IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CC127/13 SCA Case No: 550/2012 LCC Case No: 148/2005
In the matter between:
ISABEL JOYCE FLORENCE (NEE DODGEN) Applicant
and
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA Respondent
APPLICANT’S PRACTICE NOTE
Names of the parties and case number
1. The names of the parties and the case number are reflected above.
The nature of the proceedings
2. This is an application for leave to appeal against a judgment handed down by the Supreme Court of Appeal (“SCA”) on 13 September 2013. The Applicant seeks leave to appeal against the finding that the Consumer Price Index (“CPI”) is the appropriate means for converting a past loss to current terms for purposes of claims for financial compensation under the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act”).
3. The Respondent seeks leave to cross-appeal against the SCA’s order that the state must pay up to R50000.00 in respect of the costs of erecting a memorial plaque acknowledging the dispossession of the Florence family’s land rights at the site of their former home in Rondebosch.
The issues to be argued
4. The issues to be argued are the following:
a. Whether the use of the CPI is the appropriate means for converting the loss suffered by the Florences in 1970, at the time when they were dispossessed, into present day monetary terms for purposes of determining financial compensation in a restitution claim;
b. Whether the SCA should have ordered the state to pay up to R50000 towards the costs of erecting a memorial to the Florence family’s dispossession in terms of the Group Areas Act 77 of 1957; and
c. Issues relating to costs.
Portions of the Record relevant to the matter
5. The entire Core Record is relevant to the determination of the matter.
Duration of the argument
6. It is anticipated that no more than a day will be required for argument.
Summary of argument
The application for leave to appeal
7. The CPI is not appropriate for converting the Florence family’s past loss into present day monetary terms because they were dispossessed of an immovable property, an investment, while the CPI measures only consumption. The CPI is inappropriate as:
a. It results in an irrational disparity between the value of restitution in the form of restoration of the lost rights and restitution in the form of
financial compensation, because it does not compensate for the capital gain in the value of the dispossessed property between 1970 and the present;
b. Is inconsistent with the applicable international law principles;
c. It under-compensates poor people; and
d. It fails to give effect to the purpose of financial compensation, which is to place claimants in the position in which they would have been if they had not been dispossessed.
The cross-appeal
8. The SCA exercised its discretion, in terms of the “vast” remedial powers conferred by s 35 of the Restitution Act, to order the state to pay for the erection of a plaque acknowledging the hurt, indignity and injustice suffered by the Florences and other families in the area. This is consistent with the purpose of the Restitution Act, which is to acknowledge the hurt, indignity and injustice resulting from racial dispossessions of land rights. The Respondent does not establish that the SCA failed to exercise its discretion judicially and accordingly the exercise of the discretion cannot be overturned on appeal.
Authorities on which particular reliance will be placed
9. a. Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs and Another [2012]
ZASCA 173 (29 November 2012); 2013 (3) SA 263 (SCA); [2013] 1 All SA 381 (SCA);
b. Factory at Chorzow (Germ. v Pol.), 1928 PCIJ (ser. A) No. 17 (September 13);
c. Joffin and Another v Commissioner of Child Welfare, Springs and Another 1964 (2) SA 506 (T);
d. Mphela and Others v Haakdoornbult Boerdery CC and Others 2008 (4 ) SA 488 (CC);
e. Department of Land Affairs and Others v Goedgelegen Tropical Fruit Farms (Pty) Ltd 2007 (6) SA 199 (CC).
PETER HATHORN
FAZLIN JAKOET
SUZANNA HARVEY
Chambers, Cape Town
January 2014
