Property Law 2018

Topic 3: LAND RESTITUTION

Jackie Dugard

This is obviously a highly contentious and racialised issue. In a recent survey of 3,700
people, Jim Gibson found that 85% of black respondents believe that land was
previously taken illegitimately and only 8% of white respondents believe this.
Obviously, factually it was taken illegitimately by an illegitimate regime.

Regarding redress, the same survey found that 68% of black respondents believe land
should be returned to the previous owners no matter what; whereas 91% of white
respondents disagreed with this statement.

It is important to distinguish three strands of an inter-related programme of Land

Reform:
1. Land tenure reform – PIE, ESTA, IPILRA and LTA – about improving tenure-
related rights as opposed to conferring or changing land ownership (s 25(6) of
the Constitution – ‘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’.
2. Redistribution (implicit in s 25(7) and apparently related to 3 below) – about
changing the patterns of land ownership in terms of which in 1994 whites
owned 87% of the land. However, since then only 8% has been redistributed
so now 79% white ownership of land (although Land Audits have been
ambiguous re government ownership via Trusts etc).
3. Restitution – restitution or equitable redress to previously dispossessed people
(s 25(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 or to equitable redress’.

Relevant laws re Restitution

Alongside material redress, this is about restoring dignity and justice, which could be
about expropriating and restoring land ownership but it could also be about other
forms of ‘equitable justice’ such as the provision of alternative land or compensation.

1. Section 25(6-7) of the Constitution

 {(6) – tenure security: 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 past result of 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

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2. Restitution of Land Rights Act 22 of 1994 [as amended on 1 July 2014 but
subsequently overturned as unconstitutional by the Constitutional Court in the
Land Access Movement case on 27 July 2016]

 Definitions:
o Community: any group of persons whose rights in land are derived
from shared rules determining access to land held in common by such
group, and includes part of any such group [Kranspoort]
o Right in land: means any right in land whether registered or
unregistered and may include the interest of a labour tenant and
sharecropper, a customary law interest, the interest of a beneficiary
under a trust arrangement and beneficial occupation for a continuous
period of not less than 10 years prior to the dispossession in question
[Alexkor; Kranspoort]
 Section 2(1)(a) and (d): a person or community dispossessed after 19 June
1913 …
 Section 2(1)(e) As long as the claim is lodged by 31 December 1998 [this
changed by the Amendment Act of 2014 to 30 June 2019; but since this Act
has been struck down, the original cut off date is currently in place and the
Land Claims Commission is still working through the claims lodged in the
first phase]
 Section 2(2): No person is entitled to restitution if they have received just and
equitable compensation as contemplated by Section 25(3) of the Constitution.

There have been many debates around the extension of the cut off date for claims
until 30 June 2019 under the Amendment Act. It is clear that there are certainly
claimants who did not come forward, probably because of not knowing about the
process and/or not understanding it, by the 1998 deadline (80,000 claims lodged out
of a potential estimated 8 million people affected by various Acts). Therefore there
would seem to be good arguments to extend the cut off. However, some critics have
pointed to possibly more Political motives in order to appease traditional leaders and
encourage them to put in land claims over the heads of their ‘subjects’ (see newspaper
articles by Nomboniso Gasa and Aninka Claasens, who argue that the main objective
of the extension is to empower and embolden traditional authorities to lay claims over
the heads of their communities e.g. Zulu King; Royal Bafokeng Nation etc…).
Nomboniso Gasa (BusinessDay 14 October 2014) highlights that in ‘a brief departure
from the text of an address to the House of Traditional Leaders in February [2014]’,
President Zuma advised chiefs ‘to hire good lawyers and make vast claims on behalf
of their people’. Nomboniso points out that this ‘confirms what many rural-based
citizens have been saying for years – that the government is out to consolidate chiefly
power at the expense of the rights and citizenship of rural-based citizens’.

The reality is that there has been an influx of new claims since the new cut-off –
12,000 in the first two months of the promulgation of the Amendment Act. The
Department of Rural Development and Land Reform estimates that 397,000 new
claims will be lodged in the reopened process, which could cost between R130bn and
R179bn to finalise.

During 2016, a group of affected communities, land-rights groups and communal

property associations successfully challenged the Restitution of Land Rights

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Amendment Act of 2014 (Land Access Movement of South Africa and Others v
Chairperson of the National Council of Provinces and Others 2016 (5) SA 635 (CC),
arguing that there was not adequate consultation by the National Council of Provinces
and provincial legislatures before passing the Amendment Act (sound familiar?).
Their concern was that the influx of new cases (and many by traditional authorities)
will cause unreasonable delays to their own claims, which were lodged before May
1998 and haven’t yet been settled. Finding in their favour, the CC declared the
RLRAA invalid. [Discuss the case]

There is also the issue of the backlog of claims from the first round of claims –
according to the Ad Hoc Committee on the Legacy of the 1913 Land Act, 20 592
claims (25.87% of the total land claims registered by the 1998 cut off) have not yet
been finalised or the settlement agreement has not been fully implemented after 20
years. And about 50% of the land already acquired for restitution has still not been
transferred to the beneficiaries. Several claimants have been waiting for over ten years
for the implementation of their settlement agreement.

For example, on 29 January 2016, a land-rights NGO (Afra) acting for an estimated
19,000 labour tenants went to the Land Claims Court to try to compel the Department
of Rural Development and Land Reform to implement court orders to expedite their
approved land claims (in terms of the LTA, labour tenants could claim the land they,
their parents or grandparents lived and worked on [without wages under apartheid]).
As part of a previous court order, the Department was required to provide 3-monthly
reports on the status of the claims, but the Department missed the initial deadline and
the three postponed deadlines thereafter. On behalf of the labour tenant claimants,
Afra successfully asked the LCC to appoint a special master to oversee the
implementation of the existing court order (a first in SA). (LCC appointed the special
master in December 2016).

And there are allegations about the land claims process being used fraudulently by the
Department (or at least without proper investigation) e.g. the huge Mala Mala
settlement (R1bn) in 2015 instead of allowing the CC process to go ahead, where
there would have been clarification from the highest judicial authority that market
value isn’t a strict requirement. And in January 2016 a court ordered the Rural
Development and Land Reform Minister (Gugile Nkwinti) to take back land that was
given to a controversial trust with fake claimants and to properly re-review the claim
(the claim involved 105 farms worth R51million in Mpumalanga’s Badplaas area).
This fake deal has also resulted in a R3.3million fraud charge being laid against
Mpumalanga Premier David Mabuza. In the course of an investigation it was found
that the compensation government paid for the farms was more than double the farms’
market value.

Another contentious issue is that of the starting date of 19 June 1913 (Natives Land
Act). What are the arguments for an earlier date – how would this operate? And who
might benefit (King Goodwill Zwelithini has said he wants to lodge a claim for the
whole of KZN; Khoi San claim for all of SA etc.)?

Land Claims Commission

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The Restitution of Land Rights Act establishes a Land Claims Commission
(Commission on Restitution of Land Rights as governed by chapter II of the Act) over
which a Land Claims Court (chapter III of the Act) has jurisdiction (with appeals to
the SCA and CC).

[See LAWSA vol 48 52-68]

There are five stages in any land claims process before the Land Claims Commission:

1. Lodgement of the claim by the individual or community

2. Validation – the Commission checks that the claim is valid in terms of the
piece of land and its history (in fact this is usually relatively easy as
apartheid land records are quite good, and can be supplemented by oral
testimony etc)
3. Verification – this relates to verifying that the claim is being made by a
valid ODI (originally dispossessed individual) or descendants
4. Negotiation – this is where there is meant to be a choice between the
property or compensation. But look at Bernadette Atuahene’s book – in the
vast majority of cases, the Commission has stressed compensation as
easier, and up until recently, all people got was a SSO (standard settlement
offer) that does not relate to the current market value of the property and
usually has to be divided between many descendants meaning that people
sometimes get only R200 or so.
5. Valuation – if it is monetary compensation, SSO; if land, Commission
expropriates land

Commission settlements can be reviewed by the Land Claims Court (this acts as a
High Court with special jurisdiction over ESTA, LTA, RLRA and IPILRA; main seat
is in Randburg but can sit anywhere; it has 5 judges – see an early article by Theunis
Roux ‘Pro-poor court, anti-poor outcome’ as a critique of the LCC), which in turn can
be appealed to the SCA and CC.

Look at LAWSA 48-64 to 48-68 for an overview of the process, but we are going to
focus not on the process of land claims but rather on the jurisprudence from the Land
Claims Court, SCA and CC re land restitution cases.

Case law dealing with various features of the requirements and redress for
restitution

We have already dealt with Alexkor (2004 CC), which at least partially answered the
question of the interpretation of ‘rights in land’. Other key aspects of the process have
been clarified through judicial interpretation (for better or for worse!).

1. Minister of Land Affairs and Another v Slamdien and Others 1999 (4) BCLR
413 (LCC)

Here, the first respondent – Omar Slamdien – purchased property in Cape Town on 16
April 1955. On 5 April 1957 the area was declared coloured in respect of the Group
Areas Act with effect from July 1960. On 5 December 1960 transfer was effected to
Mr Slamdien as a ‘coloured’ (second respondent is his father, who lived with him).

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Between 1966 and 1970 the state declared that it needed to build a school for
coloureds. On 16 March 1970 the property was bought by the state (not in terms of
any statutory power but rather in terms of its common law prerogative to contract) and
a school for coloureds was built. In terms of the sale agreement the Slamdiens had to
vacate the property to make way for the school.

On 1 July 1995 the Slamdiens lodged a claim for restitution under the RLRA. On 15
October 1998 the claim was referred to the Land Claims Court to determine the legal
point regarding the interpretation of ‘as a result of’ racially discriminatory laws or
practices.

In the Land Claims Court application, the Minister of Land Affairs and the Minister
of Public Works sought to block a process by the Land Claims Commission to restore
land to the respondents (Slamdien and Slamdien) on the basis that they were not
dispossessed of their rights in land as a result of past racially discriminatory laws or
practices. The Land Claims Commission had found in favour of the respondents but
agreed to abide the decision.

The Minister argued that if the Slamdien’s claim was approved, it would open the
floodgates to huge number of claims meaning that ‘virtually any action of previous
governments (after 19 June 1913) which resulted in a deprivation of land rights would
give rise to a claim …’. Thus the Ministry urged the Land Claims Court to pursue a
narrow interpretation of ‘as a result of’ to limit the number of potential claims.

The Land Claims Court (ostensibly adopting a purposive approach to interpretation as

described in paras 14 and 17) found against the respondents (who were coloured),
ruling that - although the Group Areas Act was a racially discriminatory piece of
legislation - the proximate cause of the Slamdien’s removal was the establishment of
a school for coloureds, a ‘practice’ which did not have as its purpose their
dispossession of land, but rather the segregated education of school children. The
LCC hints in paragraph 17 that had the Slamdiens not been coloured (the beneficiary
group of the school) it’s possible another conclusion could have been reached but
doesn’t elaborate on this. It also mentions that the school children rather than the
Slamdien’s were discriminated against by the practice (having to go to a segregated
school – but there is no retrospective redress for this injustice).

The LCCourt held that to find this determinative of the removal would be to cast the
net too wide and the cost would bee too high (para 33iii). So, the claim failed. Here
the court applied a narrow application of the causation test for ‘as a result of’, holding
that the dispossession of land must have been directly, proximately and consciously
related to the racist act or practice, effectively holding that it must have been THE
cause (in paras 36-38 the LCC grapples with the problem of ‘intervening causes’ –
how to decide which was THE cause among several). On the facts, the court found
that the coloured school was not proximate enough to the dispossession (the
establishment of the school didn’t have as its aim the dispossession of the land by
people such as the Slamdien family – it was an unfortunate unintended consequence
or by product of the establishment of the school – a kind of collateral damage).
Essentially, according to the LCC in Slamdien, the Group Areas Act and associated
legislation and practices are too diffuse and too many steps away from the Slamdien’s
land dispossession – ‘no evidence was placed before us to show that, but for the

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Group Areas Act of 1950 … the respondents would not have been dispossessed’ (para
42).

See LAWSA vol 48-59 for a summary of the test as arising from Slamdien.

2. In Re Kranspoort Community 2000 (2) SA (LCC)

In this case, a community of share-croppers that was removed from a missionary

station under apartheid legislation between 1955 and 1964 brought a land claim.

The history was that the share-croppers had invited the missionaries onto the land in
1862 In 1906 the Dutch Reformed Church took over the farm and mission and by
1947 800 people were living at Kranspoort. The settlement was divided into plots and
pieces of cultivated land, where the Christian converts lived. On the other side of the
farm non-Christians lived in traditional forms of housing but after some time some of
these households also converted to Christianity. There were growing tensions with a
group of residents known as Basefasonke and those loyal to the missionary (van der
Merwe), who they called BaPharoah. So the church asked the apartheid government
how to get rid of the difficult people. The government gave them permits under the
Group Areas Act of 1950 and everyone was given notice to vacate by 13 September
1955. Most of those who didn’t leave were arrested and detained. There was no
compensation for this dispossession of land rights. Although some people managed to
resist for a while, by 1964 all members of the community were gone.

The Dutch Reformed Church, which assumed title of the land, disputed that the
claimants were a community with the necessary rights in land and they also claimed
that the land was environmentally sensitive and the claimants wouldn’t care for it
properly. It was common cause that the removals took place in terms of the Group
Areas Act and that the residents were scattered across the country as a result of the
ejectments from the land.

The LCC considered five questions as required by the RLRA and s25 of the
Constitution:

1. Was it a community?
2. Did it have a right in land (‘beneficial occupation’)
3. Were the 1955/56 and 1964 removals ‘as a result of’ past racially
discriminatory laws or practices?
4. Was there just and equitable compensation?
5. Is restitution feasible?

In terms of evidence, the LCC looked at historical documents, research articles, letters
from the time, reports, experts and witnesses.

1. Regarding ‘community’ (paras 31-48), the DRC conceded that there was a
community living on the land until the 1955/56 removals but it said that this
community didn’t endure past 1955/56. The LCC said this argument was
flawed – the people who endured there were part of the pre-1955/56
community and therefore they comply with the definition of ‘any part of the
group’ (para 33). Also the evidence points to the fact that they continued to

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 access the land in an orderly and regulated fashion according to shared rules.
Regarding whether or not the community still exists (whether as a community
or part of a community) as per s2(1)(d) of the RLRA, the LCC held that it
must still exist in some form as a community though obviously with changing
members and flux (para 34). Critically, they don’t now need to practice
customary land rights – this would be an anomaly and an injustice to require
that a dispossessed community flung around the country should have to still
practice the same land use as before the dispossession in order to have a valid
claim. The critical question is: do they NOW (at point of lodging land claim)
exist in some way as a community. According to testimony and witnesses
there was much evidence of community meetings, communication across the
country, travelling to burials and commemorations etc. Despite the years and
diaspora, people continued to engage in activities based on their connection to
Kranspoort. It isn’t required that every individual is identified and connected.
If land is claimed by a community then land will be transferred to a
community in the form of a communal property association (if there’s no
traditional authority that takes charge of the claim on behalf of the
community). The LCC highlighted that it would be unjust to set the bar of
proving community existence too high, because the main reason for any
difficulties in identifying members of a community with precision is that they
were removed and flung around the country by racist legislation/ practice. ‘It
would be a grave injustice if the RLRA is to be interpreted so that the tragic
consequences of a removal become a reason why a community restitution
claim aimed at remedying the removal should fail’ (para 48). So the
community requirement is met.

2. Regarding ‘right to land’ set out in the RLRA as ‘beneficial occupation’ for
more than ten years prior to the dispossession (paras 49-69), it was clear that
the rights were not ownership rights (although interestingly some of the
community members thought they owned the land even though that wasn’t
possible at the time). Also they were not a customary community under
traditional leadership. They were share-croppers / labour croppers. There was
a lot of evidence that they kept livestock, grew crops, shared water resources –
clearly they were actively involved with the land – it doesn’t have to be
exclusive and can be shared – and this continued until final ejectment from the
land in 1964. So this requirement is met.

3. Regarding ‘as a result of …’ (paras 70-76), the DRC argued that any
dispossession wasn’t the result of the Group Areas Act (which clearly would
have founded a claim) but that people were removed because they were
trouble-makers and they were merely guided by the Department of Native
Affairs to take care of the troublesome people using the Group Areas Act as an
instrument (so the DRC is essentially arguing that the dispossession wasn’t as
a direct result of the Group Areas Act, as per Slamdien). The LCC, however,
found that the notices of ejectment were under the Group Areas Act and the
community members had no recourse – they had to leave or were arrested,
detained or hounded out. As recognised by the LCC, this pointed to the type of
forced removal that falls squarely into what is contemplated by the concept of
a ‘dispossession as a result of’ racially discriminatory practices or legislation
(para 74). The determinative cause of the removals was the racist law,

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 regardless of the ‘disturbances’, which the LCC pointed out could anyway
have been as a result of the racial politics directly precipitated by the Act. So
this requirement is met.

4. Re just and equitable compensation, it was common cause there was none for
the 1955/56 removals. Regarding the final ejectment of the 31 families who
stayed on until 1964, there was some compensation paid to 26 families, but
only for ‘improvements’ to the land, not for beneficial occupation (grazing
land, crops, water, means of living etc). So restitution (or just and equitable
compensation) due to everyone.

5. Re whether restitution is feasible (paras 82-104), the claimants asked for the
farm back. The DRC argued that it was not feasible mainly on the basis of
their claim that it was an environmentally sensitive area but also implying that
the community was incapable of land-planning and farming. Looking at s
123(1) the Interim Constitution (in terms of which the Minister had to issue a
certificate of feasibility – this was scrapped and doesn’t appear in the Final
Constitution, nor RLRA, but having nowhere else to go the LCC looked here
to guide it on the feasibility question – LCC quoted from Slamdien that the
changes in the FC and RLRA weren’t meant to wipe out the previous
considerations re feasibility but were the result of different styles of legal
drafting; one being fuller than the other), the LCC noted that some of the
considerations (under the IC) were whether the zoning for the land has altered
and/or the land use has fundamentally changed, whether there is now any
urban development plan and whether there is any defect in the land (e.g.
nuclear fallout) that might cause it to be hazardous for human habitation.
Ultimately, the test for feasibility of restoration boils down to is it practically
achievable, ranging from physical possibility to commercially viability. At
para 92 the LCC sets down its new test for feasibility (* look at this). But the
LCC cautioned that the feasibility inquiry doesn’t require an inquiry into the
social and economic viability of the claimant’s intended land use. Returning to
the DRC’s argument, the LCC agreed that the community had done little in the
way of planning how it would use the land if it were restored to them. But the
LCC found that this was irrelevant to the question of whether it was feasible to
restore the land. Looking at the land zoning etc., the LCC found that there was
no evidence of any zoning or other legal impediments to restoration nor any
prohibitive transformation of the land or defect. Regarding the issue of
environmental sensitivity, the community had actually had some initial
discussions with Environmental Affairs to get a portion of the land declared
National Heritage land, though nothing had been concluded. And the
community had undertaken to recognise and work with the authorities
regarding environmental compliance. Finally, the LCC pointed out at para 99
that the contemporary approach isn’t to see people and the environment as
mutually exclusive. Therefore this requirement is met.

The LCC therefore ruled that the community should get the land back and form a
Community Property Association to manage the land including the environmentally
sensitive portions. In a series of follow-up judgments, the LCC attempted to ensure
compliance particularly with the order relating to the formulation of sustainable

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development plans for the farm. In a judgment of 3 October 2000, the LCC found
that, although the community had established a Community Property Association, it
had not furnished a proper sustainable development plan and therefore was not yet
ready to be restored to the land (see In Re Kranspoort 2000 (2) SA 124 (LCC).

NB * para 108, Du Toit re limits of land restitution.

3. Abrams v Allie NO 2004 (4) SA 534 (SCA)

This was an appeal to the SCA from a LCC judgment regarding value of property and
just and equitable compensation.

Contrast the finding here regarding ‘past racially discriminatory law/practice’ with
that in Slamdien to see where courts have drawn the line.

The facts here concerned a single storey semi-detached property next to District 6 in
Cape Town. Until 1980 it was owned by Mr Mahatey (Indian). It was let in 1971 to
Ms Abrams who, although Indian was classified as Coloured.

On 13 June 1975 the area was declared Coloured in terms of the Group Areas Act 36
of 1966. On 21 May 1976 the Community Development Board (CDB) prohibited a
subdivision or erection/alteration of buildings for 10 years. In 1980 Mr Mahatey sold
and transferred the property to the CDB for R11,599.50 (he wasn’t Coloured and
therefore ownership of property in a Coloured area wasn’t legal). Ms Abrams
remained as a tenant of the CDB, and made various improvements to the property.
Over time the CDB became the National Housing Board and then the Provincial
Housing Board of WC, which wanted to encourage home ownership, and so began to
sell its leased properties to tenants on a non-profit basis. Ms Abrams bought her
property for R5,197.27 on 18 November 1997 in terms of a sale agreement.

However, the Provincial Housing Board either didn’t realise or overlooked the fact
that Mr Mahatey had lodged a claim for restitution of the property under the RLRA,
and this claim had already been Gazetted. The error was discovered prior to transfer
to Ms Abrahams, and the Mahatey claim was referred to the Land Claims Court.

The LCC held that Mr Mahatey had been dispossessed of a right in land as a result of
past racially discriminatory laws or practices within the meaning of s 2(1)(a) of the
RLRA and that the market value of the property as at the date of the dispossession
was R11,810 (this is what the LCC said would have been just and equitable
compensation at the time of the dispossession). He had received R11,599.50 i.e. R210
short of a just and equitable compensation.

Having found that he did not receive just and equitable compensation (if he had
received just and equitable compensation, he would not have a claim) and all other
requirements were met, the LCC ordered the Department of Land Affairs to
expropriate the land and restore it to Mr Mahatey and his family (he died in the course
of the litigation). But they said he / his family should repay the R11,599.50 they had
received in 1980 for the property (without regard to inflation) – otherwise to get
restitution would be over-compensation.

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Ms Abrams appealed to the SCA arguing:

1. Mr Mahatey wasn’t dispossessed of property ownership within the meaning

of s 2(1)(a) of the RLRA;
2. Even if he was, it wasn’t as a result of past racially discriminatory
laws/practices as per s 2(1)(a);
3. And anyway he was paid just and equitable compensation within the
meantime of s 2(2);
4. The LCC remedy therefore was totally inappropriate.
Regarding dispossession, at paras 11 and 12 the SCA examines the question of
dispossession highlighting that, although force isn’t necessary, there must be some
form of compulsion (a freely and voluntarily entered into sale isn’t dispossession). In
response to Ms Abrams’ argument that Mr Mahatey was a willing seller, the court
noted that a letter to Mr Mahatey of 21 September 1978 from the CDB expressly
stated that the properties will ‘have to be acquired by the Department’. Once he
received this letter, Mr Mahatey had little choice about ‘cooperating’ other than to sell
for the amount offered or await expropriation. He was a disqualified person who
owned property in an area he wasn’t allowed to own property in. So yes, this is
dispossession of his ownership rights.

Re whether he was dispossessed as a result of …, Ms Abrams said that he was not –

the stated reason for the dispossession was an urban renewal project, not racially
discriminatory slum clearance (the kind of argument that was pursued by the LCC in
Slamdien). But here the SCA (para 14) takes a wider view of ‘as a result of’,
highlighting that, despite its stated objectives of slum clearance and urban renewal,
the Community Development Act (under which the dispossession took place) was in
effect ‘a true sister Act of the Group Areas Act’, and the clear object of the Act was to
facilitate racial segregation, with the impact being that District Six was destroyed. The
proclamation of the area as a Coloured area was merely the first step in a clear process
that ‘had as its object the ultimate exclusion of all disqualified persons from owning
or occupying land in the area, including those of the Indian racial group’. The
purchase by the Board ‘of the subject property was therefore in reality part and parcel
of that process and hence a step in the implementation of a racially discriminatory
law’. So both the aim and consequence was racial dispossession, therefore the ‘as a
result of’ requirement is satisfied.

Re did he receive just and equitable compensation in terms of s 25(6) of the

Constitution, the LCC had said that such compensation would have been market value
at the time without any upward appreciation. At paras 17 and 18 the SCA grapples
with how difficult it is to ascertain the market value at the time of dispossession
(because it wasn’t an actual market sale and there was no estate agent or sale
valuation) let alone answer whether or not there should be upward appreciation of this
value. All this was exacerbated by the fact that the property wasn’t in a very good
state and Ms Abrams had to improve it significantly. The SCA points out that it’s
probable that the amount the LCC settled on of R11,810 was one possibility but that
the property could have been worth as little as R9,700 according to assessors (there
was a range of assessed amounts). At para 27 the SCA comes to the conclusion that
since it isn’t an exact science and Mr Mahatey had received less than 2% (1.8%
amounting to R210) less than the highest assessed value (which was only one of
several lower assessed values), this does not cross the threshold of s 2(2) i.e. he did

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receive just and equitable compensation at the time and therefore his claim fails and
Ms Abrams’ appeal succeeds.

4. Prinsloo and Another v Ndebele – Ndundza Community and Others 2005 (6)
SA 144 (SCA)

Here the LCCommission referred the matter to the LCCourt to determine only two
issues - whether the claimants (the Ndebele-Ndzundza community who claimed they
were living on ‘Kafferskraal’ for at least a hundred years and were dispossessed in
1938) were a community; and whether they had been dispossessed in terms of the
legislation and hence whether they were entitled to claim.

The background was that there was a long history of Ndebele settlement and land use
in the area by the claimants’ predecessors, stretching back to the 17 th century. The
precise Ndebele-Ndzundza tribe settled on the farm in 1822 at which time the farm
was owned by Mr Korf. The community highlight that the very name of the farm – as
offensive as it is – ‘Kafferskraal’ is evidence that the farm had a long history of black
settlement. They argue that their land rights survived white registered title.

The appellants also have a long history in the area (though not quite as long). The
Prinsloos purchased the property in 1939 and the current appellant is the
granddaughter. The Bothas had links to 1889 being related to Korf. The area of the
farm under contention is portions 2 and 3.

The Land Claims Commission referred the legal questions of ‘community’ and
‘dispossession’ to the LCC for determination. The LCC ruled in the community’s
favour and the Bothas and Prinsloos appealed to the SCA (the LCC didn’t grant leave
to appeal but the SCA did).

1. Are they a community? The B and Ps pointed to errors in the claimants’

papers and to the fact that the Ndebele-Ndzundza Tribe lost its traditional
rights in land after the Mapoch War in 1883 and never regained these rights
and that after this there were no N-N strongholds on the farm itself – only
some distance away. Plus they argued that by 1883 all land around the farm
was under private white ownership without any black people on it. The
claimants’ expert disputed this, saying the claimant community continued to
live there and regard it as their natural place without any whites around (and
that there was quite a lot of evidence to support this including that in around
1904 Madzidzi was living there and attempted to purchase land), and that the
B and P papers were unable to contest that there were no whites on the
relevant portions of land (the various white families lived on surrounding
pieces of land). At para 25 the SCA notes that in 1938 a Mr Henwood wrote to
the Secretary of Native Affairs saying he wanted to sell his farm, Kafferskraal,
which had been ‘a native area for many years and is totally unimproved … no
white people have ever lived there. It is and always has been entirely a Native
farm’ (the sale floundered as the area wasn’t designated for blacks). At paras
29-30 the SCA finds that the N-N were a community at the time practicing
customary land rights who were relocated in the late 1930s. They lived under
the authority of the chief and they held the land as a group. They occupied the
farm exclusively and without direct control from the white landowners in

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 accordance with the ancient customs and traditions of the N-N people, who
now claim the land as a continuing customary community. As a related
question, whether the community had a right in land as required by the RLRA
(paras 32-40), the B and Ps said that because the community had paid rent to
the white owners they did not have rights in land. The SCA rejected this
argument, highlighting that rights in land are not only ownership. Use and
possession including customary use and possession is recognised. So this is
satisfied. (SCA at para 39 cites Kranspoort about the need for some
‘community’ at the time the claim is lodged, which the SCA finds in evidence
in this case).

2. Was the community dispossessed (paras 41-48)? The SCA found that despite
there not having been a forced removal, on the logic of Abrams, actual force
wasn’t necessary to prove dispossession. The land had been sold to a new
owner and they could no longer live where they were as it was not a ‘black
designated area’. The community had no choice but to relocate to a different
area and they were not compensated at all for having to leave the crops and
structures they left behind. So the 1939 removal was a dispossession.

The SCA found in their favour, dismissed the appeal and the matter was set back to
the Land Claims Court for final determination.

5. Haakdoornbult Boerdery CC and Others v Mphela and Others 2007 (5) SA

596 (SCA)

Here three out of four farmers appealed against an order of the LCCourt to award
their land to claimants (Mphela and 217 others) who had been dispossessed of their
land (a farm called Haakdoornbult, which had subsequently been sub-divided) in the
1950s in terms of the Natives Land Act. The issue on appeal was whether awarding
the entire farm (which had subsequently been sub-divided and was now owned by
separate families) was over-compensation in light of the fact that the Mphela
claimants were paid some compensation when they were dispossessed.

The facts were that Mr Phali Mphela (whose descendants are the claimants) was a
black farmer who was able to purchase a farm on the banks of the Crocodile River in
1913 from a white farmer, and obtain full title. He cultivated, irrigated and produced
and sold crops for the market. Later that year the Natives Land Act was promulgated
(so a few months later and he wouldn’t have been able to do this), making the area a
‘white’ area. In terms of the land classification, the farm was sold under compulsion
to whites in 1951 and the government made them move to a nearby farm, Pylkop
(which was much bigger but didn’t have irrigation or a river). The family resisted
being dispossessed until 1962, when they were removed to Pylkop, which they bought
with the money they received for Haakdoornbult (including a ‘top-up’ as part of the
government-initiated land swop by the Botha’s, who bought Haakdoornbult,
effectively over-paying for the assessed price [which arguably was much too low and
unfair on the Mphelas] in order to allow the deal to take place because the amount the
Mphelas received for Haakdoornbult was insufficient to cover the assessed price for
Pylkop).

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The removal involved a night raid, arrests and bulldozing of kraals and homes. The
issue in question was whether they were entitled to restitution of all of the
Haakdoornbult land i.e. did they receive just and equitable compensation when they
were dispossessed (in terms of the RLRA, restoration can be the whole land, a portion
of it or any appropriate relief).

According to s 33 of the RLRA, when considering the question of restitution, the

following should be taken into account:
 Desirability of providing restitution of rights in land
 Desirability of remedying past violations of human rights
 Feasibility of restoration of rights in land
 Desirability of avoiding major social disruption
 Amount of compensation at the time of dispossession (obviously if j&e
compensation given then no question of restitution)
 History of dispossession and hardship, and current use of land and history of
acquisition

For the purposes of this case, dispossession was assumed (accepted). The only
question was about restitution (embodying the question about whether the Mphelas
had previously received just and equitable compensation). So the crisp question was:
was the price paid to the Mphelas at the time of the dispossession just and equitable in
terms of s 25(3) of the Constitution?

At the time in 1951, Haakdoornbult was valued by an assessor at £5040, and the
government added a solatium of 20%, so the Mphelas were given £6048 (this wasn’t
enough to pay for Pylkop, which at the time was valued at £7558, but the situation
was resolved when the Bothas said they were prepared to pay £7558 for Haakdornbult
- also suggesting it had been officially under-valued).

The claimants argued that they hadn’t received the price of a fully-fledged agricultural
farm and therefore they had not received just and equitable compensation. The
Botha’s expert said it was merely a family farm and the price was fair.

At para 47 the SCA finds that the price was not fair and the Mphelas were not fully
and fairly compensated in light of the fact that the farm was much more cultivated and
irrigated, with kraals, schools etc. plus historical ties meaning that the family lost
more than the mere market value (which they were anyway under-paid for). At para
48 the SCA stresses that fair compensation isn’t only about market value. But at para
49 the SCA highlights the difficulties of trying to retrospectively redress historical
harm relating to land use and ownership. The court grapples with what would be fair
compensation given that the Mphelas were claiming the whole farm (subsequently
sub-divided with four owners), and the current owners (the three remaining in the
appeal) were arguing they shouldn’t get any of the farm as they had received fair
compensation at the time of the dispossession (the LCC awarded the whole farm to
the Mphelas).

The SCA found that, on the facts the Mphela’s had not received just and equitable
compensation at the time of their dispossession (because the valuation at the time
didn’t take into account all the land improvements plus historical ties, graves etc.).
Nonetheless, to award the entire Haakdoornbult area would be to over-compensate

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them for their loss, especially as the Mphelas had received Pylkop as ‘compensatory
land’, which had been in the family’s name since 1962 (para 54) (the claimants
wanted to keep Pylkop).

Strictly speaking, what you do with the money received and whatever land you
purchase with it shouldn’t be part of the inquiry but in this case it was complicated by
the fact that the Botha’s had topped up the assessed amount to ensure the sale. But
again, if the assessed amount wasn’t fair, then ideally this additional amount - £1510 -
should be added to the monetary compensation received and compared against a fair
price at the time for Haakdoornbuilt to see if the Mphelas had been under-
compensated. Unfortunately the SCA didn’t go this route so the conclusion and
remedy isn’t quite as neat.

Having found that the Mphelas were under-compensated, the SCA turned to the issue
of allocation. Finding that to return the whole farm – as the LCC had – would be
substantial over-compensation, the SCA began to look at partial restitution. The SCA
started with the low-hanging fruit of the farm belonging to the Engelbrecht family (no
7 on the sketch), which had not appealed the LCC judgment. At para 62 the SCA
declared that the allocation of the Engelbrecht’s land to the family is ‘a fait accompli’
because the Engelbrecht’s chose not to appeal the LCC judgment, which awarded all
land to the Mphelas i.e. they implicitly accepted that judgment and the award.
Looking at the Engelbrecht’s portion of land the SCA found this allocation to the
Mphelas not to be over-compensation. Then it turned to the other pieces of land.

Regarding the Furstenburg Trust property (no 6 on the sketch) - which was a
relatively small cattle and game farm, ‘without any material productive value unless
farmed in conjunction with the adjoining piece of land’, with the Mphelas graves on it
– the SCA saw no reason why this piece of land could not be awarded to the Mphelas.

Then looking at the Bezuidenhout Trust farm (no 3 on the sketch) – a similar game
farm of an awkward narrow shape that had no income-producing value but that when
combined with the Engelbrecht and Furstenburg properties formed a convenient block
of land – the SCA found there were no reasons why this, too, could not be awarded to
the Mphelas.

Collectively, portions 3, 6 and 7 amounted to about 86% of the land, leaving for
consideration a narrow strip known as RE (Remaining Extent), and forming an
integral part of adjacent land not under dispute, owned by a CC. Here the SCA found
that this piece of land was integral to the rest of the CC land not under dispute and if
awarded to the Mphelas would isolate the rest of the CC’s land. Also, because the RE
has no water supply (the CC gets its water from the other land), it would not be very
useful to the Mphelas. The SCA therefore found that it would be counter-productive
to allocate the RE to the Mphelas on the grounds of non-feasibility (paras 72 and 73).

The SCA therefore ruled that portions 3, 6 and 7 should be awarded to the Mphelas,
and ordered the state to expropriate the land and to transfer it to the Mphelas, who it
ordered to form a CPA to enable them to take ownership of the property. It then
remitted back to the LCC for determination the question of whether the allocation of
these portions would result in over-compensation (presumably here there would be a
proper consideration of the real value of Haakdoornbult at the time of the

14
dispossession) and, if so, whether the Mphela family should contribute something
towards the compensation or forgo some of the land (it also asked the LCC to
determine whether any servitudes or rights of way should be granted [to neighbours]
over the restored properties).

6. Department of Land Affairs, Popela Community and Others v Goedgelegen

Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC)

The LCCourt dismissed a claim by the Popela community, claiming as part of a

community as well as as individuals, for restitution of land (at the time called
Boomplaats) that had subsequently been consolidated into the Goedgelegen farm. The
claim was based on the termination of their rights as labour tenants during 1969 by
white famers, and the question of whether the labour tenants could claim redress
under the RLRA. The LCCourt dismissed the claim finding that the claimants weren’t
a community at the time of the claim (because they weren’t part of any tribal identity
or didn’t occupy land in accordance with ancient customs) and that anyway (and
regarding the individual claimants) claimants’ rights weren’t terminated as a result of
racially discriminatory laws or practices but rather because the white farmer at the
time (Mr Altenroxel) didn’t want labour tenants anymore. The claimants appealed to
the SCA, where the appeal faltered and was dismissed but the CC granted them leave
to appeal.

The facts, broadly speaking where that since the 1800s black communities and
individuals had resided on the land. In the mid-1800s white settlers came and required
all on the land to render services in order to stay there i.e. made them labour tenants.
During 1969 the owners terminated the labour tenancies of the individual claimants
without compensation. In their claim the claimants shifted between arguments around
indigenous land rights (like Alexkor) and labour tenant rights but they limited their
claims for restitution to equitable redress for the dispossession of their labour tenancy
rights in 1969 as individuals or as a community.

The CC considered two questions:

1. Is Popela a community?
2. Were the individuals/community dispossessed ‘as a result of …’?

Considering whether the claimants were a ‘community’ (the Popela community, who
were claiming as being a community), the CC reinforced the decision in Kranspoort,
that there should be a generous interpretation of community and that there was
certainly no requirement in the legislation for a community to demonstrate tribal
identity or to live under customary land arrangements. Found they were a community
when dispossessed of the remnants of their labour tenancy rights in 1969 and were
still sufficiently cohesive to constitute a community at the time of making their claim.
However, the CC found (on the basis that when their rights were terminated in 1969
they had been reduced to individual labour tenants with individual arrangements with
Mr Altenroxel, by its very nature this kind of arrangement was individualistic rather
than communal) that on the key question of whether the community held its land
rights communally in 1969, that it had not – following the requirement by white
settlers in the mid-1800s to become individual labour tenants, from that time onwards,
in fact, all members of the community ceased to follow communal land practices and
instead became individual labour tenants and worked the land as such. Therefore the

15
community claim could not succeed – there were no communal land rights in practice
at the time of dispossession in 199, the only land rights in practice were individual
labour tenants rights. So the claim should proceed in terms of individual labour tenant
rights.

In terms of the individual claims, the CC then looked at the question of whether the
individual labour tenants had had their land rights (individual labour tenancy
arrangements) dispossessed as a result of past racially discriminatory law/practice.
Based on a generous interpretation of the words “as a result of” (which the CC found
to mean “as a consequence of” and not necessarily the “sole consequence of” (ie it
found that the “but for” test might be too restrictive), and found that the individual
claimants were dispossessed as a result of past racially discriminatory laws/practices.

**NB – read and understand paragraphs 48-81 regarding the CC’s expansive
interpretation of the causation test (in contrast with the narrow Slamdien test). See
especially paras 69, 70, 73 and 76.

The remedy was a declaratory order that the third to eleventh applicants were entitled
to restitution (the claimants were confident that they could resolve the logistics with
the Department, but the CC pointed out that if not, they always had recourse to the
LCC) (has it been resolved?).

7. Florence v Government of the Republic of South Africa 2014 (6) SA 456 (CC)

In this appeal from the LCCourt and SCA, the CC had to decide whether the
compensation awarded to an individual title-holder (Mr Florence) who was
dispossessed of his property in Rondebosch, Cape Town, as a result of past
discriminatory laws, had already received just and equitable compensation.

The facts were that the Florence family had lived on the Rondebosch property from
December 1952 to November 1970. In January 1957 Mr Florence entered into a
written agreement with Mr Yeller for Mr Florence to purchase property in instalments
(an instalment sale agreement with the owner in terms of which ownership would
only transfer once the final payment was made). Mr Florence made the final payment
of R46 in October 1970. However, he couldn’t register transfer because of the Group
Areas Act (1957), which had been sketchily enforced but one could definitely not
transfer property across the racial lines. So although the property was valued at
R32,000 at the time and despite Mr Yeller agreeing that Mr Florence was the de facto
owner due to having paid the full amount for the property, Mr Yeller asserted
ownership himself and ‘refunded’ R1,350 to Mr Florence.

On 14 December 1995 Mr Florence launched a restitution claim seeking restoration of

the property. In the interim there had been substantial development on the property,
which was now a parking lot had part of a shopping centre and business on it (and
was valued at around R8 million). Because of this development restitution was
deemed not feasible (NB look at court – especially CC – reasoning on feasibility and
think about this in light of e.g. Kranspoort). So the key issue became just and
equitable compensation (as demanded by s25(7) of the Constitution were restoration
isn’t feasible). In this case it revolved specifically around the monetary compensation,

16
a solatium payment for pain and suffering and the erection of a memorial plaque
(which the owners of the property agreed to).

The LCC looked at the shortfall between the value of the property at the time (1970)
– R32,000 – and the amount received – R1,350. Finding that the payment at the time
of R1,350 didn’t amount to just and equitable compensation, it noted that the shortfall
was R30,750 and ruled that it would be just and equitable to convert the 1970
financial loss to its present day value in order to capture ‘the changes in value over
time’ as per s 33(eC) of the RLRA. The way to do this, according to the LCC, was to
add CPI (inflation), establishing an amount of R1,488,890. The LCC said a solatium
amount of R10,000 should have been added to compensate for the trauma of the
forced removal. But the LCC ruled against the erection of a memorial plaque on the
location, on the grounds that it didn’t have jurisdiction for such remedies.

The Florence family appealed to the SCA, which agreed regarding the amount of
financial compensation to be awarded but disagreed regarding the memorial plaque,
finding that the LCC has wide jurisdiction regarding just and equitable remedies, with
the RLRA granting it the power to order any alternative relief (s 35).

The family appealed this judgment to the CC (regarding the financial award, arguing
that given the current market value of the property they were entitled to more
compensation); and the government cross-appealed regarding the issue of the
memorial plaque (the government didn’t want to have to erect the plaque or create this
precedent).

The majority judgment (Moseneke ACJ) dismissed the main appeal i.e. the award
stands as R1,488,890 (plus the solatium of R10,000), calculated as the market value at
the time of dispossession minus what was received in compensation, plus CPI, which
the CC majority judgment found to appropriately measure ‘changes over time in the
value of money’ as required by s33(eC) of the RLRA.

The majority judgment upheld the cross-appeal, ruling that the RLRA didn’t provide
for such a remedy and there was therefore no grounds to order the erection of a
memorial plaque.

Florence stands as the most recent confirmation of the approach to how the monetary
value of dispossessed individual title is calculated at the CC level. You must read and
understand the five different judgments.

[van der Westhuizen J with Cameron J, Froneman J and Majiedt AJ concurring in the
main appeal; and Khampepe concurring only in the cross-appeal, would have upheld
the main appeal and awarded Florence R2,211,732 using a 32 notice deposit rate with
higher interest than CPI; and would have dismissed the cross-appeal, therefore
ordering the memorial plaque to be erected]

[Zondo J – a separate concurring judgment to the majority judgment going into

slightly more detail as to why the plaque should not be ordered – would have
dismissed the main appeal and upheld the cross-appeal]

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[Froneman J – a separate concurring judgment to the VdW judgment – would have
upheld the main appeal and dismissed the cross-appeal – this judgment comes closest
to a transformative judgment – see especially para 203 regarding the need where
restitution isn’t possible to come as close as possible in financial terms to restoration,
that CPI may be inappropriate to achieve this objective, and that in such cases the
current day value could serve as evidence of the inappropriateness of the CPI method
{though with some concerns about comparable use of land at the time of
dispossession}, suggesting a different method that can take all of this into
consideration - but perhaps he couldn’t find allies on the court to take it further]

[Khampepe J concurred with the majority judgment regarding the main appeal – she
would have dismissed the main appeal, meaning that the award remained at
R1,488,890 plus solatium; but she concurred with VdW regarding the cross-appeal –
she would have dismissed the cross-appeal, meaning that the plaque would have been
erected]

8. Msiza v Director-General, Department of Rural Development and Land

Reform and Others 2016 (5) SA 513 (LCC)

Here, in a case concerning the amount to be paid in compensation to the owner of a

piece of land awarded to a labour tenant in terms of section 16 of the Land Reform
(Labour Tenants) Act 3 of 1996 (which allows tenants to apply for land they’ve been
living and working on), the LCC clarified that while market value might be used as
the starting point for a determination of the amount of compensation to be paid, this is
determined by what is just and equitable (and in terms of the factors set out in section
25(3) of the Constitution) rather than market value per se.

SCA challenge…

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