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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
CASE NUMBER: LCC66/01
Held in Randburg on 6 – 10 September 2004, 11-13 October 2004, 14 October 2004,
15 November 2004
Before Moloto J and Hugo G (Assessor)
Decided on: 9 March 2005
In the matter of :
MMULE MOLLY MPHELA First Plaintiff
(and the other plaintiffs listed in Annexure A
to the Notice of Action)
and
GRAHAM ENGELBRECHT First Defendant
(and the other defendants listed in Annexure B
to the Notice of Action)
JUDGMENT
MOLOTO J:
This is an action in terms of Chapter IIIA of the Restitution of Land Rights Act1 (“the Act”), read with rule 53A(2)(b) of the Rules of Court, for restitution of a right or rights in land. The affected land is the former Remaining Extent of the quitrent farm Haakdoringbult No 734, situate in the district of Rustenburg, measuring seven hundred and forty-two (742) morgen, three hundred and ninety-eight (398) square roods, as described in deed of transfer no 5132/1932 (“the farm”). The name of the farm later changed to Remaining Extent of the farm Haakdoringbult 542 Registration Division KQ, Thabazimbi, Limpopo.
The plaintiffs are some 218 members of the Mphela family, being the descendants of one Daniel Rakgokong Mphela, and those of his siblings and the executors in the estate late Daniel Rakgokong Mphela. The defendants were originally 19, who each had an interest in the claimed land. Several pre-trial conferences were held during the exchange of pleadings. During those conferences it appeared that the defendants who are bondholders with respect to the various portions of the claimed land did not oppose the claim, provided the outstanding bond amounts were paid if and when the land was awarded to the claimants. On that basis, such defendants were excused from further participation in the trial. Yet other defendants fell by the wayside as they disposed of their interest in the claimed land. The result was that only ten defendants persisted in their defence of the claim. These were the first, second, third, sixth, seventh, fourteenth, fifteenth, sixteenth, eighteenth and nineteenth defendants.
The parties filed a statement of agreed facts and facts in dispute from which it emerged that there are only three issues in dispute, namely –
whether the plaintiffs lodged their claim(s) for restitution with the Commission on Restitution of Land Rights (“the Commission”) in the prescribed manner in terms of the Act;
whether the claim, if properly lodged, is excluded by the provisions of section 2(2) of the Act, that is, whether just and equitable compensation, calculated at the
time of the dispossession, was received. This dispute involves the question when
the dispossession took place and what rights in land were dispossessed; and
if the above two issues are determined in favour of the plaintiffs, what form of
restitution should they be granted. The dispute includes the questions whether it is feasible to restore the whole or part only, of the claimed land to the plaintiffs; the question whether an order should be made in respect of the compensatory land, if so, what order; and a balancing of the interests of the parties by considering the factors referred to in sections 33 and 35 of the Act.
Background
What follows hereunder is common cause. One Klaas Pali Mphela (“Phadi Mphela”) acquired the entire farm Haakdoringbult No 734 in equal, undivided shares with one Mautsi Makok on 19 August 1918, held by Deed of Transfer No 7874/1918. In 1921 the farm was partitioned into Portion 1 and the Remainder. Phadi Mphela held the Remainder by way of Certificate of Partition Title No 6988/1921. The Remainder constitutes the claimed farm.
Phadi Mphela died intestate on 10 February 1932 and the farm was awarded to his eldest son, Daniel Rakgokong Mphela. On 31 March 1932, Daniel Rakgokong Mphela entered into an agreement (“the family agreement”) in the following terms: -
“I, the undersigned, DANIEL RAKGOKONG MPHELA (“Native”), do hereby declare :
THAT whereas I am the lawful desendant and heir in terms of native custom of my late
father PHALI MPHELA (Native).
AND whereas certain remaining extent of the quitrent farm HAAKDOORNBULT No.
734, situate in the district of Rustenburg:
Measuring as such SEVEN HUNDRED and FORTY TWO (742) Morgen, THREE HUNDRED and NINETY EIGHT (398) Square Roods:
Is about to be registered in my name from the Estate of my late father PHALI MPHELA
(Native).
AND whereas in terms of Native custom I desire to provide shelter and habitation for all
my brothers and sisters surviving children of my late father PHALI MPHELA (Native) :
I hereby declare :
That I give and grant unto my said brothers and sisters by name of :
FISTUS MPHPO MPHELA.
EFRAIM NAKELI MPHELA.
FANUEL MOSIANE MPHELA.
SANI MPOPI MPHELA.
CORNELIS RANTUTU MPHELA.
AZIEL SELIBO MPHELA.
SARINA MAKHII MPHELA.
DOROTHEEA CHALICHALI MPHELA.
BATSEBA GRACE MPHELA :
and the families of my deceased sister, MOSEDI MPHELA, (native) and two deceased brothers ELIAS RAMONANA MPHELA and ELIAS TSEHLITLI MPHELA (Natives), the undisturbed right to live and reside on the abovementioned property with their families and to use and cultivate the same and to exercise all the rights over the said property which I myself possess.
I further desire that at the death of the last survivor among us the aforementioned property should be sold by Public Auction under the supervision of the Native Affairs Department of the Union of South Africa, and that the proceeds should be divided in equal shares between all the children of my aforesaid brothers and sisters and myself and of my deceased sister MOSEDI MPHELA (Native) and two deceased brothers ELIAS RAMONANA MPHELA and ELIAS TSEHITLI MPHELA.
In the event of any of our children predeceasing us, I desire that the children of such child should take the place of their deceased parent and jointly receive the share of such parent. In the event of any of such grandchildren being deceased at the death of the last survivor of us and such deceased grandchildren leaving children then such children shall take the place of their deceased parent.
Thus done and signed at Rustenburg on this 31st day of MARCH, 1952, in the presence of the undersigned witnesses and in the presence of each other.”
The farm was registered in the name of Daniel Rakgokong Mphela on 27 July 1932. On 5 February 1946, and in breach of the family agreement Daniel Rakgokong Mphela purported to sell the farm to one Terblanche for ₤2 870-0-0. This resulted in an application by his siblings to set aside the sale and compel the registration of the usufruct granted to them against the title of the farm. The application was successful on both counts, however, the registration of the servitude of usufruct against the title deed of the farm was never effected.
On 24 April 1950 the Mphela family took a resolution at a meeting attended by all but two of Phali Mphela’s surviving children to exchange the farm for another farm known as Pylkop No 1006, situate in the district of Rustenburg measuring two thousand two hundred and sixty-four (2 264) morgen, five hundred and fifty-four (554) square roods (“Pylkop”). The resolution was taken as a result of persistent pressure exerted on the Mphela family by the government of the day and some white citizens to move from a so-called “white area”. The farm was outside the so-called scheduled2 or released3 areas, hence regarded as a “black spot”. The Mphelas were given a number of options, but preferred Pylkop, if they had to forfeit the farm. Pylkop was registered in the name of the South African Native Trust and destined for incorporation into Bophuthatswana. It was finally so incorporated. During 1949 and 1950 the Department of Native Affairs caused the farm and Pylkop to be valued in anticipation of successfully persuading the plaintiffs to sell the farm, failing that, expropriating it. The valuations were finally effected by the Central Land Board valuers, Cronjé and Liebenberg who valued the farm at ₤5 040-98-9 and Pylkop at ₤7 558-6-2.
On 15 May 1950 the Native Affairs Commissioner recommended the exchange of the two farms. Further recommendations were made to the Secretary for Native Affairs on 5 March 1951 and these were approved by the Minister of Lands. By letter dated 20 June 1951 the Chief Native Commissioner stated that he would not recommend the exchange because of the “large difference in value of the two properties.”
Daniel Rakgokong Mphela died on 5 March 1951.
On 19 July 1951 Johannes Makata Mphela, purportedly an executor in the estate of the late Daniel Rakgokong Mphela, concluded a deed of sale of the farm with the brothers, Hendrik Jacobus Botha and Adrian Hendrikus Stander Botha (“the Botha brothers”). The purchase price was an amount equal to the valuation of Pylkop, namely ₤7 558-6-2. In terms of the deed of sale the Botha brothers had the right to take occupation and did take occupation of the irrigable portion of the farm with effect from a date 12 days after the conclusion of the agreement. They were to take occupation of the remainder of the farm on 30 June 1952 or such earlier date as the plaintiffs might “find a new abode”. The sale was subject to approval by the Supreme Court of South Africa because minors and unborn beneficiaries stood to benefit from the provisions of the family agreement in terms of which the late Daniel Rakgokong Mphela had expressed a desire that the farm be sold and the proceeds be distributed amongst the Mphela children.
On the same day as the signing of the deed of sale, some of the siblings of the late Daniel Rakgokong Mphela concluded a contract with Johannes Makata Mphela, in his capacity as executor of the estate of the late Daniel Rakgokong Mphela, in terms of which they waived their servitudinal rights vis-a-vis the Estate.
Johannes Makata Mphela was appointed executor of the estate late Daniel Rakgokong Mphela on 23 July 1951.
A petition seeking approval of the sale of the farm to the Botha brothers was signed on 4 November 1953. On the same day, Johannes Makata Mphela, then the executor of the estate, concluded an agreement with one Hendrik French Verwoerd (“Verwoerd”), the Secretary for Native Affairs, for the purchase of Pylkop. Verwoerd acted in his capacity as a trustee of the South African Native Trust. The petition failed because certain of the persons who were understood to be missing or dead were in fact available, but not party to the petition.
The plaintiffs were apparently dissatisfied with the transaction (the sale of the farm to the Bothas). When a second petition for the approval of the sale was presented to the executor, Johannes Makata Mphela in 1955, he refused to sign it.
On 2 March 1956 Johannes Makata Mphela together with some of his siblings and usufructuaries under the family agreement applied to the Supreme Court to set aside the deed of sale of 19 July 1951. The application was against the Botha brothers and chief Ramalane Saltiel Ramokoka N.O. The authorities considered the latter to have jurisdiction over the plaintiffs and had appointed him executor of the estate late Daniel Rakgokong Mphela, in the place of Johannes Makata Mphela who was no longer prepared to go through with the sale. The fourth respondent was one Klaus Christian Holdt in his capacity as Native Commissioner for the district of Pilanesberg.
The basis for setting aside the sale was alleged to be that –
Johannes Makata Mphela signed the sale agreement at a time when he had not yet
been appointed executor;
the sale was subject to the approval of the Supreme Court, which approval the
applicants contended should not be granted; and
at the time of signing the agremeement, Johannes Makata Mphela believed that he was concluding an agreement of exchange of the farm for Pylkop, not a sale of the farm.
The application was stayed on 28 September 1956 because not all interested parties had been joined (some of the usufructuaries). The application was never decided on the merits.
On 15 July 1957 the Botha brothers sued for approval, confirmation and ratification of the sale of the farm and purchase of Pylkop by the Mphela family; transfer of the properties and registration against the title deeds of Pylkop of the family agreement and costs. The cited defendants were Louis Esselen N.O, a curator ad litem for unborn and untraceable beneficiaries under the family agreement; Ephraim Nakedi Mphela, one of the beneficiaries, Chief Ramokoka, in his capacity as executor of the estate late Daniel Rakgokong Mphela, the Native Commissioner, Pilanesberg and the Registrar of Deeds. Ephraim Nakedi Mphela initially defended the case, but later withdrew his defence. Judgment was granted on an unopposed basis on 12 April 1961.
Pursuant to the Court order, the farm was transferred by virtue of Deed of Transfer No T22933/1961 on 27 October 1961 and Pylkop was transferred in terms of Deed of Transfer No T15179/1962 on 24 July 1962. The family agreement’s terms and conditions were registered against the title deeds of Pylkop pursuant to a Notarial Deed of Servitude
On 10 July 1962, before registration of transfer of Pylkop, officials of the Department of Native Affairs and Chief Ramokoka visited the plaintiffs and warned them to leave the farm by 31 July 1962, otherwise they would be treated as illegal squatters. On 27 July 1962 the Native Commissioner visited the plaintiffs to hand over the title deed in respect of Pylkop.
The plaintiffs did not vacate the farm on 31 July 1962. On 1 August 1962, the Botha brothers laid a charge of trespass against the plaintiffs and on 2 August 1962 the officials of the Department of Native Affairs, the Botha brothers, a number of Police and allegedly also a number of soldiers, forcefully removed the Mphela family from the farm and transported some of them to Pylkop in Government vehicles, where they were provided with tents.
The disputed issues will be determined against the above background, with relevant additional detail added as the need arises.
The disputed issues
(A) The Lodging of the claim
In order to establish whether a valid claim or claims was or were lodged on behalf of some or all the 218 plaintiffs, it is necessary to determine who were dispossessed of rights, what rights they were dispossessed of and who lodged the claim or claims.
As to who were dispossessed of rights in land, Mr Havenga, for the participating defendants, accepted that the estate late Daniel Rakgokong Mphela was dispossessed of ownership of the farm, and that each of the surviving grandchildren of Phali Mphela and the children of deceased grandchildren of Phali Mphela were dispossessed of usufructuary rights. They also stood to share in the proceeds of the sale of the farm in terms of the family agreement. The 131st plaintiff is a child of Elias Tseketle Mphela (Daniel Rakgokong Mphela’s deceased brother at the time of drawing the family agreement). The family agreement granted usufructuary rights to Daniel Rakgokong Mphela’s siblings and the families of his deceased siblings. Families must include the surviving spouses of Daniel Rakgokong Mphela’s siblings and their children, one of whom was 131st plaintiff. In my view, therefore, and contrary to the contention on behalf of the participating defendants, the 131st plaintiff was an original usufructuary. Further descendants beyond the grandchildren of Phali Mphela, and provided their ascendants had pre-deceased them, had the right, together with surviving grandchildren to share in the proceeds of the sale of the farm. Finally, anyone who could show that at the time of dispossession he or she or his or her ascendant had occupied the farm for 10 or more years will have been dispossessed of beneficial occupation for a period of not less than 10 years.4
The question as to who lodged a claim presents some difficulty, hence requires to be looked at against both a factual and legislative historical background. The factual background suggests that three claims were lodged. The first one was lodged by attorney Gilfillan on the instructions of 11 members of the Mphela family, among them, Johannes Sepane Mphela who was at the time a co-executor in the estate late Daniel Rakgokong Mphela. These 11 family members instructed their attorney that the claim was a family claim. The claim was lodged by letter dated 1 March 1995, to which was attached a list of the names of the 11 family members. The heading to the list of names was “Provisional list of claimants for Haakdoringbult, District Rustenburg”. No claim form as required by section 10 of the Act was completed because the Rules of the Commission, in which Rules the form is prescribed, had not yet been published. The Rules were published in Government Gazette 16407 of 12 May 1995. The letter of 1 March 1995, was therefore drafted with the Act as the only guide. The letter reads –
“re : LAND CLAIM : HAAKDOORNBULT 542KQ
The above refers. We address this letter to you on behalf of our clients who are descendants and successors in title to the late Klaas Phali Mphela who was the owner of the Remaining Extent of the farm Haakdoornbult 734 as it was then, in the district of Rustenburg in terms of a Deed of Transfer no 6984/1921. Clients wish to claim their rights in the land in terms of the Restitution of Land Rights Act 22 of 1994.
In 1932 the farm was registered in the name of Daniel Rakgong Mphela who in terms of customary law, became the holder of the land as head of, and eldest surviving male member of the family, title deed no 5135/1932; a copy of which is attached for your information.
The family was removed from Haakdoornbult in terms of the Native Trust and Land Act 18 of 1936 in August 1962 to the farm Pylkop in the Rustenburg district which was later incorporated into the erstwhile Bophuthatswana. The family suffered great losses in terms of livestock and other property they were forced to leave behind. No compensation was paid for the buildings erected on the farm.
The original “Grondbrief” for the farm Haakdoornbult was issued to a certain J B J van Deventer in 1896. The farm was bought in 1921 by K P Mphela and transferred to D R Mphela in 1932. After the removal the farm was bought by A J H Botha and H S Botha; title deed no. T22933/1961. In 1986 the farm was transferred to D Botha who was sequestrated by the Land Bank. In 1993 Land Bank sold the farm in execution to Graham and Hendrina Johanna Engelbrecht, title deed no T98238/1993 who are the present owners of Haakdoornbult. According to our instructions the owners are not residing on the farm at present.
A list of the descendants is attached. A more complete list will follow as soon as we have obtained the same. In any event the suggestion is that the land be transferred into the name of a family trust should restitution be considered feasible. The title deed in terms of which clients are re-claiming the land is also attached. We are still in the process of obtaining a power of attorney and will forward the same to you in due course.
Kindly inform us as to what further information is needed in order to facilitate the claim and whether oral evidence must be presented at a hearing by the Commission.”
Title Deed no. 5135/1932 should read 5132/1932
Provisional list of claimants attached to the above letter :
“PROVISIONAL LIST OF CLAIMANTS FOR HAAKDOORNBULT, DISTRICT
RUSTENBURG
Johannes Sepane Mphela
Isaac Modise
Lucas Mphela
Samuel Mphela
James Mphela
Fistus Mphela
Johannes Mphela
Micheal Mphela
Saul Mphela
Jop Mphela
David Mphela.”
The second claim is a claim form dated 6 February 1996 and signed by Johannes Sepane Mphela. This form emerged from the Commission’s file of documents which were handed into Court during the hearing of the case. In this claim form the person who lost a right in land is stated as the “Mphela family” and Johannes Sepane Mphela acts in his capacity as “contact/spokesperson”. At paragraph 5.1 of the claim form there is an elaboration that reads – “it is a family matter, discussed and arranged by the Mphela family”. At paragraphs 6 and 9 of the claim form there are references to an “attached document” for further information. I could find no document that could be such an attachment in the commission’s file of documents.
The third claim was lodged by attorney Du Plessis (she replaced attorney Gilfillan when the latter took up employment elsewhere) on a scantily completed claim form dated 21 December 1998. All that is mentioned on this claim form is the following :
that the property dispossessed is : Remaining Extent of the farm Haakdoringbult 542 KQ, District of Thabazimbi, Northern Province.
The body which acquired the property is : Government.
Particulars of person who lost right in land are : Mr D R Mphela.
All three claims were lodged before the cut-off date for lodgment of claims as provided in section 2(1)(e)5.
The legislative historical background to the claim is that at the time of lodging all three claims, section 2(1) of the Act provided the following :
“(1) A person shall be entitled to enforce restitution of a right in land if –
he or she is a person or community contemplated in section 121(2) of the Constitution6 or a direct descendant of such a person; and
(b) the claim for such restitution is lodged within three years after a date7 fixed by the Minister by notice in the Gazette.”
The relevant part of section 121(2) of the Interim Constitution provided that –
“(2) A person or community shall be entitled to claim restitution of a right in land from the
state if –
such person or community was dispossessed of such right at any time after a date8 to be fixed by the Act referred to in subsection (1);”
The Act defined a “person” as including a community or part thereof.9
The Land Restitution and Reform Laws Amendment Act10 amended section 2 of
the Act by introducing the concept of a claim on behalf of a deceased estate. This amending Act was promulgated on 23 April 1999. This might account for the fact that none of the claims referred to above, was on behalf of the estate late Daniel Rakgokong Mphela. However, the amendment to section 2 is deemed to have come into operation on 2 December 1994 when the Act was first promulgated in its original form.
Against the above background the contentions of the parties are as follows:
For the plaintiffs it is contended that a claim or claims has/have been validly lodged for (1) estate late Daniel Rakgokong Mphela, (2) the usufructuaries in terms of the family agreement, and (3) each and every one of the remaining plaintiffs. In short a claim has been validly lodged on behalf of all 218 plaintiffs. It is further contended that this is not a community claim, but claims by or on behalf of individuals and the estate.
On behalf of the participating defendants the contention is that the only validly lodged claim is the claim lodged on behalf of the 11 family members.
Section 10(1) and (2) of the Act deals with the lodging of claims and provides as follows:
“(1) Any person who or the representative of any community which is entitled to claim restitution of a right in land, may lodge such claim, which shall include a description of the land in question, the nature of the right in land of which he, she or such community was dispossessed and the nature of the right or equitable redress being claimed, on the form prescribed for this purpose by the Chief Land Claims Commissioner under section 16.
(2) The Commission shall make claim forms available at all its offices.”
The argument, on behalf of the participating defendants, is as follows –
as regards the claim for the estate :
Johannes Sepane Mphela never mentioned to attorney Gilfillan that he was an executor in the estate.
He did not act as such executor.
The letter of 1 March 1995 does not expressly state that it claims on behalf of the estate.
An estate is not a person as defined.
A claim on behalf of an estate does not accrue to descendants
- as regards the family
only a person or community may claim restitution.
The Act does not recognize the concept “family”.
Inasmuch as these are individual claims and the direct access proceedings were instituted after 31 December 1998, they do not qualify under the Act.
The usufruct was a personal right incapable of transfer or inheritance.
The rest of the family were entitled to only the proceeds of the farm after the death of the last of the usufructuaries.
These being individual claims, none of the plaintiffs except the 11 family members lodged claims validly.
I deal with the argument below
Claim for the estate :
The law is not absolutely consistent regarding the position of a claim by or on behalf of an estate. In the case of In re Kara (concerning properties formally known as the farm Cato Manor) LCC44/9811 the Court found that an executor of a deceased estate, and not an heir thereto, had locus standi to liquidate and distribute the estate. Therefore, only the executor, has the right to claim a right in land lost to the estate. This is also the position in terms of section 2(1)(b) of the Act. As against the abovementioned cases, there is the case of In re Moodley N.O.12 in which the Court declared that in interpreting the law in relation to a constitutional right contained in the Bill of Rights, a court must interpret it “in a manner which will promote the spirit, purport and objects of the Bill of Rights. An injunction that takes the form of a limitation which might altogether bar the right to restitution must be strictly interpreted so as not to deny a person a right which the Constitution had intended to give. That requires a broad interpretation of the standing of a claimant. If the injunction was complied with to such an extent that the objects of the right to restitution contained in the Constitution and explicated in the Restitution Act were achieved, it will be substantial compliance, sufficient to satisfy the injunction”. Although the Moodley case is distinguishable on the facts from this case, they are analogous in law. Both deal with the standing of a person who, on a strict interpretation of the law, has no standing. In the Moodley case such person is a descendant where the person properly having standing is an executor. In casu, it is an executor who did not mention that he is acting in his capacity as such and did not specifically mention that he is claiming on behalf of the estate, although the deceased is mentioned as the person in whose name the dispossessed right had vested. It is also not mentioned whether any of the 11 family members was a direct descendant of Daniel Rakgokong Mphela. In support of the view expressed in the Moodley case there is section 38 of the Constitution13 which also broadens the concept of standing. It provides :
“(38) Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are :
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members”
After considering all of the above and given the retrospective applicability of the amendment to section 2 of the Act, I am unable to conclude that a valid claim was lodged on behalf of the estate. This Court found in In re Former Highlands Residents 2000 (1) SA 489 at 494 that : “The important elements are that the claimants must be persons, and those persons must have lodged claims.” I find that such a valid claim on behalf of the estate late Daniel Rakgokong Mphela was not lodged.
Claim for the family
With respect to points (1) and (2) under this heading I cannot agree with the view that the Act does not recognize the concept of family. The Act clearly states that a person or community may claim. A community is defined as –
“any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group.”14
There can be no doubt that the Mphela family is one such group as is defined above, when regard is had to their stay on that land since its acquisition by Phali Mphela in 1921 and the family agreement.
Point (3) has no merit. The cut-off date of 31 December 1998 has nothing to do with launching of direct access proceedings. It relates to the lodging of a claim with the Commission. The direct access may be launched at anytime, even after 31 December 1998, provided that a claim was lodged with the commission before that date. In this regard, section 38B(1) of the Act provides :
“(1) Notwithstanding anything to the contrary contained in this Act, any person who or the representative of any community which is entitled to claim restitution of a right in land and has lodged a claim not later than 31 December 1998, may apply to the Court for restitution of such right : . . .” (my emphasis).
Point (4) is equally without merit. A right in land, the restitution of which may be
claimed under the Act, does not have to be a right capable of being transferred or
inherited. A personal right is indeed capable of restoration under the Act. A right in
land is defined as –
“. . . 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 10 years prior to the dispossession in
question.” (my emphasis).
A right in land is any right in land. It does not have to be registered, neither does it have to be a real right. I cannot imagine how one can transfer or inherit the interest of a labour tenant and sharecropper or beneficial occupation for a continuous period of not less than 10 years. The definition is not exhaustive of rights that can be claimed. It merely gives a few examples.
Once again I cannot agree with the argument in point (5). At the time of dispossession the farm had not yet been sold. Therefore, there were no proceeds the family could get at that time. At that time the family was entitled to the use and occupation of the farm as provided for in the family agreement and in the Act. The family, including even those who could not share in the proceeds of the farm but who were occupying the farm, were dispossessed of the very right of occupation and use. To argue, as Mr Havenga did, that those who were entitled to the proceeds of the sale of the farm, had such right transferred to Pylkop, where they could still get such proceeds, does not take the matter any further. The transfer of such right to Pylkop is the very dispossession complained of. It is not known how much Pylkop would fetch as compared to the farm when the time came to sell in terms of the family agreement. It is not even known whether the farm would have been sold when that time came. After all, it was a mere “desire” that the farm be sold, not a direction or order. It needs be borne in mind that the family agreement was not a donatio mortis causa as was contended for on behalf of the participating defendants. It was not such a donatio mortis causa because all the pages but the last, were not signed at the bottom thereof by Daniel Rakgokong Mphela and his witnesses and those to whom the usufruct was granted, enjoyed it immediately without having to wait for the demise of Daniel Rakgokong Mphela. Therefore, it did not comply with the formalities for a will.
With respect to point (6), the question once again arises whether on the basis of the Moodley15 case above and section 38 of the Constitution, it can be said that the 11 family members acted on behalf of the rest of the family. The situation here is different from the situation of the estate. The letter of 1 March 1995 (the first claim) states that Daniel Rakgokong Mphela held the land “as head of, and eldest surviving male member of the family in terms of customary law”. (my emphasis). “The family was removed . . .” (my emphasis). Evidence of attorney Gilfillan was that her instructions were to act for the family. The claim form of 6 February 1996 states that the family is the entity that was dispossessed. Johannes Sepane Mphela acted as “contact/spokesperson” of the family. In elaboration at paragraph 5.1 of the claim form it is stated that “[i]t is a family matter, discussed and arranged by the Mphela family.” This situation, more than that of the executor, appears to me to fall squarely within the ambit of the above-quoted passage from Moodley’s case and is on all fours with section 38 of the Constitution. Accordingly, a claim was validly lodged on behalf of the family.
I find that the plaintiffs lodged their claim for restitution with the Commission in the prescribed manner in terms of the Act.
(B) Whether the claim is excluded by section 2(2) of the Act.
Section 2(2) of the Act provides that :
“(2) No person shall be entitled to restitution of a right in land if –
just and equitable compensation as contemplated in section 25(3) of the Constitution; or
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.”
Section 25(3) of the Constitution, in turn provides, that –
“(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including –
the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
the purposes of the expropriation.”
The starting point is to determine the time when dispossession took place. This time is a disputed issue between the parties. For the plaintiffs, it is argued that dispossession took place over a period of time starting in 1951 and ending in 1962 when the farm was registered in the name of the Botha brothers. For the defendants, the contention is that the dispossession took place in 1951 when the Mphela family signed a contract of sale of the farm to the Botha brothers.
The facts relating to the dispossession are briefly as follows. Following on years of pressure from the Government and some white farmers to sell the farm to a white farmer because it was a black spot, the Mphela family entered into a contract of sale of the farm. The contract was entered into by Johannes Makata Mphela, purportedly in his capacity as the executor in the estate late Daniel Rakgokong Mphela, as the seller, and Hendrik Jacobus Botha and Adriaan Hendrikus Stander Botha (“the Botha brothers”), as the purchasers. The deed of sale was signed on 19 July 1951. The purchase price was ₤7 558-6-2. Clause 4 of the deed of sale provided that occupation and possession of the farm would be given to the purchasers on 1 August 1951. The purchasers would however only have the right to use the 60 morgen of irrigated land on the banks of the Crocodile River from 1 August 1951 until 30 June 1952. From 30 June 1952 the Botha brothers would be entitled to the use and enjoyment of the whole farm. Clause 5 provided that the seller and his family would have the right to occupy the rest of the farm excluding the 60 morgen, until they found a new place of abode or 30 June 1952, whichever would be the earlier. The agreement of sale is silent on any rental for occupying the farm or part thereof by the Botha brothers before registration of transfer. The Botha brothers occupied the 60 morgen on 1 August 1951 until registration of transfer without paying rent. Clause 10 provided that the sale was subject to approval by the Supreme Court.
The Mphela family employed various methods to resist vacating the farm and its transfer to the Botha brothers. After many years of negotiations and litigation the Supreme Court approved the sale on 12 April 1961 and the farm was transferred to the Botha brothers on 27 October 1961. The Mphela family continued in occupation of the rest of the farm until August 1962 when they were forcefully removed from the farm by the Native Commissioner, Pilanesberg assisted by members of the South African Police and, according to the plaintiffs, members of the South African Defence Force.
The above account of events points to more than one act of dispossession, all taking place at different times. First was the occupation of the irrigable 60 morgen of land along the Crocodile River by the Botha brothers in 1951. Such occupation amounted to a dispossession of the Mphela family of the right to occupy, use and enjoy that portion of the farm. Second was the registration of the farm in the name of the Botha brothers in 1961. That was a dispossession of the estate late Daniel Rakgokong Mphela of its ownership of the farm. Finally, was the forced removal of the entire Mphela family from the farm in 1962, dispossessing it of the right to use, occupy and enjoy the rest of the farm.
The sale agreement of 19 July 1951 cannot be an act of dispossession by itself, not followed by transfer and/or occupation of the land by the Botha brothers. An agreement of sale can always be annulled, as the Mphelas did attempt to do in this case. The purpose of the sale agreement was to express an intention to pass ownership of the farm from the seller to the purchaser. Ownership did not pass until registration of transfer. Of course, other rights, such as occupation, are capable of, and did, in this case, pass, before registration of transfer. I refer here to occupation of the 60 morgen.
The contention that dispossession cannot take place over a period of time does not hold. This Court accepted the notion that dispossession can take place over a period of time in The Ndebele-Ndzundza Community concerning the farm Kafferskraal No 181 JS16. See also Kranspoort Community concerning the farm Kranspoort 48 LS,17, where, although not stating expressly that the dispossession took place over time, this Court accepted dispossessions that took place in 1955, 1956 and 196418 for purposes of a single restitution claim.
The finding I make is that the dispossession of the plaintiffs of the farm took place over a period of time from 19 July 1951 and was completed in August 1962, when the Mphela family was forcefully removed from the farm.
I turn now to assessing the compensation received for the dispossession. The Supreme Court of Appeal has recently had occasion to pronounce on section 2(2) of the Act, in the case of Abrams v Allie NO & Others,19 as follows :
“In Ex Parte Former Highland Residents : in re Ash & Others v Department of Land Affairs [2000] 2 B All SA 26 (LCC) in para [35] at 40 e – f Gildenhuys J expressed the view that –
‘ . . . the equitable balance required by the Constitution for the determination of just and equitable compensation will in most cases best be achieved by first determining the market value of the property and thereafter by subtracting from or adding to the amount of the market value, as other relevant circumstances may require’
This approach has been followed in the Land Claims Court (see, for example, Khumalo & Others v Potgieter & Others [2000] B All SA 456 (LCC) para [23] at 465 a – c) and was adopted by the Court a quo. It was not contended in this Court that the approach was incorrect and on the facts of the present case there would appear to be no reason for holding otherwise.”
The only testimony on market value was by Derrick Griffiths (“Griffiths”) who was called on behalf of the plaintiffs as an expert witness. He provided his curriculum vitae showing his academic qualifications as a B.Proc degree in 1979 from the University of Pretoria; National Diploma Property Valuation in 1984 from Technikon SA; Economics I and II, Business Economics I, II and III (non-degree studies) in 1993 from the University of South Africa; a Masters Degree in Sustainable Agriculture in progress : MVL 701 Conservation of agriculture resources and environment, MVL702 Soil, Climate and Water use and Management; MVL 703 Plant and energy utilization and management from the University of the Free State.
He was admitted as an attorney of the Supreme Court of South Africa, Transvaal Provincial Division in 1982 and is registered as a Professional Valuer (No 1923) in terms of the Property Valuers Profession Act, No 47 of 2000. His membership of associations and institutes includes being a non-practising member of the Law Society of the Transvaal and member of the South African Institute of Valuers. He is a Fellow and Executive member of the Northern Branch of the latter institute and has served on its National Executive.
Griffiths’ work experience covers being a State Prosecutor (December 1979 – February 1980); a candidate attorney in the firm Rascher v Heerden & Griffiths (March 1980 – June 1982); valuer in training in the firm Haacke Belling Partners (July 1982 – October 1985); own practice as attorney and valuer (November 1985 – February 1993); partner in the firm Boston associates, Town Planners & Valuers (March 1993 – May 1996) and own practice as professional valuer (June 1996 to date). He has experience in all fields of property valuation including residential, commercial; industrial, retail; farm; municipal and servitude valuations. He has a variety of clientele including state and provincial departments, municipalities, property developers, financial institutions, mining houses and private individuals.
Griffiths was called to give his professional opinion on the valuations of the farm and Pylkop at the time of the sale of these farms. To this end he had been furnished with a copy of the statement of claim with annexures and documentation referred to in the summary of his evidence, including the valuations of the two farms by one Cronjé and one Liebenberg.
Griffiths confirmed the summary of his evidence and stated that he stood by it.
The witness was supplied with, amongst others, the following two letters :
a letter of 15 May 1950 from the Native Commissioner, Pilanesberg to the Chief Native Commissioner, Potchefstroom in which the following points are made :
- The owners (meaning the Mphelas) have expressed their willingness to
exchange the whole of the ‘claimed land’ for the whole of the farm Pylkop No 1006 measuring 2264 morgen (now 26 JQ – 1939,9793 hectares);
- He (the Native Commissioner, Pilanesberg) has tried to convince the ‘ascendants’ to agree to accept 2 morgen at Pylkop for 1 morgen at the ‘claimed land’, but that they refused to accept anything under 2000 morgen at Pylkop;
- The “claimed land” comprises valuable soil and the Crocodile River runs along its western boundary and abuts the farm;
- He (the Native Commissioner) is given to understand that some persons are of the opinion that ₤10 per morgen (R20/morgen or R23,30/ha) would be a fair price for the “claimed land” (i e ₤7 426-0-0 or R14 852,00) whereas about ₤4 per morgen (R8/morgen or R9,32/ha) would be a fair valuation (i e ₤9 056 or R18 112) for the farm Pylkop;
- “ ‘A good few hundred morgen (about 300 morgen) of land . . . under irrigation’. (This statement is later corrected as being a typing error which should have read ‘30 morgen’);” and
(b) a letter dated 10 July 1950 by the Agricultural Officer, Pilanesberg to the Native Commissioner. The Agricultural Officer stated that although it would be difficult to establish the value of the ‘claimed land’ the ‘irrigable portion’ could be worth from ₤2000 to ₤3000 and the ‘outside’ section not more than ₤3 per morgen. This puts the value of the farm at £4 136 to £5 136. Griffiths opined that it being a valuation by an Agricultural Officer, it should be “pastoral and agricultural” value and not market value. .
On the Agricultural Officer’s advice that Pylkop had been improved (dam, borehole and fencing) to the tune of ₤1000 which brought the value of the land to ±₤5 per morgen by adding the improvements to the original purchase price of ₤4-10-0 (i e ₤11 320 or R22 640), Griffiths commented that that must be a miscalculation because the original purchase price of Pylkop in April 1937 was only ₤5 686 (₤2-51/morgen).
There was correspondence exchanged between the Chief Native Commissioner, Potchefstroom, the Secretary for Native Affairs and the Secretary for Lands in which a request was made that the Land Valuation Board values the two farms – the farm and Pylkop. The witness noted that no reference was made to the type or manner of valuation that was required or any distinction between methods to be applied to the two farms. He then opined that the valuation method intended in both instances was ‘market value’.
On 7 December 1950 Cronjé and Liebenberg produced the following valuations for the two farms. The conversion of morgen to hectares and sterling to rand was done by the witness.
“4.8.1 Valuation report : HAAKDOORNBULT No. 734 – 742 m 398 sqr (637.4299 ha) – (Annexure DG.6) :
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The following comparisons of characteristics of the two farms as set out in the valuation reports are noted by the witness :
Description Haakdoornbult: Pylkop:
Irrigation • 52 morgen irrigation • None
• 8 morgen uncultivated irrigation
Value • ₤40 (R93,40/ha) for irrigation
• ₤30 (R70,05/ha for uncultivated
irrigation
Dry land farming: • 100 morgen dry land cultivation • 664 thinly bushed – can
easily be de-bushed; some areas already de-bushed
Value • ₤5 (R11,68/ha) cultivated • ₤4 (R9,34)
Grazing • 582 morgen 398 square roods • 1600 morgen – good
(498,8 ha) hilly veld
(1 374,4 ha)
Value • ₤3 (R7.01/ha) • ₤2.10 (R5.84/ha)
Carrying capacity • 7 morgen / LAU (cattle) • 7 morgen / LAU (cattle)
• 3 morgen / SAU (sheep) • 3 morgen / SAU (sheep)
Erosion • As result of over-grazing • Erosion not present
erosion is present
Water supply • The farm abuts onto the • Borehole, Bezuidenhout
Crocodile river with good pump and large earth-
Water under sand plus small dam. (Note that two
Earth-dam. Used for farming un-equipped boreholes .
purposes. are included in the
value).
Comments • As a result of poor cultivation • Situated in Rustenburg
and overgrazing the farm is bushveld and northern and
trampled and ravaged. Many southern portions is
trees have been chopped down suitable for cultivation,
for kraals. Pump equipment the middle portion being
useless. General appearance good hilly grazing. Farm
poor except for river land that is trisected by roads. Good
is being worked to a plan. large earth-dam, borehole
and Bezuidenhout pump
for animal power.]”
Griffiths conducted a study of comparable sales around the same time as the
valuation and sale of the farm, and gave a table of such sales as hereunder. The farm was sold on19 July 1951.
Following is a table of the comparable sales :
25
MPHELA LAND CLAIM – SELECTED HISTORIC SALES:
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.PDF of original document
.RTF of original document