Gounden v Properties Formerly known as the Farm Cato Manor No 812 (LCC87/99) [2003] ZALCC 11 (25 April 2003)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

Heard at DURBAN on 4 March 2003 CASE NUMBER: LCC 87/99

before Meer, Gildenhuys JJ and Hugo (Assessor)

Decided on: 25 April 2003

In the application of:

BOGAVATHIAMMA GOUNDEN Applicant

Concerning:

THE PROPERTIES FORMERLY KNOWN AS THE FARM CATO MANOR NO 812

JUDGMENT

MEER J:

This is an interlocutory application in a claim for the restitution of rights in land in terms of the Restitution of Land Rights Act1 (“the Restitution Act”), in which is sought the substitution of the applicant Bogavathiamma Gounden as claimant in order to reflect that she brings the claim in her capacity as executor of the estate of the late Dhanam. The claim was previously lodged by the applicant in her personal capacity. The application also seeks a sequential amendment of the applicant's statement of case.

A claim for restitution of rights in land in respect of an undivided half share of the property known as Subdivision 993 of Lot 76 of Cato Manor (formerly Subdivision 22 of SB3 of the farm Cato Manor No 812) Durban, was lodged with the Commission on Restitution of Land Rights on 30 August 1996. The rights claimed, as emerges below, was the late Dhanam's undivided half share of the entire property. The claim was lodged in terms of Section 41(2) of the Restitution Act and the claim form was signed by the applicant without indicating the capacity in which she was bringing the claim. Powers of attorney by four of her siblings authorising the applicant to claim the subject property were also filed with the claim form.

According to an affidavit filed in support of the application by the applicant, the applicant is the daughter of the late Munsamy and Dhanam, who were married to each other in community of property. The late Munsamy had two wives. Only his marriage to Dhanam was registered. The entire subdivision 22 of SB3 of the farm Cato Manor No 812 (of which the subject property forms an undivided half share) was acquired by and registered in the name of the late Munsamy in 1941. It formed part of the joint estate of the late Munsamy and the late Dhanam. Munsamy died in 1955. The ultimate beneficiary of the late Munsamy's undivided half share of the entire property was his other wife. His will correctly recorded that Dhanam was entitled to the remaining undivided half share in this property by virtue of the marriage in community of property. Dhanam died intestate on 29 April 1957. At the time of her death, her undivided half share in the property had not yet been transferred to her out of the joint estate. On 6 June 1958 the area of Cato Manor was proclaimed to be a white group area2 and the subject property was deemed to be an affected property3 which could only be sold to a qualified buyer. In this instance a qualified buyer would be a member of the white group.

Dhanam’s undivided half share consequently could not be transferred out of her late husband's estate to her estate, or out of her estate for the benefit of her intestate heirs, because they were not of the white group. The entire property was instead sold and transferred out of the joint estate to the Community Development Board on 24 October 1961. The purchase price was R900. The first and final liquidation and distribution account in the estate late Dhanam, dated 3 June 1961, records as an asset the sum of R450, being the proceeds of her half share from the sale. Her estate was also debited with half of the liabilites arising out of the sale.

The claim lodged by the applicant with the regional land claims commission pertains to the late Dhanam's undivided half share only. No claim has been lodged in respect of Munsamy's undivided half share, the beneficiary of which was his other wife. After obtaining legal advice that the claim ought to have been brought by the executor of the estate of the late Dhanam, the applicant was appointed as executor of that estate in January 2001. In seeking condonation for submitting the claim form in her own name, but on behalf of the intestate heirs, the applicant explained that at the time she had not been aware that the claim had to be brought by an

executor, and contended moreover that no prejudice had been occasioned to any party.

Persons entitled to claim restitution of rights in land are set out at Section 2(1) of the Restitution Act:

“(1) A person shall be entitled to restitution of a right in land if -

(a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(b) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(c) he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who —

(i) is a direct descendant of a person referred to in paragraph (a); and (ii) has lodged a claim for the restitution of a right in land; or (d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and (e) the claim for such restitution was lodged not later than 31 December 1998.” The entitlement of an executor to claim restitution under section 2(1)(b) of the Restitution Act where an estate has allegedly been dispossessed has been acknowledged in several decisions by this Court.4 The approach of this Court has been that the standing of a claimant to assert the constitutional right to restitution, must be considered in a manner which will promote the spirit, purport and object of the Bill of Rights.5 The Moodley and Kara6 cases concerned two very similar applications before this Court for the substitution of executors as claimants where estates were dispossessed, in circumstances where the claim forms indicated the heirs as the claimants (as opposed to the executors). We found in those cases that the lodging of the claim form by an heir instead of the executor in circumstances such as the present, was not fatal to the claim. If it was clear (albeit from external sources) that the claim was lodged for the gain of persons ultimately entitled to the benefit thereof, that would be

substantial compliance with section 2(1)(e) of the Act. The result in this case would be that the claim had been properly lodged before the cut off date of 31 December 1998.7 In the Moodley case it was stated: “An informed interpretation of the claim form in the light of surrounding circumstances should, however, bring to light that the true claimants are the deceased estates. The persons who signed the claim form were obviously acting for the benefit of heirs.”8 This is particularly apposite in the present case also. In addition, the Moodley case took cognisance of the fact, as is also applicable here, that the claim form provided by the Commission did not in so many words cater for a claim by a deceased estate, presumably because the Restitution Act at that time did not provide in so many words for a claim by a deceased estate.9 I am accordingly satisfied that the application must succeed and grant the following order: (a) Bogavathiamma Gounden in her capacity as executrix of the estate of the late Dhanam is hereby substituted as claimant in this case. (b) The applicant is granted leave to amend her statement of case by substituting it with the amended statement of case dated 10 January 2003 (c) It is declared that the claim for restitution of rights in land in respect of the undivided half share in and to sub-division 22 of SB3 of the farm Cato Manor No 812 was properly lodged as required under Section 2(1)(e) of the Restitution of Land Rights Act 22 of 1994. _____

JUDGE

YS MEER I agree. _____

JUDGE

A GILDENHUYS I agree. _______ G HUGO (ASESSOR) For the applicant: N Singh S. C. instructed by Legal Resources Centre, Durban. For the Department of Land Affairs: Ms S Naidoo instructed by The State Attorney, Durban.

(i) is a direct descendant of a person referred to in paragraph (a); and

(ii) has lodged a claim for the restitution of a right in land; or

(d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and

(e) the claim for such restitution was lodged not later than 31 December 1998.”

The entitlement of an executor to claim restitution under section 2(1)(b) of the Restitution Act where an estate has allegedly been dispossessed has been acknowledged in several decisions by this Court.4

The approach of this Court has been that the standing of a claimant to assert the constitutional right to restitution, must be considered in a manner which will promote the spirit, purport and object of the Bill of Rights.5 The Moodley and Kara6 cases concerned two very similar applications before this Court for the substitution of executors as claimants where estates were dispossessed, in circumstances where the claim forms indicated the heirs as the claimants (as opposed to the executors). We found in those cases that the lodging of the claim form by an heir instead of the executor in circumstances such as the present, was not fatal to the claim. If it was clear (albeit from external sources) that the claim was lodged for the gain of persons ultimately entitled to the benefit thereof, that would be substantial compliance with section 2(1)(e) of the Act. The result in this case would be that the claim had been properly lodged before the cut off date of 31 December 1998.7 In the Moodley case it was stated:

“An informed interpretation of the claim form in the light of surrounding circumstances should, however, bring to light that the true claimants are the deceased estates. The persons who signed the claim form were obviously acting for the benefit of heirs.”8

This is particularly apposite in the present case also. In addition, the Moodley case took cognisance of the fact, as is also applicable here, that the claim form provided by the Commission did not in so many words cater for a claim by a deceased estate, presumably because the Restitution Act at that time did not provide in so many words for a claim by a deceased estate.9

I am accordingly satisfied that the application must succeed and grant the following order:

(a) Bogavathiamma Gounden in her capacity as executrix of the estate of the late Dhanam is hereby substituted as claimant in this case.

(b) The applicant is granted leave to amend her statement of case by substituting it with the amended statement of case dated 10 January 2003

(c) It is declared that the claim for restitution of rights in land in respect of the undivided half share in and to sub-division 22 of SB3 of the farm Cato Manor No 812 was properly lodged as required under Section 2(1)(e) of the Restitution of Land Rights Act 22 of 1994.

_____

JUDGE

YS MEER

I agree.

JUDGE

A GILDENHUYS

_______

G HUGO (ASESSOR)

For the applicant:

N Singh S. C. instructed by Legal Resources Centre, Durban.

For the Department of Land Affairs:

Ms S Naidoo instructed by The State Attorney, Durban.

1 Act 22 0f 1994, as amended.

2 Proclamation No 153, Government Gazette No 6068 issued in terms of the Group Areas Development Act No 69 of 1955

3 In terms of section 17(1) of the Group Areas Development Act 69 of 1955

4 See the following cases: Former Highlands Residents concerning area formerly known as the Highlands, Pretoria 2000 (1) SA 489 (LCC) at para [12]-[18]; Jacobs v Department of Land Affairs, In re Erf 38, LCC 120/99, 28 February 2000, available from www.law.wits.ac.za at para [20]-[33]; Department of Land Affairs v Witz, Re Grassy Park, LCC 152/98, 12 October 2000, available from www.law.wits.ac.za at para [23].

5 In Re: Moodley NO 2002 (3) SA 846 (LCC) at para [8]; In re Kara, LCC 44/98, 7 November 2001, available from www.law.wits.ac.za at para [19].

6 Note above.

7 Kara note above at para [18] and [19]; Moodley note above at para [7]-[11].

8 At para [10].

9 Moodley note above at para [10].