Florence v Government of the Republic of South Africa

• Jurisdiction: South Africa
• Citation: 2014 (6) SA 456 (CC)

Florence v Government of the Republic of South Africa
2014 (6) SA 456 (CC)

2014 (6) SA p456

Citation	2014 (6) SA 456 (CC)
Case No	CCT 127/13; [2014] ZASCA 22
Court	Constitutional Court
Judge	Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van Der Westhuizen J and Zondo J
Heard	February 18, 2014
Judgment	August 26, 2014
Counsel	P Hathorn (with F Jakoet and S Harvey) for the appellant.; B Joseph for the respondent.

Flynote : Sleutelwoorde B

Land — Land reform — Restitution — Compensation — Equitable redress in form of financial compensation — Change in value of money over time — Focus C of enquiry change in monetary value of loss from immediately after dispossession — Consumer Price Index appropriate measure to calculate such loss — Restitution of Land Rights Act 22 of 1994, s 33(eC).

Land — Land reform — Restitution — Entitlement — Claimant not entitled to costs D of memorial plaque in addition to claim for equitable redress in form of financial compensation — Such claim also falling outside defined meaning of 'claim' — Restitution of Land Rights Act 22 of 1994, ss 1 and 2(2)(eC).

Land — Land reform — Restitution — Remedial power of court to grant alternative relief — Not additional but mutually exclusive of other orders court E entitled to make — Restitution of Land Rights Act 22 of 1994, s 35(1)(e).

Headnote : Kopnota

In 1957 the Florence family — the applicant's since-deceased husband and his two brothers — purchased the home in which they had been living since 1952. The purchase price was payable in equal monthly instalments over a period of nearly 14 years, which they duly paid. They were however F disqualified from obtaining transfer of the property because it was situated in an area designated under the Group Areas Act for the white group of which they were not classified members. Because of this and the associated harassment by the authorities, the family was forced to leave in November 1970. The sale was accordingly cancelled by agreement, the seller refunding them an amount of R1350.

G In December 1995 Mr Florence — in his own right and on behalf of his two brothers — launched a restitution claim under the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). He initially sought restoration of the property but later amended the claim to seek equitable redress in the form of financial compensation as well as the erection of a memorial plaque H on the property. In June 2009, after her husband had died, Ms Florence was substituted in the claim as the applicant. In March 2010 she and the current owner of the property reached a private agreement in terms of which the current owner consented to the erection of a memorial plaque and withdrew his opposition to the Florence family's claim. Ms Florence then approached the Land Claims Court (the LCC) for orders awarding just and equitable I compensation and the costs of erecting the memorial plaque. The LCC held that the Florence family were entitled to compensation since they had been undercompensated by the R1350 settlement. It determined the amount due by escalating the value of the loss in 1970 to present-day monetary terms using the Consumer Price Index (the CPI). The LCC however found it lacked jurisdiction to make an order regarding the memorial plaque since it was the J subject of a private agreement between the current property owner

2014 (6) SA p457

and the Florence family. In an appeal to the Supreme Court of Appeal (the A SCA) Ms Florence challenged, inter alia, the LCC's use of the CPI as a method for conversion and its refusal of the costs of erecting the memorial plaque. The SCA confirmed the LCC's decision to use the CPI as the method of conversion but overturned the LCC's decision on the memorial plaque, finding that the LCC's wide remedial powers under s 35 of the Restitution Act allowed it to order the state to pay for it under the rubric of 'alternative B relief' in s 35(e).

Ms Florence applied for leave to appeal the SCA decision on the CPI issue (the main appeal), and the government for leave to cross-appeal the costs of the memorial-plaque issue (the cross-appeal). The former issue turned on the proper interpretation of s 33 of the Restitution Act, the latter on ss 2(2) and 35. [*] C

Main judgment in main appeal (per Van der Westhuizen J, with Cameron J, Froneman J and Majiedt AJ concurring): While s 33(eC) could be interpreted as referring to the CPI, that was not the issue, but rather whether s 33(eC) could on its own be determinative of the question of what equitable redress in the form of financial compensation was. It could D not — none of the s 33 factors could be used as the dispositive factor. Equitable redress paid out as financial compensation could not be rigidly fixed to the CPI. The LCC did not exercise its discretion properly in limiting equitable redress in the form of financial compensation to the CPI. On the facts of this case and in the interests of justice, Ms Florence must be compensated in line with the 32-day notice deposit rate. (Paragraphs E [85] – [87] and [97] at 485H – 486E and 488F – 489B.)

Main judgment in cross-appeal (per Van der Westhuizen J, with Cameron J, Froneman J, Khampepe J and Majiedt AJ concurring): Section 35 should be interpreted in such a way that a court could order 'alternative relief' in terms of s 35(1)(e) in addition to any relief it ordered in terms of F s 35(1)(a) – (d). The costs of the memorial plaque fell under s 35(1)(e) because it was a form of relief alternative, but not mutually exclusive, to an award of financial compensation falling under s 35(1)(c). The LCC had a broad discretion to determine an appropriate remedy and, accordingly, to award both forms of relief, as did the SCA. There was no reason to interfere with the SCA's discretion. Leave to cross-appeal was accordingly refused. (Paragraphs [33] – [34] and [99] at 471F – 472D.) G

Majority judgment in main appeal (per Moseneke ACJ, with Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring): Sections 33 and 35 of the Restitution Act conferred wide adjudicative remedial powers on the LCC — a strict discretion with which an appellate court could not interfere unless it was clear that the H decision the court had made was at odds with the law. If the impugned decision were within a range of permissible decisions, an appeal court may not interfere only because it favoured a different option within the range. (Paragraphs [111] and [113] at 491I – J and 492E – F.)

The purpose of compensation is not to place the claimants in the same I position as they would have been had the land not been taken; it is to put the claimants in the same position they would have been immediately after

2014 (6) SA p458

A dispossession. The LCC was correct in calculating the financial loss at the time of the dispossession for the purpose of placing the Florence family in the same position they would have been immediately after the dispossession. The legislation did not warrant an approach that fixed compensation as if the loss had never occurred. The scheme of the Restitution Act B undoubtedly aimed to compensate financial loss as at the time of dispossession. That was why just and equitable compensation had to reflect the change, from the time of dispossession to the time of compensation, in the value of money. If compensation were based on the fiction of continued ownership of the property, its possible financial trajectory or capital gain would be difficult to compute. The purpose of compensation argued for by Ms Florence was inconsistent with the purpose of the Restitution Act and C in any event unwieldy and would lead to over-compensation. (Paragraphs [130], [131] and [133] at 497D – E, 497F – G and 498C – E.)

There were no grounds to set aside the decisions of the Land Claims Court and of the Supreme Court of Appeal. On the present facts and a proper interpretation of s 33(eC), the CPI appropriately measured 'changes over time in the value of money' in order to calculate financial compensation D under the Restitution Act. The appeal on the main claim accordingly failed. (Paragraphs [103] and [149] at 490B – D and 501I.)

Majority judgment in the cross-appeal (per Zondo J, with Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J and Madlanga J concurring): The only remedy that a person dispossessed of right in land was entitled to under s 2(1) E of the Restitution Act was the 'restitution of a right in land', defined as 'the restoration of a right in land' or 'equitable redress'. That this was the only remedy was reinforced by s 2(2), which provided that '(n)o person shall be entitled to restitution of a right in land' if they had already received 'just and equitable compensation' (as per s 25(3) of the Constitution) or 'any other consideration which [was] just and equitable'. This meant that there was no F entitlement to restitution of a right in land or to equitable redress if just and equitable compensation had been received at the time of the dispossession of the relevant right in land. It also meant that one was not entitled to lodge a separate claim for the costs of the erection of a memorial plaque on the property concerned, for once a person who was dispossessed of a right in land had been granted restitution in any of its forms, justice was done and that was G the end of the matter. Moreover, a claim for an amount for the costs of erecting a memorial plaque fell outside the definition of 'claim' in the Restitution Act. Hence it was a claim not contemplated or cognisable under the Restitution Act. The only cause of action upon which Ms Florence relied was the dispossession of a right in land, and once she was awarded equitable redress for that cause of action, she...