Land described by the Welverdiend Community (“Claimant Community”). At the time
of dispossession, as comprising areas: Mahulumbe (Welverdiend No. 2193) situated
in the eDumbe Municipality, KwaZulu-Natal.
JUDGMENT
YACOOB J:
Introduction
[1] This matter has a long history before this court, and the nature of the claim has,
over time, changed its shape. The plaintiff community (‘the community’) initially
sought the restoration of land in terms of the Restitution of Land Rights Act, 22
of 1994 ( ‘the Restitution Act’), of which it claimed that it had been dispossessed.
The restoration was opposed by the current owners of the land (the second and third defendants).
[2] After the first hearing of the matter, in March 2020, and an inspection in loco, the
matter was set down again for hearing in March 2022. At that point, the community elected to relinquish its claim for restoration, and to seek only monetary compensation. This meant that the second and third defendants were no longer part of the proceedings. It also meant that, although the trial was
originally to be heard with an assessor, an assessor was no longer necessary.
[3] The matter was postponed for the remaining parties, that is, the community on
the one hand, and the first and fourth defendant s on the other (I shall, for
simplicity’s sake, simply refer to the defendants, as both the first and fourth defendant s are part of the state, have the responsibility of dealing with restitution
claims and shared legal representatives in this matter), to submit a stated case
on which the matter may be decided, and for the defendants to undertake a
verification process, to determine which who exactly was part of the community
and who was entitled to compensation. There was some back and forth between
the defendants and the community on this process, and a final agreed verification
was completed and submitted late in 2023. Further legal submissions were filed between September 2023 and April 2024.
[4] There is now no dispute between the defendantsand the community on whether
the community is entitled to compensation, or on the identity of those entitled to
compensation. The only dispute now between the community and the
commission on the merits is whether the members of the community are entitled,
in addition to compensation in accordance with the defendant’s Financial
Compensation Policy, to further compensation, or solatium, for the trauma and
humiliation suffered by the members of the community. The community seeks an
award in solatium of R5 million per household.
[5] In its initial written submissions to this Court, in March 2022, the
defendants raised the point that the claim for solatium was not pleaded by the
community. It was never part of the issues dealt with by the parties and was
never properly canvassed. The defendants contends that the claim for solatium,
which suddenly made its appearance in the stated case submitted in 2022, is no
more than an afterthought. The first time an amount for solatium is quantified is
in the community’s heads of argument, and there is no real attempt to
substantiate the amount claimed.
[6] Despite the various delays and developments since that date, and the
opportunities given to the community to make further submissions, particularly with regard to the question of solatium, the community made no effort to deal
with the point that the claim was never pleaded. Nor was any attempt made to formally amend the pleadings .
[7] Nevertheless, it is clear to me that the claim for solatium appeared as a result of
the community’s relinquishment of the claim for restoration of the land, and as a
balancing measure. The defendants have had the opportunity to deal with the
claim and I am therefore entitled and obliged consider it properly.
[8] The facts in this matter are not in dispute. Members of the community were made
to unceremoniously leave their homes and the land on which they lived and
subsisted. They were threatened with imprisonment if they did not comply, and
their livestock and ploughing equipment were impounded to enforce compliance. It is common cause, and is in fact indisputable, that they suffered emotional and
physical trauma, and were not treated in a manner that would be acceptable in a
society based on the values of dignity, equality and freedom.
[9] The claimants rely on the judgment of the Land Claims Court in Baphiring
Community v Uys,1 in which the court reaffirmed that fair compensation would,
in certain circumstances, include “solace for emotional distress”.2 The principle
of including an amount for solatium in the consideration of fair compensation was
considered in detail in Hermanus v Department of Land Affairs .3 This was again
confirmed by the Supreme Court of Appeal in Haakdoornbult Boerdery CC v
Mphela (‘Mphela’).4 The basis for the inclusion is the factors listed in s 33 of the
Restitution Act, which, as pointed out by the Court in the Hermanus judgment,
include factors not listed in s 25(3) of the Constitution.5
[10] The SCA in Mphela also sets out the importance of ensuring that, although a
generous approach must be taken and there is not a strict mathematical calculation of compensation, the result of the award is not over-compensation.
6
[11] I requested the parties to make submissions on whether the Financial
Compensation Policy, on which the defendants rely to determine the amount it is now common cause each family should be awarded as a minimum, includes in its calculation of the amount a consideration of the fact that, in most instances of dispossession for which restitution may be claimed in this Court, there is almost
inevitably trauma and humiliation which would justify some kind of claim for
solatium.
[12] The response from the defendants was simply to refer to and proffer
interpretation of the existing policy. Examination of the policy reveals that it deals
primarily with compensation with reference to historical valuation and the factors
listed in section 25(3) of the Constitution, although it makes passing reference to section 33(eB) of the Restitution Act, which requires “the hardship caused” by
the dispossession to be taken into account. The historical valuation method
1 2007 (5) SA 585 (LCC)
2 At para [15].
3 2001 (1) SA 1047 (LCC) at paras 15 -27.
4 [2008] 7 BCLR 704 (SCA) at [48].
5 Constitution of the Republic of South Africa, 1996.
6 At para [60]
espoused by the policy requires a determination of market value, followed by an
adjustment by taking into account section 25(3) of the Constitution. It does not require adjustment taking into account factors listed in s 33 of the Restitution Act.
[13] The upshot is that the Financial Compensation Policy deals with financial
compensation for loss of a right in land of one kind or another, calculated with specific reference to the financial value of the loss. It does not comprehensively consider “equitable redress” as contemplated in section 25(7) of the Constitution,
or the Restitution Act, in particular in the factors to be considered by the Court in
s 33.
[14] The unavoidable conclusion is that the Policy did not, and does not, include in its
considerations the “hardship caused” by a dispossession. It would therefore be
open to a claimant accepting an award in terms of the Policy to claim, and if the
claim is found to be established, to be awarded, an amount for solatium.
[15] At the same time, the very existence of the whole scheme of restitution is based
on an acceptance and acknowledgment that dispossession as a result of racially
based laws and practices necessarily caused hardship, humiliation and trauma,
especially to those people who did not have registered rights in land and whose rights were simply not acknowledged as worthy of legal or moral consideration. This is evident in the fact that the Restitution Act was enacted to facilitate
equitable redress to people who suffered dispossession as a result of racially
based laws and practices, and in the factors a court must consider in terms of s 33 of the Act, which include “the desirability of remedying past violations of human rights”,
7 “the requirements of equity and justice”,8 and any other factor the
Court considers relevant.9
[16] In my view, the obligation of the Court to look at these factors demonstrates that
in some cases, the levels of trauma and humiliation suffered by the affected people would be beyond what might have been contemplated as “ordinary” levels
of suffering which could be catered for by simple mathematically calculated
awards. It must be acknowledged too, that the idea that certain levels of trauma
7 Section 33(b).
8 Section 33(c).
9 Section 33(f).
and humiliation must be considered to be “normal” is a demonstration of the
unacceptable nature of what it was commonplace to expect people to tolerate before the advent of the constitutional democracy.
[17] It ought by now to be trite that an award for solatium is intended not to be
something from which a claimant can profit. It is intended as an acknowledgment of a wrong, and a nominal token of apology. The Commission referred the court
to a judgment of the Constitutional Court, Department of Land Affairs and Others
v Goedgelegen Tropical Fruits (Pty) Ltd .
10 In that judgment, Moseneke DCJ
emphasised the character of a claim for equitable redress, although in the context
of determining how causation should be determined:
“The claim is against the state. It has a reparative and restitutionary character. It is
neither punitive in the criminal law sense nor compensatory in the civil law sense.
Rather, it advances a major public purpose and uses public resources in a manifestl y
equitable way to deal with egregious and identifiable forms of historic hurt.”11
[18] The defendants relied also on the Hermanus case (above), to submit that the
award must balance the interests both of the claimant and the community from
which the award will be financed (i.e. the fiscus), and that the reparation has symbolic significance but is not intended to be complete compensation for
emotional suffering.
12
[19] On balance, in the circumstances of this case, my view is that the emotional
suffering that it is common cause was and continues to be experienced by the
claimants is sufficient to justify some additional award as solatium, as an
acknowledgment of that suffering. But that award must be only a nominal amount, to show that the suffering was and is not invisible, and not an amount intended as compensation for suffering.
[20] Certainly, the amount claimed, and not substantiated, by the claimants in their
written argument, of R5 million per household, is excessive. That is an amount intended to make a substantial difference in the lives of the people who receive
10 2007 (6) SA 199 (CC); 2007(10) BCLR 2027 (CC) (wrongly referred to in the written
submissions as Baphiring Community v Uys and Others).
11 At para [68].
12 Hermanus v Department of Land Affairs , above, at para [33].
it, and would have been an excessive amount even if it was an award in a
delictual claim. It is also more than ten times the amount of the award each household is entitled to in terms of the Policy, for the main compensation award.
There is no basis on which this is appropriate.
[21] The cases referred to by the claimants in support of the claim are all delictual
claims, by individuals. They are not community claims, and are not made in the
context where there is already a valid and undisputed claim for an amount of
financial compensation. They do not find application in the context of this matter.
[22] The claimants also make a claim for “special damages in respect of loss of
livestock and ploughing equipment associated with solatium”, of R4 364 148, but
that claim is also not pleaded. The fact that there is evidence about those damages in the expert reports goes towards the financial valuation of the main
compensatory claim, and not the solatium claim. In my view there is no basis to
include that head of damages in the consideration of solatium.
[23] The amount awarded for solatium in the Hermanus case was R6 000, and this
was in 2000. The value of that award today is approximately R20 000. Taking into account that an award is not just intended to be a mechanical calculation, and that there was only a single claimant in Hermanus, I find that an appropriate
amount per household for an award of solatium, as a nominal amount
acknowledging the hurts and indignities suffered, would be R15 000 per household. As there are 53 households, the total amount of that award would be
R795 000.
[24] It remains to consider costs. A great deal of the delays in this case were caused
by disputes and confusion about the costs of the claimants. At first the litigation was funded by the defendant . Then the defendants concluded an agreement with
Legal Aid South Africa that it would handle the representation of claimants on behalf of the defendant . I was informed that as a consequence of this agreement
the defendant’s budget for legal representatives for claimants was apparently
also handed over to Legal Aid South Africa. In order to benefit from representation funded by Legal Aid South Africa, the claimants would have had to change legal representatives mid-litigation, because the claimants’ attorneys
were not accredited service providers with Legal Aid South Africa. The claimants
then elected to enter into a contingency fee agreement with their representatives.
[25] The defendants objected to the contingency fee agreement on the basis that,
according to them, it amounted to double-dipping. According to the defendant,
Legal Aid South Africa would provide the requisite legal representation and there was no basis on which the contingency fee agreement could be countenanced.
[26] After much to-ing and fro-ing, after it became clear that the claimants’ chosen
representative was not accredited with Legal Aid South Africa, and that the claimants, not unreasonably, wished to continue with their chosen representatives, I ruled that the claimants had the right to choose to conclude a contingency fee agreement and continue with their existing legal team. The
defendants conceded that there was no evidence of double dipping, but that the
impression had arisen out of a misunderstanding of the situation.
[27] As a result of the confusion, the experts employed by the claimants after Legal
Aid South Africa became the defendant’s agent in arranging legal representation,
have been paid for by the claimants’ attorneys, and those costs must be included
in the costs order.
[28] The contingency fee agreement was submitted to court and is consistent with the
Contingency Fees Act,
13 save that the amount that may be paid to counsel in
terms of the agreement is not subject to the limit of a maximum of 25% of the value of the claim. This is clearly an oversight, as the amount paid to counsel cannot be unlimited. In addition, it seems to me that to allow separate limits for
each legal practitioner would unnecessarily erode the value of the award
received by the claimants. For example, if there had been three representatives,
and each was limited to a maximum of 25% of the value of the claim, this could easily result in 75% of the claim award being allocated to legal costs, with 53
households then sharing only 25% of the claim. This is neither just nor equitable,
and in my view is in fact inconsistent with a proper interpretation of the
Contingency Fees Act.
13 Act 66, 1997
[29] Counsel’s fees must be calculated as part of the total maximum of 25% of the
award which may be allocated to legal fees not covered by the costs award.
[30] It is appropriate in the circumstances that the claimants not be out of pocket for
more than necessary, and therefore that the costs be taxed on an attorney and
client scale.
[31] For the reasons set out above, I make the following order:
1. The following compensation is to be paid by the Minister of Rural
Development and Land Reform to the plaintiff for:
1.1. monetary compensation in respect of
restitution of land rights R17 020 738 .00
1.2. recompense for trauma, pain and suffering
for all 53 households R795 000.00
TOTAL R17 815 738.00
2. The total amount payable to the plaintiff in terms of paragraph 1 of this Order,
be paid into the trust account of the plaintiff’s attorneys of record, the details of which are as follows:
Account holder: P S L NKAMANE ATTORNEYS
Bank: STANDARD BANK
Account number: 051139456
Branch: KINGSMEAD
Ref: WELVERDIEND COMMUNITY // MINISTER FOR RURAL
DEVELOPMENT & LAND REFORM, CASE NO. LCC
75/09
3. The First Defendant is to pay the taxed costs of the plaintiff including for the
employment of the attorneys, Senior Counsel and the experts as from 7