The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation
Abstract
In 1998 Mr Msiza, a labour tenant, successfully instituted a claim in terms of land reform legislation (the Land Reform (Labour Tenant) Act) for ownership of the land that he and his father occupied for six decades. In terms of this legislation, when the labour tenant is awarding the land, the owner of the land must be compensated for the loss of the land. In 2004, the Land Claims Court confirmed the award of land and ordered the state to make sure that Mr Msiza gets a title deed for the land. The case was heard again in 2016 in the Land Claims Court, where the court this time examined the question of compensation to be paid to the owner. The Land Claims Court ruled that the Constitutional compensation requirement is “just and equitable” compensation, and awarded less-than-market-value compensation by subtracting a seemingly arbitrary amount from the market value of the land. This decision was overturned in 2017 when the Supreme Court of Appeal ruled that the the just and equitable question were already considered in the calculation of market value, and therefore ruled that no amount be deducted from what the valuers calculated to be market value. The handling of the case, and the different approaches from the two courts, is a symptom of the uncertainty that judges are confronted with when they have to calculate “just and equitable” compensation. A history of the case will reveal that the inability to properly valuate the land, perpetuated the injustice that Mr Msiza is facing, of not having the land registered in his name, despite a valid award in terms of land reform legislation. This paper will show how the compensation requirement is a hurdle to Mr Msiza receiving the title deed to his land. By making use of the valuation reports and the court materials, the paper will endeavour to indicate what a better outcome would be, by focussing on the calculation of “just and equitable” compensation. The paper will argue for a purposive approach when interpreting legislation dealing with compensation, where the Constitutional purpose to “heal the divisions of the past” should play a central role in land reform cases.
Note
Paper delivered at the 5th Multinational Conference on Rethinking Expropriation Law, 27–29 September 2018, Katowice, Poland.
Acknowledgment
The author would like to acknowledge that many of the ideas were born during a conversation with advocate Ben Winks. Further communications with Prof Jackie Dugard, especially surrounding judicial expropriation, also helped shaped the ideas. Any faults and errors, however, remains the author’s.
5. Bibliography
Literature
Du Plessis E Compensation for Expropriation under the Constitution (University of Stellenbosch 2009)10.2139/ssrn.2463639Suche in Google Scholar
Du Plessis EW “How the determination of compensation is influenced by the disjunction between the concepts of ‘value’ and ‘compensation’” in Hoops B et al (eds) Rethinking Expropriation Law III: Fair Compensation (Eleven International Publishing The Hague 2018) 191–221Suche in Google Scholar
Giliomee H The Afrikaners: Biography of a people (University of Virginia Press Charlottesville 2003)Suche in Google Scholar
Hoops B “Expropriation without compensation: a yawning gap in the justification of expropriation?” 2019 SALJSuche in Google Scholar
Ngcukaitobi T “Land reform needs laws and imagination” Mail & Guardian (21 September)Suche in Google Scholar
Opperman D and Breytenbach K Donkerland (Tafelberg 2013)Suche in Google Scholar
Sachs M et al Grundgesetz (Beck, CH 2011)Suche in Google Scholar
Slade B “Addressing the issue in Harvey v Umhlatuze Municipality in legislation” 2014 Stell LR 116-125Suche in Google Scholar
Van der Walt A Constitutional property law (Juta and Company Ltd 2011)Suche in Google Scholar
Van der Walt A Property and Constitution (Pretoria University Law Press (PULP) 2012)Suche in Google Scholar
Van der Walt A “The modest systemic status of property rights” 2014 JL Prop & Soc’ySuche in Google Scholar
Viljoen S-M “Substantive adjudication of the decision to expropriate property” 2017 Stell LR 444-465Suche in Google Scholar
Case law
Ex Parte Former Highland Residents; In Re: Ash v Department of Land Affairs 2000 2 All SA 26 (LCC)Suche in Google Scholar
Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa; Rainy Days Farms (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa [2012] ZASCA 213Suche in Google Scholar
Florence (Dodgen) v Broadcount Investments (Pty) Ltd and Others [2012] ZALCC 11Suche in Google Scholar
Florence v Government of the Republic of South Africa 2014 SA (6) CCSuche in Google Scholar
Florence v Government of the RSA 2014 6 SA 456 (CC)Suche in Google Scholar
Florence v The Government of the Republic of South Africa [2013] ZASCA 104Suche in Google Scholar
Haffejee NO v eThekwini Municipality [2011] ZACC 28Suche in Google Scholar
Khumalo v Potgieter 2002 2 All SA 456 (LCC)10.4102/hsag.v8i4.140Suche in Google Scholar
Mazizini Community v Minister for Rural Development and Land Reform [2018] ZALCC 5Suche in Google Scholar
Msiza and Others v Uys [2004] ZALCC 21Suche in Google Scholar
Msiza v Director-General for the Department of Rural Development and Land Reform [2016] ZALCC 12Suche in Google Scholar
Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and AnotherSuche in Google Scholar
Qwabe-Waterfall Community v Minister of Rural Development and Land Affairs and Others Suche in Google Scholar
District Six Committee and Others v Minister of Rural Development & Land Reform and Others Suche in Google Scholar
Legislation
Land Reform (Labour Tenants) Act 3 of 1996.Suche in Google Scholar
Restitution of Land Rights Act 22 of 1994Suche in Google Scholar
© 2019 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- Frontmatter
- Articles
- Editorial
- The Debate about Full, Partial or Nil Compensation in Expropriations for Land Reform Purposes in South Africa
- The principle of full compensation under Dutch expropriation law
- Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice
- Just Compensation and ‘Solatium’: Comparative approaches in Common Law Systems
- The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation
Artikel in diesem Heft
- Frontmatter
- Frontmatter
- Articles
- Editorial
- The Debate about Full, Partial or Nil Compensation in Expropriations for Land Reform Purposes in South Africa
- The principle of full compensation under Dutch expropriation law
- Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice
- Just Compensation and ‘Solatium’: Comparative approaches in Common Law Systems
- The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation
