, but to also take into consideration
the
concerns of the national fiscus in a strained economy and as the
interests of a society in which many land claims still have to
be
settled. Applying such a deduction to the current value of the
respondent’s calculated 1977 loss, it arrived at the sum
of
R14 785 00 ultimately awarded.
[25]
The court a quo’s determination of the value of the subject
properties in 1977 was the essential finding which the applicants
sought to impugn in their application for leave to appeal. They
contended that the court a quo had erred both in rejecting their
expert witnesses and accepting the evidence of those of the
respondent. They also contended that the punitive costs order granted
against them was not justified. In granting leave to appeal, the
court a quo stated that it was mindful of the fact that valuation
is
not an exact science and it felt that another court could come to a
different decision relating to its valuation. It was thus
apparent to
the court a quo that, save for the costs issue, the only relevant
issue was that of the value of the subject properties
in 1977.
[26]
That it was indeed the relevant issue is borne out by the applicants’
heads of argument filed in this court. They
were devoted almost
entirely to the question of the value of the subject properties in
1977, and traversed the appropriateness
of the use of the Smaldeel
norms, the comparable transactions, the rainfall capacity of the
properties and allegedly inconsistent
and unreliable information
which was taken into account – before concluding that the
respondent’s experts as to value
ought to have been rejected
and that the evidence of their valuators, that the subject properties
had not been under-valued, ought
to have been accepted.
[27]
However, at the outset of the hearing before this Court, no sooner
had the difficulties which the court a quo had with the
applicants’
experts been put to him, leading counsel for the applicants promptly
conceded that the applicants’ experts
had been correctly
discredited and that their evidence could not be relied upon, and
that the court a quo had been entitled to
have regard to the
respondent’s evidence as to value. Not only was this a correct
concession that had to be made, but it
was one that ought to have
been obvious and made before the trial in the court a quo. And to all
intents and purposes, it effectively
abandoned the cardinal issue
raised in the appeal.
[28]
In addition, the applicants’ counsel further conceded that the
amount determined by the court a quo could be regarded
as being just
and equitable financial compensation for the dispossession the
respondent had suffered. However, he argued that it
was not proper
‘redress’ as referred to in s 25(7) of the Constitution
and s 33 of the Restitution Act.
[29]
On this issue, it was contended that the court a quo had misdirected
itself by approaching the matter on the basis that it
was bound to
compensate the respondent, which is not the same as determining
redress. In this regard it was argued that there had
been a failure
to distinguish between just and equitable compensation payable in
term of s 27(3) of the Constitution and equitable
redress assessed in
terms of s 25(7) of the Constitution (this being a ground of appeal
inserted into the applicants’ notice
of appeal by way of a
purported amendment dated 17 May 2016). Moreover, in considering what
redress was appropriate, it was argued
that the court a quo had also
erred in deciding that any amount at all should be paid to the
respondent in that (a) he had been
able to procure another farm with
what he had been paid for the subject properties ─ albeit in
Molteno a hundred kilometres
away ─ and (b) if the respondent
had built up his new farm, its current value should be taken into
account as he might well
be in at least as good a position today as
he may have been had the dispossession not taken place.
[30]
There is no merit in these contentions. It is quite clear from the
judgment of the court a quo, and its reference to the judgment
in
Florence
,
that it was fully aware that although the land values were an
important factor, it was not the sole criterion relevant to what
was
appropriate redress. And in regard to the second leg of this
argument, it is now well established that what a dispossessed
person
does with whatever compensation is received from the dispossession
has little to do with whether that compensation was adequate
or
not.
[4]
As Moseneke ACJ said in
Florence
:
[5]
‘
This
means that the scheme of the Restitution Act makes the time of
dispossession the critical starting point of an assessment of
financial compensation. The government is right that the purpose of
the financial compensation is to provide relief to claimants
in order
to restore them to a position as if they had been adequately
compensated immediately after the dispossession. It must
be correct
that just and equitable financial compensation does not aim to
restore claimants in current monetary terms to the position
they
would have been in had they not been dispossessed, but rather the
financial loss they incurred at the time of dispossession.
The Land
Claims Court was correct to set the loss at the time of dispossession
of the market value of the property less the amount
of compensation
the applications had received at the time of dispossession.’
[6]
This
is precisely what the court a quo did in the present case, and the
argument that it erred or misdirected itself in doing so
cannot be
sustained.
[31]
Counsel for the applicants also argued that no redress ought to have
been awarded as, when the respondent had been dispossessed,
he was
not obliged to sell and could have remained in possession until the
subject properties were expropriated. Had that occurred
he would have
had the right to challenge the amount at which the subject properties
were expropriated and thereby recover adequate
compensation. It would
therefore be wrong, so the argument went, to allow him to obtain
compensation now for what he had lost when
he had failed to avail
himself of that opportunity in the past.
[32]
This overlooks the fact that the threat of expropriation was indeed
one of the factors that led to the dispossession as it
would have
entailed a long drawn-out process without certainty as to the amount
the respondent would receive and without any certainty
as to his
future. But even more importantly, the argument in this regard is
merely an echo of that which was made by the applicants
in their
unsuccessful applications both to this court and to the
Constitutional Court. It was then alleged that there had been
no
dispossession as the respondent’s rights in land had been taken
in exchange for compensation which he had the right to
challenge.
Indeed, the applicant’s argument that it would not be just and
equitable to afford relief in the circumstances
amounts in essence to
an argument that there was no dispossession, an issue which has
already been finally determined against the
applicants. The present
matter must therefore proceed on the basis that there was a
dispossession. The sole issue in these proceedings
is the amount of
financial compensation to be paid as redress, and it ill behoves the
applicants to argue that no redress should
be paid despite there
having been a dispossession.
[33]
As was held by the Constitutional Court in
Mphela
,
[7]
and reiterated by that court in
Florence
,
[8]
the
Land Claims Court has a strict and true discretion and enjoys wide
adjudicative remedial powers conferred on it, inter alia,
under ss 33
and 35 of the Restitution Act.
[9]
Consequently, the power of an appellate court to interfere with the
exercise of discretion by a Land Claims Court is not without
restraint but is limited by whether the discretion invested in that
court had not been judicially exercised or had been influenced
by
wrong principles or a misdirection of the facts or was one that could
not reasonably have been made. Bearing that in mind, in
the light of
what I have set out above the discretion exercised in the court a quo
in this matter in regard to the financial compensation
to be awarded,
appears to me to be immune from appellate interference.
[34]
So too does the award of costs on a punitive scale. It was argued on
the applicants’ behalf that costs on a punitive
scale was
unjustified. However in dealing with the question of costs, the court
a quo correctly emphasized that the second applicant,
the Regional
Land Claims Commissioner, is tasked by the Restitution Act to support
claimants and to assist them.
[10]
The court went on:
‘
From
the protracted history of this matter it would appear that the
[respondent] received very little support from the second
[applicant].
In fact the Regional Land Claims Commissioner, who is
supposed to play a mediatory role, sided completely with the State as
a defendant
and opposed the claim vehemently. It is also extremely
disconcerting that the Regional Land Claims Commissioner changed its
stance
so drastically from 2007 when a settlement offer was made to
the [respondent], presumably on the basis that he did not receive
just and equitable compensation, to the stance that the [respondent]
was over compensated, and thereafter once again changed to
ultimately
arrive at its current stance. The various valuation reports obtained
by the Regional Land Claims Commissioner are also
suggestive of an
attempt to thwart the [respondent’s] claim and not to assist. I
note also my concern that despite repeated
attempts by the Court to
get the parties to settle, the stance of the [applicants] was
intransigent in this regard.’
Then
after referring to authorities in which it had been held that
officials such as the second applicant are ‘functionaries
who
have to receive and investigate the . . . claim in an objective, fair
and responsible manner’
[11]
and that the second applicant’s conduct in particular had been
untenable, the court a quo concluded that costs on a punitive
scale
was merited.
[35]
Counsel for the applicants sought to criticise this reasoning in the
light of the facts of the present case. However, at first
blush, the
second applicant in particular certainly did change its stance from
offering to settle the claim by paying millions
of rand to contending
that in fact no amount at all should be paid. Indeed she has since
persistently shown a lack of objectivity
and has relied on clearly
fallacious reasoning and allegedly comparable transactions which in
truth were nothing of the sort.
[
36]
Moreover, the court a quo also exercised a judicial discretion in
regard to the costs. In this instance too, interference
with that
discretion can only be justified in instances where it is found that
the court of first instance did not act judicially,
or acted upon a
wrong principle, or was influenced by wrong principles or a
misdirection of the facts, or reached a decision which
could not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles.
[12]
In the light of what I have already mentioned, there is no reasonable
prospect of the applicants succeeding in establishing a basis
to
interfere with the discretion exercised by the court a quo in regard
to costs.
[37]
In any event, as for the reasons already given the applicants have no
prospect of success in regard to the merits of the dispute,
it also
becomes relevant that it is trite that leave to appeal to this court
need not be given where the issue relates solely to
the question of
costs. That is a longstanding policy, now fortified by
s 16(2)(a)(ii)
of the
Superior Courts Act 10 of 2013
. There are no exceptional
circumstances present which justified departure from this rule and
there is thus no reason to allow an
appeal solely in regard to costs.
[38]
For these reasons there is in my view no reasonable prospect of an
appeal succeeding. That being so, the application for condonation
and
the reinstatement of the appeal must fail.
[39] It is therefore ordered:
1 The application for condonation
of the late filing of the record of the proceedings in the court a
quo and reinstatement and the
appeal is dismissed and the appeal is
struck from the roll.
2 The applicants are to pay the
respondent’s costs, such costs to include the costs of two
counsel.
_______________
L E Leach
Judge of Appeal
Appearances:
For
the Appellant:
V S Notshe SC (with him T Seneke)
Instructed
by:
State Attorney, Mthatha
State
Attorney, Bloemfontein
For
the Respondent:
H S Havenga SC (with
him O H Ronaasen SC)
Instructed
by:
Roelofse Meyer Incorporated, Port Elizabeth
Honey
Attorneys, Bloemfontein
[1]
Rule 8(3)
of the Rules of the
Supreme Court of Appeal provides: ‘If the appellant fails to
lodge the record within the prescribed period
or within the extended
period, the appeal shall lapse.’
[2]
Florence v Government of the
Republic of South Africa
2014 (6) SA 456
(CC) paras 129-134.
[3]
As to which see
Southern
Transvaal Buildings (Pty) Ltd v Johannesburg City Council
1979
(1) SA 949 (W).
[4]
Haakdoornbult Boerdery CC &
others v Mphela & others
2007
(5) SA 596
(SCA) para 43 referred to with approval in
Florence
para 132. See further
Ndebele-Nolzun dza
Community v The Farm Kafferskraal
2003 (5) SA 375
(LCC) para 29.
[5]
Para 132.
[6]
See further
Florence
para 148.
[7]
Mphela & others v
Haakdoornbult Boerdery CC & others
[2008] ZACC 5
;
2008 (4) SA 488
(CC) paras 25-26.
[8]
Florence
para 112.
[9]
Florence
paras 116-117.
[10]
See in this regard s 6(1) of the
Restitution Act which sets out the general functions of the
Commission.
[11]
Hlaneki & others v
Commission on Restitution of Land Rights & others
[2006] 1 All SA 633
LCC para 30.
[12]
See
Dobsa
v Dlamini Advisory Services
;
Dlamini Advisory
Services v Dobsa
(050/2016)
[2016] ZASCA 131
(28 September 2016) para 14 and the authorities
therein cited.