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Press Release: Com­pen­sa­tion for expro­pri­a­tion of land for labour ten­ant to be argued in SCA

For Imme­di­ate Release: 31 August 2017


Tomor­row, 1 Sep­tem­ber 2017, in the Supreme Court of Appeal, the Legal Resources Cen­tre will be rep­re­sent­ing Mr Phile­mon Msiza in an impor­tant mat­ter chal­leng­ing the approach taken when deter­min­ing com­pen­sa­tion for the expro­pri­a­tion of land for the pur­poses of land reform.


The land own­ers are appeal­ing a judg­ment handed down in the Land Claims Court (LCC) on 5 July 2016 which found that mar­ket value must not be given more value than other fac­tors listed in sec­tion 25(3)(a) – (e) of the Con­sti­tu­tion (the prop­erty clause).


The cen­tral issue at the SCA will be what is just and equi­table com­pen­sa­tion for land reform.


As a labour ten­ant, Mr Msiza’s father made a land claim for the land which he lived on and which he utilised for graz­ing and grow­ing crops. Mr Msiza’s father passed away before the claim was finalised and our client was appointed as rep­re­sen­ta­tive of the estate. Dur­ing 2004, with the assis­tance of the LRC, the mat­ter went to court. It was suc­cess­ful and Mr Msiza’s late father was declared a labour ten­ant and awarded land.


The Depart­ment of Rural Devel­op­ment and Land Reform and the own­ers of the land could not come to an agree­ment on the com­pen­sa­tion that should be paid for the land.


In 2012, with the assis­tance of the LRC, Mr Msiza brought an appli­ca­tion to the LCC ask­ing the LCC to deter­mine the pur­chase price of the land in terms of sec­tion 23 of the Land Reform (Labour Ten­ants) Act No. 3 of 1996, read with sec­tion 25 of the Repub­lic of South Africa.


Under sec­tion 25 of the Con­sti­tu­tion, fac­tors listed when deter­min­ing com­pen­sa­tion for expro­pri­a­tion include the cur­rent use of the land, the his­tory of the acqui­si­tion of the land, the extent of invest­ment in the land and the pur­pose of the expro­pri­a­tion.


The mat­ter was heard in the LCC in Novem­ber 2015. The expert val­uer called on behalf of the own­ers declared the mar­ket value to be R4,360 000.00 (four mil­lion, three hun­dred and sixty thou­sand rands). The expert val­uer called on behalf of the gov­ern­ment val­ued the prop­erty at R1, 800 000.00 (one mil­lion eight hun­dred thou­sand rands). Fol­low­ing argu­ment, the LCC reserved the judg­ment.


In the judg­ment of the LCC, the court found that mar­ket value is not more impor­tant than any other fac­tors listed in sec­tion 25(3)(a) – (e) of the Con­sti­tu­tion and that all fac­tors must be given the same value.


The LCC decided that the just and equi­table com­pen­sa­tion to be paid by the Director-General and the Min­is­ter for the Depart­ment of Rural Devel­op­ment and Land Reform is R1, 500 000.00 (one mil­lion five hun­dred thou­sand rand) for the acqui­si­tion of the prop­erty for Mr Msiza, and directed them to make this pay­ment to the own­ers of the land within 60 days of the judg­ment and to reg­is­ter the prop­erty in Mr Msiza’s name within 90 days of the judg­ment.

The judg­ment was appealed.


This judg­ment has changed the approach taken in Mhlangan­isweni Com­mu­nity v Min­is­ter of Rural Devel­op­ment and oth­ers (LCC156/2009) (known as the “Mala Mala judg­ment”), where mar­ket value was given more weight than other fac­tors listed in sec­tion 25(3)(a) – (e) of the Con­sti­tu­tion, which resulted in more than R1 bil­lion being paid to the own­ers of the reserve on behalf of the com­mu­nity.


AgriSA has inter­vened in the SCA mat­ter as ami­cus curiae.







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