In re Former Highlands Residents: Sonny and Others v Department of Land Affairs

• Jurisdiction: South Africa
• Judge: Gildenhuys J
• Judgment Date: 30 November 1999
• Docket Number: LCC116/98
• Hearing Date: 25 October 1999
• Counsel: G N Moshoana (attorney) for the claimants. G L Grobler SC (with him S K Hassim) for the Department of Land Affairs.
• Court: Land Claims Court

In re Former Highlands Residents: Sonny and Others v Department of Land Affairs
2000 (2) SA 351 (LCC)

2000 (2) SA p351

Citation	2000 (2) SA 351 (LCC)
Case No	LCC116/98
Court	Land Claims Court
Judge	Gildenhuys J
Heard	October 25, 1999
Judgment	November 30, 1999
Counsel	G N Moshoana (attorney) for the claimants.; G L Grobler SC (with him S K Hassim) for the Department of Land Affairs.

Flynote : Sleutelwoorde B

Land — Land reform — Claim for restitution of rights in land in terms of Restitution of Land Rights Act 22 of 1994 — Claim by direct descendants — Section 2(4) — Where not all living descendants entitled to restitution lodging claims — Full restitution, whether for restoration of land or for equitable redress, undiminished by C apportionment in respect of descendants who did not lodge claims, to be awarded — Living descendants entitled to restitution but who did not lodge claims not to be taken into account when equitable redress in form of compensation assessed or divided among direct descendants entitled to restitution and who have lodged claims. D

Headnote : Kopnota

Section 2(4) of the Restitution of Land Rights Act 22 of 1994 provides that '(i)f there is more than one direct descendant who have lodged claims for and are entitled to restitution, the right or equitable redress in question shall be divided not according to the number of individuals but by lines of succession'. E

Where restitution, whether in the form of restoration of dispossessed land or in the form of equitable redress, is claimed by one or more direct descendants of a dispossessed person, the Act envisages full restitution of the dispossessed right, undiminished by any apportionment in respect of descendants who have not lodged claims. (Paragraph [26] at 364C - E.) Therefore, living descendants who are entitled to restitution but who have not lodged claims must not be F taken into account when equitable redress in the form of compensation is assessed or divided among the direct descendants who are entitled to restitution and who have lodged claims in terms of s 10 of the Act. The full amount awarded should be divided by the lines of succession among the claimants. (Paragraph [27] at 364E - G.)

Cases Considered

Annotations

Reported cases

Dulabh and Another v Department of Land Affairs 1997 (4) SA 1108 (LCC): dictum at 1123I - 1124B applied

In re Former Highlands Residents: Naidoo (Muller Claim) v Department of Land Affairs 2000 (2) SA 365 (LCC): referred to H

Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 (CA): dictum at 1236A applied

Minister of Land Affairs and Another v Slamdien and Others [1999] 1 B All SA 608 (LCC): dictum in para [14] at 616f - 617a applied

Noord-Westelike Koöperatiewe Landboumaatskappy Bpk v Die Meester en Andere 1982 (4) SA 486 (NC): dictum at 494in fine applied I

Paramount Furnishers v Lesar's Shoe Store and Outfitters 1970 (3) SA 361 (T): referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum at 403D (SA) applied

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): dictum in paras [13] - [15] at 650H - 651I (SA) applied J

2000 (2) SA p352

Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk 1966 (4) SA 434 (A): referred to

Shannon Realties Ltd v Ville de St Michel [1924] AC 185: dictum at 192 - 3 applied.

Statutes Considered

Statutes

The Restitution of Land Rights Act 22 of 1994, ss 2(1), 2(4): see s 2 of the Land Restitution and Reform Laws B Amendment Act 18 of 1999, Government Gazette 19968 of 1999.

Case Information

Adjudication of a question of law concerning the apportionment of equitable redress in the form of compensation among direct descendants of persons dispossesed of rights in land. The nature of the issues appears from the reasons for judgment. C

G N Moshoana (attorney) for the claimants.

G L Grobler SC (with him S K Hassim) for the Department of Land Affairs.

Cur adv vult.

Postea (November 30). D

Judgment

Gildenhuys J:

General background

[1] A large number of claimants lodged claims for restitution under the Restitution of Land Rights Act (the Restitution E Act), [1] following upon the dispossession of properties in the former township of The Highlands, district of Pretoria. The Regional Land Claims Commissioner for Gauteng and North West Province investigated the claims. She referred them to this Court as a group under s 14(1) of the Restitution Act. The claimants do not F claim actual restoration of the dispossessed properties but equitable redress in the form of monetary compensation.

[2] After the claims were referred to this Court, the Department of Land Affairs indicated that it wished to participate in the action. The claimants filed statements of claim and the Department of Land Affairs filed responses. For purposes of convenience the claims G were processed together and will, at the main hearing, be heard together. Several pre-trial conferences took place between the parties in order to identify and limit the issues in dispute. During these conferences, certain questions of law were identified which, if adjudicated upon prior to the main hearing, would facilitate the preparation for the main hearing and shorten the H proceedings. [2] Some of those issues already came before this Court and I have given judgments on them. [3]

2000 (2) SA p353

Gildenhuys J

The facts A

[3] This judgment concerns a claim by the descendants of the late Abraham Sonny. Nine members of the Sonny family lodged restitution claims. They alleged that their forebear, Abraham Sonny, was dispossessed of the property known as lot 36 in The Highlands. The facts of the Sonny claims raise questions of law which are also pertinent to many of the other claims. B

[4] For purposes of having the questions of law decided and for those purposes only, the Sonny claimants and the Department of Land Affairs agreed to certain facts, which I summarise hereunder: C

-

Abraham Sonny was the registered owner of lot 36 in The Highlands. On or about 6 May 1961 Abraham Sonny sold the property to the City Council of Pretoria for a purchase price of R350 000. Thereafter he transferred the property to the council against payment of the purchase price.

-

The transaction between Abraham Sonny and the council dispossessed Abraham Sonny of his ownership of the property, as D contemplated in s 2(1) of the Restitution Act. The open market value of the property at the date of the sale was more than the purchase price.

-

The law under which the council acquired the property was the E Group Areas Development Act, [4] which was a racially discriminatory law as defined in s 1 of the Restitution Act.

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Abraham Sonny had four children, being a first child now deceased, a second child now deceased, the first plaintiff (Alfred Sonny) and the second plaintiff (Ghaditja Suliman, born Sonny). The F first deceased child had one son, the third plaintiff (Joyce Sonny). The second deceased child had six children, the fourth to ninth plaintiffs (Mitchell Sonny, Ulandie Sonny, Gloria Sonny, Gail Sonny, Judith Sonny and Uriel Sonny).

-

The second to ninth plaintiffs submitted claims under the Restitution Act prior to 31 December 1998. The first plaintiff did not submit such a claim and withdrew as plaintiff. G

-

The second to ninth plaintiffs are entitled to equitable redress in the form of financial compensation because the consideration received by the said Abraham Sonny at the time of the dispossession of his right in land was not just and equitable. For purposes of argument H on the question of law, the amount of under-compensation was agreed at R36 000.

-

The amount of R36 000 would have been awarded by way of equitable redress to all nine plaintiffs, if the first plaintiff had also timeously lodged a claim. I

2000 (2) SA p354

Gildenhuys J

The questions of law A

[5] Based on the above facts, the legal representatives of the parties formulated the following questions of law for decision by this Court:

-

Are living direct descendants who are entitled to restitution but have not lodged claims to be taken into account when equitable redress in the form of compensation is assessed and/or divided amongst B the direct descendants who are entitled to restitution and have lodged claims in terms of s 10 of the Restitution Act?

And

-

Is s 2(4) of the Restitution Act to be interpreted on the basis that the full amount of R36 000 is to be divided by lines of succession amongst the second to ninth plaintiffs? C

Or

-

Is s 2(4) of the Restitution Act to be interpreted on the basis that only a proportion of the amount of R36 000 is to be divided amongst the second to ninth plaintiffs, even though the first plaintiff did not lodge a claim in terms of s 10 of that Act? D

[6] The plaintiffs submitted that, on a proper application of the Restitution Act, the second and third plaintiffs should be awarded R12 000 each and the other plaintiffs R2 000 each, giving a total of R36 000. The defendant, on the other hand, submitted that the second and third plaintiff should be awarded R9 000 each, and the E other plaintiffs R1 500 each, giving a total of R27 000. If the defendant is correct in its interpretation, the fiscus would benefit by R9 000.

The applicable legal provisions

[7] The claimants base their right to restitution on s 2(1) of the Restitution Act. The subsection reads as follows: F

'(1) A person shall be entitled to restitution of a right in land if -

(a)

he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or

(b)

. . . ; or

(c)

he or she is the direct...