Mabuza obo Mabuza Family Descendants v Minister of Agriculture, Land Reform & Rural Development and Others (LCC125/2020) [2023] ZALCC 42 (13 December 2023)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC125/2020

Before: Honourable Meer AJP, Kgoele J and Ms A. Andrews – Assessor

Heard on: 5 – 12 October 2023 and 30 November 2023

Delivered on: 13 December 2023

In the matter between:

PHARIS TAILORS JOHN MABUZA (on behalf of the Mabuza family descendants) Plaintiff and MINISTER OF AGRICULTURE, LAND REFORM & RURAL DEVELOPMENT First Defendant THE REGIONAL LAND CLAIMS COMMISSIONER, MPUMALANGA Participating Party SAPPI MANUFACTURING (PTY) LTD SAPPI FORESTRY (PTY) LTD Second Defendant YORK TIMBERS (PTY) LIMITED Third Defendant STADSRIVIER VALLEI (PTY) LTD Fourth Defendant

JUDGMENT

MEER AJP

[1] The Plaintiff, as representative of the Msilezi Mabuza Family (“the claimants”), applies for restitution of rights in land in respect of Portions 0/ the Remaining Extent, 1,2,3 and 4 of the farm Rooywal 239JT (“Rooywal”/ “the claimed land”) situated in Thaba Chweu Local Municipality, Ehlanzeni District, Mpumalanga Province. He does so on the basis that the claimants were allegedly dispossessed of their rights of beneficial occupation as labour tenants on the claimed land. The Plaintiff lodged the claim with the Regional Land Claims Commissioner, Mpumalanga, the Participating Party, on 31 December 1998. The claim form described the land as “Msilezi between White River and Sudwala Farm.” An investigation by the Regional Land Claims Commissioner, Mpumalanga (“the RLCC”) resulted in the claimed land being gazetted as the Remaining Extent and Portions 1, 2, 3 and 4 of the farm Rooywal.[1]

[2] The extent of the claimed land is 3,974.1112 ha in total, and it is located between Barberton and Sabie in the Mpumalanga Province. The land is currently used for farming operations which consists of extensive commercial timber plantations and a citrus, fruit and nut farm containing citrus orchards of various ages, macadamia nuts and avocados. At the time of the alleged dispossessions it comprised of unimproved grazing land.

[3] The First Defendant, the Minister of Agriculture, Land Reform and Rural Development, abides the decision of this Court. The Participating Party, the Regional Land Claims Commissioner for Mpumalanga, supports the Plaintiff’s claim for physical restoration. The stance of these parties is that between 200 to 300 ha of any part of Portions 1,2 3 or 7 of Rooywal should be returned to the claimants and their rights be upgraded to that of full ownership to be vested in a communal property association. To that end they ask this court to order the expropriation of parts of such portions for restoration to the claimants.

[4] The Second to Fourth Defendants oppose the claim. They dispute that the plaintiff had rights of beneficial occupation and moreover contend that physical restoration is not feasible. The Second Defendant (“Sappi”) is the owner of Portion 2 of Rooywal. Sappi contends that the land as described in the claim form and the research report emanating from the Participating Party, does not refer to Portion 2 of Rooywal, and it is entitled to an order that the decision to gazette its land as part of the claimed land be set aside. The Third Defendant (“York”) is the owner of Portions 1,3,4 and the Remaining Extent of Rooywal.

The Fourth Defendant, Stadsrivier Vallei 1053 JT is the owner of what was previously known as Portion 7 of Portion 3 of Rooywal, on which the formal structures, fields and orchards lie.

[5] The referral report, and the Plaintiff’s response thereto lists the 1913 Land Act, the 1936 Land Act, the Native Contract Service Act 1932 and the Prevention of Illegal Squatting Act 51 of 1951 as the racially discriminatory laws as a result of which the claimants were allegedly dispossessed of their rights in land.

[6] The trial in this matter took place between 3 and 13 October 2023 at the Mbombela High Court, Mpumalanga, during which an inspection in loco was conducted, and at the Land Claims Court in Randburg. Mr Ngomane and Mr Zwane appeared for the Plaintiff, Mr Mathebula appeared for the First Defendant and Participating Party and Mr Goddard appeared for the Second to Fourth Defendants.

The Evidence

[7] Seven lay witnesses and three experts testified for the Plaintiff and an expert report was submitted by ShakesShem Pty Ltd. The report was written by Mr. Thokoza Nkosi, head researcher at ShakesShem. The other contributors were inter alia, historian Mr Dumisani Mbiba, GIS specialist, Mr Emery, researcher Ms Amanda Buthelezi and Mr Stanley Shelembe. Messrs Nkosi, Mbiba and Emery testified at the hearing.

[8] Three expert witnesses testified for the Second to Fourth Defendants, each of whom submitted a report. They are historian Professor Peter Delius, land and photogrammetric surveyor, Mr Norman Banks and Valuer, Mr Alan Stephenson.

[9] There were no major points of disagreement in the evidence of the respective experts. The historical report of Professor Delius was accepted by Mr. Mbiba, Mr. Emery’s mapping resonated with Mr. Banks and Mr. Nkosi’s factual evidence was not challenged. Whilst the Plaintiffs disagreed with Mr. Stephenson’s stance that restoration was not feasible, his valuations were not challenged.

[10] It is convenient to commence with the evidence of Professor Delius which provides the historical backdrop to the claim and history of ownership of the farm Rooywal.

Testimony of Professor Peter Delius[2]

[11] A historical research report on Rooywal was compiled by Professor Peter Delius and Mr Daniel Sher in April 2023. I quote the following extracts from the Executive Summary[3] of the report which provides the historical contextual background to the claim.

“Before 1820 the area under claim was probably inhabited by scattered Eastern Sotho groups. The area changed drastically during the upheavals of the early 19th century as raiding groups from Southern Mozambique and Northern Natal entered the scene. Regiments from the Swazi kingdom had the greatest impact in this region. Initially the Swazi army raided and demanded tribute from groups in the area. But during the 1860’s the kingdom set up a royal village near Barberton. From that springboard Swazi groups settled north of the Crocodile River as well.

Boers began arriving in the Eastern Transvaal from the 1840s. They established themselves first at Ohrigstad and then Lydenburg. Swazi King Mswati concluded a treaty with the Boers in 1846 which nominally ceded land north of the Crocodile River and south of the Olifants River to the Boers.

Gradually, the balance of power swung towards the Boers. Increasing white settlement, the defeat of the Pedi and Ndzundza Kingdoms, and a stronger state apparatus after the British Annexation in 1877 meant that by the 1880s the Boers were stronger, and able to demand labour or rent from the Africans living on ‘their’ farms.

In Lowveld areas disease deterred permanent white settlement for some time. But many Highveld farmers used land below the escarpment for winter grazing, and some hunted and worked as transport riders through these areas. Where Africans lived on winter grazing farms, they tended to be forced into providing some unpaid labour to the formal title holders.

Following the disruption of the South African War, the British worked to restore pre-war social relations on farmland, including obliging Africans to provide labour service or pay rent to their landlords.

By the early 20th Century, labour tenancy was clearly the dominant form of tenure for Africans on the Eastern Transvaal Highveld. There were

nonetheless large numbers of farms, often in the Lowveld or on land bordering reserves, which had absentee landlords or which remained

government ground and on which African residents paid cash rent. In areas where rent tenancy dominated, the effects of land dispossession

were not always strongly felt, and families were often relatively free to arrange their own lives. By contrast, labour tenancy on an owner-occupied farm could be a hard existence shaped by the white farmer.

By this stage a system of private property was already dominant in the area, which was formerly under the authority of a more robust state, enforcing widespread collection of rents, taxes and labour from local Africans. White settlement and the establishment of formal land title, backed up by a stronger state, meant that generalized land dispossession took place in the area under clam well before 1913.

White settlement in the Eastern Transvaal Lowveld increased after the First World War and pockets of commercial agriculture began to emerge around Nelspruit and White River. Citrus was particularly successful crop.

White settlement of land meant that on many farms Africans could no longer pay rent to an absentee landlord. Instead they were forced to work for the farmer if they wished to remain on the land. In more commercialised areas these residents were often incorporated as wage labourers but labour tenancy was still common. Meanwhile on the Highveld labour tenants came under increasing pressure.

After the Second World War the Lowveld boomed. The farming of fruit and vegetables, and forestry, expanded significantly. By 1962, government officials reported that there were practically no labour tenants in the Sabie ward, which would have included the area under claim. The entire ward was forestry plantations.

While afforestation (along with mechanization of farming) allowed farms to shed significant numbers of former labour tenants, political imperatives drove the mass eviction of labour tenants. From the 1950s to 1970s the state first regulated and then abolished labour tenancy. Former labour tenants were evicted and resettled in the reserves, soon to become homelands.”

[12] On the history of ownership of Rooywal, the report[4] states:

“Formal title to Rooywal was first granted in 1870, and Tielman Nieuwoudt de Villiers first acquired shares in the farm in 1883. The property was subdivided in 1915. In 1920 Helena Twycross bought Portion 2. That portion remained in the hands of the Twycross family until 2002, though in 1953 Portion 4 was subdivided from it and sold. Meanwhile, members of the de Villiers family continued to own the Remaining Extent, Portions 1 and 3 of the farm until the 1950s. in 1958 the Development and Investment Company of Southern Africa bought all the shares in Portions 1, 3, 4 and the Remaining Extent, and immediately sold those portions to S.A Forest Investments Limited.

Aerial photography confirms that there was an established white farmer on Rooywal by 1936. The formal structures, fields and orchards lie in an area which now forms part of the farm Stadsrivier Vallei 1053 JT. Given the archival evidence mentioned above, and the fact that Stadsrivier Vallei included Portion 6 (a portion of Portion 2) of Rooywal, it is likely that the white farmers visible on Rooywal at this time were the Twycross family.

There was no evidence of white farmers living on the present day Portions1, 2,3, 4 or the Remaining Extent of Rooywal in the 1936 photography. This would suggest that portions of Rooywal may have been used as a winter grazing, and raised livestock for themselves on the farm.

The 1936 aerial photography also provides evidence that African families lived on all these portions, growing crops on sections of all those portions excepts Portions 2 and 4, and raising livestock

Archival evidence of Africans on Rooywal comes from state oversight of the labour compound on the farm from 1959-1972. Inspections were carried out on SA Forest Investments’ portions of the farm, namely portions 1, 3, 4 and the Remaining Extent. By that stage this area had been turned into a forestry plantation and the people living in the compound would have been wage labourers

Portion 2 of Rooywal had a different trajectory. The Twycross family owned it since 1920. Michael Twycrss took ownership of the portion in 1947 and lived on the Remaining Extent of Portion 2 until his death in 1984, with at least two African servants. As mentioned the portion was later sold to Sappi and is now under plantation as well.

The broader evidence is that by 1913 families on the farm would have depended on an agreement with the white farmer for their continued occupation.”

[13] Professor Delius noted with reference to the ShakesShem Report that the claimants were unanimous in identifying their reason for leaving the farm. All stated that when the farm began to be made into a forestry plantation, they were no longer allowed to keep livestock. He comments in his report[5]:

“The SA Forest Investments bought most of the farm in 1958 though afforestation may have preceded this. The individual claimants linked to the De Villiers portions stated that they left between 1955-1957. This is not to suggest a large scale state-led process of removal. Rather, the general pattern was that families or clusters of families who resisted being converted into wage labourers, or whose labour was no longer required, were then evicted.”

[14] In oral evidence Professor Delius elaborated that:

14.1 Owners would force labour tenants to leave if they did not accept wage labour. The process would start with a radical reduction in permissible cattle and occupants would be told to comply or move off the land. If occupants did not submit to these terms the police would be called and forced evictions would take place. Police usually had a close working relationship with land - owning companies. The context in which labourers were deprived of their rights made them more vulnerable to being evicted.

14.2 The ShakesShem report recorded that family members of the claimants had worked for Mr de Villiers. In 1949, a mass meeting was called where de Villiers informed his workers that the farm had been sold to a forestry company and that families were no longer allowed to cultivate their fields and were forced to sell their livestock.

14.3 The departures from Rooywal were the consequence of the ending of contractual relations which rested on a system of racial segregation. The 1913 and 1936 Acts operated as a framework and context, but were not used themselves to evict. The departures were not explicitly racially motivated but could only happen because of a broader racial framework.

[15] The Plaintiff’s historian, Mr Mbiba[6], as aforementioned, accepted the report of Professor Delius without challenge.

[16] The ShakesShem report records that the first Mabuza family member to settle at Mselezi (the description given to the claimed land on the claim form), was Timaka Mabuza, the family patriarch during the mid-1800’s. He came from Swaziland and had originally fled from Shaka’s wars in Kwazulu Natal.

[17] The ShakesShem report states that one would automatically presume that the family was removed from the farm against the backdrop of the Prevention of Illegal Squatting Act 51 of 1951, which would have necessitated their removal from the farm because the whole area was to be a forestry plantation. In this regard the Trespass Act, which was used to remove people from land where their presence had become inconvenient, was also relevant. Departures from Rooywal continued into the seventies.

Testimony of Mr Nkosi

Identification of Homesteads by Mabuza Family Members

[18] Mr Nkosi[7], the author of the ShakesShem report, testified inter alia about the identification of homesteads by Mabuza family members. An inspection in loco was conducted on 20 and 21 December 2022 by Mr Nkosi and some of the members of the family of the area they referred to as Msilezi. Co-ordinates of areas pointed out by the family were taken and given to the Plaintiff’s mapping specialist, Mr Emery, who mapped out the areas. These pertained to locations on the farms Rooywal, Rietvlei and Sandrego. Mr. Nkosi conceded that persons who had pointed to Rietvlei and Sandrego as the land occupied by their families were disqualified from the claim in this matter, which is only in respect of Rooywal, being the gazetted land under claim.

[19] Table 8 of the ShakesShem/Plaintiff’s expert report was created and informed by the inspection in loco of 20 and 21 December 2022 and the subsequent mapping exercise. It lists the names of some 25 persons who were allegedly originally dispossessed, the name of the farm on which they lived, a GPS number and code (allocated by Mr. Emery in the mapping exercise), and the year of removal. For ease of reference Table 8 is reproduced here:

NAME FARM NAME GPS NO GPS CODES YEAR OF REMOVAL 1. Jan Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 1 S25.32868 E030.68806 1955 2. Maphayi Mabuza Portion 3 (R/E) of Rietvalei 256 MAB 1 1962 3. Mgcibelo Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 2 S25.33049 E030.69307 1996 4. Ellias Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 2 5. Philemon Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 2 6. Elphus Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 2 7. Wilson Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 2 1957 8. Sam Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 3 S25.30887 E030.66870 1956 9. Masotsha Mabuza Portion 1 of Rooywal 239 JT MAB5 S25.28009 E030.66119 1956 10. Bhasteri Mnisi Portion 1 of Rooywal 239 JT MAB5 1955 11. Ncakamathshe Mahlalela Portion 1 of Rooywal 239 JT MAB 5 12. Majamela Mabuza Portion 1 of Rooywal 239 JT MAB 5 13. Sheleni Mabuza Rem Extent of Rooywal 239 JT MAB 6 S25.27993 E030.65624 Died on the farm 14. Lozibiza Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 7 S25.3020 E030.67011 Died on the farm 15. Timaka Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 8 S25.30620 E030.76011 Died on the farm 16. Mguguta Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 10 S25.31746 E030.67807 Died on the farm 17. Aaron Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 10 1957 18. Magalela Mabuza Portion 3 (R/E) of Rooywal 239 JT MAB 11 S25.31055 E030.68884 1964 19. Titosi Shisa Mabuza Portion 3 (R/E) of Rooywal 239 JT 20. Piyos Mabuza Portion 3 (R/E) of Rooywal 239 JT 21. Alfeous Mabuza Portion 3 (R/E) of Rooywal 239 JT 22. Jim Mafumani Portion 2 (R/E) of Rooywal 239 JT 23. Mbonambi Mabuza Portion 2 (R/E) of Rooywal 239 JT 1965 24. Samuel Gobane Mabuza Portion 3 (R/E) of Rietvalei 256 JT MAB 15 S25.33071 E030.68827 1971 25. Aaron Mabuza Portion 0 of Sandrego 259 JT S25.33648 E030.72356 1971

[20] Mr Nkosi made the following concessions with regard to the persons listed in the above table:

20.1 The persons listed at Numbers 1 to 7 and 18 to 24 were excluded from this claim as they were removed from the farm Rietvlei. Similarly, the person listed at No. 25 was excluded as the table records Sandrego as the farm of removal.

20.2 The person listed at Numbers 17 and 25 was the same person, Aaron Mabuza who was removed from Sandrego. He was therefore excluded from this claim.

20.3 The persons listed at Numbers 13 to 16 had died on Rooywal and were thus never dispossessed.

20.4 The persons listed at Numbers 4 to 6, 11 and 12 and 19 to 24 had not been interviewed as reflected in the Plaintiff’s report and their details are absent.

20.5 The Plaintiff’s report does not state that the person listed at No 10, Bhasteri Mnisi, is part of the Mabuza family.

[21] It was put to Mr. Nkosi on the basis of Table 8 and the contents of the Plaintiff’s report, that the report identifies the persons at Numbers 8, 9 and 18 as having potential claims. These were Sam, Masotsha and Magalela Mabuza who occupied Portions 3,1 and 2 of Rooywal respectively. He was not able to deny this. I accept on the basis of the above evidence that this must be so.

Evidence of Mabuza Family Members

[22] Seven Members of the Mabuza family testified. Of these only Alpheus Mabuza, (the son of Sam Mabuza who is listed as No 8 on the table and who was removed from Portion 3 of Rooywal in 1956), and Simon Nutsi Mabuza (the son of Masotsha Mabuza who is listed as No 9 on the table, and who was removed from Portion 1 Rooywal in 1956), have potential claims. No descendants of Magalela Mabuza, the person listed at No 18 of the table who was removed from Portion 2 Rooywal in 1964, testified. Had they done so, they would

have had a potential claim.

Witnesses who do not have claims

[23] Witnesses Jacob Mabuza and Koliwe Mabuza are the children of Aaron Mabuza, listed as No 17 on Table 8, who was removed from Sandrego. Jacob Mabuza, during an inspection in loco by the Court, pointed out a location on Sandrego as being the land occupied by his family, as confirmed by co ordinates taken by Plaintiff’s expert, Mr Mbiba. These witnesses therefore are excluded from the present claim on Rooywal.

[24] Witness Khabonina Mabuzaa is the daughter of Jan Mabuza (listed as No 1 on Table 8), who was removed from Rietvlei. She is therefore excluded from the present claim on Rooywal. I note that at the inspection in loco by the court, the GPS location (taken by Mr Mbiba), indicated that she did not point out the claimed land as where her family had lived.

[25] Witness Mfanakhatiwe Mabuza is the son of Samuel Mabuza, listed as No 24 on the table, who was removed from Rietvlei. He is therefore excluded from the present claim on Rooywal.

[26] Witness Pharis Mabuza is the son of Johannes Mabuza who is not listed on the table at all. He does not have a claim.

[27] I shall thus focus on claims in respect of the persons listed at Numbers 8, 9 and 18 of the Table. Claim No 8 is in respect of Alpheus Mabuza whose father Sam Mabuza, as aforementioned, moved from Portion 3 Rooywal, GPS Number MAB3, in 1956. Claim 9 is in respect of Simon Mabuza whose father Masotsha Mabuza, moved from Portion 1 Rooywal, GPS Number, MAB5 in 1956. Claim 18 is in respect of Magalela Mabuza who is recorded as moving from Portion 2 Rooywal, GPS Number, MAB11, in 1964. As no descendants of Magalela Mabuza testified or were interviewed, there are accordingly no claimants in respect of this portion.

Testimony of Alpheus Mabuza

[28] The testimony of Alpheus Mabuza was as follows:

28.1 He was born in Msilezi on 19 January 1927. His father, Samuel Mabuza was also born in Msilezi. Timaka, the Mabuza patriarch is his father’s father.

28.2 His father’s homestead consisted of 5 mud structures They had a big piece of land on which they cultivated and grazed cattle on. They were chased off the land when the white men arrived and planted trees. The size of the homestead was just under the size of a soccer field.

28.3 His father had worked for Mr de Villiers and he himself had done so at one time.

Testimony of Simon Nutsi Sycho Mabuza

[29] Simon Mabuza testified as follows:

29.1 He was born in Msilezi on 25 May 1952. His father Masotsha Mabuza was also born in Msilezi around 1940.

29.2 The family’s homestead was near the second point of the Court’s inspection in loco at a place called Mahawulane. The homestead had 13 to 14 structures some of mud and others of stone and wood. The size of the homestead was approximately that of 5 soccer fields. The cultivating land stretched for 20km and the grazing land for 10km. The family cultivated avocado trees, orange trees, maize meal and cabbage. His father worked for Mr de Villiers as a farm worker.

29.3 He was 8 years old when the family left in 1957.

Is there an entitlement to restitution?

[30] Section 2 of the Restitution of Land Rights Act No 22 of 1994 (“the Act”) provides for entitlement to restitution. The section states:

“2. Entitlement to restitution

(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 is lodged not later than 31 December 1998.

(2) No person shall be entitled to restitution of a right in land if –

(a) just and equitable compensation as contemplated in section 25(3) of the Constitution; or

(b) any other consideration which is just and equitable, calculated at the time of any dispossession of such right, was received in respect of such dispossession.

(3) If a natural person dies after lodging a claim but before the claim is finalised and –

(a) leaves a will by which the right or equitable redress claimed has been disposed of, the executor of the deceased estate, in his or her capacity as the representative of the estate, alone or, failing the executor, the heirs of the deceased alone; or

(b) does not leave a will contemplated in paragraph (a), the direct descendants alone, may be substituted as claimant or claimants.

(4) If there is more than one direct descendant who have lodged claims for and are entitled to restitution, the right or equitable redress in question shall be divided not according to the number of individuals but by lines of succession.”

[31] The Act defines a right in land as:

“right in land” means any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than ten years prior to the dispossession in question.”

[32] Mr. Goddard submitted firstly that the claim should be dismissed as there was no evidence of entitlement to restitution by persons on whose behalf the claim was lodged. He pointed out that a map by Mr Pharis Mabusa contained in the ShakesShem report identifies and describes the claimed land as having been taken over by Mondi Forests. However, the ShakesShem report acknowledged it was not Mondi that caused the dispossessions, Mr Nkosi confirmed that an investigation into what land was taken over by Mondi was not done, and was unable to explain a link to Mondi.

[33] I am unable to accede to the request to dismiss the claim on this basis, for to do so would in my view place undue and unfair emphasis on the description of land emanating from a layperson. Various descriptions are often times accorded to land by claimants and even officials in the employ of the Land Claims Commission, and it is only once investigations are conducted that the nomenclature and locations of land are determined. This matter is a case in point where Msilezi was located as Rooywal.

[34] In the alternative Mr. Goddard submitted that an award of entitlement to restitution in terms of section 2 (1) (c) be made only in respect of Alpheus and Simon Mabuza as descendants of Samuel and Masotsha Mabuza respectively, who were dispossessed. As no descendant’s claim in respect of Magalela Mabuza had been identified, no entitlement to restitution could be made in relation

to him.

[35] The evidence suggests that Samuel and Masotsha Mabuza had rights in land of beneficial occupation as labour tenants. This was unchallenged and is in keeping with the plaintiff’s assertion of the nature of the rights in land that were lost. There is no evidence that just and equitable compensation or any compensation was paid to Samuel or Masotsha Mabusa when they moved. If successful with their claims Alpheus and Simon Mabuza would be entitled to restitution of rights in land in terms of Section 2 (1) (c) as direct descendants of their respective fathers who were dispossessed of rights in land. I agree that no entitlement to restitution can be made in respect of Magalela Mabuza as no descendant’s claim had been identified in relation to him.

[36] The evidence of Alpheus and Simon Mabuza made clear that their fathers did not move voluntarily. This is in sync with the evidence of both sets of experts. The ShakesShem report aptly posits the departure of families from the farm against the backdrop of the Prevention of Illegal Squatting Act 51 of 1951, and the Trespass Act 6 of 1959, which was used to remove people from land where their presence had become inconvenient. Professor Delius too recognized that the departure of labour tenants rested on a system of racial segregation and a broader racial framework. If they did not move the police would be called in and the might of the state would be used to evict them. In essence they were constructively evicted by the landowners who so impeded their use of the land for grazing and cultivation, that they had no alternative but to leave. This was aided by physical eviction at the behest of the police. From this it can be deduced that Alpheus and Simon Mabuza were forced to move against the backdrop of racial land legislation, the 1913 and 1936 Land Act, the Prevention of Illegal Squatting Act 51 of 1951, the Trespass Act, to name a few and the practice of police deployment to evict recalcitrant African persons off White -owned farms. This in my view would constitute the dispossession of rights in land after 1913 both as a result of racial laws and a racial practice.

For, as Professor Delius stated above:

“While afforestation (along with mechanization of farming) allowed farms to shed significant numbers of former labour tenants, political

imperatives drove the mass eviction of labour tenants. From the 1950s to 1970s the state first regulated and then abolished labour tenancy. Former labour tenants were evicted and resettled in the reserves, soon to become homelands.”

Is there an entitlement to restoration?

[37] Pertinent to this enquiry is a comparison between precisely what was lost upon dispossession, the current use thereof and respective values. The evidence of Mr. Emery[8] and Mr. Banks[9] assisted us in identifying the size of the homesteads and land use of Samuel and Masotsha Mabuza. The evidence of Mr. Stephenson helped us in arriving at their respective valuations.

[38] Mr. Emery as aforementioned, created maps from information he received from Field Surveys and GPS co - ordinates of the December 2022 inspections conducted on behalf of the Plaintiff. The background imagery to his maps were aerial photographs from 1956 of Rooywal, from the Surveyor General’s office in Mowbray, Cape Town. On the maps, as also aforementioned he depicted GPS

numbers being MAB3 for the location of Sam Mabuza’s homestead, MAB5 for Mosotsha Mabuza’s homestead and MAB11 for Magalela

Mabuza’s homestead. Mr Banks testified that Mr Emery’s evidence was totally acceptable as was his mapping. He pointed out that whilst Mr Emery worked off 1956 aerial photos he had used 1936 and 1959 aerial photographs.

[39] In an additional report dated 10 October 2023, Mr Banks conducted a comparison of the inspections of the claimed land by the Regional Land Claims Commission in 2017, the inspection by the claimants in December 2022, an inspection under the auspices of the Surveyor General conducted on Friday 6 October 2023 and the GPS points as recorded in the minutes of the Court’s inspection in loco. His report consolidates the following information in respect of the three claims at points MAB3; MAB5; and MAB11.

MAB 3: The Homestead of Sam Mabuza

[40] The 1936 aerial photograph depicted one homestead comprising two structures and fields 3.8ha in extent. In the 1959 aerial photograph it was unclear if the homestead still existed but the fields appeared to be no longer actively cultivated.

MAB 5: The homestead of Masotsha Mabuza

[41] The 1936 aerial photograph depicted three homesteads whilst the 1959 aerial photograph depicted one homestead. The 1936 photograph also depicted 18 structures and fields of 15.1 ha.

MAB 11: The homestead of Magalela Mabuza

[42] The 1936 aerial photograph depicted one homestead and one kraal. The 1959 photograph depicted one homestead with 18 structures. Fields of 0.9ha.

Feasibility of restoration

Testimony of Valuer Mr. Allan Stephenson

[43] Mr. Allan Stephenson[10] , the Second to Fourth Defendant’s expert valuer, inspected the claimed land between 19 and 21 June 2023 and produced a valuation report thereof on 7 July 2023. The extent, location and use of the claimed properties, to recap, is 3,974.1112 ha, located between Barberton and Sabie in the Mpumalanga Province. The properties are currently used for farming operations which comprise extensive commercial timber plantations and a citrus, fruit and nut farm comprising citrus orchards of various ages and macadamia nuts and avocados on Stadsvallei.

[44] Mr. Stephenson estimated the value of the claimed properties to be R214 ,187, 636.00 (Two hundred and fourteen million, one hundred and eighty seven thousand, six hundred and thirty six rand). In arriving at this valuation he had researched the market for comparable properties within the neighboring area and further afield, undertaken deed searches and spoken with representatives of various buyers, sellers, estate agents, valuers, conveyancing attorneys, developers and other knowledgeable people in the industry in an effort to obtain information on past sales, as well as current sales and market information.

[45] Mr. Stephenson’s unchallenged testimony was that there would be overcompensation by more than R200 million if the full claim for all five farm portions are restored. He explained that highly productive timber forests and orchards, currently on the claimed land, are approximately ten times more valuable than unimproved grazing, which was dispossessed.

[46] Mr. Stephenson was requested by the Court to undertake a valuation exercise of the land and structures occupied by Messrs Samuel Mabuza, Mosotsha Mabuza and Magalela Mabuza as of the date of removal, being 1956. The result of his exercise was Exhibit E, a table which is replicated below. In arriving at his valuations he took into account the information provided by experts Emery and

Banks, the number of livestock mentioned in the ShakesShem report, and the carrying capacity of the land. His unchallenged calculations

were based on the current value of a homestead, being of R 150 000.00 (One hundred and fifty thousand rand), current value of arable land at R 30 000.00 (thirty thousand rand) per hectare, and current value of grazing land at R 6000.00 (six thousand rand) per hectare.

NO

NAME

FARM NAME

GPS NO

GPS CODES

YEAR OF REMOVAL

STRUCTURES

FIELDS

GRAZING AND

LIVESTOCK

TOTAL

OVERCOMP IF RESTORED

8

Sam Mabuza

Portion 3 (R/E) of Rooywal 239 JT

MAB3

S25.30887

E030.66870

1956

Emery

Map 8, pg96

Not mentioned

Not visible

ShakesShem Report

C 98 para7,9

No ha mentioned

10c, 5g

Banks

2 (pg32)

3.8ha (pg32)

Not visible

R150 000

R114 000

R330 000

R594 000

R2 575 069 (58,8ha)

9

Masotsha Mabuza

S25.28009

E030.66119

1956

Emery

Map 5, pg84

Not mentioned

Not visible

ShakesShem Report

C pg 85, para 7.11

No ha mentioned

86c, 14 d, 68g

Banks

4 (pg 33)

3,75ha (pg33)

Not visible

R150 000

R112 000

R3 198 000

R3 460 500

R25 468 033 (536,75ha)

18

Magalela Mabuza

S25.31055

E030.68884

1964

Emery

Map 6, Pg 88

Not mentioned

Not visible

ShakesShem Report

C pg 91. Para7,20

No ha mentioned

20c, 30g

R150 000

Non visible

Not visible

Banks

6 (pg34)

R150 000

0

T780 000

R930 000

R6 076 445 (130ha)

Valuation of Sam Mabuza land and structures

[47] In respect of Sam Mabuza GPS point MAB3, on Portion 3 of Rooywal, the total current day value of his homestead, cropping and grazing land was estimated at R 594 000.00 (five hundred and ninety-four thousand rand). Mr. Stephenson calculated a value of R 330 000.00

(three hundred and thirty thousand rand) for 55 hectares of grazing land[11], R 150 000.00[12] (one hundred and fifty thousand rand) for one homestead and R114 000.00[13] (one hundred and fourteen thousand rand) for 3.8 ha of cultivating fields. His calculation was not challenged. Mr. Stephenson testified that if the land that was lost in 1956 were restored, the overcompensation would be R 2 57 5 069.00 (two million five hundred and seventy five thousand and sixty nine rand), being the current day value of 58,8 ha of the land as it is today cultivated with forestry and fruit.

Valuation of Masotsha Mabuza land and structures

[48] Applying the same values, Mr Stephenson calculated the current value of Mr. Mabuza’s homestead and grazing land according to the testimony of his son, Simon, to be R 3 460 500.00. (three million four hundred and sixty thousand five hundred rand). This was on Simon’s testimony that his father had 86 cattle, 14 donkeys and 68 goats. Mr. Stephenson testified that

537 ha would be required to accommodate that number of livestock and it was highly unlikely that Masotsha Mabuza would have had access to such a vast area. Mr Stephenson’s experience was that the maximum permitted would be 10 Large Stock Units (LSU) per ha. Mr. Stephenson’s evidence was unchallenged. I note as reflected in the table, that were 537 hectares to be restored, there would be overcompensation of R 25 468 033.00 (twenty five million four hundred and sixty eight thousand and thirty three rand), being the current value thereof cultivated with forestry and fruit.

[49] Mr. Goddard pointed out that Simon Mabuza would have been four or five years old at the time of dispossession and has little personal knowledge. His estimates given in oral testimony, namely 20 km of cultivated land, are self-evidently overstated and unreliable. Neither the numbers of structures, number of livestock nor 20 km of cultivated land are confirmed by aerial imagery. I agree. Furthermore, I agree that regard being had to the similarities between Samuel and Masotsha Mabusa’s households, the probabilities are that the number of livestock at both homesteads would have been the same or very similar. I accept Mr. Stephenson’s reasoning that the total current-day value of R 594 000.00(five hundred and ninety-four thousand rand) should in the circumstances also be attributed to the land and structures of Masotsha Mabuza. This evidence too was unchallenged.

Valuation in respect of Magalela Mabuza land and structures.

[50] Mr. Stephenson testified in respect of Magalela Mabuza, the current day value of his property based on the ShakesShem report indicating he had twenty cattle and 30 goats was R 930 000.00, (nine hundred and thirty thousand rand). If 130 ha of forestry and fruit cultivated land were to be restored to him, the overcompensation would be R 6 076 445.00 (six million, seventy-six thousand, four hundred and forty-five rand).

[51] Mr. Stephenson’s oral evidence supported by calculations thus concluded that, on what the landowner defendants say are the exaggerated stock numbers as shown in the ShakesShem report, restorations will result in overcompensation of more than R 2 000 000.00 (two million rand) in respect of Sam Mabuza’s homestead and more than R 25 000 000.00 (twenty-five million rand) in respect of Mashotsha Mabuza’s homestead. The above evidence was not challenged.

Feasibility of Restoration

[52] Mr. Stephenson testified that it was not feasible to restore the claimed land. His feasibility report and oral evidence was to the effect that:

52.1 It is not possible to restore the land as it was at the time of dispossession, as it has been transformed into timber forests and orchards;

52.2 The claimed land is highly productive. Advanced technical support is needed to farm it, and extensive training and post settlement farming support would be needed to maintain the farms at optimal use in the event of restoration;

52.3 If the land is not farmed optimally, there will be a loss of work to current farmworkers and a loss to the economy;

52.4 Any deviation back to grazing would impact severely. Timber farms and orchards require economies of scale for optimal productivity, and grazing or subsistence farming is not the best use of the land;

52.5 There are pockets that are unsuitable for timber or orchards that could be used for grazing, but this would create a fire risk and a biosecurity risk. There would also be difficulties with people moving in and out. The pockets have not been identified, do not have any services (except possibly a water reservoir) and may not be accessible;

52.6 Substantial overcompensation will occur if the dispossessed areas are restored.

[53] Mr. Stephenson’s consideration of the factors identified in The Baphiring Community v Tshwaranani Projects CC (806/12) [2013] ZASCA 99 as being pertinent to determining the feasibility of restoration, is quoted below:

53.1 “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 in the surrounding area since dispossession

The Subject Properties and the surrounding farms were occupied and farmed by individual farmers as early as 1915. The Landowners initially undertook commercial agriculture and although they continued with livestock grazing, over time they converted grazing land which was suitable for cultivation into what are highly productive timber farms, game farms and citrus orchards.”

53.2 Official land use planning measures governing the land concerned;

I have not had sight of the Spatial Development Framework (SDF) for the Thaba Cheweu Local Municipality. However, we have obtained information form the Local Municipality directly related to the claimed properties and it is apparent from the valuation roll and other maps and plans which I have seen that the properties are “zoned” for agricultural use.

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

The costs of expropriating the claimed land is estimated at approximately R214,187,635. However, this excludes transfer and other financial losses which may arise. To the best of my knowledge there are no mineral rights attached to the land and thus no compensation would be payable for this item.

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

I am not aware of any institutional and financial support that is available for resettlement.

53.5 The extent of the compensation that shall be payable to the current claimants of the land

The properties have been claimed on behalf of the Mabuza Family. l have attached historical photographs from 1935 through to 1965 displaying development and occupation of the affected properties over time in Annexure B. One can see from the historical photograph dated 1936 that there were approximately 4 Imuzi’s situated on the Subject Properties. However, by 1955-56 these no longer appear and the extensive timber farming and cropping activities are visible.

53.6 The number of current occupants of the land, including the current landowners and their families, as well as any employees, 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

It is apparent form the Government Gazette Notice that there are 3 landowners who own the 5 registered subdivisions currently under claim. In the event that the claimed land is restored to the claimants this could result in some social disruption. In my view, there will be more social disruption to the highly developed and intensive farming operations than to the less developed farming operations which do not require the same amount of labour units to operate.

53.7 The number of individuals and families who are expected to resettle. Moreover, to the extent that the entire community does not wish to resettle, the form and extent of restoration and/or restitution

I am not aware of the number of individuals or families who are expected to resettle, nor the form and extent of restoration and/or restitution.

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

The claimed land is highly productive and advanced technical expertise and knowledge are required to farm it optimally. Extensive training and post settlement funding would be required to maintain the farms at optimum levels in the event of physical restoration.

53.9 The envisaged land usage should the land be restored, and the resultant extent – if any of the loss of full production and any impact thereon on the local economy should farming activities not be continued at current levels

The claimed areas are highly productive and generally form part of larger timber and orchard farming operations. The total area under claim equates to 3,974,1112 hectares. Thus if the entire 3,974,1112 hectares are awarded to the claimants the economic impact on the property owners’ farming activities will be extensive. It could result in the loss of employment to current workers and their families and adversely affect the local economy.

53.10 Should the land be restored to the Claimants, the extent of “overcompensation”, if any, and how the problem of “overcompensation” if any should occur, will be avoided

The claimants have claimed the total extent of the farm. The claimants claim that they were dispossessed of grazing rights. However, it is apparent form paragraph 22.1 that the Subject Properties were occupied by individual farmers from as early as 1870.The value of the claimed subject properties are estimated at R214, 187, 625 as summarized below.”

[54] Mr. Mathebula for the First Defendant and the Participating Party questioned Mr. Stephenson’s eligibility to comment on feasibility. Mr. Stephenson pointed out that he was referring to the factors set out by the Supreme Court of Appeal in the Baphiring case at arriving at his conclusion. Other than that Mr. Stephenson’s evidence on feasibility remained unchallenged.

[55] Mr. Mathebula stated that there is no alternative State land available. He stated moreover that there was no restoration support programme or funds set aside for the claimants in this matter. He submitted however that 200 to 300 hectares of any part of the claimed should be expropriated and restored to the claimants in full ownership. The difficulty with this submission is the total absence of any evidence proving the dispossession of 200 to 300 ha from precise claimants. I decline the invitation to make any such order. Mr Mathebula’s submission resided more appropriately in the realm of possible settlement negotiations.

[56] From the unchallenged evidence of Mr. Stephenson it is clear that restoration in respect of the three successful claims would result in significant overcompensation. In respect of Samuel Mabuza, there would be overcompensation of R2 million (two million rand), overcompensation of R25 million (twenty-five million rand) in respect of Masotsha Mabuza and overcompensation of R6 076 445 (six million and seven six thousand, four hundred and forty five rand) for Magalela Mabuza. This hampers the feasibility of restoration.

[57] In Mhlanganisweni Community v Minister of Rural Development and Others it was stated[14] that to be feasible, restoration of land rights must be possible, practical, manageable and convenient, not result in substantial overcompensation nor unduly deplete state resources or be overly disruptive. The three successful claims in this matter simply do not pass muster.

Section 33 Factors

[58] Nor am I of the view that the factors I am required to consider in terms of Section 33[15] of the Act favour restoration, as appears from a consideration of the applicable sub-sections below:

58.1 In respect of section 33(a) and (b) the desirability of providing for restitution and remedying past violations of human rights warrants restitution of rights in land.

58.2 The requirements of equity and justice and the feasibility of restoration, factors set out in sections 33(c) and 33(cA), in my view militate against awarding physical restoration of the claimed land for the reasons stated in the unchallenged evidence of Mr Stephenson above, not least of which is the severe overcompensation and disruption this will entail. Awarding

alternative state owned land is not feasible, given that none is available. Equity and justice in all the circumstances of this case points to an award of financial compensation by way of equitable redress. I note moreover that payment of compensation will not cause any social disruption to workers currently on the claimed land.

58.3 Section 33(eC) requires that in the case of an order for equitable redress in the form of financial compensation, changes over time in the value of money have to be considered. This has been complied with, in that valuations have been done at current value and an amount that is fair compensation was determined for the rights in land that were dispossessed.

58.4 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 being the factors set out in section 33 (eB) have all been considered above and favour restitution.

[59] In view of all of the above I accept on the basis of Mr. Stephenson’s evidence, his analysis of the factors identified in Baphiring supra, and on a consideration of the factors at Section 33 of the Act, that restoration is not feasible. Instead the successful claimants are entitled to restitution in the form of equitable redress, being of financial compensation. This would be an equitable and appropriate form of restitution.

[60] In this regard I intend granting compensation in the sum of R594, 000. 00 (five hundred and ninety-four thousand rand) to Alpheus Mabuza in his capacity as the son and direct descendant of Sam Mabuza. I also intend granting compensation in the amount of R594, 000.00 (five hundred and ninety-four thousand rand) to Simon Nutsi Mabuza in his capacity as direct descendant of Masotsha Mabuza.

[61] With regard to the third property being homestead 18, the homestead of Magalela Mabuza, as no evidence was given and no direct descendant of Magalela Mabuza was identified, no award is made of compensation. Mr. Goddard pointed out that Magalela Mabuza was apparently buried on the farm according to the ShakesShem report and may not have been dispossessed. I make no finding in this regard.

Costs:

[62] In determining costs, I note that the claim was made for restoration of five entire farm portions with a total extent of 3, 974,1112ha. The awards I intend making are in respect of only parts of Portions 3 and 1 of Rooywal respectively, with a total approximate extent of 125,2ha. No award is being made in respect of the Second Defendant’s property, being Portion 2 of Rooywal.

[63] The Second Defendant will thus be entirely successful and all its costs should be paid by the First Defendant and the Participating Party, jointly and severally, applying the test in Biowatch Trust v Registrar, Genetics Resources, and Others[16] which endorses the general approach of costs being awarded to successful litigants in proceedings against the State where matters of genuine constitutional import arise. See also Elambini Community v Minister of Rural Development and Land Reform and Others.[17]

[64] The Third and Fourth Defendants will be substantially successful as the claims that have succeeded on portions 3 and 1 respectively are only in respect of 125,2ha of those portions. It would be appropriate in the circumstances in my view for half of the costs of the Third and Fourth Defendants to be paid by the First Defendant and the Participating Party, jointly and severally, applying the test in Biowatch. I accordingly order as follows:

1. Alpheus Mabuza is entitled in terms of section 2(1)(c) of the Restitution of Land Rights Act No 22 of 1994 to restitution of rights in land on portion 3 of the Farm Rooywal 239JT which his father Samuel Mabuza was dispossessed of, by way of equitable redress in the form of the payment of compensation to him by the first Defendant, the Minister of Agriculture, Land Reform and Rural Development, in the sum of R594,000.00 (five hundred and ninety-four thousand rand);

2. Simon Nutsi Sycho Mabuza is entitled in terms of section 2(1)(c) of the Restitution of Land Rights Act No 22 of 1994 to restitution of the rights in land on Portion 3 of the Farm Rooywal 239JT which his father Masotsha Mabuza was dispossessed of, by way of equitable redress in the form of the payment of compensation to him by the First Defendant, the Minister of Agriculture, Land Reform and Rural Development in the sum of R594,000.00 (five hundred and ninety-four thousand rand);

3. The first Defendant, the Minister of Agriculture, Land Reform and Rural Development is directed to pay the compensation stipulated in the preceding paragraphs within six months of the date of this order.

4. The balance of the claim is dismissed.

5. The First Defendant and the Participating Party jointly and severally, shall pay all the costs of the Second Defendant and half the costs of the Third and Fourth Defendants.

Y S MEER

Acting Judge President

Land Claims Court

I agree.

A M KGOELE

Judge

A Andrews

Assessor

APPEARANCES:

For the Plaintiff:

Adv. M S Ngomane

Adv. L. Zwane

Instructed by:

WS Nkosi Attorneys Inc.

For the First Defendant and Participating Party:

Mr S. Mathebula – State Attorney,

Pretoria

For the Second, Third and Fourth Defendant:

Adv. G. Goddard SC

Shepstone and Wylie Attorneys

[1] Msilezi is not the name of a farm. It is an area between White River and Sudwala Farm. Rooywal, is a surveyed farm with precise

boundaries that are apparently different from Msilezi. Cadastral descriptions may not have been known when the claim was lodged,

hence the description of the claimed land as Msilezi, which upon inspection by the RLCC, resulted in the claimed land being gazetted

as Rooywal.

[2] Professor Delius is currently a professor emeritus at Wits University. He has researched issues of land rights dispossession and rural transformation since 1970. Since 1994 he has engaged in research related to land reform and made contributions to the policy making process for international agencies including the World Bank, NGO’s, government departments and policy institutes. He has also provided expert evidence on land related issues. In 2017 he appeared before the high level panel chaired by former President Kalema Mohlante on the challenges pertaining to the land restitution process. Prof Delius has published “Rights to Land: a Guide to tenure, upgrading and restitution in South Africa” (Gecana 2017 now in its third edition).

[3] Delius Report, pages 1 and 2.

[4] Delius report, pages 70 to 73.

[5] Delius report page 6

[6] Mr. Mbiba is an independent consultant in archival research. He worked as a researcher for the Land Claims Commission between 1997 and 2003 and has investigated some 30 land claims. His work includes plotting data on maps to assist claimants to identify their claims.

[7] Mr. Nkosi has a BPed from UKZN (1992). He worked as a teacher before being appointed as Assistant Director, Regional Land Claims Commission Mpumalanga, where for some 9 years he engaged inter alia in researching, negotiating and implementing restitution claims. Mr. Nkosi is currently head researcher aT ShakeShem (Pty) ltd

[8] Mr Emery is an environmental consultant who is also a trained ecologist. He holds degrees of B.Sc and Honours

in Zoology and Masters in Conservation Biology, University of Cape Town. Since 2004 he has been an independent consultant working under the name of Emross Consulting. Prior thereto between 2002 and 2003 he operated a company called Environet. Mr Emery has also worked for the Department of Environmental Affairs Mpumalanga and the Mpumalanga Parks Board where he was in charge of information

management Systems.

[9] Mr Banks is a professional land and photogrammetric surveyor. He is also a professional land surveyor with the South African Geomatics

Institute. His land surveying experience dates back to 1985 when he commenced working for the ESKOM transmission land survey department. In 1996 he was a member of the team that developed and commercialized the first combined airborne LIDAR and digital camera system worldwide. He is president of the Association of Air Survey Companies and as the Aerial Survey representative on the South African Geomatics Counsel. He is currently the director of Models and Maps.

[10] Mr. Alan Stephenson is the managing director of Mills Fitchet and Valuation. He is a professional Valuer with degrees B.AG.Mgt.(Natal), AFM (UK), LLB (NATAL) FIVSA, RICS. He is a Fellow of the South African Institute of Valuers, Appraiser Registered in terms of the Administration of Estates Act, 1965; Appointed Assessor to the Land Claims Court, Member of the Royal Agricultural College and RICS, Diploma in International Arbitration. He as more than 30 years’ experience in all facets of property valuations and is currently the Managing Director of Mills Fitchet Africa (Pty)Ltd. He has a degree and post graduate diploma in Agricultural Farm Management and farms of his own account. He also has a law degree and a Diploma in International Arbitration. He is currently the appointed municipal Valuer of approximately 15 municipalities in Kwazulu-Natal. He has appeared as an expert witness in the High Court and Land Claims Court on numerous occasions. He is an appointed assessor to the Land Claims Court. He has also been involved in international arbitrations.

[11] Current value of 55 hectares of grazing land at R6000 per hectare = R330,000. 55 hectares would be required to graze 10 cattle /Large Stock Units (10 cattle = 5 LSU. 5 LSU can be accommodated per hectare, hence 50 hectares for 10 LSU) and 5 goats (can be accommodated on 5 hectares).

[12] Mr. Stephenson explained that a homestead/household known as an Umuzi was valued at R150 000, being the grant the state provides for low cost housing. This applies regardless of the number of structures in an Umuzi.

[13] 3.8 ha x R 30 000 (current value of arable land per hectare).

[14] [ 2002] ZALCC 7 at para 19 to 24.

[15] “Section 33. Factors to be taken into account by 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.”

[15] “Section 33. Factors to be taken into account by 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.”

[16] 2009 (6) SA 232 CC at para 22.

[17] Elambini Community and Others v Minister of Rural Development and Land Reform and Others (LCC88/2012) [2018] ZALCC 11 at para 155 to 157.