Land restitution is akin to knitting together fractured or broken bones of our history

2014-08-28 11:06

Extract: Should land or financial restitution (if land restitution is not possible) act as a means of reversing the injury cased by apartheid itself, knitting together the fractured or broken bones of history together as if no fracture or break had ever occurred, or rather should it act as a placebo or as a salve for an ever-gaping wound?

This is the primary question that interrogates our narrative 20 years into our post apartheid democracy.

We cannot act like ostriches with our memories buried in the trackless sands of time.

“Restitution is not only directed at righting the wrongs of spatial apartheid, but also at carrying out “important symbolic work by acknowledging histories of injustice and their impacts on individuals, families, and communities.” The Government itself recognised in argument that a solatium may be awarded by a court to recognise the dignity and worth of those who have been affected by forced dispossessions.” (Constitutional Court in Florence v Government of the Republic of South Africa [2014] ZACC 22.

Prefatory qualification

# A caveat. I donot intend to summarise or discuss the entire case here.My purpose is to highlight an important principle of law enunciated by the Constitutional Court as to what was the yardstick to measure and calculate what was “ just and equitable compensation” in favour of those who suffered land dispossession under apartheid.

The eloquence of the judgment merited me to use verbatim where necessary for the issue that this case covers requires the pure essence of what the learned judge said.I confess, I can do no better.

In essence I have taken the liberty of summarising a piece of jurisprudence and staying as close to the original text as possible.

Introduction

I wish I was brave enough as the hopelessly romantic Jay Gatsby ( Read F Scott Fitzgerald's "The Great Gatsby") who, when challenged “You can’t repeat the past”, responded “Can’t repeat the past? Why of course you can!”

In the international as well as national context, this issue interrogates me namely, if only we could repeat, re-run or re-shape history to avoid the injustices of the apartheid era in the past 66 years and this encompasses the Israeli/Palestine imbroglio.

Reality check. We cannot sans the willingness on the part of all parties concerned do that. In SA it took brave and steely resolve on the part of FW De Klerk and Nelson Mandela to negotiate an end to the blood letting. We were heading into the same abyss that the Israelis and the Palestinians are embroiled in.

One of the most pernicious laws under apartheid was The Group Areas Act . It was the cornerstone which used race to determine the area in which people were allowed to live. Many were deprived of their homes and land because of the colour of their skin.

To redress that government passed a raft of laws. The Promotion of National Unity and Reconciliation Act is one example. The Restitution of Land Rights Act (Restitution Act) is another. The latter represents an attempt to address evictions, forced removals and past dispossession of land through land restitution.

But ultimately and at the best of times, it takes one judgment at a time through our courts to redress the ravages under apartheid.

A case in point is Florence v Government of the Republic of South Africa [2014] ZACC 22.

Section 25(7) of the Constitution promises that persons or communities dispossessed of property as a result of racially discriminatory laws or practices are entitled to restitution of the property or to equitable redress. The Restitution Act provides for the fulfillment of this promise.

But how do you “equitably redress”? More importantly is what is the purpose of equitable redress? The Constitutional Court explained this in para [42] et seq.

The right to claim restitution of, or equitable redress for, dispossessed property derived from section 25(7) the Bill of Rights which provides:

A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.” (Emphasis added.)

The Restitution Act similarly defined restitution of a right in land as “either restoration of a right or equitable redress. ”

Equitable redress, it went on to declare is—

“any equitable redress, other than the restoration of a right in land, arising from the dispossession of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices, including—

(a) the granting of an appropriate right in alternative state-owned land;

(b) the payment of compensation”.

A court interpreting the term “equitable redress” was obliged to “have regard to” a number of factors listed in section 33 in reaching its decision.

The Facts

The Florence family lived in a house called Sunny Croft on Erf 44408 (the property) in present-day Rondebosch, Cape Town, from December 1952 until November 1970. The area in which the land was situated was classified a “White Group Area” in terms of the Group Areas Act which prevented the transfer of the property into Mr Florence’s name, as he was not classified as “white”. Because of the area’s classification and harassment by the authorities, the family was forced to leave in November 1970.

On 14 December 1995 Mr Florence launched a restitution claim, in his own right and on behalf of his two brothers, in terms of the Restitution Act. The claim initially sought restoration of the entire plot of the property. Given subsequent development on the land, however, this was not feasible. The claim was therefore amended to seek equitable redress in the form of financial compensation, as well as the erection of a memorial plaque. The amount that was paid out was miniscule in terms of the law.

Was this “equitably” redressed?

The Constitutional Court held that it was not. The method to determine an appropriate approach for measuring compensation under the Restitution Act fell short, in its opinion.

“Certainty” it went on to hold that, whilst “ the contours and content of equitable redress under the Restitution Act would benefit the broader public, which ha(d) an interest in how such claims are resolved given South Africa’s “historical chasm on the issues of land dispossession and land restitution.” , important issues of principle with large practical effects came into play.

Giving content to the term “equitable redress”

A key component in giving content to equitable redress, considering South African as well as foreign law and practices, is that a claimant should generally be placed in the position that she would have been in, but for dispossession.

em>Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12 provides us with directions. In that case the Court had stated that “[t]he Restitution Act (had to) be understood purposively because it is remedial legislation umbilically (sic) linked to the Constitution.”

The Constitution reminds us that when interpreting any law, the spirit, purport and objects of the Bill of Rights had to be promoted.

The Restitution Act’s default position is that anyone whose property is taken must be justly compensated. In Goedgelegen the Court noted that, in the context of the Restitution Act, “[w]e must prefer a generous construction over a merely textual or legalistic one in order to afford claimants the fullest possible protection of their constitutional guarantees.”

At the time of dispossession, it observed that there was no just and equitable compensation. Florence did not have the power to use the repayment money as she wished for more than four decades. In fact, the Florence family was forced to cancel their purchase of the property because of apartheid legislation , and so “an appropriate amount hardly came into the picture.” Had they received just compensation at the time, the issue would not have arisen.

So, in these circumstances, it asked in Florence “ (was) it just to compensate an individual for the amount she ought to have been paid at the time of dispossession and calculate what that amount would be worth at the time of compensation?”

The answer was in the negative. <em>Read this judgment, especially how the court came to address what was just and equitable compensation since “in view of the history of apartheid land dispossession, the situation of the Florence family, the interests of the state and the wording and spirit of the Restitution Act and the Constitution, it (was) the most suitable outcome for this case in our attempt to address our undemocratic past and look towards a future recognising the dignity of all.”

Saber Ahmed Jazbhay

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