Estate Geekie v Union Government and Another

• Jurisdiction: South Africa
• Judge: Selke J and Milne AJ
• Judgment Date: 22 October 1947
• Hearing Date: 15 August 1947
• Court: Natal Provincial Division

Milne, A.J.:

This is an application by the trustees of the estate of the late John Geekie for an order, inter alia, setting aside the judgment of the second respondents in their capacity as the Chairman and members respectively of a Board constituted in terms of sec. 4 of Act 13 of 1941, determining the compensation at the rate of £1 2s. 6d. per acre in respect of the expropriation of the

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remainder of the farm 'Onverwacht' and the remainder of the farm 'Bosmans Riviers Poort', both in the county of Weenen.

The notice of expropriation of the remainder of the farm 'Onverwacht' was given on the 8th September, 1944, and the notice of expropriation of the remainder of the farm 'Bosmans Riviers Poort' was given on the 27th June, 1945. The amounts of compensation originally offered by the Government was 10s. per acre in respect of both farms. Without admitting that the farms were worth more, the Government on the 1st July, 1946, offered to pay compensation at the rate of 15s. per acre for both farms. Both of these offers were refused, but no counter-proposal was made on behalf of the estate. It is common cause that it became necessary for the compensation payable by the Government to be determined by a Board constituted under the Act, and that in consequence the applicants appointed Mr. R. N. Buchan, and the Government appointed Lt.-Col. Martin to be members of the Board. These appointments were accepted and the Board, presided over by Mr. J. J. A. Pegler, the magistrate of the district wherein the claim arose, was duly constituted. Between the 24th September, 1946, when it first sat, and the 25th October, 1946, when the hearing terminated, the Board heard much evidence and argument and thereafter held an inspection in loco. This was not attended by Mr. Buchan, who had stated that he did not wish to go as he knew the properties so well. On the 16th November, 1946, the Board met by arrangement. A copy of a minute made by the Chairman of that meeting opens with the words 'Board meets to consider its judgment'. Before this meeting was held, Mr. Buchan had sent to the other members of the Board a ten-page memorandum which he had prepared. This memorandum refers, inter alia, to a number of legal authorities and arrives at the conclusion that the amount of compensation which ought to be determined by the Board was an amount equal to the market value of the properties. That value, the memorandum maintained, was to be determined by reference to a comparison with recent sales of similar farms in the district. The evidence of the many witnesses who gave evidence is canvassed. Roughly summarised, that evidence shows on the one hand that the farms were very badly eroded, and that in consequence they were valued by various witnesses, as pastoral or agricultural propositions, at figures ranging from 10s. to £2 per acre, and that on the other hand on the two farms there were 141 native huts, all

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occupied, and that the existence of the consequent labour supply available on the properties resulted in their market value being very much higher than their pastoral or agricultural value. Comparable farms, that is to say, farms which were comparably eroded and comparably providing a ready source of native labour, had fetched prices ranging from £2 6s. 6d. per acre to £3 14s. 10d. per acre. Mr. Buchan's memorandum concluded with the statement that after weighing the evidence and applying the test of market value, he considered that the true value of the properties was £2 10s. 0d. per acre as at the date of expropriation.

The Chairman's minute of the proceedings of the 16th November, 1946, contains, inter alia, the following:

'Col. Martin has had a copy of argument put up by Mr. Buchan. He gives his views. Different principles should apply to those referred to by Mr. Buchan in his memorandum. Considers 15/s p.a. (per acre) amount which should be given.'

The minute concludes with a note as follows:

'Meeting closes after the members agree that the Chairman will prepare a memorandum on the legal aspect of the matter and on the evidence. A copy of the memorandum will be sent to the members prior to holding another meeting.'

There then followed a memorandum prepared by the Chairman, dated the 8th January, 1947. This memorandum, after referring to the provisions of the 1941 Act and amendments made by the 1946 Act (the amendments, incidentally, only come into operation on the 21st October, 1946, and it is, in this application, common cause that they were not in operation with respect to these particular expropriations) goes on to say that the land is land 'which in the opinion of the Governor-General is required for the prevention of soil erosion and/or the reclamation of land affected thereby', and after pointing out that no mention of 'value' is made in sec. 4 (3) (a) of the Act, and making a comparison with it of the provisions of sec. 13 of the Native Trust and Land Act, 18 of 1936, arrives at the conclusion that in the absence of any special provisions,

'it seems that the Board can determine the compensation to be paid for the land at an amount above, equal to, or less than the value of the land according to the particular circumstances of each case',

and further, that

'It seems that only the value of the 'land' need be considered and not the value added to the land because of the fact that there are 141 odd native kraals on the land'.

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The memorandum says that the land in question has not been expropriated to make an aerodrome, erect a station or build a railway line, or for some other normal public purpose, but for the purpose of preventing soil erosion or reclaiming lands affected thereby, and after a review of the evidence the memorandum concludes as follows:

'The conclusion at which I arrive is that the evidence regarding values which should be taken most heed of in deciding the compensation to be paid is that of Mr. A. A. K. de Waal and that of Mr. M. H. Forder.

Mr. Forder is the only witness for the claimant who has given a pastoral value as opposed to a labour farm value. He has done valuable reclamation work on his farm, Bason's Kraal, and his opinion should not be disregarded in determining the compensation.

Mr. Forder states that he would be prepared to pay £1 10s. per acre for Onverwacht, whilst Mr. de Waal values the farm at 15s. per acre; the amount between these two amounts is £1 2s. 6d. per acre, and I feel that the compensation should be determined at that amount.'

(Actually Mr. Forder had said that 'Onverwacht' was worth £2 per acre, and that it would be 'a very good buy' at 30s. per acre.) This memorandum is followed by one from Col. Martin, which is not dated. The first two paragraphs of this memorandum are as follows:

'I am in entire agreement with the opinion expressed by the Chairman of the Board in regard to the principles to be applied in the determination of compensation to be paid to the claimant in this matter. As he has pointed out the farms in question have been expropriated in the national interest because they have been ill-treated and have been almost totally ruined. They are not required by the State for its own purposes but for rehabilitation. Moreover, the claimant is not being entirely bereft of his title to this land, as would be the case if his land were expropriated for public purposes. He will continue to enjoy the right of pre-emption and may, when reclamation has been completed, resume ownership on payment of the difference between the value of the land before and after reclamation. For these reasons I am of the opinion that this Board is not bound by the principles laid down in the cases relied upon by Mr. Buchan.

As regards the amount of compensation to be awarded I concur with the view of the Chairman that we are only entitled to assess the value of the land on its condition at the time of expropriation. In other words we should award an amount representing the true and fair market value of the land as an agricultural and/or pastoral proposition and should not consider its potential value either as a reservoir for Native labourers or for other purposes.'

Its author goes on to say that he is not

'impressed by the prices paid for other farms in the Weenen district in recent times'.

In his opinion such values are

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'entirely fictitious and were realised during a period of gross inflation, mainly for speculative purposes. . . . The land is almost useless in its present state. It is very badly eroded, due to gross neglect on the part of its owners or their representatives'.

In his opinion it was

'more of a liability than an asset and thousands of pounds must be expended before it can become an economic, agricultural or pastoral proposition'.

He says that the farms are only partially enclosed by an indifferent boundary fence, that there is an indifferent water supply, and that the only improvement, as far as he knew, was an ordinary cattle dipping tank which has been in use for many years. The memorandum concludes with the following paragraph:

'Taking all these facts into consideration, I find difficulty in agreeing with the figure of £1 2s. 6d. per acre suggested by the Chairman and feel that the valuation placed on the property by the Government Valuator and Mr. de Waal is more appropriate.'

(The valuation placed on the property by the Government Valuator, Mr. Warner, was 10s. per acre. Mr. de Waal's valuation was 15s. per acre, but he considered that if the farms were sold together as a labour farm by public auction they would realise £1 15s. 0d. per acre, and if put up in two sections £2 per acre.)

It appears from the Chairman's affidavit which is filed in these proceedings that his memorandum was sent to the other two members, and that Col. Martin's memorandum was sent to the Chairman and Mr. Buchan about two weeks before the final discussion of the matter by the Board on the 12th March, 1947.

The...