Koloko NO v Minister of Agriculture, Land Reform & Rural Development and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Meer AJP
• Judgment Date: 16 November 2022
• Court: Land Claims Court
• Docket Number: LCC85/2020
• Citation: 2023 JDR 0024 (LCC)

Meer AJP:

[1]

This is a claim for restitution of rights in land in terms of section 2 of the Restitution of Land Rights Act 22 of 1994 ("the Act"). The Plaintiff seeks physical restoration of Portion 9 of the farm Waag Alles NO 8899 in Klip River, KwaZulu-Natal, in extent 23.1569 hectares (hereinafter referred to as "Portion 9"). The Plaintiff claims that his maternal grandfather was dispossessed of the farm in 1972, as a result of the Native Trust and Land Act 18 of 1936, [1] and the Expropriation Act 55 of 1965, and that he did not receive just and equitable compensation at the time of dispossession.

The Parties:

[2]

The Plaintiff is the son of the late Nomsa Rosemary Potgieter, who lodged a land claim in respect of Portion 9 on 22 January 1996. Her claim form, completed at the office of the Regional Land Claims Commissioner, KwaZulu-Natal, indicates that she claimed in her capacity 'per will, as heiress of my father'. The claim form lists the person who lost the right in land as Mr Paul Potgieter. Ms Nomsa Potgieter has since passed away and the Plaintiff, her son, was appointed as executor of her estate. He substituted her as Claimant/Plaintiff and asserts that he claims as a direct descendant in terms of section 2 (1) (c) of the Act.

[3]

The First Defendant, the Minister of Agriculture, Land Reform and Rural Development, and the Participating Party, the Regional Land Claims Commissioner, KwaZulu-Natal, abide the decision of the court. They are cited

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in their official capacities. The First Defendant had offered the Plaintiff an amount of R1 140 000 as compensation, which offer was rejected, the Plaintiff asserting his right to physical restoration.

[4]

The Second Defendant, the Henk Zaal Trust, is the owner of the farm. It conducts a farming business on various portions of the farm, including Portion 9. The Second Defendant admits that Paul Potgieter was dispossessed of the farm and did not receive just and equitable compensation. However, the Second Defendant challenges the standing of the Plaintiff and opposes the physical restoration of the farm.

[5]

The matter was heard in the Verulam Magistrate's Court, KwaZulu-Natal during 10 – 14 September 2022. Three witnesses testified for the Plaintiff. They were: the Plaintiff himself, Ms Eunice Mbuyisa, his aunt, and expert valuer Mr Alan Stephenson. Two expert witnesses testified for the Second Defendant, namely: valuer Mr Malcolm Gardner, and agricultural economist, Dr Phillip Theunissen.

Locus Standi of Plaintiff:

[6]

The Second Defendant's challenge regarding standing was twofold. Firstly, referring to Nomsa Potgieter's claim form, it was contended that section 2 of the Act does not permit a claim by an heiress, amongst the categories of persons entitled to claim restitution. Secondly, it was submitted a claim as a direct descendant in terms of section 2 (1) (c) was not permitted, as the Plaintiff had not produced an unabridged birth certificate showing that Nomsa Potgieter was the daughter of the late Paul Potgieter.

[7]

On the aspect of locus standi the undisputed evidence of the Plaintiff was that:

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7.1

He is the son of Nomsa Potgieter who lodged the claim, and he is executor of her estate in terms of letters of executorship issued on 1 July 2022. The dispossessed Paul Potgieter was his maternal grandfather. The will of the late Paul Potgieter refers to his mother as the daughter of Paul Potgieter and appointed her as the sole heir.

I pause to mention that the will was not disputed, as was pointed out by Mr Myeni for the Plaintiff. The fact that there was no evidence of its acceptance by the Master, or no liquidation and distribution account was adduced, factors referred to by Mr Guldenpfenning for the Second Defendant, does not detract from this.

7.2

In a sworn statement of heirs dated 20 November 1995 Nomsa Rosemary Potgieter consented to the application for the restitution of land that belonged to her father.

7.3

He did not have an unabridged birth certificate of Nomsa Potgieter to show that she was the daughter of Paul Potgieter.

[8]

Ms Eunice Mbuyisa testified that Nomsa Potgieter was the youngest daughter of Mr Paul Potgieter. Her evidence that she is the granddaughter of the late Paul Potgieter and the niece of the Claimant Nomsa Rosemary Potgieter, and resided with them on Portion 9, was not disputed.

[9]

Mr Guldenpfenning, for the Second Defendant, submitted there was no evidence that the Claimant was a direct descendant, save for inadmissible hearsay evidence. As the Plaintiff was born in 1978, after the death of Paul Potgieter, and Ms Mbuyisa was born in 1951 and the Claimant in 1936, their evidence, he argued, carried no weight, as it is too remote in time, whilst conclusive evidence is available from the Department of Home Affairs. Section 30 of the Act, which permits the admissibility of hearsay evidence, did not, he submitted, contemplate

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the admissibility of evidence by hearsay which could be proved, and does not discard the best evidence rule.

[10]

It does not logically follow from the birthdates of the Plaintiff and Ms Mbuyisa, that they would not know whether the Claimant was the daughter of Paul Potgieter. It would be somewhat unusual for the Plaintiff not to know who his mother's father was, and, likewise, for Ms Mbuyisa not to know this, especially given that she lived with both Mr Potgieter and the Claimant on Portion 9. This is so regardless of when they were born. The Plaintiff and Ms Mbuyisa were both competent, honest and credible witnesses and, importantly, corroborated each other on the Claimant's parentage. I consider their evidence to be clearly relevant, cogent, and admissible in terms of Sections 30 (1) and 30 (2) (a) of the Act, notwithstanding the absence of a birth certificate. These sections state:

'30. Admissibility of Evidence-

(1)

The Court may admit any evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law.

(2)

Without derogating from the generality of the aforegoing subsection, it shall be competent for any party before the Court to adduce-

(a)

hearsay evidence regarding the circumstances surrounding the dispossession of the land rights or rights in question and the rules governing the allocation and occupation of land within the claimant community concerned at the time of such dispossession; . . .'

[11]

I accordingly accept their evidence as proof that the Claimant was the daughter of Paul Potgieter. Their evidence is corroborated by the contents of the will, which describes the Claimant as the daughter of the deceased. The absence of an unabridged birth certificate does not detract from this.

[12]

The claim form makes clear that Nomsa Potgieter described herself not simply as heiress, but 'per will, as heiress of my father'. She clearly therefore

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claimed as a daughter and direct descendant. The evidence of the Plaintiff and Ms Mbuyisa, together with the will of the late Paul Potgieter, similarly undisputed, establishes clearly that Nomsa Potgieter was the daughter of the dispossessed, Paul Potgieter. In the circumstances there is no merit in the challenge to the standing either of the late Nomsa Potgieter, or that of the Plaintiff. The Plaintiff accordingly has the requisite locus standi.

Agreements on Valuations:

[13]

Two joint minutes of experts were prepared. The first of these, dated 26 September 2022, was signed by the valuers Mr Alan Stephenson, for the Plaintiff, and Mr Malcolm Gardiner, for the Second Defendant. They agreed that Mr Potgieter was undercompensated for his land.

[14]

Paragraph 8 of the joint minute states: 'both valuers agreed that it would be just and equitable that the current market values (de-escalated) represent the best indication of the market value and/or loss which the Claimants would have suffered at the date of dispossession. However this does not take into account the fact that the properties were improved. The state previously offered an amount of R16000.00 for portion 9 as at 1971. The offer appears to have been a fair one. The current value of R16000 escalated by the CPI equates to approximately R1,140000 which both valuers agree represents just and equitable compensation.'

[15]

The minute records agreement by both valuers that physical restoration of Portion 9 is possible:

'Both valuers agreed that a physical restoration of Portion 9 is possible without unduly disrupting the current farming operations, although it is recommended that the ± 1.8 hectare triangular portion west of the road not be restored but this could be replaced with a similar area on the Remainder of the property east of portion 9.'

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[16]

The second minute of experts, dated 11 October 2022, emanated from a further meeting of experts, which I directed. This was due to the condoned late introduction by the Second Defendant of the report by Dr Theunissen. I directed the experts to also consider the amount of compensation payable to the owner in the event of Portion 9 being expropriated and restored to the claimants. In that minute both expert valuers set the current day value of Portion 9 at R417 460. Their joint minute states

'The Court directed the experts to consider the amount of compensation payable to the landowner in the event of portion 9 being expropriated and/or restored to the claimants. Mr Stephenson indicated the range of values of the different land types at paragraph 200 of his report applying the higher level of value, the estimated current values from an agricultural point of view of portion 9 and an approximate 2ha square share in and to the remainder would be as follows:

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