Newsflash

Released - 13 February 2020

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Dear members

1) Status of the Exercise to get a Court Hearing

In mid-January the legal team advised that two reports were still outstanding:-

  • An expert witness report due to be produced by the Claimants; and
  • The list of properties deemed un-restorable, which the Regional Land Claims Commissioner (RLCC) had been instructed by the Court to produce by 28 June 2019.

Following discussions with the legal team your Committee identified two possible options:-

1) Press ahead as planned and hope that the two outstanding reports would be produced by the court date, of 17th March, and accept that this course of action may result in a fruitless and wasted legal cost of R900k if the reports were not presented ; OR

2) Postpone the court case early, and avoid the probable bill for R900k that would arise if the case was only postponed at a late stage (Refer to the note, in the box, below). This option would involve the holding of a further pre-trial conference, with the particular objective of obtaining a better understanding of the Claimants readiness for trial.

After considering the above options at length, and bearing in mind the abysmal historical performance of the Claimants and the RLCC, the Committee reluctantly took the decision to take option 2) and to postpone the case early.

To say that your committee is incredibly disappointed is an understatement!

However we are now absolutely of the opinion that the Claimants realize that, with the law as it is at present, they will lose the case. They are just hoping-against-hope that the pending expropriation without compensation (EWC) legislation will strengthen their hand; with the result that are doing everything in their power to delay proceedings until the EWC legislation is signed into law.

The legal team are confident that a new trial date will be available during the course of 2020 and they have been requested to seek a new court date in June or July. In the interim we are urgently seeking a further pre-trial conference in order to highlight the incompetence of the RLCC/State attorney and the delaying tactics and broken promises of the Claimants. In addition to expediting the matter, such a pre-trial conference may result in more cost orders in our favour.

The decision to seek a postponement was heavily influenced by the fact that LCAG subscription debtors still amount to R1.3 million. Had that money, which had been promised by so many of our defaulting members, been received and in the LCAG bank account then the decision of the Committee might have been very different because adequate funds would have enabled the Committee to take a chance on recovering the R900k legal cost through a cost order against the RLCC.

It is also worth recording that this type of scenario was predicted two years ago and has been repeated regularly since. Examples are:-

From the February 2018 newsflash:- In a strange way the delaying tactics, of the State Attorney and Claimants, are almost to be welcomed because, the reality is, LCAG actually can’t afford to go to court right now.”

From the June 2019 newsflash:-It must be repeated that the task of raising the necessary funds is absolutely vital. Without sufficient funds the committee will be forced to withdraw from the case and this may open LCAG to cost orders from the Claimants, the Department of Rural Development and Land Reform and the State Attorney, who might be particularly vengeful in view of the cost order secured against him personally.”

Unfortunately the possibility of obtaining cost orders against the Claimants and the RLCC is by no means guaranteed. Even where cost orders are obtained it is usually an expensive, and lengthy struggle, to then get the actual money. The experience is that Government tends to have ‘sticky’ fingers.

Another land claim had a very similar history to ours – with the Claimants delaying and delaying. Eventually the property owners forced the case into court. The Claimants attorney failed to attend and advised the court that their expert witness report was outstanding. The result was that the court hearing was cancelled while the property owners incurred fruitless legal bills of approximately R900k. It is worth noting that our case is 4 times the size of this other recent case and is the largest land claim in South Africa.

2) Restitution of Land Rights Amendment Act of 2014

To fully understand the truly wonderful importance of this, it is necessary to cast your mind back three and a half years to 28 July 2016. In the August 2016 newsflash we wrote:-

You will remember that the ‘Restitution of Land Rights Amendment Act of 2014’ reopened the window period (until 30 June 2019) during which new claims for restitution might be lodged.

Under the amendment act many such (reportedly over 120 000) new claims have been submitted and it appears that some organizations with old claims were concerned that they would be overlooked and ‘pushed-back’ in the queue. Accordingly they challenged the legality of the ‘Restitution of Land Rights Amendment Act of 2014’ in the Constitutional Court and, on 28 July 2016, the Constitutional Court:-

1) Declared the ‘Restitution of Land Rights Amendment Act of 2014’ to be invalid; and

2) Prohibited (for 24 months) the Land Claim Commission from processing any new claims until such time as all old claims had been processed.”

Obviously the stipulated 24 month period has long passed and, as anticipated, Parliament approached the Constitutional court with an application to allow the new claims to now be processed. The very good news is that the Constitutional Court has rejected the application. The effect of this is that ALL OLD CLAIMS (INCLUDING THE BROEDERSTROOM LAND CLAIM) MUST BE PROCESSED BEFORE ANY NEW CLAIMS ARE DEALT WITH IN ANY WAY.

This, at least, will ensure that continued pressure is brought to bear on Parliament, the Regional Land Claim Commission and the State Law Attorney to deal with the old claims as a priority.

The judgement is not an easy one to read and requires some knowledge of the cases that preceded it. But, for those with any 2020 strength remaining, it can be found here:-

http://www.saflii.org/za/cases/ZACC/2019/10.html

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3. Expert Witness Reports

Some good news is that the anthropologist, Professor F C de Beer, will definitely act as an expert witness. It transpires that he actually assisted Professor Hartmann in compiling the original expert witness report. Good news indeed, particularly as it means that any research costs should be minimal.

4. Powers of Attorney (POA)

You must submit a POA in order for LCAG to represent you in court. LCAG cannot represent members without a valid POA.

Of a total of 820 POA’s available, LCAG has 540; being 67%. (A detailed breakdown is shown at the very end of this newsletter.) Please check with your neighbor that they have submitted their POA and, if they have not, then encourage them to do so. If there are any problems please phone the treasurer, Pedro Carvalho, on 082 337 0203.

It is worth noting that one fully paid-up member has still not submitted a POA and a number of other members, who are substantially paid-up, are in the same situation. Much as LCAG would love to represent them it is unable to do so. Valid POA’s are essential.

(The status of your POA is shown in the top right hand corner area of your statement of account – copies of which were sent out recently.)

5. Crowdfunding.

Contributions to the Backabuddy crowdfunding campaign have effectively stalled at R22k – possibly because so very few of our members have shared the address of the web-site.

Please, we urge you to have a look at the Backabuddy web site and read the hugely supportive comments from the well-wishers and donors. In addition to money it is very clear that this initiative is raising considerable general support, and sympathy, for our cause.

PLEASE, SHARE THE LINKS WITH YOUR FRIENDS AND RELATIVES.

The links are:-https://www.backabuddy.co.za/26778-land-claim and https://www.facebook.com/26778LCAG/

6) Expropriation Without Compensation (EWC)

The deadline, for the public to make written submissions on the proposed bill to amend section 25 of the Constitution (to allow for land expropriation without compensation) has been extended. The window period for submissions was originally due to close on 31st January but it has now been extended to 29th February. If you have not yet made your voice heard on the matter, now is the time. Submissions can be emailed to section25@parliament.gov.za. Alternatively, write to Mr V Ramaano, 3rd Floor, 90 Plein Street, Cape Town, 8000. Perhaps the easiest way to make a submission is by using the service offered by “Dear South Africa”. Just click-on the following address and follow the prompts:-

https://dearsouthafrica.co.za/expropriation-bill/

All you need do is indicate, by ‘ticking’ a box, whether you approve or disapprove of the proposed legislation. You can use a smartphone or a computer. Having ‘your say’ should take no longer than 3 minutes.

The following informative and fairly short articles are strongly recommended (the first two are easy-to-read while the third is somewhat more challenging):-

6.1) An article by Lawrence McCrystal giving eight reasons why the legislation to amend the constitution is a bad idea. (For the past 50 years Lawrence McCrystal has played a part, as an entrepreneur and economist, promoting industrial and business development, both as a member of the IDC Board and in numerous other public and private sector roles. The article was published in BizNews on 10 January 2020.)

https://www.biznews.com/thought-leaders/2020/01/10/eight-reasons-sa-land-grab-legislation-evil

6.2) An excellent article by Simon Hull, which points out that their might also be some positive aspects to the expropriation without compensation bill. (Dr Simon Hull is a senior lecturer and current programme convenor at the University of Cape Town’s School of Architecture, Planning and Geomatics; Division of Geomatics. The article was published in the Daily Maverick on 16 January 2020.)

https://www.dailymaverick.co.za/article/2020-01-16-the-land-bill-is-a-curates-egg-and-right-now-its-a-bit-scrambled/?utm_source=homepagify

6.3) A somewhat challenging article entitled Expropriation: a bad turn for land reform, dire turn for the country” by Terence Corrigan published in News24 on 27 January. Terence Corrigan is a project manager at the Institute of Race Relations.

https://www.news24.com/Columnists/GuestColumn/opinion-expropriation-a-bad-turn-for-land-reform-dire-turn-for-the-country-20200127

__________________o0o_________________

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.

Groete.

Leon Scholtz


Chairman,


26778 Land Claim Action Group.

Brian Reilly

February, 2020

Scribe

Our bank account details

26778 Land Claim Committee; Standard Bank; Van Der Walt Street PTA.
Clearing Code 010145; Cheque account 410776882.
Please email the deposit slip to accounts@broederstroomlandclaim.co.za. Please use your membership number as a reference.

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POA’s by entity – detailed breakdown.

Farm

Valid

Total

%

 

Sub Valid

Sub Total

%

Broederstroom - 481JQ

123

163

75.46%

 

 

Hartbeeshoek - 498JQ

30

33

90.91%



Kafferskraal - 501JQ

2

3

66.67%

Leeuwenkloof - 480JQ

38

50

76.00%

Praetor's Ride - 562JQ

1

1

100.00%

Petit Mont Rouge - 479JQ

1

1

100.00%

Welgegund - 491JQ

27

33

81.82%

 

222

284

78.17%

Afrique - Prtn 105 Port d' Afrique X2

135

214

63.08%

 

Afrique - Prtn 97 Port d' Afrique X1

14

17

82.35%

Afrique - Prtn 96 Port d' Afrique

18

26

69.23%

Afrique - Prtn 94 Vllie d' Afrique X1

18

39

46.15%

Afrique - Prtn 93 Ville d' Afrique

32

56

57.14%

Afrique - Prtn 87 Beau Rivage

74

122

60.66%

Afrique - Prtn 84 Port d' Afrique X3

16

24

66.67%

307

498

61.65%

 

 

Broederstroom Portion 1 Exception

19

38

50.00%

19

38

50.00%

 

 

Totals

548

820

66.83%



The opinions expressed in this newsletter are my own and do not necessarily represent those of the Committee or of the appointed legal team.

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