IN THE LANO COURT OF SOUTH AFRICA
HELO AT RANDBURG
Before: Honourable Ncube J
Heard: 25 March 2025
Delivered: 09 May 2025
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
R ED.
In the matter between:
MINISTER OF RURAL DEVELOPMENT ANO
LAND REFORM
REGIONAL LAND CLAIMS COMMISSIONER,
KWAZULU ~NATAL
and
FEROZ SHAH AND 42 OTHERS
and CASE NO: LCC93/2014
First Applicant
Second Applicant
1st to 43rd Respondents
CASE NO: LCC180/2014
In the matter between:
MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM
REGIONAL LAND CLAIMS COMMIS SIONER,
KWAZULU-NATAL
and
NACAR SHAH
ORDER First Applicant
Second Applicant
Respondent
1. The Applicants are granted leave to appeal to the Full Court of the Land Court
in Randburg on the issue of Solatium and Financial Loss.
2. There is no order as to costs
JUOGMENT: APPLICATION FOR LEAVE TO APPEAL
NCUBEJ
Introduction
[1) This is an opposed application for leave to appeal. The Applicants seek leave
to appeal to either the Full Court of the Land Court or the Supreme Court of Appeal
against the whole judgment and order of this Court handed down on 06 December
2024.
Test for leave to appeal
2
{2] The Applicant for leave to appeal must satisfy three cumulative requirements
for leave to appeal. The starting point of exercise is section 17 of the Superior Courts
Act1 which provides:
"17 Leave to appeal
(1) Leave to appeal may only be given where the Judge or Judges concerned are
of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(IQ there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the
Issues in the case, the appeal will lead to a just and prompt resolution
of the real issues between the parties•
[3] Commenting on the aspect of reasonable prospects of success in MEC Health
Eastern Cape v Mkhitha2, Scheepers AJA as he then was, expressed himself in the
following terms:
'An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless is not enough. There must be a sound rational
basis to conclude that there Is reasonable prospect of success on
appeal'
[4] In Smith v S3 Plasket J said:
1 Act 10 of 2013
2 (1221/2015) (2016) ZASCA 176 ( 25 November 2016) Para17
3 2012(1) SACR567 (SCA) Para 7
3
'What the test of reasonable prospect of success postulates is a
Dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore the appellant must convince
this court on proper grounds that he has prospects of success on
appeal and that those prospects are not remote but have a realistic
chance of succeeding.'
Grounds of Appeal
(5) The Applicants has tabulated the following grounds of appeal:
1. The Learned Judge erred in awarding solatium in the amount of
R1 391 569.48 calculated In accordance with the formula
prescribed by the Expropriation Act 63 of 1975.
2. The Learned Judge ought to have found that the Expropriation
Act 63 of 1975 is not applicable to this case, since the property
In question was not expropriated in terms of the Expropriation
Act 63 of 1975.
3. In dealing with the issue of so/atium the Leamed Judge ought
to have followed the principle expressed in Florence v
Broadcount Investments (Pty) Ltd where the Court held that
the purpose of the award of solatium is symbolic and does not
attempt to provide full redress for the claimants' emotional
suffering.
4. The Learned Judge erred In awarding the amount of R11
739672.00 as just and equitable compensation for the land
concerned. In awarding the said amount, the learned Judge
considered market value only and failed to consider the other
4
factors mentioned in Section 25(3} of the Constitution of the
Republic of South Africa.
5. The Learned Judge ought to have considered the principle laid
down in the Florence and Jacobs and Others v Deparlment of
Land Affairs and Others (LCC3/98) [2016] ZALCC 14(13 June
2016) namely, payments In terms of the Restitution of Land
Rights Act are not meant to replicate the market value but
should reflect the public interest.
6. The Learned Judge erred in accepting that the value of the land
concerned is RS 500.00 per hectare. In this regard the learned
Judge ought to have accepted the evidence of the Applicants'
expert witness to the effect that the value of the land concerned
is R3 500.00 per hectare.
7. The learned Judge erred In awarding financial loss in the
amount of R534 794.36. In this regard the learned Judge ought
to have taken into account the principle laid down by the
Constitutional Court in Florence v Government of the Republic
of South Africa where the Court held that financial loss should
be calculated at the time of dispossession and for the purpose
of placing the claimants in the same position as they would have
been in immediately after dlspossession .0
[6] As it is always the case in these applications, the drafter of the grounds of
appeal will always cast the net wide and in the process, repeat some of the grounds
of appeal. In the present case, grounds 1,2 and 3 deal with one issue and that Is the
Issue of solatium. Grounds 4, 5 and 6 deal with one issue which is the value of the
land.
[7] Therefore, in essence, there are only three grounds of appeal which are
Solatium, Value of the Land and Financial loss. I now turn to deal with each of those
grounds as I have summarized them above.
i. Solatium:
5
Solatium is payment made as compensation for injured feelings
or emotional pain and suffering. It may be difficult to measure
solatium in monetary terms. In the present case, the Court
calculated solatium with reference to the Expropriation Act 63 of
1975. In its earlier judgment:4, this same Court found that the
Expropriation Act 63 of 1975 was not applicable in these cases.
In that case, the Court awarded solatium at R45 000 and in that
case, there was evidence of hardship suffered by the victims. In
the present case, no evidence of hardship suffered was
presented to the Court and that should be corrected by the
Appeal Court. I find therefore that the Applicants have a
reasonable prospect of success on appeal on this ground.
Similarly, there was no evidence of financial loss suffered. The
Appeal Court will be required also to give guidance on how to
calculate compensation for financial loss in circumstances
where no such evidence has been tendered by the victims. The
remaining ground therefore, is the determination of the value of
the land.
ii. Value of the land
The graveman of the Applicants is that In its determination of
the value of the land, this Court only considered the market
value of the land and did not consider the other factors
mentioned in Section 25(3) of the Constitution. There is no
indication in this courts' judgment that factors mentioned in
Section 25(3) of the Constitution were not considered. They
were in fact considered, without being mentioned. In R v
Dh/umayo and Another6 Davis AJA, as he then was said:
' ...... even in a written judgment it is often impossible, without
going into the facts at undue length, to refer to all the
considerations that arise. Moreover, even the most careful
◄ Hablba Soofia Saheb Baosha Trust and Others v Minister of Agriculture Rural Development and Land
reform and Others(LCC106/2014) (2021] ZALCC 12 (6 July 2021)
5 1948 (2) SA 677 (AD) at 702
6
Judge may forget, not to consider but to mention some of them.
In other words, it does not necessarily follow that, because no
mention is made of certain points in the Judgment .......... they
have not been taken into account by the trial Judge in arriving
at his decision. No judgment can ever be perfect and all
embracing. It would be most unsafe Invariably to conclude that
everything that is not mentioned has been overlooked .•
[8] In Casu, Mr Serfontein was a hopeless witness. He did not believe in the
integrity of his own investigations and he was not worthy of credence. I rejected his
calculations and accepted Mr Stephenson's calculations. In any even~ at first, all
experts, in a joint minute, agreed on the value of R5 500 per hectar. Mr Serfontein,
after he had wrongly consulted the Regulations from the office of the Valuer General
unilaterally changed his calculations from R5 500 per hectar to R3 500 per hectar. I
therefore conclude that there was no misdirection in the determination of the value of
the land.
Costs
[9] There is no application for leave to appeal the costs order.
Conclusion
[10) I therefore conclude that the Applicants have a reasonable prospect of success
on appeal only on the point of solatium and financial loss. Those are the only two
issues to be determined by the Appeal Court.
Order
[11) In the result, I make the following order:
1. The Applicants are granted leave to appeal to the Full Court of the Land
Court In Randburg on the issue of Solatium and Financial Loss.
2. There is no order as to costs.
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Appearances:
For the Applicants :
Instructed by: Adv Choudree SC
Adv Nqala SC
State Attorney
Durban
For the Respondents: Mr Grobbelaar
8 ....
NCUBE T