Mphela and Others v Haakdoornbult Boerdery CC and Others (CCT 42/07) [2008] ZACC 5; 2008 (4) SA 488 (CC); 2008 (4) BCLR 675 (CC) (8 May 2008)

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Mphela and Others v Haakdoornbult Boerdery CC and Others (CCT 42/07) [2008] ZACC 5; 2008 (4) SA 488 (CC); 2008 (4) BCLR 675 (CC) (8 May 2008)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                            Case
CCT 42/07
[2008]
ZACC 5
In the matter
between:
M M MPHELA AND 217
OTHERS
                                                       Â
1
st
to 218
th
Applicants
versus
HAAKDOORNBULT BOERDERY
CC AND 6 OTHERS
                     Â
1
st
to 7
th
Respondents
Heard on         :           8
NOVEMBER 2007
                      Â
Decided on     :           8
MAY 2008
              Â
JUDGMENT
MPATI AJ
Introduction
[1]
This matter concerns the restitution of land
lost due to past discriminatory laws and practices.  The applicants are members
of
the Mphela family and descendants of the late Mr Klaas Phali Mphela.  They
lodged a claim under the Restitution of Land Rights
Act (the Act)
[1]
for restitution of a farm
previously known as the Remaining Extent of the farm Haakdoornbult 542,
Registration Division KQ, Thabazimbi,
Limpopo.
[2]
Â
(I shall refer to the land claimed as “the farm” or “Haakdoornbult”).  The farm
was a single tract of land at the time
the applicants’ predecessors were
entitled to it.  It now consists of four subdivisions.  The Land Claims Court (Land Court)
(per Moloto J, sitting with Mr G Hugo as assessor) upheld the
claim and ordered that all four subdivisions of the land be restored
to the
applicants.
[3]
Â
On appeal to it, the Supreme Court of Appeal (per Harms ADP, Cameron and Mlambo
JJA, Snyders and Musi AJJA concurring) set aside
that order and, in turn,
ordered that 86% of the land (three of the four subdivided portions) be
restored to the applicants.
[4]
Â
The full order of the
Supreme
Court of Appeal
reads:
“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 Land 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 para 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.”
[2]       The applicants
now seek leave to appeal against paragraphs 1 and 3 of the order of the Supreme
Court of Appeal.Â
The main issue in this matter, then, relates to the extent of
restitution to which the applicants are entitled.
[3]       The first to sixth respondents
oppose the application for leave to appeal.  However, only the second to sixth
respondents
have lodged a cross-appeal, conditional upon leave being granted to
the applicants, against that part of the order of the Supreme
Court of Appeal
that restores their portions of Haakdoornbult to the association formed by the applicants.Â
The Bez Bezuidenhout
Family Trust (Bezuidenhout Trust), represented in these
proceedings by the second to fourth respondents as trustees thereof, owns
what
is known as the “Former Portion 3 of the farm Haakdoornbult 542, measuring
172,5105 hectares”,
[5]
which now forms part of an adjoining farm.  “Portion 6 (a portion of Portion 2)
of the farm Haakdoornbult 542, measuring 271,6941
hectares”,
[6]
is owned by the F & S
Furstenburg Family Trust (Furstenburg Trust).  The fifth and sixth respondents
are trustees of the Furstenburg
Trust and have been cited as such.
[4]     Â
A third piece of the claimed land, namely “Portion 7 of the
farm Haakdoornbult, measuring 101,1038 hectares”
[7]
is owned jointly by Mr Graham Engelbrecht and Mrs Hendrina
Engelbrecht.  This portion is not the subject of any appeal.  The fourth
piece,
described as the “Former Remaining Extent of the farm Haakdoornbult 542,
measuring 90,8104 hectares”
[8]
(the Remaining Extent) is owned by the first respondent.  It
forms part of Portion 5 of the farm Haakdoornbult 542.
[9]
Background
[5]       Since the
decisions of the Supreme Court of Appeal
[10]
and the Land Court
[11]
have been reported, it is not necessary to set out the facts in detail.  A very
brief summary will suffice.  As pointed out earlier,
the applicants are members
of the Mphela family and descendants of the late Mr Klaas Phali Mphela.  Mr
Mphela was a farmer who,
until his demise in February 1932, was the registered
owner of Haakdoornbult, a sizeable farm situated on the banks of the Crocodile

River near Thabazimbi in present day Limpopo Province.  In March 1932 the farm
was registered in the name of Mr Daniel Rakgokong
Mphela, eldest son of Mr
Mphela.  He, in turn, entered into an agreement with his siblings and the
families of those of his siblings
who were no longer alive, in terms of which
he granted them “the undisturbed right to live and reside” on the farm and “to

use and cultivate [it] and to exercise all the rights over [it]”.
[12]
[6]       During 1951 the
farm was sold to the owners of a neighbouring farm, the Botha brothers, who
paid approximately 50%
more than the market value of the farm at the time.
[13]
  The sale was not voluntary.Â
The government of the day had insisted that the Mphela family relocate to a
nearby farm, Pylkop,
since Haakdoornbult was considered as a “black spot” in an
area earmarked for members of the white community only.  The neighbouring

farmers also put pressure on the Mphela family to vacate the farm.  The family
resisted the removal, but were eventually forcibly
removed to Pylkop in 1962.Â
They had purchased Pylkop
from the government with the proceeds
received from the sale of Haakdoornbult.
[14]
Â
The forced removal is crisply described thus by Harms ADP:
“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 houses and kraals and
kgotla tree.”
[15]
The Mphela family was not
compensated for the structures they had put up on Haakdoornbult.
[16]
[7]       There were no
houses on Pylkop for occupation by the Mphela family.  The government provided
them with tents as
temporary accommodation.
The proceedings in the Land
Court
[8]       Initially all
the owners of the four portions of the subdivided farm opposed the applicants’
claim.  However,
the Engelbrecht family, the owners of Portion 7, withdrew
their opposition during the course of the proceedings.
[9]       Three issues
remained for resolution by the Land Court after the parties had filed a statement
of agreed facts and
facts in dispute.  These were: (a) whether the applicants
had lodged their claim with the Commission on Restitution of Land Rights
in the
prescribed manner in terms of the Act; (b) whether the claim, if properly
lodged, was excluded by the provisions of section
2(2) of the Act;
[17]
and (c) in the event that (a)
and (b) were decided in favour of the applicants, what form of restitution
should be granted.
[10]     The Land Court decided questions (a) and (b) in favour of the applicants.
[18]
  In dealing with question (c),
that is what form of restitution should be granted in terms of section 35, the
Court, as it was
enjoined to do, considered the provisions of section 33
of
the Act
[19]
and found that all the factors listed in that section, relevant to the claim,
pointed in favour of an award of restitution.
[20]
Â
It held that the applicants had made out a compelling case for restoration and
ordered that the whole of the land claimed be
restored to the applicants.
[21]
[11]     It was argued on
behalf of the applicants before the Land Court that no order should be made
regarding the return of
Pylkop
in the event that Haakdoornbult was
restored to the applicants.
[22]
Â
One of the reasons for this argument was that the seventh respondent, the
Minister responsible for the administration of the
Act, had indicated at the
commencement of the hearing before the Land Court, that she would not seek the
return of Pylkop in the
event of the farm being restored to the applicants.Â
The contention on behalf of the owners, on the other hand, was that failure
to
make an order for the return of Pylkop would amount to “double” compensation.Â
The Court was of the view, however, that
land cannot be given away on the mere “I
do not claim the compensatory land” of the seventh respondent.  It therefore
called
for full argument on the question of whether the seventh respondent “can
legally abandon the compensatory land in the face of
the peremptory provisions
of section 33(eA)” of the Act.
[23]
[12]     In a separate
judgment
[24]
the Land Court held that it had a discretion to order the return of
compensatory land even in the absence of a plea by the State.
[25]
  It held further that, having
considered certain factors and conditions prevailing at Pylkop, “it [would be]
just and equitable
not to order the return of the compensatory land”.
[26]
The proceedings in the
Supreme Court of Appeal
[13]     The owners of
three of the subdivisions of Haakdoornbult appealed the decision of the Land Court with leave of that
Court.  The main issue before the Supreme Court of Appeal was
whether the claimants had made out a case for the restoration of
all four
subdivisions of the farm.  Although the Supreme Court of Appeal considered that
the purchase price paid for the farm
was not below its market value,
[27]
it nevertheless
found that the Mphela family were not fully and fairly compensated.  In this
regard the Court made the following
important and enormously relevant
observations:
“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.”
[28]
And further:
“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.”
[29]
[14]     Understandably
so, the Supreme Court of Appeal was in no position to quantify the losses and
trauma suffered by the
Mphela family, for which no compensation had been paid.Â
But in considering whether a case had been made out for the return of
the whole
farm, the Court reasoned that, even if it were to be accepted that the market
value of the farm as at 1962 was more than
the purchase price actually paid for
it,
[30]
as the Land Court had found, and even if Pylkop were to be regarded as
compensatory land to which could be added the unquantifiable
losses and trauma
suffered, the family would be substantially over-compensated were restoration
of the whole farm to be ordered.
[15]     In deciding
whether or not to order restoration of land, said the Supreme Court of Appeal,
a court is obliged, in terms
of section 33(eA) of the Act,
[31]
to take into account the
amount of compensation or any other consideration received in respect of the dispossession.Â
This aspect,
the Court found, was overlooked by the Land Court despite it
having been brought to that Court’s attention.  This meant that
the discretion
exercised by the Land Court was fatally flawed
and the Supreme Court
of Appeal was consequently entitled to exercise its own discretion.
[32]
[16]     The Supreme Court
of Appeal then proceeded to deal with the individual portions of the farm and
held that restoration
of Portion 7 (owned by the Engelbrecht family) would not
amount to over-compensation.  Having considered the factors listed in
section
33 of the Act,
[33]
“the most pertinent being the question of feasibility,”
[34]
the Court found that no
compelling reasons were furnished why Portion 3 (owned by the Bezuidenhout
Trust) and Portion 6 (owned
by the Furstenburg Trust) could not be restored.Â
In light of the restoration of the Engelbrecht property however, the issue
arose
of the adequacy of the compensation that the Mphela family had received.Â
The Supreme Court of Appeal answered this question by
ordering the restoration
of Portions 3 and 6 “subject to a possible contribution” by the applicants.
[35]
[17]     With regard to
the Remaining Extent (owned by the first respondent) the Supreme Court of
Appeal observed that this
piece of land has no water allocation although part
of it abuts the Crocodile River.  The current owner irrigates part of it by
way
of an irrigation system using a water allocation that belongs to another farm.Â
The Supreme Court of Appeal considered that
if the Remaining Extent were to be
restored, it would become dry land which could be used for grazing of a small
number of cattle.Â
Also, because of its peculiar shape,
[36]
its restoration would mean
that part of portion 5
[37]
would be surrounded on three sides by the family farm and would become isolated
as the fourth side borders on the river.  And,
because that part of the
irrigation system used on the land concerned cannot be used elsewhere and would
thus be “sterilised”,
[38]
part of a huge investment (in the irrigation system) would become valueless.Â
The applicants would derive no benefit from it while
the State would have to
compensate the first respondent.
[18]     For these
reasons, relating to the question of feasibility
[39]
and the current use of the
land,
[40]
the Supreme Court of Appeal held that the return of the Remaining Extent would
be counter-productive.  It accordingly made the
order referred to in paragraph
1 above.
The applicants’
submissions
[19]     Counsel for the
applicants formulated the main issue for determination in the form of a
question: whether the receipt
of compensatory land operates to limit the area
of Haakdoornbult which may be restored.  Counsel submitted that the approach
adopted
by the Supreme Court of Appeal in this regard renders the restitution
process a mere top-up scheme for compensatory land received
under apartheid and
tends to entrench the apartheid era allocation of land along racial lines.  He
argued that the Supreme Court
of Appeal’s approach misconceives the purpose of
section 25(7)
of the Constitution
[41]
 as well as the provisions of the Act.  A further contention, was that
notwithstanding the wide discretion conferred on the Land
Court for its
decision on appropriate relief to be granted to claimants, the primary purpose
of section 25(7) of the Constitution
and the Act is to bring about the actual
return of land taken from South African citizens and communities on the grounds
of race.
[20]     Concerns
regarding possible over-compensation, so it was argued, must be addressed under
the statutory mechanisms provided
in section 35(2)(b) and (f)
of the
Act
[42]
 and not by depriving claimants of the land from which they were forcibly
removed.  It was contended that, once the Supreme Court
of Appeal accepted that
the remedy for over-compensation lies in section 35(2)(b), there was no basis
for the Court to interfere
with the order of the Land Court for restoration of
the whole farm.
[43]
Â
Restoring the whole of the land claimed, said counsel, is not over-compensation
but restoration.  Where complete restoration
of land claimed would amount to
over-compensation, then compensatory land or other compensation (if no
compensatory land was given)
should be taken back.  As to redistribution,
counsel submitted that the Supreme Court of Appeal was correct in holding that
courts
cannot effect it.  In the present matter, however, the State, in not
claiming the return of Pylkop, has approved such redistribution,
so the
argument continued.
Respondents’ submissions
[21]     The main issue,
according to counsel for the respondents, is justice and equity.  Restitution
entails the question:
What has a claimant lost?  If there is no difference
between what was received as compensation and what was lost, no restitution
is
available.
[44]
Â
The enquiry, said counsel, should be aimed at the extent of restitution to
which a claimant is entitled.  If there is a shortfall,
then the claimant is
entitled to such a shortfall.  In its deliberations, a court must take into
account the interests of all
concerned, including those of the current owners
of the land subject to a claim.
[22]     As to the order
restoring Portions 3 and 6 of the farm, it was argued that the Supreme Court of
Appeal erred in finding
that no compelling reasons were given as to why those
portions should not be restored to the applicants.  Counsel for the respondents

contended that such compelling reasons were furnished.
Condonation
[23]     The applicants
have applied for condonation for the late filing of their replying affidavit.Â
The application was
not opposed.  I am satisfied that the explanation given for
the late filing is adequate and that it is in the interests of justice
that
condonation be granted.
The application for leave
to appeal
[24]     In considering
whether or not leave should be granted, the first question to be answered is
whether the matter raises
a constitutional issue.  In my view, the answer is in
the affirmative.  The interpretation of legislation giving effect to a
provision in the Constitution is a constitutional issue.
[45]
  The Act gives effect to the
provisions of section 25(7) of the Constitution.
[46]
[25]     The next question
is whether it is in the interests of justice for leave to be granted.
[47]
  An assessment of where the
interests of justice lie will involve a careful weighing up of all factors
relevant to the application
for leave to appeal, including the important factor
of the applicant’s prospects of success on appeal.
[48]
  In coming to its decision on
whether or not to order the return of the whole of the land claimed the Supreme
Court of Appeal
exercised a discretion.  The question whether leave should be
granted will therefore require a consideration of the circumstances
in which
this Court will interfere with the exercise by the Supreme Court of Appeal of
its discretion.
[26]     The discretion
exercised by the Supreme Court of Appeal in this matter is one in the strict
sense, or, as was said
in
S v Basson
,
[49]
a “strong” discretion or “true” discretion, in the sense that a range of
options was available to it.
[50]
Â
As such this Court, exercising appellate jurisdiction, will not set aside the
decision of the Supreme Court of Appeal merely
because it would itself, on the
facts of the matter before the Supreme Court of Appeal, have come to a
different conclusion.Â
It will only interfere where it is shown that the
Supreme Court of Appeal—
“had not
exercised its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts,
or that it had reached a decision
which in the result could not reasonably have been made by a court properly
directing itself
to all the relevant facts and principles.”
[51]
[27]     A number of
criticisms have been levelled at the approach adopted by the Supreme Court of
Appeal in arriving at its
decision to award only part of the original farm claimed.Â
Before I deal with those criticisms it may be convenient to make a few

preliminary comments about restoration of rights in land.
[28]     The reality of
the prolonged suffering endured by the majority of South Africans, Africans in
particular, as a result
of past discriminatory laws or practices, which allowed
for their being deprived of rights in land through expropriation and mass

removals without just and equitable compensation, need not be retold here.  It
is a well-known phenomenon which section 25
of the Constitution,
specifically subsections (1) and (2) thereof, assures us shall never to occur
again.
[52]
[29]     In
First
National Bank of SA Ltd t/a
Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v
Minister of Finance
[53]
this Court made the following observation about section 25 of the
Constitution:
“Subsections
(4) to (9) all, in one way or another, underline the need for and aim at
redressing one of the most enduring legacies
of racial discrimination in the
past, namely the grossly unequal distribution of land in South Africa.”
[54]
And on another occasion O’Regan
J said:
“[O]ur Constitution is a document committed to social transformation.  It insists that the
deep injustices of our past characterised
by racial dispossession and exclusion
be addressed and reversed.  The Constitution’s commitment to the protection of
property
rights must be interpreted in a manner consistent with that vision.”
[55]
[30]     The manner or
method of redressing and reversing the grossly unequal distribution of land and
the injustices “characterised
by racial dispossession and exclusion”
[56]
is envisaged in section 25 of
the Constitution, more particularly subsections (5)
[57]
and (7).
[58]
  Subsection (5) enjoins the
State to make it possible for citizens to gain access to land, but to do so on
an equitable basis
by taking reasonable legislative and other measures.  The
subsection therefore places a positive duty on the State to give attention
to
the question of redistribution of land, so as to realise the nation’s
commitment to land reform.
[59]
[31]     Subsection (7) entitles
those individuals and communities dispossessed of their property after 19 June
1913
[60]
to claim restitution of that property or equitable redress where the
dispossession was as a result of past racially discriminatory
laws or practices.Â
If land
is the subject of the dispossession, the subsection also
ensures the realization of the nation’s commitment to land reform.
[61]
  One of the aims of the
Constitution, as was said in
First National Bank
, is to redress the
“grossly unequal distribution of land in South Africa”.
[62]
[32]     It seems to me,
therefore, that where land which was the subject of a dispossession as a result
of past discriminatory
laws is claimed, and the claim is not barred by section
2(2) of the Act, the starting point is that the whole of the land should
be
restored, save where restoration is not possible due to compelling public
interest considerations.  In
Khosis Community, Lohatla, and Others v
Minister of Defence and Others
(‘
Khosis Community
’)
[63]
the Supreme Court of Appeal
said the following:
“[I]n a case
such as the present the general approach ought to be that the dispossessed
community is entitled to restoration of
the land unless restoration is trumped
by public interest considerations.
Undeniably,
the umbilical cord that joins any particular community and its ancestral land
is strong and it has a highly emotional
element that has to be respected.  That
does not, however, mean that all other public interest considerations should be
ignored.”
[64]
I agree with counsel for
the applicants that these comments by the Supreme Court of Appeal represent
recognition of the primacy
of restoration of land.
[33]     But that said,
the dispossessed individual or community is not entitled, under section 25(7)
of the Constitution, to
restoration of the original property claimed as of
right, either in whole or part.
[65]
Â
The claimant is entitled only “to the extent provided by an Act of Parliament”
which, in this instance, is the Act.
[66]
Â
A court may, for example, in the exercise of its discretion, order the State to
pay compensation to the claimant in lieu of the
land claimed.
[67]
  The ultimate decision whether
the whole or a portion only, or whether indeed none of the land, should be restored
will depend
upon a consideration of the factors enumerated in section 33 of the
Act.
[68]
Â
And as was pointed out in
Khosis Community
, not every factor will be
applicable in every claim.
[69]
[34]     I make these
observations in light of criticism, by counsel for the applicants, of the
Supreme Court of Appeal’s
statement that section 25(7) of the Constitution “is
not about land redistribution but about restitution”,
[70]
and that where it is in the
public interest to restore more than what a claimant is entitled to under the
Act, it is for the State
“to use its powers under other Acts to acquire the
whole of the land”.
[71]
Â
Redistribution cannot be done, said the Supreme Court of Appeal, under the
provisions of the Act, and, in particular, courts
do not have the power to
redistribute land.
[72]
[35]     The contention of
counsel was that the return of land of which claimants were specifically
dispossessed can hardly
be described as redistribution.  If claimants were forcibly
removed from land and it is returned, that is restoration and not
redistribution, so the argument continued.
[36]     I think the
criticism is due to a misreading of the Supreme Court of Appeal’s judgment.Â
The context in which the
statements complained of were made is the following.Â
The Supreme Court of Appeal reasoned that the return of the whole farm claimed

in the present matter, when considered with the compensation received by the
Mphela family at the time of dispossession, would
amount to substantial
over-compensation.  The Court was dealing with the omission by the Land Court to consider the question of
the extent of restoration of the land and whether
restoration of the whole would not amount to “double” compensation after it
had
held, for good reason, that Pylkop (which the Land Court considered as compensatory
land) should not be returned.
[73]
Â
Although it considered that a measure of over-compensation is not necessarily
excluded by the Act, the Supreme Court of Appeal
reasoned that courts do not
have the power to redistribute land; that is to say courts cannot, without
more, order the return of
more land than a claimant is entitled to under the
Act.  I agree.  This is more so in this case where the land that was originally

taken has since been subdivided into four separately owned subdivisions.
[37]     I do not understand
the Supreme Court of Appeal to mean that lost land cannot be restored in whole
even if the restoration
would amount to over-compensation.  In such a case a
court is authorised, under section 35(2)(b), to order that the claimant make
a
payment “before the right in question is restored” and to determine the amount
to be paid and the manner of payment.
[74]
Â
The Supreme Court of Appeal recognised all this and ordered the remittal of the
matter to the Land Court precisely for this purpose,
it being of the view that
the return of three of the four portions of the farm might amount to
over-compensation.
[75]
Â
This brings me to the approach adopted by the Supreme Court of Appeal in
considering the remedy it ultimately awarded.
The approach of the
Supreme Court of Appeal
[38]     Counsel for the
applicants did not suggest that the Supreme Court of Appeal’s reasoning that
the return of the whole
of the farm would amount to substantial
over-compensation was wrong.  His submission was that once the Supreme Court of
Appeal
had accepted that the remedy for over-compensation was to be found in
section 35(2)(b) of the Act, there was no basis for it to
interfere with the
order of the Land Court for the restoration of the whole farm.  A further
contention was that the Supreme Court
of Appeal ought to have confined its
attention to the second judgment of the Land Court
[76]
and the reasons why it (the Land Court) declined to make orders in terms of section 35(2)(b) or (f).  It was accordingly
argued
that to the extent that the Supreme Court of Appeal interfered with the
Land Court’s exercise of its discretion in terms of section
35(1) of the Act,
and to the extent that it based its decision to decline restoration of the
entire farm on a concern about over-compensation,
it erred and proceeded in
conflict with the constitutional and statutory regime for restitution.
[39]     It is true that
the Supreme Court of Appeal was concerned about over-compensation.  That is
precisely why, having
decided that three of the four portions of the farm
should be returned to the applicants, it ordered remittal of the matter to the
Land Court to deal with possible over-compensation.  It is also true that the Supreme Court
of Appeal reasoned that the return
of the whole farm would amount to
over-compensation, but it did not decline to order the restoration of the
Remaining Extent for
that reason.
[40]     It will be
recalled that opposition against the applicants’ claim for return of the
Engelbrecht property (Portion
7 of the farm Haakdoornbult) was withdrawn.Â
There was therefore no reason why this Portion could not be returned.  As to
Portions
3 and 6 (the Bezuidenhout Trust and Furstenburg Trust properties
respectively) the Supreme Court of Appeal found that no compelling
reasons had
been furnished as to why these portions could not be restored to the
applicants.
[41]     When dealing with
the Remaining Extent (referred to as RE) the Court said the following:
“This portion
never existed as a topo-cadastral entity.  It has the appearance of an
appendix, a finger protruding from 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 [5].”
[77]
The Court went further to
say:
“If the RE
were to be returned to the family it would mean that part of Portion [5] 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 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.”
[78]
[42]     The Court
accordingly concluded that “it would be counterproductive to order the return
of the [Remaining Extent]
taking into account especially the question of
feasibility (section 33(cA)) and the current use of the land (section 33(eB))”.
[79]
[43]     Section 33(cA) of
the Act enjoins the Court, in considering its decision where restoration of
land is claimed, to have
regard to the feasibility of the restoration, and
section 33(eB) requires, among others things, that regard be had to the
current use of the land.
[80]
Â
Clearly, then, the question of over-compensation did not come into
consideration in the exercise by the Supreme Court of Appeal
of its discretion
under section 35(1) of the Act when it decided not to order the restoration of
the Remaining Extent to the applicants.
[81]
[44]     Counsel for the
applicants argued, however, that to the extent that the Supreme Court of Appeal
found justification
for its decision to deprive the applicants of the Remaining
Extent in the criteria in sections 33(cA) and 33(eB), it erred.
[82]
  It was contended that the
cadastral shape of the land, without more, can hardly be considered a factor
which goes to feasibility
or current use;  that the fact that the land never
existed as a separate topo-cadastral entity is similarly hardly relevant in

determining whether feasibility or current use preclude restoration;  and that
the unusual shape of Portion 5, part of which would
be isolated from the rest
were the Remaining Extent to be restored, cannot be considered relevant to the
question at issue.
[45]     It may very well
be that these factors, by themselves, would not be enough to justify a refusal
to restore the Remaining
Extent.  I say this because restoration of the
Remaining Extent would not introduce a new phenomenon, or something that never
was.  But fundamental to the Supreme Court of Appeal’s considerations was the
effect that restoration would bring about: the
rendering valueless of part of a
huge investment in the irrigation system; the fact that the land in issue will
become dry land
due to it having no water allocation; and the other factors
mentioned in the judgment.
[83]
Â
It may well be that this Court, in considering these factors in the exercise of
its own discretion, would have arrived at a different
decision.  But that is
not the test for interference with the exercise of a discretion by a court
whose order is on appeal.
[84]
[46]     Counsel contended
further that the Supreme Court of Appeal completely ignored the test for
feasibility as laid down
by the Land Court in
In re Kranspoort Community
.
[85]
  The relevant part of that
judgment reads:
“The test
which emerges from this analysis is that the Court should ask: is the
restoration of the rights in land in question
to the claimant possible and
practical, regard being had to
(1)        the nature of the land and the surrounding environment at the
time of the dispossession;
(2)        the nature of the claimant’s use at the time of the
dispossession;
(3)        the changes which have taken place on the land itself and in
the surrounding area since the dispossession;
(4)        any physical or inherent defects in the land;
(5)        official land use planning measures relating to the area;
(6)        the general nature of the claimant’s intended use of the land
concerned.
However, this
does not mean that an enquiry into the social and economic viability of the claimant’s
intended use is required.Â
To require this would give rise to problems.  Courts
are not well-equipped to assess such social and economic viability.  The
effect
of requiring such an enquiry may also be greatly to narrow the prospects of
restoration awards being made generally and
this would be contrary to the
overall purpose of the legislation which has as one of its major focuses the
actual restoration of
rights in land.”
[86]
[47]     Apart from the
fact that the Supreme Court of Appeal is not bound by a judgment of the Land
Court, it appears that
the Supreme Court of Appeal indeed dealt with, at least,
point (3) of the test enunciated in the judgment, namely the changes which
have
taken place on the land itself and in the surrounding area since dispossession.
[87]
  In any event, I do not
believe that the Land Court ever intended the factors it listed for the test
for feasibility to be a
numerus clausus
.
[48]     It was also
argued that the Supreme Court of Appeal was not correct in saying that on the
basis of the evidence on
record the Remaining Extent has no water allocation.Â
Counsel submitted that the whole of the claimed land, including the Remaining

Extent, enjoys a total allocation of 44,9 hectares.  Thus, if the Remaining
Extent were to be restored the applicants would be
entitled to irrigate it.Â
The question of the irrigation rights, or the absence thereof, in respect of
the Remaining Extent should,
therefore, not be used as a basis upon which to
deny the applicants full restoration, so it was contended.
[49]     It is true that the
total water allocation of 44,9 hectares was for the whole farm.  After various
subdivisions, however,
the owners of Portion 7 (Engelbrechts) used the entire
water allocation and also sold the Remaining Extent to Mr Furstenburg.Â
The
Remaining Extent was subsequently consolidated with Portion 1 (which consisted
of two pieces of land separated by the Remaining
Extent) to form Portion 5.  It
is therefore correct, as matters are at present, that the Remaining Extent does
not, on its own,
have a water allocation.  The Supreme Court of Appeal did not,
therefore, misdirect itself on the facts.  And, in any event, it
did not arrive
at its conclusion of not restoring the Remaining Extent to the applicants only
on the basis of that portion of the
claimed land having no water allocation.Â
That factor was considered together with others as has been mentioned above.
[88]
  Counsel’s submission cannot
therefore be sustained.
[50]     In my view, the
applicants have not made out a case for this Court to interfere with the
Supreme Court of Appeal’s
exercise of its discretion.  There are thus no
prospects of success on appeal on the question of the Supreme Court of Appeal’s

decision not to restore the Remaining Extent to the applicants.  It follows
therefore that leave to appeal must be refused.Â
This effectively disposes of
the respondents’ conditional application for leave to cross-appeal.
[51]     But that is not
the end of the matter.  A further issue that requires attention is that part of
the order of the Supreme
Court of Appeal in terms of which the matter was remitted
to the Land Court for consideration of whether, to what extent and in
what form
and conditions, a contribution should be made to the acquisition by the State
of the properties in respect of which restoration
has been authorised.
[89]
The remittal order
[52]     Having found that
the applicants were entitled to restoration of Portion 7 (Engelbrecht’s
property) the Supreme Court
of Appeal recognised the possibility that the
restoration of the other parts of the farm might amount to over-compensation,
or
even under-compensation.  The Court was, however, alive to the fact that
over-compensation can be solved “within the provisions
of the Act”, which
contemplate that a claimant make good the difference where more is returned
than that which was lost.
[90]
Â
The Supreme Court of Appeal could not, for lack of evidence, make a
determination in this regard.  It found, however, that the
applicants were
entitled to the return also of Portions 3 and 6 (the Bezuidenhout and
Furstenburg properties) of the farm, but
”subject to a possible contribution”
to cover over-compensation; hence paragraph 4(a) of its order.
[91]
[53]     Despite the fact
that in their application for leave to appeal the applicants sought leave to
appeal only against paragraphs
1 and 3 of the Supreme Court of Appeal’s order,
counsel submitted strongly that paragraph 4(a) was inappropriate.  In this
regard
it was contended that the remittal would lead to a cumbersome, costly
and drawn out process between two parties who have no dispute
with each other.Â
For these reasons too, so it was argued, leave to appeal should be granted.
[54]     In my view, the
remittal for this purpose will unnecessarily prolong finalisation of this
matter.  The process will
entail engaging in another enquiry relating to the
present value of each of the individual Portions, which could take time to
ascertain
due to possible disagreement between valuers.  Moreover, the State
has clearly indicated that it does not seek any contribution
from the
applicants.  Whilst that in itself is not decisive, it is not insignificant
that the Supreme Court of Appeal did not
find as a fact that the return of
three of the four portions of land claimed amounts to over-compensation.  It
held that the return
of the whole farm would amount to over-compensation.
[92]
  I accordingly hold the view
that these are relevant factors to which the Supreme Court of Appeal did not
properly direct itself.Â
This, to my mind, is sufficient for this Court to
interfere with the Supreme Court of Appeal’s discretion on this aspect of the

case and to set aside that part of the remittal order.
[55]     One further issue
raised by counsel for the applicants needs brief mention.  It relates to the
question of when an
order in terms of section 35(2)(b) or (f) of the Act is
appropriate.  Section 35(2)(f) authorises a court to make an order in respect

of compensatory land granted at the time of the dispossession of the land
claimed.
[93]
Â
The issue arose first as a result of an order made by the Land Court referring
for further argument the question of “whether
the government can waive its
rights under section 33(eA) of [the Act], and, if not, how this section should
be applied in the circumstances
of this case”.  That is the question that led
to the second judgment of the Land Court.
[94]
Â
It was argued, on behalf of the applicants in the Land Court and before this
Court, that both forms of relief require a claimant
to forfeit “something” and
that for that reason “someone” must claim such relief, which the State has not
done in the present
matter.
[56]     The issue does
not arise here.  I have already dealt with the question of a possible
contribution by the applicants
and have held that that issue should not be
remitted to the Land Court for further consideration.  As to an order in
respect of
compensatory land, the State could in any event not claim it in
respect of Pylkop.  As was said by the Supreme Court of Appeal
in another
context, “Pylkop is . . . irrelevant because what a dispossessed person or community
did with the compensation received
is of little consequence in determining
whether the compensation received ‘in respect of’ the property was adequate or
not”.
[95]
Â
The Mphela family did not “receive” Pylkop as compensatory land.  They
purchased it with the purchase price received for
Haakdoornbult.  Pylkop,
therefore, belongs to the family
[96]
and no “claim” can be made that it, or part of it, be returned to the State
under the Act, nor could any court make an order
in respect of it under section
35(2)(f) of the Act.
[57]     I therefore
refrain from expressing any opinion on the issue as raised by counsel for the
applicants.  It is not necessary
to consider it for purposes of the outcome of
this matter.
[58]     Related to this
issue is an application by the applicants for an amendment to their further
particulars in response
to a request for them by the respondent.  The
applicants sought to effect an amendment so as to make an offer for the return
of
part of Pylkop were this Court to consider the restoration of the Remaining
Extent to amount to over-compensation.
[59]     I have held that
there is no basis upon which the discretion exercised by the Supreme Court of
Appeal can be interfered
with.  The application is therefore moot.
The cross-appeal
[60]     I have mentioned
that the second to sixth respondents have lodged a cross-appeal conditional
upon the granting of the
applicants’ leave to appeal.  Had it not been for the
fact that paragraph 4(a) of the order of the Supreme Court of Appeal is
to be
set aside, leave to appeal would not have been granted to the applicants.Â
Leave is to be granted on a very limited basis
which has nothing to do with the
question whether or not restitution of the Remaining Extent should or should
not have been awarded.
Conclusion
[61]     It follows that
the cross-appeal cannot be entertained and should be struck from the roll,
while leave to appeal on
the limited ground mentioned above should be granted
to the applicants.  The parties do not seek a costs order and none will be

made.
Order
1.         Condonation for
the late filing of the applicants’ replying affidavit is granted.
2.         The applicants
are granted leave to appeal.
3.         The appeal succeeds to the extent only that paragraph 4(a) of
the order of the Supreme Court of Appeal is set
aside, with the result that
paragraph 4(b) becomes 4(a) and paragraph 4(c) becomes 4(b).
4.         The cross-appeal is struck from the roll.
MPATI AJ
Langa CJ, Moseneke DCJ, Madala J,
Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
concur in the judgment
of Mpati AJ.
For the
Applicants:                                        Advocate G Dodson and
Advocate
A                                                                                 Â
Friedman
instructed by the Legal    Resources                                                    Â
            Centre.
For the First to Sixth Respondents:             Advocate
HS Havenga instructed by
Grütter
Grobbelaar Attorneys.
For the Seventh Respondent:                       Advocate
P Kennedy SC and Advocate T Seneke instructed by
the State Attorney, Pretoria.
[1]
22 of 1994.
[2]
The farm, 636,1188 ha in extent, went through subdivisions and now
consists of four pieces of land, each separately owned.
[3]
Judgment reported as
Mphela and Others v Engelbrecht and Others
[2005] 2 All SA 135
(LCC).
[4]
Judgment reported as
Haakdoornbult Boerdery CC and Others v
Mphela and Others
2007 (5) SA 596 (SCA).
[5]
Above n 4 at para 16.
[6]
Id at para 17.
[7]
Id at para 19.
[8]
Id at para 18.
[9]
Portion 5 is not at issue in this matter.  A map of the claimed
land is reproduced above n 4 at 619.
[10]
Above n 4.
[11]
Above n 3.
[12]
Id at para 5.
[13]
Haakdoornbult was valued at 5 040 pounds while the purchasers
offered and paid 7 558 pounds, the latter amount was the value of
Pylkop, the
other farm at issue in this case.
[14]
Pylkop was situated in an area that was to be incorporated into Bophuthatswana, a so-called black self-governing State.
[15]
Above n 4 at para 3.
[16]
These primarily consisted of residential dwellings.
[17]
Section 2(2) reads:
“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.”
[18]
Although the
Supreme Court of Appeal
differs with the Land Court on the bases upon which the latter
found that the claim was not excluded by the provisions of section
2(2) of the
Act, the
Supreme Court of Appeal
also held that the Mphela family did not receive just and equitable
compensation.  No argument to the contrary was advanced in
this Court.  It is
accordingly not necessary to set out the basis of the Land Court’s findings.
[19]
The relevant subsections of section 33 read:
“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       Â
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;
                . . . .       Â
(eA)        the amount of compensation
or any other consideration received in respect of the              Â
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      Â
the
history of the acquisition and use of the land”.
[20]
Above n 3 at 188A-B.
[21]
Id at 188G.
[22]
Pylkop was referred to as “compensatory land”.
[23]
Above n 3 at 190A-B. See also above n 19.
[24]
Mphela and Others v Engelbrecht and Others
LCC 66/01 in the
Land Claims Court, 18 July 2005, unreported
.
[25]
Id at para 8.
[26]
Id at para 9.
[27]
The market value of the property in issue at the time of
dispossession is one of the factors a court is enjoined by
section
25(3) of the Constitution of the Republic of South Africa, 1996, to take into account when considering whether just and
equitable
compensation had been paid.  Section 25(3) reads:
“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                                Â
beneficial
capital improvement of the property; and
                (e)           the
purpose of the expropriation.”
[28]
Above n 4 at para 47.
[29]
Id at para 48.
[30]
This was the year in which the Mphela family were eventually forcibly
removed from Haakdoornbult.
[31]
Above n 19.
[32]
Section 35(1) of the Act grants a discretion to the Land Court to order restitution
of land.  It reads:
“The Court may order—
                (a)           the
restoration of land, a portion of land or any right in land in respect
of  which
the claim or any other claim is made to the claimant or award any land,
a portion of or a right in land to the claimant
in full or in partial settlement
of the claim and, where necessary, the prior acquisition or expropriation
of the land, portion
of land or right in land: Provided that the claimant
shall not be awarded land, a portion of land or a right in land dispossessed

from another claimant or the latter’s ascendant, unless—
                                (i)            such
other claimant is or has been granted
restitution of a right in   land
or has waived his or her right to restoration of the right in land concerned;
or
                                (ii)           the
Court is satisfied that satisfactory arrangements
have been or will
be made to grant such other claimant restitution of a right in land;
                (b)           the
State to grant the claimant an appropriate right in alternative state-owned
land
and, where necessary, order the State to designate it;
                (c)           the
State to pay the claimant compensation;
                (d)           the
State to include the claimant as a beneficiary of a State support programme

for housing or the allocation and development of rural land;
                (e)           the
grant to the claimant of any alternative relief.”
[33]
Above n 19.
[34]
Above n 4 at para 68.
[35]
Id at para 74.
[36]
See above n 4 at para 71, where the
Supreme
Court of Appeal
described the Remaining Extent as
having the “appearance of an appendix, a finger protruding from the rest of
Haakdoornbult”,
and as an “isthmus surrounded by other property belonging to [the
first
respondent]”.
[37]
The
Supreme Court of Appeal
erroneously refers to Portion 5 as Portion 1.  It was known as
Portion 1 before it was consolidated with the Remaining Extent.
[38]
Above n 4 at para 72.
[39]
Above n 19 at section 33(eA).
[40]
Id at section 33(eB).
[41]
Section 25(7) reads:
“A person or community dispossessed
of property after 19 June 1913 as a result of past racially discriminatory laws
or practices
is entitled, to the extent provided by an Act of Parliament,
either to restitution of that property or to equitable redress.”
[42]
Section 35(2) reads:
“The Court may in addition to the
orders contemplated in subsection (1)—
                (a)           determine
conditions which must be fulfilled before a right in land can be
restored
or granted to a claimant;
                (b)           if a
claimant is required to make any payment before the right in question
is restored
or granted, determine the amount to be paid and the manner of payment,
including the time for payment;
                (c)           if the
claimant is a community, determine the manner in which the rights are
to
be held or the compensation is to be paid or held;
                (d)           . . .
.
                (e)           give
any other directive as to how its orders are to be carried out, including
the
setting of time limits for the implementation of its orders;
                (f)            make
an order in respect of compensatory land granted at the time of the
dispossession
of the land in question”.
[43]
See above n 4 at para 67 where the Supreme Court of Appeal said:
“The problem of overcompensation 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 (section
35(2)(b)).”
[44]
See above n 17.
[45]
Department of Land Affairs and Others v Goedgelegen Tropical
Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at para 31;
Alexkor Ltd and Another v The Richtersveld Community and
Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at
para 23;
National Education Health and Allied Workers Union v University of
Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 14-5.
[46]
See above n 41.
[47]
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and
Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at
para 26, and the cases cited in fn 76 of that judgment.
[48]
Concerned
Land Claimants’ Organisation of Port Elizabeth
v Port Elizabeth Land and Community Restoration Association and Others
[2006]
ZACC 14
;
2007 (2) SA 531
(CC);
2007 (2) BCLR 111
(CC) at para 21.
[49]
[2005] ZACC 10; 2007 (3) SA 582 (CC); 2005 (12) BCLR 1192 (CC).
[50]
Id at para 110;
Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 800D-E.
[51]
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 11;
S v Basson
above n 49 at para 110;
Mabaso
v Law Society, Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA
117
(CC);
2005 (2) BCLR 129
(CC) at para 20.
[52]
Section 25 provides as follows:
“(1)         No one may be deprived
of property except in terms of law of general application, and
no law may permit
arbitrary deprivation of property.
(2)           Property may be
expropriated only in terms of law of general application—
                (a)           for a
public purpose or in the public interest; and
                (b)           subject
to compensation, the amount of which and the time and manner of payment

of which have either been agreed to by those affected or decided or approved
by a court.
(3)           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.
(4)           For the purposes of
this section—
                (a)           the
public interest includes the nation’s commitment to land reform, and
to reforms
to bring about equitable access to all South Africa’s natural resources;
and
                (b)           property
is not limited to land.
(5)           The
state must take reasonable legislative and other measures, within
its available resources, to foster
conditions which enable
citizens to gain access to land on an equitable basis.
(6)           A
person or community whose tenure of land is legally insecure as a result of
past racially discriminatory
laws or practices is entitled, to
the extent provided by an Act of Parliament, either to tenure which is
legally secure or to comparable
redress.
(7)           A
person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory
laws or practices is entitled, to the extent
provided by an Act of Parliament, either to restitution of that property
or to equitable
redress.
(8)           No
provision of this section may impede the state from taking   legislative and other measures to achieve
land, water and related reform, in order to
redress the results of past racial discrimination, provided
that any departure from
the provisions of this section is in
accordance with the provisions of section 36(1).
(9)           Parliament
must enact the legislation referred to in subsection (6).”
[53]
[2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC).
[54]
Id at para 49.
[55]
Mkontwana v Nelson Mandela Metropolitan Municipality and
Another; Bissett and Others v Buffalo City Municipality and Others; Transfer

Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng,
and Others (KwaZulu-Natal Law Society and Msunduzi
Municipality as Amici
Curiae)
[2004] ZACC 16
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at
para 81(
Mkontwana)
.
[56]
Id.
[57]
See above n 52.
[58]
Id.
[59]
Above n 52 at section 25(4).
[60]
The now repealed Black Land Act (then entitled the Native Land
Act), which prevented Africans from purchasing land within an area
designated
for white ownership, was promulgated on that date.Â
[61]
Property may be possessions other than land.  See
Mkontwana
above
n 55 at para 82.
[62]
Above n 53 at para 49.
[63]
2004 (5) SA 494 (SCA).
[64]
Id at paras 30-31.
[65]
Above n 48 at para 26.
[66]
Above n 41.
[67]
Above n 32 at section 35(1)(c) of the Act.
[68]
Above n 19.
[69]
Above n 63 at para 30.
[70]
Above n 4 at para 7.
[71]
Id at para 61.
[72]
Id.
[73]
Id at paras 56 and 58.
[74]
Above n 42.
[75]
Above n 4 at para 74.  See also the order of the
Supreme Court of Appeal
, above [1].
[76]
See above at [12].
[77]
Above n 4 at para 71.
[78]
Id at para 72.
[79]
Id at
para 73.
[80]
Id.
[81]
Id at
paras 71-3.
[82]
Id
at para 73.
[83]
Above n 4
at para
72.
[84]
See [26] above for the test for interference.
[85]
2000 (2) SA 124 (LCC).
[86]
Id at para 92.
[87]
Above n 4 at para 72.
[88]
Id at paras 71-2.
[89]
Id at para 77, at para 4(a) of the order at [1].
[90]
Above n 42 at section 35(2)(b).
[91]
Above n 4 at para 4.
[92]
Id
at paras 69-70.
[93]
Above n 42.
[94]
Above n 24.
[95]
Id
at para 4.
[96]
It is registered in the name of the Estate of the late Daniel
Rakgokong Mphela and the family’s rights are registered against
the Title Deed.