Dispute after state authorised expropriation of farm

Government has begun unilaterally expropriating farms against which land claims have been lodged and where price negotiations with owners have stalled.

Two game farms in Limpopo appear to be the first properties that will be expropriated without following a court process. The owners, who dispute the validity of the land claims lodged against their property, want R200m for the land, while government has offered them R20m.

A letter written to Akkerland Boerdery, owners of a luxury hunting farm in Makhado in Limpopo, read in part: “Notice is hereby given that a terrain inspection will be held on the farms on April 5 2018 at 10am in order to conduct an audit of the assets and a handover of the farm’s keys to the state.”

Mashile Mokono, head of the land reform office in the ministry of rural development and land reform, told City Press’ sister newspaper, Rapport, that the minister was committed to speeding up land reform.

Mokono said that just this past week, Land Reform Minister Maite Nkoana-Mashabane signed another two final orders for expropriation in terms of section 42E of the Restitution of Land Rights Act, where negotiations have become deadlocked.

While government is willing to pay for the land, the Akkerland case comes as the ANC’s top structures have decided over the past weeks that government must urgently proceed with test cases in order to test the concept of expropriation without compensation.

Mokona emphasised that there was no talk of expropriation without compensation, but that the courts would have to give clarity on what constitutes “just and equitable” compensation.

A 2006 Government Gazette shows that the Musekwa tribe lodged a claim against the Akkerland Boerdery as far back as 1996.

Various legal experts are of the opinion that in certain circumstances, not paying any compensation may be justified and that it is therefore unnecessary to amend the Constitution, but the courts have not yet ruled on this point.

Akkerland has obtained an urgent interdict in the Land Claims Court to prevent its owners’ eviction from the farms. The interdict is valid until a court has ruled on the matter. The department is opposing the court application.

Annelize Crosby, legal adviser of agricultural body AgriSA, expressed concern about the Akkerland case, saying that the organisation was only aware of one other case where a land claim dispute had resulted in expropriation, and that was after the Land Claims Court had ordered it in 1997.

“What makes the Akkerland case unique is that they apparently were not given the opportunity to first dispute the claim in court, as the law requires,” she said.

Linda Page, spokesperson for the department of land reform, said section 42E of the law makes provision for the minister to intervene to purchase, acquire or expropriate property for the purpose of land reform.

A total of 23 such cases have been finalised since 2007: one in KwaZulu-Natal, seven in Limpopo, 14 in Mpumalanga and one in the Northern Cape. It is unclear how many of these cases ended up with farmers eventually agreeing to take the compensation offered.

According to court papers in the Akkerland case, a “notice of intention to expropriate” was sent to the owners in October last year. The owners made representations in which they disputed the validity of the claim and the proposed amount of compensation.

Nkoana-Mashabane, who was appointed to the portfolio in March, authorised the expropriation in April.

Theon Smith, Akkerland’s attorney, confirmed that they were disputing the price that government had offered for the farms, but also the Musekwa community’s claim to the farm.

Smith said the upsetting part of his client’s case was the fact that the minister ignored legislation that requires Akkerland’s owners to be given an opportunity to make their case in court.

The owners argue that the land reform commission itself initially found that the Musekwa community’s claim was only proven in respect of one of the two farms, Lukin 643. After additional research, the commission also allowed the claim in respect of Akkerland’s second farm, Salaita 188.

But Akkerland says the claim has never been proven.

Negotiations began in 2013 and, according to the department, Akkerland was willing to sell the farms.

However, Akkerland also had an offer of R20m from Coal of Africa, which wanted to buy the farm for the controversial Makhado coal mining project. This was, however, subject to the approval of the land claims commission because of the pending land claim.

DDP Valuers, hired by government, put the value of the property and all the improvements at R20.75m in 2015. The Valuer-General approved the amount and it was offered by the government as compensation. Akkerland has, however, disputed that the compensation is reasonable.

According to Akkerland’s court papers, the owners had an independent valuation done in 2011 which put the value of the farms at R200m.

In other correspondence that has been submitted to court, Akkerland said it had received a valuation of R50m in 2011, and that was only if the farms were developed into an eco-estate with 300 stands.

Smith did not want to comment on these apparent inconsistencies.

In another test case before the courts that AgriSA is also involved in, owners are challenging the Valuer-General’s determinations in respect of compensation to be paid for expropriated property.

Last week, Rapport reported that more than 30 property owners in KwaZulu-Natal are facing expropriation because they refuse to accept the Valuer-General’s valuation. They are of the opinion that the joint value of their property is R760m, while government is offering R460m.

These farmers are disputing the formula that the Valuer-General uses to determine the value of property.

According to them, the formula puts too little emphasis on the market value of land, improvements and the existing purpose for which the land is used.

Three other factors prescribed by the Property Valuation Act are: how the property was acquired, how much state assistance the land owner received over the years and the purpose of the expropriation.