Baphiring Community v Uys and Others (LCC64/1998) [2010] ZALCC 1; 2010 (3) SA 130 (LCC) ; [2010] 3 All SA 353 (LCC) (19 January 2010)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

IN RANDBURG

CASE NO: LCC64/1998

Heard on : 24 – 28 August 2009, 01 December 2009

Decided on: 19 January 2010

In the matter between:

THE BAPHIRING COMMUNITY Claimant

and

MATTHYS JOHANNES UYS AND OTHERS Respondent

JUDGEMENT

MIA A J:

[1] This is a claim for restitution in terms of the Restitution of Land Rights Act (hereafter referred to as the “Restitution Act”)1. The claim relates to portions 1 (excluding that portion of portion 1 which was previously known as portion 14 of the farm SYFERFONTEIN 451 JP), 5, 6, 7, 8, 9, 10, 12, 13 and the remaining extent of the farm ROSMINCOL 442 JP (hereafter referred to as Rosmincol). The various subdivisions presently belong to eight individual landowners. An erstwhile settlement of the claimant community on Rosmincol was known as Mabaalstat. I will refer to it as “the old Mabaalstat.” The community was dispossessed of the land in September 1971 and moved to other land some 80 km away, where they were resettled. I will refer to this settlement as “the new Mabaalstat”. The Claimants request that the land described above (containing the old Mabaalstat) be restored to them.

[2] The Claimant community at the new Mabaalstat is comprised of some 400 households. It is a Tswana tribe known as the Baphiring. If the claim is successful and the claimed land is restored, it is envisaged that the land will be held by a communal property association to be formed. All members of the Claimant community will be allowed to join the communal property association. The issue to be decided at this stage is the feasibility of restoration in terms of section 33 (cA) of the Restitution Act. This Court will consequently have regard to all of the factors listed in section 33 when considering the evidence herein.

[3] Mr. Jansen from the Legal Resources Centre appeared for the Claimant. He called five witnesses. Two of them are members of the community, namely Mr. Ferdinand Mogatusi Mabalane and Mr. Christian Mabalane. A further three witnesses gave expert evidence. The first of them was Ms Elizabeth Catherina Visser, a sociologist involved in social impact assessments, consultations and monitoring of involuntary human resettlement from 1990 to the present. The second expert witness was Mr. Christopher Antrobus, whose key areas of expertise are project evaluation and feasibility studies. His experience spans from 1984 to date. Mr. Jacques van der Merwe, the last witness for the Claimant, is a town and regional planner. His experience spans from 1991 to the present.

[4] Mr. Grobbelaar appeared for four of the land owners. He called one witness, Mr. Prinsloo, a qualified teacher and one of the landowners. He took over the family farm when his father died. Mr. Buitendach, another land owner, appeared in person. He elected not to give evidence and posed no questions in cross-examination, but was present during the proceedings. The remaining three of the landowners received notice of the hearing, but did not participate in the proceedings.

[5] Advocate E I Moosa, instructed by the State Attorney, appeared for the 10th Defendant, the Department of Land Affairs. Mr. Moosa called two witnesses. The first was Mr. Zietsman, a professional associated valuer and appraiser. He owned his own farm for 22 years, and has over 30 years of experience with projects and properties in relation to quantity surveying, costs, contracts, financing, insurance, administration and practical execution. Mr. Khama, an official in the office of the Regional Land Claims Commissioner responsible for resettlement of communities was the second witness for the 10th Defendant.

[6] The evidence indicates that at the time of dispossession, the land occupied by the Baphiring tribe was not commercially developed. Farming occurred on a small scale for the subsistence of community members. Surplus produce was sold in the surrounding area. Some members of the community worked elsewhere, in Johannesburg and other towns and cities. The dwellings were rustic. Homes were made out of clay bricks with soil from the river bed at old Mabaalstat. Roofs were made of grass and wood collected on the land. Water was drawn from the river for personal use and to water the vegetable gardens.

[7] In contrast, Rosmincol is presently occupied by a much smaller number of persons. Large tracts of land have been cultivated. There is also intensive cattle farming. Mr. Zietsman estimated that the land which the Claimants seek to be restored comprises a total of 7515,1629 hectares of agricultural land.2

[8] Rosmincol has been developed for commercial farming. The combined agricultural production of the landowners is: 1800 calves produced per year, 5900 tonnes of maize, 400 tonnes of beans, 470 tonnes of sunflower seeds and 1080 000 litres of milk.3

[9] The new Mabaalstat is on 17167,1281 ha of land acquired by the community after they were dispossessed of Rosmincol. It consists of two villages separated by a tarred road. The roads within the villages are gravel. The layout is rudimentary. The erven are relatively large in comparison to most urban erven. There is a large administrative office building next to the tarred road, two primary schools and a high school. Water is supplied from various tanks scattered around the village and reticulated to communal taps. Electricity is reticulated in both villages for dwellings and street lighting by means of Appollo lights. The residential structures are varied. Many homes are constructed of brick and mortar, some being fairly large, well built structures resembling suburban housing units. A few of them are large, double storey homes. Other homes are constructed from basic material such as corrugated iron sheeting. Many homes have vegetable gardens, indicating subsistence farming. Some residents keep chickens, goats and even a few cattle. Both villages give the impression of a dormitory town. Many houses were closed with no presence on the property during the Court’s inspection in loco.4

[10] The land, whilst not suitable for intensive vegetable cropping, is suitable for cattle farming. The presence of a hunting facility suggests that it may have potential as a game farm. Although there have been attempts to cultivate the land, the evidence for the Claimant indicated that it had not been successful, partly because of insufficient water and partly because of a lack of support from the previous Government to re-establish farming activities.

[11] The evidence for the Claimant covered the extent of the land on Rosmincol occupied prior to dispossession, its use by the community prior to dispossession, the manner of dispossession as well as evidence of the use of the new Mabaalstat. The Claimant community also led evidence of what support (financial and otherwise) they would require, should the Court order that the farm Rosmincol be restored. Expert evidence was led to assist the Court in determining what support the community will require to ensure that restoration, if ordered, will be successful.

[12] The evidence on behalf of the landowners concerned the manner in which they obtained the land and the land’s present use, being intensive farming. The State Attorney, on behalf of the Minister of Land Affairs and Rural Development, indicated at the outset of the proceedings that the Minister would abide by the decision of the Court. Mr. Moosa also indicated that his instructions were to support the claim for the return of Rosmincol to the Claimant. The Claimant should also be permitted to retain the new Mabaalstat. Equitable redress must be limited to R2,6 million, based on a restitution resettlement grant of R6500 per household for 400 households. No further equitable redress should be awarded.5

[13] Having regard to the requirements of justice and equity, the Court is asked to take account of Mr. Grobbelaar’s submission on behalf of his clients that the Claimant has, at the time of dispossession, received substantial compensation. Mr. Grobblelaar submitted that the Claimant may only be compensated for what it lost as a result of dispossession and not for more than that. He contends that if the old Mabaalstat with its developed agricultural land and improvements is restored to the Claimant whilst the Claimant also retains the new Mabaalstat, the Claimant would receive much more than it has lost.

[14] In an earlier judgement this Court found that:

“The Baphiring Community did not receive just and equitable compensation, within the meaning of section 2(2) of the Restitution of Land Rights Act, No 22 of 1994.”6

Section 33(c) requires the court to consider the requirements of justice and equity. Having already found that the removal to new Mabaalstat did not adequately compensate the Claimant, the Court is now required through this action and bearing in mind the compensation already received, to determine the form of restitution which will redress the injustice of the past and also be fair to the fiscus and the landowners.

[15] The parties do not agree on the form of restitution7. The Claimant asks for restitution in the form of restoration of the land they occupied prior to dispossession as well as financial resettlement assistance. In these proceedings the Court is only required to determine whether the restoration of Rosmincol is feasible and equitable, bearing in mind that if the community (or part of the community) is relocated to Rosmincol the relocation will not be successful without additional financial assistance.

[16] Mr. Jansen, on behalf of the Claimant, conceded that “when development has radically transformed the land and its value, that which will be given back will be too far removed from that which was taken away. One would not comfortably be able to call it restoration”8.

He notes that there are cases where actual restoration will present difficulties and might be unfeasible. He cited the examples of well developed lodges for eco-tourism, capital intensive agricultural businesses and pristine natural areas, as well as intensive urbanisation where restoration will cause disruption and will be too expensive for the fiscus.

[17] Mr. Jansen argued that there are four factors which inform the feasibility of restoration, namely the costs of acquisition of the land, disruption of the lives and economic activities of the present landowners, the ability of the Claimant community to use the land, and the public interest, including state resources.

[18] The land at old Mabaalstat is used for agricultural cultivation. The present value, as estimated by a valuer, Mr. Zietsman, comes to an amount of R70 000 000.00. The difference in the value of the land as it was at the time of dispossession and the present value (even considering an adjustment for inflation purposes) is considerable. Expropriation of the land in order to restore it to the Baphiring Community will, in addition, require the current landowners to be compensated for financial loss they may suffer as result of the expropriation, which will increase the costs to the fiscus of acquiring the land in order to restore it to the Claimant community.

[19] The second aspect informing the issue of feasibility, so Mr. Jansen submitted, is the possible large scale disruption of the lives and economic activities of those present on the land today. Eight landowners with their families and workers will be affected by a possible expropriation. These numbers are small in comparison to the number of persons comprising the Claimant community of approximately 400 households (assuming that all of them will relocate to the old Mabaalstat). The impact, however, will also affect the food production and economic activities on these farms. The high productivity of the farms has been referred to earlier in this judgment and is conceded in a statement of agreed facts submitted by the parties.

[20] The production output for the size of the land is substantial. It appears from the evidence and was confirmed during the inspection in loco that the land affected by the claim has been very well developed. Whilst the country has expansive tracts of land, not all of it is suitable for agriculture. The evidence of Mr. Prinsloo, the owner of portion 13 of Rosmincol, indicated that he was in the process of converting from maize growing to other forms of farming, such as cattle. He indicated that it would be ten years before this conversion becomes profitable. He also indicated that his children were not interested in farming. Mr. Prinsloo’s evidence is to the effect that, whilst he would prefer to remain on the farm and to retain ownership of the land, he would, in the event of an expropriation, consider acting as a consultant to the Claimant community. He would not invest financial resources, but would be willing to undertake management functions. The other landowners did not testify. It is not known whether they share the views of Mr. Prinsloo.

[21] Mr. Prinsloo indicated that he understands the plight of the Baphiring Community and empathises with what they went through. There are members of the Baphiring community who work on the farms and have acquired some knowledge of the farming operations.

[22] Mr. Antrobus, in his evidence, addressed the financial implications of restoring Rosmincol to the Claimant community. He said that the Claimant community could access grants. There was a possibility of accessing commercial funding if the Claimant community applied with a detailed feasibility study. He did caution that he recommended project management with staff employed from outside the community. He also foresaw the option of the current farmers remaining on the land and leasing the land from the Claimant community. Mr. Antrobus conceded that in the past restitution in the form of restoration of agricultural land has generally been unsuccessful due to inadequate financial support and inadequate knowledge of and skills in commercial farming. He alluded to possible success in some cases, but indicated that he has not had the opportunity to study the success and failure of restoration cases and that this would require further research.

[23] With regard to the fear that restoration of highly productive agricultural land would affect food production negatively, Mr. Antrobus expressed the view that restoration need not impact on food production to a great extent. His testified that other countries, Zimbabwe in particular, produced maize better than South Africa. He also noted that the area in question is better suited to livestock production than cash cropping, and that South Africa has experienced a decline in commercial farming.

[24] The evidence of Mr. Khama, the official responsible for resettlement in the office of the Regional Land Claims Commissioner, covered the extent of financial support provided to restored communities. A new integrated settlement grant of R6595 per household is offered. In addition, the community might obtain a development grant equal to 25% of the total value of the land, the estimated value being

R70 million. According to Mr. Khama no such grant has as yet been made in respect of any land restored in North West Province. He indicated that the Provincial Government, the Department of Land Affairs and the National Development Corporation would all play a role in achieving a successful resettlement of the community on restored land. He also indicated that the maximum possible funding which could conceivably be obtained from government sources would be in the order of R30 million.

[25] Mr. Khama testified that he ran 330 projects related to restitution and resettlement in the North West Province. He could not indicate a single successful resettlement amongst the 330 projects. The difficulties, according to Mr. Khama, range from a lack of human resource experts who can manage the resettlement projects to a lack of strategic partners. The biggest impediment appears to be a lack of funding. Another stumbling block is the lack of skills to continue commercial farming on the land. He was also not aware of the budget available for land restitution for the area in question or nationally.

[26] The lack of support and resources for relocation to the old Mabaalstat as well as the circumstances of the Claimant community at the new Mabaalstat weigh against relocating the Baphiring Community to the old Mabaalstat. It appears that, if relocated, community members will be forced to downgrade their living space. Relocation will necessitate the establishment of new dwellings and infrastructure at old Mabaalstat. The evidence indicates that the costs of successful relocation will be outside the reach of the Claimant community and the State. Mrs. Van der Merwe testified that in her experience it was not feasible to hand over cash to a community to develop restored land. Almost all the communities lack the institutional capacity to ensure that the funds are applied to the purpose for which they were allocated. She further believed that resettlement principles and expropriation law “does not speak to each other at present”. The disparity adds financial challenges to the general challenges presented by resettlement.

[27] The evidence of the lack of institutional, expert and financial support as indicated above, account for the general absence of successful relocations to restored land. The cost of the acquisition of Rosmincol (estimated at R70 million, to which must be added the solatium and the financial losses which will be suffered by the landowners as result of the expropriation) is substantial. The actual cost will be further increased by the financial assistance necessary to provide the homes and infrastructure required to enable the community (or part of the community) to move back onto the land at the old Mabaalstat. In addition, there will be the costs of equipment and running capital necessary for continued farming on the land. Mrs. Van der Merwe’s evidence indicated that, over and above the acquisition costs, another approximately R65 million would be required to ensure the community can relocate successfully to old Mabaalstat.

[28] The evidence is that not all of the community members will want to move. It is not clear at this stage how many families will move and how many new homes will be required to be built. There is no certainty that a significant portion of the community will move, and that those who do move will be able to continue with economic activities on the land. Resources in terms of expertise and financial assistance is necessary but lacking in the present case. This impacts negatively on the community’s intended use of the land and the feasibility of restoration.

[29] In his opening address at the commencement of this trial, Mr. Moosa informed the Court that the 10th Defendant supported restoration. In his closing address he argued that restoration was not feasible and that the successful restoration of the Baphiring Community to Rosmincol was not within the State’s financial reach. As such, the Court should not grant the Claimant’s claim for restoration, but rather award equitable redress

[30] There are graves of the Baphiring tribe on several of the portions of the farm Rosmincol. The graves were pointed out on the property belonging to Mr. Prinsloo during the site inspection in loco. There are however graves on other portions as well belonging to the other landowners. The Claimant community have been permitted to visit the graves in the past. The Claimants request restoration of the land housing the grave sites in the event that it is found that restoration is not feasible. The Respondents indicated that they had no objection to such restoration.

[31] Having considered the evidence, it is clear that the separated question referred for prior decision, viz whether restoration is feasible, must be answered in the negative. Consequently it is declared:

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

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

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

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

There is no order as to costs.

_____

SC Mia

Acting Judge

______

I agree

A. Gildenhuys

Judge of the Land Claims Court

_______

Professor M Wiechers

Assessor

For the Applicants

Advocate Rudolf Jansen

Instructed by Legal Resources Centre.

For the second, fifth, seventh and eighth Respondents

Mr. Peet Grobblelaar

Grutter & Grobblelaar Attorneys

For the ninth to thirteenth Respondents

Advocate E I Moosa

Instructed by the Office of the State Attorney

1 Act 22 of 1994

2 EP Zietsman, Valuation Report production and market valuation of the farm Rosmincol No 442JP at p 217, Bundle 2

3 Statement of agreed facts dated 25 August 2009 marked Exhibit “H”

4 Minute of the inspection in loco held on 2 June 2009, Exhibit “G”

5 10th Defendant’s instructions per Exhibit “D”

6 Judgement handed down by Gildenhuys J on 5/12/2003 par 24.

7 Restitution can take the form of restoration of the land which was dispossessed, financial compensation, award of alternate state owned land, or a combination thereof.

8 Claimant’s heads of argument page 3