Die betekenis van 'n ontneming weens 'n rasdiskriminerende wet of praktyk vir doeleindes van die Wet op Herstel van Grondregte 22 van 1994 - 'n oorsig van ontwikkelings in regspraak

Pienaar, Juanita M. (2012-12)

The original publication is available at http://www.litnet.co.za/

Article

OPSOMMING: Persone of gemeenskappe kwalifiseer vir restitusie indien hul ontneem is van ’n reg in grond na 19 Junie 1913 as gevolg van ’n rasdiskriminerende wet of praktyk. Die Wet op Herstel van Grondregte 22 van 1994 verskaf nie werklik duidelikheid oor wat onder “as gevolg van ’n rasdiskriminerende wet of praktyk” verstaan word nie. Gevolglik is dit die taak van die howe om die relevante frase te interpreteer en op bepaalde feite toe te pas. Die frase is ’n belangrike deel van die regsvereistes alvorens ’n grondeis suksesvol kan wees. Aan die een kant beteken dit dat nie sommer enige ontneming vir restitusie kwalifiseer nie. Aan die ander kant is dit algemeen bekend dat die hele Suid-Afrikaanse grondbeheerstelsel voor 1991 in beginsel op ’n rassebasis gefunksioneer het. Wat presies word dus onder hierdie frase verstaan? Die doel van hierdie bydrae is om aan die hand van regspraak bepaalde benaderings (of toetse) te identifiseer en te bepaal of ’n spesifieke benadering ’n bepaalde resultaat sou bewerkstellig. Die uitgangspunt is dat die Restitusiewet, omdat dit uit hoofde van die Grondwet (artikel 25(7)) uitgevaardig is, ook ’n doelmatige interpretasiebenadering vereis. In hierdie proses is egter oor die jare drie verskillende benaderings (of toetse) in drie toonaangewende hofbeslissings ontwikkel. ’n Uiteensetting van die verskillende benaderings en ’n vergelyking daarvan dui aan dat die resultate inderdaad verskil, afhangende van die benadering wat gevolg word. Nadat die huidige (jongste) benadering van die Popela-uitspraak (konstitusionele hof) bespreek is, word die mees onlangse beslissing, Jacobs, waarin die optrede van staatsamptenare ter sprake was, in die lig van dié benadering ontleed. Die slotsom is dat hoewel duidelikheid ten aansien van die algemene doelmatige benadering tot interpretasie verkry is, die oorsaaklikheidskwessie moontlik nog steeds problematies kan wees.

ABSTRACT: From 19 June 1913 South Africa’s land control system was racially based, resulting in the acquisition and exercise of land rights being linked to and determined by the specific racial background of the individual or community concerned. In this racially based process, thousands of legislative measures were promulgated over a period of roughly 80 years resulting in millions of people being uprooted and dispossessed of land rights. The interim Constitution provided for a restitution act (section 121), a commission (section 122) and the land claims court (LCC) (section 123). Following the inauguration of the new political dispensation, the Restitution of Land Rights Act 22 of 1994 was one of the first legislative measures to be promulgated. The final Constitution provided for an all-encompassing land reform programme, embodying restitution (section 25(7)), redistribution (section 25(5)) and tenure reform (section 25(6)). In order to be successful with a land claim, two sets of requirements are relevant: (a) a formal set and (b) the legal requirements. The formal set requires that no just and equitable compensation had already been paid and contains a cut-off date. The legal requirements entail that the applicant(s) must have been dispossessed of a right in land after 19 June 1913 as a result of racially discriminatory laws or practices. Unfortunately the Restitution Act in itself is not really helpful in clarifying “as a result of racially discriminatory laws or practices”. Accordingly, the task of interpreting and finally applying the relevant phrase rested upon the courts. Exactly how the courts approached and interpreted the relevant phrase is the main focus of this contribution. Over the years three distinctive approaches (or tests) were developed to clarify what would constitute a dispossession resulting from racially discriminatory laws and practices. The first test was developed in Minister of Land Affairs v Slamdien 1999 4 BCLR 413 (LCC) following a purposive interpretation approach linked to a three-question test. The latter entailed (a) whether the particular law or measure was racially discriminatory; (b) whether the particular conduct was a racially discriminatory practice; and (c) whether the actual dispossession was a result of (a) or (b) above. In casu land belonging to so-called coloured land owners was dispossessed under the 1950 Group Areas Act to build a school for coloured children. This test entailed that the relevant law or practice would be a racially discriminatory law or practice if all of the three questions were answered in the affirmative. Though a purposive approach was followed, the end result was rather rigid. This was specifically streamlined in this fashion so as to prevent a floodgate of claims as the court argued that, formerly, the whole of South Africa essentially functioned on a racially discriminatory basis. Therefore some kind of additional restriction was required. The LCC was satisfied that the dispossession of the land here was not the result of racially discriminatory laws or practices. Instead, discrimination was linked to education and aimed at school children and was neither linked with the exercise of land rights nor aimed at creating spatial racial segregation. The three-question approach was thereafter applied in the LCC in the Richtersveld Community v Alexkor Ltd 2001 3 SA 1293 (LCC). Here the court found that (a) the Precious Stones Act, in terms of which dispossession and removal had occurred, was not a racially discriminatory law; (b) that proclaiming the area a security area was not a racially discriminatory practice; and that (c) the dispossession was not a result of (a) or (b) above. Accordingly, the court found that the dispossession was not a result of racially discriminatory laws or practices. However, the three-question approach was discarded in Richtersveld Community v Alexkor Ltd 2003 6 SA 104 (SCA) by the SCA on the basis that it was too rigid and that an approach that would best suit the purpose and aims of the Restitution Act should be followed. In this regard both the SCA and the constitutional court (CC) in the Richtersveld case scenario focused on the impact of the act or measure as opposed to the aims of the measure. It was found that the impact of the Precious Stones Act was indeed racially discriminatory because registered (Western-style) landowners received compensation and certain other benefits whereas unregistered landowners – customary law owners – did not. Because only the Richtersveld community had no registered land rights, the impact of the act was indeed racially discriminatory. A third approach was thereafter developed in Popela Community v Department of Land Affairs and Goedgelegen Tropical Fruits (Pty) Ltd 2005-6-03 saaknr. 52/00 (GH). While the two former cases dealt with government practice or legislative measures, the Popela case concerned the private business decision of landowners to terminate labour tenancy rights without payment of compensation. However, before the Popela judgement was scrutinised, the above two approaches were first superimposed on the facts of the Popela case to determine whether the particular approach would in fact have a different end result. The three-question test of Slamdien was applied to the Popela facts, resulting in the finding that the decision of the landowners would not constitute the necessary dispossession. Under the Slamdien approach the Popela claim would thus not have been successful. The impact test applied in the Richtersveld case would also not have validated the Popela claim, because: (a) the Richtersveld approach entailed government and not private conduct; and (b) the decision to terminate labour tenancy rights, occurred before the official government notice abolishing labour tenancy. The impact of the legislative measure or practice could not be established on the particular facts. The Slamdien and the Richtersveld approaches did not assist the Popela community. In the Popela a quo and SCA judgements it was emphasized that no causal link existed between the landowners’ decision and the overarching grid of racially discriminatory laws and practices. Therefore the dispossession was not “a result of” the racially discriminatory laws and practices. In the CC Judge Moseneke followed a general purposive approach, but linked with a teleological approach (Department of Land Affairs, Popela Community and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 6 SA 199 (CC)). Accordingly, though the historical background and the lessons learnt from the past are also considered, the interpretation process is essentially forward-looking. The CC underlined that regarding restitution, causation is different from that usually required in criminal and delictual law. The “but for” (sine qua non) test would thus not suffice. Regarding restitution, it would be sufficient if the consequence was “a” consequence and not “solely” the consequence of the overarching framework. Because this causation approach was rather broad, it was tempered by requiring that there should be some “reasonable connection” between the overarching grid of discriminatory laws and the resulting dispossession. The exact connection would depend on the particular facts in each case. Therefore, by following a purposive approach, linked with teleological interpretation and expanding the causation issue, the CC reached the conclusion that the landowners’ decision to terminate tenancy rights without any consequences was supported by, aided by and made possible by the overarching grid of racially discriminatory laws or practices. That dispossession was thus a result of racially discriminatory laws or practices, thereby validating the claim. The latest judgement dealing with the issue is Jacobs v Departement Grondsake 2011 6 SA 279 (LCC). At the time the Jacobs case was decided, legal certainty had already been achieved at CC level regarding the approach to interpretation; that causation was unique in restitution cases and that it was established if the dispossession was a consequence (if not the only one) of the overarching legislative measures with some reasonable connection between the dispossession and the overarching framework. In the Jacobs judgement no new approach or test was formulated. It seems as if the Popela approach, especially regarding causation, was merely applied to the facts. However, for the first time, the concepts of racism and racialism were explained and placed in perspective. Here the overall climate of racialism impacted on and even prescribed the conduct of the relevant master and the magistrate respectively. These two functionaries’ conduct regarding the deceased estate of a coloured married couple resulted in the relevant parcel of land’s finally being lost and registered in the name of the government. In light of the Popela approach the broad concept of causation was underscored, finding that the dispossession had indeed occurred because of racially discriminatory laws or practices. This judgement highlights exactly to what degree the South African community was regulated on a racial basis. The racialism that existed at the time of the dispossession was so overpowering and all-encompassing that it permeated almost all actions and decisions – especially regarding government officials. Though it seems that consensus has been reached regarding the interpretation approach, the causation issue may still be unresolved. The Jacobs finding onracialism essentially echoes the finding in Slamdien, which led to the limiting function of the three-question approach to prevent a floodgate of claims. As all actions would inevitably be linked with racialism in any event, it raises the question how and to what extent a “reasonable connection” is to be established. Given the climate of racialism, wouldn’t all such actions and conduct then automatically qualify for purposes of the Restitution Act?

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