Crying foul on Tramway

CAPE

THE recent collapse of the Tramway Road land restitution project in Sea Point, in which successful land claimants did not receive compensation due to them, is not only an eye-opener but also stirs up various emotions.

I am the descendant of a group that was marginalised, abused, robbed and defrauded, lied to, economically impoverished and physically harmed or killed for centuries by Europeans in their quest for possession of our land. As much as I would like to applaud any land restitution success story, I also feel extreme anger at any failures of a system that is supposed to be designed to ensure proper restoration of damage suffered.

This is especially the case when no meaningful restitution takes place – despite having well-designed constitutional rights, an outstanding judicial system, excellent statutes, learned consultants and legal professionals.

Thus, a case like the Tramway Road saga fills me with with anger, frustration and extreme mistrust.

I would like to compare the intention of land restitution to the rugby rules applicable to fouls, which award penalties to the aggrieved team. When a foul is committed in rugby, the referee allows play to continue until an advantage has been achieved by the aggrieved team.

In a sense I would have liked the same principles to be applied in all cases of the restoration of land rights: the advantage should be played until such time as the offending team has “paid”, or the aggrieved team has received benefit and compensation for the harm suffered.

In South Africa, common law principles and acts promulgated for specific restitutions, such as the loss of property ownership or specific provision in other acts that allow for compensation of losses where the losses are due to unfair processes or acts committed by other people, form the basis for instituting legal processes for the compensation of losses or harm. These include the Compensation for Occupational Injuries and Diseases Act, the Companies Act, the Consumer Protection Act and the Restitution of Land Rights Act.

When these acts don’t achieve what they were intended for, the first thing that comes to mind is that there must be some means whereby we can cry foul.

Concerning the Sea Point property, the question remains, who are we going to blame for this failed attempt?

When a restitution claim has been successfully instituted, how do we ensure that a suitable award is made? And when the award has been made, how do we ensure that the aggrieved parties are adequately compensated, and that the award brings about tangible, long-lasting benefits commensurate with the value of the losses sustained and the opportunities lost from the date of the dispossession?

There are many stories of successful land claimants, who have gained good value. Should this not be the case, it is my suggestion that the government should act as referee and ensure that restitution has taken place sufficiently. The target should be to place the claimant in the position that he would have been in at this stage, had dispossession not occurred. There should also be an escape clause to ensure that if the process of restoration will not yield enough benefits (as if the person was never removed from that particular piece of land) that an alternative form of restitution can be implemented.

So we come back to the question: who is responsible for ensuring that if claimants do not receive adequate compensation through a specific settlement as they ought to, that an alternative form of compensation can be applied? It is the government’s duty to ensure that the regulatory principles follow the settlement through until proper compensation is made.

Although it’s difficult to put land claimants “back” in the same position and to determine what that position would have been had dispossession not occurred, the issue remains that grievance has occurred and it has to be compensated for. And, in cases like the Sea Point property, where the compensation has failed, there should be a way to halt the settlement process so that the appropriate restitution can still take place.

The mudslinging will probably continue for a long time in the Sea Point case. The comments from all parties ought to be considered as lessons to help design alternative processes to prevent such failures ever occurring again.