Koloko N.O v Minister of Agriculture, Land Reform & Rural Development and Others (LCC85/2020) [2022] ZALCC 39 (16 November 2022)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC85/2020

Before: The Honourable Acting Judge President Meer

Heard on: 10 to 13 October in Verulam, KZN

Delivered on: 16 November 2022

REPORTABLE: YES/ NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/ NO

In the matter between:

THABO SHADRACK KOLOKO N.O. Plaintiff

and

MINISTER OF AGRICULTURE, LAND REFORM &

RURAL DEVELOPMENT

First Defendant

THE REGIONAL LAND CLAIMS COMMISSIONER,

KWAZULU-NATAL Participating Party

HENK ZAAL TRUST Second Defendant

JUDGMENT

MEER AJP.

[1] This is a claim for restitution of rights in land in terms of section 2 of the Restitution of Land Rights Act 22 of 1994 (“the Act”). The Plaintiff seeks physical restoration of Portion 9 of the farm W[....] NO [....] in K[....], KwaZulu-Natal, in extent 23.1569 hectares (hereinafter referred to as “Portion 9”). The Plaintiff claims that his maternal grandfather was dispossessed of the farm in 1972, as a result of the Native Trust and Land Act 18 of 1936, [i]and the Expropriation Act 55 of 1965, and that he did not receive just and equitable compensation at the time of dispossession.

The Parties

[2] The Plaintiff is the son of the late Nomsa Rosemary Potgieter, who lodged a land claim in respect of Portion 9 on 22 January 1996. Her claim form, completed at the office of the Regional Land Claims Commissioner, KwaZulu-Natal, indicates that she claimed in her capacity ‘per will, as heiress of my father’. The claim form lists the person who lost the right in land as Mr Paul Potgieter. Ms Nomsa Potgieter has since passed away and the Plaintiff, her son, was appointed as executor of her estate. He substituted her as Claimant/Plaintiff and asserts that he claims as a direct descendant in terms of section 2 (1) (c) of the Act.

[3] The First Defendant, the Minister of Agriculture, Land Reform and Rural Development, and the Participating Party, the Regional Land Claims Commissioner, KwaZulu-Natal, abide the decision of the court. They are cited in their official capacities. The First Defendant had offered the Plaintiff an amount of R1 140 000 as compensation, which offer was rejected, the Plaintiff asserting his right to physical restoration.

[4] The Second Defendant, the Henk Zaal Trust, is the owner of the farm. It conducts a farming business on various portions of the farm, including Portion 9. The Second Defendant admits that Paul Potgieter was dispossessed of the farm and did not receive just and equitable compensation. However, the Second Defendant challenges the standing of the Plaintiff and opposes the physical restoration of the farm.

[5] The matter was heard in the Verulam Magistrate’s Court, KwaZulu-Natal during 10 – 14 September 2022. Three witnesses testified for the Plaintiff. They were: the Plaintiff himself, Ms Eunice Mbuyisa, his aunt, and expert valuer Mr Alan Stephenson. Two expert witnesses testified for the Second Defendant, namely: valuer Mr Malcolm Gardner, and agricultural economist, Dr Phillip Theunissen.

Locus Standi of Plaintiff

[6] The Second Defendant’s challenge regarding standing was twofold. Firstly, referring to Nomsa Potgieter’s claim form, it was contended that section 2 of the Act does not permit a claim by an heiress, amongst the categories of persons entitled to claim restitution. Secondly, it was submitted a claim as a direct descendant in terms of section 2 (1) (c) was not permitted, as the Plaintiff had not produced an unabridged birth certificate showing that Nomsa Potgieter was the daughter of the late Paul Potgieter.

[7] On the aspect of locus standi the undisputed evidence of the Plaintiff was that:

7.1 He is the son of Nomsa Potgieter who lodged the claim, and he is executor of her estate in terms of letters of executorship issued on 1 July 2022. The dispossessed Paul Potgieter was his maternal grandfather. The will of the late Paul Potgieter refers to his mother as the daughter of Paul Potgieter and appointed her as the sole heir.

I pause to mention that the will was not disputed, as was pointed out by Mr Myeni for the Plaintiff. The fact that there was no evidence of its acceptance by the Master, or no liquidation and distribution account was adduced, factors referred to by Mr

Guldenpfenning for the Second Defendant, does not detract from this.

7.2 In a sworn statement of heirs dated 20 November 1995 Nomsa Rosemary Potgieter consented to the application for the restitution of land that belonged to her father.

7.3 He did not have an unabridged birth certificate of Nomsa Potgieter to show that she was the daughter of Paul Potgieter.

[8] Ms Eunice Mbuyisa testified that Nomsa Potgieter was the youngest daughter of Mr Paul Potgieter. Her evidence that she is the granddaughter of the late Paul Potgieter and the niece of the Claimant Nomsa Rosemary Potgieter, and resided with them on Portion 9, was not disputed.

[9] Mr Guldenpfenning, for the Second Defendant, submitted there was no evidence that the Claimant was a direct descendant, save for inadmissible hearsay evidence. As the Plaintiff was born in 1978, after the death of Paul Potgieter, and Ms Mbuyisa was born in 1951 and the Claimant in 1936, their evidence, he argued, carried no weight, as it is too remote in time, whilst conclusive evidence is available from the Department of Home Affairs. Section 30 of the Act, which permits the admissibility of hearsay evidence, did not, he submitted, contemplate the admissibility of evidence by hearsay which could be proved, and does not discard the best evidence rule.

[10] It does not logically follow from the birthdates of the Plaintiff and Ms Mbuyisa, that they would not know whether the Claimant was the daughter of Paul Potgieter. It would be somewhat unusual for the Plaintiff not to know who his mother’s father was, and, likewise, for Ms Mbuyisa not to know this, especially given that she lived with both Mr Potgieter and the Claimant on Portion 9. This is so regardless of when they were born. The Plaintiff and Ms Mbuyisa were both competent, honest and credible witnesses and, importantly, corroborated each other on the Claimant’s parentage. I consider their evidence to be clearly relevant, cogent, and admissible in terms of Sections 30 (1) and 30 (2) (a) of the Act, notwithstanding the absence of a birth certificate. These sections state:

‘30. Admissibility of Evidence-(1) The Court may admit any evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law.

(2) Without derogating from the generality of the aforegoing subsection, it shall be competent for any party before the Court to adduce-

(a) hearsay evidence regarding the circumstances surrounding the dispossession of the land rights or rights in question and the rules governing the allocation and occupation of land within the claimant community concerned at the time of such dispossession; . . .’

[11] I accordingly accept their evidence as proof that the Claimant was the daughter of Paul Potgieter. Their evidence is corroborated by the contents of the will, which describes the Claimant as the daughter of the deceased. The absence of an unabridged birth certificate does not detract from this.

[12] The claim form makes clear that Nomsa Potgieter described herself not simply as heiress, but ‘per will, as heiress of my father’. She clearly therefore claimed as a daughter and direct descendant. The evidence of the Plaintiff and Ms Mbuyisa, together with the will of the late Paul Potgieter, similarly undisputed, establishes clearly that Nomsa Potgieter was the daughter of the dispossessed, Paul Potgieter. In the circumstances there is no merit in the challenge to the standing either of the late Nomsa Potgieter, or that of the Plaintiff. The Plaintiff accordingly has the requisite locus standi.

Agreements on Valuations

[13] Two joint minutes of experts were prepared. The first of these, dated 26 September 2022, was signed by the valuers Mr Alan Stephenson, for the Plaintiff, and Mr Malcolm Gardiner, for the Second Defendant. They agreed that Mr Potgieter was undercompensated for his land.

[14] Paragraph 8 of the joint minute states: ‘both valuers agreed that it would be just and equitable that the current market values (de-escalated) represent the best indication of the market value and/or loss which the Claimants would have suffered at the date of dispossession. However this does not take into account the fact that the properties were improved. The state previously offered an amount of R16000.00 for portion 9 as at 1971. The offer appears to have been a fair one. The current value of R16000 escalated by the CPI equates to approximately R1,140000 which both valuers agree represents just and equitable compensation.’

[15] The minute records agreement by both valuers that physical restoration of Portion 9 is possible:

‘Both valuers agreed that a physical restoration of Portion 9 is possible without unduly disrupting the current farming operations, although it is recommended that the ± 1.8 hectare triangular portion west of the road not be restored but this could be replaced with a similar area on the Remainder of the property east of portion 9.’

[16] The second minute of experts, dated 11 October 2022, emanated from a further meeting of experts, which I directed. This was due to the condoned late introduction by the Second Defendant of the report by Dr Theunissen. I directed the experts to also consider the amount of compensation payable to the owner in the event of Portion 9 being expropriated and restored to the claimants. In that minute both expert valuers set the current day value of Portion 9 at R417 460. Their joint minute states

‘The Court directed the experts to consider the amount of compensation payable to the landowner in the event of portion 9 being expropriated

and/or restored to the claimants. Mr Stephenson indicated the range of values of the different land types at paragraph 200 of his report applying the higher level of value, the estimated current values from an agricultural point of view of portion 9 and an approximate 2ha square share in and to the remainder would be as follows:

21.1460ha veld grazing @R15 000/ha = R317 460.00

2ha arable land

@ R35 000/ha = R70 000.00

2ha grazing land

@R 15 000/ha = R30 000.00

(share in and to the Remainder)

Total Compensation

= R417 460.00

Mr Gardiner agreed with Mr Stephenson that these are higher levels of agricultural value but pointed out that portion 9 is in fact a subdivision in its own right and could be sold off as a smallholding and in his view a higher amount could be payable. Mr Stephenson pointed out that the landowner purchased portion 9 essentially as veld grazing and thus will be overcompensated if he were to be paid for it as a smallholding. Mr Theunissen is not a valuer thus did not express an opinion on this item.’

[17] The agreed value of the 1.8-hectare cultivated triangular portion, which the experts accepted should not be restored, is R70 000. The agreed value of portion 9 minus the triangular cultivated portion is R347 460.

[18] The agreed current day value of Mr Paul Potgieter’s use of the remainder of the farm Waag Alles, which adjoins portion 9, is R63 000.

[19] The value of the compensation of R1371,59 received by Mr Paul Potgieter for his land, escalated to current day value, was agreed to be R117 968,23.

Testimony of the Plaintiff Thabo Shadrack Koloko

[20] The Plaintiff, as aforementioned, is the son of the late Nomsa Rosemary Potgieter, and executor of her estate. He was born in 1978 after his grandfather was removed from Portion 9. He is employed at Majuba College in Newcastle as a workshop assistant. He testified as follows about his grandfather’s ownership and removal from the farm:

20.1 The farm was transferred to his grandfather in 1947, as reflected in the deed of transfer. On 18 December 1970 the farm was transferred from his grandfather to the Republic of South Africa. The relevant deed of transfer records that the farm was expropriated in terms of Section 13 (2) of the Bantu Trust and Land Act 1936[1], read with the Expropriation Act 1965.

20.2 His mother had lived on the farm with her father Mr Paul Potgieter. Upon dispossession she was allocated a house, by the Newcastle Municipality, in Madadeni C Section, Erf 2718 Madadeni, Newcastle and the family relocated there. They paid rent to the municipality.

20.3 If the farm is restored, the intention is to farm there. Before his grandfather was dispossessed he operated a smallholding farm, and the plan is to continue farming and to get advice on a business plan.

20.4 He is not interested in financial compensation, which was put to him as providing a better return and a preferable alternative to farming, and was quick to point out that Black people could also engage in farming. It did not matter how small the land was, ‘as long as we can get it back’.

20.5 The fact that restoration would result in the Second Defendant losing some 23 hectares should not count against the Plaintiff, especially since the farm was taken away unfairly.

20.6 During cross-examination it was put to him that the landowner would testify that Portion 9 is leased and that its restoration could result in the lease being cancelled. He said he had no knowledge of a lease.

Testimony of Eunice Duduzile Mbuyisa

[21] Ms Mbuyisa, aged 71, is the granddaughter of the dispossessed Paul Potgieter and the niece of Nomsa Rosemary Potgieter. She resided together with the extended family of 8 people, including the Plaintiff’s mother and Mr Paul Potgieter, on the farm until they were moved against their will in 1972. Her grandfather had tenants who also had to move. She testified as follows:

21.1 Eight family members lived on the land. There was a 3 roomed face brick house, 2 rondavels and a water tank filled from a nearby river. Her grandfather kept cattle and chickens, and cultivated, inter alia, mielies and pumpkins. He would sell cows.

21.2 About the dispossession: ‘White people came and painted our houses that they wanted to demolish, with white paint. They came back a while later and said next week we would be relocated to the location. We were not wanted there.’

21.3 The family was moved to Madadeni. However, her grandfather was classified as Coloured and was not allowed to move with them and live in the location. He had to go and live apart from his family, with unknown Coloured people, on a different farm, and his family was not allowed there to take care of him. Her grandfather was very distressed and died three years later. He was not given any land as compensation. The whole experience was very traumatic and painful. It was especially so for her as a 19 year old to watch the ordeal of her grandfather at his advanced age.

21.4 The family had to fit into much smaller accommodation in Madadeni, being a house comprising 2 bedrooms, a kitchen and a lounge. Currently ten family members live there.

Testimony of Alan Stephenson

[22] Mr Alan Stephenson, of the valuation firm Mills Fitchet, is a registered professional valuer and appraiser. He is also an appointed assessor in the Land Claims Court. He holds the qualifications, inter alia, of Bsc Agricultural Business Management, (Applied Farm Management) (UK); LLB (Natal), and has a Diploma in International Arbitrations. He was instructed by the Plaintiff’s attorneys to conduct a historical valuation of Portion 9 of the farm Waag Alles, and escalate such to its present value applying the Consumer Price Index. He was also requested to conduct a feasibility report on the farm. Mr Potgieter also had rights in the remainder of Waag Alles, which Mr Stephenson had taken cognisance of. He had taken the farm as a whole into consideration, based on historical information.

[23] His report states that Portion 9 is one of 11 subdivisions owned by the Henk Zaal Trust. It is situated in KwaZulu-Natal between Ladysmith and Newcastle, in close proximity to the Chelmsford Dam and the Nature Reserve surrounding the dam. It is currently being used for veld grazing. It is apparent from the aerial photography that, at the time of dispossession, Portion 9 was extensively cultivated and there were numerous improvements. Water is available from the aManzamnyama River which forms the

eastern boundary of Portion 9. A tributary of the aManzamnyama River also flows through the south eastern portion of Portion 9. Access is via gravel road leading off the N11. Road access to Portion 9 can be exercised without having much of an impact on the other subdivisions of the farm. The restitution of Portion 9 is unlikely to impact economically on the overall farming. Portion 9 as a subdivision can be sold off separately quite easily.

[24] Mr Stephenson accepted during cross-examination that if Portion 9 is sold as a small holding, as opposed to arable grazing land, its value would be higher. The valuers had agreed that Comparable sale 6 (Portion 4 of the Farm Dovercourt No 7934GS) in Mr Gardner’s report, provided a guide as to historical value. If Portion 9 is valued as a small holding, based on the value of Comparable Sale 6, then Mr Stephenson estimates its value at R632 213. If it were to be sold minus the R70 000 value of the cultivated 2 hectares, the purchase price would be R577 607. A downward adjustment would then have to be applied taking into account the lease on the land. He estimated that this would reduce the purchase price to R500 000

were it to be sold as a smallholding. It was in the court’s discretion whether to fix the purchase price at R347 460 as agreed by the valuers, or to increase this price by R152 540 to R500 000. In the expert minute of 11 October, however, Mr Stephenson pointed out that the landowner had purchased Portion 9 as veld grazing and thus would be overcompensated if he were to be paid for it as a small holding.

[25] During the meeting of experts on 11 October 2022 he was notified of a renewal to a lease agreement, between the Henk Zaal Trust and Christiaan Zaal, of 3000 hectares, including Portion 9. Mr Stephenson referred to this as an internal agreement. He had been given sight of the expired lease agreement at the meeting of Experts, but not a renewed lease. Mr Stephenson was of the view that the excision of Portion 9 was unlikely to affect the lease.

[26] An executive summary of his report explains his calculation of the under-compensation to Mr Potgieter. It indicates the total present value of under-compensation received at the time of dispossession as R790 000. His summary reflects that at the 1970 Rate/ha of R455 for arable land/smallholding, Portion 9 was valued at R10 539,62. The present day value of the compensation due was R727 000.

Deducting the compensation for Portion 9 of R1371,56 received by Mr Potgieter, the under-compensation was R9 168,06. In respect of the share in the remainder, applying the same rate, the value thereof as of 1970 was R910. The present day value of compensation due for the remainder is reflected at R63 000. The amount of compensation received by Mr Potgieter was R116, reflecting under-compensation of R910. His executive summary goes on to indicate that in 1971 the state offered compensation in the sum of R16 000 for Portion 9 and the remainder of Waag Alles. This amount appears reasonable. The current value of R16 000, escalated by the CPI, is R1 140 000. These calculations are reflected in the tables below from his report.

He concludes that the Plaintiff should be compensated R1 140 000. Alternatively Portion 9 should be restored to the Plaintiff,

which will have little adverse effect on the remainder of the property. In addition to the land being restored, the Plaintiff

should be paid an amount of R63 000 for the share in the remainder of the farm.

[27] His report indicates further that:

27.1 His values are based on research into the market for comparable properties within the neighbouring area, and further afield, to assist in determining the historical and current market value of Portion 9. He had also consulted representatives of buyers, sellers, estate agents, valuers and other knowledgeable people in the industry, to obtain information on past sales, current sales and market information.

27.2 He had considered the factors set out at Section 25 (3) of the Constitution in determining just and equitable compensation, namely:

(a) The current use, being mostly grazing with some arable land;

(b) The history of the acquisition and use of the property, from its dispossession to current use;

(c) The market value, with reference to the comparable sales method with requisite adjustments to the date of dispossession;

(d) The extent of direct state investment and subsidy in the acquisition and improvement of the property, which was marginally applicable;

(e) The purpose of acquisition, with reference to the past racial legislation and current acquisition for land reform.

He was not aware of any other factors.

27.3 He had considered the factors listed in the order granted in Baphiring Community and others v Tshwaranani Projects CC (formerly Matthys Uys) and others [2013] 4 ALL SA 292 (SCA), pertaining to feasibility, namely:

27.3.1 The nature of the land and the surrounding environment at the time of dispossession and any changes that have taken place on the land itself and the surrounding area since dispossession:

Portion 9 was and still is used for cultivation of crops and grazing.

27.3.2 Official land use planning measures governing the land concerned:

The land is zoned for agricultural use.

27.3.3 The cost of expropriating the land, including the costs of any mineral rights if compensable in law:

The costs of expropriating is estimated at approximately R300 000 to R400 000. To the best of his knowledge no mineral rights are attached to the land.

27.3.4 The institutional and financial support to be made available for the resettlement:

Mr Stephenson was not aware if any support of this nature was available.

27.3.5 The extent of compensation that shall be payable to the current owners of the land:

This was estimated as R347 460.00 as indicated above.

27.3.6 The numbers of current occupants of the land, including the current landowners and their families, as well as any employee farm workers and their families. Furthermore, the extent of social disruption - including possible loss of employment - to these current occupants should they be compelled to vacate the land concerned:

Portion 9 is being used for grazing and cropping and there would be little to no social disruption should it be restored.

27.3.7 The number of individuals and families who are expected to resettle:

He was not aware of individuals expected to resettle.

27.3.8 The extent to which the land, in its current state, can support those community members wishing to resettle, both physically and financially:

Due to its location, in relatively close proximity to Newcastle, its highest and best use is as a residential smallholding.

27.3.9 The envisaged land use should the land be restored, and the resultant extent- if any - of the loss of food production and any impact thereon on the local economy should farming activities not be conducted at current levels:

It is envisaged that the farming activities will continue at their current levels or even higher.

27.3.10 Should the land be restored to claimants the extent of overcompensation:

His evidence suggested there would be no overcompensation.

27.3.11 Any other issue that has a bearing on the determination of feasibility of restoring the land:

Mr Stephenson indicated he was not aware of any other issues.

[28] Mr Stephenson’s valuations were accepted. His conclusions on feasibility were challenged by Dr Theunissen as appears below, albeit Dr Theunissend did not apply the factors identified in Bhapiring supra to his assessment.

Testimony of Mr Gardner

[29] Mr Gardiner confirmed his report, as well as the joint minutes of the experts. He was instructed to value the portions which made up the unsettled land claims registered in the Henk Zaal Trust. He agreed with the values of Mr Stephenson in respect of Portion 9. His report did not consider any issues of feasibility. He agreed that physical restoration of Portion 9 was possible from a practical point of view.

Testimony of Dr Theunissen

[30] Dr Theunissen is an agricultural economist. He considered the feasibility of restoration only from an economic point of view. His report stated inter alia:

30.1 The farm is leased as a running concern and the current tenant also rents adjacent farms from the same owner. The total area leased is 3000 hectares. Portion 9 is not a feasible farming unit on its own and should remain part of Waag Alles.

30.2 Without sustainable production, the separated portions of W[....]will make the entire farm a worthless asset.

I pause to mention that Mr Stephenson disagreed, stating the excision of 23 hectares from a farming operation of 3000 hectares would not make the entire farming operation worthless. He added moreover that Dr Theunissen’s report focused on beef production only on the 3000 hectares, and the economies related to that scenario which he applied to Portion 9. The evidence of the Plaintiff was not that Portion 9 was going to be used for beef production. The evidence was that it would be explored for possible activities.

30.3 The Theunissen report continues that any pieces cut off will not result in separate feasible farming units, and will be a waste of good agricultural land with no prospects that the land will contribute to the country’s economy. Portion 9 should remain where it contributes to the feasibility of the farming enterprise. His report also referred to potential biosecurity, fencing and overgrazing problems.

Finding

[31] From the undisputed evidence I am able to find that Mr Paul Potgieter was dispossessed of ownership of Portion 9, and his right in the remainder thereof, in December 1970, which was expropriated in terms of Section 13 (2) of the Native/Development Trust and Land Act of 1936, a racial law. I am also able to find, from the undisputed valuations agreed on as referred to above, that he did not receive just and equitable compensation. I accept that the current day value of just and equitable compensation, as agreed by the valuers and determined by Mr Stephenson, in accordance with Section 25 (3) factors, is the sum of R1 147 000. However, the Claimant does not want compensation, but physical restoration.

Both expert valuers agree that physical restoration is possible.

[32] Mr Guldenpfenning took issue with the lack of evidence pertaining to some of the factors that were listed in the order granted in Baphiring. The essence of his concerns pertained to the consequences of resettlement of an unknown number of persons, families and community members on Portion 9, and its envisaged land usage in the context of the factors listed at paragraphs 27.3.2, 27.3.4, 27.3.7 and 27.3.8 above. Unlike Baphiring this is not a community claim, but a claim by a descendant for restoration of 23 hectares on which 8 family members resided.

The house to which they relocated, currently has 10 family members. The Plaintiff’s evidence is that they intend to farm and will take advice on what is feasible on the property. There is no evidence that the family will resettle on the farm, but should they do so, this will not constitute an invasion of unknown numbers of persons, families or community members that will adversely impact the spatial planning of the relevant municipality, the cause of concern. Mr Stephenson was not aware of any resettlement.

[33] Concerns about the envisaged land usage pertained to speculations about biosecurity, fencing and overgrazing problems, as referred to in Dr Theunissen’s report. Such problems may or may not arise, and could equally be visited upon Portion 9 from the Second Defendant’s property upon restoration. Steps can of course also be taken to prevent these problems. Dr Theunissen’s consideration of feasibility from an economic point of view is speculative, and based on beef production only, which is not supported by the evidence. So too his speculation whether Portion 9, if cut off, will result in a separate feasible farming unit, and whether adjacent farms will be affected and how. There was moreover no evidence to substantiate the rather alarming proposition that the excision of some 23 hectares, being Portion 9, would make the entire farming enterprise of some 3000 hectares worthless. Nor is there any evidence that Portion 9 will not be productively farmed if restored. These considerations should, accordingly, in my view, not have a bearing on feasibility.

[34] Mr Stephenson was the only expert who had regard to the factors listed in Baphiring. I am indebted to him and agree with his assessment thereof.

Factors to be taken into account in terms of Section 33 of the Restitution Act

[35] I am required to have regard to the factors at Section 33 of the Act in considering my decision in this matter[2] I am of the view that a consideration of these factors, and in particular the feasibility of restoration(s 33 (cA)), the desirability of remedying past violations of human rights (s 33 (b)), and that of justice and equity (s 33 (c)), favour restoration. This is so in the light of the expert evidence, and given the brutality of not only dispossessing Mr Potgieter, but thereafter separating him from his family because he was classified as Coloured.

[36] I consider below how to deal with the amount of compensation received at the time of dispossession, a factor I must have regard to in terms of section 33 (eA).

36.1 The agreed current value of the compensation received at the time of dispossession is R117 968.

36.2 To make up for the loss of the cultivated area (R70 000), as well as the loss of the value of the remainder (R63 000), the Claimant would, in my view, be entitled to receive monetary compensation of R133 000.

36.3 The current value of compensation received upon dispossession (R117 968) stands to be deducted from the amount of R133 000 which Plaintiff would be entitled to receive in lieu of the cultivated area and the remainder, in order to prevent overcompensation. This would leave the sum of R15 032 to be awarded as monetary compensation, an award I intend making in addition to the restoration of Portion 9.

[37] Finally, I turn to consider what would be the just and equitable compensation payable to the Second Defendant if the First Defendant were to purchase Portion 9 for restoration to the Plaintiff. Both valuers agreed on the value of R417 460 for Portion 9. The deduction of the R70 000, the agreed valued of the cultivated triangular part thereof not recommended for restoration, would reduce the purchase price to R347 460.

[38] Of the factors set out at Section 25 (3) of the Constitution, pertinent to determining just and equitable compensation, for the acquisition of Portion 9, the current use of the property, (s 25 (3) (a) (being mostly grazing with some arable land), and the market value, (25 (3) (c) ( with reference to the comparable sales method), are in my view most pertinent. As the arable land is not being sold, what would be purchased, unlike comparable sale 6 referred to above, is grazing land and not a smallholding, which is defined as “a piece of land that is used for farming and is smaller than a normal farm”[3].

[39] Mr Stephenson’s assertion in the joint minute that as the property was not purchased as a smallholding but for veld grazing, the landowner would be overcompensated were the purchase price to be increased to that of a smallholding, was not gainsaid. I am inclined to agree, for, what the Second Defendant would be selling is veld grazing and not a smallholding. Neither the deeds office documents filed by the Second Defendant, nor its assertion that due to Portion 9 being much smaller than a traditional farm, it should be referred to and purchased as a smallholding, detracts from this. The First Defendant has indicated her willingness to purchase Portion 9 for R347 460 for restoration to the Plaintiff. I am of the view that this would be just and equitable compensation for the acquisition of Portion 9 by the the First Defendant, for restoration to the Plaintiff.

Costs

[40] In keeping with this court’s practice not to award costs except in exceptional circumstances, of which I find there to be none present, I make no order as to costs.

I order as follows:

1. The Plaintiff is entitled to physical restoration of Portion 9, excluding the cultivated 2-hectare area, of the Farm W[....]in terms of section 2 (1) of the Restitution of Land Rights Act No 22 of 1994.

2. The State shall purchase the land described in paragraph 1 above for the sum of R 347 460 for the purpose of restoring it to the Plaintiff.

3. The State shall pay the Plaintiff financial compensation in the sum of R15 032.

4. There is no order as to costs.

Y S MEER

Acting Judge President

Land Claims Court

I agree.

S S Luthuli

Assessor

APPEARANCES:

For the Plaintiff: Adv.

N. Myeni

Instructed by: Motloli

Attorneys Inc.

For the First Defendant

and Participating Party: Adv.

C. Jaipal

Instructed by: State Attorney – KwaZulu-Natal

For the Second Defendant: Adv.

S. Guldenpfenning

Instructed by: Velile

Tinto & Associates Inc.

[1] Presumably a reference to the Native Land and Trust Act 1936

[2] ‘Factors to be taken into account by the Court – In considering its decision in any particular matter the Court shall have regard to the following factors: (a) The desirability of providing for restitution of rights in land to any person or community dispossessed as a result of past racially discriminatory laws or practices; (b) the desirability of remedying past violations of human rights; (c) the requirements of equity and justice; (cA) if restoration of a right in land is claimed, the feasibility of such restoration; (d) the desirability of avoiding major social disruption; (e) any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination in order to promote the achievement of equality and redress the results of past racial discrimination; (eA) the amount of compensation or any other consideration received in respect of the dispossession, and the circumstances prevailing at the time of the dispossession; (eB) the history of the dispossession, the hardship caused, the current use of the land and the history of the acquisition and use of the land; (eC) in the case of an order for equitable redress in the form of financial compensation, changes over time in the value of money; (f) any other factor which the Court may consider relevant and consistent with the spirit and objects of the Constitution and in particular the provisions of section 9 of the Constitution.’

[2] ‘Factors to be taken into account by the Court – In considering its decision in any particular matter the Court shall have regard to the following factors:

(a) The desirability of providing for restitution of rights in land to any person or community dispossessed as a result of past racially discriminatory laws or practices;

(b) the desirability of remedying past violations of human rights;

(c) the requirements of equity and justice;

(cA) if restoration of a right in land is claimed, the feasibility of such restoration;

(d) the desirability of avoiding major social disruption;

(e) any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination in order to promote the achievement of equality and redress the results of past racial discrimination;

(eA) the amount of compensation or any other consideration received in respect of the dispossession, and the circumstances prevailing at the time of the dispossession;

(eB) the history of the dispossession, the hardship caused, the current use of the land and the history of the acquisition and use of the land;

(eC) in the case of an order for equitable redress in the form of financial compensation, changes over time in the value of money;

(f) any other factor which the Court may consider relevant and consistent with the spirit and objects of the Constitution and in particular the provisions of section 9 of the Constitution.’

[3] Dictionaries .cambridge.org; Collins dictionary.com

[i] Subsequently renamed as the Development Trust and Land Act 1936