Umhlaba: The Land

One of my favourite topics is the issue of land in South Africa. A recent judgment by the Supreme Court of Appeal reinforced the criticism by land activists that government’s decisions seem to favour land owners.

The Right to Property enshrined under section 25 of our Constitution is certainly one of the most contested rights in South Africa. It provides for the right to property and precludes the state from depriving a private owner of his/her property without compensation. Put differently, the Constitution requires that when a claim for land is made (usually by a previously oppressed individual), the land owner must be compensated by the State. When determining compensation, the court must apply a “just and equitable” test, taking into account the factors listed in s 25 (3) (a) – (e) of the Constitution, and intervene and make a decision where there is no agreement regarding the amount of the compensation.

It is further provides that, “the amount of 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”. Interpretation of this law should entail a consideration of: a) The current use of the property; b) The history of the acquisition and use of the property; c) The market value of the property; d) The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and e) The purpose of the expropriation.

In a recent land claim judgment, the Supreme Court of Appeal, in the case of Uys N.O and Another v Msiza and Others (1222/2016) [2017] ZASCA 130 (29 September 2017), awarded the amount of R1,8 million as, “just and equitable for the acquisition of the property”. The SCA overturned an earlier judgment in the Land Claims Court which found that the value of the compensation to be paid to the land owners was R1,5 million, which was R300 000 less than amount valuated by the State’s expert. Instead, the SCA found that the valuation by the State expert took into account some of the factors listed in the Constitution and could not find any justification for deducting R300 000.

Mr Msiza and his family resided on the farm as labour tenants since about 1936. On 5 November 1996, Mr Msiza’s father successfully lodged a claim for an area of land situated on the farm, to be awarded to him on the grounds that he had been a labour tenant in terms of Land Reform (Labour Tenant) Act of 1996. A Trust became the owner of the farm on 9 May 2000. The Trust had acquired the property for a price of only R400 000 for the entire farm (352.5033ha) while being aware that the Msiza family occupied the land. The low cost of the land was probably influenced by the fact that Mr Msiza was residing on the farm and had lodged a claim against the entire farm.

The Msiza family was eventually awarded only 45.8522ha of the entire land, which was 306.6511ha less than the land initially claimed by the family. There had been no change on the actual use of the land and no significant investment made by the Trust on the land, including the land awarded to the Msiza family, since it was purchased by the Trust. The Trust wanted R4,36 million as compensation for the 45.8522ha of land awarded to the Msiza family, which was rejected by the Land Claims Court.

However, I question whether the R1,8 million valued by the State as compensation is just and equitable compensation and in the public interest, given the fact that; firstly, the Trust had purchased the entire piece of land for a sum much less than the market value at the time; secondly, the Trust purchased the land well aware of land claim; thirdly, there had been no change to the use of the land and no significant investment on the land; and fourthly, the Msiza family were only awarded 45.8522ha of the land, 306.6511ha less than the land initially claimed by the family.

Section 25 of our Constitution was not intended to fund the commercial aspirations of private landowners. The section exists to ensure that public money is distributed fairly, considering the Constitution’s commitment to rectifying the racially discriminatory distribution of land, which occurred over three centuries in our appalling history.

I therefore ask: is it in the public’s interest to compensate and benefit private individuals who acquire property, well aware of a land claim from a person or community, as was the case in the Msiza land claim?

Lungelo Baleni – ­2017 Bertha Justice Fellows

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

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