Cape Town - A Cape Town family’s 20-year battle for “fair” restitution has come to an end in the country’s highest court.
The Constitutional Court dismissed Isabel Florence’s appeal relating to the appropriate measure to be used in calculating equitable financial redress for property affected by the forced removals under the apartheid regime.
Florence’s attorney, Henk Smith of the Legal Resources Centre, said the Bench had been divided and the loss had been by a “slight margin”.
In its judgment on Tuesday, the court also upheld a cross-appeal by the government over a memorial plaque the family wanted to be put up on the property they once owned in Kromboom Road, Fraserdale Estate, in Rondebosch. This ruling means the state will no longer have to pay the costs of the plaque.
Florence, 71, said she and her family were happy the fight was finally over.
Her husband, Lionel, and his two brothers, Norman and Ronald, bought “Sunny Croft” in 1957 after having rented it for several years.
When they were forcibly removed in 1970 under the Group Areas Act, they were forced to sell it back to the previous owner. By then they had paid R14 896 for the property - then estimated to be worth more than R31 000 - but were refunded only R1 350 by the previous owner. Florence’s husband filed a land claim in 1995, but died several years ago.
“Before my husband died he asked my children and me to fight on, which we did.
“It is just a pity my husband and his brothers couldn’t live to see the end of the fight.”
In June 2012, the Land Claims Court awarded them about R1.5 million in compensation, and R10 000 for pain and suffering. They had been seeking just over R3m in compensation, legal costs and the cost of the memorial plaque.
No order was made on the memorial plaque.
Florence went to the Supreme Court of Appeal, which ordered that the state pay the costs of the plaque.
It ruled against the family in their appeal over the calculation of the compensation.
Florence turned to the Concourt, seeking ruling on whether the consumer price index (CPI) was an appropriate metric to be used in calculating “changes over time in the value of money” when a court awarded redress.
The Concourt’s findings, given in a 96-page document, included minority views.
In a majority judgment, Acting Chief Justice Dikgang Moseneke said Florence had vied for an investment-based measure rather the CPI.
He said he was not persuaded that the CPI did not appropriately measure “changes over time in the value of money”, for it to be used in calculating compensation under the Restitution Act.
He later said: “The approach urged on us by Mrs Florence will threaten the purpose of the Restitution Act. It is likely to result in over-compensation of claimants, an outcome which is at odds with the purpose of the (act).”
In a ruling on the government’s cross-appeal on the plaque, Justice Raymond Zondo said Florence had been awarded equitable redress for her “cause of action”, which had been the dispossession of a right in land.
“To order the government to pay anything further… is to make not only an unjust and inequitable order, but… an order that falls outside the ambit of the Restitution Act.”
Florence said her family would see to the plaque. “(My husband) suffered from the day we were evicted. I hope he will rest in peace now.”