Hoogenboezem v Minister of Rural Development and Land Reform and Another (LCC 68/2005) [2013] ZALCC 5 (10 April 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case No.: LCC 68/2005

In the matter between:

ARIE PETERS HOOGENBOEZEM ..............................................................................Plaintiff

And

THE MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM .............................................................................................................................First Defendant

THE REGIONAL LAND CLAIMS COMMISSIONER

LIMPOPO PROVINCE .......................................................................................................................Second Defendant

Coram : MEER AJP

Heard : 2-3 May 2012, 13-14 March 2013,10 April 2013

Delivered ; 10 April 2013

JUDGMENT MEER AJP [1] The plaintiff lodged a claim for restitution of rights in land in respect of the farm Memaspruit 75 LS, formerly known as Buiksloot 72 LS (“the farm”), situated in the district of Pietersburg, Limpopo. The basis of his claim was that he was dispossessed of a right in land as a result of a past racial law, the Development Trust and Land Act, No 18 Of 1936 (“the

Development Act”), when his farm was forcibly sold for a sum which did not constitute just and equitable compensation, as provided for in Section 2 of the Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”), to the South African Development Trust (“the Trust”). The purpose of the sale was for incorporation of the farm into the Lebowa Homeland after the area in which it was situated, was declared to be a released area for occupation by Black persons only in terms of the Development Act. The plaintiff’s claim is for equitable redress in the form of financial compensation. [2] The defendants opposed the claim inter alia on the basis that the farm was not dispossessed as the sale thereof occurred between a willing buyer and a willing seller. [3] The parties agreed that the Court would first determine as a preliminary issue whether there had been a dispossession of a right in land as a consequence of the acquisition of the plaintiff’s farm by the Trust. Thereafter, should the need arise, the question whether just and equitable compensation had been paid as provided for at Section 2 of the Restitution Act, would be considered. [4] Two witnesses testified. They were the plaintiff himself and Mr Hendrick Schalk Pienaar who was an official in the employ of the Department of Native Affairs, and involved in the acquisition of the plaintiff’s and other farms in the districts of Pietersburg and Soutpansberg by the Trust, for consolidation into the Lebowa Homeland. The defendants produced no witnesses. After the testimony of the witnesses for the plaintiff, the matter was postponed for argument. The plaintiff filed heads of argument. The defendants did not file heads of argument. Instead, a day before argument was to be heard, the defendants filed a draft order in which they conceded that there had been a dispossession. The draft order moreover proposed that costs be reserved, a proposal which the plaintiff did not accept. The parties agreed that there would be argument for a determination on the issue of costs only. [5] Mr Grobbelaar for the plaintiff argued for the application of the approach to costs orders in constitutional matters, as articulated

by the Constitutional Court in Biowatch Trust v Registrar Genetics Resources and Others 2009 (6) SA 232 (CC) at paragraph 22, to the effect that in litigation between the State and a private party seeking to assert a constitutional right, the state should ordinarily pay the costs if it loses, and that if it wins each party should bear its own costs. [6] In Biowatch supra Sachs J emphasised at paragraph 23 that the rationale for this general rule was threefold: “In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional

rights... ...Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations... ... Thirdly, it is the State that bears primary responsibility for ensuring that both the law and State conduct are consistent with the constitution.” At paragraph 24 Sachs J went on to clarify: “At the same time, however, the general approach of this Court to costs between private parties and the State, is not unqualified. If an application is frivolous or vexatious, or in any other way manifestly inappropriate, the applicant should not expect that the worthiness of its cause will immunise it against an adverse cost award. Nevertheless, for the reasons given above, courts should not lightly turn their backs on the general approach of not awarding costs against an unsuccessful litigant in proceedings against the State, where matters of genuine constitutional import arise. Similarly, particularly 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” [7] It is so that litigation concerning restitution of rights in land falls within the genre of Constitutional litigation. See In re Midlands North Research Group and Others and Kusile Land Claims Committee 2010 (5) SA 57 (LCC), paragraphs 16 and 17; See also Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 LCC at paragraph 35; It is also so that restitution claims are claims against the State. See Kusile supra paragraph 23. [8] It has been the practice of this Court not to make costs orders in restitution cases except in special or exceptional circumstances

which warrant cost orders. This practice, as Gildenhuys J said in Kusile supra at paragraph 15, “is based on the litigation being in the genre of social litigation or being public interest litigation. The practice conforms with the general rule applicable in constitutional litigation that in the absence of special circumstances, an unsuccessful litigant ought not to have to pay his opponent's costs.” This approach which applied also to the State's liability for costs in restitution cases has, as Gildenhuys further commented in Kusile at paragraph 37, “been overriden by the points of departure set forth in the Biowatch case. It is no longer necessary for there to be exceptional circumstances before costs can be awarded against the State in land restitution litigation.” [9] The Biowatch approach as adopted in Kusile and Quinella supra has been followed in other recent cases of this Court. See Greater Tenbosch Land Claims Committee & Others V Regional Land Claims Commissioner & Others LCC74/2006 dated 15 September 2010; Bongo Safari’s (Pty) Ltd & Others v Minister of Rural Development and Land Reform Si Others LCC250/2009; Makhukhuza Community Claimants LCC04/2009, [10] There must now, as stipulated in Biowatch supra, exist particularly powerful reasons for a court not to award costs against the state in favour of a successful private litigant. Such particularly powerful reasons have not been demonstrated by the State defendants for costs not to be awarded against them. Nor am I able to find any. In no way was the plaintiffs claim frivolous, vexatious or manifestly inappropriate. The defendant's concession on the merits also suggests there are no particularly powerful reasons not to award a cost order against them. [11] Mr Gwala for the defendants submitted that costs should be reserved until after a determination on whether the plaintiff had received just and equitable compensation. The fact that the plaintiff must still prove that just and equitable compensation was not received upon dispossession is not in my view a reason to reserve the costs of the preliminary discreet hearing that has taken place on dispossession. This is especially so because of the stark similarities between this matter and the matter of Randall and Another v Minister of Land AffairsKnott and Another v Minister of Land Affairs [2002] ZALCC 18 (10 May 2002) in which, as is evident the first defendant before us was also a party, as was the relevant Regional Land Claims

Commissioner, and about which the defendants before us ought to have been appraised. In Randall this Court found that sales of farms which were prompted by a proclamation under the Development Act that declared the farms to be in a released area, were not entered into voluntarily, but constituted dispossessions. [12] The same Mr Pienaar who testified before us gave very similar testimony in Randall to his testimony before us concerning the context in which the sales occurred after farms like the plaintiff's in the Pietersburg area, were earmarked for acquisition by the Trust. The defendants were moreover forewarned of Mr Pienaar's evidence in this case on receipt of a summary thereof before the hearing. This being so, their continued opposition might even be considered vexatious and it can be said that the concession on the merits ought to have been made without the necessity of the plaintiff having to incur the costs occasioned by the hearing. In adopting the stance it did the State ran the risk of an adverse cost order being awarded against it. Given the circumstances, there is in my view no reason why the State defendants should not pay the costs of the plaintiff, the successful litigant at the completion of the preliminary hearing on dispossession. I accordingly order as follows: 1. The plaintiff was dispossessed of rights in land under the Restitution of Land Rights Act, No 22 of 1994 in respect of Portion 3 of the farm Buiksloot 72, Registration Division LS, Limpopo Province; 2. The determination of the issue as to whether the plaintiff received equitable redress upon dispossession is postponed sine die; 3. The first and second defendants are ordered, jointly and severally, to pay the plaintiff’s taxed costs on the scale as between party and party, inclusive of: 3.1. the costs of employing and reserving the plaintiffs expert witness, Mr H S Pienaar, the costs of research and inspections, drafting of the summary of his testimony, consultations and preparation for trial; 3.2. the costs of the hearing on the issue of dispossession, including pretrial conferences, preparation and consultations; 3.3. the necessary and reasonable travelling and accommodation costs of Mr Pienaar; 3.4. the necessary and reasonable costs incurred by the plaintiff’s attorney pertaining to all historical and archival material

contained in the bundles prepared for trial purposes as well as the compilation, preparation, indexing and pagination of bundles. Y S MEER Acting Judge President Land Claims Court Y SIDLOVA Acting Judge President Land Claims Court For the plaintiff: Mr P Grobbelaar, Peet Grobbelaar Attorneys, Pretoria For the defendants: Mr M Gwala, instructed by the State Attorney, Pretoria

JUDGMENT

MEER AJP

[1] The plaintiff lodged a claim for restitution of rights in land in respect of the farm Memaspruit 75 LS, formerly known as Buiksloot 72 LS (“the farm”), situated in the district of Pietersburg, Limpopo. The basis of his claim was that he was dispossessed of a right in land as a result of a past racial law, the Development Trust and Land Act, No 18 Of 1936 (“the

Development Act”), when his farm was forcibly sold for a sum which did not constitute just and equitable compensation, as provided for in Section 2 of the Restitution of Land Rights Act No 22 of 1994 (“the Restitution Act”), to the South African Development Trust (“the Trust”). The purpose of the sale was for incorporation of the farm into the Lebowa Homeland after the area in which it was situated, was declared to be a released area for occupation by Black persons only in terms of the Development Act. The plaintiff’s claim is for equitable redress in the form of financial compensation.

[2] The defendants opposed the claim inter alia on the basis that the farm was not dispossessed as the sale thereof occurred between a willing buyer and a willing seller.

[3] The parties agreed that the Court would first determine as a preliminary issue whether there had been a dispossession of a right in land as a consequence of the acquisition of the plaintiff’s farm by the Trust. Thereafter, should the need arise, the question whether just and equitable compensation had been paid as provided for at Section 2 of the Restitution Act, would be considered.

[4] Two witnesses testified. They were the plaintiff himself and Mr Hendrick Schalk Pienaar who was an official in the employ of the Department of Native Affairs, and involved in the acquisition of the plaintiff’s and other farms in the districts of Pietersburg and Soutpansberg by the Trust, for consolidation into the Lebowa Homeland. The defendants produced no witnesses. After the testimony of the witnesses for the plaintiff, the matter was postponed for argument. The plaintiff filed heads of argument. The defendants did not file heads of argument. Instead, a day before argument was to be heard, the defendants filed a draft order in which they conceded that there had been a dispossession. The draft order moreover proposed that costs be reserved, a proposal which the plaintiff did not accept. The parties agreed that there would be argument for a determination on the issue of costs only.

[5] Mr Grobbelaar for the plaintiff argued for the application of the approach to costs orders in constitutional matters, as articulated

by the Constitutional Court in Biowatch Trust v Registrar Genetics Resources and Others 2009 (6) SA 232 (CC) at paragraph 22, to the effect that in litigation between the State and a private party seeking to assert a constitutional right, the state should ordinarily pay the costs if it loses, and that if it wins each party should bear its own costs.

[6] In Biowatch supra Sachs J emphasised at paragraph 23 that the rationale for this general rule was threefold:

“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional

rights...

...Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations...

... Thirdly, it is the State that bears primary responsibility for ensuring that both the law and State conduct are consistent with the constitution.”

At paragraph 24 Sachs J went on to clarify:

“At the same time, however, the general approach of this Court to costs between private parties and the State, is not unqualified. If an application is frivolous or vexatious, or in any other way manifestly inappropriate, the applicant should not expect that the worthiness of its cause will immunise it against an adverse cost award. Nevertheless, for the reasons given above, courts should not lightly turn their backs on the general approach of not awarding costs against an unsuccessful litigant in proceedings against the State, where matters of genuine constitutional import arise. Similarly, particularly 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”

[7] It is so that litigation concerning restitution of rights in land falls within the genre of Constitutional litigation. See In re Midlands North Research Group and Others and Kusile Land Claims Committee 2010 (5) SA 57 (LCC), paragraphs 16 and 17; See also Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Others 2010 (4) SA 308 LCC at paragraph 35; It is also so that restitution claims are claims against the State. See Kusile supra paragraph 23.

[8] It has been the practice of this Court not to make costs orders in restitution cases except in special or exceptional circumstances

which warrant cost orders. This practice, as Gildenhuys J said in Kusile supra at paragraph 15,

“is based on the litigation being in the genre of social litigation or being public interest litigation. The practice conforms with the general rule applicable in constitutional litigation that in the absence of special circumstances, an unsuccessful litigant ought not to have to pay his opponent's costs.”

This approach which applied also to the State's liability for costs in restitution cases has, as Gildenhuys further commented in Kusile at paragraph 37,

“been overriden by the points of departure set forth in the Biowatch case. It is no longer necessary for there to be exceptional circumstances before costs can be awarded against the State in land restitution litigation.”

[9] The Biowatch approach as adopted in Kusile and Quinella supra has been followed in other recent cases of this Court. See Greater Tenbosch Land Claims Committee & Others V Regional Land Claims Commissioner & Others LCC74/2006 dated 15 September 2010; Bongo Safari’s (Pty) Ltd & Others v Minister of Rural Development and Land Reform Si Others LCC250/2009; Makhukhuza Community Claimants LCC04/2009,

[10] There must now, as stipulated in Biowatch supra, exist particularly powerful reasons for a court not to award costs against the state in favour of a successful private litigant. Such particularly powerful reasons have not been demonstrated by the State defendants for costs not to be awarded against them. Nor am I able to find any. In no way was the plaintiffs claim frivolous, vexatious or manifestly inappropriate. The defendant's concession on the merits also suggests there are no particularly powerful reasons not to award a cost order against them.

[11] Mr Gwala for the defendants submitted that costs should be reserved until after a determination on whether the plaintiff had received just and equitable compensation. The fact that the plaintiff must still prove that just and equitable compensation was not received upon dispossession is not in my view a reason to reserve the costs of the preliminary discreet hearing that has taken place on dispossession. This is especially so because of the stark similarities between this matter and the matter of Randall and Another v Minister of Land AffairsKnott and Another v Minister of Land Affairs [2002] ZALCC 18 (10 May 2002) in which, as is evident the first defendant before us was also a party, as was the relevant Regional Land Claims

Commissioner, and about which the defendants before us ought to have been appraised. In Randall this Court found that sales of farms which were prompted by a proclamation under the Development Act that declared the farms to be in a released area, were not entered into voluntarily, but constituted dispossessions.

[12] The same Mr Pienaar who testified before us gave very similar testimony in Randall to his testimony before us concerning the context in which the sales occurred after farms like the plaintiff's in the Pietersburg area, were earmarked for acquisition by the Trust. The defendants were moreover forewarned of Mr Pienaar's evidence in this case on receipt of a summary thereof before the hearing. This being so, their continued opposition might even be considered vexatious and it can be said that the concession on the merits ought to have been made without the necessity of the plaintiff having to incur the costs occasioned by the hearing. In adopting the stance it did the State ran the risk of an adverse cost order being awarded against it. Given the circumstances, there is in my view no reason why the State defendants should not pay the costs of the plaintiff, the successful litigant at the completion of the preliminary hearing on dispossession. I accordingly order as follows:

1. The plaintiff was dispossessed of rights in land under the Restitution of Land Rights Act, No 22 of 1994 in respect of Portion 3 of the farm Buiksloot 72, Registration Division LS, Limpopo Province;

2. The determination of the issue as to whether the plaintiff received equitable redress upon dispossession is postponed sine die;

3. The first and second defendants are ordered, jointly and severally, to pay the plaintiff’s taxed costs on the scale as between party and party, inclusive of:

3.1. the costs of employing and reserving the plaintiffs expert witness, Mr H S Pienaar, the costs of research and inspections, drafting of the summary of his testimony, consultations and preparation for trial;

3.2. the costs of the hearing on the issue of dispossession, including pretrial conferences, preparation and consultations;

3.3. the necessary and reasonable travelling and accommodation costs of Mr Pienaar;

3.4. the necessary and reasonable costs incurred by the plaintiff’s attorney pertaining to all historical and archival material

contained in the bundles prepared for trial purposes as well as the compilation, preparation, indexing and pagination of bundles.

Y S MEER

Acting Judge President

Land Claims Court

Y SIDLOVA

For the plaintiff:

Mr P Grobbelaar,

Peet Grobbelaar Attorneys, Pretoria

For the defendants:

Mr M Gwala,

instructed by the State Attorney, Pretoria