Crying foul on Tramway


Weekend Argus (Saturday Edition) - - COMMENT -

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.

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