Lourens v Minister of Agriculture and Land Affairs and Another (LCC112/2009) [2017] ZALCC 19 (6 November 2017)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

Case No: LCC 112/2009

Before: The Honourable Judge Bertelsmann and Acting Judge Baloyi

Heard On:

Delivered: 06/11/2017

In the matter between:

PIETER ERASMUS LOURENS

Plaintiff

and

MINISTER OF AGRICULTURE & LAND AFFAIRS

First Defendant

REGIONAL LAND CLAIMS COMMISSION

LIMPOPO

Second Defendant

JUDGMENT

1. The plaintiff claims monetary redress in terms of section 35 (1) (c) of the Restitution of Land Rights Act 22 of 1994. He asserts that the purchase price he received for the farm Genoeg No 15, Registration Division LU, District Letaba, near Phalaborwa in Limpopo in 1975, when he was obliged to sell it to the Government of the day for the intended consolidation of a so-called ‘self-governing

territory’, namely Gazankulu, did not constitute adequate compensation for the loss of his land.

2. He sold the farm to the South African Development Trust and it has been the property of the Government ever since as the proposed

consolidation of Gazankulu was abandoned. The farm was included in the late seventies in a Government-sponsored trophy hunting project that was centred on the Letaba Ranch and which was launched to stimulate tourism, but fizzled out later.

3. It is common cause that the acquisition of the farm by the South African Development Trust constituted a dispossession and the only issue that must be decided is whether the compensation the plaintiff received by way of the purchase price was adequate or not.

4. He purchased the land together with one Prigge in 1965 and became the sole owner in 1967. Genoeg’s eastern boundary Is the Kruger National Park, its northern neighbour is the Letaba Ranch. Its other borders are not game fenced.

5. The plaintiff nonetheless asserts that the farm was a game ranch or had the potential of a game ranch. This claim is not borne out by the evidence. Although there was and is some game on the farm that migrates from the Kruger or neighbouring farms, the plaintiff only conducted cattle farming as a commercial activity on Genoeg. What hunting occurred there was conducted by himself and his friends and family.

6. The plaintiff had to abandon cattle farming on Genoeg when foot and mouth disease broke out on the farm. He left in about 1968 and only returned for occasional visits until the farm was sold.

7. The further potential which the farm exhibited, according to the plaintiff, was that of a resort for the Indian population group,

which he intended to establish on Genoeg with the help of some businessmen belonging to that population group. That plan foundered

in spite of the support of some Government departments when the Council on Public Resorts refused to approve the project because it regarded the land as unsuitable for a recreational facility. The plaintiff contended that the potential of creating a resort was not taken into consideration when the purchase price was determined.

8. When the trial commenced – the defendants having placed the failure to adequately recompense the plaintiff in issue – an inspection in loco was conducted. Thereafter the plaintiff commenced to lead evidence, but the Court in the exercise of its obligation to intervene and take an active part in proceedings of this nature, drew the plaintiff’s attention to the fact that no notice of appropriate expert evidence had been given that would support his claim. The plaintiff sought a postponement which was granted. After a considerable delay the proceedings continued with the Plaintiff calling three witnesses as purported experts to establish his case.

9. Unfortunately, the three witnesses did not qualify themselves as experts. None of them had any experience in the field of valuation of resorts and consequently there was no acceptable evidence of any potential resort development or the value to be attached thereto at the time of the dispossession. Mr Scheepers vigorously argued on behalf of the plaintiff that the Court should assist the plaintiff nonetheless as it was obviously extremely difficult to establish any value forty years after the event. The Court should act as ‘super valuer’, it was submitted, and adjust the amount the plaintiff received upward in the light of the presence of game, the proximity of the Kruger National Park, the Malopeni Gate on the farm and the value of comparable properties such as the farms Buffelshoek and Albatross; as identified by Van Zyl who filed an expert report but did not testify and repeated by one of the witnesses, Mr Vosloo.

10. The difficulty with these aspects lies in the fact that the Malopeni Gate was permanently closed in the sixties of the previous century already; the game was never restricted to the confines of the farm as it remained not fully fenced and Buffelshoek and Albatross share no common features with Genoeg other than the proximity to the Kruger National Park. These facts were incontrovertibly established by the plaintiff’s own witnesses.

11. A further virtually insurmountable obstacle standing in the way of establishing any potential resort value in terms of the compensatory provisions of the Restitution Act is the fact that any viability the intended resort might have had depended upon the apartheid provisions of the Group Areas Act and similar discriminatory statutory provisions propping up what was euphemistically called separate development. It was only because of the fact that the Indian community was prevented from gaining access to facilities reserved for Whites that a resort developed in an otherwise less suitable locality could gain any traction. The moment apartheid collapsed, no further thought was given to the development of any resort on Genoeg.

12. Against this background there was simply no evidence at the conclusion of the plaintiff’s case upon which a reasonable court could have found in the latter’s favour, particularly not as the Court had already in the past pointed out the very difficult row the plaintiff had to hoe to succeed. There is no other option but to grant absolution from the instance.

13. As far as costs must be considered, the matter has taken unduly long to complete and has been costly for all concerned. Not all the delays that occurred in the finalisation of the matter can be ascribed to the plaintiff, who asserted a constitutional right, albeit one that could not assist his case in the absence of any facts to establish its applicability to the present dispute. The fairest result is therefore not to make any order as to costs.

The following order is made:

1. Absolution from the instance is granted.

2. No order is made in respect of costs.

Dated at Randburg on this 6 day of October 2017.

______________________

MS BALOYI

Acting Judge of the Land Claims Court

E BERTELSMANN

Acting Judge of the Land Claims Court (Retired)

C LOOTS

Assessor