THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  114/03

In the matter between:

ZUBEIDA ABRAMS

Appellant

and

IQBAL KAZI ALLIE NO

First Respondent

ABDUL RAZAK MAHATEY NO
Second Respondent

THE DEPARTMENT OF LAND AFFAIRS
Third Respondent

PROVINCIAL ADMINISTRATION: WESTERN
CAPE : DEPARTMENT OF PLANNING,
LOCAL GOVERNMENT AND HOUSING
Fourth Respondent

REGIONAL LAND CLAIMS
COMMISSION, WESTERN CAPE

Fifth  Respondent

______________________________________________________________

Coram:
HOWIE P, SCOTT, FARLAM, LEWIS JJA et PONNAN
AJA
Date of hearing:
20 FEBRUARY 2004

Date of delivery:
26 MARCH 2004
Summary:    Restitution of a right in land in terms of Act 22 of 1994 – meaning
of ‘dispossessed’ – underlying object of acquisition to implement past racially
discriminatory law or practice – on the facts market value the equivalent of
just and equitable compensation – marginal difference between what claimant
received in 1979 and court’s determination of what market value would then
have been.

_____________________________________________________
JUDGMENT
_____________________________________________________

SCOTT JA/…

SCOTT JA:
[1] This is an appeal from the Land Claims Court. It concerns a
single-storeyed, semi-detached dwelling (‘the property’ or ‘the
subject property’) known as 3 Lever Street, Walmer Estate, and
situated on the lower slopes of Devils Peak adjacent to District Six.
Until 1980 the property was owned by Mr Bawa Mahatey who was
born in India. In 1971 he let the property to the appellant. Although
of Indian extraction, she was classified as ‘coloured’ under the
relevant apartheid legislation. On 13 June 1975, in terms of the
now repealed Group Areas Act 36 of 1966, the area was declared
a ‘coloured’ group area. On the same day certain provisions of the
now repealed Community Development Act 3 of 1966 were
declared to be applicable to the area. The following year, on 21
May 1976, the Community Development Board, established in
terms of s 2 of the latter Act, gave notice that it had prohibited for a
period of 10 years the subdivision of land or the erection or
alteration of buildings in the same area. Subsequently and after
being invited to do so, Mahatey sold the property to the
Community Development Board for a total amount of R11 599.50.
Transfer was effected in February of the following year. The
appellant remained in possession as a tenant of the Board. She

not only maintained the property but over the years effected a
number of substantial improvements. Although still registered in
the name of the Community Development Board, the property later
vested in the National Housing Board and thereafter in the
Provincial Housing Board of the Western Cape. The latter, in order
to encourage home ownership, embarked upon a scheme of
selling off its properties to tenants on a non-profit basis. The
appellant, as a first time home-owner and a tenant of long
standing, was considered an eligible purchaser under the scheme
and in terms of a deed of sale dated 18 November 1997
purchased the property at a cost to her of the modest sum of
R5 197.21. However, the provincial authorities representing the
Provincial Housing Board either overlooked or were unaware that
Mahatey had previously lodged a claim for the restitution of the
right to the property in terms of the Restitution of Land Rights Act
22 of 1994 (‘the Act’) and that notice of that fact had been
published in the Gazette. The error was discovered before transfer
to the appellant was effected and in due course Mahatey’s claim
was referred to the Land Claims Court.

[2] The court (Meer AJ sitting with an assessor), after hearing
evidence, held that Mahatey had been dispossessed of a right in

land as a result of past racially discriminatory laws or practices
within the meaning of s 2(1)(a) of the Act and that the market value
of the property as at the date of the dispossession, being the just
and equitable compensation which Mahatey should have received,
was the sum of R11 810, ie R210.50 more than the amount he
actually received. On the basis of these findings the court directed
the Department of Land Affairs (the third respondent) to
expropriate or otherwise acquire the property from the Provincial
Administration: Western Cape: Department of Planning, Local
Government and Housing (fourth respondent) in order to restore it
to the claimants (the first and second respondents), being the
executors of the estate of Mahatey who had died during the trial.
The claimants, in turn, were ordered to pay the Department of
Land Affairs the sum of R11 599.50, being the amount received for
the property in 1980 (without regard to currency depreciation),
against registration of transfer.

[3] The order is likely to result in the eviction of the appellant
and her family from the property where she has lived for more than
30 years. Leave to appeal was refused by the court a quo but
granted by this court. The third, fourth and fifth respondents abide
the judgment of the court.

[4] Counsel for the appellant attacked the correctness of the
judgment of the court a quo essentially on four grounds. He
submitted, first, that Mahatey was not a person ‘dispossessed’ of
ownership of the property within the meaning of s 2(1)(a) of the
Act; second, and even if he was, that such dispossession was not
‘as a result of past racially discriminatory laws or practices’ within
the meaning of the same subsection; third, that he was paid ‘just
and equitable compensation’ within the meaning of s 2(2) of the
Act at the time of the dispossession; and fourth, that the remedy
granted by the court a quo was in any event wholly inappropriate,
given the circumstances.

[5] The relevant part of s 2 of the Act reads as follows:
‘2 (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 . . .
(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.
(3)
. . . .’

[6] It is necessary to relate in some detail the preceding events
and the circumstances surrounding the purchase of the property
by the Community Development Board. In 1952 Mahatey and his
brother inherited nine properties from their father. These were
initially held jointly but in 1965 they divided the properties between
them. Mahatey became the sole owner of a shop at 48 Coventry
Road, two semi-detached dwellings at 7 and 7A Princess Street, a
semi-detached dwelling at 49 Duke Street and the subject property
at 3 Lever Street. The subject property and 49 Duke Street were
adjoining properties and shared a common wall. Mahatey lived at
49 Duke Street where he remained until his death. As previously
mentioned, he let the subject property to the appellant in 1971.
The rent was initially R25 per month but later increased to R50 per
month. In about 1974 Mahatey took back one room of the subject
property which he required for his two sons. It appears that a door
was made in the common wall providing access from 49 Duke
Street and the existing door into the rest of 3 Lever Street was
blocked with furniture.

[7] On 13 June 1975 the area in which Mahatey’s properties
were situated was proclaimed in the Gazette to be an area for
occupation and ownership by members of the ‘coloured group’ in
terms of s 23 of the Group Areas Act. The same Gazette contained
a proclamation in terms of s 51 of the Community Development
Act declaring sections 16 to 23 and 29 to 37 of the latter Act to be
applicable to the area.

[8] On 21 May 1976, in terms of s 15(2)(e) of the Community
Development Act, the Community Development Board gave notice
in the Gazette that ‘in furtherance of an urban renewal scheme’
subdivision of land and the erection or alteration of buildings in the
area were prohibited for a period of 10 years. Section 15(2)(e)
empowered the Board to give such notice ‘if it is satisfied that it is
expedient to do so in furtherance of a slum clearance scheme or
an urban renewal scheme…’. The effect of this notice was to afford
to the Board a preferent right to purchase all property in the area.
In this regard, s 15(5)(a) of the Community Development Act
provided:
‘Any owner of immovable property in an area in respect of which any notice
under subsection (2)(e) is in operation, who desires to dispose of such
property, shall offer such property for sale to the board, and the board shall
thereupon have a preferent right to purchase such property at a price agreed

upon between it and the owner concerned, or (if within sixty  days after the
date on which the offer was made the board and such owner fail to agree as
to the price to be paid) at a price fixed as if the provisions of section 14 of the
Expropriation Act, 1975, were applicable in respect thereof.’
On the same day as the publication of the notice, Mahatey was
notified in writing by the Department of Community Development
that the subject property had been included in the list of affected
properties compiled in terms of s 29(1) of the Community
Development Act. In terms of s 1 of that Act an ‘affected property’
was property owned or occupied by a disqualified person in terms
of a proclaimed group area.

[9] Some two years later on 21 September 1978 the Department
of Community Development addressed a letter to Mahatey inviting
him to offer 49 Duke Street and the subject property for sale to the
Board in terms of s 15(5)(a). The relevant part of the letter reads:
‘As you may already be aware . . . this Department is assisting the
Municipality of Cape Town with a renewal scheme of Walmer Estate.

In terms of the redevelopment plan drawn up for this specific area the
abovementioned properties, owned by you, are affected by future
redevelopment and will accordingly have to be acquired by the Department.

In the circumstances I wish to enquire whether you will be prepared to
offer erf 12376 and Rem. Erf 12377 Woodstock to the Community
Development Board for sale stating a definitive selling price.’

It appears that shortly thereafter Mahatey was informed that only
the subject property was required. He wrote back on 2 November
1978 expressing his ‘intention to co-operate with your department
in the implementation of your development schemes’ and his
willingness to sell the subject property to the Board for R18 000.
The Department thereafter obtained valuations of the property (to
which I shall refer later in this judgment) and by letter dated 14
December 1978 rejected the offer of R18 000 and made a counter
offer of R10 545 plus 10 per cent, viz R1 054, in terms of s 41 of
the Community Development Act. Section 41(2) made provision for
the addition of 10 per cent to any compensation agreed upon,
subject to a limit of R10 000. On 27 January 1979 Mahatey
rejected the ‘offer of R11 599’ but at the same time reduced his
asking price to R15 000.

[10] In the meantime, Mahatey had entered into negotiations to
sell 7 and 7A Princess Street to the respective tenants. Both
dwellings were ultimately sold on 23 January 1979 at a price of
R13 500 each. Negotiations for the sale of the subject property
continued. In  June  1979  Mahatey  reduced  his   asking  price  to
R13 300. On  27 September 1979 he finally agreed to a price of
R11 599.50 and a Deed of Sale was signed by the parties on 11

and 12 December 1979. Transfer was effected in February 1980.
Mahatey continued to occupy 49 Duke Street. He said that to do
so he required a permit which was renewed annually. He retained
the shop at 48 Coventry Road on the same basis. Eventually he
was told that there was no need to obtain a permit every year.

[11] Against this background I turn to the first question in issue
which is whether Mahatey was ‘dispossessed’ of the property
within the meaning of s 2(1) of the Act. ‘Dispossessed’ is not
defined in the Act. The Shorter OED gives the following meanings
of ‘dispossess’: ‘to put out of possession; to deprive of the
possession of; to dislodge; oust’. The ordinary meaning of
‘dispossessed’ in the context of the section makes it clear, I think,
that what is contemplated is a deprivation of possession in
consequence of some outside agency. It need not be physical
force. But a sale freely and voluntarily entered into followed by
transfer would clearly not result in a dispossession within the
meaning of the section. There would have to be an element of
compulsion which induced the alienation of the property. It follows
that merely because the purchaser is the Community Development
Board exercising its preferent right, as opposed to some other
purchaser, would not be enough. What is required, therefore, is an

element of compulsion of such a nature that without it there would
have been no sale. (Compare Dulabh and another v Department of
Land Affairs 1997 (4) SA 1108 (LCC) at 1118B-1120E.) There was
no disagreement between counsel as to the test to be applied. The
question debated before us was whether on the facts there had
been such an element of compulsion.

[12] On behalf of the appellant it was contended that despite
Mahatey’s ipse dixit to the contrary, it was clear from his conduct
that he in fact was a willing party to the sale of the property.
Counsel referred in particular to Mahatey’s willingness ‘to co-
operate’ expressed in his letter of 2 November 1978 to the
Department of Community Development and his conduct in selling
7 and 7A Princess Street. He argued that all this was inconsistent
with Mahatey’s evidence that he was not a willing seller. I do not
agree. The letter of 21 September 1978 addressed to Mahatey
inviting him to sell 49 Duke Street and the subject property
expressly stated that the properties will ‘have to be acquired by the
Department’. The fact that he was later told that the Department
did not want 49 Duke Street at that stage did not affect the position
in so far as the subject property was concerned. Nor is Mahatey’s
apparent willingness to co-operate of any significance. Once he

realised he would have to part with the property he had little choice
other than to sell or wait for the property to be expropriated. His
professed willingness is consistent with no more than an attempt to
gain the goodwill of the Department and possibly obtain a better
price. Mahatey was aware that he was a disqualified person who
owned property in a ‘coloured’ group area. He would also have
known of the fate of disqualified persons in adjacent District Six.
Before selling the Princess Street properties he had received the
Department’s counter offer in respect of the subject property. He
was obviously hoping for more. In these circumstances, I can see
no reason for rejecting his evidence that he sold the Princess
Street properties in the hope of obtaining a better price than he
would have obtained from the Department. It follows that in my
view the evidence established that Mahatey was dispossessed of
the subject property within the meaning of s 2(1) of the Act.

[13] The next question is whether Mahatey’s dispossession was
‘as a result of past racially discriminatory laws or practices’. In
contending that it was not, counsel for the appellant emphasized
that the stated reason for the Community Development Board’s
acquisition of the property was an urban renewal scheme which
was being implemented in conjunction with the Municipality of

Cape Town, and that the statutory provisions in terms of which the
Board had acted were by their nature not racially discriminatory.
He referred in particular to s 15(1)(a) and s 15(2)(e) of the
Community Development Act. (The latter section is referred to in
para 8 above.) In terms of the former, the objects for which the
Board was established included –
‘to develop or assist in the development of such areas, not being areas
referred to in section 23(6)(c) of the Group Areas Act, as may from time to
time be designated by the Minister, to promote community development in
any such area and, after consultation with the local authority concerned, to
take steps to prevent decay in any such area or to rehabilitate or assist with
the rehabilitation of any such area or any portion thereof which tends to
decay’.
Counsel pointed out further that only one of Mahatey’s several
properties was acquired by the Board and that notwithstanding the
former’s disqualified status he was able to retain both the Duke
Street and Coventry Road properties, thus indicating, so it was
argued, that the acquisition of the subject property was unrelated
to race. It was accordingly submitted that there was no racial
discrimination against Mahatey in the exercise of his rights in
property (cf Richtersveld Community and others v Alexkor Ltd and
another 2003 (6) SA 104 (SCA), para 99, at 137I-J).

[14] Save for references to the Group Areas Act and such terms
as ‘affected property’, the provisions of the Community
Development Act were so formulated as to suggest that it had as
its object such worthy causes as slum clearance, urban renewal
and general community development without regard to race.
However, the Act has rightly been described as ‘a true sister Act of
the Group Areas Act’ (S v Samy-Padiachy 1972 (3) SA 895 (NC)
at 901H). The proclamation of areas for the occupation and
ownership by members of a particular racial group must
necessarily result in the disruption of communities involving the
movement and resettlement of different racial groups. Although not
expressed as such, the principal object of the Community
Development Act was undoubtedly to facilitate such movement
and resettlement. Indeed, it is apparent from the evidence that it
was the operation of the Community Development Act that
resulted in the destruction of District Six. The proclamation of
Walmer Estate as a ‘coloured’ group area constituted the first step
in a process that had as its object the ultimate exclusion of all
disqualified persons from owning or occupying land in the area,
including those of the ‘Indian racial group’. In the event, good
sense prevailed, the Group Areas Act was repealed and the goal
of establishing a racial group area was abandoned. But for that,

Mahatey, as a disqualified person, would have been obliged in the
course of time to part with all his properties in the area, whether by
sale or expropriation. In all probability it was considered expedient
by the Board to commence the process with the acquisition of
those affected properties which were in urgent need of repair. This
was true of the subject property. But further acquisitions would
have had to follow in order to establish the racial group area
envisaged. The purchase by the Board of the subject property was
therefore in reality part and parcel of that process and hence a
step in the implementation of a racially discriminatory law. It
cannot, in my view, be fairly construed as a transaction totally
divorced from the underlying scheme to establish a racial group
area; nor is it of consequence that the relevant terms of the
Community Development Act were so formulated as to be capable
of being applied to a scheme not involving racial discrimination. It
follows that the second ground of appeal must similarly fail.

[15] The third question in issue is whether Mahatey received just
and equitable compensation as contemplated in s 25(3) of the
Constitution at the time of the dispossession. Sections 25(1), (2)
and (3) of the Constitution read:

‘25   (1)
No one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary
deprivation of property.
(2)
Property may be expropriated only in terms of law of general
application ─
(a)
for a public purpose or in the public interest; and
(b)
subject to compensation, the amount of which and the
time and manner of payment of which have either been
agreed to by those affected or decided or approved by a
court.
(3)
The amount of the compensation and the time and manner of
payment must be just and equitable, reflecting an equitable
balance between the public interest and the interests of those
affected, having regard to all relevant circumstances, including
─
(a)
the current use of the property;

(b)
the history of the acquisition and use of the property;
(c)
the market value of the property;
(d)
the extent of direct state investment and subsidy in the
acquisition and beneficial capital improvement of the
property; and
(e)
the purpose of the expropriation.’
In Ex Parte Former Highland Residents;  In Re Ash and others v
Department of Land Affairs [2000] 2 All SA 26 (LCC), para 35, at
40e-f Gildenhuys J expressed the view that

‘. . .  the equitable balance required by the Constitution for the determination
of just and equitable compensation will in most cases best be achieved by first
determining the market value of the property and thereafter by subtracting
from or adding to the amount of the market value, as other relevant
circumstances may require’.
This approach has been followed in the Land Claims Court (see eg
Khumalo and others v Potgieter and others [2000] 2 All SA 456
(LCC), para 23, at 465a-c) and was adopted by the court a quo. It
was not contended in this court that the approach was incorrect
and on the facts of the present case there would appear to be no
reason for holding otherwise.

[16] The court a quo, after considering the factors listed in s 25(3)
of the Constitution and other relevant circumstances, came to the
conclusion that there was nothing to warrant an upward
adjustment of the market value of the property to arrive at just and
equitable compensation within the meaning of s 25(3) of the
Constitution at the time of the dispossession. In other words, it
held that in all the circumstances of the case just and equitable
compensation was the equivalent of market value. Counsel for the
respondent contended that there should have been an upward
adjustment. I am unpersuaded that such an adjustment would be
justified. As previously mentioned, the property was occupied by

the appellant who remained on as a tenant of the Community
Development Board after the dispossession. It is true that Mahatey
had to give up the room occupied by his two sons but it appears
that by then they had reached adulthood and proceeded to
establish homes of their own in Rylands Estate. Mahatey and the
other members of his immediate family continued as before to live
next door at 49 Duke Street with little, if any, disruption. The
subject property at the time of the dispossession was, moreover, in
a poor state of repair. The roof was rotten, the ceilings had been
damaged by the rain and there were holes in the floor although
otherwise structurally sound. Immediately upon acquiring the
property the Community Development Board spent a relatively
large sum of money repairing the roof, presumably to prevent
further damage. As previously suggested, it was probably the poor
state of repair that motivated the Board to acquire the property
when it did. In Mahatey’s land claim form dated 25 June 1995 and
in subsequent correspondence (all of which was handled by
Mahatey’s son-in-law who played a major role in the prosecution of
the claim) much was made of an alleged sentimental attachment to
the subject property. It was said that the property had been the
family home for generations and that Mahatey’s father had
expressed the wish that the property be given to Mahatey’s

daughter, ie the wife of the son-in-law just mentioned. However, in
evidence it became apparent that there was little to justify the
alleged sentimental attachment; the property had never been the
family home and Mahatey’s father had expressed no such wish.
Not only had Mahatey never discussed the property with his father
but the latter had died prior to the birth of his granddaughter. In all
the circumstances, I am satisfied that the approach adopted by the
court a quo was correct.

[17] This brings me to the question of the market value of the
property. Mr Willem van Rijswijk, a valuer of Cape Town, gave
evidence on behalf of the claimants. He placed a value of
somewhere between R15 500 and R18 000 on the property as at
the relevant time, viz December 1979. However, he found himself
in an invidious position; he had no knowledge of the condition of
the property some 22 years previously nor of the properties which
formed the subject matter of the transactions on which he sought
to rely as being comparable; he had also attempted to value the
property with a minimum of investigation because of time
constraints. Ultimately, the transactions on which he relied were
shown not to be comparable at all. The court a quo found itself

unable to set any store by his evidence and rejected his valuation
in its entirety. This finding was not challenged on appeal.

[18] The   only   other   valuer   to   give   evidence  was  Mr  C  L
Gerber, who was called to testify on behalf of the appellant. In
1979 he was the chief valuer and chief inspector of works in the
Department of Community Development. He explained that
whether the Department acquired property by purchase or
expropriation, its policy was to pay market value. On each
occasion the Department would obtain valuations from an internal
valuer as well as an outside and independent valuer appointed on
an ad hoc basis. It would then offer the purchaser or expropriatee
first the lower valuation, and if that was not accepted, the average
between the two, plus an additional 10 per cent as a solatium. The
internal valuer in the case of the subject property was Mr D J
Elrich, who is now deceased but at the time worked under Gerber.
The independent valuer was Mr I Jacobs. The latter was also an
auctioneer who himself owned property in the vicinity of Walmer
Estate. He was described by Van Rijswijk as one of the most
knowledgeable valuers of property in the area. He valued the
subject property at R9 000. Elrich’s valuation was R12 090. The
average between the two was R10 545 which, together with the 10

per cent, was the amount offered to Mahatey and which he
ultimately accepted. Gerber pointed out, however, that Elrich had
made a mistake when measuring up the property and that his
valuation, when adjusted to correct the error, was R11 740.

[19] Gerber had the advantage of having inspected the subject
property at the time of its acquisition by the Board. He recalled it
as being in urgent need of repair in the respects previously
mentioned. At the time it had an outside toilet in poor condition and
no bathroom. Subsequently the Department had all but replaced
the roof and the appellant herself had obviously spent money
renovating the property and adding a bathroom. Gerber also had a
reasonable recollection of the properties which were the subject
matter of the comparable transactions on which he relied to value
the property. Some of these he had inspected at the time,
including the properties at 7 and 7A Princess Street which he
considered to be far superior to the subject property. The Princess
Street  properties, it  will be recalled, were sold by Mahatey for
R13 500 each, being a price with which he said he was satisfied.
Notwithstanding his intimate knowledge of the area at the time,
Gerber emphasized the difficulties associated with determining the
market value of property two decades later. He stressed the

importance of the condition of the subject property and the
comparable properties relied upon in order to arrive at a fair
market value.

[20] In calculating the market value of the subject property as at
1979, Gerber had regard to sales of vacant land outside the
affected area, eg land in areas such as Vredehoek and University
Estate, from which he established a norm of R12.50 per square
metre as a starting point. This in fact was a norm which he himself
had established at the time when valuing properties for the
Department and which had been used by Elrich. Applying this land
value to sales of improved property both in and outside the
affected area at the relevant time he determined the notional
amount paid for the improvements. He then adjusted this notional
amount on the basis of comparability to arrive at a value for the
building on the subject property of R70 per square metre, to which
he added R30 per square metre for the stoep area. By this means
he arrived at a figure of R11 810.

[21] Gerber emphasized, however, that the valuation of
immovable property was not an exact science and that the
property, if sold on the open market, could well fetch a price of
anything between 10 per cent more or 10 per cent less than the

value he had placed on it. When translating these percentages to
figures he adjusted them slightly to arrive at a range of between a
low of R9 700 and a high of R12 500. He expressed the view that
the proclamation had in fact not depressed the market. This was
particularly so, he said, because the destruction of District Six had
resulted in an abundance of ‘coloured’ buyers.

[22] A perusal of the record reveals Gerber to have been a
knowledgeable witness. His evidence was accepted by the court a
quo, as was the correctness of his valuation. No criticism was
directed at these findings. However, I would make two
observations at this stage. The first is that in principle the method
of valuation employed by Gerber is not above criticism.
Nonetheless, given the peculiar problems associated with valuing
an affected property, and particularly having to do so some 22
years after the relevant date, the method adopted does not strike
me as being unreasonable. Second, it is apparent that the
Department of Community Development did not attempt to acquire
the property for less than market value. The practice of taking the
average of two valuations may be regarded as somewhat arbitrary
but it was not unfair.

[23] Having accepted the market value of the subject property at
the relevant time to have been R11 810, the court a quo noted that
the amount paid to Mahatey was R11 599.50 and concluded that,
because the latter amount was less than the former, Mahatey had
not been paid market value, and hence just and equitable
compensation, and was accordingly entitled to restitution of his
right in the property.

[24] The difference between the two amounts is, of course,
R210.50, which is less than 1,8 per cent of the amount determined
to be the market value. The amount paid, R11 599.50, falls well
within the range of between R9 700 and R12 500 suggested by
Gerber and in fact is greater than the midpoint of that range which
would be R11 100. Counsel for the respondent submitted,
however, that it mattered not that the amount paid was only
marginally less than the amount subsequently fixed as the market
value and that once it was established that the latter amount was
less than the former, the claimant would have crossed the
threshold of s 2(2) of the Act and would be entitled to restitution,
whether by way of restoration of the property or equitable relief. In
support of this submission she referred to a schedule at the
conclusion of the judgment of the Land Claims Court in Ex Parte

Former Highland Residents; In Re: Ash and others v Department
of Land Affairs, supra, from which it appears that claims for
equitable relief (ie compensation as opposed to restitution of
property) were upheld even where in one case the difference
between the compensation paid in the 1960’s and the market
value subsequently determined, with considerable difficulty I might
add, was as little as R18. The judgment, however, contains no
comment regarding the marginal nature of the difference.

[25] In the absence of an actual sale of the property to be valued,
the determination of its market value necessarily involves an
estimate of what that property would realise at a notional sale in
the open market. By the very nature of the exercise ‘only
approximate results can be achieved’. (A Gildenhuys in 30 Lawsa
(first reissue) para 177.) This is all the more so in the absence of
transactions which are directly comparable or where there are
factors relating to the notional sale, such as in the present case the
need to think away the proclamation, which render the exercise
more complex (cf Pietermaritzburg Corporation v South African
Breweries Ltd 1911 AD 501 at 516). This court has in the past
frequently commented on the nature of the inquiry and hence the
approximate nature of its result. In South African Railways v New

Silverton Estate Ltd 1946 AD 830 at 838 Tindall JA stressed the
importance of bearing in mind that a valuation ‘is to a material
extent a matter of conjecture’. Ogilvie Thompson JA in Estate
Marks v Pretoria City Council 1969 (3) SA 227 (A) at 253A
described a valuation as ‘essentially a matter which is in the realm
of estimate’. Botha JA in Bestuursraad van Sebokeng v M & K
Trust & Finansiële Maatskappy (Edms) Bpk 1973 (3) SA 376 (A) at
391E similarly described it as ‘noodwendig ’n kwessie van skatting
in die lig van al die omstandighede’. Nothing, I think, demonstrates
this more than the regularity with which good and honest valuers
arrive at relatively widely different conclusions.

[26] When determining the value of property, whether in
consequence of an expropriation or otherwise, a court is of course
obliged to arrive at a particular figure. This is because an award
must be in the form of a determined, or at least readily
determinable, amount. But the present inquiry is different; it is
whether some 22 years previously the former owner of the
property was paid just and equitable compensation which on the
facts of the case would be the equivalent of market value. To hold
that he was not, when the difference between what he was then
paid and the estimate of market value made two decades later is

less than two per cent, is to proceed on the assumption that
market value is capable of being estimated with such precision as
not to permit a variation of less than two per cent. This is quite
clearly not the case and this was established in evidence. Gerber
was at pains to point out that valuation was not an exact science
and that although he had estimated the value of the property in a
particular amount, in the event of a sale in the open market the
property could realise anything within the range he estimated.
Accordingly, it cannot be said that the price paid to Mahatey in
1979 was less than market value at the time.

[27] It follows that in my view the claimants did not cross the
threshold of s 2(2) of the Act and the appeal must succeed.

[28] It is therefore unnecessary to consider the appropriateness
or otherwise of the remedy granted by the court a quo. I might add,
however, that counsel for the appellant argued at length before us
that the restoration of the property, as opposed to any other relief,
was so unreasonable in the circumstances as to justify
interference by this court. He referred in particular to the marginal
nature of the difference between the amounts previously referred
to, the consequence of the order, viz the probable eviction of the
appellant from her home of 30 years, the substantial improvements

to the property effected by the appellant and the absence of any
allowance for currency depreciation in determining the amount
payable by the claimants. There is no doubt much force in these
submissions but, as I have said, there is no need for me to deal
with them.

[29] There is, however, the question of costs to be considered.
The practice of the Land Claims Court has been not to make
awards of costs, save in exceptional circumstances. (See In Re
Kranspoort Community 2000 (2) SA 124 (LCC), para 121, at 184H
and the Ash case, supra, para 86.) In conformity with this practice
the only order as to costs made by the court a quo was a special
order directing the appellant to pay the wasted costs occasioned
by ‘the duration of the proceedings taken up by the testimony on
expenses incurred by her in renovating the subject property’. The
reason for the order was that the appellant had sought to rely on
false invoices in a futile attempt to quantify the amount she had
spent on renovating the subject property. (It was ultimately
common cause that she had indeed incurred such expenditure, but
in an amount she was unable to establish.) Notwithstanding her
success on appeal, I do not think there is any justification for
interfering with this award; nor is there any justification for making

an order in her favour with regard to the remainder of the costs in
that court. However, the position with regard to the costs of appeal
is different. The third, fourth and fifth respondents, all of whom
participated in the proceedings in the court a quo, played no part in
the appeal proceedings and abided the judgment of this court. In
the result, the issue in this court related to a dispute between
private individuals as to their respective entitlement to the subject
property. In the court below the appellant enjoyed the benefit of
legal aid, but not in this court. It appears that the Legal Aid Board
was only prepared to grant legal aid to the appellant on condition
that her appeal was handled by a staff member from the Board’s
Cape Town Justice Centre. It was also not prepared to pay the
costs previously incurred of preparing the appeal record and of
counsel’s heads of argument. The appellant, not unreasonably,
elected to proceed without legal aid and with her existing legal
representatives who have acted on a contingency basis. In all the
circumstances, there seems to me to be no good reason for
departing from the ordinary rule that costs should follow the result.

[30] A further issue relates to the costs of preparing and perusing
the appeal record. The appellant’s attorneys wrote to the attorneys
representing the other parties in the appeal requesting them to

agree to the omission from the appeal record of the contents of
two departmental files of the Provincial Administration which had
been admitted in the course of the trial. The response of the
attorneys representing the first and second respondents was to
request a copy of the files. On being advised that the files were
already in their possession, they simply ignored the request. The
fourth respondent, which abides the judgment of this court, had no
objection to the omission. However, the attorneys representing the
third and fifth respondents wrote back insisting that the files be
included. In view of the attitude of the first, second, third and fifth
respondents, the files were included and accounted for volumes 8
to 13 and pages 1112 to 1148 of volume 14 (out of a total of 30
volumes). It was common cause between counsel in this court that
this portion of the record was unnecessarily included and no
reference was made to it in argument. The attorneys representing
the third and fifth respondents were afforded the opportunity of
furnishing reasons why their clients should not be held jointly and
severally liable with the first and second respondents for the
preparation and perusal of this part of the record. The response of
the attorneys was that they had insisted that the files be included
in the record as they had believed them to be relevant. They
added that they had in any event informed the appellant’s

attorneys subsequently that in the absence of the ‘court record’
their clients were unable to state which part of the record was
relevant. As to the first point, I have already indicated that it was
common cause at the hearing of the appeal that the files in
question were irrelevant. As to the second point, the third and fifth
respondents were represented at the trial by counsel. They did not
require the ‘court record’ to ascertain whether the files were
relevant or not. I accordingly propose holding them jointly and
severally liable with the first and second respondents for the costs
in question.

[31] In the result, the following order is made:

(a)
(i)
The appeal is upheld.
(ii)
The appellant’s costs of appeal are to be paid by the
first and second respondents in their capacity as joint
executors of the estate of the late Bawa Mahatey, but
subject to sub-paragraph (iii) below.
(iii)
The third and fifth respondents are jointly and severally
liable with the first and second respondents for the
costs of preparing and perusing volumes 8 to 13 and
pages 1112 to 1148 of volume 14 of the court record.

(b)
That part of the order of the court a quo directing erf 12377

Cape Town situated at 3 Lever Street, Walmer Estate,

Western Cape, to be restored to the first and second

respondents in their capacity as executors in the estate of

the late Bawa Mahatey and directing them against

registration of transfer to pay the sum of R11 599.50 to the

fourth respondent, is set aside and replaced by the following:

‘The application is dismissed.’

D G SCOTT

JUDGE OF APPEAL

CONCUR:
HOWIE
P
FARLAM
JA
LEWIS
JA
PONNAN AJA