Newsflash

Released - 24 December 2020

Dear members

1. Sixteenth Annual General Meeting (AGM), Tuesday, 8 December 2020.

Because of the Covid-19 restrictions your committee decided that the sixteenth AGM would be held virtually, using Zoom and WhatsApp. After two postponements (the first pre-announced to allow for some legal processes to be completed, the second un-announced but due to a severe power cut that affected a wide area, and which resulted in the failure to achieve a quorum) the meeting was eventually held at 18h30 on 8 December 2020. When an AGM is rescheduled, due to the lack of a quorum at the original meeting, the LCAG constitution (clause 6.6) makes provision for a quorum that comprises of those members who are present.

However, in the event, the attendance in terms of proxies and members using Zoom achieved the normal quorum requirement of 25% of members.
Prior to the event some members were concerned that a virtual meeting would consume great quantities of data. This was not the case and one virtual attendee recorded a consumption of around 150 megabytes – a considerable saving over the cost of the fuel that would have been used in travelling to a venue.

A rather disappointing aspect of the meeting was the inability of members to wholeheartedly participate, to interact with committee and to vote on motions. This means that the minutes of the 2019 AGM could not be approved and the committee propose that they should be put forward, together with the minutes of the 2020 AGM, for adoption at the next ‘physical’ meeting of members.

The presentation encompassed the following matters:-

1.1 Efforts of the claimants to extend the scope of the claim to include Schurveberg 488JP; Elandsdrift 252JR; De Rust 478JP; and part of Hartbeespoort 482JP.
It is worth noting that Schurveberg and Elandsdrift are to the east of Welgegund and would effectively push the boundary of the claim as far as Atteridgeville. The Hartbeespoort 482 JP property includes Pecanwood and Islands.
Obviously we shall object to any extension to the claimed area on the grounds that such extensions are actually against the provisions of the land claim act and that they will delay the resolution of the claim. It is worth noting that, without the addition of these areas, the claim is already the largest and most valuable in the history of South Africa. Despite the legal validity of our objections we have the suspicion that they will fall upon ‘deaf ears’;

1.2 Steps being taken to obtain a court date for a ‘pre-trial’ meeting;

1.3 The securing of a court date (20 April 2021) to hear the cost application against the State attorney in his personal capacity. In addition to claiming against the State Attorney for not doing what he had been instructed to do by the Judge, we shall be claiming against him for not volunteering to pay our costs as he is required to do. In other words, the State Attorney has forced LCAG to commence litigation to recover the money that he should have offered to pay in the first place. It is believed that the cost order will be worth around R180k – which will be a welcome addition to our funds.

1.4 The current financial situation. (Members are reminded that annual financial statements are not published on the web site because they contain sensitive information. Any member wanting a copy of the annual financial statements may contact a committee member);

1.5 The observation that the courts are growing tired of the pathetic performance of the claimants and their legal representatives, as evidenced in the judgement of Case LCC 121/2017. (The Luhlwini Mchunu case, heard on 25-29 November 2019 & 17-21 February 2020.)
Paragraph [34] 5 of the judgement states:-
“The fees of the Plaintiff’s legal team, Attorney Sinama and Advocates Chithi and Cele, for this entire matter are disallowed in full. They are ordered to repay to the relevant entity that funded them on behalf of the State, whatever fees that may have already been paid to them.”

A more detailed report can be found in the May 2020 Newsflash and a full copy of the judgement, which makes for enlightening reading, can be found at:- http://www.saflii.org/za/cases/ZALCC/2020/2.pdf

Many thanks to all those members who submitted ‘proxies’ and to those who attended the virtual meeting.

2. Expropriation without compensation (EWC).

The latest version of the expropriation bill is open for public comment – and will remain so until 10 February 2021. The easiest way to ‘have-your-say’ is to click on the following link:
https://dearsouthafrica.co.za/expropriation-bill2/

In addition to accepting your comments on the proposed bill, the “Dear South Africa” web site also:-
2.1 Summarises the purpose of the bill;
2.2 Has the full details of the bill together with videos explaining it;
2.3 Allows you to see (anonymously) comments made by other people; and
2.4 Shows the history of the process to amend the constitution to enable EWC.
We strongly urge you to visit the web site and, as a minimum, read the history and a summary of the details. Knowing the process, together with having some feeling for how the draconian conditions, as originally proposed, have been diluted over time might give hope that sanity will eventually prevail and that we shall not go the same way as Zimbabwe.

This draft bill details the circumstances, as follows, when land may be expropriated without compensation:-

2.1 Where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from an appreciation of its market value;

2.2 Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;

2.3 Where an owner has abandoned the land by failing to exercise control over it – notwithstanding registration of ownership in terms of the Deeds Registries Act;

2.4 Where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and

2.5 When the nature or condition of the property poses a health, safety or physical risk to persons or other property.

The bill also details the circumstances when it may be just and equitable for nil compensation to be paid. However it does not appear to be prescriptive but instead provides that the amount of compensation will be determined by the courts giving consideration to the following factors:-

• The current use of the property;
• The history of the acquisition and use of the property;
• The market value of the property;
• The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
• The purpose of the expropriation.

A legal insight into the new draft can be found at:-
https://www.miltons.law.za/2020/

Other reports on the bill can be found at:-
https://businesstech.co.za/news/property/440339/why-south-africas-land-expropriation-wont-be-like-zimbabwe/    and

https://www.dailymaverick.co.za/article/2020-10-12-government-introduces-revised-land-expropriation-bill/?utm_source=Ince_FirstThing

At time of writing (21 December 2020) less than 20 thousand comments had been received. In view of the small amount of effort it actually takes to have a say on something so important, this number is dismal.

3. Questions arising from the AGM together with answers thereto.

3.1 Question/Comment
Hi Pedro 
Did you get a quorum last night? I was on the zoom as Barry.

Kind regards / Vriendelike Groete
Barry  (Barry Buys)

3.1 Answer/Reply
“Yes”, thanks Barry. We achieved a ‘full’ quorum. In fact we were covered in any case as the constitution (clause 6.6) makes provision for a reduced quorum where the meeting is postponed due to the absence of a quorum at the original meeting – as follows:-
“The quorum for any General Meeting shall be twenty-five per centum (25%) of the total Members of the LCAG entitled to vote. If within fifteen (15) minutes of the time fixed for any General Meeting a quorum is not present, the meeting shall stand adjourned to the same day and time in the week following (and if that day is a Public Holiday then to the next succeeding weekday). At such adjourned meeting the members present shall form a quorum”

3.2 Question/Comment
 Hi Pedro
Thanks for presenting the AGM on Zoom last night. Could you please send me a copy of the financials as the figures on the screen were too small to read!

Surely, the proposed extension of the scope of the claim is just yet another delaying tactic?

A comment: Your suggestion that this might be our financial salvation pre-supposes that the owners of sub-units added in to the claimed land would join BLCAG and make a financial contribution for doing so. Without intending to be in any way critical of the Committee, the record of BLCAG and its lawyers in defending the claim over 16 years and bringing it to a conclusion, has not been staggeringly successful so I think that this should be taken into account when forecasting the likely acceptance of new membership from owners of sub-units brought into the claim. In my view it is going to be a difficult sell.

One question: The various cost awards achieved so far - are these in fact credit notes rather than cash payments? In what circumstances will they become payable? Do they attract interest until paid?

Kind regards
John (John Franklin)

3.2 Answer/Reply
Thanks John.
3.2 a) A copy of the financials have been forwarded to you.
3.2 b) Possibly just another delaying tactic. However, the difficulty is that we can only speculate on the underlying strategy that their delaying tactics support. The question must be “what strategic objective do we think the claimants believe will be achieved by delaying proceedings?”
So, for example, they might have adopted a delaying tactic in the belief that:-
i) Legislation, more favourable to them, will be introduced in the future; or
ii) LCAG (and the members) will get bored, give-up and/or run out of funds and thereby give the claimants a shoo-in; or
iii) Additional resources, which will benefit their case, may be obtained in the future; or
iv) Compelling evidence, to support their claim, will be found if they just wait long enough.
We don’t know their strategic thinking. What we do know is that, in respect of the reasons we can conceptualise (the above list), their strategy is probably working more in our favour than it is in theirs.
3.2 c) With regard to progress made it is worth repeating that LCAG has little influence/control over the tempo of the court proceedings. (The whole purpose of the mandamus application, of a few years ago, was to accelerate legal developments. Sadly it had little result other than to increase legal costs.) The bottom line is that the claimants are taking us to court and we can only respond to their litigation as and when they institute it.
3.2 d) Any negotiations with Peacanwood and The Islands will be at Body Corporate level; as was the case with Estate d’Afrique. This will eliminate the need for one-on-one discussions with individual property owners.
3.2 e) Most of the cost awards, so far, are represented by credit notes that will be redeemed at the conclusion of the case. The exception is the personal award against the State Attorney who should have settled the amount (refer to matter 1.3 above).

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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.

Geseënde Kersfees 

                                                                                                                            
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.

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