Habiba Soofie Saheb Badsha Peer Trust and Others v Minister of Agriculture Rural Development and Land Reform and Others (LCC 106/2014) [2021] ZALCC 12 (6 July 2021)

REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 106/2014

In the matter between:

HABIBIA SOOFIE SAHEB BADSHA

PEER TRUST First Plaintiff

HAJEE SHAH GOOLAM MAHOMED TRUST Second Plaintiff

ABDUL AZIZ TRUST Third Plaintiff

and

THE MINISTER OF AGRICULTURE First Defendant

RURAL DEVELOPMENT AND

LAND REFORM

THE ETHEKWINI MUNICIPALITY Second Defendant

THE REGIONAL LAND CLAIMS COMMISSIONER Participatory party

KWAZULU-NATAL

JUDGMENT

NCUBE AJ

ASSESSOR: PROFESSOR SS LUTHULI

Introduction

[1] This is an action for the restitution of rights in land in terms of the Restitution of Land Rights Act (“the Act”). The matter comes before court on Referral in terms of section 14(1) of the Act.[1] The affected properties are:

1.1. Subdivision 1 of Portion L1 of subdivision H of Remainder of Lot 1.

1.2. Subdivision 1 of Portion D1 of Subdivision G presently registered as Portion 7 of ERF 27, Durban North.

1.3. Subdivision X of sub 1 of Lot 5 on the North bank of the Umgeni River.

1.4. Lot 21 of Subdivision L of the Remainder of Lot a. b. c. d. later subdivided to form Sub C of 21 of Lot L of a. b. c. d of Lot 1 No 1550 presently registered as Portion 17 of Portion 6 of Lot 19, Durban North.

[2] The First Defendant, the Minister of Agriculture, Rural Development and Land Reform (“the Minister”) did not file a response to the Referral and she accordingly does not participate in these proceedings. The Regional Land Claims Commissioner KwaZulu-Natal is participating. The Second Plaintiff seeks restoration of two of the above mentioned properties. Those are

a) “The school outfield property,” historically described as Portion 1 of Sub D1 of Lot G Lot P North Bank at 40 Riverside Road. It is now described as Portion 7 (of 4) of ERF 27 Durban North. This property remains vacant and it is undeveloped. It forms part of the sports field of Durban North College. It is owned by the government of South Africa. This property was expropriated on 27 April 1967. Only R2150.00 was paid as compensation.

b) “The Cemetery Property,” historically known as Sub C of Lot 21 of Subdivision L of the Remainder of Lot a. b. c. d. of Lot 1 situated at 94 Prospect Hall road. It is now described as Portion 17 (of 6) of Lot 19, Durban North. This property is still vacant and it is undeveloped. It is owned by Department of Human Settlements. Plaintiff seek financial compensation in respect of the rest of properties.

Evidence

[3] Mr Goolam Mohamed Soofie (“Goolam”) testified. In 1896, his great grandfather Hajee Shah Goolam Mohamed arrived in Durban from India. He was a Mohamedian Priest. He was commonly known as Soofie Saheb. I shall refer to him as “Soofie.” Between 1896 and 1913, Soofie purchased all the properties which are the subject of this action. Soofie had seven sons. Goolam is from the second son and he is the fourth generation from Soofie. Goolam testified that the properties were purchased for purposes of establishing Mosques and other facilities which go with Mosques like Madressa and soup kitchens. Soofie died in 1911, Soofie had established 12 Mosques, 14 schools, 14 orphanages, drug and alcohol rehabilitation and counselling centres. There was a soup kitchen at each Mosque.

[4] Some of the entities mentioned in paragraph 3 above were established on the four properties which Soofie purchased at 40 Riverside Road. Those are the properties mentioned in para 1.1 to 1.4 of this judgment. Goolam also testified in length about the practice of Sufism which takes place at their institutions, which basically concentrates on charity and humanitarianism. These institutions were self-sustaining. Vegetable gardens were grown on the banks of the Umgeni River. Entrance to the complex could be gained through the grand entrance with several stories high.

[5] Mr Goolam testified, further that in 1908 Soofie acquired a further property known as Subdivision X of Sub 1 of Lot 5 North banks of the Umgeni River. That property, was during the trial, referred to as the Mandalay Road Property. On 29 July 1910, a property described as Lot 21 of Subdivision L of Lot a. b. c. d of Abdul Rahim Sadek, was transferred to Mr Soofie in trust. That land was during the trial referred to as the “cemetery land.” Plaintiff asks for restoration of a portion of that land. That is the portion which forms the vacant land west of the cemetery which extends up to Prospect Hall Road. That land was expropriated from the Trust in 1991. The Trust was given compensation at an amount of R114 000.00 for that expropriation. During the inspection in loco it was clear that the cemetery is now full. The plaintiffs seek restoration of the empty space in order to extend the cemetery further and to build ablution facilities.

[6] All the properties under claim were expropriated by the Apartheid government in terms of the Community Development Act[2] and transferred into the Community Development Board. Expropriation occurred from 1965 up to 1972. Compensation for three (3) of the properties was paid in 1991 by way of a settlement. Plaintiffs are satisfied just and equitable compensation was paid in 1991 in respect of those properties in respect of which a settlement was reach. Those two properties of the cemetery, Lot 20 and the Western Portion of the Lagoons. Plaintiffs do not seek further restitution in respect of those two portions.

[7] The second witness for the Plaintiffs was Allan Robert Stephenson (“Mr Stepheson”). Mr Stephenson is a qualified and a very experienced valuer. Mr Stephenson testified about the valuation of the Plaintiffs properties, both at the time of dispossessions and the present value. Mr Stephenson handed his valuations up to the court. Based on Mr Stephenson’s calculations, the State’s valuer Mr Clive Lang (“Mr Lang”) did his own fresh calculations. On the third day of the trial, valuers and all other parties reached consensus under compensation.

[8] The parties agreed that the total present day value of the three properties in respect of which compensation is claimed is R2 678 709.00. Those properties are Lagoon East, Mandalay Road property and the school outfield. Parties agreed further that the total amount of compensation received on the date of dispossession, in present day value was R501 827.00. The agreement was that the total compensation of R501 827.00 was to be deducted from the total under compensation amount of R2 176 882.00 it must be borne in mind that Plaintiffs also seek restoration of the cemetery portion. For that portion, Plaintiffs were paid compensation of R114 00. 00 in 1991.

[9] Experts agreed in their joint minute that the amount of R114 000.00 compensation paid in 1991, escalated by CPI, in today’s value is R712 500.00. The Act empowers this court, in restitution of rights in land to make various orders.[3] The court can order the Plaintiffs to refund the amount of R114 000.00 which they received as compensation. The court can order the Plaintiffs to pay the present day value of R114 000.00 which will be R712 500.00. The court can also make an order for the payment of any amount which the court finds to be just and equitable.

Issues

[10] Parties having agreed on most of the issues; the remaining issues will be whether the Plaintiffs are entitled to restoration of the cemetery and the school outfield properties. If those properties are to be restored the court will have to determine whether the Plaintiffs should be ordered to make any payment before the right to those properties is restored and to determine the amount to be paid and manner of payment.

The law

[11] Section 25(7) of the Constitution of the Republic of South Africa,[4] provides:

“A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.”

Pursuant to the provisions of section 25(7) of the Constitution; Parliament has enacted the Restitution of Land Rights Act,[5] (“the Act”). The Act defines the phrase “restitution of a right in land” as meaning (a) the restoration of a right in land; or (b) equitable redress. In turn, the phrase “restoration of a right in land” is defined as meaning “return of a right in land or a portion of land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices.” “Equitable redress” is defined as meaning “any equitable redress, other than the restoration of a right in land, arising from the dispossession of a right in land after 19 June 1913... including- (a) the granting of an appropriate right in alternative State-owned land, (b) the payment of compensation…”

[12] In Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd[6] the Constitutional Court held that:

“the Restitution Act must be interpreted purposively because it is remedial legislation umbilically linked to the Constitution when interpreting it, the spirit, purport and objects of the Bill of Rights must be promoted.”

In Mphela v Haakdoornbult Boerdery CC[7] Mphathi AJ expressed himself in the following terms:

“It seems to me therefore that where land which was the subject of a dispossession as a result of past discriminatory laws is claimed, and the claim is not barred by section 2(2) of the Act, the starting point is that the whole of the land should be restored, save where restoration is not possible due to compelling public interest considerations.”

In Florence v Government of Republic of South Africa[8] Van Der Westhuizen J said:

“In Mphela this court held that “the starting point is that the whole of the land should be restored, save where restoration is not possible due to compelling public interest considerations.” This recognizes the primary of restoration. Equitable redress, including in the form of financial compensation, is generally ‘second prize.’”

With these sentiments it seems to us that where possible the dispossessed land should be restored. Where restoration is not the form of financial compensation should be considered.

[13] If financial compensation as a form of equitable redress is considered, the amount must be sufficient to make up for what was taken away at the time of dispossession. In many instances, there will be a possibility of over compensation where restoration is ordered whilst the claimant is at the same time allowed to keep the compensation he received at the time of expropriation. However, in Naakdoornbult Boerdery CC and Others v Mphela and Others[9], the Supreme Court of Appeal held that:

“the Restitution Act does not exclude a measure of over-compensation. However, it was confirmed that this court has a wide discretion in these matters. This court can order the restoration of the dispossessed land, whilst at the same time allowing the claimant to keep the amount of money which he received as compensation.”

Solatium

[14] Plaintiffs claim compensation for solatium in respect of the expropriations. Solatium is compensation awarded for injury to the feelings. We were told about all the building that were destroyed. We were shown the video of destruction of the buildings. Plaintiffs were made to stand there and watch their buildings being destroyed. No solatium was paid in respect of any of the expropriations. It is not in dispute that Plaintiffs suffered great emotional trauma as a result of these expropriations. The Riverside institution was firmly established and it had been in operation for 70 years, when expropriation took place in1965. The grand entrance from Riverside was beautiful and very strong, to the extent that it had to be dynamited in order to bring it down. The madrassa, orphanage and soup kitchen were all destroyed.

[15] What remains for this court to determine is the amount of compensation for solatium which is to be awarded. Mr Havenga, counsel for the Plaintiffs argued that the amount should be calculated in terms of the Expropriation Act.[10] The Expropriation Act prescribes a fixed formula in terms of which solatium should be determined.[11] According to that formula, solatium should be 10% on the first R100 000.00 which gives R10 00.00. It is 5% on the next R400 00.00 up to R500 00.00 which gives R20 000.00. Then it is 3% on the amount where it exceeds R500 and anything below R1000 000.00 which gives us another maximum of R15 000.00 and then 1% for anything above R1000 000.00. All in all, the total is capped at R55 000.00.

[16] The parties are in agreement that the total value of the school outfield, the lagoon and the Mandalay Road- altogether would be R2 678 709.00. Therefore, in terms of the formula prescribed in the Expropriation Act, the maximum amount of compensation for solatium, would be R55 000.00. Mrs Manicum, counsel for the Regional Land Claims Commissioner KwaZulu-Natal (“RLCC”) argued that the Expropriation Act is inapplicable in this case and it will be inappropriate to use the formula prescribed in that Act. She submitted that the court can use its own discretion to fix the amount of compensation as solatium.

[17] I agree that the Expropriation Act is not applicable in this case. Section 12(1) of the Expropriation Act provides:

“The amount of compensation to be paid in terms of this Act to an owner in respect of property expropriated in terms of this Act[12] or in respect of the taking in terms of this Act[13] of a right to property, shall not, subject to the provisions of subsection (2), exceed-….”

The expropriation concerned in this case, did not occur in terms of our present Expropriation Act. The expropriation in question took place in terms of the Community Development Act 69 of 1955. Therefore, the Expropriation Act cannot be used to calculate the amount of compensation for solatium in this case.

[18] In Minister of Land Affairs and Another[14] Dodson J, as he then was, said

“The discriminatory component of forced removals was a source of enormous psychological harm on its own. Family life was interrupted. The education of children was interrupted. The economic and financial impact was often devastating. The estrangement which it caused between the different race groups is something which will haunt this country for generations.”

[19] The Act does not make provisions for the award of compensation for solatium. Consequently, the court is at liberty to award just and equitable amount for solatium.

In the exercise of discretion, in the determination of compensation for solatium in Harmanus v Department of Land Affairs[15], Gildenhuys J expressed himself thus:

“When determining the award for solatium, I considered the possibility of adding on a fixed percentage to the amounts awarded under the other heads of claim. I decided against it. A claimant who receive a small amount under the other heads of claim not necessarily suffer less hardship than claimant who receive a large amount. The opposite could well be true. A lump sum amount which may differ from case to case as the circumstances of each case require is more appropriate must also emphasize that the award of solatium is not automatic in every case.”

[20] In Florence Dodgen v Broadcount Investments (Pty) Ltd[16] Carelse J expressed herself in the following terms:

“I am nevertheless required to balance the interests of the Florence family and the interests of the State from where the money to pay solatium will come from. The purpose of the award is symbolic. It does not attempt to provide full redress for the family’s emotional suffering, but acknowledges the dignity and worth of the claimants. In my view an amount of R10 000.00, is appropriate.”

[21] Based on the sentiments expressed in Florence case above Mrs Manicum, suggested that an amount of R40 000.00 will be appropriate. In my view the trauma suffered by the Plaintiffs in this case was enormous. Buildings destroyed were very important, not only to the Plaintiffs but to the whole community of all races. The soup kitchen was of sentimental value to the poor and marginalised. The Madressa was used by children of all races. Taking all these actions into consideration, in my view, an amount of R45 000.00 will be the most appropriate in the circumstances of this case.

Costs

[22] This leads me to the question of costs. Concerning costs in this court the starting point of exercise id section 35(2)(g) of the Act. That section provides:

“The Court may in addition to the orders contemplated in subsection (1) –

(a) determine conditions which must be fulfilled before a right in land can be restored or granted to a claimant;

(b) if a claimant is required to make any payment before the right in question is restored or granted, determine the amount to be paid and the manner of payment, including the time for payment;

(c) if the claimant is a community, determine the manner in which the rights are to be held or the compensation is to be paid or held;

(d) ……….

(e) give any other directive as to how its orders are to be carried out, including the setting of time limits for the implementation of its orders;

(f) make an order in respect of compensatory land granted at the time of the dispossession of the land in question;

(fA) make appropriate orders to give effect to any agreement between the parties regarding the finalisation of the claim;

(g) make such orders for costs as it deems just, including an order for costs against the State or the Commission.”

The Plaintiffs seek punitive costs against the Government Defendants based on the manner in which the Government Defendants handled the matter. Mr Havenga argued that in the normal cause of events, the Commission would have been expected to assist the Plaintiffs with their claims. In this case, Plaintiffs received no assistance from the Commission. The Commission or the RLCC was reluctant to refer the case to court for adjudication until the Plaintiffs obtained a mandamus. Further, he argued the Commission oppose the claim. Mrs Manicum agreed that a costs order is to be made but on party and party scale not on attorney and client scale suggested by Mr Havenga.

[23] It is customary in this court not to award costs unless there are special circumstances deserving the award of costs. In Moloto Community v Minister of Rural Development and Land Reform[17], Canca AJ said:

“It is now settled that this court only make costs orders where there are special circumstances or where a private litigant has obtained substantial success in proceedings instituted against the State.”

Likewise, in Biowatch Trust v Registrar Genetic Resources and Others [18] Sachs J held:

“…. powerful reasons must exist for a court not to award costs against the State in favour of a private litigant who achieves substantial success in proceedings brought against it.”

[24] In my view the government Defendants did not seriously oppose the Plaintiffs’ claim. It is true that it took time for the RLCC to refer this matter to this court for adjudication. However, punitive costs on those basis, are not justified more so, since Plaintiffs were awarded costs when the RLCC was forced, by way of mandamus to refer the case to court. The RLCC does not oppose the ward of costs on party and party scale. Further, there is no doubt that Plaintiffs have achieved substantial success in this litigation.

Order

[25] In the result, I make the following orders:

1. It is declared that the Second Plaintiff was dispossessed of its rights in land as contemplated in the Restitution of Land Rights Act, 1994 in respect of the following properties:

1.1. Subdivision 1 of Portion L1 of Subdivision H of Remainder of Lot 1 of which it became the owner in 1896;

1.2. Subdivision 1 of Portion D1 of Subdivision G presently registered as Portion 7 of ERF 27, Durban North of which it became the owner in 1896;

1.3. Subdivision X of Sub 1 of Lot 5 on the North bank of the River Umgeni of which it became the owner on 15 April 1908;

1.4. Lot 21 of Subdivision L of the Remainder of Lot a. b. c. d, later subdivided to form Sub C of 21 of L of a. b. c. d. of Lot 1 No 1550, presently registered as Portion 17 (of Portion 6) of Lot 19, Durban North.

2. The Second Plaintiff is granted restoration of the following land in terms of section 35(1)(a) of the Restitution of Land Rights Act, 1994 namely:

2.1. Portion 7 of ERF 27, Durban North;

2.2. Portion 17 (of Portion 6) of Lot 19, Durban North.

3. The First Defendant is ordered in terms of section 35(1)(a) of the Restitution of Land Rights Act, 1994 to acquire or expropriate if necessary the land referred to in paragraph 2 and to transfer such land to the Second Plaintiff in full ownership within four (4) months from the date of this order.

4. The Plaintiffs are awarded equitable redress in the form of financial compensation in respect of dispossessions referred to in paragraph 1 above in the amount of R2 176 882.00 less any amount referred to in paragraph 5 below. The First Defendant is ordered to pay such amount to the Plaintiffs within two 2 months from the date of this order, into the account of the Plaintiffs ‘attorney A Q Osman Incorporated.

5. In terms of section 35(2)(b) of the Restitution of Land Rights Act, 1994, the Plaintiffs are required to make payment in the sum of R114 000.00 to the First Defendant in respect of the restoration of Portion 17 (of Portion 6) of Lot 19 Durban North. It is further ordered that the said amount is to be set off against the amount of financial compensation which the First Defendant is ordered to pay to the Plaintiffs in term so f paragraph 4 above.

6. The First Defendant is ordered to pay solatium to the Plaintiffs in the sum of R45 000.00 such amount to be paid into the account of the Plaintiffs’ attorney, A Q Osman Inc. within two 2 months from the date of this order.

7. The First Defendant and the Participating party namely the Regional Land Claims Commissioner KwaZulu-Natal, are ordered jointly and severely to pay the costs incurred by the Plaintiffs on party and party scale, one paying, the other to be absolved, such costs to include the following:

7.1. The employment of Senior Counsel and an attorney;

7.2. The costs of Senior Counsel and attorney incurred in respect of consultations with the Plaintiffs and the Plaintiffs’ expert witness Mr Stephenson, including all travelling and accommodation expenses and costs in respect of travelling time as determined by the Tax Master;

7.3. The qualifying fees and expenses of the expert witness, Mr A Stephenson, such costs to include the costs of visiting the various archives, copying of discovered documents, inspections in loco conducted by him, the consultations by him with the Plaintiffs to obtain relevant information and documentation to comply his report, the drafting of the report, consultation time with the Plaintiff’s counsel and attorney, the attendance of various joint meetings with the Regional Land Claims Commissioner’s expert witness and the attendance fees for the trial.

7.4. All costs incurred by the Plaintiff’s Attorney and Correspondent Attorney where applicable, in preparing, collating, copying, indexing, paginating all court documents, the courier costs of such documents to the Registrar and the court and the making of copies of the bundles and files for use in court.

7.5. The outstanding taxed costs of the Correspondent Attorney in respect of the mandamus orders of 17 October 2017 and 21 September 2018, to

be paid into the Trust account of the Plaintiff’s Attorney, A Q Osman Inc. within ten (10) days from the date of this order.

M T NCUBE

Acting Judge of the Land Claims Court of

South Africa, Randburg

I agree,

SS LUTHULI

Assessor

Date judgment reserved: 06 May 2021

Date judgment delivered: 06 July 2021

Appearances

For the Plaintiff: Advocate Havenga

Instructed by: Moolman & Pienaar Incorporated Potchefstoom

For the Defendant: Non-appearance

For the Participating party: Ms Manicum

Instructed by: State Attorney

[1] Act 22 of 1994.

[2] Act 69 of 1955

[3] See section 35(2)

[4] Act 108 of 1996

[5] Act 22 of 1994

[6] [2007] ZACC 12; 2007 (6) SA 199 (CC) para 53

[7] [2008] ZACC 5; 2008 (4) SA 488 (CC) para 32

[8] 2014 (6) SA 456 (CC) para 46

[9] 2007 (5) SA 596 (SCA)

[10] Act 63 of 1975

[11] See section 12(2) of Act 63 of 1975

[12] My own emphasis

[13] My own emphasis

[14] [1999] 1 ALL SA 608 (LCC) para 17

[15] 2001 (1) SA 1030

[16] (LCC 148/08) [2012] ZALCC 11 (5 June 2012)

[17] 2019 (3) SA 523 (LCC) para 30

[18] 2009 (6) SA 232 CC para 24