Newsflash

Released - 27 May 2020

Dear members

Covid-19 makes for exceptional times and we have no good idea, at the moment, of how the task of getting a court hearing is going to be affected. We also have no idea of when the additional fund raising event will become a reality. (It was being planned for 20th June but, clearly, this date is no longer feasible.)

The dramatic reduction in interest rates means that income from the money market investment has declined significantly and, unfortunately, the inflow of funds from subscription debtors has slowed to a trickle. However, legal bills still flow-in and have to be settled. We therefore need to remind our subscription debtors that they have a legal and moral obligation to pay their outstanding dues – even though such a reminder may seem insensitive at this time.  Covid-19 has turned the existence of everybody and every organization upside-down – and Land Claim Action Group is no exception.

1. Important Outcome in the Luhlwini Mchunu Community Case. (Case LCC 121/2017. Judge Meer.)
The Luhlwini Mchunu Community case, which was decided in March 2020 in favour of the landowners, has certain similarities to our own case and is extremely important in a number of ways, particularly:-

  • It provides a sequence of events (a ‘route map’) for deciding community claims and makes it very clear that, when a land claim is based on the fact that the claimant was a community (as ours is), then the first thing that must be proved by the claimants is that they were, in fact, a “community”. Only once the claimants have proved this can the case proceed to the other aspects of their claim (Such as:- 1.Whether or not the claimants were dispossessed of a right in land as a result of past racially discriminatory laws or practices;   2.Whether or not the dispossession occurred in the permitted widow period of June 1913 to April 1994;   3.Whether or not the claimants received just and equitable compensation at the time;   4.Whether or not the claim was correctly lodged. ).
  • It makes clear the criteria (being the existence of shared rules for determining access to land) for deciding whether or not a community did truly exist;
  • It notes that labour tenants were not easily able to formulate shared rules for determining access to land because such rules were, in fact, determined by the landowners. 

The judgement is so important to our case that we wonder if Judge Meer is secretly reading the LCAG newsletters. The January 2020 newsletter (matter 2 seventh paragraph) noted:-

"The concept of a community spanning 35 kilometres (from Pelindaba in the west to HartRAO in the east) and covering 17000 hectares is hard to imagine. Perhaps not hard to imagine in the current day and age with modern communication technology – but impossible to imagine at the time the dispossessions were supposed to have taken place in the late 1950’s or early 1960’s. Remember, sixty years ago telephones of any sort were scarce and there were no cell phones. Farm radios were restricted to the wealthy. There was no SMS’s, ‘WhatsApp’ or social media. Roads were bad. There were no ‘taxi’s’ and busses were few and far between. To have transmitted a message, from the east end of the area to the west would have involved a walk, of 4 or 5 days, through harsh country. News did not travel quickly. Co-operative ventures, such as the claimants suggest they might have taken part-in as a distributed community that covers the land under claim, would have been extraordinarily difficult to plan and impossible to organise and execute". 

It is worth noting that Judge Meer is the judge appointed to our case and that, if she steers our case along the same lines as the Luhlwini Mchunu case, there could be time and cost savings. 

It is also worth noting that the judge found the claimant’s legal team were engaging in vexatious, frivolous and abusive litigation and disallowed their fees. She also ordered them to repay whatever fees had already been paid to them.

The judgement can be found at http://www.saflii.org/za/cases/ZALCC/2020/2.pdf

2.  Expropriation Without Compensation (EWC) and other legislation
It is important to understand that, unless something completely unexpected (* refer note below) happens, the proposed EWC bill that is currently being steered through Parliament WILL, almost certainly, become law; possibly as early as the second half of 2020 but more probably by the end of the year.  
The proposals, as drafted, envisage 5 categories of property that will be subject to EWC.
They are:-
1) Abandoned property;
2) Land held purely for speculative purposes;
3) Farms or portions of farms with labour tenants; 
4) Property owned by state owned entities/corporations; and
5) Land into which the state has already invested more than its value.

Categories 3), 4) and 5) may be an issue in a very few specific cases and it will be up to the landowners in question to face the possibility.

It is conceivable that category 2) might become a problem for larger landowners, specifically where no effort has been made to utilise or develop the land over the years. It is, for example, possible that such landowners may be required to prove that they are not holding the land for purely speculative purposes and, again it is possible, that the ‘cost-of-the-proof’ (particularly if it has to be done in court) may exceed the worth of the land. (The burden of proof will be up to the specific landowners on an individual basis.)

Category 1) should not be a concern for members of LCAG – particularly the paid-up members. (Very clearly the properties of paid-up members have not been abandoned – as the willingness to pay good money to defend it from the land claim effectively proves.) It must be borne in mind that it is not beyond the bounds of a devious government to equate ABANDONED properties and UNDEFENDED properties and, again, to require that the owners of properties designated as undefended/abandoned, prove their case. This will be onerous – and obviously hugely expensive if it has to be done in court.
It is not envisaged that paid-up members of LCAG need have any worries.

Landowners, who are not members of LCAG and/or who are not otherwise defending their properties from the land claim, may well be apprehensive.

You also need to be aware of other legislation that has recently been signed into law. It is still ‘early days’, but commentators are reporting that:-

  • Before a property can be transferred, by the Deeds Office, a certificate will be required from the local Municipality confirming that all buildings on the property comply with the regulations. This includes planning regulations (e.g. Number of residences/dwellings per portion are as per title deeds and conform to building lines, boundaries etc) and building regulations (e.g. Conformance to specifications of foundations, roof, drainage etc).
  • Property can no longer be sold 'voetstoots'; all latent defects are required to be disclosed to the buyer.

This new legislation will almost certainly reduce the value of any properties with buildings that don’t comply with the regulations. The legislation also raises the possibility that, where compensation is due to landowners (e. g. as a result of land claims or expropriation), they may not be compensated for non-approved buildings and structures.

The following articles, both published on 29 February 2020, provide more details:-
1) Published in BUSINESSTECH.
https://businesstech.co.za/news/property/374708/this-new-certificate-will-be-mandatory-when-selling-your-home-in-south-africa-heres-what-you-need-to-know/
2) Published in Fin24.
https://www.fin24.com/News/2-new-laws-impacting-property-and-what-you-should-know-about-them-20200229

For those that missed it the Report on Land Reform (published in July 2019) can be found at:-
https://www.gov.za/sites/default/files/gcis_document/201907/panelreportlandreform_1.pdf

* NOTE: It is possible that the coronavirus may be the “unexpected”.

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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. I wish you well during these difficult times.

Leon Scholtz

 

Chairman,                                                                             

 

26778 Land Claim Action Group.                                            

Brian Reilly

May, 2020

Scribe

                                                                                                                            
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Please email the deposit slip to accounts@broederstroomlandclaim.co.za.  Please use your membership number as a reference.

 

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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