Baphiring Community v Uys and Others (LCC64/1998) [2010] ZALCC 9 (29 April 2010)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

CASE NO: LCC64/1998

Decided on: 29 April 2010

In the matter between:

THE BAPHIRING COMMUNITY Claimant

and

MATTHYS JOHANNES UYS AND OTHERS Respondent

JUDGMENT

The Court

The Baphiring Community was disposessed of the farm Rosmincol which they owned at the time and applied for restitution of their rights of ownership. The present owners of Rosmincol took the position that restitution of the farm in the form of restoration is not feasible. The matter was heard by this Court and the following order was made:

“1. Restoration of the Farm Rosmincol to the Baphiring community is not feasible; subject to paragraph 2 below.

2. Restoration of all grave sites of the Claimant Community is feasible, the manner of such restoration to be determined in a subsequent hearing.

3. The restitution to which the Baphiring Community is entitled shall take the form of equitable redress; and

4. The form and extent of equitable redress is to be decided at a subsequent hearing of this matter;

5. There is no order as to costs.”

The Baphiring Community (as first applicant), the Regional Land Claims Commissioner: Gauteng and North West Provinces (as second applicant) and the Minister for Rural Development and Land Reform (as third applicant) applied for leave to appeal against the judgment and order. The present land owners (as respondents) oppose the application for leave to appeal.

In our view the judgment and order given in this case raises important issues on which another court may come to a different conclusion, and which merit adjudication by the Supreme Court of Appeal. The issues, in our view, are the following:

What weight (if any) should be given to the apparent lack of capacity on the part of the Community (particularly financial capacity) to continue with the intensive farming activities presently conducted on Rosmincol.

In the light of the above, what influence should the possible loss of food production on Rosmincol have should the present commercial farming be discontinued and replaced (possibly) by subsistence farming.

What weight must be given to the fact that the Baphiring Community has already received substantial compensation in the form of substitute land (the new Mabaalstat) and also financial compensation, considering.

the substantial funds which would be required to expropriate the existing land owners on Rosmincol;

the cost of relocating community members to Rosmincol (including the costs of new houses and infrastructure services);

the uncertainty with regard to the number of families who in fact want to move to Rosmincol; and

the limited State resources, which is common knowledge.

To what extent must the Court lean in favour of ordering restoration instead of equitable relief.

What weight must be given to the concession made by counsel who at the time of the main hearing appeared on behalf of the second and third applicants, that restoration of Rosmincol was not feasible for various reasons.

During argument before us Mr. Shakoane, who now appeared for the second and third applicants’ informed us that according to his instructions the counsel who previously appeared on their behalf had no mandate to concede that physical restoration of Rosmincol was not feasible.

We were informed that there was agreement between the parties at the main hearing that, whatever the outcome, costs would be reserved. We erroneously made no order as to costs. We will correct that order in terms of sec 35(12)(b) of the Restitution of Land Rights Act No 22 of 1994 by reserving costs.

For the reasons set out above, we hereby make the following order:

Leave is granted to the first, second and third applicants to appeal to the Supreme Court of Appeal against the judgment and order of this Court dated 19 January 2010.

Costs of the application for leave to appeal will be costs in the appeal.

Par 5 of our order dated 19 January 2010 is deleted and replaced by the following:

“5. The costs of the proceedings relating to the feasibility of restoration are reserved”

_____________________

A Gildenhuys

Judge

__________________

SC Mia

Acting Judge

___________________

Professor M Wiechers

Assessor