A scathing court ruling has thrown out the government’s blanket R36 000 payouts to Eastern Cape families dispossessed of their land under apartheid.
Judge Muzikawukhelwana Ncube declared the payments irrational, unlawful and
inequitable for the victims of forced removals.
In a landmark judgment delivered a week ago, the Land Court ordered the Regional Land Claims Commissioner (RLCC) in Gqeberha to refer the claims back to court for a proper
determination of just and equitable redress.
The ruling follows a challenge by five elderly claimants – Kholeka Gladys Poti, Nombulelo Mavis Genge, Margaret Nokuzola Qumza, Nose Princess Jacobs, and Nomathemba Phali.
They took on the minister of rural development and land reform, the director-general, the chief land claims commissioner, and the Eastern Cape regional land claims commissioner over what they called an insulting and arbitrary compensation model.
At the centre of the dispute was the RLCC’s decision to award each claimant a fixed R36 000, an amount calculated not on their actual losses but on the value of an RDP housing subsidy.
The court slammed this approach as legally indefensible.
“The RLCC took a decision based on irrelevant factors. The value of the RDP housing
subsidy was irrelevant in the circumstances of this case,” Ncube ruled.
The court further criticised the consultants who advised the RLCC, for failing to provide an independent assessment of fair compensation.
“In fact, the report was useless since it did not provide an independent recommendation,” he said, adding that the recommendation made in the report was in any event preferred by the commission.
The court found that the compensation process was deeply flawed, as it ignored the varied circumstances of dispossession faced by different families.
“It was wrong to apply a ‘one shoe fits all’ principle when deciding on the amount of compensation to be paid to individual families,” Ncube stated.
He added that the RLCC failed to consider the unique hardships suffered by each family, noting that some tenants had built their own homes and kept livestock, while others had been completely dependent on their landlords.
“An irrational decision is the one which is shockingly bad and defies logic to the extent that no sensible person who had applied his mind correctly to the question to be decided could have arrived at that decision,” he said.
The ruling also nullified the settlement agreements signed by the claimants, finding them to be legally unenforceable.
The court pointed out that the agreements had only been signed by the claimants – with no signatures from the Land Claims Commission, raising serious questions about their legitimacy.
The RLCC had argued the claimants filed their challenge too late, but the court dismissed this, finding that delays were justified due to lack of funds and continued hope that the RLCC would correct its decision.
“The applicants waited for the full payment until it was clear that no further payment was forthcoming. It is only then that they sought funding in terms of section 29(4) of the Restitution Act,” the judge said.
As a result, the court extended the 180-day deadline for judicial review to May 10, 2022 to allow the claimants’ case to proceed.
In a rare and severe rebuke, the court ordered the government to pay the applicants’
legal costs on a punitive attorney-and-client scale, citing the reckless manner in which the state handled the litigation.
“The respondents conducted litigation in a somewhat reckless and shabby manner in the
filing of the answering and supplementary answering affidavits. I am satisfied that a punitive cost order is justified in the circumstances of this case.”
