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Licensed Unlicensed Requires Authentication Published by De Gruyter December 7, 2019

The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation

Elmien Du Plessis

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

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Published Online: 2019-12-07
Published in Print: 2019-12-05

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