---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case No.: LCC 28/2011

DATE: 08 NOVEMBER 2015

In the matter between:

GETRUIDA SUSANNA PIENAAR..................................................................................First Plaintiff

DORATHEA BOTHA....................................................................................................Second Plaintiff

HANNELIE BOTHA........................................................................................................Third Plaintiff

ALETTA LOUISE VAN DE WALT...............................................................................Fourth Plaintiff

CORNELIUS JOHANNES VAN DE WALT....................................................................Fifth Plaintiff

And

MINISTER OF RURAL DEVELOPMENT

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

CHIEF LAND CLAIMS COMMISSIONER

OF SOUTH AFRICA..................................................................................................Second Defendant

REGIONAL LAND CLAIMS COMMISSIONER

FOR THE PROVINCE OF MPUMALANGA...........................................................Third Defendant

JUDGMENT

Matter argued on: 3 September 2015

Judgment given on: 8 November 2015

CANCA AJ

INTRODUCTION

[1] On 16 March 2011 the plaintiffs instituted action against the defendants wherein they sought, inter alia, damages in the sum of R2,180,000.00 in respect of the first to third plaintiffs and R2,124,730.00 in respect of the fourth and fifth plaintiffs, together with interest on the said amounts at the rate of 15,5% per annum from 25 September 2008 to the date of payment. These amounts represent what the plaintiffs contend is the difference between the reasonable market value of their immovable properties and what was paid to them by the defendants in settlement of a land claim.

[2] The plaintiffs’ cause of action is founded on fraudulent misrepresentation by officials in the employ of the third defendant which alleged misrepresentation they contend induced them to accept compensation for their farms, (acquired by the first defendant in settlement of a restitution of rights in land claim) which, as stated above, they contend was less than the reasonable market value thereof. As an alternative to the allegation of fraudulent misrepresentation, the plaintiffs aver that they were compelled to accept the compensation offered by virtue of the undue influence and duress exerted on them by the aforementioned officials.

[3] As a further alternative to the above, it was contended that the compensation did not constitute just and equitable compensation as envisaged in Section 25 of the Constitution read with the Restitution of Land Rights Act 22 of 1994( the ‘Restitution Act’).

[4] The defendants oppose the action and contend, inter alia, that the transactions with the plaintiffs were concluded consensually and that the plaintiffs are prohibited from now seeking to undo what they had bargained for.

The Parties

[5] The first, second and third plaintiffs are trustees of the Ockert Botha Trust, a trust duly established in terms of the Trust Property Control Act No 57 of 1988 (“the Trust”) and the former owner of Remaining Portions 6, 10, and 11 of the farm Hartbeesfontein No 239, Registration Division IS, situate in the Province Mpumalanga (“the Trust farm”) acquired by the first defendant in settlement of the land claim.

[6] The fourth and fifth plaintiffs are married to each other and were, respectively, former owners of Portion 3, 5 and 8 of the farm Hartbeesfontein No 239, Registration Division IS, situate in the Province of Mpumalanga and Portion 11 of the farm Klipfontein 241, Registration Division IS, situate in the Province of Mpumalanga (“the Van De Walt farms”) which was acquired by the first defendant also in settlement.

[7] The first, second and third defendants are cited herein in their respective official capacities.

Background Facts

[8] On 22 December 1998, the Sibiya and Mahlangu Communities instituted a claim for the restitution of rights in land in respect of the Trust and Van De Walt farms. These farms are situated in the Ermelo district in the province of Mpumalanga. The plaintiffs, who became aware that their farms were the subject of a land claim prior to its publication in the Government Gazette, did not oppose the claim. They were, in fact, keen sellers and had entered into preliminary discussions with officials of the third defendant regarding the possible sale of their farms to the State well before formal discussions were entered into.

[9] Subsequent to the compilation of valuation reports in respect of the subject farms by a professional valuer, Alpro, appointed by the third defendant, the plaintiffs did not contest the valuations. Offer to sell and purchase agreements were then concluded with the third defendant on 10 April 2008 (the “April 2008 meeting”) by a representative of the Trust and by the fifth plaintiff, who also represented his wife. The price agreed to in respect of the Trust farm was R7,300,000.00 and R7,400,000.00 in respect of the Van De Walt farms.

[10] These offers closely matched the market value given to the farms by Alpro. The offers were however subject to approval by the second defendant who, on receipt thereof, rejected same. Mr Singh, the National Director: Quality Assurance, in the office of the second defendant, instructed the third defendant to produce a downward revision of some of the values in the valuation reports as he was not happy with the ones suggested by Alpro.

[11] It is convenient at this stage to make the following observations regarding the Alpro valuation reports;

11.1 the purpose of the reports was to enable the third defendant to ‘ enter into negotiations’ regarding the purchase of the farms;

11.2 the various items to be valued on the farms in order to arrive at a market value consisted of a range of values; and

11.3 the amounts reflected as the market value of the farms were computed, in the main, from the higher end of the aforesaid ranges.

[12] Acting on Mr Singh’s instructions, the third defendants’ officials revised the values by, inter alia, taking into account sales of comparable farms in the area and by using the lower limit of the ranges contained in the Alpro valuation reports. Once this was done, a representative of the Trust, Professor Botha and the fifth plaintiff, Mr Van De Walt, were then invited to a meeting with officials of the third defendant at their Nelspruit offices. Professor Botha is the son of the first plaintiff and is married to the second plaintiff. The third plaintiff is his sister.

[13] The meeting was held on 25 September 2008 (the ‘September 2008 meeting’). Disputes exist as to what transpired during that meeting, particularly with regard to the methods or tactics employed by a senior official of the third defendant, who chaired the meeting. It is these tactics which the plaintiffs allege induced them to accept compensation which was less than the reasonable market value of their farms.

Evidence

[14] Six witnesses testified. On behalf of the plaintiffs, these were;

14.1 Dr Botha, a valuer who testified as the plaintiffs’ expert witness;

14.2 Professor Botha (“Botha”);

14.3 Mr Van De Walt (“Van De Walt”),the fifth plaintiff; and on behalf of the defendants,

14.4 Mr Lucas Mdistheni Mafumadi (“Mafumadi”);

14.5 Mr Sunjay Singh (“Singh”) and

14.6 Mr Siyabulela Mjali (“Mjali”).

[15] The following is a brief synopsis of the evidence which is common cause:

15.1 the market value placed on the respective farms by Alpro was R7,400,000.00. These amounts reflected a computation that used the upper end of the range of values mentioned in the Alpro reports;

15.2 the events leading up to and what took place during the April 2008 meeting were largely uncontested.

15.3 Mafumadi met with Singh at the second defendant’s offices and was instructed to revise certain of the values contained in the Alpro reports.

15.4 the plaintiffs had already scaled down their farming activities when the September 2008 meeting was held.

15.6 offers substantially below those agreed to during the April 2008 meeting were made to Botha and Van De Walt by Mafumadi during the September 2008 meeting. No documentation reflecting a revised computation substantiating the revised offers was made available to Botha and Van De Walt during this meeting. Singh, Mafumadi and Mjali are not expert valuers and none of them inspected the farms to ascertain the condition of the fixed improvements and the respective land components. The parties only signed the deed of sale agreements in respect of the farms in December 2008.

Testimony of Dr Botha

[16]Dr Botha, a member of the Valuations Appeal Tribunal, who has compiled numerous expert reports for Courts, was critical of Singh’s approach to the Alpro valuation and the valuation analysis done by the third defendant’s officials. He testified that the third defendant’s valuation analysis was not scientific, the compensation paid to the plaintiffs was not market related and consequently, not just and equitable.

[17] Under cross-examination, Dr Botha conceded, inter alia, that: (a) his instructions regarding the nature of his valuation report differed from the instructions given to Alpro by the third defendant; (b) valuations are subjective in nature and therefore not an exact science;(c) the market value of property is based on comparable sales in the particular market and that the third defendant’s officials could not be criticised for taking into consideration comparable sales in arriving at the impugned offers made to the plaintiffs;(d) valuation reports, due to their subjective nature, could occasionally be inaccurate and therefore should not be followed blindly and (e) the values used in compiling the revised offers could be regarded as being market-related.

Testimony of Botha

[18] Botha, who holds a Ph.D degree and is a lecturer in labour relations, testified that he was a businessman and had been, until 2000, a lecturer, based at the Potchefstroom branch of what is now called the University of the North-West. He returned to that university on 1 September 2008. Botha stated that he was unprepared for what transpired during the September 2008 meeting. He testified that Mafumadi initially confronted him with an offer of R2,300,000.00 and, after he objected to same, raised it to R5,220,000.00 without informing him how any of those figures had been arrived at. He also stated that he was under the impression that the purpose of the meeting was to finalise the transaction concluded in April 2008 as he had, since that meeting, heard nothing to indicate that there was a problem with that transaction. He further testified that, on asking for reasons for the downward revision of the offer agreed to previously, he was told that the State’s budget was depleted and that the backlog in land claims in that area had to be reduced. On asking for time to seek advice on what had just transpired, Botha states that Mafumadi told him that time was of the essence and that persons who rejected the revised offer could end up having their property expropriated, a process that was time consuming, whereas those who accepted it would have their transactions finalised sooner. His further testimony was that he tried, unsuccessfully, to contact, telephonically, attorneys whom he knew for advice during a break in the meeting but could not reach any of them. He then called his wife, the second plaintiff, for advice.

[19] According to Botha, his wife advised him to accept the revised offer of R5,220,000.00 due, inter alia, to the fact that they had certain financial commitments, he was no longer farming and that they might fare worse if the third defendant followed the expropriation route. His further testimony was that although he considered Mafumadi’s stance unfair and found himself in what he described “as being caught between the devil and the deep blue sea”, he reluctantly accepted the revised offer.

[20] Under cross-examination, Botha conceded that the offer to purchase entered into during the April 2008 meeting was subject to a suspensive condition, namely approval by the second defendant. He also stated that he had previously dealt with the State as he had sold various farms to the first defendant’s predecessor, the Department of Land Affairs.

Evidence of Van De Walt

[21] Van De Walt, who started farming straight from school, to a large extent corroborated Botha’s version of what transpired during the September 2008 meeting regarding (a) Mafumadi’s stance during the meeting,(b) how the revised offers were made to them, (c) how they could not get hold of legal advice during a break from the meeting (d) how surprised they were when confronted with the revised offers as they had thought that the meeting had been called to finalise the transactions based on the amounts agreed to during the April 2008 meeting and (e) their reluctance in accepting the revised offer, albeit for different reasons.

[22] Van De Walt testified that, following the April 2008 meeting, he and his wife made plans to relocate to the Western Cape and, in pursuance of that, put in an offer to purchase a farm in Bredasdorp. He stated that he demanded his farm back as he was no longer a seller when Mafumadi made him the initial revised offer of R2,300,000.00 at the start of the September 2008 meeting. Following an exchange of words during which, according to Van De Walt, he was told that there were various ways by which he could be removed from his farm, he left the meeting for a while. He states that he was angry at the turn of events and felt threatened by Mafumadi’s utterance that there were various means by which he could be removed from his farm. On his return to the meeting, Van De Walt testified that Mafumadi raised the offer to R5,200,000.00 and at some point mentioned the possibility of his farm being expropriated. This, Van De Walt testified, he took to mean that the farm could be taken by the State without the payment any compensation. Van De Walt also testified that because of the threat of expropriation and the fact that he had already scaled down his farming operations, he felt compelled to accept the revised offer of R5,220,000.00 particularly as he had also not been able to get hold of legal advice.

[23] Under cross-examination, Van De Walt also conceded that the April 2008 offers were subject to approval by the second defendant and that he did not ask for an explanation of what expropriation entailed.

Assessment of evidence for the Plaintiffs

[24] Dr Botha, the plaintiff’s expert witness, struck the Court as a competent, reliable and credible witness who readily made concessions under cross-examination rather than dogmatically clinging to a view expressed in his evidence in chief. For instance, he conceded that his evidence that the compensation paid to the plaintiffs was unjust and inequitable was merely his subjective view.

[25] Professor Botha, clearly a highly intelligent man, battled with the English language and at times expressed himself in his mother tongue, Afrikaans. Consequently, there were occasions when he did not fully grasp the questions put to him and appeared to be giving confusing answers. However, despite this, I consider him to have been a credible and reliable witness.

[26] Mr Van De Walt lacked the poise and demeanour displayed by the two witnesses who preceded him. He, in my view, attempted to magnify the effect of what he considered to be threats by Mafumadi. For instance, he testified that Mafumadi, had not only stolen his money but had also threatened him and his family when there is no evidence to support this. Despite his occasional resort to hyperbole, I consider Van Der Walt to have been a credible witness.

Testimony of Mafumadi

[27] Mafumadi testified that he is employed as the third defendant’s Director: Operations since November2007 and that part of his duties include conducting negotiations that lead to the conclusion of deeds of sale with landowners who had conceded the merits of a land claim. To this end, he stated that he considers valuation costs and the analyses of valuation reports by his project officers which determine the purchase price he negotiates with a landowner. He also stated that the final decision regarding a purchase lay with the second defendant. Mafumadi’s further testimony was that he chaired the September 2008 meeting and that, in his opening address, informed Botha and Van De Walt that the reason for the meeting was to re-negotiate the purchase prices agreed to previously. His evidence was that his discussions with Botha and Van De Walt were conducted in a cordial atmosphere and denied that he could ever have threatened any of them. He also stated when the initial offer of R2,300,000.00 (which he said was made in jest and as an icebreaker to the negotiations), was rejected, he then progressively raised the amount until they settled on the revised offer of R5,220,000.00. This, I note is in contradiction to the evidence of Botha and Van De Walt who testified that the discussions were strained and that there were no negotiations. According to them, the revised offer was presented as a fait accompli when they rejected the one allegedly made in jest.

[28] Mafumadi furthermore testified that the issue of expropriation only came about when he was asked what would happen if the landowners did not agree to the revised offer. He stated that he informed them that the matter would then be referred to Court in which event the land would be expropriated and that that was a lengthy process.

[29] Mafumadi conceded under cross-examination that: (a) the first defendant is the only purchaser where there is a land claim which is not contested by the landowner, despite the fact that the landowner can sell to another person subject to the land claim if he notifies the third defendant and, (b) the Alpro valuations were the correct valuation of the farms.

.

Testimony of Singh

[29] Singh testified that, as the Director: Quality Assurance in the second defendant’s office, part of his responsibilities was to ensure that the price of land which the State contemplated purchasing was correctly arrived at. The main thrust of Singh’s testimony, who conceded under cross examination that he was not a valuer and had no experience in the building trade, was that he was not satisfied with some of the values contained in the Alpro report. He testified that as a consequence thereof, he instructed Mafumadi to revise some of the Alpro values and then to renegotiate the offers to purchase made to the plaintiffs. He also stated that the second defendant’s office used the figures in valuation reports as a guide in negotiating a purchase price for a particular property.

Testimony of Mjali

[30] Mjali, a project officer in the employ of the third defendant, testified that he inherited this matter in early September 2008 following the resignation, in July 2008, of his supervisor who had previously been seized with it. He stated that a project officer’s duties entailed processing land claims from lodgement until settlement. He further testified that he arranged the September 2008 meeting and was in attendance on that day. He corroborated Mafumadi’s testimony that Botha and Van Der Walt knew the purpose of the September 2008 meeting, testifying that he had telephonically informed them what the meeting was about when he arranged it. His further testimony was that he was the one tasked with executing Singh’s instructions to revise some of the Alpro values. This, he stated, he did by conducting a valuation analysis which entailed looking at other valuation reports conducted on other farms in the area and at sales of comparable farms. He also stated that on completing same, he sent his valuation analysis to his manager and Mafumadi, both of whom edited his figures. His further testimony was that Mafumadi used this edited valuation analysis in arriving at the revised offer made during the September 2008 meeting.

[31] Mjali also testified that he took the minutes at the meeting and that those minutes were merely a summary of what he considered to be important and not a verbatim record of what was said. His evidence also largely corroborated that of Mafumadi with respect to how the revised offer of R5,220,000.00 was arrived at, namely that it was a negotiated figure.

[32] Under cross examination, Mjali, who had earlier denied having met Botha and Van De Walt prior the September 2008 meeting or having been to either of their farms, conceded that he had in fact been to the Van De Walt farm in April of that year. He also conceded that post claim settlement visits were undertaken to the respective farms shortly after the April 2008 meeting as the third defendant’s officials dealing with this matter anticipated that the offers they had submitted to the second defendant would be approved. He also conceded that Botha and Van De Walt were upset when they found out that they were no longer going to get the amounts agreed to during the April 2008 meeting.

Assessment of evidence for the defendants

[32] Mr Mafumadi was a poor witness. His testimony struck me as being fabricated for the most part and a large portion of his evidence as to what transpired during the September 2008 meeting is improbable. His testimony that the discussions were cordial and that Botha and Van De Walt were not angry at being confronted with vastly reduced offers from what had previously been agreed to, not only did not ring true but was also contradicted by Mjali. It is also highly unlikely that the figure of R5,220,000.00 was arrived at through negotiations given that there is no evidence of counter offers by Botha and Van De Walt.

[33] Mr Singh struck me, overall, as a competent and credible witness whose testimony for the most part withstood cross-examination.

[34] Mr Mjali’s testimony that the revised offers were arrived at through negotiation was contrived and appeared designed to corroborate Mafumadi’s evidence despite the discrepancies in their evidence in that regard. His evidence that Botha and Van De Walt were told of the purpose of the September 2008 meeting is also improbable as Mafumadi’s evidence was that he informed Botha and Van De Walt of the purpose of the meeting when he opened same. He did not testify that he reminded them of the purpose of the meeting during his opening address. This evidence is consequently rejected. Bar that portion of his evidence, Mr Mjali’s testimony largely withstood cross-examination. The contradictions in his evidence were not material to the averments made in the particulars of claim.

[35] It is now convenient to consider whether, in the light of the evidence, there is merit in the arguments on which the plaintiffs base their case.

Plaintiffs’ first cause of action: fraudulent misrepresentation.

[36] To succeed on this cause of action, the plaintiffs had to prove, inter alia, that the defendants made a representation or representations which they knew to be untrue and which they intended the plaintiffs to act upon and that the plaintiffs did in fact act thereon. See R v Myers 1948 (1) SA 375 (A) at 382- 383 and RH Christie, The Law of Contract in South Africa, 5th Edition at 271 and 293-299 for a discussion of the principles of Misrepresentation.

[37] Mr Roberts, for the plaintiffs, sought to persuade me that the following representations by Mafumadi to Botha and Van De Walt were false and amounted to fraudulent misrepresentation, namely that:

37.1 in the event of the Trust and the Van De Walts failing to accept the revised offers, their farms would be expropriated;

37.2 the plaintiffs were falsely led to believe that the revised offers would be the offers that would be made by a Court and that their objection to the revised offers would result in a delay in them getting paid for their farms.

[38] Mr Roberts argued that the defendants knew that the price would be determined afresh by a Court and that the Court would not be bound by the revised offers made in September 2008.

[39] Even if I were to accept the plaintiffs’ evidence regarding the aforementioned representations, I agree with Mr Ncongwane, for the defendants, that Mafumadi’s statements that the plaintiffs’ properties could be expropriated do not amount to fraudulent misrepresentation. Those representations do not meet all the criteria for fraudulent misrepresentation set out in paragraph 36 above. The statement that the property could be expropriated if there was no agreement on price and that the Court route is lengthy is true and thus cannot be said to be misrepresentation. In my opinion that is not what induced the plaintiffs to accept the revised offers on 25 September 2008. I am of the view that what prompted the plaintiffs to accept the revised offers was them having committed themselves financially elsewhere and having ceased active farming (in the mistaken belief that the prices agreed to during the April 2008 meeting would be accepted by the second defendant). This much was confirmed by Botha’s testimony. See paragraph 19 above.

[40] It is trite that in land claims matters where the dispute is only with regard to the compensation payable to a landowner, the subject property can be expropriated in which event the price will then be determined by the Court. It is also a known fact that in most instances litigation is fraught with delays particularly where matters are opposed.

[41] Mr Roberts also argued that the plaintiffs were tricked into concluding these sales, that there was an unequal opportunity for them to argue or bargain with Mafumadi, rendering the transactions unconscionable. In support of this argument I was referred to the English case of Lloyds Bank LTD v Bundy (1974) 3 ALL ER 757 which Mr Roberts, incorrectly in my view, contends is on all fours with this matter. The Lloyds Bank case deals with circumstances where the inequality of bargaining power between parties to a contract is such that it merits the intervention of the Courts. In that case, which involved a banker and his customer, an elderly farmer who was not well versed in business affairs, the bank was found to have failed in its fiduciary duty to inform its customer to seek independent advice. The Court held that where there was inequality of bargaining power, “English law gives relief to one who, without independent advice, enters into a contract on terms which are unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other.” Lord Denning went on to hold that “One in extreme need may knowingly consent to the most improvident bargain.” The learned Lord Justice found that in such instances, even though there is no evidence of fraud or misrepresentation, the transaction will nevertheless be set aside. The nub of Mr Roberts’ argument, as I understood it, is that third defendant, represented by Mafumadi, being the stronger party, gained an unfair advantage by the unconscionable use of power over the weaker plaintiffs.

[42] The fallacy of Mr Roberts’ argument lies in the fact that, although Mafumadi’s tactics during the September 2008 meeting might be considered to have been heavy-handed, the plaintiffs’ own expert conceded that the sale price for the farms could be regarded as being market related. Therefore, the purchase price was not grossly inadequate. Also, Botha and Van De Walt, respectively, an intelligent businessman and academic and, an experienced commercial farmer, could simply have refused to sign the impugned offers on that day and insisted on first getting independent legal advice or could have held out for a better price during a Court process. I am of the view that if they somehow felt pressured to sign the revised offers to sell and purchase during that meeting, such pressure, was self-created, as they knew that the offers needed the second defendant’s approval. I am also not persuaded by the argument that, because they had stopped farming and had committed themselves financially elsewhere, they had no option but to sell. Furthermore, there is no evidence to suggest that the plaintiffs are in extreme need and therefore warrant intervention by this Court.

[43] For all of the above, I find that the plaintiffs have failed to prove that they were fraudulently induced into concluding the impugned sale transactions or that those transactions were unconscionable.

Plaintiffs’ first alternative claim: undue influence

[44] In support of this leg of plaintiffs’ cause of action, Mr Roberts referred me to a number of authorities setting out the elements constituting undue influence in our law and in English law. These included Patel v Grobbelaar 1974 (1) SA 532 (A) at 534 A-B, Wessels, Law of Contract, Volume 1 page 1209 and the English case of Allcard v Skinner (1887) 57 LTL at 72. In the Patel case it was held that undue influence will have been proven if one party to a contract shows that the other party had exercised, in an unscrupulous manner, some influence over him which weakened his resistance with the result that he was induced to consent to a transaction which was to his detriment and which he would normally not have concluded.

[45] There is no evidence to support the contention that the defendants had any influence over the plaintiffs or, in the event that the plaintiffs perceived the defendants’ officials to have influence over them, that such influence induced them to conclude those transactions. The plaintiffs were afforded time to consider the revised offers and to seek independent advice. The fact that they allegedly could not get hold of an attorney on 25 September 2008 did not prevent them from delaying signing the revised offers until they obtained such advice. Botha was advised to accept the offer by his wife, a trustee of the Ockert Botha Trust, and therefore one of his principals.

[46] The Allcard case is also not of assistance to Mr Roberts. This case held that even if a stronger party to a contract was not guilty of a wrongful act, a presumption of undue influence exists where, through a relationship, the stronger gained an advantage for himself over the weaker. Because the plaintiffs had access to the protections afforded by our laws and, as previously stated, were represented by intelligent as well as experienced businessmen (a successful commercial farmer of longstanding can be considered an experienced businessman) they cannot be said to have been the weaker party to the transactions. It appears to me that this was an arms-length transaction between parties of equal strength, the plaintiffs having been given the requisite muscle by our Constitution. Mr Roberts also argued that, knowingly allowing the plaintiffs to downscale their farming operations over an extended period and initially offering them an extremely low amount which was then raised substantially, was unscrupulous and constituted trickery which contributed to weakening the plaintiffs’ powers of resistance. This, it was contended, influenced the plaintiffs to accept the revised offer. This argument lacks traction. The evidence is that the third defendant’s officials, as did the plaintiffs, laboured under the mistaken impression that the offers concluded in April 2008 would be accepted by the second defendant. Therefore, it cannot be said that the instruction to scale down their farming operations was mala fide and was meant to weaken the plaintiffs’ negotiating power. It was only in August 2008 that the third defendant learnt that the April offers were unacceptable, by which time the plaintiffs had already made plans to relocate. Mafumadi, on the plaintiffs’ own testimony, informed them that the State’s budget was depleted and therefore, it is reasonable to assume that, given the alleged precarious nature of their budget, the defendants would drive a hard bargain.

[47] None of the above actions by the defendants can, in my view, be said to amount to undue influence or some form of duress. I therefore find that the plaintiffs have failed to prove undue influence or that duress was exerted over them by the defendants or any of their officials.

Plaintiffs’ second alternative claim: Just and Equitable Compensation

[48] The plaintiffs contend that the amounts reflected in the agreements concluded during the September 2008 meeting do not constitute just and equitable compensation and that the purchase price should be determined afresh by the Court. Mr Roberts argued that the Court is entitled to do so, by virtue of Section 22 of the Restitution Act, given that, at the time, it did not make an order or determine the compensation payable. The plaintiffs further contend that the Alpro valuation reports and the testimony of Dr Botha is sufficient information for the Court to make the determination as the defendants have not produced any evidence to counter those valuation reports or the expert’s testimony. The right to just and equitable compensation is a Constitutional right, it was submitted, enshrined in Section 25 of the Constitution which the plaintiffs contend also envisaged compensation being determined after the conclusion of these transactions. The submission continued that the remedies for a breach of such a right was found in Section 38 of the Constitution and in a number of cases dealing with the appropriate relief for such a beach, including Hoffman v South African Airways 2001 (1) SA 1 (CC) at 22.

[49] Mr Roberts contended that the appropriate relief in this case was to adjust the compensation paid to the plaintiffs such that they were not impoverished and the State and claimant community enriched at their expense.

[50] The difficulty with the above submissions is that the plaintiffs’ own expert conceded that the offers fell within the range of what could be considered market related and that there was nothing wrong with the third defendant’s officials having also used comparable sale figures in arriving at the impugned compensation. It is therefore hard to sustain the argument that the plaintiffs were impoverished by the conduct of the defendants’ officials whilst the State or the claimant communities were enriched thereby. I am strengthened in this view if regard is had to the fact that the Alpro valuation reports, which it was argued I was bound to accept, contained values which ranged from high to low and that the impugned compensation falls within those ranges.

[51] In my opinion, the plaintiffs have not been impoverished. Therefore, I do not, in view of the circumstances of this case, consider it necessary to determine the compensation afresh.

[52] The plaintiffs also contend that the concluding of the impugned sale agreements constituted a form of expropriation, albeit different from that envisaged in the Expropriation Act No 63 of 1973 ( the “Expropriation Act”). Mr Roberts argued that these transactions were expropriations because the plaintiffs entered into them involuntarily and being an uncontested valid land claim, they were compelled to sell to the State. The second string to this argument was that the farms vested in the State upon acquiring them and thereafter were awarded to the claimant communities. Mr Roberts, in support of this contention, referred me to Section 42A of the Restitution Act and to Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC) at paragraph 67 where the requirements for expropriation are set out. He argued that these requirements are met in this matter. The requirements for an expropriation according to the Agri SA case are that there should be a compulsory acquisition of rights in property by the State for a public purpose or public interest and that the acquisition should be subject to compensation. Therefore, so the argument went, given that this case met those criteria, this was an expropriation and therefore the compensation had to be just and equitable so as to comply with the provisions of Section 25(3) of the Constitution and those of the Restitution Act.

[53] I agree with the dictum of Meer AJP in the unreported case of Senekal N.O and Others v The Minister of Rural Development and Land Affairs LCC 202/2013 at paragraph 28 dated 29 April 2015 that the Restitution Act, and in particular Sections 22 and 35 thereof, does not make it clear that the entering into an agreement in settlement of a land claim is an involuntary act. I have already found that there is no evidence to suggest that there was misrepresentation, duress or undue influence brought to bear on the plaintiffs to enter into the sale agreements. In my view, the impugned transactions were, as contended for by the defendants, voluntarily concluded between a willing buyer and willing sellers and therefore cannot be said to have been compulsory acquisitions by the State.

[54] Moreover, Section 25 of the Constitution, which at sub-sections 25(2)(b) and 25(3) provide for expropriation subject to just and equitable compensation, is not applicable in instances, such as the present, where there has been an acquisition. Consequently, I am not required to make a determination of just and equitable compensation as I am of the opinion that there has been no expropriation in this case.

[55] The plaintiffs further contend that, based on a purposive interpretation of Section 25 of the Constitution and certain provisions of the Restitution Act, an agreement to restore land is tantamount to a compulsory deprivation of rights in land, alternatively is to be equated with expropriation distinct from the expropriation referred to in the Expropriation Act. A purposive interpretation of the words acquisition and acquire in the Restitution Act means expropriation and expropriate, the plaintiffs contended.

[56] Meer AJP, at paragraphs 29-31 of Senekal N.O. supra, where a similar argument was advanced, found that the vesting of land in the State upon acquisition does not, per se, constitute an expropriation as Sections 22 and 42A of the Restitution Act distinguish between land which is expropriated and that which is acquired. Therefore, according to the learned Judge, those sections of the Restitution Act contemplate situations where land could be acquired by and vest in the State without being expropriated. To find otherwise, Meer AJP continued, would be to conflate acquisition and expropriation, contrary to the intention of the legislation. I agree.

[57] The impugned sale agreements are clearly not expropriations. Parties, including the State, are free to purchase land by agreement, also for purposes of land restitution. A consensual sale agreement will be valid and enforceable, even if the purchase price is less than market value. The proviso being that there is no fraudulent misrepresentation or undue influence, which I have already found to be absent in this case. In the result, I find that a purposive interpretation of the Restitution Act and Section 25 of the Constitution does not morph the impugned transactions into a form of expropriation as contended for by the plaintiffs.

[58] Lastly, the plaintiffs submitted that the defendants and their officials, through their conduct, created a legitimate expectation that the offers to purchase concluded in April 2008 would be honoured and that the officials concerned would act reasonably, fairly, expeditiously and efficiently by causing the speedy registration of transfer and payment of compensation of the amounts agreed to in April 2008. The defendants’ failure to act in the aforesaid manner caused them to fall foul of their constitutional and statutory duties and therefore did not fulfil the legitimate expectations of the plaintiffs, so the argument continues.

[59] There is no evidence to support these contentions. On the contrary, the evidence of the defendants, which was not disputed by the plaintiffs, was that the offers concluded in April 2008 were subject to approval by the second defendant. The evidence also shows that the officials of the third defendant and the plaintiffs both laboured under the mistaken impression that those offers would be acceptable. I am unable to find that a legitimate expectation, as contended for by the plaintiffs, was created by the defendants or their officials.

Costs

[60] It is practice in this Court to make cost orders only in exceptional circumstances. None have been found to exist in this matter.

Order

[61] I order as follows:

(a) The plaintiffs’ claim is dismissed.

(b) There is no order as to costs.

MP CANCA

Acting Judge Land Claims Court

APPEARANCES

For the plaintiffs

Mr Roberts SC with him Ms E Roberts

Instructed by: Moolman & Pienaar Attorneys, Potchefstroom.

For the defendants

Mr Ncongwane SC with him Mr M Majozi

Instructed by: The State Attorney, Pretoria.

---