IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG In chambers : Dodson J, Moloto AJ and Plewman (assessor). CASE NUMBER: LCC26/98 Decided on : 03 October 2000 In the matter of: KRANSPOORT COMMUNITY Claimant Concerning THE FARM KRANSPOORT 48 LS JUDGMENT DODSON J: [1] This Court ordered restitution of portions of the farm Kranspoort 48 LS 1 ( the farm ) to the claimant community on 10 December The order was accompanied by a reasoned judgment ( the judgment ). 2 When the Court ordered restitution, it did so subject to certain conditions. The relevant part of the order reads as follows: 2. The claimant community must apply to the Court in terms of rule 37 of the Land Claims Court rules within 6 months of the date of this order (or such extended period as the Court may on good cause allow), for an order confirming compliance with the following conditions- 1 A full description of the property to be restored is found in para 5 of the order contained in para [123] of the judgment referred to below in n (2) SA 124 (LCC).

2 Page the claimant community must form and register a communal property association in terms of the Communal Property Associations Act No 28 of 1996 on the basis of a draft constitution and list of initial members which complies with this order and which has received the prior approval of the Court in chambers; 2.2 the communal property association referred to in paragraph 2.1 must ratify the decision to seek restoration of the farms referred to in paragraph 5 as the appropriate form of relief, at a properly convened general meeting of the initial members of the communal property association; 2.3 the claimant community must formulate a plan to the satisfaction of the Court for the development and use of the farms and provide sufficient proof of community participation in the planning process; and its commitment to the proper implementation of the plan. [2] Pursuant to the order, the claimant community has applied to the Court for an order confirming compliance with these conditions. The application has been duly served and is not opposed. The application is supported by a founding and supplementary affidavit by Mr E Serumula, the chairperson of the Communal Property Association (the CPA ) formed by the claimant community. Annexed to these affidavits are a Sustainable Development Plan and a Settlement Establishment Project Proposal prepared by a firm of town planners as well as various resolutions and other supporting documents. On the basis of these documents, it was contended by the claimant community that paragraph 2.3 of the order was complied with. [3] A conference was held in chambers on 7 September 2000 to consider the application. It was clear from the application that the conditions referred to in paragraphs 2.1 and 2.2 of the order had been complied with. However, because of its concerns about the proposal, the Court was not satisfied that paragraph 2.3 of the order was met. The Court made the following order during the conference: 1 The Court confirms that the claimant has complied with paragraphs 2.1 and 2.2 of the order dated 10 December 1999 in the above matter. 2 The Court makes no order in respect of the application for an order that the plaintiff has complied with paragraph 2.3 of the order dated 10 December The claimant is given leave to renew the application referred to in paragraph 2 on the same papers, duly supplemented. 4 For purposes of paragraph 3, the period of six months referred to in paragraph 2 of the order dated 10 December 1999 in the above matter is extended to a period ending 5 February 2001.

3 Page 3 5 No order is made in respect of prayers 2 or 3 of the notice of motion, subject to the possibility of the application for condonation of late opposition referred to in these minutes. 3 [4] The Court undertook to hand down a brief judgment setting out the reasons for this order. The assessor, as a qualified development planner, is best placed to highlight the shortcomings of the Sustainable Development Plan and the Settlement Establishment Project Proposal. The Court s reasoning is accordingly set out in her judgment, with which I respectfully agree. PLEWMAN (ASSESSOR): [5] The following are the Court s reasons for finding that paragraph 2.3 of the order referred to in paragraph [1] has not been satisfied. The Court is not satisfied that the Sustainable Development Plan and the Settlement Establishment Project Proposal (referred to jointly as the proposal ) reflects what it considers to be a reasonable degree of planning. A sustainable development plan should incorporate a view of the larger scale, but should ultimately focus on the specific local realities of the claimant community. The proposal fails to do this and rather provides a situational analysis of the eco-tourism initiatives and environmental issues pertinent to the Northern Province as a whole. The specific realities for the claimant community and the farm to be restored to them are not investigated in any depth. [6] It is necessary to refer to paragraphs [107] - [110] of the judgment 4 which lay out the concerns of the Court in ensuring that restoration can be successfully implemented without further contributing to conditions of poverty. Guidance may also be obtained from a reference to paragraph [115] of the judgment regarding the participation and commitment of relevant authorities to the implementation of the resettlement order. The Court has already indicated in its judgment that it has no desire to act as superplanner. 5 There is, however, a need to ensure 3 The reference to minutes is a reference to the minutes of the conference, which need not be repeated here. The attorney for the parties who originally opposed the claim indicated that his client may yet seek to oppose the application, depending on the supplementary documents which are filed in support of a renewed application. In that event his clients will apply for condonation of the late opposition. The various parties rights were reserved in this regard. 4 See above n 2. 5 See above n 2 at para [116].

4 Page 4 that the conditions for the claimant community with regard to resettlement on the farm are as favourable as possible. In this regard the Court must be satisfied that: (i) (ii) a reasonable degree of planning has taken place; on the basis of a sufficiently participatory planning process; and (iii) there is a clear commitment to the implementation of the plan or plans formulated. 6 [7] As already indicated above we are not satisfied that the claimant community could be successfully resettled on the basis of the current proposal. The planning that has been done thus far does not provide for the following: (i) the development of a plan which will enable the claimant community to resettle on the farm as a coherent, rural, village settlement. This would include plans investigating the feasibility of different options for housing, water and power supply and sewerage disposal; (ii) the delivery and supply of, or access to existing, education, health, recreational and sports facilities; (iii) an investigation of income generation possibilities on the farm in terms of available resources, including available finances, existing skills in the claimant community and training that would be required, existing resources on the farm that could be put to use immediately, for example fruit bearing trees; (iv) available markets for the use of products developed and produced on the farm and by the claimant community - this would include eco-tourism initiatives; and (v) a considered analysis of the appropriate form of tenure which occupants of the restored land will enjoy. At present the proposal includes a formal township development with subdivided erven on part of the land and freehold title of those subdivisions by the 6 See above n 2 at para [116].

5 Page 5 individual claimant community members. There is no clear indication that this has been thoroughly canvassed with the claimant community or that the cost implications of such a development have been considered and whether or not the individual community members can afford it. It is also questionable whether this is consistent with the claimant community s election to bring a claim as a single entity and not by way of individual claims and to form a CPA which will hold title to the land. The revised Sustainable Development Plan should examine these issues in more focused detail. [8] In terms of the eco-tourism and environmental opportunities that the farm offers, the initiatives in the area are of long term interest, but appear to have limited immediate benefit to the claimant community. This subject dominated the Sustainable Development Plan to the detriment of other realistic possibilities for the claimant community. These ecology related opportunities need to be assessed in the light of their long term benefits, but should realistically not be the basis on which a return to the farm is based, unless there is clear evidence of an immediate and substantial potential benefit. This links to the need, or otherwise, for a scoping study and an environmental impact assessment. In certain circumstances, an environmental impact assessment may be required by law. However, given the limited planning funds available, the planning ought to reflect an endeavour to find those options which allow less expensive (but nonetheless effective) forms of environmental monitoring. If these are not available, then the cost implications of preparing environmental impact assessments needs to be factored in in assessing the feasibility of development options. Generally, the proposal reflects little attention to cost considerations of the manner of resettlement contemplated in it. [9] In addition the Sustainable Development Plan should include the following details: (i) the timing and order in which the people will return to the farm and how further people will be settled as infrastructure develops to be able to sustain a larger number of people. The intention of the individual members of the claimant community to return should be surveyed in order to assess this;

6 Page 6 (ii) a thorough assessment of the various agricultural possibilities should be undertaken, particularly in the light of the environmental sensitivity of the area. Grazing, crop growing, orchards, harvesting of existing natural resources, game farming, eco-tourism and all the suggestions made by the members of the claimant community themselves should be assessed and compared. The idea would not be to develop a mono-culture, but to develop a range of different possibilities and options on which the claimant community could base decisions; and (iii) an assessment of the available funds. [10] A critical point of departure for all of this will require the claimant community to have a thorough understanding of what grants and financing are available. As experience elsewhere has shown, dependence on the provision of finance solely from state departments is likely to result in slow delivery. The claimant community needs to develop a realistic view of what funds are available, and how those funds can be accessed. [11] The revised Sustainable Development Plan ought to contain reference to the relevant contacts and service providers consulted. [12] The Court is mindful of the fact that the preparation of a revised Sustainable Development Plan is the beginning of a long process of resettlement and re-establishment for the claimant community. Community participation in this process is essential at this stage but there will have to be a critical turning point when the claimant community drives the process with the assistance of planners and other service providers. This will ensure that the claimant community owns the process and that it is fully supported by them. It will also ensure that negotiation and compromises to be made will occur with the full knowledge of the members of the claimant community. 7 7 Du Toit The End of Restitution: Getting Real About Land Claims unpublished paper prepared for Land and Agrarian Reform Conference, Pretoria July 1999.

7 Page 7 [13] Finally, I venture to comment on the cost of the proposal. Given that the proposal provides very little on which to base any resettlement of the claimant community and did not come close to satisfying the conditions referred to in paragraph 2.3 of the order, 8 I find the amount of R which was charged for the proposal to be exorbitant. The proposal appears to be a collation of environmental information about the Northern Province without much research. The Court s concern is that it appears that limited public funds are not being put to the best use. Although the Court has no detailed knowledge of the qualifications of the planners, it would also question the wisdom of using town planners to plan a rural development based on agriculture. ASSESSOR T PLEWMAN I agree ACTING JUDGE J MOLOTO I agree JUDGE AC DODSON For the claimant: L du Plessis from Legal Resources Centre, Pretoria. For the Department of Land Affairs: F Swanepoel from by the State Attorney s Office, Pretoria. For the remaining participating parties: J Spies from by Van Zyl, Le Roux and Hurter, Pretoria. 8 See para [1].