Released - 01 October 2018
1. Special General Meeting of 22 August 2018
Attendance at the special general meeting was exceptional; to the extent that additional chairs had to be brought into the hall! The register shows that 85 members, representing 95 properties, attended the meeting. Thank you for your support.
The business of the meeting comprised feedback and discussion of the following matters:-
1.1 Court proceedings scheduled for 12 September.
It was noted that the original purpose of the court hearing, which was to seek to have the restitution claim ‘struck out’ on the grounds that the claimants had failed to file expert reports, had become academic because the expert reports had, now, been filed in the interim. However it must be noted that the effort, and expense, of the application was well worth while because it resulted in the claimants actually filing their expert reports – something which they had avoided doing for at least the past five years. It was also noted that the court date would not be wasted and the opportunity would be used to motivate a cost order (refer to 3 below).
1.2 Report back on the claimant’s expert reports.
It was advised that the expert reports were of poor quality, lacked substance and contained generally weak arguments that failed to support the claim.
One of the expert reports mentions claimants living in Moganwe village – and gives sufficient information for the position of this village to be identified on a map. Moganwe village is, very clearly, located some two kilometers outside the claim area in the vicinity of Sartjies Nek!
1.3 Finances and additional funding.
The budgeted financial shortfall was explained. The concept of obtaining loans from members, rather than making a new subscription call to cover the shortfall, was discussed (refer to 4 below). Members are encouraged to make loans to LCAG to cover the budgeted deficit. Resolution number two (refer to 1.6 below) will allow loans to be repaid preferentially.
1.4 Power-of-Attorney (POA’s)
The matter of POA’s was discussed. It was noted that just 131 valid POA documents are held in respect of the 288 LCAG member properties (refer to 2 below). It was suggested that, because of the shortage of POA’s, it was possibly a blessing that the original purpose of the 12 September court case had fallen away. Had the original purpose not fallen away, and had the restitution claim been ‘struck out’, as was requested, it is worth noting that the judgement would only have applied to the 131 properties in respect of which valid POA’s are held.
1.5 Resolution number one. Membership representation at the trial. (No change to the constitution required)
The original proposal of the committee that “LCAG should endeavor to represent as many properties as possible and to this end propose that members should vote in support of this resolution” was, following discussion, expanded to confirm that:-
- Members in arrears will not be removed from membership; and
- Powers-of-attorney will be sought from non-members, in the claim area, in order to allow them to be represented.
The amended resolution was approved by a very large majority.
1.6 Resolution number two. Handling of refunds. (Change to the constitution required)
It was unanimously approved that clause 10.8 of the LCAG constitution should be amended to read:-
“Should LCAG at any time have funds surplus to requirements then these funds shall be used in the first instance to settle any outstanding debts, salaries, emoluments and loans. Remaining surpluses shall be returned to fully paid members on a pro rata basis.”
The above wording change will give effect to the proposal that:-
“Members who make loans to LCAG should have loan amounts repaid preferentially and that members in arrears with subscriptions shall be barred from participating in any refund should/when LCAG have surplus funds available for whatever reason”.
1.7 Sundry matters
Due to the legal workload it has become necessary to engage an additional advocate and Gideon Scheepers (essentially a “senior junior”) has been appointed to assist Advocate H. Havenga. Advocate Scheepers will be of great assistance because land claim matters are his particular field of expertise.
Our thanks, once again, to Amanzingwe Bush Lodge who treated us like royalty. The special buffet dinner, at the bargain price of R65, was, as usual, superb. I was obvious that the prospect of a feast, in elegant surroundings, had encouraged a number of members, together with their partners, to venture out on a mid-week night!
2. Power of Attorney (POA)
Membership figures show that, although LCAG should represent 288 properties, it has only 131 valid POA’s. LCAG cannot represent you in court unless it has your POA. (If LCAG were to represent a property, without a valid power of attorney, it would be misrepresentation and possibly fraud.) If your property is registered in the name of a trust, close corporation, or Pty Ltd company then LCAG also needs a resolution from that body confirming that the person signing the POA is empowered to do so.
PLEASE ENSURE LCAG HAS YOUR POA – together with a resolution if necessary.
Blank forms were attached to the November 2017 and December 2017 newsflashes and they are on the web site www.broederstroomlandclaim.co.za (no password is required).
One POA is required for each portion owned.
The status of your POA is shown, top right, on your most recent account statement.
3. Status of the exercise to get a court hearing.
Although the stated objective of the 12 September court appearance was to have the Claimants restitution claim ‘struck out’, it was always considered that this would be a rather unlikely outcome. What was achieved was to get the claimants to finally submit their expert reports and the legal team are satisfied that this signals the commencement of the court processes.
Another positive outcome of the 12 September court appearance was that the legal team applied for a cost order (in respect of the 12 September legal costs) and this was granted by Acting Judge Canca.
The next steps are:-
- Another pre-trial conference. You may recall that, during the last pre-trial conference on 13 October 2017, Judge Meer tasked the State Attorney with convening the next pre-trial conference BEFORE 15 December 2017. Thus far the State Attorney has failed to even attempt to arrange a meeting. Two weeks ago the State Attorney was served with a notice to organise, before Friday 21 September 2018, the next pre-trial conference, failing which LCAG would apply for appropriate relief from him, in his personal capacity for non-performance. The State Attorney failed to respond by the due date (21 September) and papers are in the process of being prepared to seek relief from him. They will be served next week.
- Publish a notice in the local papers, addressed to all untraceable property owners, advising them of the restitution claim. (The responsibility for this lies with the State Attorney.
4. Finances and additional funding
In light of the ever changing circumstances the LCAG budget has been revised.
The latest figures indicate that balances (bank and money market combined) on hand amount to R807k. Legal costs to the end of the case are estimated to be R1693k. An eventual shortfall (deficit) of R864k is considered to be likely at the current rate that those members in default are paying what they owe. This is a huge ‘HOLE’ and one which must be plugged.
Please talk to your neighbours and encourage them to pay their outstanding subscriptions.
As indicated in 1.3 above, fully paid-up members are being encouraged to make loans to LCAG to cover the anticipated funding shortfall.
The change to the constitution (refer to 1.6 above) means that any loans received by LCAG can now be repaid preferentially.
5. Expropriation and expropriation-without-Compensation
Some background may help:-
4.1 Most (maybe all) countries have expropriation legislation and most (maybe all) governments, at some time or another, expropriate land for such things as roads, railways, airports and dams. International law recognizes the right of countries to seize private property, in the national interest, but it requires that both citizens and non-citizens should be treated equally. The matter of ‘Just Compensation’ differs between one country and another but most ‘Western countries’ maintain that the expropriating country should pay prompt, adequate, and effective compensation
4.2 Current South African expropriation legislation dates back to 1975. In 2008 new expropriation legislation (a Bill, in line with the constitution and of ‘general application’) was first tabled in Parliament. Parliamentary lawyers, however, considered that some parts of the proposed legislation was unconstitutional (particularly the ban on recourse to the courts) and the Public Works Department (who were responsible for drafting the Bill) took their time correcting it. Eventually in 2015 (some six years later!) the redrafted Bill was again tabled in Parliament. It was passed (by Parliament) in early 2016. The Bill then went to Zuma for signing into law. Zuma ‘sat on it’ and eventually returned it, unsigned, to Parliament (nine months later) because of concerns over public consultation – particularly with ‘traditional leaders’. The consultation with ‘traditional leaders’ was then undertaken (Note: traditional leaders do not support expropriation of land under their control!) but the Bill got no further – probably due to the squabbles that were going on within the ANC in the run-up to the elective conference at the end of 2017. The Bill, which had been sitting on the legislative back burner for the past 18 months, was officially withdrawn last month (August 2018).
So, ten years of fiddling since the new legislation was first sent to parliament, and we are back to the beginning. As of right now the expropriation legislation in force is that which was introduced in 1975 – when BJ Vorster was still prime minister. (Under this legislation compensation must be ‘just and equitable’.)
It is to be expected that new legislation is being feverishly drafted and that a new Bill, taking account of any possible constitutional changes in respect of “expropriation without compensation” will be presented to parliament in due course – reportedly within the next two months.
A fairly brief article by Ferial Haffajee, which appeared in Fin 24 on 18 September 2018, is worth reading (https://www.fin24.com/Economy/exclusive-cronin-lifts-veil-on-new-draft-expropriation-law-20180918). The article references Jeremy Cronin (deputy minister of Public Works) and provides a list (obviously very provisional) of land that may be expropriated without compensation as follows:-
- Commercial property held unproductively and purely for speculative purposes;
- Underutilised property held by the state; and
- Land farmed by labour tenants with an absentee titleholder.
The above matters are updates to the recent previous newsflashes and, for clarity, should be read in conjunction with them.
As a formality I should like to record that the opinions stated above are my own and are made without prejudice to any legal or any other position that may exist insofar as the Broederstroom Land Claim is concerned.
26778 Land Claim Action Group.
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The opinions expressed in this newsletter are my own and do not necessarily represent those of the Committee or of the appointed legal team.