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[2007] ZASCA 69
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Haakdoornbult Boerdery CC and Others v Mphela and Ohers (553/05) [2007] ZASCA 69; 2008 (7) BCLR 704 (SCA); 2007 (5) SA 596 (SCA) (30 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable (in part)
Case No: 553/05
In the matter between :
HAAKDOORNBULT
BOERDERY CC
...............................
1
st
Appellant
PETRUS JACOBUS BEZUIDENHOUT NO
[IN HIS CAPACITY AS TRUSTEE OF THE
BEZ
BEZUIDENHOUT FAMILIETRUST]
...............................
2
nd
Appellant
JANETHA CHRISTOFFELINA
BEZUIDENHOUT NO
[IN HIS CAPACITY AS TRUSTEE OF THE
BEZ
BEZUIDENHOUT FAMILIETRUST]
...............................
3
rd
Appellant
JACOBUS ADRIAAN VAN STADEN NO
[IN HIS CAPACITY AS TRUSTEE OF THE
BEZ
BEZUIDENHOUT FAMILIETRUST]
...............................
4
th
Appellant
FRANCOIS JOHANNES FURSTENBURG NO
[IN HIS CAPACITY AS TRUSTEE OF THE
F &
S FURSTENBURG FAMILIETRUST]
...............................
5
th
Appellant
SUSANNA FRANCINA FURSTENBURG NO
[IN HIS CAPACITY AS TRUSTEE OF THE
F &
S FURSTENBURG FAMILIETRUST]
...............................
6
th
Appellant
and
M M MPHELA & 217 OTHERS
...............................
1
st
to 218
th
Respondent
MINISTER OF AGRICULTURE AND LAND
AFFAIRS
...............................
219
th
Respondent
Coram :
Harms ADP, Cameron, Mlambo JJA, Snyders and Musi AJJA
Heard :
8 May 2007
Delivered :
30 May 2007
Summary:
Restitution of land – effect of compensation
received at the time of dispossession – partial restoration.
Neutral Citation:
This judgment may be referred to as
Haakdoornbult Boerdery CC v Mphela [2007] SCA 69 (RSA)
JUDGMENT
HARMS ADP:
Introduction
[1] This appeal
concerns the restitution of land lost by the claimants due to
racially discriminatory laws and practices. The Land
Claims Court
(‘the LCC’, per Moloto J assisted by Mr G Hugo as
assessor) upheld the claim and found that the claimants
(the
plaintiffs in the court below) were entitled to restoration of the
whole of the land (which will be referred to as the farm
Haakdoornbult) so lost.
1
Since the main
judgment has been reported as
Mphela
v Engelbrecht
2
it will not be
necessary to restate all the facts. (A further judgment by the LCC
dealing with ancillary matters and containing the
final order has not
been reported.) Three of the four affected owners of subdivisions of
the original farm appeal the judgment with
the leave of the LCC.
There is also a cross-appeal by the claimants to which I shall revert
in due course.
[2] Mr Klaas Phali
Mphela (to whom I shall refer as Phali in order to avoid confusion),
the scion of the Mphela family and whose descendants
are the
claimants, was a pioneering farmer who was able to purchase a
substantial farm on the banks of the Crocodile River during
1913 from
a white farmer, and to obtain full title. The date is significant
because later during that year the Black Land Act (then
called the
Natives Land Act) 27 of 1913 was promulgated which would have
prevented him from buying land within an area designated
for white
ownership. He was a member of a small class of enterprising blacks
who, in the face of all odds, was able to buy and pay
for a farm of
this size; to systematically cultivate and irrigate it; to produce
crops not only for own consumption but also for
the market; to
provide accommodation for his increasing family; and even to let a
portion of the farm to whites.
[3] The farm was
sold under compulsion to white farmers during 1951, the government
insisting that the family relocate to a nearby
farm, Pylkop. The
family resisted until 1962, when they were removed to Pylkop, which
the family had bought with the money received
for Haakdoornbult. The
removal was nevertheless traumatic and was only consented to after a
night raid, arrest of the adults for
trespassing and the bulldozing
of their homes and kraals and kgotla tree.
[4] The main issue
in this appeal relates to the extent of restitution to which the
family is entitled. The LCC held that it was entitled
to the
restoration of the whole farm. In this judgment I conclude that this
amounts to an over-compensation bearing in mind the fact
that the
family had sold Haakdoornbult and had bought Pylkop at market-related
prices. However, I hold that the family is entitled
to be restored to
three of the four portions of the now subdivided farm. This equals 86
per cent of the original farm. Whether the
family has to make a
contribution in respect of two of these portions I cannot decide on
the material before us and this issue is
referred back to the LCC.
The statutory
setting
[5] Section 25 of
the Bill of Rights, the section dealing with property rights,
provides in ss (7) for claims for restitution. It
states 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 for by an Act of Parliament, either to
restitution of that property or to equitable
redress. The relevant
Act, which was enacted under the interim Constitution’s
corresponding provision, is the Restitution of
Land Rights Act 22 of
1994 (amended from time to time).
[6] The
Constitutional Court recently had the opportunity to state that s
25(7) is part of a cluster of provisions that deal with
the
constitutional protection of property; that the right of restitution
is either to property or to equitable redress; that neither
a
claimant nor a community may insist as of right on the restitution of
the original land that was dispossessed; that the entitlement
to
restitution is (according to the Constitution) to the extent provided
in the Act; and that what is appropriate property restitution
or
equitable redress in response to historical dispossession varies
depending on the specific context.
3
[7] The right of
restitution is separate and distinct from the other ‘rights’
that form part of this cluster. The state,
for instance, is also
obliged to take reasonable measures, within its available resources,
to foster conditions that enable citizens
to gain access to land on
an equitable basis. There is further the right to secure tenure of
land which belongs to those whose tenure
is legally insecure as a
result of racially discriminatory laws or practices. In other words,
s 25(7) is not about land redistribution
but about restitution. This
explains provisions such as s 2(2) of the Act that provides that
someone who has been dispossessed, but
has received just compensation
for the dispossession at the time, is not entitled to any
restitution; the definition of ‘restitution
of a right in land’
in s 1 (dealt with in the next paragraph); the wide discretion a
court has in relation to the relief that
it may grant (s 35); and the
requirement that a court has to take into account the amount of
compensation or any other consideration
received in respect of the
dispossession in making any order under the Act (s 33(eA)).
4
[8] The entitlement
to restitution is determined by s 2 of the Act. A person dispossessed
of ‘a right in land’ after 19
June 1913 as a result of
racially discriminatory laws or practices is entitled to ‘restitution
of a right in land’. ‘Restitution
of a right in land’
means (a) the restoration of a right in land or (b) equitable
redress. The right is, accordingly, not a
right to restitution of the
land in question as the Constitutional Court observed. Having said
this it remains true that the umbilical
cord that joins any
particular community and its ancestral land is strong and has a
highly emotional element that has to be respected.
5
A ‘right in
land’ is defined to include ‘any right in land whether
registered or unregistered’ and also a
customary law interest.
The right to restitution is also given to a deceased estate and to a
community so dispossessed.
[9] A prerequisite
for a valid claim for restitution is that a prescribed claim for
restitution must have been lodged with the Commission
on Restitution
of Land Rights not later than 31 December 1998 (s 2(1)(e)). The claim
had to include a description of the land in
question, the nature of
the right in land of which the claimant was dispossessed, and the
nature of the right or equitable redress
being claimed (s 10(1)).
6
When the present
claim was filed with the Commission no forms had yet been prescribed.
[10] There is a
limitation on the right to restitution because no one is entitled to
restitution of a right in land if (a) just and
equitable compensation
as contemplated in s 25 (3) of the Constitution
7
or (b) any other
consideration which is just and equitable, calculated at the time of
dispossession, was received in respect of the
dispossession (s 2(2)).
[11] A court may,
inter alia, order the restoration of land or a portion of land or it
may order the state to pay the claimant compensation,
or grant ‘any’
alternative relief (s 35). However, in considering its decision the
court has to take into account a number
of factors listed in s 33.
They include (a) the desirability of providing for restitution of
rights in land; (b) the desirability
of remedying past violations of
human rights; (c) the requirements of equity and justice; (d) the
feasibility of restoration of rights
in land; (e) the desirability of
avoiding major social disruption; (f) the amount of compensation or
any other consideration received
in respect of the dispossession, and
the circumstances prevailing at the time of the dispossession; (g)
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; and (h) any other factor
which the court may consider relevant
and consistent with the spirit and objects of the Constitution, more
particularly its equality
provisions.
[12] If a community
claims restitution, the property must be restored to the community
and not to its individual members and the court
may then determine
the manner in which the property is to be held.
8
The court also has
the power to adjust the nature of the right previously held by the
claimant, and to determine the form of title
under which the right
should held (s 35(4)).
The parties
[13] The claimants
(the main respondents on appeal) include the two executors in the
estate of the late Mr Daniel Rakgokong Mphela
in whose name the
property was registered at the time of the dispossession. They were
joined by 216 other members of the Mphela family.
Daniel Rakgokong
had inherited the farm during the 1930s from his father, Phali. The
LCC held that the family was a community in
terms of the Act and that
the claim to restitution belongs to the family as a community. It
disallowed the claim of the executors.
I shall revert to this issue
at a later stage.
[14] The proceedings
in the LCC were brought under s 38B of the Act, which entitles a
disaffected party to approach the LCC directly,
usually because of
the lack of progress on the part of the state in processing the
claim.
[15] The appellants
are three of the four affected owners of the original farm.
9
The farm is situated
near Koedoeskop (between Brits and Thabazimbi). Its western border is
the Crocodile River and the main road between
the two towns bisects
the original property. After the dispossession of the Mphelas the
farm was subdivided and some subdivisions
were consolidated with
adjoining properties. The farm as described above does, accordingly,
no longer exist as a topo-cadastral entity.
In what follows I shall
refer to the properties with reference to the name of the respective
owner, and sizes will be approximated.
[16] The Bez
Bezuidenhout Family Trust (the Bezuidenhout Trust) owns 172 ha of the
original farm, which has been consolidated with
an adjoining
property, Drie Jongelings Geluk.
10
This portion lies to
the east of the main road and has no river frontage. The Trust (under
another name and with other beneficiaries)
took transfer of the
property during 1992. The Bezuidenhout family’s interest dates
to October 2002. The Trust uses the property
as a game ranch coupled
with a conference centre on Drie Jongelings Geluk.
[17] The F & S
Furstenburg Family Trust (the Furstenburg Trust) owns a portion of
the farm measuring 271 ha since 2002.
11
It lies to the north
of the Bezuidenhout property and is also to the east of the main road
and accordingly has no river front. This
property is being used for
game and cattle farming purposes in conjunction with an
unconsolidated adjoining property, Rietfontein.
[18] Haakdoornbult
Boerdery CC (‘the CC’) owns under a certificate of
consolidated title some 91 ha of the original farm.
12
This means that this
land now form part of a larger farm which is not subject to any land
claim. Its position will be described later.
This portion (which will
be referred to as ‘the RE’) is used in conjunction with
an adjoining property for irrigation
purposes. Although the RE abuts
the Crocodile River, it has no water rights and the water allocated
to an adjoining property is used
for irrigation.
[19] The balance of
the farm, 101 ha in extent, belongs to the Engelbrecht family.
13
This is the northern
part of the farm and is situated between the river and the road.
About half of this land is used for irrigation
purposes and it has a
water allocation from the river. Some members of the Mphela family
had utilised this riparian land for irrigation
and cultivation prior
to the dispossession. The Engelbrechts initially opposed the
claimants claim in the LCC but at an early stage
of the trial
withdrew their opposition because of a lack of funds. They also did
not appeal the order and are therefore not a party
to the appeal. The
effect of this will be dealt with later.
[20] The Minister of
Land and Agricultural Affairs under whose auspices the administration
of the Act falls and who has to satisfy
any successful claim (whether
by payment, purchase or expropriation) filed a plea in which the
dismissal of the claim was sought.
The Minister was represented by
counsel during much of the trial but counsel did not contribute
anything to the proceedings, either
by questions or submissions.
After some 900 pages of oral evidence and the conclusion of the
claimants’ case the Minister withdrew
the state’s defence
to the claim.
14
It the light of this
history it was surprising that the Minister filed heads of argument
two court days before the hearing of the
appeal and sought
condonation.
15
Who and what was
dispossessed?
[21] At the time of
the dispossession the farm was registered in the name of the already
deceased Daniel Rakgokong. His estate has
(even now) not been wound
up and it is accordingly common cause that the estate (represented by
the executors) was dispossessed of
the ownership of the farm.
However, the LCC found that the executors had not filed a claim as
required by s 2(1) before the cut-off
date, which means that the
estate was not entitled to claim restitution. (As mentioned the
claimants have lodged a cross-appeal but
it was against this
finding.) I am of the view that the executors were not in their
representative capacity claimants in the LCC
because there was no
claim in the LCC on behalf of the estate. Instead, the claim was for
restitution to a community consisting of
the Mphela family.
16
In addition, the
claimants do not attack the order since it is in the terms sought by
them. The cross-appeal is thus ill-founded because
it is directed at
a finding and not against a ‘judgment or order’.
17
[22] This then
raises the question whether the family (which the LCC had found was a
community as defined in the Act – a finding
that has not been
attacked) was dispossessed of any right in land within the defined
meaning. The answer is to be found in my judgement
in the terms of
the family agreement of 31 March 1932 entered into shortly after the
death of Phali who had died intestate.
18
The agreement is in
the form of a declaration by the eldest son (the said Daniel
Rakgokong) in his capacity as the lawful descendant
and heir ‘in
terms of Native custom’. In it he gave and granted ‘in
terms of Native custom’ the ‘undisturbed
right to live
and reside on the aforementioned property with their families and to
use and cultivate the same and to exercise all
the rights over the
said property which I myself possess’ to the living children of
the three wives of Phali and to the children
of those already
deceased.
[23] He added to
this an expression of a ‘desire’ that at the death of the
last survivor among ‘us’ the property
should be sold and
the proceeds divided amongst their descendants. There is a dispute
between the parties as to whether or not the
‘last survivor’
is still alive and whether or not the event giving rise to the sale
has arrived.
[24] This dispute
leads nowhere because the issue concerns the rights of the family as
a community at the time of dispossession. The
appellants argue that
the family had personal usufructuary rights only and that these
rights, not being real rights, cannot be ‘rights
in land’
as required by the Act. The appellants may be right under Roman-Dutch
legal principles but as appears from the wording
of the family
agreement the rights granted to the family were rights under
customary law and were rights in the land equal to that
of the
registered owner.
19
Although the rights
were not registered (which does not matter) they were to be
registered in terms of a court order of 27 November
1947.
Furthermore, the desire of the donor that the farm should be sold did
not bind the executor or the family to sell.
[25] The second
issue under this heading is whether the family as a community had
lodged a claim with the Commission. The facts have
been set out in
great detail in the judgment of the LCC and need not be restated.
Because the appellants accepted during the appeal
hearing that the
finding of the LCC that the family had lodged an appropriate
community claim, it is unnecessary to revisit this
issue. The
concession was correctly made.
The racially
discriminatory dispossession
[26] The LCC held
that the dispossession of the claimants took place over a period of
time between 19 July 1951 (when the farm was
sold to Messrs Botha by
the then executor of the estate of Daniel Rakgokong with the consent
of the family) and August 1962 (when
the family was forcefully
removed from the farm in circumstances set out in detail in the LCC’s
judgment). This finding is
attacked by the appellants who argue that
the dispossession took place on 19 July 1951.
[27] Although it has
always been common cause that the there had been a racially
discriminatory dispossession of the farm, the relevance
of the date
of dispossession is, at this stage of the inquiry at least, related
to the question whether the family’s claim
is barred because it
had received just and equitable compensation at the time of the
dispossession, a question that will be addressed
in the next section
of this judgment. The appellants’ argument that the community
had received sufficient compensation is premised
on the assumption
that the dispossession had taken place on 19 July 1951 and not later.
[28] The farm was a
so-called black spot within a so-called white farming area and
earmarked for expropriation and removal of the
family to a property
within an area for black occupation. Because of demands from the
white farming community the government of the
day pressurized Daniel
Rakgokong to sell the farm. During 1946 he entered into a sale
agreement with one Terblanche but because Daniel
Rakgokong had
disregarded the family agreement, litigation followed between him and
other members of the family and the sale came
to nought. As a result
of this family members became somewhat distrustful of Daniel
Rakgokong and his offspring.
[29] During the late
1940s negotiations were entered into between the government of the
day and the family for the exchange of the
farm for another farm. The
government offered the family three options but the family chose the
farm Pylkop which is some 17 km from
the subject farm. It is more
than three times the size of Haakdoornbult but it does not have any
river front or irrigation land.
The properties were valued at ₤
7 558 for Pylkop and ₤ 5 040 for Haakdoornbult. Both valuations
were done by Messrs Cronjé
and Liebenberg. The government was
prepared to add 20% as a solatium (something it would have done had
the farm been expropriated)
putting a price of ₤ 6 048 on
Haakdoornbult, but the government was not willing to agree to an
exchange without more because
of the difference in value. However,
the family insisted that it wanted the whole of Pylkop without any
additional payment. The problem
was solved when neighbours, the
Bothas, offered to buy Haakdoornbult for ₤ 7 558. The intention
was that the government would
then sell Pylkop to the family.
[30] The agreement
of sale with the Bothas was entered into on 19 July 1951. The family
recorded its agreement to the sale. The approval
by the government of
the sale of Pylkop was obtained during January 1953 at the said
valuation and the family were given the right
to occupy Pylkop
immediately.
[31] Before
proceeding with the narrative it is necessary to consider the terms
of the sale of the farm to the Bothas. After recording
the name of
the property and the price, the agreement stated that the price had
to be guaranteed within three weeks and the guarantee
had to be held
by the Commissioner on behalf of the seller (the executor) because
the money was to be used to pay for Pylkop. The
Bothas did not
provide a guarantee but instead deposited the full purchase sum. They
were in terms of the agreement entitled to immediate
occupation of
the irrigation land while the family was entitled to remain in
occupation of the remainder of the farm for about a
year. Since the
‘usufructuary’ rights under the family agreement had not
yet been registered and because there were minor
and unborn
beneficiaries, the sale was made subject to the approval of the
supreme court (the provincial division).
[32] The date of
dispossession must be determined in the light of the following facts.
The Bothas took occupation of a valuable part
of the irrigation lands
soon after the sale agreement; the family resisted relocation to
Pylkop and remained in possession of the
dry lands, the grazing and
their homesteads and kraals – in spite of their agreement –
for another ten years; the court’s
approval to the sale was
obtained on 12 April 1961; the farm was registered in the name of the
Bothas on 27 October 1961; Pylkop
was registered in the name of the
deceased estate (the family agreement rights were reflected in the
title deed) on 24 July 1962;
and the Mphela family was forcibly
relocated to Pylkop during August 1962.
[33] Although the
family’s rights were customary law rights and although the
Bothas were to acquire ownership from the owner,
the rights of the
family were so inextricably bound to the ownership of the land that
it does not make much sense to deal with these
rights as anything but
ownership. Bearing that in mind it is necessary to determine what
‘rights in land’ remained in
the hands of the family
after the conclusion of the agreement with the Bothas. The answer
depends in the first instance on whether
the requirement of the
court’s approval was a condition precedent or whether the
failure to obtain approval would have resolved
the contract. The
clause was in my judgment a resolutive condition simply because the
contract contemplated that the Bothas would
receive immediate
occupation; that the Bothas would provide immediate guarantees for
payment; and that the family would vacate the
farm on a specified
date irrespective of the court’s approval. In other words, the
parties contemplated that the agreement
would take immediate effect,
which in the event it did.
[34] The family (as
found by the LCC) may have been morally entitled to renege on the
agreement with the Bothas and morally justified
to resist relocation
to Pylkop for some ten years but these facts do not in my judgement
affect the question of when and how they
were dispossessed of their
‘rights in land’.
20
Although the estate
remained ‘owner’ of the farm until registration in the
name of the Bothas, this ‘ownership’
had little monetary
value over and above the purchase price in view of the contractual
obligations. (This is so even though there
remained the
unquantifiable possibility that the contract could have been
dissolved by the refusal of the court to consent to the
agreement.)
As said, the family’s customary law rights were intimately
linked to the registered ownership and accordingly had
no value
separate or over and above that proprietary right. The holding over
in the face of the undertaking to vacate on a specified
date can only
be conceptually a ‘right in land’ if one accepts that a
possessor of this kind has a right in land or if
one argues that the
right not to be spoliated is a right in land. If either were correct
it would follow that there was a two-stage
dispossession. It is
however not necessary to resolve this issue because I shall at this
stage of the judgment assume in favour of
the appellants that the
dispossession had taken place in 1951.
The s 2(2) issue:
just and equitable compensation
[35] It is
convenient to turn to the question whether the claimants’ claim
is barred by the provisions of s 2(2) which reads
as follows:
‘
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.’
[36] For purposes of
the appellants’ case one has to determine whether the price
paid by the Bothas was just and equitable compensation
for the
dispossession of the property applying the expropriation principles
set out in s 25(3) of the Constitution.
21
Compensation is by
virtue of the provisions of s 25(2) and (3) a constitutional issue
which means that the compensation award has
to fulfil the
requirements of the Bill of Rights. The amount of compensation has to
be ‘just and equitable,
reflecting
an equitable balance between the public interest and the interests of
those affected’
having
regard to ‘all relevant circumstances’ of which market
value is but one of five. Market value is in the context
of this case
the only factor listed in s 25(3) capable of quantification. Once the
market value has been determined an upward or
downward adjustment,
having regard to other relevant factors, can be made.
22
I accordingly
intend
first to consider the market value of the farm and thereafter the
other factors listed in the section.
[37]
Pylkop and its comparative merit is in my judgement irrelevant at
this stage of the inquiry. What s 2(2) requires is a determination
of
the consideration or compensation received ‘
in
respect of’ the dispossession. Pylkop was purchased at a later
date from the government and although it was related to the
dispossession it was not truly a consideration or compensation ‘in
respect of’ the dispossession. The qualities of Pylkop,
however, become germane at a later stage to the extent that it
impacts on the s 33 factors.
[38] The claimants
relied on Mr D Griffiths as their expert valuer and although the
appellants had given notice of their intention
to call a valuer they,
in the event, did not do so. The LCC quoted the whole of Griffiths’
report in the judgment and accepted
the report as it stands without
consideration of his oral evidence or of whether his opinions were
based on fact or surmise or had
anything to do with the relevant
statutory test.
[39] I believe that
the LCC erred in its uncritical adoption of the report. Expert
opinion must be fact based and the facts must justify
the opinion
even if the facts are difficult to establish. It is otherwise without
any value. What Griffiths did was to collate a
number of transactions
in the vicinity concluded some 50 or 40 years ago, determine the
average price per hectare and then test this
against the prices paid
for the farm and for Pylkop. He did other exercises but in each
instance he had no evidence whatsoever that
any of the properties
were, at the time, in any way comparable to the farm.
[40] In any event,
he concluded that the valuation of and price paid for Pylkop was
market related; that Haakdoornbult had been undervalued;
but that the
price paid by the Bothas was probably equal to market value. He
argued that had the family been expropriated they would
have been
entitled to a farm whose agricultural value was equal to the market
value of their farm.
23
He then assumed that
the agricultural value of Pylkop was much less than its market value.
This led him to conclude that the claimants
had not received just and
equitable compensation.
[41] The appellants,
on the other hand, relied on the valuations of Cronjé and
Liebenberg done at the time and sought to show
that Pylkop was as
good as if not better than the family farm. Griffiths criticized
these valuations and the LCC agreed, adding that
these valuers were
prejudiced against the Mphelas and therefore undervalued their farm.
I have no wish to enter into this debate
because it, once again,
misses the mark.
[42] The farm was
sold at the relevant date at ₤7 558. Subject to the remarks
that follow, this was the best evidence of the
market value of the
farm at the time. Arguing that the Bothas had paid more than market
value, the appellants suggest that they may
have been prepared to pay
a premium in order to extend their irrigation activities on their
neighbouring property. Accepting that
they were prepared to pay a
premium, this does not explain why they were prepared to pay a third
more than the actual value, recalling
that the farm had been valued
at ₤5040, and, in addition, allow the family to occupy the
greater part of the farm for another
year. Furthermore, the Mphelas
were hardly what could be called willing sellers. They sold under the
threat of expropriation and
they presumably realised that if
expropriated and unless they were prepared to litigate they would
receive only the valuation plus
20%, namely ₤ 6 048, which
would have been insufficient to purchase Pylkop. Having regard to
these considerations and in the
absence of any evidence to the
contrary it is fair to conclude that the price paid was not less than
the market value of the farm.
[43] That leads to
the second leg of the inquiry, namely whether, having regard to the
time and method of payment and ‘all relevant
circumstances’
including any of the factors listed in s 25(3), an upward or downward
adjustment is justified. Once again, Pylkop
is in my judgement
irrelevant because what a dispossessed person or community
subsequently did with the compensation received is
of little
consequence in determining whether the compensation received ‘in
respect of’ the property was adequate or not.
[44] In an emotional
section of the judgment the LCC dealt with the question of the time
and manner of payment. The LCC referred to
the fact that the Bothas
had taken possession of the irrigation lands before transfer and did
not pay occupational interest or rent.
What the LCC failed to
consider is that the Bothas had paid the full purchase price
immediately – earlier than contemplated
– and that there
was therefore no reason for the Bothas to have paid occupational
interest or rent. It was the Mphelas who
decided not to use the money
even though they were entitled to do so. What the LCC also failed to
take into account is that although
the Bothas had paid the full price
the Mphelas retained beneficial occupation of the greater portion of
the farm for more than ten
years – also free of charge –
while they had the whole of Pylkop at their disposal.
[45] A second fact
referred to by the LCC under this heading was the fact that the farm
had increased in value between the date of
sale and of transfer. This
factor was based on the finding that the final dispossession took
place during 1962. However, the LCC
did not attempt to define or
quantify the value of these rights but if they are what I have
assumed them to be, the rights in land
that still existed at that
stage had little perceivable market value.
[46] Moving to the
‘current use of the property’, the factor identified in s
25(3)(a), the LCC dealt with the use current
at the trial date. This
approach is in my judgement wrong. ‘Current use’ in the
context of the section refers to the
use current at the date of
expropriation, which is for present purposes the date of
dispossession. The same error was made by the
LCC when it dealt with
‘the history of the acquisition and use of the property’
in terms of s 25(3)(b).
[47] In spite of
these misdirections I am satisfied, having regard to the use put to
the farm by the Mphelas, that the family was
not fully and fairly
compensated. They had used the farm for irrigation purposes, for dry
land cultivation, for their homes, their
livestock and for
traditional family purposes. The family, consisting of many
households, had to relocate; they had to rebuild houses;
they had to
build a school; and they had to rebuild their lives on vacant land.
Their houses and cattle kraals had no commercial
value for a
purchaser and would have been discounted by any purchaser. In short,
the family lost more than the market value of the
farm.
[48] In this regard
I wish to paraphrase and adopt the approach of Gildenhuys AJ in
Baphiring
Community v Uys.
24
Compensation, to be
fair (he said), 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.
[49] The appellants
argue that these concepts about relocation and restitution did not
exist during the 1950s and that it would be
wrong to introduce
‘modern’ considerations into the equation. The problem
with the argument is that the Constitution
demands a deconstruction
of historic events and a reconsideration and re-evaluation in the
light of its terms. This may lead to a
result that may appear to be
anachronistic but that does not affect the clear purpose of the
Constitution and s 2(2) of the Act.
[50] The last factor
listed in s 25(3) is the purpose of the dispossession which, as
mentioned, was to remove a black spot under racially
discriminatory
laws and practices. It was not and could not be argued that such
purpose does not require an upward adjustment of
what otherwise would
have been reasonable monetary compensation. It is not necessary (and
in any event impossible) to attempt to
quantify these adjustments –
it suffices to say that they would have had a material effect over
and above the market value
on the compensation. I accordingly
conclude that s 2(2) does not serve as a bar to the family’s
claim.
The relief
[51] The LCC was
confronted with opposing contentions. The claimants contended for
restoration of the entire farm while the participating
defendants
asked for dismissal of the claim, alternatively granting the family
equitable redress or restoration of a portion of the
farm. The LCC
accepted the claimant’s contentions and awarded the whole farm
without any conditions.
[52] The issue to
consider now is whether the claimants are entitled to restoration of
the land, and, if so, whether they are entitled
to the return of the
whole land or only a part thereof. I wish to interpose and deal with
an argument of the claimants, namely that
the return of only part of
the farm was not an issue in the LCC. They say that had they known
that that was on the cards they might
have considered tendering part
of Pylkop in order to ensure that they received the whole farm. That
submission appears to be an afterthought.
It is clear from the record
that the issue of what had to be returned was the core issue and the
judgment of the LCC acknowledged
its existence. As appears from the
pleadings, the family always insisted on retaining Pylkop. Since the
claimants sought full restitution
while admitting that they had
received material compensation for the dispossessed land, they had to
provide all the evidence necessary
justifying the exercise of the
discretion of the court in their favour especially, as mentioned,
they are not entitled to insist
as of right to the return of the
land.
[53] On the question
whether land should be restored, the LCC had regard to the factors
listed in s 33
25
and came to the
conclusion that the claimants were entitled to restoration of at
least some of the land. It has not been suggested
that the LCC erred
and there is accordingly no reason to discuss or interfere with the
exercise of its discretion in this regard.
[54] I now turn to
the main issue on appeal, namely whether or not the claimants have
made out a case for the return of the whole
farm. The question must
be seen in this context. At the time of the material dispossession
full market value was paid for the farm
and Pylkop was subsequently
purchased at its market value as in 1951. Pylkop is registered in the
name of the estate and the family’s
rights were registered
against the title deeds. The family has been on Pylkop since 1962 and
there are about 200 households, most
living in permanent houses,
there are two schools on the property, some families conduct
horticulture on the farm, and others farm
with cattle or other
livestock. Even if one attached some value to the 1962 valuations by
Griffiths, and if one regards Pylkop as
compensatory land, and if one
adds to all this the unquantifiable losses and trauma suffered by the
family, it is apparent that by
ordering restitution of the whole of
the farm, the family will be substantially overcompensated.
[55] In deciding
whether or not to order the restitution of land a court is obliged to
take into account ‘the amount of compensation
or any other
consideration received in respect of the dispossession’ (s
35(eA)). This aspect was brought pertinently to the
LCC’s
attention and the LCC even thought that there is merit in the
submission that the claimants were not entitled to ‘double’
compensation. But, as counsel for the claimants and the Minister
conceded, the extent of the compensation received at the time for
the
dispossessed land was a weighty consideration and that the LCC
eventually did not have regard to this factor – it appears
to
have overlooked it. In addition, the LCC did not give any reasons for
its implicit finding that the family was entitled to more
than it had
lost. This means that the exercise by the LCC of its discretion in
ordering the return of the whole of the farm is fatally
flawed and
that this Court is obliged to reconsider the issue and exercise its
own discretion (if possible).
[56] The LCC, in its
second (and unreported) judgment, dealt with the issue whether the
state could have waived its right to reclaim
Pylkop and, if not, how
s 33(eA) should be applied in the circumstances of the case. This was
according to the LCC’s formulation
of the remaining issue in
its order at the end of the first stage of the case. However, the
second judgment then concentrated on
the question whether Pylkop
(said to be the compensatory land) should be returned to the state.
This was not an issue between the
parties: the claimants’ case
was that they were to retain Pylkop; the appellants did not contend
otherwise; and the state never
sought the return. I have, in any
event, serious difficulties in understanding on what basis the state
could lay claim on Pylkop.
[57] The reasons
given by the LCC why Pylkop should not be returned are nevertheless
significant. They include the fact that the return
of the family to
Haakdoornbult would cause major social disruption; the family cannot
be accommodated on Haakdoornbult; the value
of the improvements on
Pylkop would be lost to the family; it is unlikely that the community
will be able to farm Haakdoornbult to
its true agricultural
potential; and there are no schools on Haakdoornbult. (The other
reasons given bear no relationship to the
question posed.)
[58] Having reached
that conclusion, the LCC omitted (as mentioned) to consider the
question of the extent of restoration of the lost
land and whether
restoration of the whole would not amount to ‘double’
compensation. Neither counsel for the claimants
nor for the Minister
argued that the Act permits a court to over-compensate through the
exercise of a discretion and they were not
able to identify any
factor which justifies over-compensation.
[59] In fairness to
the LCC, it mentioned three factors that increased the loss of the
family over and above the value of the land.
The first is that ‘some’
livestock was lost on the 17 km trek from the one farm to the other
(all the small stock was
transported by truck). The second is that
they were engaged in legal proceedings against the Bothas to set the
sale aside and that
they were not compensated for their costs. And
the third is a repeat of the point mentioned and disposed of earlier,
namely that
the Bothas had not paid for the use of the irrigation
land. I shall only deal with the second point: there is no evidence
that the
family had paid any legal costs and, in addition, the Bothas
had to pay their own costs in relation to abortive proceedings
against
them.
[60] Taking into
account all the factors mentioned when dealing with the s 2(2) issue
and especially the trauma around the dispossession
of community land
and the relocation of the family (eloquently set out by the LCC) it
cannot be doubted that the return of the whole
of the farm would
amount to a substantial over-compensation. I do not wish to be
understood as saying that there should be a mathematical
calculation
in rands and cents
26
or that a measure of
over-compensation is necessarily excluded by the Act. On the
contrary, I believe that a generous approach should
be adopted and
that a detailed calculation should be discouraged because it makes
the restitution process expensive and is counter-productive,
and it
heightens emotions and leads to costly litigation which both
claimants and the present-day owners can ill afford. Apart from
being
inappropriate it also is impossible to quantify in money terms many
of the factors that have to be considered.
[61] It is for the
state to use its powers under other Acts to acquire the whole of the
land if it is in the public interest to restore
more than what a
claimant is entitled to under this Act. But redistribution cannot be
done under the provisions of this Act and,
in particular, courts do
not have the power to redistribute land. In other words, that the
claimant had received money or compensatory
land in respect of the
dispossession is a material factor to be taken into account in
determining the extent of restitution under
this Act and neither a
court nor the state is entitled to ignore that fact.
[62] The allocation
of the Engelbrecht’s land to the family is at this stage a fait
accompli and is not subject to appeal because
the appellants have no
standing on behalf of the Engelbrechts. This leads then to the next
stage of the inquiry of whether the Engelbrecht’s
land amounts
sufficient compensation and, if not, whether the other subdivisions
should be restored.
[63] The part of the
farm belonging to the Engelbrechts (marked no 7 on the attached
sketch), which is held by separate title, is
important in the history
of the family. As said, it is the northern part of the farm abutting
the river; it is the land that had
been irrigated by some family
members; and is the only part of the original farm that has any water
allocation from the river. This
is also the part of the farm which
the Bothas occupied immediately after the purchase. And it is the
part of the farm that is not
replicated on Pylkop. According to the
evidence, the family intends to settle twelve persons on the farm in
order to develop and
use its irrigation potential for the benefit of
the whole community. There is no other evidence concerning the
family’s intentions
with the balance of the farm. In
particular, there is no evidence to show that the land use may be
changed from agricultural to,
say, township.
[64] It might be
useful to draw at this stage some generalised comparisons between
Pylkop and Haakdoornbult. First to consider is
the extent of
irrigation activities conducted by the family at Haakdoornbult on the
Engelbrecht portion. There was 41 ha irrigable
land which was used by
eleven families. This means that those households had less than 4 ha
each available. Only six of these fields
were flood irrigated, the
rest were used for dry land cultivation. In other words, slightly
more than half of the available irrigable
land had been used for
irrigation. (Some hand watering of a vegetable patch took place on
the RE.)
[65] There was some
86 ha dry land cultivated in patches by the some 36 households on
Haakdoornbult whereas there was some 200 ha
of dry land available on
Pylkop on soils of a better quality. That left some 510 ha grazing on
Haakdoornbult against some 1 740 ha
of grazing on Pylkop, bearing in
mind that not all grazing on Pylkop was of the same quality as that
on Haakdoornbult. At Haakdoornbult
the eleven households that had
irrigation land kept some cattle but the farm was over-grazed and
eroded. Even at the date of dispossession
the farm could not sustain
the extended family. Some worked elsewhere and others had no visible
income, at least not on the available
evidence.
[66] Significantly,
the nature of rights of the family (and of the estate) that were
dispossessed was of the same as those on Pylkop:
full title with the
registered servitude in favour of the family.
27
Although the mineral
rights on Pylkop vested in the state while on Haakdoornbult they
belonged to the land owner, there is no evidence
that they had any
value over and above the purchase price. I should nevertheless point
out that at the time of removal in 1962, the
relative values of the
farms had, according to Griffiths’ doubtful method of
valuation, changed and the relative value of Pylkop
was two-thirds of
that of Haakdoornbult.
[67] Taking all
these factors into account it appears to me fair to hold that by
receiving the Engelbrecht property the family will
not be
over-compensated. It is not possible to make a more positive finding
in this regard because of the lack of evidence about
the value of the
original farm and its component parts. There are two distinct
possibilities. The one is that the return of the other
parts of the
farm will over-compensate and the other is it will under-compensate.
The problem of over-compensation can be solved
within the provisions
of the Act because the Act contemplates that more than what was lost
can be returned provided the claimant
makes good the shortfall (s
35(2)(b)). The problem of under-compensation may also be solved under
the Act which provides that the
state may be ordered to pay the
claimant compensation (s 35(1)(c)).
[68] Against that
background I turn to consider what other portions of the farm ought
to be restored to the family in the light of
the remaining factors
listed in s 33, the most pertinent being the question of feasibility,
the point of departure being to return
such a relatively small piece
of land to such a large community would be counter-productive. (The
other factors have been taken into
account earlier.)
[69] That brings me
to the Furstenburg Trust property (no 6 on the sketch), which is
across the road from the Engelbrecht land. As
mentioned, it is a
relatively small cattle and game farm bought by the Trust shortly
before these proceedings began. It does not
appear to have any
material productive value unless farmed in conjunction with the
adjoining piece of land. The old family graves
are on this portion
but the family has free access to them and they have been well
maintained. No compelling reasons were furnished
why this piece of
land could not be restored. The only ground raised was the adequacy
of the compensation in the light of the grant
of the Engelbrecht
property and the fact that the adjoining piece would become
uneconomical. The latter can be set right by proper
compensation to
the Trust.
[70] Similar
considerations apply to the Bezuidenhout Trust’s farm (marked
no 3). It has been consolidated with an adjoining
piece and is used
as a game farm. On its own it probably has relatively little income
producing value and it could hardly have much
emotional value for the
Bezuidenhout family. The Trust has built facilities on the adjoining
property and improved it knowing of
the existence of the claim,
something not prohibited by the Act because the family’s claim
had not been gazetted. It is a relatively
narrow piece of land with
an awkward shape but together with the Engelbrecht and the
Furstenburg Trust farms it forms a convenient
block of land. Also in
this instance no compelling reasons have been furnished as to why
this piece cannot be restored to the family.
Any losses will have to
be made up by means of compensation payment.
[71] Thus far I have
concluded that the family is entitled to be restored to all but 91 ha
out of 637,4 ha, ie, about 86 per cent
of the whole. That leaves for
consideration the restoration of the CC’s portion (the ‘RE’
mentioned earlier and
an abbreviation for the last Remaining Extent,
and so marked on the sketch). This portion never existed as a
topo-cadastral entity.
It has the appearance of an appendix, a finger
protruding from of the rest of Haakdoornbult. It can also be
described as an isthmus
surrounded by other property belonging to the
CC. This other farm is Portion 1 of Haakdoornbult (a property that is
not the subject
of a land claim) and the strange appendix form was
the result of a subdivision dating back to 1921. Having been
consolidated with
Portion 1, the RE now forms an integral part of
Portion 1.
[72] If the RE were
to be returned to the family it would mean that part of Portion 1
would be surrounded on three sides by the family’s
land and
because its fourth side borders on the river it would mean that this
part of the CC’s land would become isolated.
Apart from this,
as mentioned before, the irrigation system used by the CC, using a
water allocation belonging to another farm (because
the RE has no
water allocation), irrigates part of the RE. If the RE were to be
restored, the land will become dry land and bearing
in mind that dry
land farming is no longer viable in that part of the country it means
that it will probably become grazing for some
13 head of cattle since
the carrying capacity of the farm is about 7 ha per large animal
unit. (The water allocation belonging to
the Engelbrecht land is much
less than the irrigable land on that portion and it makes no sense to
use that water on this piece.)
Part of a huge investment in the
irrigation system will become valueless because part of the system’s
capacity will be sterilised.
By its very nature, that part of the
system cannot be used elsewhere. The state will have to compensate
the CC for this loss and
no one, especially not the family, will
derive any tangible benefit from this payment. In addition, the
family has not produced any
evidence as to any productive use to
which it intends to put to this part of the land. The family also has
no special emotional ties
to the RE. In fact, before the
dispossession, the house on this part of the land had been leased to
a Mr Furstenburg.
The result
[73] In my
judgement, therefore, it would be counter-productive to order the
return of the RE taking into account especially the question
of
feasibility (s 33(cA)) and the current use of the land (s 33 (eB)).
[74] Having found
that the family’s right to the restoration of the Engelbrecht’s
farm cannot be impeached and that the
family is entitled to the
return of the two farms belonging to the Furstenburg and Bezuidenhout
trusts subject to a possible contribution,
the issue that remains to
be resolved is whether there should indeed be a contribution and, if
so, its terms. As mentioned, there
is nothing in the mass of evidence
before us that places any values on the different portions or even on
the whole of the dispossessed
farm. Other evidence that could have
been material is not only the market value but also the value of the
property in the hands of
the family, especially having regard to the
intended use. Then one may have to know more or less what the state
will have to pay
to the affected owners (including the amount to make
good any actual financial loss caused by the expropriation, e g, new
fencing
and the fact that the remainder of the property may have
become over-capitalised)
28
and the extent to
which such payment will benefit the community. It may also be
relevant, as suggested by the claimants, to determine
whether part
payment can be made by putting part of Pylkop in the pot. It might
even be that the family is of the view that these
portions are of no
value to them and that they would rather forego the properties than
have to pay anything for them. In the absence
of evidence this Court
cannot exercise any discretion in this regard and the matter has to
be referred back to the LCC to make the
necessary determination. It
is not foreseen that the affected owners need to take part in this
leg of the proceedings. If the presiding
judge is not reasonably
available another judge of the LCC may deal with the matter.
Costs
[75] The LCC ordered
the participating owners to pay the costs of the proceedings. For
this the LCC relied on what it perceived to
be a new principle laid
down by the Constitutional Court in
Richterveld
29
and it decided to
disregard its own practice of not ordering costs in land claim cases
in the absence of special circumstances. The
Constitutional Court did
in my view not purport to lay down any rule and any such rule would
in any event have been contrary to its
general approach to costs in
constitutional matters. The claimants agree that this exercise of its
discretion by the LCC was flawed
and that the order cannot be
justified, and has to be set aside.
[76] That leaves the
costs on appeal. This Court has not yet laid down any fixed rule and
there are judgments that have ordered costs
to follow the result and
others that have made no orders.
30
I believe that the
time has come to be consistent and to hold that in cases such as this
there should not be any costs orders on appeal
absent special
circumstances.
The order
[77] In the light of
the aforegoing the following order is made:
1. The appeal is
upheld.
2. The cross-appeal
is struck from the roll.
3. The order of the
court below is set aside and the following order substituted in its
stead:
‘
The
Minister of Land Affairs and Agriculture is ordered to acquire and
restore to a communal association to be formed by the claimants
the
following properties (including all mineral rights that are
transferable but subject to existing servitudes and free of mortgage
bonds):
(a) Portion 7 of the
farm Haakdoornbult 542, measuring 101,1038 ha;
(b) The former
portion 3 of Haakdoornbult 542, measuring 172,5105 ha and now forming
part of the farm Drie Jongelings Geluk 562; and
(c) Portion 6 (a
portion of portion 2) of Haakdoornbult 542, measuring 271,6941 ha.’
4. The matter is
remitted to the Lands Claim Court to consider and determine
(a) whether, to what
extent and in what form and on what conditions the communal
association is to contribute to the acquisition by
the State of the
properties mentioned in paragraph 3(b) and (c) above;
(b) the conditions
on which the communal association to be formed shall hold the land on
behalf of the community; and
(c) whether any
rights of way or other servitudes should be granted over the restored
properties.
_________________________
L
T C HARMS
ACTING
DEPUTY PRESIDENT
AGREE:
CAMERON
JA
MLAMBO
JA
SNYDERS
AJA
MUSI
AJA
1
Had
it not been for subdivisions and consolidations (to be referred to
later) since the dispossession the farm would have been called
the
Remaining Extent of the farm Haakdoornbult 542, Registration
Division KQ, Thabazimbi, Limpopo Province in extent 637,4229 ha.
2
[2005]
2 All SA 135
(LCC).
3
Concerned
Land Claimants Organisation of Port Elizabeth v Port Elizabeth Land
and Community Restoration Association
[2006] ZACC 14
;
2007
(2) SA 531
(CC) para 23 and 26.
4
Section
33 is quoted later in full.
5
Khosis
Community, Lohatla v Minister of Defence
2004
(5) SA 494
(SCA) para 31.
6
The
requirements were somewhat less at the time the claim was lodged but
nothing turns on this.
7
Quoted
later.
8
In
re Macleantown Residents Association: Re Certain Erven and Commonage
in Macleantown
1996
(4) SA 1272
(LCC).
9
It
is not necessary to deal with the affected mineral rights holders,
bondholders or holders of servitudes.
10
The
former portion 3 of Haakdoornbult 542, measuring 172,5105 ha and
forming part of the farm Drie Jongelings Geluk 562 through
consolidated title as described in deed of transfer 85279/1992.
11
Portion
6 (a portion of portion 2) of Haakdoornbult 542, measuring 271,6941
ha and held in terms of title deed 27844/2002.
12
The
former or last Remaining Extent of Haakdoornbult 542, measuring
90,8104 ha as described in deed of transfer 20520/1999 and held
under certificate of consolidated title 20251 and forming part of
portion 5 of Haakdoornbult 542.
13
Portion
7 of the farm Haakdoornbult 542, measuring 101,1038 ha and held
under certificate of consolidated title 27845/2002. This
consolidated two portions of the farm in contention.
14
There
is some confusion on the record about whether or not the
Commissioner had been a party to the proceedings and whether counsel
also represented the Commissioner.
15
The
Minister’s legal standing on appeal is doubtful since the
withdrawal of the defence but in the event it is not necessary
to
rule on this issue.
16
For
the importance of the distinction cf
In
re Macleantown Residents Association: Re Certain Erven and Commonage
In Macleantown
1996
(4) SA 1272
(LCC).
17
For
this reason alone the cross-appeal has to be struck from the roll:
Municipal Council of
Bulawayo v Bulawayo Waterworks Co Ltd
1915
AD 611
at 631.
18
The
agreement is quoted in full in
Mphela
v Engelbrecht
[2005]
2 All SA 135
(LCC) at para 5.
19
Cf
Alexkor
Ltd v Richtersveld Community
[2003] ZACC 18
;
2004
(5) SA 460
(CC),
2003 (12) BCLR 1301
(CC) para 47 et seq.
20
The
LCC’s reliance
Ndebele-Ndzundza
Community v Farm Kafferskraal No 181 JS
2003
(5) SA 375
(LCC) and
In
re Kranspoort Community
2000
(2) SA 124
(LCC),
[2003] 1 All SA 608
(LCC) takes the matter no
further.
21
‘
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.’
22
Du
Toit v Minister of Transport
2006
(1) SA 297
(CC) para 26-37;
City
of Cape Town v Helderberg Park Development (Pty) Ltd; Former
Highlands Residents concerning the Area formerly known as the
Highlands (now Newlands Extension 2), District of Pretoria: In re
Sonny v Department of Land Affairs
2000
(2) SA 351
(LCC),
[2000] 1 All SA 157
(LCC);
Abrams
v Allie NO
2004
(4) SA 534
(SCA),
[2004] 2 All SA 99
(SCA).
23
Relying
on s 13 of the Native Trust and Land Act 18 of 1936.
24
LCC
64/98 decided on 5 December 2003 para 12. The assessor was Prof M
Wiechers.
25
Section
33: ‘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;
(cA)
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;
(eA)
the amount of compensation or any other consideration received in
respect of the dispossession, and the circumstances prevailing
at
the time of the dispossession;
(eB)
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;
(eC)
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.’
26
Abrams
v Allie NO
2004 (4)
SA 534
(SCA),
[2004] 2 All SA 99
(SCA).
27
In
this respect this case differs from
Baphiring
Community v Uys
15
September 2003 Case Number LCC 64/98.
28
Expropriation
Act 63 of 1975 s 12(1)(a)(ii).
29
Alexkor
Ltd v Richtersveld Community
[2003] ZACC 18
;
2004
(5) SA 460
(CC),
2003 (12) BCLR 1301
(CC).
30
Prinsloo
v Ndebele-Ndzundza Community
2005
(6) SA 144
(SCA),
[2005] 3 All SA 528
(SCA).