IN THE LAND CLAIMS COURT OF SOUTH AFRICA Heard at CAPE TOWN on 23-24 April, 26-27 July 2001 CASE NUMBER: LCC 13/00 2-3 August, 6-7 August, 17 September, 10-11 October 2001, 30 November, 3 December, 7 December 2001, 23-25 April and 19 July 2002. before Meer AJ and Murphy (assessor) Decided on: 01 October 2002 In the case of: IQBAL KAZI ALLIE NO First claimant ABDUL RAZAK MAHATEY NO Second claimant and THE DEPARTMENT OF LAND AFFAIRS First respondent PROVINCIAL ADMINISTRATION WESTERN CAPE: Second respondent DEPARTMENT OF PLANNING, LOCAL GOVERNMENT AND HOUSING ZUBEIDA ABRAMS Third respondent REGIONAL LAND CLAIMS COMMISSIONER, WESTERN CAPE Fourth respondent JUDGMENT MEER AJ: [1] A claim for restitution of a right in land in terms of the Restitution of Land Rights Act,1 (“the Restitution Act”) was lodged by Mr B A M Mahatey, an Indian gentleman and a pensioner of about seventy-eight years. The claim is in respect of Erf 12377, Cape Town, at Woodstock, 1 Act 22 of 1994, as amended. 2 also known as 3 Lever Street, Woodstock (“the subject property”).2 Mr Mahatey claimed that he was dispossessed of a right in land when the area of Woodstock was declared “Coloured” in terms of the Group Areas Act,3 and he was forced to sell the property to the Community Development Board (“the Board”) in December 1979 for a sum which did not constitute just and equitable compensation as contemplated in the Restitution Act.4 [2] Section 2 of the Restitution Act deals with entitlement to restitution and sets out the prerequisites for restitution as follows: “(1) A person shall be entitled to restitution of a right in land if - (a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or (b) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or (c) he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who — (i) is a direct descendant of a person referred to in paragraph (a); and (ii) has lodged a claim for the restitution of a right in land; or (d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and (e) the claim for such restitution was lodged not later than 31 December 1998. (2) No person shall be entitled to restitution of a right in land if — (a) just and equitable compensation as contemplated in section 25(3) of the Constitution; or (b) any other consideration which is just and equitable, calculated at the time of any dispossession of such right, was received in respect of such dispossession.” 2 Previously known as the remainder of Lot no. 72, Walmer Estate. 3 Act 36 of 1966. 4 At section 2(2)(a) quoted in paragraph [2]. 3 [3] The claim was brought under section 2(1)(a) of the Restitution Act and it sought physical restoration5 of the subject property. The subject property is currently owned by the Western Cape Housing Development Board, which was represented in these proceedings by its administrative arm, the second respondent, the Provincial Administration of the Western Cape: Department of Planning, Local Government and Housing. [4] The first and fourth respondents, the Department of Land Affairs and the Regional Land Claims Commissioner for the Western Cape, supported the claim. The second respondent did not object to the validity of the claim and abides the decision of the Court. [5] The third respondent, Ms Z Abrams, a tenant who has continuously rented the subject property for the past thirty years, opposed the claim. She disputed the contention that the sale of the property to the Board constituted a dispossession and submitted that just and equitable compensation had been paid to Mr Mahatey by the Board when it purchased the subject property. Ms Abrams rented the property initially from Mr Mahatey and thereafter from the second respondent when the property was acquired by the Board. In 1997 the property was sold to her by the second respondent. Transfer to her was however prevented when the sale was discovered to be in contravention of the Restitution Act in that written notice in respect thereof was not given to the fourth respondent.6 5 As opposed to equitable redress. Section 1 of the Restitution Act defines the term “restitution of a right in land” and specifies the available forms of restitution as follows: “‘restitution of a right in land’ means - (a) the restoration of a right in land; or (b) equitable redress; ‘restoration of a right in land’ means the return of a right in land or portion of land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices; ‘equitable redress’ means 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;” 6 Section 11(7)(aA) of the Restitution Act restricts the sale of land subject to claims. It provides that no person may sell land in respect of which notice of a claim has been published in the Gazette, without having given the Regional Land Claims Commissioner one month’s written notice of his or her intention to do so. 4 [6] It was agreed by the parties that the Court would determine at a preliminary hearing the first threshold requirement for a restitution claim, namely whether there had been a dispossession of a right in land in respect of the subject property. Thereafter, if it was established that the subject property had been dispossessed, the Court would go on to consider the second threshold requirement, namely whether just and equitable compensation was received at the time of such dispossession. In addition it was agreed that the Court would consider whether it may set aside the sale of the subject property by the second respondent to the third respondent in terms of section 11(7)(aA)(i)7 of the Restitution Act on the grounds that it was not done in good faith. Preliminary hearing on the issue of dispossession [7] During the course of the hearing on the issue of dispossession, and after he had testified, Mr Mahatey passed away. Mr Iqbal Kazi Allie and Mr Abdul Razak Mahatey, executors of his estate, were thereafter substituted as claimants in his stead.8 At the close of the preliminary hearing on the threshold requirement of dispossession I found that there had been a dispossession of a right in land in respect of the subject property. My reasons for so finding appear from the following consideration of the facts and circumstances surrounding the acquisition of the subject property, in conjunction with the evidence presented. 7 Section 11(7)(aA) read as follows: “(7) Once a notice has been published in respect of any land- (a) . (aA) no person may sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the regional land claims commissioner one month's written notice of his or her intention to do so, and, where such notice was not given in respect of- (i) any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision or rezoning or grant any other order it deems fit;” 8 In terms of rule 15(1)(a) of the Land Claims Court Rules published in Government Gazette 17084, 21 February 1997, as amended. 5 Factual background in conjunction with the testimony of Mahatey, Allie and Abrams [8] From the uncontested evidence of the late Mr Mahatey the following factual background, (much of which was common cause) pertaining to the acquisition by the Board of the subject property emerged: [9] Mr Mahatey inherited the subject property from his late father and took transfer thereof on 26 May 1965.9 On the same date and by the same Deed of Transfer, three other properties were transferred to him, also bequeathed by his father. The current physical addresses of these properties are: 7 and 7A Princess Street (Erven 12443 and 15145 respectively), 49 Duke Street (Erf 12376) and 48 Coventry Road (Erf 12336). At the time, the subject property and the Princess Street properties were rented out to tenants. Mr Mahatey operated a general dealership store from the property at 48 Coventry Road from 1947 until 1984 and also lived there for a while. Between 1963 and 1964 he and his family moved into the property at 49 Duke Street, which became the family home. 49 Duke Street is situated next door to and borders onto the subject property at 3 Lever Street. [10] About eight years later, in May 1971, the third respondent, Ms Abrams moved into the subject property as a tenant in terms of an oral lease agreement. Ms Abrams was classified as “coloured” at the time. Her rental was initially R25 per month but later was increased to R50 per month. By agreement, one of the rooms in the subject property came to be occupied by Mr Mahatey’s two sons shortly after she moved in.